text:
    Austin Keene’s Appeal.
    1. The Act of April 17th 1869 (relating to the right of contingent interests to call executors to account), is constitutional.
    2. The act is an extension of a remedy to existing rights.
    3. “ I bequeath to E. my niece $30,000, whether married or single, during her life and after her death to her children, if any, absolutely, but if she dies without issue the principal to go to her brothers H. & J.; the interest only for their use, but to their children, lawful issue, absolutely.” The niece took but an interest for life, with limitation over to her children absolutely.
    4. “ If she dies without issue,” means if she should leave no issue at her death.
    5. “ The residue of my estate I give to my niece subject to the same conditions as my legacy of $30,000, the interest to be enjoyed by her during life, the principal to devolve to her lawful issue absolutely; if she dies unmarried, she has power to devise it, to whichever of her brothers she will consider most worthy to inherit her bequest and mine, the interest only to them, to their children, lawful issue absolutely.” The niece took but a life estate with limitation over to her children absolutely.
    6. “ Absolutely ” as applied to her children distinguishes it from the interest given to her.
    7. The gift of power to devise, shows that an absolute interest in the niece was not intended.
    8. If the interest of a fund be given and the bequest be indefinite and without ultimate limitation over, it will carry the principal absolutely.

      9. H. and J. brothers of the niece took only life estates.
    10. J. died before the testatrix, there being a distinct gift to the children in remainder, there was no lapse.
    11. The gift to the children was not through their father; their.interest was independent.
    12. ‘‘ I give to my nephew H. $10,000, the interest only to be paid to him during his life; if he marries and has children, to his lawful issue absolutely ; but if he dies unmarried, this sum to be divided between his two, or one surviving brother and his sister, receiving the interest only of the same, during their lifetime.’’ If he died without issue the legacy would pass into the residue.
    13. E. and H. were both married but had no children, a child of J. had a contingent interest, and under the Act of 1869 might call the executrix to account.
    February 16th 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Philadelphia: No. 198, to January Term 1870. In Sarah Lukens Keene’s Estate.
    Sarah L. Keene died May 11th 1866, having made hér will, which was proved June 9th in the same year, and letters testamentary were granted to Ellen Keene Mitchell, wife of Samuel B. W. Mitchell, the executrix named in it.
    The will, amongst others, contained the following clauses:— ■
    “ I also bequeath to this niece” (Ellen Keene, now Mitchell, the executrix), (“the only surviving daughter of my brother, Jesse Lukens Keene, deceased), whom I have educated, the sum of thirty thousand dollars, to be invested in ground-rents, or bonds and mortgages on real estate, the interest to be paid to her only or her power of attorney, whether married or single, during her life, and after her death to her children, if any, absolutely; but if she dies without issue the principal to go to her brothers, Henry and James, namely, the aforesaid investment of thirty thousand dollars in ground-rents and bonds and mortgages, the interest only for their uses; but to their children lawful issue, absolutely.
    “ I give and bequeath to my nephew, Henry Edgar Keene, ten thousand dollars, to be invested in ground-rents, or bonds and mortgages on real estate, the interest only to be paid to him during his natural life; if he marries and has children, to his lawful issue absolutely; if he dies unmarried, this sum to be divided between his two or one surviving brother and his sister, subject to the same investment, and receiving the interest only of the same during their lifetime.
    “ The residue of my estate, real and personal, I give and bequeath to my dear and affectionate niece, Ellen Keene, subject to the same conditions as my legacy of thirty thousand dollars, specified in a former part of this instrument, the principal to be invested in ground-rents, or in the bank-stock considered safe, but preferable in bond or mortgage on real estate, the interest to be enjoyed by her during her life, the principal to devolve to her children, lawful issue, absolutely; if she dies unmarried, she has power to devise it to whichever of her brothers she will consider most worthy to inherit her bequest and mine, the interest only to them, to their children, lawful issue, absolutely.”
    The Act of April 17th 1869, § 1, Pamph. L. 70, Purd. 1549, pi. 3, provides that “ the owner of any contingent interests in the personal property of any decedent may legally require any executor or administrator thereof to make and exhibit in the register’s office his or her account of the trust, in one year from the time of administration granted, and may require the legatee of any previous interest in the same property, before receiving the same, to give security in the Orphans’ Court, having jurisdiction of the account of the executor or administrator of the decedent, in such sum and form as in the judgment of such court shall be sufficient to secure said contingent interest whenever the same may accrue or vest.”
    On the 28th of September 1869, Austin Keene petitioned the Orphans’ Court, setting forth the death of Sarah L. Keene, her will and grant of letters testamentary to Mrs. Mitchell; that the testatrix left a niece, the above-named Mrs. Mitchell, a nephew, Henry E. Keene, children of two nephews, James and Lenox, who had died before her, the petitioner being a son of James; that Mrs. Mitchell and Henry E. Keene were both married in 1857, and have no children; that the executrix filed an inventory amounting to $52,030.77, but had not exhibited an account.
    The prayer was for a citation to the executrix to settle an account.
    The executrix denied that under the allegations in the petition she was liable to account.
    The Orphans’ Court dismissed the petition; the petitioner appealed to the Supreme Court, and assigned the dismissal of the petition for error.

      Gf. L. Crawford (with whom was B. I£. Brewster), for appellants.
    — As to the $30,000 bequest, “issue” in connection with the death of Mrs. Mitchell, means “ children.” In a devise to children with a limitation over in default of issue, issue indefinitely is not intended: 2 Jarman on Wills 368, 398 ; De Haas v. Bunn, 2 Barr 335; Haldeman v. Haldeman, 4 Wright 29; Sheets’s Appeal, 2 P. F. Smith 268. In personalty, even if issue included other descendants than children, the limitation is to be construed a failure of issue at the death of the first taker, and gives him only a life estate: 2 Redfield on Wills 372, §§ 20, 21, 22 and n.; Hawkins on Wills 197 ; Emma Myers’s Appeal, 13 Wright 111; Walker v. Milligan, 9 Id. 180; 2 Jarman on Wills 353; Ryan v. Cowley, Lloyd & Goold 10; Carter v. Bentall, 2 Beav. 551.
    As to the $10,000 bequest. The gift to Henry is expressly for life. The limitation over, “ if he dies unmarried,” means never having been married: In re Thistlewayte Trust, 31 E. L. & Eq. R. 547; Norman’s Trust, 17 Id. 127; Mangham v. Vincent, 18 Law J. R. N. S. Ch. 329; Hall v. Robertson, 21 E. L. & Eq. R. 504; Bell v. Phyn, 7 Ves. 458; Maberly v. Strode, 3 Id. 450; Shreiner’s Appeal, 3 P. F. Smith 106.
    As to the residue: the power to Mrs. Mitchell to devise may not be exercised; this leaves a contingency in favor of the petitioner : Wickersham v. Savage, 8 P. F. Smith 365.

      P. K. Price, for appellee.
    — The want of interest in an estate is incurable by subsequent legislation: Menges v. Dentler, 9 Casey 495. Want of interest is an objection to a bill for relief or discovery: Mitford’s Eq. 182. Where plaintiff shows only a probability of a title on an event which may not happen, he has no right to institute suit: Halsey v. Tate, 2 P. F. Smith 311; Okessin’s Appeal, 2 Grant 303.
    The limitation to James is an alternative one, to take effect if, at Ellen’s death, she should have had no child, which only then can be known: Smith’s Executory Int. §§ 128, 639. The interest of the plaintiff must be more than mere expectation: Krumbar v. Burt, 2 W. C. C. R. 406. The court will not give a retrospective effect to the Act of 1869: Neff’s Appeal, 9 Harris 243; Menges v. Dentler, 9 Casey 495; Barnet v. Barnet, 15 S. & R. 72. The fund that is appropriated by the will to pay the legacies is yet unconverted real estate: Chew v. Nicklin, 9 Wright 84; Annewalt’s Appeal, 6 Id. 414.
    As to the $30,000 bequest: If the limitation over is to be construed children living at Mrs. Mitchell’s death, then if she were to leave no child, but grandchildren, they would take nothing. Such a construction is not adopted in the absence of express words requiring it: Doe v. Peryn, 3 Term R. 484; Weakley v. Rugg, 7 Id. 318; Doe v. Considine, 6 Wall. 458 ; Rewalt v. Ulrich, 11 Harris 390. The limitation after Ellen’s death to her children, “if any,” means having had any; for if any born, they would take, as soon as born, a vested remainder absolutely; Lantz v. Trusler, 1 Wright 482; Silknitter’s Appeal, 9 Id. 365; Rex’s Estate, 10 P. F. Smith 141; Earl v. Grim, 1 Johns. Ch. 494; Adamson v. Armitage, 15 Vesey 415; 2 Redfield on Wills 649; Whittell v. Dudin, 2 G. & W. 279; Hulme v. Hulme, 9 Simm. 644; Lassence v. Tierney, 1 Mac. & G. 551; Train v. Fisher, 15 S. & R. 145; Grove’s Estate, 8 P. F. Smith 429; Philips v. Chamberlain, 4 Vesey 51; Bedford v. Stretch, 16 Id. 135; Hawkins v. Hawkins, 7 Simon 173, 197; Elton v.
      Shepherd, 1 Bro. C. C. 533; Humphreys v. Humphreys, 6 Eng. C. L. & Eq. 113; Hawkins on Wills 123; Haig v. Swiney, 1 Sim. & Stu. 487; Clough v. Wynne, 2 Madd. 439; Stretch v. Watkins, Id. 143; Hawkins 124, 126; Earl v. Grim, 1 Johns. Ch. Rep. 494; Garrett v. Rex, 6 Watts 14; Hellman v. Hellman, 4 Rawle 440; Campbell v. Gilbert, 6 Wharton 72; Silknitter’s Appeal, 9 Wright 365; Van Rensselaer v. Dunkin’s Exrs., 12 Harris 252; Womrath v. McCormick, 1 P. F. Smith 504. The Act of May 6th 1844 is exclusively prospective in its operation, whether the property, passing under such will, is real or personal : Mullock v. Souder, 5 W. & S. 198; Martindale v. Warner, 3 Harris 471, 479 ; Kurtz v. Saylor, 8 Id. 205; Neff’s Appeal, 9 Id. 243 ; Fisher v. Farley, 11 Id. 501; Becker’s Appeal, 3 Casey 52; Dewart v. Purdy, 5 Id. 114; Gable v. Daub, 4 Wright 217 ; Taylor v. Mitchell, 7 P. F. Smith 209.
    As to the $10,000 bequest: “Unmarried” means never having been married: Thistlewayte’s Trust, 31 E. L. & Eq. Rep. 547; Norman’s Trust, 17 Id. 127; Maugham v. Vincent, 18 Law J. Rep. (N. S.)(Ch. 329; Hall v. Robertson, 21 E. L. & Eq. Rep. 504 ; Bell v. Phyn, 7 Vesey 458; Maberly v. Strode, 3 Id. 450; Shreiner’s Appeal, 3 P. F. Smith 106. The limitation over of the interest is not only for the want of issue, but the want of marriage of the legatee; and as that event has taken place, such limitation is inoperative : Holmes v. Holmes, 5 Binn. 252; Griffith v. Woodward, 1 Yeates 316; Jessup v. Smuck, 4 Harris 16. The words “if he marries,” in this bequest may be treated here, as in Vaughan v. Dickes, 8 Harris 514; Matlack v. Roberts, 4 P. F. Smith 148, as but a step that was necessarily implied in having children or issue: Eichelberger v. Barnitz, 9 Wright 450; Scott v. Price, 2 S. & R. 63. If Henry’s wife survive him he may provide for her: Everett v. Cooke, 7 East 769; Framlingham v. Brand, 3 Atk. 300; Baldwin v. Rawling, 2 B. & Ald. 448; Hawkins on Wills 210; Rye’s Settlement, 10 Hare 11. The first taker in a will is presumed in law to be the favorite of the testator : McFarland’s Appeal, 1 Wright 300 ; Rewalt v. Ulrich, 11 Harris 388; Wilson v. McKeehan, 3 P. F. Smith 79. The word “ devolve” denotes legal succession: Haldeman v. Haldeman, 4 Wright 35; Clark v. Baker, 3 S. & R. 477; Train v. Fisher, 15 Id. 149; Potts’s Appeal, 6 Casey 168. The testatrix intended to give Mrs. Mitchell power to provide for her husband: Griffith v. Woodward, 1 Yeates 316; 1 Jarman 457; Framlingham v. Brand, 3 Atk. 390; Everett v Cooke, 7 East 269; Smith’s Ex. Int. § 341; Brown v. Higgs, 4 Vesey 716; Hall v. Dickinson, 1 Grant 240; Baldwin v. Rawling, 2 B. & Ald. 441. The word “estate” in the residue is as broad as “to heirs and assigns:” Womrath v. McCormick, 1 Wright 504; Sanders’s Trust, Law Rep. Eq. Cas. 672; Hambright’s Appeal, 2 Grant 321; Second Reformed Presbyterian Church v. Disbrow, 2 P. F. Smith 224; Brook v. Brook, 3 Sm. & Giffard 280. If the power to devise the residue be the only means of disposing of the residue, and that be a trust, or duty, it has by events preceding the death of the testatrix, become fixed in favor of her only living brother, Henry: Graef v. De Turk, 8 Wright 527; Horwitz v. Norris, 13 Id. 213.
    July 7th 1870,
   The opinion of the court was delivered,

by Sharswood, J.

— In Keene’s Appeal, 10 P. F. Smith 504, a case arising upon the same will now before us, it was held that a person who has a mere possible interest so contingent and uncertain that it may never become -vested, is not entitled, under the Act of March 29th 1832, Pamph. L. 208, to process to compel an appearance in the Orphans’ Court. In consequence of this decision the Act of April 17th 1869, Pamph. L. 70, was no doubt passed. It provides, “ that the owner of any contingent interests in the personal property of any decedent, may legally require any executor or administrator thereof to make and exhibit, in the register’s office, his or her account of the trust in one year from the time of administration granted, and may require the legatee of any previous interest in the same property, before receiving the same, to give security in the Orphans’ Court having jurisdiction of the account of the executor or administrator of the decedent, in such sum and form as in the judgment of such court shall be sufficient to secure said contingent interest whenever the same may accrue or vest.” It is beyond all question that it was conw petent for the legislature to enact such a law even so as to reach existing cases: for it is only the extension of a remedy to existing rights, which has always been conceded to be within their constitutional power.

Is then, Austin Keene, the petitioner in the court below, the owner of a contingent interest in the personal property of the testatrix, Sarah Lukens Keene ? To answer this question it will not be necessary to examine at large the provisions of the will. If in any possible contingency Austin Keene will be entitled to an interest, he must be held to come within the comprehensive words as well as the clear intent and spirit of the Act of 1869.

It seems very plain and is hardly disputed that Mrs. Mitchell (Ellen Keene), both as to the legacy of $30,000 and the bequest of the residuary estate, takes under the will but .an interest for her life, with a limitation over to her children absolutely if she should have any. Should she leave no issue living at the time of her death — for that is the established construction of the words “if she dies without.issue” in bequests of personalty, 2 Jarman 362 — then the principal to go by way of alternative limitation to her brothers Henry and James. The language used in the residnary clause does not lead to a different result; for the gift is to her for life expressly, and the phrase “ devolve to her children, lawful issue, absolutely,” however it might be if there were no express life estate, cannot be considered to devolve in a course of succession so as to vest in her the absolute interest. The use of the word “absolutely,” as applied to her children, distinguishes it from the interest intended to be given to her. So the power of devising, “if she dies unmarried,” shows clearly that the testatrix did not intend that she should have an absolute interest.

Mrs. Mitchell having then only a life estate, it remains to inquire as to the provisions made in the event of her decease without leaving children or issue.

First: As to the legacy of $30,000. “If she dies without issue, the principal to go to her brothers, Henry and James, namely, the aforesaid investment of $30,000 in ground-rents, and bonds, and mortgages, the interest only for their uses ; but to their children lawful issue, absolutely.” It is unquestionably a well settled rule that, although the interest only of a fund be bequeathed, yet if the bequest be indefinite and without an ultimate limitation over, it will carry the principal absolutely. This construction is upon the same principle upon which it is held that a grant or devise of the profits of land will pass the land itself. The rule itself is accurately stated by Mr. Justice Kennedy in these words: “ Primá facie a gift of the produce of a fund is a gift of that produce in perpetuity; and it is consequently a gift of the fund itself, unless there is something upon the face of the will to show that such was not the intention:” Hellman v. Hellman, 4 Rawle 450; Campbell v. Gilbert, 6 Wharton 78. When however the testatrix declares, as she does here, that the interest shall be only for their (the brothers’) uses, but to their children, lawful issue, absolutely — does she not indicate in language which precludes all doubt as to the real intention, that the brothers were to take for life only ? Not only is the adversative particle “ but” very significant as meaning to express difference, but here again the word “absolutely” distinguishes plainly, as in the former clause of the same paragraph, the interest of the children from those of the father. If then there was a distinct gift to the children in remainder after the life estate, it matters not that James, the life-tenant, died before the testatrix. There would be no lapse. The children do not claim through or in virtue of the gift of their father. Their interest is distinct and independent, and the rule in regard to a lapse apart from the Act of May 6th 1844, sect. 3, Pamph. L. 565, has no application : 1 Jarman 293. It follows that Austin Keene, one of the children of James, is the owner of a contingent interest in the personal estate of Sarah Lukens Keene — by reason of his right to a share of the legacy of $30,000 if Mrs. Mitchell should die without children or issue.

The case, so far as his right to call for an account is concerned, might rest here. But he seems also to be contingently interested as -well in the legacy of $10,000 to Henry as also in the residuary bequest. If the fact that Henry is married prevents the limitation over, “if he dies unmarried,” from taking effect, yet as by express words “ the interest is only to be paid to him during his natural life,” it follows that the principal remains and forms part of the residuum. If however this construction should not prevail, then he has the same contingent interest if the limitation over takes effect: “ This sum to be divided between his two or one surviving brother and his sister, subject to the same investment and receiving the interest only of the same during their life term.” In either way then it must ultimately form a part of the residuum. Then as to this residuum: we have seen that Mrs. Mitchell has but a life interest: “if she dies unmarried she has power to devise it.” Whether under the facts this power exists or not, Austin Keene is the owner of a contingent interest in the estate of the decedent. If it exists Mrs. Mitchell may die without exercising it; in that event or if it does not exist, he will be entitled to a share under the intestate laws as one of the next of kin of the decedent — one of the children of her brother James.

Decree reversed, and ordered that the court below grant the prayer of the petitioner and award a citation as prayed, and that the record be remitted for further proceedings.


source: Caselaw Access Project

author: by Sharswood, J. Thompson, C. J.

license: Public Domain

text:
    Norris’s Appeal.
    1. A court of equity has no jurisdiction to fix boundaries of legal estates, unless some equity is superinduced by the act of the parties.
    2. The Acts of April 15th 1858 and April 5th 1859 (Boundaries), arel confined to cases which are properly the subject of equitable jurisdiction.
    3. Where there are grounds for equitable interposition, the legislature may enlarge or diminish the powers of the court.
    4. Constructive possession, where there is no actual possession, is in him who has the legal and rightful title.
    February 21st 1870.
    Before Read, Agnew, SharSwood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Philadelphia: No. 141J, to January Term 1870.
    On the 14th of May 1859, George W. Norris and Mary P. his wife (late Fisher), in her right and others, filed a bill against the City of Philadelphia, Samuel Morris and others.
    The bill set out these facts: The plaintiffs were and for- some time had been seised of a tract of land in Philadelphia, — which the bill described, — bounded on the east by the river Delaware, and partly by land of the defendants. The defendants’ title was under the will of Samuel B. Morris, who directed improvements to his real estate should be made by his executors, including the construction of a bank on the river front. The plaintiffs then averred, “ that the boundaries between their tract and the tracts owned by the city of Philadelphia, and by the other defendants respectively, have become confused and rendered uncertain by reason of lapse of time, which has occasioned the obliteration, destruction or loss of the marks on the ground of the natural or artificial monuments, and of the other evidence of the true course and position of the said boundaries, and also by reason of natural or physical causes, that is to say, the gradual but extensive alterations of and addition to the shore or bank of the said river from large alluvial accretions and deposits, and the growth or increase of flats and marshes in that neighborhood, from which causes or some of them, amongst other things, the line as well of high as of low water in the said river has become in the course of time and since the said boundaries were established, greatly changed both in position and direction:” and “that the defendants, by reason of the said confusion and uncertainty of the boundaries, wrongfully claim title respectively to portions of your orators’ said tract or piece of land; and in particular pretend that each of their several tracts or pieces of land extends in the original direction or course of its hounding lines to the present low-water mark of the said river so as to exclude your orators’ said tract or piece of land from any front upon the said river; and consequently to preclude your orators from the right and privilege of extending wharves, piers and other erections into the said river from their tract, and that such claim or pretence being publicly and often made has created and does create a cloud upon your orators’ title, so that they are unable to deal with and dispose of their said tract or piece of land as they otherwise might,” &c.
    “ That certain portions of their said tract are covered by water at high tide to such a degree that at present and for some years past no actual possession thereof, by enclosure or other visible or notorious acts of occupation, has or can be taken or maintained for any length of time, either by the plaintiffs or by the defendants or either of them, and that by reason thereof it is impossible to ascertain the boundaries at law so as to establish them in a permanent manner, at least without a multiplicity of actions.”
    They charge “ that it is impossible to establish the said boundaries at law in another respect, that is to say, so far as the same apply to and extend over the additions and accretions to the shore or bank of the said river before mentioned, inasmuch as the relative position of the said three tracts or pieces of land respectively towards each other and towards the river front is such that the just share and proportion of each in the said additions or accretions must depend on and be measured by the shares or proportions of both the others, and can on]y be ascertained and adjusted at the same time and in the same proceeding, upon principles of equity and • justice which could not be practically enforced in an action at law.”
    The prayer was: that the boundaries between the plaintiffs’ tract and the several tracts of land belonging to the defendants, may be ascertained, distinguished and adjusted; and that a commission may issue for the purpose of distinguishing, ascertaining and adjusting the said boundaries; and that all proper directions may be given in respect to the same; and for further relief.
    The city did not appear.
    The other defendants pleaded: “ That the matter in dispute is solely the ownership of certain marsh lands or flats, which are an alluvion or accretion to the fast land formed by deposit by the river Delaware, between the ancient front or line of the fast land of the defendants and their present line of low-water mark in the said river, which marsh or flat has been claimed by these defendants, and those under whom they claim, from time immemorial, and at all times since the same began to be formed by the river, and that more than twenty-one years before the complainants’ bill was filed, actual possession was taken- thereof, and a fence put up by the defendants’ testator, along the northern boundary line of said marsh, being the northern boundary line of these defendants’ property, on the fast land protracted to the low-water mark of the river; and these defendants claim title to so much of the said marsh lands or flats as lies between the north and south boundary lines of this property, on the fast land protracted to the low-water mark and to no more; which said boundary lines are very nearly parallel to each other, and at right angles, as near as may be, to the line of lów-water mark on the river Delaware; and they claim title thereto solely and entirely as an accretion to the fast land they own and are in undisputed possession of under title-deeds vesting the same in-them and those under whom they claim, and not in the complainants or any one they claim under; and they insist that this court under the circumstances of this case has no jurisdiction, sitting as a court of equity, to determine the ownership of the premises or the proper location of the boundaries, if the fence erected by the devisor of these defendants was erroneously placed on the ground, but that the same can only be determined in a court of common law,” &c.
    The defendants filed an answer, in support of the plea, alleging facts in reference to their title, &c. Formerly all the tracts owned by the respective parties had river fronts, and the tracts did not then adjoin; but accretions have been made to the shore, so ihat inasmuch as the lines of the respective tracts are not parallel, they would if protracted, converge and consequently conflict.
    The proceeding was under the Act of April 15th 1858, § 1, Pamph. L. 267, Purd. 402, pl. 12, viz.: “ The Supreme Court in and for the Eastern District of Pennsylvania, and the Court of Common Pleas of Philadelphia, respectively, shall have all and singular the jurisdiction and powers of a court of chancery, in all cases of disputed boundaries between adjoining and neighboring lands within the said county, whether the parties owning the same, hold or claim to hold under the same, or by different titles.” And the Act of April 5th 1859, Pamph. L. 359, Purd. 402, pl. 13, 14, viz.:—
    Sect. 1. “ The jurisdiction and powers given by the act to which this act is a supplement, shall extend to and embrace the ascertainment and adjustment of disputed boundaries between adjoining and neighboring lands in the county of Philadelphia, where such boundaries are or shall have become confused or rendered uncertain, either by lapse of time, by natural causes, or by the act, neglect or default of any present or former owner or occupant thereof.”
    Sect. 2. “ If upon bill filed in any such case it shall appear that the whole or any part of the lands mentioned in such bill have or has never been actually parted or divided, the court shall, without dismissing the bill, proceed thereupon to decree partition of such undivided lands between- the parties to the suit according to their just rights and practice of courts of equity in this Commonwealth.”
    The case was heard December 20th 1869, in the court below on bill and plea. The bill was dismissed pro forma.

    On appeal to the Supreme Court, the plaintiffs assigned for error the decree dismissing their bill.

      S. Wharton and W. S. Pawle, for appellants.
    — The accretions accruing to both complainants and defendants from the same natural source, by the same process and during the same simultaneous though gradual process of time, must in every just sense be deemed a common title, and this equitable proceeding may be maintained: Perry v. Pratt, 31 Conn. 433; Agar v. Fairfax, 2 Lead. Cas. in Eq. 374; Adams’s Eq. 230. A mere circumstantial denial of the facts alleged in a bill cannot be made matter of a plea, nor is duplicity allowable: Mitford Eq. Plead. 209, 295 ; Beames on Pleas, by Halstead 9, 21; Milligan v. Milledge, 3 Cranch 220; Whitbread v. Brockhurst, 1 Brown Ch. C. 404. The. plea does not allege facts showing an open, notorious, adverse and exclusive possession for twenty-one years: De Haven v. Landell, 7 Casey 126.

      July 7th 1870,

      R. 0. McMurtrie, for appellees.
    — The jurisdiction of chancery does not extend to legal titles: Waring v. Hotham, 1 Brown’s Ch. R. 40. There must be some equity superinduced by the acts of the party, or circumstances of fraud or confusion: Wake v. Conyers, Eden 335; Attorney-General v. Fullerton, 2 Ves. & B. 263; Leeds v. Strafford, 4 Ves. 185; O’Hara v. Strange, 11 Irish Eq. 262; Stuart v. Coalter, 4 Randolph 74; Miller v. Warrington, 1 Jac. & Walk. 471; Speer v. Crawlter, 2 Merivale 410.
   The opinion of the court was delivered,

by Sharswood, J.

— The Act of Assembly of April 15th 1858, Pamph. L. 267, and the supplement thereto of April 5th 1859, Pamph. L. 359, upon which the bill filed in the court below is professedly based, are confined in their operation to the county of Philadelphia. It is a sample of the local legislation, unhappily, it seems, becoming popular — at least very much on the increase of late years, and which threatens to destroy by degrees all uniformity in our laws; so that a different system of rights and remedies will take root and grow up in each separate county or section. It is much to be deprecated. Such laws are certainly not entitled to be regarded with any unusual favor by the courts, and are not to be extended by construction beyond what their language plainly imports. The legislature probably could not have been induced to adopt such provisions as these acts contain, at least in the sense which is claimed for them, for all parts of the Commonwealth; for if the construction contended for be sound, they would draw within the maw of a court of equity all questions of disputed boundaries, including interfering surveys and settlements, which have been heretofore cheaply and satisfactorily committed to the determination of courts of common law, with the necessarily accompanying right of trial by jury. Even in England the very limited jurisdiction exercised by the Court of Chancery upon the subject of boundaries has been justly regarded with great disfavor and jealousy. In a leading case, Lord Keeper Henley, after-wards Lord Chancellor and Earl of Northington, used this very emphatic language: “There have, since I £at here, been several (bills) to fix boundaries, when a right to the freehold of the soil has been incidental. But I have seen such frightful consequences arising from them, that I think these suits are very far from deserving encouragement. They originally came into this court under the equity of preventing multiplicity of suits; yet in those eases I have observed that they have been sometimes attended with more expense than if all the suits which they had apprehended, and which they were brought to prevent, had actually been tried at law:” Wake v. Conyers, 1 Eden 331; 2 Cox 360. It was established as a principle in that case, which has been maintained and followed ever since, that the court has no jurisdiction to fix the boundaries of legal estates, unless some equity is super-induced by the act of the parties: 2 Leading Cases in Equity 318. It is maintained, however, by the learned counsel for the appellants, that the Acts of 1858 and 1859 carry the jurisdiction of a court of equity in Philadelphia county beyond that usually exercised by the Court of Chancery in England on the subject of disputed boundaries, and it is frankly conceded that there a mere dispute as to the dividing line of two adjoining estates, not held under the same title, where there is no especial equity affecting the defendant, would not give jurisdiction. Unless these acts are to have this construction, the appellants have no ground to stand upon. No special equity to affect the defendants is alleged or pretended. It was a very grave constitutional question, though it must now be regarded as solemnly settled by this court, whether the legislature can constitutionally transfer any part of the common-law jurisdiction heretofore enjoyed and exercised by courts and juries .to a court of chancery. By Art. V., sect. 6, of the Constitution, it is indeed provided, that “ the legislature shall vest in the Supreme Court and the several Courts of Common Pleas, such powers to grant relief in equity as shall be found necessary, and may from time to time enlarge or diminish their powers, or vest them in such other courts as they shall judge proper for the due administration of justicebut this section must be read along with Art. IN., sect. 6, in which it is also declared, “ that trial by jury shall be as heretofore, and the right thereof remain inviolate;” an article which has a very special declaration of sanctity annexed to it by the people. If the legislature can transfer a part, they can the whole of the jurisdiction in civil cases to courts of equity, and thus practically abolish trial by jury entirely in these cases. This court has accordingly held that the Act of April 22d 1856, Pamph. L. 502, giving a tenant in common in coal or iron mines, whose right is denied or resisted, the power to apply by petition in equity to the Court of Common Pleas of the county where the lands lie, and investing such court with the jurisdiction to adjudicate and determine the rights of the several parties according to the course of a court of chancery, conflicts with the constitutional right of the citizen to have controverted questions of fact in common-law causes decided by a jury, and that it is applicable only to cases in which the rights of the complainants are equitable: North Pennsylvania Coal Co. v. Snowden, 6 Wright 488. “It is true,” said Mr. Justice Strong, “that the legislature are authorized to vest in the courts such powers (beyond those enumerated) to grant relief in equity as shall'be found necessary, but this must be understood as referring to powers in equity cases, in that class of cases of which chancery had jurisdiction. Such an understanding is necessary to make the different parts of the constitution consistent with each other, and to give effect to all. It cannot mean that the legislature may confer upon the Supreme Court and the Courts of Common Pleas the power of trying according to the course of chancery, any question which has always been triable according to the course of law by a jury. If it can, then an ejectment founded solely on legal title, an action of debt on a bond, or a replevin, or an action of trespass may be sent into chancery, all contested facts in it to be decided by the judge, and the intervention of a jury be unknown. Then what has become of the constitutional right of the citizen ? Such a doctrine would startle the people of this Commonwealth, and justly, for it would deprive them of one of their most valuable privileges. No power in our government can take from the litigant the right to have his case tried by a jury, substantially in the mode and with the same effect as that which belonged to jury trials in similar cases, when the Constitution of 1776 was adopted. What is law and what is equity, is a judicial question. It belongs, therefore, exclusively to the judiciary. But'were it admitted that the legislature could authoritatively convert a legal right into an equitable one, a court of equity could not, as such, enforce it. The judiciary, no more than the legislature, can deny to any litigant the right of trial by jury, in a ease appropriate to such a mode of trial. The Act of 1856, then, is applicable only to cases in which the rights of the complainants are equitable. It would conflict with the Constitution, if it had a more extended application.”

I have made so full an extract from this opinion, because, though spoken of the Act of 1856, every word of it applies to the Act of 1858 and 1859, now in question. We do not hold these acts to be unconstitutional. It is not necessary to do so. We are bound to give them such a construction as will not conflict with the constitution; and that must necessarily be that they are confined in their ti-ue intendment to cases which are properly the subject of equitable jurisdiction. That jurisdiction must first be shown to exist, before the remedial provisions of the act can apply. The Act of 1858, in so many words, confers upon the Supreme Court and the Court of Common Pleas of Philadelphia county respectively, “ all and singular the jurisdictions and powers of a court of chancery in all cases of disputed boundaries between-adjoining and neighboring lands within the said county, whether the parties owning the same, hold or claim to hold under the same or different titles.” The supplement of 1859 declares, “that the jurisdiction and powers given, by the act to which this act is a supplement, to the courts therein named, shall extend to and embrace the ascertainment and adjustment of disputed boundaries between adjoining and neighboring lands in the county of Philadelphia, when such boundaries are or shall have become confused or rendered uncertain, either by lapse of time, by natural causes, or by the act, neglect or default of any present or former owner or occupant thereof.” Under both acts, as will be seen, it is only the jurisdiction of a court of chancery which is conferred. We must first determine whether that jurisdiction exists — rather, perhaps, what it is in regard to the subject-matter. No doubt, where there are grounds of equitable interposition, the legislature may, in the words of the constitution, “ enlarge or diminish” the powers of the court; and this they have done in these acts. But the fundamental principle, which requires that there should be an equity in its technical sense in order to confer the jurisdiction, they have not attempted to disturb by anything therein expressed. Upon the bill and plea, upon which this cause was heard and decided in the court below, there was no ground of equitable interposition alleged or pretended. None such has been advanced in this court. The plea, which must be accepted as true, objects to the jurisdiction, because the matter or thing in dispute is the title to certain marsh lands or flats, which are an alluvion or accretion to the fast lands formed by deposit in the river Delaware; and the bill and draft annexed exhibit the same fact. Indeed, the lands of the plaintiffs and defendants — all riparian proprietors on the river — are not even “ adjoining and neighboring” lands, within the words of the acts; and it is only by the protraction of the lines of their respective tracts, according to a principle claimed by the plaintiffs, through the marsh or flats to low-water mark that they infringe on each other, and thus come in conflict. How their lines are to be protracted and run, depends upon a pure question of law; it has not a spark of equity in it. It can and must be determined by a court and jury, in an action of trespass or ejectment, like any other question of legal title. Nor does there exist any insuperable difficulty in the way of such remedies at common law, so as to render them inadequate and justify an appeal to the jurisdiction of a court of equity. It is alleged in the bill, although denied in the plea and answer, that there never has been, and in the nature of the subject could not be, exclusive and adverse enclosure and possession of land under the periodical dominion of the tide. Be it so. Constructive possession, where there is no actual possession, is adjudged to be in him in whom is the legal and rightful title. Either party, by the simple expedient of a fence or a wall in assertion of his right, may put his adversary to the necessity of either acquiescing in or controverting it. It is surely no answer to say, in order to give a court of equity jurisdiction, that this would be difficult and expensive to keep up. We must leave these parties, therefore, to their legal remedies, for they have none but legal rights, however convenient the appellants may think it to have a commission out of chancery, at joint expense, to decide the question in dispute as to the course of the lines, to run them by actual survey, and to make partition of the undivided lands between the parties. A court of equity, as has been said, may do great things, but not all things.

Decree affirmed and appeal dismissed at the costs of the appellants.

Thompson, C. J.

— I was not present at the argument, but fully agree to the principle decided in the above case.


author: by Sharswood, J.

text:
    Mayer versus Walter.
    1. A malicious abuse of legal process is where it is employed for some unlawful object not the purpose intended by law.
    2. In an action for such abuse it is not necessary to prove that the action on which the process issued has been determined, orto aver that it was sued out without probable cause.
    3. It is immaterial whether the proceeding was baseless or not..
    4. Legal process ma.y be maliciously used so as to give a cause of action, where no object but its proper effect and execution is contemplated.
    5. In such case both malice and want of probable cause must be averred and proved, and the proceeding must be determined before an action can be maintained.
    6. The declaration need not be on the merits.
    7. When the proceeding has been terminated by a compromise an action for damages will not lie.
    8. Such action cannot be supported when in the original action it was necessary to set up some collateral defence which did not appear in the declaration or the instrument declared on.
    9. A proceeding before an alderman was reversed on certiorari; this, although not followed by judgment for defendant, was an end of the case, so as to found an action against the plaintiff.
    10. A mere suit however malicious or unfounded cannot be the ground of an action for damages, if the defendant or his goods be not seized.
    February 17th 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 203, to January Term 1870.
    This was an action on the case for malicious abuse of legal process, brought March 28th 1868, by George Mayer against John Walter.
    Mayer was the tenant of Walter. On the 13th of September 1866 Walter commenced proceedings against Mayer to obtain possession of the leased premises, and on the 24th judgment was rendered in favor of Walter. On the 5th of October Mayer sued out a certiorari. On the 29th of November, Walter was put into possession under a writ of possession. On the 10th of December, the Court of Common Pleas on the certiorari, reversed the proceedings of the alderman; to the judgment of the Court of Common Pleas, a writ of error was taken to the Supreme Court, which was non-prossed March 2d 1867. On the 23d of March, on the petition of Mayer, the Court of Common Pleas granted a rule to show cause why a writ of restitution should not issue; the rule was discharged May 18th. On the 28th of March 1868, the court allowed Mayer to withdraw his petition for a writ of restitution. On the trial the court (Hare P. J.) charged the jury that “before they would be justified in rendering a verdict for the plaintiff they should be satisfied from the evidence that Walter had no right to commence the proceedings for possession before the aider-man, and that there was no reasonable or probable cause for belief that he had such a right, and that such proceedings were malicious)” and reserved for the determination of the court in banc, the question “ whether the plaintiff could maintain this action in the absence of any judgment in his favor upon the merits in the proceedings before the alderman.”
    The jury rendered a verdict for the plaintiff for $1000. The court afterwards entered judgment for the defendant non obstante veredicto on the reserved point, Judge Hare delivering the following opinion:—
    “ It is well settled that a recovery cannot be had for the injury inflicted by an unfounded action, unless the party who makes complaint obtained judgment, or there was a plain confession of want of right on the part of the plaintiff in tbe former suit. I do not now speak of suits for the abuse of civil process by obtaining a collateral and unfair advantage, which is not pretended here, but of those where the wrong consists in an arrest, or an eviction, which, though warranted by the writ, was without sufficient cause. But for this rule, the termination of one suit would be, in a multitude of instances, the signal for the institution of another, in which the parties would be reversed; and the process might be renewed indefinitely, in contravention of the maxim interest reipublicce ut sit finis litium. It has therefore wisely been resolved that no liability shall arise from bringing a suit, unless the termination of it shows that it was instituted without sufficient cause. It has indeed been said, in some instances, that if the plaintiff obtains judgment in the tribunal in which the suit is brought, a subsequent judgment for the defendant in a court of error will not set the matter sufficiently at large to leave the way open for an action of damages on his part. If this were conceded, it would be conclusive here, where the magistrate rendered a judgment in favor of the plaintiff. Without going so far, it would seem very clear that the reversal of a judgment in favor of the plaintiff will not let the defendant in to show want of probable cause, unless the reversal is accompanied or followed by a judgment in favor of the defendant. A judgment may be, and often is, reversed on grounds which do not touch the right, but only the manner in which it was enforced) that the declaration contained a defective count, or that the court gave an erroneous instruction to the jury. If the Common Pleas, after sustaining the exceptions to the proceedings before the magistrate, had gone on to award restitution, it would have been conclusive evidence that the right was in the tenant, and the latter would then have been free to show that the landlord had taken measures to evict him, maliciously and without sufficient cause. But that court refused to make such an award: and the rule which had been obtained for the purpose, was, after being reinstated, finally withdrawn by the tenant. Having declined to bring the matter to an issue before the tribunal to which it properly belonged, he cannot now renew the controversy here.”
    February 28th 1870,
    The plaintiff took a writ of error and assigned for error the entering of the judgment on the reserved point.

      B. Woodward and Gf. W. Biddle, for plaintiff in error.
    — ■ An action will lie for abuse of civil powers: Sommer v. Wilt, 4 S. & R. 19; Foster v. Sweeney, 14 Id. 386; Prough v. Entriken, 1 Jones 85; Barnett v. Reed, 1 P. F. Smith 190; Stone v. Swift, 4 Pick. 389; Wills v. Noyes, 12 Id. 324; Savage v. Brewer, 16 Id. 453 ; Paughborn v. Bull, 1 Wend. 345; Burt v. Place, 4 Id. 591; Ewing v. Landford, 19 Ala. 605; Weaver v. Page, 6 Cal. 681; Page v. Cushing, 38 Maine 523; Temple v. Killingworth, 12 Mod. 4; Van Duzor v. Linderman, 10 John. 106; Brown v. Chapman, 1 W. Black. 427. The reversal of the alderman’s judgment was a decision, in Mayer’s favor: it need not be a decision on the merits.

      W. B. Budd, for defendant in error.
    — The plaintiff must prove a suit with malice and without probable cause, and its final termination : Wilkinson v. Howell, 1 Moody & M. 495.
    The judgment of a justice, though founded upon a.mistake in law, is an estoppel of the denial of want of probable cause: Herman v. Brookerhoff, 8Watts 240. The compromise of a suit is conclusive evidence of probable cause: Clark v. Everett, 2 Grant 216; Munson v. Austin, 2 Phila. R. 116; Wengert v. Beashore, 1 Penna. R. 233; Kramer v. Stock, 10 Watts 118; McCullough v. Grishobber, 4 W. & S. 201.
    The Court of Common Pleas might refuse a writ of restitution: McGee v. Fessler, 1 Barr 131. An action of this kind will, .not lie without arrest or seizure of property: Ray v. Law, 1 Pet. C. C. 210; Kramer v. Stock, 10 Watts 118.
   The opinion of the court was delivered,

by Sharswood, J.

— There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it. Thus, if a man is arrested, or his goods seized in order to extort money from him, even though it be to pay a just claim other than that in suit, or to compel him to give up possession of a deed or other thing of value, not the legal object of the process, it is settled that in an action for such malicious abuse it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause: Grainer v. Hill, 4 Bing. N. C. 212. It is evident that when such a wrong has been perpetrated, it is entirely immaterial whether the proceeding itself was baseless or otherwise. We know that the law is good, but only if a man use it lawfully.

On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by it other than its proper effect and execution. As every man has a legal power to prosecute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is necessary in this class of cases to aver and prove that he has acted not only maliciously, but without reasonable or probable cause. It is clearly settled also, that the proceeding must be determined finally before any action lies for the injury; because, as it is said in Arundell v. Tregono, Yelv. 117, the plaintiff will clear himself too soon, viz., before the fact tried, which will be inconvenient; besides, the two determinations might be contrary and inconsistent.

The case before us evidently was that of a malicious use of legal process. All the analogies of an action for a malicious arrest or seizure of goods under an execution fairly belong to it: Beach v. Wheeler, 12 Harris 212, s. c. 6 Casey 69; Sommer v. Wilt, 4 S. & R. 23. It is necessary that the proceeding should have come to an end, and that end must have been a successful one to the plaintiff; otherwise it shows actual, which is more than probable, cause; but it seems to have been considered by the learned court below that it must also appear that the determination in favor of the plaintiff has been on the merits, and on that ground they entered judgment for the defendant on the point reserved.

The soundness of a principle is often best tested by its practical working. If, in the application of it, it is manifest that an admitted wrong may be left without any remedy, we may be confident that there is a fallacy somewhere in the reasoning from which it is deduced. We will take the case of a malicious arrest, without reasonable or probable cause, in a civil action. The plaintiff, when ruled to declare, refuses, and the only mode by which the defendant can bring the action to an end is by a judgment for want of a declaration. Here there is no decision in his favor on the merits. If the principle asserted be sound, the defendant in 'that case, though he has suffered an acknowledged wrong, is deprived of all remedy without any fault on his part. The authorities are not so. In Pierce v. Street, 3 B. & Ad. 397, it was decided that in an action for a malicious arrest in a civil suit, proof that no declaration was filed or delivered within a year after the return of the writ is sufficient to show a determination of that suit. So in Brook v. Carpenter, 3 Bing. 297, it was held that an action may be brought to recover damages for lodging a detainer against the plaintiff, maliciously and without probable cause, when the suit is terminated by a rule of court.

In Jones v. Given, Gilbert’s Cases 185, Chief Justice Parker, in a most elaborate opinion, shows that although in a writ of conspiracy for a false appeal or indictment of treason or felony, it was necessary to prove that the plaintiff had been lawfully acquitted, it was otherwise in an action on the case. The reason was that a writ of conspiracy was a formed action, one of the brevia formato in the register, in which it was alleged that the plaintiff secundum legem et consuetudinem regni nostri acquietatus fuisset: F. N. B. 276, and such forms must be strictly pursued quce quidem nullatenus mutari poterint; while in an action on the case a latitude is allowed, variantur secundum varietatem casuum, and nothing is made necessary but what the reason of the thing makes so. See 1 Inst. 73 b. In the course of that opinion he lays down this rule, which seems fully to meet and answer the true justice and reason of the case: “ That the determination must be such as does not admit a reasonable cause for the prosecution; as if a pardon be pleaded which admits in some sort guilt, however is quitting the vindication of innocence, or justification, which admits the fact, and consequently reasonable cause of complaint.” So it has been held in this court that when the proceeding has been ended by a compromise, it debars the defendant from any action for damages: Clark v. Everett, 2 Grant 416. And, as a general rule, it may be laid down that such an action cannot be supported when in the original action the defendant was obliged to set up some collateral matter by way of defence, which did not appear on the declaration or the face of the instrument declared on: Wengert v. Beashore, 1 Penna. R. 232; though it should be noted that that was said in an action against executors.

It is more than probable, however, that the learned court below did not mean to affirm the abstract proposition stated in the reserved point in so broad a form. They meant to confine it to the case of a reversal of a judgment of an alderman on certiorari or appeal; and their precise position seems to have been that such reversal is riot enough, unless followed by a judgment for the defendant. ÍBut the reversal of judgment in that proceeding was an end of the cause; as much certainly as a nonsuit, or judg ment for want of a narr. Mr. Justice Rogers, in Gibbs v. Bartlett, 2 W. & S. 35, states that the entry of judgment reversed in this court without more, according to our practice, is a final judgment. Non oonstat, whether the reversal was upon the merits or' not. It may well have been. The record may have shown that the defendant’s term had not expired, or that he had not received lawful notice to quit. That surely would have been a judgment on the merits. But suppose the error alleged was that the defendant had not been summoned, and that judgment had been rendered against him without his having had an opportunity to be heard. This may not be regarded as a reversal on the merits, but in reason it ought to make no difference. Could the original judgment well be said to have been given on the merits if the defendant had no opportunity to be heard ? I am speaking now only of an hypothetical case, not of this case; for the exceptions on which the reversal took place are not spread on this record.Certainly, to apply to it the rule of Chief Justice Parker, the reversal is not such a determination of the action as admits a reasonable cause for the institution of it.

If by the legal effect of the reversal on certiorari there was no judgment, if it was pronounced erroneous and illegal, why should it continue to work an estoppel, conclusive on the plaintiff that there was probable cause for the proceeding? To this extent the doctrine must go to sustain this judgment on the reserved point. Evidence, primá. facie, it may have been, very cogent under some circumstances, and if the party fairly submitted a true statement of the case to the magistrate, and was guided by his advice, that might negative the want of probable cause, though the facts did not warrant the proceeding : Le Maistre v. Hunter, Bright. Rep. 494; Walter v. Sample, 1 Casey 275. But conclusive per se it must be held to be, if this plaintiff, having obtained a verdict on evidence showing malice and want of probable cause, is to be turned out of court. How can it have this conclusive effect legitimately attributed to it, if it is no longer a judgment at all ? I have not overlooked the case of Reynolds v. Kennedy, 1 Wils. 232, cited with apparent approbation by Chief Justice Gibson, in Herman v. Brookerhoff, 8 Watts 240. It was there held that a condemnation of goods by sub-commissioners of excise, though reversed on appeal to the Commissioners of Appeal, disproves the allegation of want of probable cause for the information, and consequently bars an action for malicious prosecution against the informer. I question very much if the case would have been so decided had it not arisen under the revenue laws, and been influenced by a governmental policy for the protection of informers. But- however that may be, the case goes much too far for the qualified doctrine here maintained; for the reversal there was expressly averred to have been upon the merits, and the ground of the decision, as stated by Chief Justice Lee, was this: “ Although it is said that the Commissioners of Appeal most justly reversed the judgment of condemnation of the sub-commissioners, yet we are all of opinion the plaintiff is not entitled to this action; for we cannot infer from the judgment of reversal of the Commissioners of Appeal that the defendant, the prosecutor, was guilty of any malice, and the judgment of the sub-commissioners has justified the proceeding before them.” But the plaintiff had averred malice, and the jury had found it; though it is worthy of observation that the declaration did not allege want of probable cause. The reason assigned by Chief Justice Lee for this conclusion does not to my mind sustain it. “ If an action upon a false surmise be brought against me in a proper court, I cannot have an action against him that brought it, and charge him with it as a fault directly, as if the suit itself was a wrong act, for exeoutio juris non habet injuriam: Hob. 266. And the gist of this sort of potions arises from some evil practice or malice in him who sues or prosecutes: Lutw. 1571.” Now, undoubtedly, a mere suit, however malicious or unfounded, cannot be made the ground of an action for damages. If the person be not arrested or his property seized, it is unimportant how futile and unfounded the action may be; as the plaintiff, in consideration of law, is punished by the payment of costs: Ray v. Law, 1 Peters C. C. 210; Kramer v. Stock, 10 Watts 115. Originally, indeed, the common law made provision to hinder malicious and vexatious suits, that every plaintiff should find pledges, who were amerced if the claim was false; which judgment was always given, and then a writ issued to the coroners, and they affeered them according to the proportion of the vexation. But that method became disused, and then to supply it, the statutes gave costs to the defendants. And, as Lord Holt remarks, though this practice of levying of amercements be disused, yet the court must judge according to the reason of the law, and not vary their judgments by accidents: Savill v. Roberts, 1 Ld. Raym. 380. Surely that an action cannot be maintained to recover damages for a mere unfounded suit, in no way .tends to prove that when a judgment is reversed, the reversal must show on its face malice in the prosecutor. We cannot, therefore, consider Reynolds v. Kennedy as sufficient authority to establish it as law in this state, that the judgment of a magistrate under which a man has been arrested, his property seized and sold, or he has been turned out of possession of his house and home, when that judgment has been reversed on certiorari or appeal, shall conclude him in an action against the opposite party, in which he is able to prove that the plaintiff was actuated by malice, and had no reasonable or probable ground for the proceeding. The case would, perhaps, be entirely changed, if it appeared that the ground of the reversal was such as to admit necessarily that there was a reasonable cause for commencing the proceedings; as for example, where it went upon some collateral matter by way of defence: Wengert v. Beashore, 1 Penna. Rep. 232.

We see nothing in the proceedings in regard to the writ of restitution which stands in the way of the plaintiff’s recovery. The application for the writ was at first refused by the court, but afterwards, on motion, reinstated and then withdrawn. Many considerations may have prevailed with the court at first in refusing, and the plaintiff afterwards in not persisting in his application. The term may have expired, or been so near expiring, as not to make it worth his while to procure that writ. His situation may have so changed in the mean time as not to make repossession desirable. It indicated, therefore, no admission as to the merits.

Judgment reversed, and now judgment for the plaintiff on the point reserved.


text:
    Campbell versus O’Neill.
    1. A reservation can be only of pure questions of law, and the facts should either be agreed by the parties or found by the jury, so as to appear by the record or in the bill of exceptions.
    2. Without this, judgment cannot be entered non obstante veredicto.

    3. The only exception is, reserving whether any evidence has been given of some fact essential to the case of either party.
    4. What are fixtures is a mixed question of law and fact.
    February 21st 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Pfius.
    Error to the District Court of Philadelphia: No. 226, to January Term 1870.
    This was an action of trover, brought November 80th 1867, by Patrick Campbell against John O’Neill, for one steam-boiler, one steam-engine, one still complete, one doubler, one worm and worm-tub and one large tank.
    In June 1866, the defendant O’Neill and John W. Cullen were in partnership in the distilling business, they purchased a lot of ground and erected on it buildings in which the articles the subject of this suit were put up for the purpose of carrying on their business. In December of the same year, Cullen purchased the defendant’s interest, real and personal, in the concern for $2000, and agreed to pay the firm debts, at the same time he gave the defendant a mortgage on the real estate bought, for $3000, to secure the purchase-money and also as indemnity for the payment of the firm debts. Cullen in March 1867 rented the real estate to the plaintiff, sold him the fixtures, and gave him possession. Judgments were recovered against the firm for firm debts under which the real estate was sold October 26th 1867, to the defendant, the articles in controversy being in the buildings. The defendant took possession of the premises and refused to deliver these articles. The plaintiff gave evidence as to the mode of attachment of these articles and of their value.
    The defendant submitted the following points :
    1. If the jury believe that the building, with tbe appertenances, erected by John W. Cullen and John O’Neill, upon the lot of ground situate at the junction of Tenth street and Passyunk road, was intended to be used by them (either in whole or in part), as a distillery, or for the purpose of carrying on the business of distilling, and the steam-engine, boiler, still, doubler, mash-tubs, fermenting-tubs, and all other the property mentioned in said plaintiffs’ declaration, were placed by them therein for that purpose, then they became and were parts and parcels of the realty, and as such might be mortgaged with the premises, and were subject to the liens of mechanics and material-men for work done or materials furnished for the erection and construction of said premises.
    2. Upon a sale of the said premises by the sheriff that would discharge the lien of such mortgage, or the liens of mechanics and material-men, a deed by the sheriff to the purchaser thereof would vest a good title to the property in said declaration mentioned in said purchaser, without being specially named in such deed.
    3. John O’Neill, the defendant, became the purchaser of said premises at such sheriff’s sale, and having received a deed from the sheriff for the said premises, the title to all the property aforesaid passed to him by the said deed, and therefore the plaintiff cannot recover.
    Hare, P. J., charged: — “ Cullen and the defendant were in partnership, and subsequently the defendant sold out his interest to Cullen, and executed a deed to him, which has been offered in evidence; at the same time Cullen executed a mortgage to defendant : the question arises whether Cullen could, by making a sale of those fixtures, deprive defendant of the security which he held by his mortgage. It was said by, Cullen, that O’Neill knew of this sale, but he did not say that he had notice before taking the mortgage. I doubt whether there is any evidence in this case to estop O’Neill from disputing that sale. Two questions of law arise: whether O’Neill’s title under the mortgage is not better than the plaintiff’s title arising under the purchase from Cullen. Second: whether the title of the purchaser at the sheriff’s sale, under the judgment, is not better than the plaintiff’s title. These points of law I will reserve, and you will find for the plaintiff. and assess the damage, not for what the fixtures were worth in the building, hut for what they would be worth if carried away.”
    March 3d 1870,
    The verdict was for the plaintiff for $800. The court after-wards entered judgment for the defendant on the reserved points non obstante veredicto.

    The plaintiff removed the record to the Supreme Court by writ of error and assigned the entering of judgment for error.

      J. P. O’Neill, for plaintiff in error,
    cited Hill v. Sewald, 3 P. F. Smith 271; Harlan v. Harlan, 8 Harris 303; Coleman v. Lewis, 3 Casey 291; Storch v. Carr, 4 Id. 135.

      J. Blackburn (with whom was J. Cr. Brinclcle), for defendant in error,
    cited: Gray v. Holdship, 17 S. & R. 413; Morgan v. Arthurs, 3 Watts 140; Wademan v. Thorp, 5 Id. 115; Voorhis v. Freeman, 2 W. & S. 390; Christian v. Dripps, 4 Casey 271; Pyle v. Pennock, 2 W. & S. 116; Wright v. Chestnut Hill Iron Ore Co., 9 Wright 475; Hoskins v. Woodward, Id. 42.
   The opinion of the court was delivered,

by Sharswood, J.

— The power of reserving questions of law, which is granted to the judges of the District Court by the 5th section of the Act of Assembly of March 28th 1835, Pamph. L. 90, is a very valuable one. It prevents in many cases the necessity of a venire de novo, where important and novel points are started which cannot be sufficiently examined and considered in the hurry of a trial. But it is a power to be cautiously used so as not to invade the province of the jury. Hence it has been determined that a reservation can only be of pure questions of law, and the facts should either be agreed by the parties or found by the jury, so as to appear of record or in the bill of exceptions, without which judgment cannot be entered non obstante veredicto. There is only one exception to this rule, and that a seeming one merely, where the question is whether any evidence has been given of some fact essential to the plaintiff’s case or the defendant’s defence : Wilde v. Trainor, 9 P. F. Smith 439.

What are fixtures is always a mixed question of law and fact. The things set forth and described in the declaration in this case primfi facie are personal property. Certainly in the hands of the manufacturer of them, or in the possession of any one disconnected with any building in which they may be used, they are so. It is plain that without some other facts, a court cannot say as matter of law that “ one steam-boiler, one steam-engine, one still complete, one doubler, one woran and worm-tub, and one large tank,” are fixtures per se. Nor is the court competent to draw from the evidence, however clear and uncontradicted it may be, an inference of fact necessary to make them so. We must do this to enable us to decide the questions reserved in this case. It is quite probable that these facts were not the subject of dispute in the court below. But that does not dispense with the necessity of putting them on the record as facts, and not merely the evidence of them. Whether the title of the defendant under the mortgage, or under his purchase at sheriff’s sale, was or was not better than the title of the plaintiff, depended primarily upon the question whether the articles for the conversion of which the action was brought, were realty or personalty — in other words, were or were not fixtures.

The defendant’s first point was properly framed and ought to have been answered. It submitted to the jury the question whether the building at the junction of Tenth street and Passyunk road was intended to be used as a distillery, and whether the property mentioned in the declaration, was placed therein for the purpose of carrying on the business of distilling. The 2d and 3d points of the defendant were improper because not based upon a similar hypothetical statement of fact.

We are of opinion that there was error in these reservations, and that consequently the judgment for the defendant entered by the court below non obstante veredicto was erroneous.

Judgment reversed, and venire facias de novo awarded.


author: by Agnew, J.

text:
    Cadwalader’s Appeal.
    1. Trustees, of whom Chew, who was beneficially interested in the trust, was one, sold land to H. by articles, reserving minerals, &c. H. paid part of the purchase-money. Other trust lands had been sold with similar reservations. The court decreed a sale of the subjects of the trust remaining unsold, the trustees being allowed to bid. The trustees sold the lands and also the reservations in lands theretofore sold. The tract sold to H. was exposed and sold to Chew for a sum less than the balance due by H. Held, that Chew bought only the minerals, which had been reserved in the agreement with H.
    2. As trustee, Chew knew of the sale to H. and his payment on account.
    4. Although he was permitted to bid, he was bound to make a fair sale and act on his knowledge of the sale to H.
    4. A trustee permitted to bid at his own sale, must act within the strictest line of his responsibility.
    5. It was a breach of duty to sell the claim on H. and pay less for it than its actual value.
    6. The permission to bid did not allow Chew to speculate on the trust.
    February 21st 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from Nisi Prius: No. 6’5, to January Term 1868.
    George Cadwalader, William Rawle and Benjamin Chew, Jr., were trustees under a decree of the Circuit Court of the United States of certain lands in Lycoming, Luzerne and Bradford counties. The land consisted of vacant and unimproved tracts, some of which were supposed to contain minerals. The trustees had made private sales of some of these lands, and reserved the minerals and mining privileges. They resided in Philadelphia, and transacted the business of the trust through Robert Faries, who resided in Williamsport, Lycoming county. On the 25th of May 1854, by articles of agreement executed for them by Mr. Faries, they contracted to sell to J. W. Heylman “ part of tract No. 1758, containing 181 acres, reserving all minerals and mining privileges, for five dollars per acre, which the said J. W. Heylman hereby agrees to pay as follows, to wit: One-third part thereof cash on the first day of June next, with interest from the date of this agreement, and to give a bond and mortgage and warrant of attorney on the premises for the remaining two-third parts thereof payable, one-half thereof on the first day of June 1856, with the lawful interest from the date hereof, and the other half thereof on the first day of June 1856, with lawful interest.”
    Heylman, June 6th 1854, paid $300 on account of the first payment, a receipt for which by Mr. Faries, was endorsed on the articles.
    On the 18th of March 1856 a petition on behalf of parties interested in the trust was presented to the Court of Common Pleas of Philadelphia, praying that the trustees should be required to sell the remaining subjects of the trust. A decree was accordingly made, and Benjamin Chew, one of the trustees, he being also beneficially interested in the trust, was allowed to bid at the sale. The property was advertised and exposed to public sale on the 24th of June then-next, in two classes. The first class included or was designed to include all the lands intended to pass without the reservation of minerals: the second, those tracts “ out of which mining and mineral privileges have been reserved,” and also the mineral privileges which had been reserved out of lands previously sold. In the first class was included the 181 acre tract, sold to Heylman. This tract was sold to W. L. Marshall, Esq., attorney for Benjamin Chew, for $248.87. The order of sale was so returned, and on the 12th of July 1856 the sale was confirmed. On the 12th of November the trustees made a deed to Mr. Marshall, and he conveyed to Chew, April 1st 1857. The deeds to Marshall and Chew were both recorded in Lycoming county, October 2fith 1859. On the 3d of October 1863, Heylman paid to Judge Armstrong, of Williamsport, attorney for the trustees, $346.05, on account of the purchase-money, the receipt for which was endorsed on the agreement and signed by Judge Armstrong as attorney for the trustees: In November 1865 Heylman called on Faries, who continued to act as agent of the trustees, and paid him $642.49, the balance of the purchase-money of the 181 acres with interest and demanded a deed. Faries had a deed prepared, ■which contained no reservation of the minerals, &c., and sent it to Philadelphia where it was executed by the trustees, returned to Faries and by him delivered to Heylman. Heylman then endorsed the following receipt on the agreement:
    “Received, Dec. 6th 1865, of Rawle, Oadwalader and Townsend, trustees, &c., the deed made in pursuance of the within agreement. J. W. Heylman.”
    On the 9th of March 1868, the trustees filed a bill in the Supreme Court of the Eastern District against Heylman and the parties interested under the will of Chew.
    The bill set out substantially the foregoing facts.
    It further averred that in the sale under the decree of the Court of Common Pleas, the 181 acre tract was accidentally included and by mistake exposed to sale, and that after the sale to Marshall, the clerk of the trustees informed Chew of the previous sale to Heylman, but was told by Chew that Heylman had abandoned his contract, and that he would take the responsibility; that subsequently Rawle and Chew two of his trustees died, and W. H. Rawle and J. B. Townsend were substituted; that when Heylman demanded the deed, Faries was ignorant of the deed to Marshall ; that Cadwalader was absent, and the other trustees who executed the deed to Heylman were ignorant that before their coming into the trust the 181 acre tract had been conveyed to Marshall.
    The bill then alleged that, by reason of the mistake in the conveyance to Heylman and the mistaken or accidental sale to Chew, the complainants may have rendered themselves liable on some of the covenants in the said deeds contained, to which liability they ought not, in equity, to be subject; and it further alleged, that Chew purchased the said tract with the fullest notice of the agreement with Heylman, and the only right which he acquired was the right to the mineral privileges in said tract, or the right to have his purchase-money returned to him; and that the complainants have so offered to return the said purchase-money.
    The prayers were: 1. That the conveyance to Heylman be reformed, so that the same may conform to the original intention of the parties, as expressed in the articles of agreement.
    2. That the trustees and devisees under the will of Benjamin Chew, may be decreed to release and confirm unto Heylman the title to the said tract, reserving the minerals and mining privileges as aforesaid. »
    8. That the deed to Marshall and from Marshall to Chew be reformed, so as to embrace only the mines and mining privileges remaining in the trustees after the execution of the articles of agreement with Heylman.

      4. That the defendant Heylman release and confirm to the representatives of Chew the mines and mineral privileges in said tract, the complainants hereby offering to the said representatives of the estate of Benjamin Chew, deceased, the option to retain the said mining privileges in the said tract, or to receive from the complainants the amount paid by the said Benjamin Chew for the purchase thereof.
    6. General relief.
    The answers of the representatives of Chew disclaimed knowledge of any mistake in the sale last mentioned, and of the alleged conversation between Benjamin Chew, and the clerk of the trustees; denied that in November 1865, Robert Earies was ignorant of the conveyance from the trustees to Marshall; disclaimed knowledge of the last payment, made by Heylman to Earies; admitted that Chew had knowledge of the outstanding agreement with Heylman, but averred that Chew considered the said agreement cancelled, either in law or in fact.
    They further averred that the agreement with Heylman is so tainted with gross negligence and laches on his part, that it could not have been enforced at the time the trustees made the deed to him in 1865; and also, that the right of Colonel Chew was not merely to have his purchase-money returned, but that he acquired all the right and title of the trustees in the said tract; and admitted the offer to return the purchase-money.
    The answer of Heylman, averred willingness to give a bond and mortgage, as required by the said articles; that he went into possession of the 181 acres, under and in pursuance of the said articles, and made valuable improvements thereon; and that years before the conveyance of 1865 was delivered to him, he had demanded his deed, and offered to pay the balance of the purchase-money; that he the said Heylman accepted precisely such a deed as the trustees offered him. On December 6th 1865, he sold and conveyed the tract to E. M. D. Levan; and subsequent conveyances were made by Levan to other parties.
    He denied that there was any mistake in the conveyance from the trustees to himself.
    A replication was filed and an examiner appointed. George Bull, Esq., was appointed master.
    The master amongst other things reported : — •
    * * * “ When the trustees entered into the article of agreement with Heylman, they parted with the equitable estate, and Heylman could obtain from them the legal estate only by complying with his contract. He did not comply, and after the time had expired within which he had the right to tender a bond and mortgage, the trustees sold and conveyed the legal title to Benjamin Chew. This sale passed to Mr. Chew the legal title to this tract of land, minerals and all, subject to the equities of Heylman.

      “ Whenever Heylman or his assignees shall come forward and pay to the trustee or devisees of Benjamin Chew the balance of the purchase-money remaining unpaid at the date of the conveyance of the legal title to Chew, he will be entitled to a conveyance of the legal title called for by his article of agreement, if his equity has not been lost by his own laches, but not before.
    “ In the mean time, as defendant Heylman has not paid the balance of his purchase-money to the holders of the legal title, according to the terms of his contract, the latter are entitled to bring an action of ejectment for the land, and the payment made by Heylman to the trustees would be no defence to such a suit. At the time defendant Heylman made his payments to the trustees there were two deeds on record in the county of Lycoming, which were a standing notice to him and to all the world, that the trustees had parted with the legal title, and had no right to receive any portion of the unpaid purchase-money. At the time of the sale to Benjamin Chew, the trustees held the legal title as security for this purchase-money, and they had a perfect right to sell it, and having done so, their right to receive the money passed to their vendee, who took the title to the land subject to Heylman’s equity.” * * *
    “What standing have the plaintiffs in a court of equity, to ask for a reformation of these two deeds ? They sold nothing to Marshall but what they had a right to sell, and they conveyed nothing else, i It is argued by the plaintiffs, and some evidence is produced to show that Chew had actual notice of the Heylman contract. But this does not vary the case. It is quite likely that Chew did know of it; being a party to it, be was visited with notice. He may have purchased with that contract in view, knowing that he would be entitled either to the unpaid purchase-money or the land. If he failed to obtain the purchase-money, he would pursue the land, and his right to do so cannot be questioned.
    “ No relief can be decreed under this prayer of the bill, because there is nothing whatever in Chew’s deed that requires reformation. It is alleged, it is true, by the plaintiffs, that this 181 acre tract was included in the sale by mistake. The evidence to support this averment is not sufficient. But suppose it was proved, who was damaged by it ? Not the trustees, because they received Chew’s purchase-money, and executed a deed to him after they had full notice. It was the clerk of the trustees, who called Mr. Chew’s attention to the Heylman contract, as appears by his testimony. Consequently they delivered the deed to Chew and received his purchase-money with open eyes, and it does not lie in their mouths to ask the interposition of a court of equity to relieve them from the consequences; particularly as the act was one from which no evil consequences were likely to flow. The representatives of Chew have suffered no damage, because their rights are unimpaired, and the conveyance having been accepted by Chew, and the purchase-money paid by him with full notice of Heylman’s equity in the land, he, or his representatives, would be in no position to ask for a rescission of their contract, if they were not cut out by lapse of time. Heylman suffered no damage, because his position remained the same. He could have tendered the balance of his purchase-money to Chew, and demanded a deed, which Chew would have been bound to execute. He was placed in no worse position by the transfer to the legal title.
    March 10th 1870,
    “ As this case now stands, there is nothing in it requiring relief in equity. In effect, the plaintiffs are asking the court to do for them what they can easily accomplish themselves without the aid of any judicial act whatever. The plain road out of the difficulty is, for the trustees to tender to Heylman the purchase-money they have improperly received from him, and leave him and his co-defendants to their mutual remedies at law, which are complete and adequate. The only complication in the whole transaction arises from the mistake made by Heylman in paying his money to the wrong party.” * * *
    The master reported that the bill be dismissed with costs.
    After exceptions, the report was confirmed pro forma at Nisi Prius, and the bill" dismissed with costs.
    The plaintiffs appealed, assigning for error the decree of dismissal, and that the court did not make a decree according to the 2d and 3d prayers of their bill.

      Gr. T. Bispham and B. K. Price, for appellants.
    — Chew could not buy at his own sale and speculate upon the trust property: Fox v. Mackreth, 1 Lead. Cas. in Eq. 92; Fisk v. Sarber, 6 W. & S. 18; Chorpenning’s Appeal, 8 Casey 315; Beeson v. Beeson, 9 Barr 279. Chew was no a purchaser without notice; Heylman was in possession; Chew himself had been the vendor : Krider v. Lafferty, 1 Whart. 303; Billington v. Welsh, 5 Binn. 129. The interest of a vendor, under articles with unpaid purchase-money, is in some respects analogous to a mortgagee; the assignment of whose interest in the land without an assignment of the debt is of no use: 4 Kent Com. 186 ; Craft v. Webster, 4 Rawle 242.

      Gr. W. Biddle, for appellees, submitted no paper-book, but referred to the master’s report.
   The opinion of the court was delivered,

by Agnew, J.

— We think the master made a plain mistake of fact in his report on the evidence. He treats the public sale of the 181 acres, part of tract No. 1758, in Lycoming county, as a sale to Colonel Benjamin Chew, of the entire legal title; and thence infers the duty of Heylman, the former purchaser of the trustees at private sale, to pay to Chew the unpaid purchase-money. But it is impossible to close our eyes to the fact that the sale to Colonel Chew of the entire tract of 181 acres was founded in mistake, and was contrary to his duty as a trustee. He was one of the three trustees who had sold this tract to J. W. Heylman by articles dated May 25th 1854, at $5 per acre, amounting to $905; reserving all the minerals and mining privileges. On this contract Heylman had paid $300, June 6th 1854, and had entered into possession and made improvements. It is not material whether Colonel Chew participated actively in the sale to Heylman or not. As a trustee he knew or was bound to know of the sale, and payment on account of it. The petition for the sale of the trust lands in 1856, prayed expressly for a sale of all of the subjects of the trust remaining unsold; and the decree of the court was made accordingly, and Colonel Chew was one of the trustees ordered to make the sale. His being permitted, under the order of the court, to bid at the trustees’ sale, to protect his beneficial interest in the subject of the trust, did not diminish his duty as a trustee to make a fair sale, or eradicate the knowledge to be imputed to him of the former sale of the trustees to Heylman. A trustee, thus permitted to bid at his own sale, must act within the strictest line of his responsibility. His character as a bidder cannot be permitted to derogate from his duty as a trustee. The tract of land sold to Heylman did not fall within the purview of the petition and order of sale. As to it conversion had already-taken place, and the order was not intended to give an authority to resell it. To comprehend it within the unsold lands was an evident mistake, excepting as to the minerals and mining privileges. The claim on Heylman was for purchase-money, and the legal title was held in trust for him. The whole sum of $605 unpaid and interest were available to the trust. What sort of propriety would there be in permitting a trustee to bid in for himself the right to receive that sum belonging to his trust for the sum of $248.87 ? It was a breach of duty to sell the claim on Heylman, and still worse to pay for it less than half of its actual value. It is very evident that the permission to bid to protect his interest in the unsold lands, did not allow him to speculate thus on the trust confided to him. To avoid such' a conclusion against him, we are bound to believe the sale of the entire 181 acres was a mistake, as doubtless it was, by including the tract in the first class of lands wholly unsold, instead of the second class, consisting of the reserved mining rights.

The decree of the Court of Nisi Prius must be reversed, and a decree entered for complainants, with costs. Let a decree be drawn up reforming the deed to William L. Marshal], so as to confine its terms to the unsold minerals and mining privileges of the 181 acres sold to Heylman, and confining to the parties claiming title under Colonel Benjamin Chew the sale of the said minerals and mining privileges in the said tract of land; or permitting them to surrender the deed to William L. Marshall, to be cancelled on a return to them of the purchase-money and interest paid by Colonel Chew on the sale to Marshall, costs to be paid by parties defending under said deed to William L. Marshall.


text:
    Tilford versus Fleming.
    1. Attornment is unnecessary in Pennsylvania.
    2. Attornment is not required to enable the alienee to be restored to the estate when the tenant’s term is ended.
    3. An alienee may proceed in his own name to obtain possession of premises let by his alienor.
    4. Attornment is not the initiation of a new lease.
    5. Attornment is merely the assent of the tenant to the landlord’s alienation, and the acceptance of the alienee as his landlord; the lease is untouched in other respects.
    6. An attornment need not be set forth in the justice’s record; no more is necessary than the allegation of the conveyance by the lessor to the plaintiff.
    February 23d 1870.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the Court of Common Pleas of Philadelphia: No. 234, to January Term 1870.
    This was a proceeding commenced the 25th of June 1869 by John Fleming against S. Tilford, before Alderman George Moore, to recover possession of premises in Sansom street, occupied by the defendant.
    The record of the alderman set out that Fleming had complained on oath that the Franklin Fire Insurance Company was the owner of certain premises situate on the north-east corner of Cope and Sansom street, in the city of Philadelphia, and was in quiet, peaceable possession thereof on the 24th day of June 1868, on which last-mentioned day they demised said premises to a certain Mrs. S. Tilford for one year, and so on from year to year, at the rent of $62, and that Mrs. Tilford, by virtue of said demise, entered into possession and held the same during the said term, and is still possessed of the same; that the term is fully ended; that the Franklin Fire Insurance Company, on the 18th day of July 1868, conveyed the premises to Fleming in fee, and Mrs. Tilford attorned to him; that Fleming being desirous to repossess the said premises, on the 3d day of December 1868, required Mrs. Tilford to leave the same at the end of her current term, ■which notice was given three months previously to the expiration of her term, and Mrs. Tilford had refused, &c.
    July 7th 1870,
    “ And now, July 1st 1869, the parties appeared. After hearing the plaintiff, his proofs and allegations, the said alderman finds the above complaint is in all particulars just and true, and enters judgment against said lessee, that she shall forthwith deliver possession of said premises to the said John Fleming, the plaintiff, and gives judgment for the sum of $14.48 damages, &c.”
    The defendant removed the proceedings to the Court of Common Pleas by certiorari.
    Her exceptions there were:—
    1. The complaint and alderman’s record do not agree. The complaint sets forth that the defendant was the tenant of the Franklin Fire Insurance Company. The alderman’s record finds judgment of ouster in favor of John Fleming.
    2. The suit should have been brought in the name of John Fleming, assignee.
    3. The defendant had not the required notice to quit, it being to surrender possession of the said premises under grantor’s letting of June the 24th 1868 to John Fleming as landlord; whereas the said John Fleming’s .right of letting did not accrue till July the 18th 1868, at which time defendant became his tenant, and in which form suit has been brought, and judgment for possession entered July the 1st 1869, seventeen days before the termination of the year.
    The Court of Common Pleas (Allison, P. J.,) dismissed the exceptions, and affirmed the judgment of the alderman.
    The defendant took a writ of error. She assigned for error, the affirmance of the judgment.

      ■J. L. Husband, for plaintiff in error,
    referred to Acts of December 14th 1863, Pamph. L. 1125, Purd. 1341, pl. 1; February 28th 1865, Pamph. L. 263, Purd. 1399, pl. 2; April 28th 1868, Pamph. L. 104, Purd. 1512.

      T. J. Barger, for defendant in error,
    referred to the same acts; also to Acts of April 11th 1866, Pamph. L. 97, Purd. 1431, pl. 1; February 20th 1867, Pamph. L. 99, Purd. 1465.
   The opinion of the court was delivered,

by Agnew, J.

— The ceremony of attornment having its origin in the feudal system of the middle ages, which esteemed it unreasonable to subject a feudatory to a new superior without his consent, is no longer necessary even in England, and is wholly unsuited to our condition. The statute of 4 Anne, c. 16, § 9, making all grants and conveyances of the remainder or reversion good and effectual without the attornment of the tenant, is in force in this state: Roberts’s Dig. 45. Attornment being unnecessary, it is not required to enable the alienee to be restored to the estate when the tenant’s term is ended. To prevent difficulty, however, the Act of 20th February 1867 authorizes the owner of the premises, who has acquired title by descent or purchase from the original lessor, to proceed under the Act of 14th December 1863, and Act of 11th April and its supplement. John Fleming was therefore the proper party to maintain the proceeding before the alderman; and it was not necessary he should be called assignee on the record. The complaint recites his title as assignee, which is sufficient.

It is a mistake to suppose that the attornment is the creation or initiation of a new lease, and that the term begins with the day of attornment. It is merely the assent of the tenant to his landlord’s alienation, and the acceptance of the alienee as the new landlord, leaving the lease itself untouched in other respects. It was not necessary to set forth the attornment in the record at all; the law being satisfied with the allegation of the conveyance by the lessor to the plaintiff, as the evidence of his right to recover possession.

Finding no error in the record, the judgment is affirmed.