author: Williams, J.

text:
    Bentz, Garnishee, versus Rockey.
    1. When there is no question of bankruptcy, the transfer of property by an insolvent debtor, to a creditor for a debt, accompanied by delivery of possession, is not fraudulent and void, if there be no intent to hinder, &e., creditors, though this may be the tendency.
    2. Without legal fraud, it is the intent with which ithe transfer is made, not its effect, that characterizes the transaction as honest or fraudulent.
    3. An insolvent selling property in payment of his debts, cannot reserve any of it for his own benefit; a stipulation for such reservation renders the transaction void.
    4. Roller, a tanner, who was insolvent, transferred all his property to Bentz in payment of a debt, and received a note for a balance. At the time of the transfer, there was an understanding that Roller should get back part of the property for working out the tannery stock, and that the money was to be made out of the stock before the note should be paid. Held, that the transfer was void.
    5. At the time of the transfer, Roller was lessee of the tannery. Bentz rented the tannery from Roller’s landlord, and gave him a note for rent for the remainder of the year. Roller with the property remained on the premises as before, worked out the stock, which was sold, Bentz receiving the money. Held, there was not such a change of possession as would render the sale valid against creditors.
    May 4th 1871.
    Before Thompson, C. J., Agnew, Siiarswood, and Williams, JJ.
    Error to the Court of Common Pleas of York county. ■ Of May Term 1871, No. 47.
    This was an attachment execution issued, December 1st 1866, by John Rockey against David Roller, in which George Bentz was garnishee, on a judgment in favor of Rockey recovered against Roller in Adams county, on the 29th of October .1866, and entered by transcript in the Common Pleas of York county, November 27th 1866.
    Roller was a tanner, and on the 1st of September 1866, by bill of sale, sold all his stock in his tannery, his farming stock, &c., to Bentz, his father-in-law, for $3000. The plaintiff alleged that the sale was fraudulent: Bentz having sold the property and received the proceeds: Rocky attached them in his hands.
    The case was tried December 13th 1870, before Eisher, P. J.
    The plaintiff proved that Roller, in the fall of 1866, was in the occupancy of a tannery, which he rented from H. H. Wright, and that Bentz came there at that time and told Wright that Roller had sold to him the tanyard property; at Bentz’s request, Wright rented the tan-yard to him till the next spring; and he gave Wright a note for the rent, for the remainder of the year. Roller gave up to Bentz all the personal property, and “ Roller was paid by him to work it out.”
    Roller was called by the plaintiff, and testified: that he purchased hides from Rockey in April 1866, and confessed judgment to him for his indebtedness (the judgment in suit); he never paid for the hides. He delivered the hides to Bentz, at Wright’s tan-yard. Bentz paid no money down; he delivered at the same time other hides, leather, horse, wagon, harness, &c., and “ turned over to Bentz, corn and potatoes in the field;” also currying tables and tools, bark, household furniture, &c. Bentz agreed that Roller should tan out the stock; he was to have his living there for that purpose; was to have the corn, potatoes, horse, harness, &c., and the tools as wages to tan out the stock. Roller sold bark to Diehl, and from the proceeds paid Wright the rent due from Bentz. He sold some of the hides to Bear & Crane, Baltimore, and sent some to them to sell on commission; the money was paid to Bentz for both lots. He sold the horse, wagon, harness, &c., as his own, and used the potatoes and corn for his family. Bentz gave orders about the sales of the hides. Bentz, in October 1866, paid him in cash $1171.25, part of the price for the property he sold to Bentz; the whole property at the sale was valued at $3000. Witness made the assignment to Bentz because he was insolvent and could not pay his debts. He left the premises in April 1867. The plaintiff then closed.
    The defendant gave in evidence the bill of sale, dated September 1st 1866, from Roller to Bentz, for hides, bark, &c., mentioned by Roller; “ being in the house occupied by me, also in and about the tan-yard adjacent thereto, also in the fields and enclosures appertenant to the same: ” the consideration was $3000: also note of same date, Bentz to Roller, for $1171.25, payable in one year; also notes from Roller to Bentz, and notes for which he vas security for Roller, amounting, principal, to $1785.
    Bentz testified: “ I was present when the bill of sale was written on 1st of September 1866; I live in Warrington township, twenty miles from where the property was; I too.lc the bill of sale on Saturday; I could not take possession; about nine o’clock on Monday morning I went up there; I met Roller and Wright; Iwent up and told Mr. Wright we had made an agreement ; I had bought the property of Roller ; then I took possession; I gave Mr. Wright anote for the rest of the year; Mr. Wright agreed to take me for his tenant, and I gave the note; I employed Mr. Roller to work out the stock ; I saw the bark there when I went up; the sides of leather were in the vats; the tools were in the tan-house; the horse was 'there, wagon was there, harness was there, saddle and bridle, wheelbarrows, oil barrel; do not know that I noticed the flour barrels; did not go out to see the corn and potatoes growing; I employed him the same day I took possession of the things, and left Roller there to work out the stock. * * * I afterwards paid this note for $1171.25; it was given for part of the tan-yard; this was part of the consideration ; I paid this off to Roller on the 10th of October 1866 ; there was a lot of leather ready soon after I bought it; it was sent down to Baltimore; Roller and I went down to Baltimore ; we sold it; I sold it to Bear & Crane; he owed Bear & Crane $500 ; I agreed that the $500 was to be paid out of this lot of leather; it was to go on this note; I then paid the balance of the note. * * * I paid this note off because Roller owed a heap and the people wanted their money; on the bark he owed it, and on money loaned ; I owed the proceeds of the other leather sold; I paid off these notes; after I paid off these notes there was not any left; the money I made did not reach to pay the notes ; about $40 short; I paid that out of my own pocket since; I kept the proceeds separate from my private funds, and when I got it I paid it out; I bought it to pay up the debts — the debts that Roller owed to the people; everybody that he owed, as far as I could ; I paid no other debts but those for which I was liable; at the time of the signing of the bill of sale I was twenty miles from the tannery, and when the note for $1171 was given; on the day of the sale I did not see the property; the Monday I went there and did not move any of the property, nor do anything with the property; we moved the corner cupboard out of the house into the tan-yard house; we did not move the cupboard from the premises; I went away that day, and left everything as it was there; I left Roller there in charge of the property, and it continued in his possession until the 1st of April. * * * On Monday 3d of September 1866, it was agreed that he should get back the horse and the wagon, and the saddle and bridle, and the potatoes and the corn, and the tanner’s tools. * * He was to have the horse, wagon, harness, corn, potatoes and other things for working out the stock; the tools were ais» to be given.”
    The parties respectively submitted points which, with their answers, and also the parts of the general charge complained of, are found in the assignment of errors. Besides these, the plaintiff’s fourth point, with its answer, is as follows :—
    “ The plaintiff’s counsel have in their fourth point asked the court ‘ to charge the jury as to the nature and effect of legal fraud, and also as to the actual, open, exclusive and continuing change of possession required by law, in order to prevent a sale of personal property from being void against creditors of the vendor.’
    “We answer this point as follows:—
    “ Legal fraud in an assignment of property is the absence of actual delivery of the property — such delivery as the nature of the property is susceptible of. The delivery must not be secret, but open, notorious and exclusive. The terms upon which it was transferred, to make it legal, must be free from all engagements to deliver any portion of it for the benefit of the vendor, or of any reservation of any portion of it for the future benefit of the vendor or for his advantage, as we have already stated in our answers to the plaintiff’s 5th, 7th and 8th points.”
    The verdict was for the plaintiff against the garnishee for $1246.77.
    The garnishee removed the case to the Supreme Court.
    The errors assigned were the answers to the points, and portions of the charge, viz.:—
    1. Plaintiff’s 6th point: “ That if the tendency and effect of the agreement and arrangement between Roller and Bentz, as to the property named in the bill of sale, was to hinder, defeat, or delay creditors of Roller or Rockey as one of those creditors, in the collection of a claim, the transaction was illegal and void as against such creditors.”
    Answer : “ This point is correct.”
    2. Plaintiff’s 7th point: “That if the jury believe from the evidence that while the assignment or bill of sale, was absolute on its face, there was an understanding and agreement between Roller and Bentz, by which Roller should receive a benefit by a return of a portion of the property, the transaction was illegal and void against his creditors.”
    Answer : “ This point is correct.”
    3. Plaintiff’s 5th point: “ That if the jury find from the evidence that David Roller was insolvent at the date of the bill of sale— even though the consideration paid was, in part, a debt really due from Roller to Bentz, and that by the agreement and arrangement between them as to the property in question there was an understanding between them which was not expressed in the bill of sale, that Roller should receive a benefit by a return of part of the property, or of the proceeds thereof, and that the transaction had a direct tendency to protect the property of Roller from the other creditors, the assignment is fraudulent and void as against creditors.”
    Answer : “ This point is correct.”
    4. Plaintiff’s 8th point: “ That if the jury believe from the evidence that while in the bill of sale it was expressed to be for a consideration of $3000 to Roller in hand paid, yet if by the arrangement and agreement between Roller and Bentz for the transfer of the property $1171.25 of money was to be paid to Roller by Bentz out of the proceeds of the property .(Bentz to have (the) opportunity to realize the same out of the property before faying it), this was such a benefit secured to Roller as to render the transaction illegal and void against creditors and against Rockey as one of them.”
    Answer : “ This point is correct.”
    5 and 6. In the general charge: “ That if the jury believe from the evidence that Roller was insolvent at the time he made the assignment to Bentz, and that there was an agreement between Roller and Bentz, not inserted in the written transfer or assignment, that a portion of the property assigned or the proceeds thereof, should be returned to Roller and be for his benefit and advantage, and a note was given by Bentz to Roller, for the sum of $1171.25; that is such a reservation as would render the transaction fraudulent and void as to creditors, although it might be good as between the parties themselves.
    “ The evidence shows that Mr. Bentz had become the surety of Roller, his son-in-law, for a large amount, the notes and other evidences of indebtedness given in evidence clearly establish that fact, and also that Bentz paid them after the assignment to him. There was a method free from all legal objections by which he (Bentz) might have been secured; that was to obtain judgment against Roller, issue execution, and sell Roller’s property at sheriff’s sale. Such a sale would have been legal. That method he did not pursue, and if he took a different course, and one which the law declares to be fraudulent as to creditors, he must suffer the consequences of his mistaken action.”
    7. Defendant’s 1st point, and not fully answering it:—
    “ That the presumption of law is always in favor of innocence and against fraud, and fraud must therefore always be proved, and cannot be presumed; and the jury are not at liberty to find the sale of property by Roller to Bentz to be fraudulent, in the absence of evidence to establish the fact either positive or circumstantial.”
    Answer: “The position of law’as stated in this point is correct, but there are certain acts which constitute legal or technical fraud. Whether this comes within the rule relating to them, is a matter upon which the court will hereafter instruct you.
    8. Defendant’s 2d point:—
    “ If the debt which Roller owed Bentz was an honest one on the 1st of September 1866, Bentz had a perfect legal right to receive in payment of it any money or property which Roller had to give, provided he (Bentz) so received it without an intention to hinder, delay or defraud other creditors of Roller, and if the jury so believe, their verdict must be for the defendant, and the plaintiff cannot recover in this suit.”
    Answer: “ If the debt which Roller owed Bentz was an honest one on the 1st of September 1866, Bentz had a perfect legal right to receive in payment of it any money or property Roller had to give, provided Bentz received it without an intention to hinder, delay or defraud creditors, or that the transfer had in law the effect to hinder, delay or defraud creditors.”

      W. C. Chapman, for plaintiff in error.
    So long as a debtor retains dominion over his property, he may prefer one creditor to another, and such preference is not fraudulent either in law or in fact: Uhler v. Maulfair, 11 Harris 481; York County Bank v. Carter, 2 Wright 446; Covanhovan v. Hart, 9 Harris 495; Damon v. Bache, 5 P. F. Smith 67. Roller’s secret intention alone could not invalidate the sale, as regards Bentz, unless he also had notice of it, and participated in it. Proviso to the stat. 13 Eliz., Rob. Dig. 295; Mateer v. Hissim, 3 Penna. R. 160; Thompson v. Lee, 3 W. & S. 479. In some circumstances legal presumption will not overturn honest sales. Long v. Knapp, 4 P. F. Smith 514 ; Bear’s Estate, 10 Id. 430; Herron v. Fry, 2 Penna. R. 263.

      D. McConaughy and Cochran Hays, for defendant in error,
    cited Twynne’s Case, 3 Coke 80; Clow v. Woods, 5 S. & R. 275; Babb v. Clemson, 10 Id. 429; Passmore v. Eldridge, 12 Id. 198; Streeper v. Eckart, 2 Wharton 302; Young v. McClure, 2 W. & S. 151; Brawn v. Keller, 7 Wright 106; McClurg v. Lecky, 3 Penna. R. 83; McCulloch v. Hutchinson, 7 Watts 434; Shaffer v. Watkins, 7 W. & S. 219; Connelly v. Walker, 9 Wright 449; Kepner v. Burkhart, 5 Barr 478; Kaine v. Weigley, 10 Harris 179.
   The opinion of the court was delivered, May 11th, 1872, by

Williams, J.

Where there is no question of bankruptcy, the law does not adjudge the sale or transfer of property by an insolvent debtor in satisfaction of his indebtedness, when accompanied by actual delivery of possession, to be fraudulent and void, if there is no intent to hinder, delay and defraud creditors in the collection of their claims, though this may he the tendency and effect of such sale or transfer. A debtor has the undoubted right to sell and dispose of his property, for the payment of his debts, and the payment of one creditor is no fraud upon other creditors. In the absence of legal fraud, it is the intent with which the sale or transfer is made, and not its tendency and effect, that gives character to the transaction, and stamps it as honest or fraudulent. If it be made with the honest intent of discharging the vendor’s indebtedness to the vendee, the sale is not fraudulent though its tendency and effect may be to postpone other creditors or to prevent them from obtaining payment at all: Covanhovan v. Hart, 9 Harris 495; York Co. Bank v. Carter, 2 Wright 446. It follows that there was error in charging the jury, in affirmance of the plaintiff’p sixth point, that if the tendency and effect of the agreement and arrangement between Roller and Bentz, as to the property named in the bill of sale, was to hinder, defeat or delay the creditors of Roller in the collection of their claims, the transaction was illegal and void as against such creditors. If, as the point impliedly admits, there was an absolute sale and delivery of the property, for a fair price, without any fraudulent intent, it is clear that the transaction was not illegal and void as against creditors, though it may have deprived them of the means of obtaining the payment of their claims. But while an insolvent debtor may make an absolute sale of his property in payment of his debts, he cannot reserve any portion of the property or its proceeds for his own benefit and advantage; and if he stipulates for such reservation, it will render the whole transaction fraudulent and void. In McClurg v. Lecky, 3 Penn. Rep. 91, Mr. Justice Rogers said: “ The rule clearly deducible from all the cases is, that no debtor can, in an assignment, make a reservation, at the expense of his creditors, of any part of his income or property for his own benefit; nor can he stipulate for any advantage either to himself or family.” This rule is equally applicable when the transaction takes the form of an absolute sale, and there is a secret stipulation by which some pecuniary benefit or advantage is reserved for the vendor. And, accordingly, it has been held that a bill of sale, absolute upon its face, by an insolvent debtor, and delivery of possession of the goods in pursuance of it, is fraudulent and void as against creditors, if accompanied by a secret trust from which the debtor might derive advantage or pecuniary benefit: McCulloch v. Hutchinson, 7 Watts 434; Shaffer v. Watkins, 7 W. & S. 219; Connelly v. Walker, 9 Wright 449. There was. then no error in affirming the plaintiff's fifth, seventh and eighth points, and in instructing the jury, in conformity therewith, in the general charge, that if Roller was insolvent at the time he made the assignment to Bentz, and there was an agreement between Roller and Bentz, not inserted in the written transfer or assignment, that a portion of the property assigned or the proceeds thereof, should be returned to Roller and be for his benefit and advantage — and a note was given by Bentz to Roller for the sum of $1171.25 — that is such a reservation as would render the transaction fraudulent and void as to creditors, although it might be good as between the parties themselves. There was abundant evidence to justify the court in giving the instruction and submitting the question to the jury. The bill of sale is absolute on its face, and yet by a secret verbal arrangement, as both parties admit, it was agreed that Roller should get hack a portion of the property for working out or tanning the stock. What was this but a reservation of so much of the property for the use and benefit of Roller ? Besides, the understanding, as Bentz testified, was, that the money was to be made out of the stock before he paid the note of $1171.25, given in part payment of its price. Nor was it by an independent subsequent agreement that a portion of the property was thus retained. It was part of the transaction and contemporaneous with its consummation. The bill of sale, it is true, was drawn up and signed on Saturday, in the borough of Dillsburg, about twenty miles from the tannery. But there was no delivery of the property, nor was it intended there should be. Bentz went up to take possession on the following Monday, and it was then and there agreed that Roller should have the horse and wagon, saddle and bridle, the potatoes and corn, and the tanners’ tools for working out the stock. How then can it be seriously claimed that a portion of the property was not reserved for the use of Roller ? The bill of sale showed on its face that the whole of the property described in the schedule was purchased by Bentz, including the articles reserved, and yet the title to the latter did not pass by the sale as between the parties themselves, for they did not intend thatit should. How could the creditors of Roller, by an inspection of the bill of sale, come to a knowledge of the fact that any portion of the property was his? Apparently, Bentz was owner of the whole, though he was secretly holding a part of it for Roller. If an absolute conveyance of goods to a creditor, accompanied by a secret trust, tends to delay, hinder and defraud creditors, and so is within the letter and spirit of the statute of 13 Elizabeth, as was said in Connelly v. Walker, it is clear that the sale in this case cannot stand.

Nor was there any error of which the defendant has any right to complain, in charging the jury that there was a method free from all legal objections by which the defendant might have been secured; that was to obtain judgment against Roller, issue execution and sell his property at sheriff’s sale. Such a sale would have been legal. That method he did not pursue, and if he took ■a different course, and one which the law declares to be fraudulent as to creditors, he must suffer the consequences of his mistaken action. The complaint is that this was indirectly telling the jury that the sale was fraudulent. But under the evidence the court might, and ought to have instructed the jury that the sale, whether fraudulent in fact or not, which was a question for their determination, was clearly fraudulent in law, because there was no such ■‘change of possession as the law requires in order to render a sale valid as against creditors. It was a clear case of retained possession by the vendor. There was not even a symbolical delivery of the property. After the sale all things continued as before, with the exception that Bentz become responsible for the rent of the tannery, which was afterwards paid by Roller out of the proceeds of the tan-bark which he sold to Diehl. That there was no change of possession whatever is shown by the testimony of Bentz. He says : “ At the time of the signing of the bill of sale, I was twenty miles from the tannery, and when the note for $>1171 was given, on the day of the sale, I did not see the property; the Monday I went there and did not move any of the property, nor do anything with the property. We moved the corner cupboard out of the house into the tan-yard house — the tan-house ; we did not move the cupboard from the premises. I went away that day, and left everything as it was there. I left Roller there in charge of the property, and it continued in his possession until the 1st of April.”

The next assignment of error embraces the answer to the defendant’s first point, in which the court was asked to charge that the presumption of law is always in favor of innocence and against fraud ; and fraud must therefore always be proved, and cannot be presumed ; and the jury are not at liberty to find the sale of property by Roller to Bentz to be fraudulent, in the absence of evidence to establish the fact either positive or circumstantial. The court in answer said: “ that the position of law as staled in this point is correct; but there are certain acts which constitute legal or technical fraud. Whether this case comes within the rule relating to them, is a matter upon which the court will hereafter instruct you.” If the learned judge failed to give the instructions promised, as complained, it did the defendant no harm; but the complaint does not seem to be well founded; for in a subsequent part of the charge the court instructed the jury that legal fraud in an assignment of property is the absence of actual delivery of the property-such delivery as the nature of the property is susceptible of. The delivery must not be secret, but open, notorious and exclusive. The terms upon which it is transferred, to make it legal, must be free from all engagements to deliver any portion of it for the benefit of the vendor, or of any reservation of any portion of it for the future benefit of the vendor or for his advantage. And the court left it to the jury, under these instructions, to find whether the sale was fraudulent in law or not. As the court would have been justified in charging that, upon the defendant’s own testimony, the sale was fraudulent in law, the instruction was more favorable to him than he had any right to ask.

We come now to the answer of the court to the defendant’s second point, in which it is alleged that there was error. Correcting what is evidently a typographical mistake in the last clause of the answer as printed in the paper-book, by substituting “no” for “the” before the word “effect,” the court instructed the jury that if the debt which Roller owed Bentz was an honest one, on the 1st of September 1866, Bentz had a perfect legal right to receive in payment of it any money or property Roller had to give, provided Bentz received it without an intention to hinder, delay or defraud creditors, or that the transfer had in law no effect to hinder, delay or defraud creditors. The last clause of the answer embraces the instruction complained of as erroneous. It will be seen that it is not the same proposition as that already considered in answer to the plaintiff’s sixth point. There the instruction had reference to the tendency and effect of the sale as a matter of fact to be determined by the jury. Here the instruction has reference to the effect which the law imputes to the transaction. If the law adjudges its effect to be to hinder and defraud creditors, then it is to be regarded as fraudulent, though this may not have been the intention of the parties. This seems to have been the thought in the mind of the learned judge, though he may have failed to express it with his usual clearness. If, then, the meaning of the clause be as suggested, there was no error in the answer. We have now considered all the assignments except the last, which is not in accordance with the rule, and was abandoned on the argument, and we find no error in the instructions given to the jury except in charging that if the tendency and effect of the sale was to hinder, delay and defraud the creditors of Roller, then the sale was illegal and void as against such creditors. Must we reverse the judgment for this error ? Undoubtedly we must,-if it did the defendant any harm. But if not, then we are not required to reverse the judgment and award a new trial, which could be of no possible benefit or advantage to the defendant. The sale, whether fraudulent in fact or not, was clearly fraudulent in law, not only because a portion of the property embraced in the bill of sale was secretly reserved for the use and advantage of Roller, but because there was no such delivery of the property or change of possession as the law requires. Upon ho question of law presented by either of the points on which the court was requested to charge, nor upon any view of the facts as testified to by the parties to the sale, was the defendant entitled to a verdict. The error, therefore, did him no possible harm, and the judgment must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Seylar versus Carson et al.

    1. Seylar’s property was bought at sheriff’s sale by Carson. Seylar alleging that Carson had bought it for him under an agreement, brought ejectment. Carson might give in evidence the record of proceedings by him against Seylar, under the Landlord and Tenant Act by which Seylar was dispossessed as Carson’s tenant holding over; the evidence tending to disprove the allegation of fraud in Carson, in the purchases.
    2. In the proceeding, Seylar made oath that he held by “virtue of a title acquired since the commencement of the alleged lease,” &c. The proceedings were evidence as showing his allegation of a title, inconsistent with that under which he claimed in the ejectment.
    3. The court, in answer to plaintiff’s point, charged that if Carson, by fraudulently representing at the sheriff’s sale that he was buying for Seylar, obtained the property at an underprice, the sale was void, but that there should have been payment or an offer to pay by Seylar before bringing suit. Held, that the qualification was error: if there was fraud, a tender was not necessary.
    4. If the sheriff’s sale was absolutely void, it was incapable of being confirmed by any acts or declarations of Seylar, and no title could pass to Carson without a contract on a new consideration, executed so as to take it out of the Statute of Frauds.
    5. If the sale was only relatively void, it could be ratified without a new contract and consideration.
    6. That is absolutely void, which the law or the nature of things forbids to be enforced at all.
    7. That is relatively void, which is a wrong to individuals, and the law refuses to enforce against them.

    8. The acceptance of a lease of the premises by Seylar from Carson, was evidence for the jury of his ratification of the sheriff’s sale.
    9. Brown v. Dysinger, 1 Rawle 408; Pearsoll v. Chapin, 8 Wright 9, commented on.
    May 9th 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Franhlin county: No. 79, to May Term 1871.
    This was an action of ejectment, brought August 15th 1867, by Samuel M. Seylar against George W. Smith, F. W. McNaughton and James 0. Carson, for a tract of eight acres of land, with its improvements, known as the “ Gap Foundry.” Carson having died, his death was suggested on the record November 3d 1870, and James W. Carson and others, his executors, substituted. The property was originally owned by the plaintiff; it was sold on the 16th of January 1863 by the sheriff on a judgment against him, and the sheriff’s deed to James 0. Carson and F. W. McNaughton acknowledged January 28th 1863. The consideration was $2540. The plaintiff alleged that the property had been bought at the sheriff’s sale by Carson for him.
    On the trial, before Rowe, J., on the 3d of November 1870, G. W. Wolfe testified for the plaintiff that shortly before the sheriff’s sale Carson, Addison Imbrie and witness agreed to buy the property for Seylar, who was then absent from home under circumstances which precluded his return. On the day of the sale Imbrie, having come part of the way towards the place of sale, returned home; Carson told witness that. Imbrie had gone home and he must buy the property for himself, that he did not want a partner. “I asked him whether he intended it for Seylar? he said ‘yes.’ I ran the property up to a certain sum ; Carson put on another bid. I said ‘ are you buying for Seylar ?’ he said he was; I then stopped bidding; it was then knocked down to Carson. I would have bid more had it not have been for Carson’s statement to me. I wanted the property for Seylar. * * * It was agreed between us three, as I have stated, no price was agreed upon. * * * Carson told me the day of the sale that he did not want me as a partner, and I took it, that rescinded the agreement.”
    A number of other witnesses testified that Carson had said that he bought the property for Seylar; they testified also that it was of considerably greater value than the sum he paid for it.
    The plaintiff further gave evidence that one McDonough and Robert Seylar rented the property from Carson in March 1863 for one year. In January 1864 the plaintiff came home and bought Robert’s interest in the lease, and he and McDonough carried it on together till the lease expired. Smith, one of the defendants, bought the property from Carson in 1866, and went into possession in the spring of 1867. In January 1867 plaintiff notified Smith that he had a bargain with Carson for the property and he was going to keep it. The plaintiff, who was examined as a witness, on examination said, “ I was to pay so much a year; no sum was fixed; *1 was not to let the $2500 increase.”
    The plaintiff gave in evidence a note from plaintiff to Carson, dated May 7th 1866, at three months, for $75, on which was endorsed, “ August 20, ’66, $44. August 20, ’66, $20. As purchase-money for year ending April 1,1866, $300. J. O. Carson.” He also gave evidence that in March 1867, he tendered to Carson $2500 for the property, and that Carson said he could not receive it.
    The plaintiff rested.
    The defendants gave evidence by Mr. McNaughton, that he was a partner with Carson in the purchase of the property, and that he paid $1322.16, his half of the purchase-money, on the evening after the sale.
    Carson, by deposition, filed February 17th 1870, testified that he and McNaughton purchased the property at sheriff’s sale together. It was knocked down at Carson’s bid and he gave to the sheriff his own and McNaughton’s name as purchasers.
    The plaintiff had no interest in the purchase; witness never •stated to any one at, or before the sale, that he was buying for .Seylar’s benefit; Seylar never claimed to have an interest in the property except under the lease until the lease expired, and proceedings were instituted to oust him. Witness did not represent to Wolfe that he was going to buy the property for Seylar. There was no agreement with Seylar that what he paid above the rent should be credited on the purchase-money.
    J. Ritchey testified that Wolfe told him immediately after the sheriff’s sale, that just before the sale Carson had said he could not go into any arrangement with him and Imhrie for the purchase of the property; that if he, Carson, should bid, he would bid for himself; and if Wolfe wanted he must bid for himself.
    The defendant offered in evidence the record of a proceeding under the Landlord and Tenant Acts by Carson and MeNaughton against Seylar to recover possession of the premises.
    The offer was objected to by the plaintiff, admitted by the court and a bill of exceptions sealed.
    The record showed that proceedings had been commenced before the justice, April 6th 1867, on the complaint of Carson. The complaint alleged the possession of the premises, lease, the expiration of the term and three months’ notice to Seylar to quit. On the appearance of Seylar, April 13th, he pleaded that the title to the land came in question, and made and filed the following affidavit: —
    “ That he verily believes that he is entitled to the premises in dispute, in the above proceeding, by virtue of a title acquired by deponent since the commencement of the alleged lease, made by the said plaintiffs to the said defendant. That defendant is informed, and verily believes, that the title of the said plaintiffs determined, and was at an end before the first day of April, A. D. 1867, the termination of the said pretended lease: and at that time the said plaintiffs were not, nor are they at this time, the landlords of deponent, nor does deponent hold under them, nor by virtue of the aforesaid pretended lease, but in his own right; and deponent further saith, that the title to said real estate legally and properly comes into question in these proceedings.”
    On the 20th of April 1867, “ after hearing the parties, their proofs and allegations,” the justice entered judgment, “that the defendant forthwith give up possession of the said premises to the lessors,” and also gave judgment against Seylar as tenant for $300 damages, &c. On the 26th of April possession was delivered to the plaintiff under a writ of possession: on the 27th, Seylar appealed to the Court of Common Pleas. On the trial of the appeal a verdict was found for the landlord, August 15th 1867, for $200, and on the 17th judgment was entered on the verdict.
    The defendant offered in evidence, also, an agreement of counsel filed on the trial of the foregoing appeal. The offer was objected to by the plaintiff, admitted, and a bill of exceptions sealed.

      The following is the agreement:—
    “ It is agreed that in this case, the jury may find for the plaintiffs all rent due up to the 28th April 1867, and no other claim shall be set up for rent by plaintiffs hereafter.’’
    The following are points of the plaintiff:—
    1. If the jury believe from the evidence, that prior to the sheriff’s sale there was an agreement between James 0. Carson, Addison Imbrie and George W. Wolfe that they would attend the sheriff’s sale and buy in the property for Samuel M. Seylar, and reconvey it to him when he would reimburse them for the purchase-money; and in pursuance of that arrangement, the said parties attended the sheriff’s sale, for the purpose aforesaid, and James 0. Carson, acting pursuant to the arrangement and for the other parties, Wolfe and Imbrie, as well as for himself, bought the property for the said Seylar; and afterwards, in violation of the agreement and without the knowledge of Wolfe and Imbrie, procured the sheriff’s deed to be -made to Mr. McNaughton and himself, such a trust was created as can be enforced notwithstanding the agreement was notin writing. And if the jury further believe that Samuel M. Seylar afterwards, and before the commencement of this action, tendered the said .Carson $2500 and that sum, together with previous sums received by him, was a full reimbursement of all his outlay and expense about the property, the verdict must be for the plaintiff.
    3. If the jury should come to the conclusion that there was in fact no such agreement as is supposed in the first point, and that whilst the bidding for the property was going on at the sheriff’s sale, James 0. Carson falsely and fraudulently represented to George W. Wolfe that he was buying the property for Samuel Seylar, and by such false representation prevented further bidding and became the purchaser at an under price, the sale was void; and, in this aspect of the case, it was not necessary for Seylar to tender or pay the purchase-money paid by Judge Carson for the property before bringing his suit.
    4. If the jury believe that James 0. Carson falsely and fraudulently represented at the sheriff’s sale, to the bidders, that he was buying the property for Seylar, and by this contrivance procured the property below its value, the sale was void for actual fraud; and no subsequent leasing of the property by Seylar from Carson, or other acts or declarations of Seylar proved in the case, would avail to validate and confirm the sale.
    The answers of the court were:—
    1. “ This is not affirmed. We know of no evidence in the case to show that James 0. Carson bought the premises in dispute at sheriff’s sale, pursuant to the arrangement between Imbrie, Wolfe and himself, and for the other parties, Wolfe and Imbrie, as well as himself. Because both Wolfe and Imbrie say on the stand that Mr. Carson revoked this understanding before tbe sale, and notified them he was going to buy for himself and not for them.”
    3. “ This point is affirmed, except that there must have been payment, or an offer to repay.”
    4. “ If there was actual fraud in the sale, which rendered Mr. Carson a trustee ex maleficio for Seylar, Seylar might still by his subsequent acts and declarations confirm the sale — this is barring an equity in consequence of the fraud — he might abandon it by acquiescence or laches. And this is the view in which the leases and the evidence of tenancy by Seylar become,important, as showing an abandonment by Seylar of his equity. If he found he could not pay Carson (for he could only have the land from Carson upon reimbursing him), and acquiesced in Carson’s title and took a lease under him, he is barred, but if it was as he says, that he went in under Carson on the agreement that the rent was to be applied to the interest of the $2540, and the excess over the interest to the reduction of the principal', then his tenancy was not inconsistent with his claim, and does not prove any abandonment of it.”
    The court further charged: * * *

      “ If you find there was the fraud m the sale as alleged, and that the property was bought under its value, and that Seylar has not abandoned his claim by his acceptance of leases and his other conduct, but has always insisted on his equity to have the land on repayment of the purchase-money ; and that he offered to repay the purchase-money and its interest, deducting receipts, that is offered a sum sufficient to make the defendant Carson whple, or offered generally to reimburse him, and we think the- evidence of offer to reimburse is sufficient if believed, as no objection was made to the sum; then you may find for the plaintiff, the land in dispute, judgment to be entered on the verdict only on the payment into this court of the sum of money you shall find to be due Judge Carson at this time.” * * * * *
    The verdict was for the defendants.
    The plaintiff took out a writ of error and assigned for error,
    1 and 2. Admission of the defendants’ offers of evidence.
    3 and 4. The answers to the third and fourth points.
    5. The portion of the charge given above.

      J. McD. Sharpe, with whom was F. M. Kimmell, for plaintiff in error.
    As to the 3d assignment. No title passed to Carson by sheriff’s sale, by reason of his fraud there, and Seylar could recover without offering to reimburse him: Hogg v. Wilkins, 1 Grant 68; Sharp v. Long, 4 Casey 434; Jackson v. Summerville, 1 Harris 370; Gilbert v. Hoffman, 2 Watts 66; McClurg v. Lecky, 3 Penna. R. 94; Riddle v. Murphy, 7 S. & R. 236; Sands v. Codwise, 4 Johns. R. 536; Smull v. Jones, 1 W. & S. 128. As to the 4th assignment: the sale being void it could not be confirmed: Duncan v. McCullough, 4 S. & R. 482; Chamberlain v. McClurg, 8 W. & S. 81; Goepp’s Appeal, 3 Harris 421; Miller’s Appeal, 6 Casey, 478; Butler v. Haskell, 4 Dessaussure’s R. 707; Fillman v. Divirs, 7 Casey 429; Bennett v. Fulmer, 13 Wright 156.

      Stewart & Kennedy and J. Cessna, for defendants in error.—
    The fraud which will make a purchaser at sheriff’s sale a trustee ex maleficio of the debtor, must be a fraud committed at the time of the salej Pearsoll v. Chapin, 8 Wright 11; Kellum v. Smith, 9 Casey 164; Maul v. Rider, 1 P. F. Smith 385; Beegle v. Wentz, 5 Id. 374; Load v. Green, 15 M. & W. 216; Clark v. Dickson, 1 E., B. & E. 148; Garland v. Spencer, 46 Maine 528; Babcock v. Case, 11 P. F. Smith 427; Smith’s Leading Cases 334; Adler v. Fenton, 24 Howard 407; Stevens v. Hyde, 32 Barbour 171.
   The opinion of the court was delivered, May 13th 1872, by

Williams, J.

The evidence set out in the bills of exception, constituting the first two specifications of error, was properly received. If it was not admissible for the purpose of showing the plaintiff’s confirmation of the sale to Carson — a point presently to be considered — it was competent as tending to rebut the evidence given by the plaintiff to establish the fraud with which Carson was charged, and to corroborate and strengthen the defendant’s evidence in disproof of the charge. The plaintiff’s acceptance of the lease was- an implied admission that the land belonged to Carson and McNaughton, and that he had no title to it as owner; and the defence of a subsequently acquired title, which he set up under oath to defeat these proceedings against him under the Landlord and Tenant Act, was inconsistent with the title under which he claimed to recover the property in this action. The evidence, therefore, had a direct bearing on the question at issue, and was properly allowed to go to the jury.

But the court should have affirmed the plaintiff’s third point without qualification. If Carson was guilty of the alleged fraud in the purchase of the property, then, whether the sale was absolutely or relatively void, it was not necessary for the plaintiff, as the authorities show, to pay or tender him the purchase-money which he paid for the property before bringing suit for its recovery: Gilbert v. Hoffman, 2 Watts 66; Smull v. Jones, 1 W. & S. 128 ; Jackson v. Summerville, 1 Harris 359 ; McCaskey v. Graff, 11 Id. 321; Hogg v. Wilkins, 1 Grant 67; Sharp v. Long & Brady, 4 Casey 433. It was therefore error to instruct the jury that “ there must have been payment or an offer to pay ” in order to enable the plaintiff to maintain the action; and the error is repeated in the general charge, and pervades the answer to the plaintiff’s fourth point. But the answer to this point is complained of on another ground, which it is proper that we should consider, as the cause goes back for a new trial. The point, in the form it was put, is objectionable and the court was not bound to answer it specifically. It asked the court in effect to determine both the facts and the law of the case, and could not have been affirmed without a binding direction to the jury. It was their province to determine what acts or declarations of the plaintiff were proved in the case, and if specific instructions were desired upon the facts which the evidence tended to establish, they should have been hypothetically stated, and the court asked to declare the law arising upon them if found by the jury to be true. If, then, the plaintiff was not entitled to a specific affirmance of the point as presented, was there any error; other than that already suggested, in the general! answer that was given to it ? The court instructed the jury in substance that if there was actual fraud in the sale which rendered Carson a trustee,ea; maleficio for the plaintiff, the latter might still, by his subsequent acts and declarations, confirm the sale; and if he acquiesced in Carson’s title and took a lease from him,- he is barred; but if he went in under Carson on the agreement that the rent was to be applied to the interest of the purchase-money paid by Carson, and the excess over the interest to the reduction of the principal, then his tenancy was not inconsistent with his claim, and does not prove any abandonment of it. Whether this instruction is to be regarded as erroneous or not, depends on the view to be taken of the sale, if Carson was guilty of the alleged fraud. If the sale was absolutely void to all intents and purposes, if no title whatever passed by the sheriff’s deed, if it remained in the plaintiff after the sale as before, and the same as if no deed had been executed, as declared in Sands v. Codwise, 4 Johns. 536, and in Gilbert v. Hoffman, 2 Watts 66, and kindred cases, then it follows that the sale was incapable of being confirmed by any acts or declarations of the plaintiff, and that no title could pass to the sheriff’s vendees without a contract founded on a new and sufficient consideration and so far executed as to take it out of the statute of frauds : Jackson v. Summerville, 1 Harris 359.

But if the sale was not absolutely, but only relatively void, then, as ruled in Piersoll v. Chapin, 8 Wright 9, it was capable of being ratified and confirmed without a new contract founded on a new consideration. And it seems to us that this is the more reasonable and better opinion, and that the true distinction is there taken between contracts absolutely void and those which are relatively void or voidable. The principle on which the distinction rests, seems to be this: that is absolutely void which the law or the nature of things forbid 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 kind of 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 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 bond fide purchaser for value and without notice; or 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; * * * or so as to need any other or further consideration than that which he is to receive or may retain under the contract by adopting it.”

The doctrine of this case has been recognised and followed in subsequent cases; Negley v. Lindsay, 17 P. F. Smith 217 ; and we see no reason for departing from it. There was no error in instructing the jury that if there was actual fraud in the sale, the plaintiff might still, by his subsequent acts and declarations, confirm it. The only remaining question to be considered is, whether the acceptance of the lease, under the circumstances, was sufficient evidence of the plaintiff’s confirmation of the sale to go to the jury ? The case of Brown v. Dysinger, 1 Rawle 408, in effect decides the question. There a purchaser at sheriff’s sale openly declared that he was bidding the property for the plaintiff’s ancestor, who subsequently took from him a lease of the premises, and it was held that whether his acceptance of the lease amounted to a waiver and abandonment of his claim, was properly left to the decision of the jury. Though this case has been greatly criticised on other grounds, and the dissenting opinion of Tod, J., is now regarded as a sounder exposition of the law arising on the facts of the case than the opinion of the majority, yet its ruling in this respect has never been doubted or questioned. But it is said that it was a case of legal and not of actual fraud. If this were so, the opinion suggests no such distinction in support of the ruling, and it is not easy to see why it is not just as applicable to a case of. actual as of legal fraud. Besides, a careful examination of the case will show that in one of its aspects it was regarded as a case of actual fraud. “A majority of the court,” said Mr. Justice Smith, “are of the opinion that the parol evidence was properly received, and that there was proved, not only a fraud in David Walker, but a trust which, though not declared in writing, was valid notwithstanding the act of frauds and perjuries.” And Gibson, C. J., before whom the case was tried in the Circuit Court, in delivering tbe opinion in Kisler v. Kisler, 2 Watts 825, said: “Such a trust,” referring to a trust ex maleficio, “ seems to be recognised in Lloyd v. Spillet, 2 Atk. 148 ; Peebles v. Reading, 8 S. & R. 492; and was actually enforced in Brown v. Dysinger, 1 Rawle 408. It arises from the artifice of tbe party to be affected in procuring tbe title, and not, as Mr. Justice Tod supposed in tbe last-mentioned case, from the' contract;” and so in Morey v. Herrick, 6 Harris 128, it was said 'the principle on which Brown v. Dysinger was decided is, that tbe defendant was guilty of such fraud as operated to convert him into a trustee ex maleficio for him who bad been deceived. It is then a ease directly in point, and shows that tbe question whether tbe acceptance of tbe lease under tbe circumstances amounted to an affirmance of tbe sale, was properly left to tbe jury. And it seems to us that on principle tbe submission was clearly correct. If tbe plaintiff, as we have seen, might elect to affirm or disaffirm tbe sale, why should not bis acceptance of the lease, if not otherwise explained, be regarded as a recognition of tbe purchaser’s title and an affirmance of its validity under tbe sale ? Why accept tbe lease if be did not intend to recognise their title ? And .if be did, why should be not be bound by bis election after so long acquiescence ?

It follows that there was no substantial error, apart from that already noticed, in tbe answer to tbe plaintiff’s third point. But for tbe error in instructing tbe jury that tbe plaintiff was bound to pay or offer to pay tbe purchase-money paid by Carson before bringing suit, tbe judgment must be reversed. We regret this tbe more as the verdict is entirely satisfactory, and tbe error probably did tbe plaintiff no barm.

Judgment reversed, and a venire facias de novo awarded.


author: Thompson, C. J.

text:
    Robinson and Wife versus Glancy et al.

    1. An order of sale in the Orphans’ Court is not a definitive decree from which appeal lies.
    2. It is not error to regard such appeal as a nullity.
    3. An appeal lies only to the decree confirming the sale.
    4. The pendency of an appeal from an order of sale does not invalidate a sale regularly confirmed made in the mean time.
    &. Robinson’s Appeal, 12 P. F. Smith 213, affirmed.
    May 10th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to tbe Court of Common Pleas of Cumberland county: No. 61, to May Term 1871.
    Ejectment, in which Margaret Glancy and Esther Glancy were plaintiffs, and Lewis Robinson and Ellen bis wife were defendants.

      This was a case stated in which the following facts appeared:—
    William Glancy died intestate, leaving a widow Elizabeth, since dead, and four children, to wit: Elizabeth, married to Adam Peffer, Hester Glancy and Margaret Glancy, and Ellen, now married to Lewis Robinson. At the time of his death William Glancy was seised of a house and lot in the borough of Carlisle. Mrs. Peffer and her husband resided in the county, near Carlisle ; and Hester, Margaret and Ellen, after their father’s death, continued to reside on the property above mentioned; in 1865, Ellen married Lewis Robinson, who in a few months also resided in the house with her.
    On the 21st of August 1866, Mrs. Elizabeth Peffer, with her husband, presented their petition to the Orphans’ Court of Cumberland county, setting forth the facts, and prayed the court as the parties in interest could not agree, &c., &c., to award an inquest to make partition, &c. On the 21st of August 1866, inquest was awarded.
    An inquisition was held on the 20th day of October 1866, and it was returned that the property could not be divided without prejudice, &c., and “ that the lands, &c., mentioned in said suit, will accommodate one of the heirs of the said decedent,” &e.
    No exceptions were filed, and on the 23d of October 1866, the inquest was confirmed, and a rule granted on the parties in interest to appear and take, or refuse to take, or show cause why the property should not be sold.
    To this rule Lewis Robinson and wife filed an answer, setting forth, that no administration was taken out in the estate of the decedent, but it was agreed, between all the daughters, that the three who were unmarried at the time should go on, pay all demands against the deceased, all taxes and repairs, and that they should hold the property jointly together, for the lives of the three and the lives of the survivors. That in pursuance of this, Ellen did pay, labored and exerted herself, holds the receipts, and supported the family in a great measure; and prayed the court to dismiss the proceedings, &c.
    A. Peffer, Elizabeth Peffer, Margaret Glancy and Esther Glancy, filed their replication, denying that it was agreed that the three sisters should hold the property as stated in the answer, and averring that while said three sisters lived together the taxes and repairs were paid by the joint contributions of Hetty, Margaret and Ellen. On this answer and replication, the case was put down for argument, and on the 1st day of March 1867, the parties filed an agreement “ that they will immediately make arrangements for an amicable and equal division of the personal property; and if they cannot agree amongst themselves in said division, William M. Pen-rose and W. H. Miller, Esqs., shall select three persons who shall make said division.”

      “ And it is further agreed, that all objections to the proceedings in partition, shall be withdrawn. That the same shall be held under advisement, all parties agreeing that neither of them will take said property at the valuation, and that the rule to take, &c., shall be considered as answered to that extent. The matter shall thus lie over until the Orphans’ Court, succeeding the regular term in November next, when if said parties find that they cannot live agreeably together, the court shall grant an order to sell the premises at public sale, on the application of either of them.”
    On the 17th December 1867, Margaret and Esther Glancy petitioned the court, averring their inability to live agreeably with Louis Robinson and Ellen his wife, and prayed the court to grant an order to Augustus A. Line, the administrator of said William Glancy, to sell said house and lot. The court issued the order as prayed for; on the 17th of March 1868, the said administrator returned that, “ he did not sell on said order, because on the 23d of December 1867, Louis Robinson and Ellen his wife, in right of said Ellen, appealed from the order of the court, to the Supreme Court.” On the 20th of May 1868, the Supreme Court affirmed the order of the Orphans’ Court and then dismissed the appeal.
    On September 1st 1868, the court, upon petition, issued an alias order of sale; on the 20th of October, the administrator returned, “ that he declined executing said order; that he finds he cannot do it without incurring the ill-will of Louis Robinson and wife, and he has been induced to refuse executing said order. He therefore declines having anything further to do with it.”
    On the same day the court, upon petition of Margaret and Esther Glancy, issued an order to Joseph 0. Thompson, who was sheriff, as trustee under the 44th section of the Act of February 24th 1834 (Pamph. L. 81, Purd. 298, pi. 154), to sell the real estate.
    The sheriff and the plaintiff’s counsel were immediately notified that Robinson and wife had appealed from the decree ordering the sale; the property was exposed to sale on the 28th of November 1868, at which time the following notice was read on behalf of Robinson and wife.
    “ In the matter of the sale of the house and lot of ground on Hanover street, in the borough of Carlisle, proposed to be sold under proceedings in partition, in the estate of William Glancy, deceased.
    “ All persons are hereby notified, that an appeal has been taken from the proceedings of the Orphans’ Court, of the county of Cumberland, in the matter of the above proceedings, in partition on the estate of the said William Glancy, deceased, and that all right to expose said property to public sale at the present time is, by reason of the said appeal, taken away and gone. Any porson, therefore, who purchases the said property at the sale this day made by the sheriff as trustee, will not be allowed to take possession, nor acquire any title under such sale, but his right will be contested and disputed as being null and void by
    Ellen Robinson.
    Lewis Robinson.
    “ Carlisle, Pa., Nov. 28th 1868.”
    The property was sold to Margaret and Esther Glancy. This sale was, on the 16th December 1868, confirmed without exceptions, and a deed duly acknowledged from the sheriff delivered to the purchasers. On the 24th of May 1869, the Supreme Court dismissed the second appeal of Robinson and wife (12 P. F. S. 213).
    This ejectment was then brought to recover possession of one-half of the house and lot.
    The court entered judgment on the case stated for the plaintiffs for the property described, and for $143.75, damages for wrongful detention.
    The defendant removed the case to the Supreme Court, and assigned for error the entry of judgment for the plaintiff.

      W. M. Penrose (with whom was A. B. Sharpe), for plaintiff in error,
    cited Act of March 29th 1832, Purd. 769, pl. 49; Stewart’s Appeal, 6 P. F. Smith 241; Sheppard v. Gibson, Leg. Int. May 6th 1870 ; Anon., 12 Mod. 384.

      W. H. Miller (with whom was H. Newsham), cited Robinson’s Appeal, 12 P. F. Smith 213.
   The opinion of the court was delivered, October 9th 1871, by

Thompson, C. J.

The only question on this record prescribed by the case stated in the court below, is whether the title of the defendants in error ought in this ejectment to have been regarded as null by the court, because it was acquired on a sale upon an order of the Orphans’ Court, based upon a preceding decree of sale by the .court in partition, while an appeal from the order was pending in the Supreme Court. There had been an appeal from the decree of sale by the plaintiff in error and it had been affirmed by this court. There were after that two successive orders of sale, both of which were appealed from and dismissed in this court. During the proceedings of the last appeal the sale was made, and an appeal taken to the confirmation of the sale. This was also affirmed in this court: Robinson’s Appeal, 12 P. E. Smith 213. In that case my brother Agnew disposes of the question of the case in hand very satisfactorily, even if we here pass by the effect of the confirmation of the sale under which the defendants hold title. He shows that the order of sale granted by the Orphans’ Court is not a definitive decree, from which an appeal lies. It only lies to the decree confirming the sale upon the order. This is obvious, otherwise there might be two appeals on every order. One on its being granted, and the other on confirmation of the sale. This would never do. Indeed a sale might be altogether prevented, simply by appealing from orders as often as one should be granted, and holding that nothing could be done until the appeal should be heard and determined, at which time it would generally have ceased to be effectual by lapse of time. Such an appeal does not lie, however, as decided in the above-mentioned case; and although taken, it was not error to. regard it as a nullity, as the learned judge did below in his decision. He decided rightly, when he held that the pendency of the appeal taken from the order of sale, did not invalidate the sale made in the meantime, and regularly confirmed by the Orphans’ Court.

Judgment affirmed.


author: Sharswood, J.

text:
    Lindeman et al. versus Lindsey.
    1. When the proprietors of opposite banks of a stream wish to enjoy the water-power, a dam cannot be built except by mutual consent.
    2. If built without the consent of either, he could abate it.
    3. If both agree to erect a dam with a covenant for themselves, their heirs and assigns, to repair or rebuild, it is a covenant running with the land and the stipulations of the agreement in respect to the water-power created by the dam are the basis of their rights.
    4. If the instrument contain the grant of an easement to one on the land of the other, there is no statute of limitations against it, without actual, hostile and adverse possession.
    5. In such case there is no prescription or presumption from mere nonuser.
    6. Nothing less than an absolute denial of the right,-followed by an enjoyment inconsistent with its existence for 21 years, can amount to an extinguishment.
    7. Owners on opposite sides of a stream agreed by covenant, running with the land, jointly to erect a dam, each to have the use of half the water. In an action by one for diverting the water by the other, it was competent for the former, in answer to the allegation that he had lost his right by nonuser, to prove that a predecessor of the latter, having obstructed the right, he demanded it and it had been yielded.
    8. The use of the water was directly granted by agreement under seal; f case was the proper remedy for its diversion.
    9. St. Mary's Church v. Miles, 1 Wharton 229, recognised.
    May 11th 1871.
    Before Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 68, to May Term 1871.

      This was an action on the case “for infringement of water-right,” brought September 8th 1869, by Thomas Lindsey against Jacob Lindeman and George Eishel.
    The declaration contained six counts; it set out that the plaintiff owned a fulling-mill and had the right to the water of the Conodoguinet creek, by which his mill was propelled. And averred:
    1. That the defendants by running a grist-mill “ diverted and took away the water properly belonging to the fulling-mill.”
    2. That defendants took for their mill more water than they were entitled to.
    8. That defendants so used their gates that more water than should be was taken from plaintiff’s mill.
    4. That defendants so used their mill that they wasted arid otherwise misapplied the water of the stream so that plaintiff had not sufficient water for his fulling-mill.
    5. That plaintiff was engaged in manufacturing by which he made $2000 per annum, but defendants by use of their mill deprived him of its proper proportion of water.
    6. That defendants by “ maliciously running ” their grist-mill took away from the fulling-mill the water belonging to it, and otherwise “ maliciously and wilfully used and wasted the water requisite for the fulling-mill.”
    The plaintiff owned a fulling-mill on one side of the Conodoguinet, and Lindeman, the defendant, a grist-mill on the other side.
    The fulling property was owned, on the 17th of April 1821, by John Whisler, and the grist-mill at the same time by Jonas Rupp. On that day Rupp and Whisler entered into this agreement:
    * * * “ Whereas, the said parties contemplate erecting a dam upon the said creek, for the purpose of using the water of the same creek, for mill-works, to be erected on the lands lying contiguous to said creek, on which they now respectively reside. Now, therefore, &c., the said Jonas Rupp covenants and engages for himself his heirs, executors, administrators and assigns, that he, or they, or some of them, shall and will, during the ensuing summer, at his or their proper costs, &c., sufficiently build, &c., a dam upon and over the Conodoguinet creek aforesaid, from shore to shore, at such place, and of such dimensions as may be agreed on between the said parties, the said dam to be built at right angles with the stream of the creek, and to be so constructed as to raise the water in the dam three feet six inches, &c. * * * And in case that the said dam should be injured or destroyed by high water or otherwise, then the said Jonas Rupp, or his heirs, is to repair or rebuild the same again, at his own or their próper expense or charges, as first aforesaid, and in case the said John Whisler his heirs or assigns should erect a mill, they shall be at liberty to use one-half of the water in the said dam.

      “ And the said John Whisler, for himself, his heirs, executors and administrators, covenants and engages that as soon as he or they shall erect any mill at or near the said dam, and draw any water out of' the said dam for said mill, that he or they shall and will forthwith pay to the said Jonas Rupp, his heirs or assigns, one-half of the expense of the millwright costs paid in building and constructing the dam aforesaid by the said Jonas Rupp, his heirs or assigns. And in case the said dam should be injured or carried off or destroyed, it shall again be repaired or rebuilt by and between the said parties at their joint and equal expenses, if such injury happened after the mills shall have been erected on both sides of the dam aforesaid. * * *
    “ It is further agreed that the said Jonas Rupp may apply for the view of a road, from the fording, &c. * * * And for the true and faithful performance of the articles and covenants within mentioned, each of the parties bindeth himself, his heirs, executors and administrators, unto the other, his heirs, and assigns, in* the sum of one thousand dollars.”
    This agreement was recorded April 25th 1820.
    Through various intermediate conveyances, Whisler’s title became vested in the plaintiff and Rupp’s in the defendants, and Fishel was his tenant at the mill.
    The plaintiff testified that the defendants, in September 1869, ran their mill day and night, and when he did so, the water was low; he started on Sabbath evening and on Monday morning there was no head for the fulling-mill; he remonstrated with both defendants, but it was not stopped; plaintiff told them that he would bring suit if they continued to run their mills so ; they continued and he brought this suit; he had complained to former occupants and they would generally stop the mill.
    The plaintiff offered to prove by Jeremiah Bowers, “ that he was a former owner of the property now held by Lindsey, and while he was occupying and carrying on the factory, Wilhelm was the occupier of the Lindeman property ; they made the repairs to the dam, share and share alike, and when the water was too low to enable the witness to do work at his factory, he went over to Wilhelm, and complained that he was using more water than belonged to him, and that witness would not stand it; that he, witness, was entitled to one-half the water; that then Wilhelm stopped one of his wheels until the head gathered.”
    The offer was objected to by the defendants, admitted, and a bill of exceptions sealed.
    The witness testified in accordance with the offer.
    There was other evidence for the plaintiff, corresponding with all that stated above; also that when the water was flush Lindeman defendant and his predecessors used more than one-half without objection; that the plaintiff’s mill did not require so much water as the defendants’; that the dam had been kept up by both parties. Defendants gave evidence that the dam leaked; that there was enough water in the creek to drive two mills, if the dam were tight; that there never had been any restriction to the use of the water by either owner; that in 1865 the water being low the plaintiff was told that the dam must be gravelled; he promised to furnish some hands towards doing it, but did not.
    The defendants proposed to ask a witness what is the capacity of the Conodoguinet' creek at Bucher’s mill, ten. miles by the stream above Lindeman’s mill ? How many pair of burrs are run ?
    To show that at Bucher’s mill, constructed on the same principle as that of defendants, there is always sufficient water to drive two wheels, such as those of plaintiff and defendants, and to be followed by proof that large streams of water enter the creek below Bucher’s mill, and above plaintiff’s and defendants’.
    The plaintiff objected, the evidence was rejected and a bill of exception sealed.
    The plaintiff’s points with the answers were: — ■
    1. The agreement of the original owners, Whisler and Rupp, followed by repaii’ing the dam at the mutual and equal expenses of the holders of the respective titles, still makes the basis of the n'ghts of the parties, and Lindeman cannot use more than one-half of the water to the prejudice of the opposite owner.
    Answer: “We answer this in the affirmative, unless you find that Lindsey, by his own conduct, deprived himself of the bexxefit of half the water, by refusing to join Lindeman in repairing the dam, and thus by his own neglect, permitted it to become leaky or his forebay and gate to become in such bad repair as unnecessarily to' waste the water, which he ought to have applied to propelling his wheels.”
    2. The condition of the dam is no excuse for Lindeman using more than his proportion of the water. The agreement and subsequent conduct of the holders of the respective titles, in paying for repairs, fix their respective rights, and are not meant for a good dam only, but for the water as found in that dam, and even if Lindsey refused to do his share of the repairs of the dam, yet, Lindeman had no right to the whole, as he could have repaired and charged Lindsey with the one-half of the expenses.
    Answer: “ We cannot answer this point as requested. If Lindsey refused, after request, to join Lindeman in repairing the dam, and by such neglect and refusal the dam became leaky, and the water in the dam was insufficient to propel the mill, he cannot avail himself' of his own wrong to recover for his own neglect, if the water permitted to escape would have given Lindsey his equal share if he had joined Lindeman in repairing the dam when requested. But if the leaky condition of the dam was owing to the mutual neglect of both parties, and Lindeman never requested Lindsey to join him in repairing the dam, then if Lindeman used more than half the water retained in the dam in its leaky condition, to the injury of Lindsey, Lindeman would be responsible for any damage sustained by Lindsey.”
    3. If the parties adhered to the agreement in paying for the repairs and recognising it in paying expenses, no statute of limitations will apply, nor a legal presumption arise, and the rights of the parties to the water continued the same.
    Answer : “ If the parties adhered to the agreement as stated in this point, the legal presumption arising from lapse of time would not arise.”
    The first three points' of the defendants asserted that the form of action should have been covenant, and that the plaintiff could not recover in case. The court denied these points.
    Their other points with their answers were:—
    4. If the jury believe that for a period of twenty-one years prior to the bringing of the present suit, the owners of defendants’ mill have been in the habit of using the water at their mill, without any restriction as to time and quantity, then they had acquired a right to an unrestricted use of the same, and the verdict should be for defendants.
    Answer: “As a legal proposition this point is correct. A use of a privilege for twenty years will, in law, raise the presumption of a grant. But in this case there is a written agreement defining the rights of the parties. By that agreement each party was entitled to one-half of the water in the dam. The evidence shows, we think, that defendants’ mill required more water to operate it than the plaintiff’s mill. If prior to the use of the water of the stream in 1869, of which plaintiff complains, both parties had sufficient water for the use of their respective mills, and Lindsey and those under whom he claims had a sufficiency of water for the use of their mill, and received no injury by the owners of the opposite mill using more than one-half of the water — this would not confer on Lindeman or those under whom he claims a right to use more than one-half the water; if in doing so the mill of Lindsey was injured by reason of defendants appropriating more than half the water to the use of their mill. A party cannot be deprived of a right by not complaining before he has been injured by a deprivation of the right.”
    5. If the owners of defendants’ mill have been in the habit of using for twenty-one years and upwards, prior to the commencement of this suit, all the water needed for grinding wheat and running their machinery, irrespective of the stage of the water, then plaintiff has no reason to complain of defendants, if during the year 1869 they used no more water than necessary for this purpose, although they ran their mill both night and day.

      Answer: “We cannot answer this as requested, for the reasons stated in our answer to the 4th point.”
    6. If the jury believe that, for a period of twenty-one years prior to the commencement of this suit, the owners of,the two mills, plaintiff’s and defendants’ were in the habit of using, without complaint, all the water that they needed, or that they could get upon their wheels, and at such times as they needed it, or as the pressure of business required it, then neither has a right to complain of the other, if at any time he should use more than half the water in the dam, so long tias the natural channel of the stream is not interfered with, nor a greater amount of water taken by either than he has been in the habit of using during the said period of twenty-one years.
    Answer: “We cannot answer this as requested. If neither party was injured by the manner in which the water was used until shortly preceding the time when this suit was brought, a party cannot forfeit a right by not complaining before he is injured.”
    7. The undisputed evidence in the case and the evidence of the plaintiff himself is, that for a period of twenty-one years, prior to the bringing of this suit, both mills have been in the habit of running at such times, as their business required it, night and day; and therefore each has now the right to run as his business requires, and no cause of action will accrue to either party if during a time of low water one should be compelled, by his business, to run 'night and day, and thus take more than half the water in the creek.
    Answer: “We cannot answer this point as requested, for the reasons stated in our answers to the former points. The evidence referred is for the jury.”
    The verdict was for the plaintiff on the 2d count of the declaration for $75.
    The defendants took a writ of error, and assigned errors, viz.:
    1 and 2. The rulings as to the evidence.
    3-5. The answers to the plaintiff’s points.
    7-13. The answers to the defendants’ points.

      S. Hepburn, Jr., for plaintiffs in error.
    Covenant and not case was the proper and only remedy upon the agreement between Whisler and Rupp: Angell on Watercourses, § 441; Wilbur v. Brown, 2 Denio 356; Luckee v. Rowzee, 1 A. K. Marsh. 295 ; Savage v. Mason, 3 Cush. 318. The rights of the parties were not fixed by that agreement. Long usage could alter or modify it as well as destroy it; and the fact whether there had been such usage was for the jury: Strickler v. Todd, 10 S. & R. 69; Richards v. Elwell, 12 Wright 361; McCallum v. Germantown Water Co., 4 P. F. Smith 59; Angell on Watercourses, §§ 135, 428, 429, 432; Young v. Spencer, 10 B. & C. 145; Hobson v. Todd, 4 Term R. 71; Pastorius v. Fisher, 1 Rawle 27. If the water in the dam was wasted by the mutual negligence of the parties, both were contributors to their own injury and neither could recover: Catawissa Railroad v. Armstrong, 13 Wright 193; Little Sch. Nav. Co. v. Norton, 12 Harris 145. The offer of plaintiff was not evidence for any purpose, and that of defendant was proper in answer to plaintiff’s evidence. The court should not have determined the fact in answer to defendant’s 5th point, and should have answered the question of law presented in it: Angelí on Watercourses, § 100.

      W. M. Penrose and Henderson Hays, for defendant in error.
    As to the form of action: McCall v. Forsyth, 4 W. & S. 176; Nickle v. Baldwin, Id. 290; Smith v. Seward, 3 Barr 342; Ingles v. Bringhurst, 1 Dall. 346; Martin v. Willink, 7 S. & R. 297, 298; Findley v. Keim, 12 P. F. Smith 112.
   The opinion of the court was delivered, May 25th 1871, by

Sharswood, J.

Seven points were presented by the plaintiff in error to the learned judge below, and thirteen errors have been assigned here. All these assignments may be disposed of by the consideration of two questions, neither of which seems to us to present any serious difficulty. The first is, What was the legal right of the plaintiff below ? And the second, If his right was infringed, did he adopt the proper form of action as his remedy to enforce it ? Every other question in the cause appears to have been a question of fact for the decision of the jury and properly submitted to them.

When the proprietors of two opposite banks of a stream of water are desirous of'enjoying the advantage of the water-power for propelling machinery, a dam for that purpose cannot be built except by mutual consent, unless indeed it may be what is termed a wing-dam confined to the soil of the person who erects it, or that half of the bed of the stream which belongs to him. If erected by either, on the land of the other, it would clearly be a trespass, and could lawfully be abated by him upon whose land it was built without his consent. When, therefore, they enter into an agreement to erect such a dam, with a covenant for themselves, their heirs and assigns to repair or rebuild it if necessary, it is not a personal covenant merely, but runs with the lands of the respective proprietors, and the stipulations contained in such agreement in respect to the enjoyment of the water-power created by the dam form the basis of their respective rights. It is sufficient to refer to Jamison v. McCredy, 5 W. & S. 229, as a case entirely parallel if not in point. If the instrument contain the grant of an easement or privilege to either party in the land or the water, against such a grant there is no statute of limitation without actual hostile and adverse possession, and certainly no prescription or presumption from mere non-user. Nothing less than an absolute denial of the right, followed by an enjoyment inconsistent with its existence for a period of twenty-one years or more, can amount to an extinguishment of it. In St. Mary’s Church v. Miles, 1 Wharton 229, it was decided that in the case of the reservation of a ground-rent by deed, no length of possession of the land without payment of the rent would raise the presumption that it had been released or extinguished. “ Although it may be,” said Mr. Justice Kennedy, that the law will in some cases presume a grant in support of a right which has been exercised and enjoyed by a person, without objection or interruption, to the exclusion of all others, for a period of twenty years or more, yet it do'es not follow that it ought to make such a presumption, in order to defeat a person of a right created by deed and not controverted, without anything being shown to have taken place in the conduct of the parties interested or concerned in the right that was inconsistent with the existence and enjoyment of it.” To the same effect is Butts v. Ihrie, 1 Rawle 218 ; Nitsell v. Paschall, 3 Ibid. 82. It is entirely in accordance with reason and the fitness of things that such should be the law. A man ought not to be obliged unless he requires it, actually to use a right or privilege secured to him by deed, nor to resort to legal proceedings unless his title is denied, and he is actually ousted, disseised, obstructed or prevented by some wrongdoer from an enjoyment of it when he requires and demands such enjoyment. Hence the learned judge below was perfectly right in his answers to the points of the plaintiff in error so far as they set up a title by prescription in him, arising from the mere non-user by the grantor or those claiming under him of the right secured by the agreement between the former owners Rupp and Whisler, dated April 17th 1820. If the plaintiff below had ceased to require the water at all, if he had abandoned the use of his mill entirely, and the defendant and those under whom he claimed had enjoyed all the water for any period of time without denial of the right under the agreement or repudiation of its existence and obligations, he could resume his right at any time, certainly as long as his mill was there. On the other hand, the opposite party could acquire nothing by prescription contrary to the terms of the agreement under which the dam was built, and was to be repaired and maintained. It would perhaps make a different case if the plaintiff below or those under whom he claimed had refused to perform their part of the agreement to contribute in equal proportions to the maintenance and repair of the dam. In this respect the plaintiff in error has no cause to complain of the answers of the court below. Certainly mere neglect to do so, much more when both parties are equally negligent, would not cause a forfeiture of the privilege or easement vested by the deed. It is an entirely different case from that of an injury arising from negligence 'or other wrongful act, where if in an action to recover damages, any concurrent negligence which at all contributed to produce the injury, appears in the plaintiff he can recover nothing. The covenants to repair were mutual: either party could repair and sue the other for contribution. The defendants could show that they had called on the plaintiff to repair, and he had refused or neglected after such demand. So the learned judge instructed the jury in his answer to the plaintiff’s first point. The agreement secured to the plaintiff one-half of the water in the dam, much or little, unless it was reduced by his own fault. The joint erection and maintenance of that structure could be referred to nothing but contract. There was no right to build it or obligation to maintain it independent of contract. The contract of the parties then was the law of its use and enjoyment. The learned judge below was therefore entirely'accurate in his instructions to the jury contained in his answers to the several points of’ the plaintiff and defendants which have been assigned for error, so far as they relate to the plaintiff’s title to the free and undisturbed use and enjoyment of one-half of the water in the dam in question. It is unnecessary to examine them separately, and in detail, as the application of the principles to which we have referred will evince, we think, that the assignments of error cannot be sustained.

The same principles show also that the learned judge was right in his rulings upon the admission and rejection of evidence, which were excepted to and form the subjects of the first and second assignments of error. It was competent for the plaintiff to prove that he had made a demand for the enjoyment of his right when obstructed, and that it had been yielded by the occupant, whether owner in fee or tenant. It was like an entry to toll the statute. It interrupted the prescription set up by the defendant. It was 'in disproof of the pretension that he had lost his right by non-",er or non-claim. If I have a right of way by grant or reserva- •, I can surely give evidence that I have claimed and used it nout denial or obstruction by the occupant of the land. This evidence is not to make out a right against the landlord from acquiescence by the tenant in the use or enjoyment of the property adverse to his title. This certainly the acts or declarations of the occupant or tenant are incompetent to effect, and are therefore in such a case inadmissible; but this rule does not apply where the object is to meet and disprove the assertion that a right depending upon express grant has been lost or abandoned. The distinction between these two cases is very apparent. So too it was totally immaterial whether the amount of the water in the dam was sufficient, if the dam had not leaked, to run both mills; and even if it had been, upon the supposition that the jury might find that the plaintiff had refused to repair upon demand, of which however there seems to have been no evidence to go to the jury, the mode proposed to prove it was entirely inadmissible. The fact that mills higher up the stream were run with a less amount of water would have introduced questions entirely collateral and irrelevant as to the mills on the Conodoguinet from its source to its mouth. The plaintiff below was entitled by the agreement of 1820 to half of the water in the dam, not merely to so much as was necessary to run his mill: the parties had wisely precluded all dispute.on that subject by making the grant perfectly definite. When he was denied and disturbed in the enjoyment of that right to his injury by the act of the defendants in actually taking and using more than half, s'o that necessarily, half was not left for him, it was no answer to say that he had as much as he needed to run his mill. In point of fact, the injury he suffered and for which he recovered damages, was that he had not as much as was necessary for that purpose.

The remaining errors relate to the form of action. It is contended that it should have been covenant on the agreement of 1820. But here there is a very plain distinction to be taken. Had there been in that agreement a covenant by Rupp, for himself, his heirs and assigns, not to take more than half the water in the dam, there might have been some plausibility in the contention that he must resort to his remedy upon that. But there is no such covenant in the instrument. The covenants relate to the construction and repair of the dam and in regard to an application for a private road. Upon the breach of any of these covenants the remedy would have been by action of covenant upon the agreement. But in regard to the easement or privilege of Whisler, his heirs and assigns, to take and use one-half of the water, it was a direct grant, not a covenant. “ And in case the said John Whisler, his heirs or assigns, should erect a mill, they shall be at liberty to use one-half of the water in the said dam.” No one has ever supposed before, that upon a grant by deed of an easement or privilege upon land or land covered with water by one man to another, the remedy for a disturbance of such easement or privilege was an action of covenant upon the deed. Take a common case of the grant or reservation of a right of way. Surely an action on the case may be maintained by the grantlr for the obstruction of it, as well against the grantee and those claiming under him as against strangers. The books are full of such eases in which no such point was made: Watson v. Beiren, 1 S. & R. 227; Kinkham v. Sharpe, 1 Whart. 383; Jamison v. McCredy, 5 W. & S. 129; Van Meter v. Hankinson, 6 Whart. 307; Ebrier v. Sticther, 7 Harris 19. But, contends the counsel for the plaintiffs in error with great ingenuity, the grant to Whisler of one-half of the water is an implied covenant that the grantor will not take the other half. True, it is so, in popular language, but that does not constitute a technical covenant. In the grant of a right of way or common in the grantor’s land, there is the same implied covenant by the grantor that he will not disturb its enjoyment. But that, as we have seen, does not prevent the plaintiff from resorting to an action on the case to recover damages for its disturbance.

Judgment affirmed.