text:
    Porter’s Estate.
    1. A testator after directing his real estate to be sold and his securities to be collected, directed that from §3000 to §5000 should be expended for the improvement of burial lots belonging to him in a cemetery, in building a wall around his lots, and in procuring a monument; he gave $50,000 to erect a college, procure a library, &c., and §6000 additional to purchase books, &c.: he then directed “ after my real estate is sold and conveyed, the several bequeathments by me made from my estate paid, that there be a proportionate amount expended in the further improvement of the cemetery lots before mentioned ; and also a proportionate amount expended in the college or university buildings, library, &c.” Held, that the proportions were to be as fifty, six and five, calculated on the bequests to cemetery, library and college.
    2. The $5000 to the cemetery having been exhausted in building the wall, the executors were allowed to retain an additional sum to build a monument, under the direction for “ building a wall * * * and in procuring a suitable monument,” the monument being the main object of that bequest.
    3. An executor may erect suitable gravestones at the grave of a decedent, although there be no direction in the will to do so.
    4. McG-linsey’s Appeal, 14 S. & R. 64, recognised.
    October 15th 1874.
    Before Asnew, C. J., Sharswood and Mercur, JJ.
    Appeal from the Orphans’ Court of Allegheny county: No. 200, to October and November Term 1874. In the estate of John M. Porter, deceased.
    The decedent died in December 1865, on or before the 4th of that month,having made a will, dated November 30th 1865, and seised and possessed of a large real and personal estate.
    He directed a large portion of his land designated to be divided into ten lots and sold by his executors. He directed other lands, also designated, to be divided into sixteen lots and sold also; a farm on other lands also to be sold, allowing William 'Irwin the tenant to remain on it three years, he paying the rent, &c.
    “ I also direct the farm purchased of J. P. Yantine, now occupied by E. Burchfield, to be sold by my executors, * * * and the proceeds of the sale to be given and applied to the academy or college hereinafter mentioned, to be expended in the extension of the library or improvements to the buildings, as the trustees may deem best. I also direct that the farm adjoining said Burchfield and occupied by Hezekiah Irwin shall be sold in like manner as the farm occupied by his father as before directed. Also, I direct that the Martin farm he sold as above stated in respect of the Yantine farm, and the proceeds applied as therein directed. And it is my wish that the said Hezekiah Irwin and E. Burchfield be permitted to stay in the places for three years after my death, upon their regularly paying their rents. * * *. My interest in the - Horse Creek and Tarentum Oil Company I direct to be sold to the best advantage. * * *
    “ The notes, mortgages, judgments and accounts which I hold against sundry and divers persons, I desire and direct to be collected. * * * I also direct that my interest in the Himelwright property be sold by my executors, * * * and the proceeds to be applied as hereinafter directed. I also direct that the Walnut Bend property in Cornplanter township, Yenango county, be sold and the proceeds be applied as hereinafter directed. Also, I direct that all my interest on Hickory be sold. Also, my interest in the Widow McClintock farm; also my interest in the Fleming farm, being my interest in about nine and a half acres. Also, I direct that my interest in one thousand acres of land in Lewis county, Kentucky, bought from a man by the name of Hallert, be sold. * * * Also, I direct that my interest in the Porter, Donnel & Co. property in Ohio, be sold, both real and personal. * * * I now give to Nancy Jane Porter McCall, my adopted sister, the house and lot I now live in, also the lot which I bought from John Adams, * * * for and during her natural life, together with all the personal property in and about my said dwelling, which shall not be by me otherwise disposed of. Also, I bequeath to my said adopted sister, N. J. P. McCall, twelve thousand dollars in seven-ten United States bonds.
    “ I also direct that from three to five thousand dollars be expended in the improvement of the burial lots belonging to me in the Prospect Cemetery, in building a cut-stone wall around the lower end of said lots, and in procuring -a suitable monument, and to have inscribed on said monument the date of the birth and death of my father, mother, brothers and sisters, and also of my own birth and death ; and at the death of my adopted sister, N. J". P. McCall, to have her name lettered in the same manner, as the adopted daughter of R. -S. Porter and Nancy Jane Porter, I also give and bequeath the sum of fifty thousand dollars, to be expended in the purchase of a lot or lots, and the erection of a college or university, with library rooms, &c., to be located in ornear Tarentum, together with my library, and six thousand dollars additional to be expended in the purchase of useful books for the library ; and it is my wish that the said college or university be known as the Porter University or College. And I do hereby appoint Rev. Joseph Horner, &e., trustees to purchase said lot or lots, and for the erection of the buildings, procuring a charter and library, with the general management of the whole concern, with power, if necessary, to add to their number and devise suitable ways for the election or appointment of their successors. * * *
    “ It is my wish and intention, and I also direct, that after my real estate is sold and conveyed, the several bequeathments by me made from my estate paid, that there be a proportionate amount expended in the further improvement of the cemetery lots before mentioned; and also a proportionate amount expended in the college or university buildings, library, &c.
    <£ Also, I direct that after the death of the said N. J. P. McCall, that the house and lots bequeathed to her for and during her natural life, be sold and conveyed by my executors, proceeds of such sale be applied to the benefit of the said college or university, including the library in and for the use of said university.” * * *
    There were other bequests in the will which it is not necessary to particularize.
    At the instance of the heirs and next of kin of the decedent the gift for the college, library, &c., was declared void as being a gift for a charitable use, and therefore within, the prohibition of the Act of April 26th 1855, sect. 11, Pamph. L. 831,1 Br. Purd. 208, pi. 23, the will having been made within a month of the testator’s death.
    The executors settled three accounts; the third being that involved in this controversy.
    In this account the executors took credit for “ amount retained on account of cemetery under will of testator, being the proportion set apart for the same, — $6500.”
    The balance for distribution appearing on the account was $27,451.57.
    Exceptions were filed to the account, one of which was that the accountants should not be allowed a credit for $6500 retained on account of the cemetery.
    William Blakely was appointed auditor to pass upon the exceptions and report distribution.
    On the hearing before him the marble-mason testified that he did the stone work for the fence of the cemetery lot- under contract for $4200, and lost money by the job, and that a monument corresponding with the fence should cost not less than $5000. The auditor found that the whole sum which jvas to be appropriated to the bequest to college, &c., was $61,643.42; he also found that in a former account the executors were allowed a credit of $5000, and that that was all the cemetery was entitled to receive until the other bequests should be paid.
    The auditor sustained two of the exceptions, one of which was to the allowance of the sum of $6500, retained on account of cemetery; and he thus increased the balance against the executors to $36,197.54. He reported also that the bequests to the charity —now payable to the next of kin — should be first paid to them before the “ proportionate amount ” of the residue should be distributed ; that the next of kin were entitled to $31,043.33 out of the present account, in addition to what they had theretofore received ; which would leave $3,236.62 to be divided between the next of kin and the cemetery in “proportionate amounts,” as $61,643.42, the total amount of bequests to the college, is to $5000, the total amount of bequest to “Prospect Cemetery,’.’ giving to the heirs the additional sum of $2993.79 and to Prospect Cemetery the sum of $242.83.
    The executors filed exceptions to the report, covering the surcharges made by the auditor against them.
    The court sustained one of the exceptions but overruled that to the disallowance by the auditor of the credit of $6500 for the cemetery lot.
    In delivering their opinion the Orphans’ Court said: * * *
    “We are of opinion that the auditor was correct in surcharging the account with the $6500 for which the executors claimed credit; but in sustaining the auditor’s report in this respect, we do not decide that the contemplated improvement of the cemetery lot, including the erection of monument, &c., should not he carried out. It appears that a considerable portion of the estate remains unsettled and will be brought into the next account for distribution; and it is probable that the proportionate share of that fund to which the executor will be entitled for the further improvement of the cemetery lot, will be sufficient for that purpose. If it is not, it is to be hoped that the heirs at law will not be so far lost to every sense of propriety as to object to the appropriation of a sufficient sum to mark, in a suitable manner, the resting place of their relative and benefactor. The beneficient design of the testator, as expressed in his will, was defeated, on the ground that his will was not executed as long before his decease as the statute requires. This of course has enured to the benefit of the heirs at law, some of whom appear to be unwilling to see a reasonable amount expended in the erection of a monument. Such a course reflects but little credit on such of them as pursue it. A monument suitable to the estate and condition of the testator should be erected, and if the “ proportionate amount ” mentioned in the will should prove inadequate, a sum sufficient to supply the deficiency should be appropriated out of the general funds of the estate. After surcharging the account with the $6500, we have the sum of- $33,951.57 as the balance for distribution.” * * *
    After stating some other items to be considered in ascertaining the amount for distribution the court proceeded :
    “Deducting this from the amount found by the auditor, as above stated, we have the sum of $22,952.16 yet to be received by the distributees before the ‘ proportionate amount’ of the residue is given for the further improvement of the cemetery, &c. This last sum, deducted from the net balance for distribution, as above, leaves the sum of $9072.82, of which a proportionate amount, as directed by the will, shopld be appropriated for the further improvement of the cemetery lot. In endeavoring to determine what is meant by ‘ a proportionate share,’ we find that in the clauses of the will, immediately preceding the one in which this expression is used, the testator gives $5000 to be expended in the improvement of this burial lots, &c., and — including his private library— the sum of $56,203.42, to be expended in college or university buildings, library, &c. We are of opinion that it is to these sums respectively that the testator refers when he speaks of ‘ a proportionate amount.’ It is true that he makes other provisions for the college, such as directing the proceeds of the property devised to his adopted sister for life to be applied after her death to the further improvement of the college or university buildings and library, also the proceeds of the Vantine farm, &c. ; but none of these were to be so applied immediately after the death of the testator. The Vantine farm was not to be sold for three years, and the property devised to his adopted sister not until after her decease. We have concluded that in speaking of ‘ a proportionate amount’ the testator had reference to the sums already named in the immediately preceding clauses of the will. If we are correct in this? the proportion of the one would be 8.17 per cent, and the other 91.83 per cent., or $741.24, to the executors for the further improvement of the cemetery, and $8331.54 to the distributees, in addition to the $22,952.16 above mentioned.” * * *
    The court accordingly decreed distribution on this basis.
    • The executors appealed to the Supreme Court and assigned for error, amongst others, that the court had surcharged them with the $6500.

      W. S. Purvianee and S. A. Purvianee, for appellants.

      W. W. Shafer, for appellees.
    November 2d 1874.
   Mr. Justice Sharswood

delivered the opinion of the court,

The testator, John M. Porter, intended the bulk of his estate to be appropriated to three objects: 1. The purchase of a lot or lots and the erection of a college or university, to be located in or near Tarentum, for which purpose he gave and bequeathed the sum of $50,000. 2. The purchase of useful books for the library, for which $6000 were to be expended. 3. The improvement of the burial lots belonging to him in the Prospect Cemetery, in building a cut stone wall around the lower end of said lots, and in procuring a suitable monument. For this last purpose he directed that from 3 to $5000 should be expended. $5000 may then be assumed as the amount to be appropriated to the cemetery. He then adds the clause which has given rise to this controversy. “ It is my wish and intention, and I also direct that after my real estate is sold and conveyed the several bequeathments by me made from my estate paid, that there be a proportionate amount expended in the further improvement of the cemetery lots before mentioned; and also a proportionate amount in the college or university buildings, library, &c.”

What does the testator refer to as intended to fix these proportions? We think evidently the clause immediately preceding, and that the proportions in which the residue of his property after the real estate was converted into money, the debts discharged, and the several bequeathments paid, was to be divided between these three objects, were to be as fifty, six and five. It is true that in a former part of his will he had directed certain real estate to be sold and the proceeds to be specifically applied in the extension of the library or improvements to the buildings of the college, as the trustees may deem best. But this was not to be until three years after his death, and it is very significant that these amounts were not for the original erection but for extension, and were to be appropriated to the buildings or library, according to the discretion of the trustees. No proportion between these two objects was to be observed.

Unless we adopt the proportions indicated we have no. other figures in the will to which recourse can be had. It is argued, however, that the clause in controversy relates only to the proceeds of the real estate. Whatever effect such a construction, if legitimate, would have upon the ultimate result, we think it inadmissible. There is certainly nothing in the language of the will, in any construction which can be put upon it, which confines the direction to the proceeds of sale of real estate. It fixes the time for the apportion ment to be after the real estate is sold and conveyed, but does not confine the provision to the proceeds. There was no error then in the construction placed on the will by the court below.

But they refused to allow the executors to retain any amount for a suitable monument to the deceased. It is to be observed that the sum which is to be awarded as the proportionate share to be appropriated to the cemetery is only, in the words 'of the testator, for its “further improvement.”

He evidently contemplated that his original directions upon that subject would have been carried out when the ultimate division of the surplus would take place. It appears that of the $5000 originally retained by the executors on the settlement of the first account, only $242.83 remained, yet no monument to the deceased had been built. The whole was expended in the erection of a cut-stone wall around the lower end of the lots, and other improvements. No complaint has been made of the executors in this respect. We may conclude that it was a mistake on the part of the testator as to the cost of such a wall. It is not uncommon for such mistakes to be made. Mr. Girard never expected that the unsightly stone wall which he directed to be built around his college grounds Avould cost several hundred thousand dollars. The monument on which was to be inscribed the date of the birth and death of his father and mother, brothers and sisters, and also of his own birth and death, and of his adopted sister, was evidently the main object of the bequest. It was not merely the gratification of personal vanity. It Avas a memorial of affection to those whom he had loved, and Avbose memory he had cherished. It Avould be cruel to disappoint such an intention. This court has recognised the expense of a suitable tomb-stone over the grave of a decedent to be a legitimate item of credit in the accounts of an executor, even when no provision on the subject was made in the will of the testator: McGlinsey’s Appeal, 14 S. & B.. 64. The stone-cutter who built the fence, and who says he lost money by the job, testifies that “ a monument corresponding with the fence would cost $5,000.” Under all the circumstances of the case Ave think the executors ought to have been allowed to retain that amount, to be applied Avith the small balance on the former appropriation of $5000 to that purpose. The testator was a gentleman of large estate, and the main purpose of his avíII in the erection of a college and establishment of a library in connection with it, has been defeated by his death Avithin a calendar month after the execution of his will, so that his heirs at laAV and next of kin, who have become entitled to these bequests, cannot be regarded as special objects of his bounty.

Decree reversed and record remitted, that the distribution may be aAvarded according to this opinion. The ' costs of this appeal to be paid from the estate.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Holmes’s Appeal.
    1. In negotiating for the sale of a farm, on the inquiry of the vendee who declined to purchase unless the neighborhood was not sickly, the vendor assured him that it was free from sickness, the vendee then entered into articles for the purchase. The neighborhood was subject to fever and ague. It was held the agreement could not be enforced.
    2. It seems, that such agreement would not be enforced if the neighborhood was unhealthy and the vendee was ignorant of it, even if there had been no misrepresentation by the vendor.
    October 15th 1874.
    Before Agnew, C. J., Sharswood and Merour, JJ.
    Appeal from the Court of Common Pleas of Allegheny county : In Equity. No. 83, to October and November Term 1874.
    The proceeding in this case commenced November 7th by a bill filed by William Holmes against John A. Heckler; it set out:—
    1. That on the 27th of September 1871, the plaintiff and defendant entered into an agreement for the exchange of lands; those of the defendant being in the Nineteenth ward of the city of Pittsburg and of the estimated value of $13,500, the land of the plaintiff was a tract in Allen county, Indiana, containing 240 acres, valued at $12,000, the plaintiff to pay to the defendant in addition, the sum of $1500.
    2, 3. That after an examination of the Indiana land and its title the defendant and his wife said they were well satisfied with it.
    4. That the plaintiff, on the 27th of October 1871, tendered to the defendant a deed for the Indiana land and the sum of $1500, and demanded from defendant a deed to himself for the Pittsburg land.
    5. That the defendant offered to accept the money and the deed tendered by the plaintiff, but refused to deliver to the plaintiff a sufficient deed for the Pittsburg land.
    6. Averred that the plaintiff had always been ready and willing to fulfil his obligations, &c.
    The prayer was that the defendant might be compelled to perform his contract specifically; and for general relief.
    The defendant by his answer admitted the allegations of the first paragraph of the bill.
    He denied that he and his wife had said that they were satisfied with the Indiana land and its title.
    He admitted the tender of the deed and money by the plaintiff, but averred that the tender was accompanied with a demand as the condition of the delivery, that the defendant, should deliver to the plaintiff a deed for the land executed by the defendant and his wife; that defendant was unable to comply with the demand because his wife refused to sign such deed on account of her dissatisfaction with said agreement “and of reports she had heard of the unhealthiness of plaintiff’s land. He at the same time tendered to the plaintiff a deed for his land, executed by himself, but not by his wife, whom he could not prevail on to execute it; the plaintiff refused to accept it, and after that the defendant considered the contract rescinded.
    He averred that the plaintiff’s land which was to be conveyed to him clear of encumbrances, was encumbered by a lease, &c. Defendant further averred, that at the time the agreement for the exchange of lands was made, the plaintiff, for the purpose of inducing the defendant to enter into the agreement, represented that the Indiana land was free from sickness, whereas the defendant has since ascertained that fever and ague prevail there, and had he known this before signing the agreement, he would not have signed it; his design in desiring to purchase the land being to remove his family there and make it a permanent home for himself and family. He averred that the plaintiff misrepresented the character of the land in other particulars, which need not be specified.
    The plaintiff filed a replication, and Jonas B. Butterfield, Esq., was apppointed examiner and master.
    The question on which the case was decided in the Supreme Court related to the healthiness of the neighborhood in which the Indiana farm was situate.
    The plaintiff testified before the examiner that the locality was not sickly; fever and ague did not prevail there; the location was as healthy as any other .part of the state.
    He further testified: “ Neither my wife nor myself ever had fever and ague. The fever and ague did not prevail there any more than in any other part of the state. The city of Fort Wayne is a healthier city than either Pittsburg or Allegheny.”
    On cross-examination he said : “ I have known fever and ague in that neighborhood. I know there have been such things; I have had it in my own family, but very little, on the farm near the Heckler farm.”
    Joshua Holmes, a son of plaintiff, testified that he had lived near the farm; the general health in the neighborhood was good; it was a healthy farm and locality.
    On cross-examination he said : “I have had the fever and ague a little, I had fever and ague on my father’s place near the Heckler farm. I have known other persons having the fever and ague in that neighborhood. I don’t remember of any person having had it on the Heckler farm; I never heard of anybody having had it there.”
    The defendant testified; that during the negotiation for the farm his wife said. “ If there was any fever and ague there she would not go out; Holmes said there was no fever and ague there at all. We rode out to the farm; my wife told him it must be sickly; he said there was no fever and ague at all there. * * * Mr. Holmes and me were talking about getting possession before the 1st of April; * * * plaintiff came next day; my wife said she -would sooner die than go on such a sickly place, where there were fever and ague.” * * * When defendant requested his wife to execute the deed; she said she would not on account of the fever and ague.”
    William Heckler, a son of defendant testified : “ I told my folks when I returned (from Indiana) that I didn’t like the fever and ague being there. I told them I asked a man if the climate was clbar of sickness; he told me it was not; I told this to my father on my return ; * * * my mother told me as a reason for not signing the deed she had been living out west long enough and did not want to get any more trouble about fever and ague.”
    Anna Heckler, wife of plaintiff, testified: that when plaintiff and. her husband were speaking about the sale of the property, she told plaintiff that if it was sickly and had fever and ague they would not go on to it; if it was healthy they would tako it; plaintiff said there was no fever and ague there, it was a healthy place. When she saw the farm she told plaintiff she thought there was fever and ague there; he denied that there was; she said that the reason she would not sign the deed, was that the farm in Indiana was in a sickly neighborhood; otherwise she was satisfied with the farm.
    A number of witnesses gave evidence tending to prove that the neighborhood in which the Indiana farm was located was sickly.
    The master, in concluding his report, said :
    “ Lastly, defendant claims that equity should not interpose in relief of the plaintiff, because, ‘ the false allegations of plaintiff in regard to fever and ague, as well as to other matters which defendant deemed material, should of themselves prevent a decree in favor of plaintiff.’
    “ The evidence of the existence of ague and fever on the farm of the plaintiff is so meagre and unsatisfactory, as to deprive it, in the opinion of the master, of any value as a defence to a specific performance of the contract. No medical testimony was offered, and no lay testimony sufficiently intelligent or coherent to enable any one to form an opinion as to what diseases were prevalent in Indiana. It is not claimed that defendant placed confidence in the plaintiff as a man of known skill and judgment as to the nature of diseases. His statement as to ague and fever was a mere matter of opinion, open to the defendant for examination and' inquiry through proper channels of information. * * * Outside of this, however, there was no sufficient evidence of the existence of ague and fever. * * *
    “ From a consideration of all the facts and circumstances of this case, and the law in the authorities cited bearing on the same, it appears to the master that the plaintiff is entitled a performance of the contract with exception in favor of defendant of the wife’s dower interest, allowing compensation to defendant for the crop claimed by the tenant under thé*lease.”
    The defendant filed exceptions to the report of the master.
    After argument the court sustained the exceptions and dismissed the bill with costs.
    The plaintiff appealed to the Supreme Court.
    He assigned for error the decree dismissing his bill.

      Bayne $ Magee, for appellant.

      T. 0, Lazear, for appellee.
    October 26th 1874.
   Judgment was entered in the Supreme Court,

Per Curiam.

When the treaty between the parties for the exchange was in progress, both Heckler and his wife were anxious to know whether ague and fever existed in the vicinity of the Indiana farm, and inquired of Holmes as to the fact. He represented that none existed, and that the health of that locality was good in this respect.

The facts show clearly that this was a misrepresentation on his part. It is evident Heckler and his wife made the absence of that disease a material ground for accepting the offer of Holmes. Now clearly, equity, under such circumstances, will not compel a man thus misled to perform specifically a contract of exchange at the risk of his health and that of his family. Even had there been no misrepresentation on Holmes’ part, it would be doubtful whether a chancellor would compel specific performance against one who was ignorant of the fact; but when this conduct of the plaintiff is added, there can be no hesitation. The other question does not necessarily arise under this view of the case. Decree affirmed •with costs, to be paid by the appellant, and the appeal dismissed.


author: Mr. Justice Williams

text:
    Lockhart et al. versus Bonsall et al.

    1. Bonsall bought from the plaintiffs for Ms firm. 5000 barrels of oil, to be delivered at buyer’s option before December 31st, on ten days’ notice, in bulk cars or bulk boats at Pittsburgif delivered by A. V. or AV. P. Railroad, buyer might designate any other point on those roads ; payment to be made as lots were gauged and delivered. He bought also for Mmself from plaintiffs 5000 barrels on precisely the same terms. On the 21st of December Bonsall gave plaintiffs two notices in the same terms to deliver the respective lots of oil, at such point or landing as he might designate, &c. The plaintiffs shipped all the oil to Pittsburg on 30th of December, had it inspected and gauged, and on 31st told Bonsall they would give him the numbers of the cars that he might examine ; he made no reply, but shortly after-wards, on the same day, gave plaintiffs notice to deliver at the Anchor works on A. V. Railroad; plaintiffs directed the oil to be delivered there, there not being room for all on that siding, the nearest sidings were filled, ready to put on Anchor siding as the others were emptied; they tendered to Bonsall 5981 barrels in bulk, the extra 981 to be on his own contract. He refused to receive, giving no reason. Held, that it was for the iurv whether the tender was sufficient.
    2. It was Bonsall’s duty to give reasonable notice of the place of delivery and to be there ready to receive and pay for the oil.
    3. The Anchor siding not having room to hold the cars, it was sufficient if the plaintiffs put the oil on the nearest sidings ready to be moved on the Anchor siding as it was emptied.
    _ 4. The sufficiency of the tender is to he determined by all the facts and circumstances connected with it and the motives of the parties.
    5. Bonsall was not bound to accept more or less than his contract, but if there was a larger quantity, from which he might separate the 5000 barrels, it not being plaintiffs’ engagement to pump the oil from the cars, it was sufficient.
    8. If the plaintiffs offered in good faith to deliver the oil, they were not hound to set apart the precise quantity named in the contract before offering to deliver.
    9. Stevenson v. Burgin, 13 Wright 36, distinguished.
    October 20th 1874.
    Before Agnew, O. J., Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1878, No. 69.
    This was an action of assumpsit, brought March 20th 1871, by Charles Lockhart and William Erew, trading as Lockhart & Erew, against Sterling Bonsall, Thomas M. King and H. O. Eleteher, trading as Bonsall, King & Co.
    The plaintiffs declared for the refusal by the defendants to receive and pay for 5000 barrels of oil, wrhich they had purchased from plaintiffs by the following contract.
    “Pittsburg, April 27th 1870. Bought of Messrs. Lockhart & Erew, per account of Messrs. Bonsall, King & Co., five thousand barrels good, green, merchantable crude petroleum, forty gallons, to the barrel, gravity, forty to forty-six degrees, at a temperature of 60° Eahrenheit, to be delivered at buyers’ option, at any time on or before thirty-first day of December 1870, buyers giving ten days previous notice to sellers, in bulk cars or bulk boats, at Pitts-burg. If delivered by Allegheny Valley or Western Pennsylvania Railroads, the buyer may designate any other point of delivery on line of said roads. If delivered by wrater, then at any good landing in or near Pittsburg buyer may direct. . Payment to be made cash on delivery, at the rate of fourteen and one quarter cents per gallon, on lots as gauged and delivered.
    Jos. P. Wood, broker.”
    “Accepted — Bonsall, King & Co.”
    On the 26th of April 1870, Sterling Bonsall, for himself alone, and plaintiffs, had made a similar contract for the delivery of 5000 barrels of oil.

      On the 21st of December 1870, Bonsall served on the plaintiffs two notices for the delivery of the oil, precisely alike except stating the contracts by their respective dates.
    The notices were as follows:—
    “ Pittsburg, Pa., December 21st 1870.
    Please take notice, that I hereby call for the delivery, by you, to me, at such point as I may designate, near or at Pittsburg, Pa., of five thousand barrels of good, green, merchantable crude petroleum, forty gallons to the barrel, gravity, forty to forty-six degrees, at a temperature of 60° Fahrenheit, either in bulk cars or bulk boats, at Pittsburg. If delivered by A. Y. R. R. or W. P. R. R., at such a point as I may designate on the line of said roads. If delivered by bulk boats, at such landing as I may designate on the Allegheny river ; in accordance with the terms of a certain contract signed by you, April 27th 1870. My option is to receive this oil on the 31st day of December 1870.
    Sterling Bonsall.
    To Messrs. Lockhart & Frew, Pittsburg.”
    The cause was tried November 14th 1872, before Trunkey, P. J.
    The plaintiffs gave in evidence the contract and the notices.
    Frew, one of plaintiffs, testified: “ On the 21st of December, or next day, I called on Bonsall, or Gallagher, his agent, to get the place for delivery; Gallagher was his agent, but could tell us no place; we immediately ordered the oil to be shipped to Pittsburg; commenced receiving the next week; we had over 10,000 barrels of oil in Pittsburg, and placed as near the outer depot of the Allegheny Yalley Railroad as we could get it; all on cars — some at “ Holmes,” “ Sharpsburg,” “ Brilliant ” and “ Standard ” sidings; we had the oil all regularly gauged and inspected by the regular officers; we had the gaugers go over the entire quantity on the 31st of December, and for that reason were late in the day in delivering our certificates ; I obtained a sufficient number of certificates of gauger and inspector, and tendered them to Mr. Bonsall and his brother, on December 31st, between 4 and 5 p. M.; I tendered 5000 barrels on contract of Bonsall, King & Go., and a surplus of 981 barrels, tendered on a contract of different date, with Bonsall, which matured on same date; I presented the entire 5000 barrels at one time ; Sterling and Charles T. Bonsall were present; spent some time looking over the papers, and declined to accept the oil, and gave no reason for declination; a short time after, I made another tender on the other contract, and then handed them a receipt from the A. Y. Railroad for the whole amount due on both contracts, and the surplus; about 10 A. M. on December 31st, was the first time Bonsall gave us notice where to deliver the oil; verbal notice to deliver at the Anchor Oil Works; we gave notice to the A. Y. Railroad to deliver the entire amount of both contracts to the Anchor worts, or as near to it as they could possibly get it; I then obtained a certificate from the railroad, that they had the oil as near the Anchor works as they could place it; Sterling Bonsall, when we delivered the balance of the oil, or Charles T., both present, proposed to adjourn till 7 p. M., at Monongahela House, when they would consider the matter of receiving or rejecting the oil; this was on the second tender; at about 7 o’clock, Lockhart and myself went to Monongahela House, and found Charles T.; he said his brother had gone to the Union depot, and was expecting him down every minute; we remained waiting till near 9 o’clock for Sterling Bonsall, when a gentleman informed us he had taken the 7 P. M. train for Philadelphia; we continued .there till about 10, and Charles informed us he believed it was a fact, his brother had gone to Philadelphia, and he would have to wait instructions before he could decide; Mr. Bonsall did not, nor did any one, on the 31st, offer to pay for the oil, or receive it; on Monday morning, Charles T. Bonsall said he had reeeived no instructions; on January 2d, Monday, we received this letter, of same date from Bonsall, declining to receive the oil but giving no reason.” * * *
    On cross-examination he said : * * * “ We brought eighty-seven cars from Oil City; the oil belonged to Lockhart & Erew; it was consigned to the Brilliant works, in Pittsburg ; we always consign to these works, and distribute from them; the oil was about six miles from the office ; it was about two miles from where it was to go — the Anchor works ; we had all the immediate sidings filled; I tendered this oil between 4 and 5 p. M.; it was not dark ; about one hour after, tendered the other certificates.”
    Charles Lockhart, the other plaintiff, testified: “We had over 10,000 barrels of oil, December 31st 1870, in Pittsburg, in the cars, on the sidings ; filled all the sidings. The sidings at the Anchor works were filled; it would hold about twelve cars — 1000 barrels. I don’t know where our cars were on the siding; I know it was full; some of our cars were at the Anchor works, and some near; I saw Sterling Bonsall on morning of December 31st; I told him if he wished to examine it personally, I would give him the number of all the cars, except a few on the Brilliant siding ; that the cars were there, and he could examine the oil if he chose; he did not say he would or would not; he would not talk ; as soon as Bonsall gave us consignee, Anchor works, in the forenoon, 31st December, we went to the railroad ; they said the siding was full, but they would put it in as soon as they could get it emptied. I think some of our cars were on it.” * * *
    They gave in evidence the receipt of the Allegheny Valley Railroad Company, to wit:—
    “ Pittsburg, December 31st 1870.
    The Allegheny Valley Railroad has received from Messrs. Lockhart & Frew the following cars of crude oil, with orders to deliver to the Anchor works, which we have done to the best of our ability, filling all the nearest switches and sidings. Said crude oil we will hold subject to their order, endorsed hereon, and will deliver at Anchor.” Here follow the numbers of the cars.
    The plaintiffs gave in evidence the gauger’s and inspector’s certificates of the gauging of the cars, as authenticated by those officers, showing the quantity of oil and that it was of the quality contracted for.
    There was other evidence corroborative of that above given.
    The defendants gave no evidence.
    They requested the court to charge the jury that under the evidence the plaintiffs were not entitled to recover; the court so charged and the verdict was for the defendants.
    The plaintiffs took a writ of error and assigned the charge of the court for error.

      J. Ash and J. H. Hampton (with whom were A. B. McOalmont and B. Woods), for plaintiffs in error.
    A tender of goods is good if made under such circumstances that the vendee has a reasonable opportunity of examining them in order to ascertain that they are what they purport to be: Startup v. McDonald, 6 Man. & Gr. 593. It is no objection that a larger quantity is brought to the place of tender if the vendor ivas ready to separate and deliver .the precise quantity sold: 2 Parsons on Contracts 647. If the defendants’ ground of refusal was that the 5981 barrels were more than had been bought, they should have specified the objection and it might have been remedied ; not having done so, it is to be taken as waived : DeCamp v. Feay, 5 S. & R. 327. Bonsall having purposely avoided meeting plaintiff according to his appointment, cannot set up a want of tender, when he had thus prevented an opportunity to make it. They cited also Addison on Contracts 880, 1131; Henry v. Rainan, 1 Casey 361; 2 Kent’s Com. 507 ; Williams v. Bentley, 3 Casey 294; Peck v. Hubbard, 11 Verm. 612.

      O. T. Bonsall (with whom were T. J. Keenan and B. W. Sellers), for defendants in error.
    There is no delivery by the vendor if anything remains for him to do, and there is no valid tender which obliges the vendee to set apart and segregate to make a valid delivery: Haldeman v. Duncan, 1 P. F. Smith 66; Hutchinson v. Hunter, 7 Barr 140 ; Golder v. Ogden, 3 Harris 528.
    April 2d 1875.
   Mr. Justice Williams

delivered the opinion of the court,

This action was brought by Lockhart & Frew against Bonsall, King & Co., to recover damages for their refusal to accept and pay for 5000 barrels of crude petroleum which they bought of the plaintiffs. By the contract of sale, the petroleum was to be delivered at buyers’ option, on ten days’ notice, at any time on or before the 31st day of December 1870, in bulk cars or bulk boats, at Pittsburg, at such point or landing as they might designate ; for which they were to pay cash on delivery, at the rate of fourteen and one-quarter cents per gallon on lots as gauged and delivered. The plaintiffs had a similar contract in all respects for the sale and delivery of a like quantity of petroleum to Sterling Bonsall, one of the defendants, on his individual account. On the 21st of December 1870, Bonsall gave the plaintiffs written notice to deliver to him, on the 3lst day of December 1870, 5000 barrels on each of the contracts, either in bulk cars or bulk boats, at Pittsburg. If delivered by the Allegheny Yalley and the Western Pennsylvania Railroad, at such point as he might designate on the line of said roads ; if delivered by bulk boats, at such landing as he might designate on the Allegheny river. The plaintiffs, being unable to ascertain, by inquiry of Bonsall’s agent, the place where the petroleum was to be delivered, ordered it to be shipped to Pittsburg; and on the 30th of December they had on the sidings of the Allegheny Yalley Railroad, in the city of Pittsburg, 118 bulk cars, containing over 10,000 barrels of crude oil, which, having been regularly inspected and gauged by the proper officers, was found to be of the quality and gravity called for by the contracts. On the next morning Lockhart, one of the plaintiffs, saw Bonsall and told him that if he wished to examine the oil he would give him the numbers of the cars, except a few on the Brilliant siding; that the ear§ were there and he could examine them if he chose. He did not say whether he would or not — he made no reply. About ten o’clock in the forenoon he gave the plaintiffs verbal notice to deliver the oil at the Anchor works, and they immediately ordered the railroad company “ to deliver the entire amount of both contracts to the Anchor -works, or as near them as they could possibly get it.” There was no room on the siding at the Anchor works for more than twelve cars ; and, in executing the order of the plaintiffs, the company filled the nearest switches and sidings with the cars containing the oil, in order to run them upon the Anchor siding as fast as the cars placed there should be emptied and removed. The plaintiffs had the oil regauged, and between 4 and 5 o’clock in the afternoon, as soon as they had obtained the gauger’s and inspector’s certificates for 5981 barrels, they tendered Bonsall 5000 barrels on the contract of Bonsall, King & Co., and at the same time they tendered him the surplus — 981 barrels — on his individual contract, accompanying the tenders with a delivery of the certificates. After examining the papers for some time he declined to accept the oil, without giving any reason for the refusal. A short time afterwards, the plaintiffs made him a tender of the oil on his individual contract, handing him at the same time the gauger’s and inspector’s certificates for the balance of the oil. ' The certificates handed to Bonsall in making both tenders showed that the entire quantity of oil in the cars was a little over 10,000 barrels. When the plaintiffs¿made the last tender they gave Bonsall the receipt of the Allegheny Valley Railroad Company for the 118 cars of oil, specifying their numbers. The receipt, omitting the numbers of the cars, is as follows: “ Pittsburg, December 31st 1870. The Allegheny Valley Railroad has received from Messrs. Lockhart & Frew the following cars of crude oil, with orders to deliver to the Anchor works, which we have done to the best of our ability, filling all the nearest switches and sidings. Said crude oil we will hold subject to their order endorsed hereon, and will deliver at Anchor.” Bonsall, or his brother Charles, who was acting as his legal adviser, then proposed to adjourn till 7 o’clock p. M., at the Monongahela House, when they would consider the question of receiving or rejecting the oil. But, instead of meeting them there according to his promise, Sterling Bonsall took the 7 P. M. train for Philadelphia, and Charles T. Bonsall said he would have to wait instructions before he could decide. On the 2d of January 1871 the plaintiffs received a letter from Sterling Bonsall, declining to receive the oil, without assigning any particular reason for the refusal.

These are the material facts as disclosed by the evidence; and the sole question presented by the record is, do they show such a delivery or tender of the oil as the defendants were hound to accept ? If not, the court below was right in instructing the jury that the plaintiffs were not entitled to recover. But if'the evidence tends to show that the plaintiffs offered in good faith to deliver the oil, and were prevented from delivering it by the improper and wrongful conduct of Bonsall in refusing to accept and pay for it, the question should have been submitted to the jury, and the court erred in withdrawing it from them by a binding direction, that under the evidence there could be no recovery by the plaintiffs. The question as to the sufficiency of the tender is somewhat complicated by the fact that Bonsall called for the delivery of the petroleum on both contracts at the same time, and did not designate the place of delivery until it was too late in the day to deliver it there. It was his duty to give reasonable and timely notice of the place of delivery, and to be there ready to receive and pay for it at the stipulated price per gallon, “ in lots as gauged and delivered.” The delivery was to be made in bulk cars, and if the siding at the Anchor works would have held all the cars, it would have been the plaintiffs’ duty -to have placed them there. But if the siding, as the evidence shows, would not hold more than twelve of the cars, what more could the plaintiffs have done in the way of delivery, than to place the cars on the nearest switches and sidings, ready to be moved upon the Anchor siding as soon as there was room there to receive them ? In determining the question as to the sufficiency of the tender, all the facts and circumstances connected with the transaction, and the motives by which the parties were actuated, should be taken into consideration. Did the plaintiffs offer in good faith to deliver the petroleum ? And did they do all they reasonably could, under the circumstances, to make the delivery? Did Bonsall, when he designated the Anchor works as the place of delivery, know that not more than a thousand barrels in bulk could be delivered there at one time ? Did he give the plaintiffs notice to deliver it there because he knew that there was not room on the siding for it and it would be impossible for the plaintiffs to make the delivery ? If he had signified his willingness to receive and pay for it in “ lots as gauged and delivered,” were the plaintiffs ready and willing to deliver it, and would they have delivered the precise quantity called for by the contract ? Would there have been any difficulty in measuring or gauging the oil as it was run or pumped from the cars into the tanks or cisterns at the Anchor works ? If the oil could only be delivered at the Anchor works in lots of one thousand barrels, why should the entire quantity, called for by the contract, be separated and set apart before commencing to make the delivery ? Why was it not enough that the plaintiffs had a sufficient quantity of oil to fill the contract as near the Anchor works as it could be got, and were ready to deliver it in lots as fa,st as the cars on the Anchor siding could be emptied and removed? It is true that Bonsall was not bound to accept a tender of a greater or less quantity of oil than the contract called for.' And if the tender was for the precise quantity, he had the right to know that the plaintiffs had at least that amount and were ready in good faith to deliver it. But if they had a larger quantity than was necessary to fill the contract, what right had he to refuse the oil on this account ? The contract was not for the delivery of the cars with the oil, but for the delivery of the oil in the cars. It was no part of the plaintiffs’ undertaking to pump the oil from the cars and deliver it in the tanks at the Anchor works. That was the duty of the defendants, and if the plaintiffs were ready and willing to measure or gauge the oil as it was delivered so as to furnish'the precise quantity, what more could the defendants have reasonably required? Why should the tender of 5000 barrels on the defendants’ contract be regarded as invalid because there was a surplus of 981 barrels in the cars from which the delivery was to be made ? Or why should the tender be treated as naught because the surplus was at the same time tendered on Bonsall’s individual contract ? The question whether Bonsall was bound to accept the tender of the 981 barrels does not arise in this case. Whether it was a good tender or not, is wholly immaterial, unless its acceptance was made a condition precedent to the delivery of the 5000 barrels, of which there is no evidence ? There is a material difference between this case and that of Stevenson v. Burgin, 13 Wright 36, which the court below regarded as decisive of the question raised here. The contract in that case was for 100 tons of oil-cake at $48.50 per ton, cash, to be delivered free on board vessel for London. The plaintiff" put on board the ship Henry Cook, bound for London, 952 bags of oil-cake, weighing per ton of 2000 pounds, tare deducted, 107 tons and 129 pounds, and took bills of lading therefor in his own name, which he sent to the defendants, accompanied with a bill of sale of the entire quantity at $48.50 per ton. The defendants refused to receive the bills of lading and returned them to the plaintiff, with a note informing him that his bill called for more oil-cake than they had agreed to purchase, and that they declined to receive it, or to assume control of the goods. To this note the plaintiff replied that he should hold the bills of lading subject to the defendants’ order for two days, and should then sell for the best price he could get, and hold them responsible for all loss. Accordingly, the bills not having been accepted, the plaintiff sold the oil-cake for $44.50 per ton, and brought suit to recover the difference between the price for which it was sold and the contract price of the 100 tons. In delivering the opinion of the court, Strong, J., said: “ In view of this state of the facts it is plain that there never was any delivery of the quantity stipulated for in the contract, nor any tender of it. Instead of the quantity which the defendants had agreed to receive, a larger quantity was offered, and accompanied with a bill demanding payment for the whole. It was, in effect, whatever may have been intended, an effort to compel the defendants to take more than they had agreed to buy, and thus substantially to change the subject of the contract. There was no offer to deliver the 952 bags as 100 tons, nor to deliver any less number or quantity, or to set apart a portion of the entire quantity in satisfaction of the plaintiff’s duty. On the contrary, when his attention was called to the fact that the defendants had not agreed to take so much, he persisted in holding the bills of lading as they were, subject to the defendants’ order, and never intimated to them that they could have a less quantity, or any quantity, unless they paid at the rate of $48.50 per ton for the whole 107 tons. In our opinion this was no such compliance on his part with the contract as to enable him to maintain an action against the defendants, either for the stipulated price, or for not receiving the articles for which they had bargained.” All, then, that that case decides is, that on a contract for a fixed quantity of merchandise, to be delivered on board of a vessel, the purchaser is not bound to accept and pay for a larger quantity. But the principle has no special application to the evidence in this case. It is true that the contract here was for a specific quantity of petroleum, hut it was not to be delivered on shipboard or in the tanks of the Anchor works, but in bulk cars at the Anchor works. The plaintiffs did not deliver, or offer to deliver, a larger quantity than the defendants purchased, and insist that they should accept and pay for the whole at the contract price. If they had, the case would come within the ruling of the court in the case cited, for it would have been an effort on their part to change the subject of the contract, instead of an honest endeavor to comply with its terms. If then the plaintiffs offered in good faith to deliver the petroleum, it seems to us that, under all the circumstances of the case, they were not bound, in order to make a valid tender, to set apart the precise quantity of petroleum called for by the contract, before offering to deliver it. Whether they made such a tender of the oil as the defendants were bound to accept, and were prevented from delivering it by the improper conduct of Bonsall, should have been submitted to the jury with proper instructions, and it was error to withdraw the question from their determination by the binding instruction which the court gave in answer to the defendants’ sixth point.

Judgment reversed, and a venire facias de novo awarded.


author: Chief Justice Asnew

text:
    McArthur et al. versus Kitchen.
    1. McArthur owned a seated, tract interfering with No. 1541; he recovered the interference from an intruder, who then abandoned the possession, and McArthur afterwards cut timber on it; all the interference was within the boundaries of 1541. Held, these circumstances did not make 1541 seated so as to prevent it from passing by a sale for taxes as unseated, nor give McArthur such constructive possession as to protect him under the Statute of Limitations.
    2. To make 1541 seated, there should have been an actual entry and residence upon it, or clearing and fencing it, or cultivation on it, so as to arrest the attention of the assessor.
    3. The intruder’s abandonment after the recovery against him, did not aifect the title of the true owner of 1541.
    4. The owner could be affected by such act only as would compel him to take notice of the possession of a disseisor ; this would be nothing less than actual possession within the lines of 1541, with such use of the woodland within the interference as farmers usually make of their woodland, followed by a continued notorious and visible possession for twenty-one years.
    5. To be effective, the possession of the woodland must be exclusive; cutting wood by the owner also, made it a mixed possession.
    October 21st 1874.
    Before Agnew, O. J., Sharswood, and Mercur, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1873, No. 75.
    This was an action of ejectment commenced July 17th 1871, by Cyrus Kitchen against William McArthur and others for 100 acres of land in Rockdale township, formerly Yenango township.
    The plaintiff was the owner of tract No. 1541, in the Eighth Donation district. The defendants were the owners of a tract of land immediately south of 1541, the survey of which was made in 1818, in pursuance of an improvement. The question was the location of the south line of 1541, the defendants claiming that it was about 90 perches north of where the plaintiffs alleged it to be; the improvement was south of what the plaintiff claimed to be his line. East of defendants’ tract is No. 76, and east of No. 76 is No. 158; the south line of 1541 extended east is the north line of 76 and 158; the north-west corner of 158 being the north-east corner of 76 and south-west corner of plaintiffs’ tract being the north-west corner of defendants’ tract.
    The case was tried February 3d 1873 before Lowrie, P. J.
    The plaintiff gave evidence as follows :—
    Official survey of the Eighth Donation district, dated October 6th 1785. Patent dated March 31st 1787, to George Tudor for tract 1541, containing 200 acres and allowance ; various conveyances vesting the title of 1541 in Bernard Hubley, July 15th 1807; deed dated March 3d 1818, from Iiubley’s executors to Mary Hubley; assessment book of unseated land in Rockdale township containing this entry; “ 1865, Cyrus Kitchen 200 acres 1541;” record of treasurer’s sale of 1541, July 11th 1866 to Cyrus Kitchen; deed acknowledged August 18th 1866. The plaintiff then gave evidence by the testimony of surveyors and others that the marks of-the line trees beginning at a white-oak on 158 and running west on the line of 158, 76 and 1541, as claimed by plaintiff, corresponded -with the date of the official survey of the Eighth Donation district; and that the lines and marks of other tracts in the Eighth district also corresponded with that survey and with the plaintiffs’ claim, the south-west corner of his claim being in the middle of swamp. He gave evidence also by the opinion of all the surveyors examined by him, that the line claimed by the plaintiff was the line of the original survey of the Eighth Donation district. He gave evidence also that there was plenty of timber on the south line as claimed by the plaintiff. The surveyors examined by the plaintiff testified that the marks on the lines claimed by the defendants were of a much later date than on those claimed by the plaintiff. The plaintiff then rested.
    The defendants gave evidence from surveyors, in answer to plaintiffs’ evidence and tending to show that the line claimed by defendants was the true line.
    They gave in evidence the draft of a survey made by James Herrington, deputy-surveyor, September 4th 1818, of the tract of defendants; the north line of this survey was where they claimed his line to be. The return of Herrington was as follows :—

      “ In pursuance of William McArthur’s improvement and settlement, made and continued according to law, was surveyed on the 4th of September 1818, the above-described tract of land, containing 329 acres 78 perches, situate in Venango township, Crawford county.”
    They gave in evidence also the survey by Herrington as deputy-surveyor of tract 76, as follows:—
    “ In pursuance of the Act of Assembly of 24th March 1818, on the application of John Brooks, Esq., owner of lot 76, in the Eighth District of Donation Lands, on the 22d day of January, a. j>. 1830, I have run and distinctly marked the lines and re-marked the original corners, or where the corners were (some of the original trees being gone by time), of the said tract of land, according as they are on the ground, the said tract containing 383 acres and 85 perches and allowance of six per cent, for roads, &c., as described in the annexed draft of the same, situate in Rockdale township, Crawford county, and Commonwealth of Pennsylvania, and the lines as now run and stated in the said annexed draft interfere with none of the adjoining tracts, or surveys, but correspond precisely with them.”
    Also, patent to defendants for the land in foregoing survey ; also, patent August 10th 1854, to defendants as heirs of William McArthur, deceased, for the tract surveyed September 4th 1818 ; also, record of an action of ejectment to April Term 1856, McArthur’s heirs against Jacob Welker, for 337 acres of land in Rockdale township, in which defendant, Welker, took defence for 108 acres ; verdict for the plaintiffs April 11th 1848, and possession delivered to plaintiffs in that suit, under an habere facias. Welker abandoned the possession after the determination of the ejectment against him.
    W. McArthur, a defendant, testified: That in the suit with Welker they claimed to the same line as in this case ; witness first knew of the improvement in 1830-1831, of about 20 acres; the settler’s cabin was burned shortly aftenvards; a tenant in 1835 went in under alease from plaintiffs’ ancestor and remained twelve years ; there were other successive tenants until 1866 ; witness had cattle on it; there were 20 acres cleared; he had taken timber off it since 1830; witness gave Welker liberty to make shingles; after-wards-Welker cut without leave and the ejectment against him was brought; Welker lived north of defendants’ claim; after the house was burned there had been no house there; the house was on tract No. 76. Miller, who had tract 158, had the use of the improvement, cut timber on the disputed piece; witness sold a large quantity of timber from the disputed piece for a railroad bridge; and sold timber frequently after 1830 ; defendants’ line was never disputed till Welker disputed it; the defendants and one Brooks owned No. 76 together, the defendants’ share was the west 113 acres. Witness always paid the taxes; he had the land assessed as unseated for convenience of paying taxes.

      The defendants gave in evidence the assessment books of Rock-dale township, showing tract 329 acres assessed as unseated to William McArthur’s heirs from 1834 to 1870.
    John Baugher testified that his father had owned the south part of 1541, had got it in 1834 from Hubley ; they cut timber on it.
    Defendants gave in evidence : deed dated September 20th 1825, from H. Diffenbacher and Mary his wife, late Hubley, to G. W. Hubley, for half of 1541; deed October 19th 1830, from administrator of G. W. Hubley to Betts; from Betts of same date to Brewster; mortgage March 19th 1834, John Baugher to Brewster ; tax lists of 1838, 1839. Tract 1541, 100 acres assessed to Henry Diffenbacher; tract 1541, 100 acres assessed to John Baugher, sold July 25th 1840 by treasurer to J. S. Riddle.
    Jacob Baugher testified that he and his father worked along the line and got out timber; they were a little over the line, about 20 rods from the swamp.
    Defendants gave in evidence a judgment against Jacob Welker, under which tract 1541 was sold to H. B. Haverstick, July 1st 1854; deed May 9th 1856, Haverstick to Courtney, “ Beginning at south-west corner of Kitchen’s land, thence * * * to McArthur’s corner, thence by land of McArthur, * * * being 15 acres on south part of tract 1541.”
    H. Baugher testified, that he knew of the improvement on the McArthur tract in 1829; 15'or 20 acres cleared.
    R. R. Snow testified that he occupied the McArthur tract from 1854 to 1860, about 20 acres improved; 100 acres pasture land with brush fence; knew the improvement about 1815 or 1820; witness bought trees of Baugher in 1834; he showed him the line as- the defendants claimed it.
    A. Wilcox testified that he had had charge of defendants’ tract since 1863, had taken timber off all over it since 1863; the improvement is about a quarter of a mile from the disputed part.
    The defendants gave other evidence of the same character. Plaintiffs in rebuttal gave evidence that the timber for the railroad bridge was not taken from the disputed part. The plaintiff testified that in 1854 he bought from Haverstick, who measured off and agreed to warrant 212 acres ; there was a surplus left; Haverstick gave him a deed for the surplus without general warranty. The deed from Haverstick to Courtney was made at plaintiff’s instance, but he did not intend by the deeds to recognise the defendants’ claim ; the best of the timber had been taken off the disputed piece long before 1854, when he had bought; there was no fence. He let the land go to tax sale, so as to buy it in and get a title.
    A. J. Fullerton testified, that he lived near the disputed piece, saw no cutting on the disputed piece; there was no fence; no one went in after Welker left.
    There was other evidence by the plaintiff to the same facts.

      The following were points of the defendants with their answers :
    “1. If the jury find that the defendants, by action of ejectment with Jacob Welker, in case No. 56, April Term 1846, established the line to which they now claim ; and from that time they have cleared and fenced a portion of the land within their survey and have used the whole tract to the line established by said ejectment as woodland and for obtaining timber, and have paid the taxes thereon, the possession of deféndants to said line has been actual and adverse, and they now have a perfect title to the land in dispute.
    “ 2. If at the time the taxes for the years 1864 and 1865 were assessed on tract 1541 and the sale thereof, the defendants were in actual possession of the land within their survey, with the lines thereof marked distinctly on the ground, and if the same was partly improved and under cultivation, with property thereon sufficient to pay said taxes, all the land within the defendants’ survey is to be regarded in law as seated, and the tax sale passed no title to any portion of the land within the defendants’ lines.”
    Both points were refused.
    “ 3. If the defendants, by action of ejectment with Jacob Welker, established their claim to the land in dispute, and within their survey in 1848 ; and if they have continued to occupy the same since that time, by clearing, fencing, farming and pasturing it, and have used the timber land according to the custom of the country for obtaining wood and timber, such possession has been actual and adverse, and the land within defendants’ survey and so occupied, could not be sold at treasurer’s sale as unseated.”
    Answer : “We refuse so to charge. The use of the woodland must be in connection with the occupation.”
    “ 4. The plaintiff has shown no title to the land in dispute except such as is shown by his treasurer’s deed, and if the jury finds that the defendants at the time of the assessment and sale for taxes of tract No. 1541, were in actual possession under claim of title of the land within their survey, that the possession was adverse and that a part of the land within the defendants’ survey was occupied, fenced, improved and cultivated with property thereon sufficient to pay all taxes, the treasurer’s sale of tract No. 1541 passed no title to any land within defendants’ survey and the plaintiff cannot recover.”
    Answer: “ This is true if the disputed land is within the defendants’ patent.”
    The jury found for the plaintiff “ according to the line that runs west from the white-oak at the north-west corner of tract No. 158, in the Donation Survey.”
    The defendants took a writ of error and assigned for error the answers to their points.

      W. B. Bole (with whom was J. J. Henderson), for plaintiffs in error.
    The tax sale to the plaintiff in 1866 passed no title to him because being interfering surveys, the defendants had always paid the taxes: Hunter v. Cochran, 3 Barr 105. Neither residence nor payment of taxes is necessary to a constructive ouster of a whole tract, part of which is cultivated under a claim of title to the whole: Kite v. Brown, 5 Barr 291. Payment of taxes by the holder of an interfering survey or by a stranger will render a sale for taxes void : Murray v. Guilford, 8 Watts 548; Dougherty v. Dickey, 4 W. & S. 151; Montgomery v. Meredith, 5 Harris 42; Harper v. McKeehan, 3 W. & S. 247. An intruder’s use of woodland, as it is usually used, is actual possession of it for the purpose of the Statute of Limitations: Alden v. Grove, 6 Harris 385; Criswell v. Altemus, 7 Watts 565; Ament v. Wolf, 9 Casey 331. An entry under a bond fide claim of title extends the ouster and adverse possession over the whole tract claimed: Seigle v. Louderbach, 5 Barr 490; Altemus v. Long, 4 Id. 254; Susquehanna & W. V. Railroad v. Quick, 18 P. F. Smith 189; Fitch v. Mann, 8 Barr 503 ; Stephens v. Leach, 2 Harris 262; Green v. Kellum, 11 Harris 254; Hoey v. Furman, 1 Barr 295; Hollinshead v. Nauman, 9 Wright 140.

      P. Ghureh, for defendant in error,
    as to the Statute of Limitations, cited Hole v. Rittenhouse, 1 Wright 116; Ewing v. Alcorn, 4 Id. 492; Nearhoff v. Addleman, 7 Casey 279.
    January 4th 1875.
   Chief Justice Asnew

delivered the opinion of the court,

A defect ran through all of the defendants’ points, which necessarily called forth a negative answer from the court below. In none was an actual pedis possessio alleged as within the disputed territory, and in all the actual possession by clearing, fencing and cultivating, was averred only as within the defendants’ survey. This was no fault of counsel, the points being drawn according to the fact as shown in the evidence, that the actual possession of the defendants was south of the boundary line of donation lot No. 1541, as claimed to by the plaintiff, and to which he recovered. The only evidence of possession by the defendants north of this line and on lot No. 1541, was that of cutting timber, and the recovery of the McArthurs against Jacob Welker in ejectment of 1846, and Welker’s abandonment after the recovery, together with McArthur’s subsequent taking possession by habere facias in 1854. The effect of this absence of an actual possession within the lines of No. 1541, was to prevent that tract from becoming seated, and also to prevent the running of the Statute of Limitations in favor of the defendants. It is very clear that the sale for taxes of donation lot No. 1541 as unseated, was not impaired by the fact that McArthur’s tract was seated, unless McArthur had such an actual possession within the lines of 1641 as would make it a seated tract also. This must be by an actual entry upon No. 1541 and residing upon it, or by clearing and fencing it, or by cultivation upon it, so as to arrest the attention of the assessor and require him to return the tract as seated. There was not in this case even a slight clearing over to bring into play the doctrine of accidental trespass, or the curative provision of the Act of 12th April 1842, 1 Bright. Purd. 1443, pl‘. 7,

The sale of No. 1541 for taxes, and the defence under the Statute of Limitations, both imply that the land in controversy lay within the true southern boundary of 1541. For if-it were not so, McArthur would hold the interference by virtue of his own better title. The jury have found that the true boundary of 1541 includes the interference as claimed by the plaintiff. Hence the sale for taxes gave a good title to the plaintiff, Cyrus Kitchen.

How, then, stood the case under the Statute of Limitations ? The recovery of the land within the interfering surveys by the McArthurs against Jacob Welker in the ejectment of 1846, with the abandonment of it by Welker after the recovery, would have been a strong fact in the case, had it appeared that Welker was the owner of donation lot No. 1541. Then a recovery against the owner of 1541 might plausibly be argued to confer a legal seisin, which, followed by the payment of taxes and cutting of timber, would be evidence of an ouster of the owner of 1541 from the interference, without taking an actual pedis possessio within the same. But there was no evidence of Welker’s ownership of that part of 1541, and his abandonment of possession after the recovery in ejectment, would in no wise affect the true owner of 1541, who was no party to the proceeding, and had done no act to amount to a confession of ouster. He could be affected by such act only as would in any case compel him to take notice of the possession of a disseisor. This would be nothing less than an actual possession within the lines of his tract, accompanied with such use of the woodland within the interference as farmers usually make of their own woodland, followed by a continued notorious and visible possession, undisturbed by him for twenty-one years. That there must be an actual or pedis possessio within the interference, to give title under the Statute of Limitations, was settled finally in the case of Hole v. Rittenhouse, 1 Casey 491, reaffirmed in Hole v. Rittenhouse, 1 Wright 116. The same doctrine was asserted in Ament’s Ex. v. Wolf, 9 Casey 331, and repeated in Ewing v. Alcorn, 4 Wright 492; O’ Hara v. Richardson, 10 Wright 386, and in subsequent cases. This is now conceded the settled doctrine, and certainly is the only one just to both parties. The learned judge below doubtless decided this case in recollection of his own opinion in Ament’s Ex. v. Wolf, supra. Yet the language of Woodward, J., in the second opinion in the same case, is now relied upon to give effect to a doctrine as to the constructive possession of the woodland in this case, unsupported by the facts of that case or of any other known to me. But strong as was the language of Justice Woodward in that opinion to support the possession of the woodland as an actual possession, when aided by such acts of ownership over it as farmers usually exercise over their own woodland, his entire argument is founded on the actual possession of five acres cleared, cultivated and occupied by the disseisor within the interference. Without that nucleus around which such acts as the occasional cutting of timber could gather, and constitute a part of the actual possession, the argument would be nothing less than a piece of intellectual magic, to convert the merest constructive possession of woodland into a seeming pedis possessio ; but that the learned judge never taught such a doctrine, is conclusively proved by his opinion in the second case of Hole v. Rittenhouse, 1 Wright 116. It is true that Ament’s Executors v. Wolf, did decide a new point under the Statute of Limitations, but it was not that there is an actual possession of woodland, unattended by any visible act of clearing, fencing, cultivating or residing. Previous cases had decided only this, that the constructive possession of woodland when fastened upon an actual possession by clearing, fencing or cultivating within the interference, would take place only when the owner of the survey interfered with was- not in possession within his survey. In Ament’s Executor v. Wolf, it was stoutly contended that when both owners are in actual possession of their respective tracts, the law casts the possession of the woodland within the interference upon the true owner of the survey. But it was there held against the dissent of Justice Thompson, that an actual possession within the interference, accompanied by an exclusive use of the unenclosed woodland, such as is customary among farmers, uninterrupted by any act of the true owner of the survey, is evidence from which an ouster of the true owner from the woodland will be inferred so as to give effect to the Statute of Limitations. Justice Woodward calls this possession of the woodland an actual possession. But be it actual or only constructive, the legal effect is precisely the same. To be effective, this possession of woodland must be exclusive, as was then held and also subsequently shown: O’Hara v. Richardson, supra. For if the owner of the true survey also cut timber within the interference, it becomes a case of mixed possession at least, and there is no room for Justice Woodward’s illustration from a law of natural philosophy, that two magnitudes cannot at the same time occupy the space.

The changes in the doctrine of possession of unenclosed woodland under the Statute of Limitations, within the last half century, are interesting and instructive. The great body of western lands was held by eastern capitalists, chiefly citizens of Philadelphia. Miller v. Shaw, 7 S. & R. 129, decided in 1821, settled in the most absolute terms that under no pretence could a settler on purchased lands obtain title by the statute beyond his actual possession so held for twenty-one years. C. J. Tilghman opened his opinion with a reference to these purchased lands, which he called “ Our Back Lands.” The principle of'that decision is found in the first sentence of Justice Gibson’s opinion: “It is a well-established principle (he says) both in England and our sister states, that there can be no constructive possession in favor of a wrongdoer.” Having practised under the law of that case, I remember well the hard fate of the early settlers, who by its operation were cut off from their valuable improvements and confined to the small field, often two, three or four acres, which had been cleared twenty-one years.

Royer v. Benlow, 10 S. & R. 303, decided in 1823, maintained the docrine of Miller v. Shaw, reversing the court below for asserting the doctrine of the constructive possession of the woodland, which is now regarded as settled law. But in that case, Chief Justice Tilghman conceded in argument that there might be a confession of ouster by the owner himself through his act, which would thereby extend the possession of the trespasser constructively. This was the root from which a later doctrine sprang, after the death of Chief Justice Tilghman and Justice Duncan, and when Huston and Kennedy were seated on the new bench as judges. McCall v. Neeley, 3 Watts 69, decided in 1834, was the first well matured fruit of this root in Royer v. Benlow. It was a case where the disseisor entered on the whole tract, claiming by its boundaries and paying taxes for the whole, the owner suffering this to be done for twenty-one years. The same doctrine was reaffirmed in Criswell v. Altemus, 7 Watts 566, decided in 1838. In the next year, a further step was taken in Lawrence v. Hunter, 9 Watts 64, taken up and argued by myself, in which it was held that an official survey procured by the settler, to be made by the deputy surveyor under the Act of 3d April 1792, of a part of a warranted tract was efficacious to extend the settler’s possession by construction to the lines of' his survey. After this case, the doctrine of constructive possession continued to advance in favor until it ran wild in Waggoner v. Hastings, 5 Barr 300; Seigle v. Louderbach, 5 Barr 490, and Kite v. Brown, 5 Barr 291, which were overruled in Hole v. Rittenhouse, 1 Casey 491. In his opinion in this case, Chief Justice Lewis seeks to qualify rather than overrule Kite v. Brown. Yet in its principle, as to the constructive possession, it is clearly overruled.

As to a mere interference of surveys, the first case in which the doctrine of constructive possession of the unenclosed woodland was clearly and effectively applied, was Thompson v. Milford, 7 Watts 442, the principle of which is now the law as settled in numerous cases. In O’ Hara v. Richardson, already referred to, both parties were in possession of their respective tracts, and the peculiarity was that each entered and cut timber within the interference. Hence, though the owner of the junior survey was in actual possession of part of the interference, it was held that the entry of the owner of the elder survey and cutting of timber, were acts of ownership, preventing such a constructive possession of the unenclosed woodland as would be a constructive ouster of the true owner to give title under the Statute of Limitations.

As a result of the cases we think the formal act or taking possession of the land under the ejectment against Welker, a stranger to the title of 1541, and the subsequent entries to cut timber within the interference, unaccompanied by any ostensible possession, neither seated donation lot No. 1541, nor conferred a constructive possession upon the McArthurs within the interference, such as would protect them under the Statute of Limitations.

The judgment is therefore affirmed.


author: Chief Justice Agnjew

text:
    Vensel's Appeal.
    1. The better practice is to give notice to the widow and heirs, of awarding partition in the Orphans’ Court, but such notice is not necessary, if it appear by the return of the writ and inquisition that the parties had notice.
    2. At the return of the inquisition objections may be made both to the right to make partition and to the partition itself.
    3. The rules to accept or refuse or show cause against a sale need not be served by the sheriff; they may be served by the party or any other person.
    4. A petition for partition and the writ named the widow as a party, the return of the inquisition recited that the partios were warned to appear; the inquisition set forth that the premises could not be divided, and valued them; this was approved by the court; the premises were sold by order of the court and the sale confirmed. Held, that this was a final decree and conclusive of the facts which led to the decree.
    5. The sale was a legal conversion, bound the widow and divested her interest.
    6. The order of sale recited the rules to accept or refuse and to show cause against a sale, and that due proof was made of their service. Held, that this was the act of the court and evidence of notice.
    7. The presumption is that in the rule to show cause against the sale the widow’s name appeared; she had a direct interest in the sale ; the recital of service on the “ heirs and legal representatives,” is conclusive of service on her.
    8. The purchaser of land sold after an Orphans’ Court partition, having died, the petition for the sale of the same land for the payment of his debts, recited that it was subject to the “ dower” of the widow of the first decedent; the same was also in the conditions of the last sale. Held, that this did not change the nature of the widow’s estate; it was as fixed by law on acceptance at the valuation or sale after partition.
    9. The husband having died intestate and seised, her estate was not “ dower;” the proceeding in the Orphans’ Court converted it into a money charge on the premises, with the remedy for collection given by law.
    10. Horam’s Estate, 9 P. F. Smith 152; Richards v. Rote, 18 Id. 253, adopted.

      October 22th 1874.
    Before Agnew, C. J., Sharswood and Mercur, JJ.
    Appeal from the Court of Common Pleas of Clarion county: In Equity. Of October and November Term 1878, No. 132.
    The proceedings in this case were commenced February 12th 1872, by bill filed by Barney Yensel, assignee of Susan Yensel, widow of Jacob Yensel, deceased, against Lewis Coiner.
    Under various proceedings in the Orphans’ Court, the defendant had become the owner of real estate of which Jacob Yensel had died seised: his widow assigned to the plaintiff all her rights as widow in the rents and profits of the land; this bill was brought against the defendant for an account.
    The facts in the case, shown by the report of David Lawson, Esquire, master, were as follows:
    Jacob Yensel died on the 19th day of September 1845, intestate, seised of a farm containing about 100 acres, the same real estate referred to above; he left a widow, Susan Yensel above-named, and nine children (John Yensel and Jane Fink being two of them), and the children of a son deceased: six of the children conveyed their interests in the real estate to John Yensel.
    On the 7th of September 1852, he presented a petition to the Orphans’ Court, setting out the foregoing facts, the widow being named in the petition, and praying the court to award an inquest to make partition of the above-mentioned tract of land to and amongst the children and representatives of the intestate, or to value and appraise the same, &c. The inquest was awarded on the same day. The writ recited the petition, the widow being named in the writ. The inquest returned that having gone to the premises “ and the parties in said writ named, being served, warned and as many as chose being present,” the jurors found that the premises could not be divided, and therefore they valued them at $1000. The widow had notice of these proceedings. The record shows the following entry as to this inquisition: “December 22d 1852, approved, and rule on the heirs to appear at the next term and accept, or show cause why the same should not be sold.” This rule was directed by name, to all “the lineal decedents of Jacob Yensel, deceased, and to all other persons interested.” It cited them to appear at the Orphans’ Court, the first Monday in February 1853, “ to accept or refuse to take the real estate of Jacob Yensel, deceased, situate, &c., at the appraised value put upon it by an inquest, &c., returned, &c., on the first Monday of December last past, to wit: the entire premises at the sum of $1000.” The sheriff returned, without affidavit of service, that he had served the rule on all the children, and the guardian of those who were minors, “ personally and by copy.” The rule was not served on the widow ; the rule itself was not filed, but a copy of it and the return appeared on the record.

      On the 8th of February 1853, the court appointed D. B. Hamm, sheriff, trustee to sell the property.
    The record does not show any other action with reference to the rule upon heirs, except as is found in the recitals of subsequent proceedings.
    An order of sale was issued to Hamm on the 23d of February 1853.
    It recited the return of the inquest; that the court “having confirmed the same and none of the representatives having appeared to take” the real estate at the valuation, “ the court granted a rule on all the heirs and legal representatives of the said Jacob Yensel, deceased, requiring them to appear at the then next Orphans Court, &c., to accept and refuse the same at the valuation, and to show cause, if any they have, why the said real estate should not be sold. At which time due proof being made of the service of said rule according to the Act of Assembly, as appears by the return of the sheriff, and none of the heirs appearing to take the said (land), &c., at said valuation, it was considered by the court that they had relinquished their respective rights to take the same, and therefore at the instance of Jane Fink, one of the heirs,” &c., the court ordered Hamm to sell.
    The sheriff returned to the order of sale : “ April 30th 1853, cried the within property and sold the same to John Yensel for $700.
    The sale was confirmed May 7th 1853, and on the same day a deed was executed and delivered by the trustee to John Vensel the purchaser. It recited at large the petition for an inquest; the return of the inquest appraising the land at $1000, the confirmation of the inquisition; the rule upon the heirs and its service; also that none of the heirs appearing to accept or refuse, “ it was considered by the court that they had relinquished their respective rights to take the same;” it recited also the order of sale to the trustee. No reference was made in the deed to any interest of the widow, nor did the record show that her interest was in any way secured, or that she had notice of the proceedings after the inquisition.
    John Yensel having died seised of the 100 acres of land conveyed to him. as above stated, his administrators, Barney Yensel and Nelson Yensel, on the 5th of December 1860, petitioned the Orphans’ Court for an order of salé of his real estate, including the 100 acres above-mentioned, for the payment of debts. The petition set out that in this tract, “ Susan Yensel, widow of Jacob Yensel, deceased, has a dower of-one-third.” Ou the 8th of December an order of sale was awarded.
    The order recited as ip the petition, that the widow of Yensel “ has a dower of one-third;” and the order w*as to expose the real estate, “as set forth in said petition,” to sale. The conditions of sale stated that in this tract “ Susan Yensel, widow of Jacob Yensel, deceased, has a dower of one-thirdthis was also in the advertisement and handbills giving notice of the sale.
    The administrators returned, that they had sold this tract to Lewis Coiner for $1205, and on the 4th of February 1861, the court confirmed the sale and ordered a deed to be made to the purchaser.
    The administrators’ deed to Coiner made no reference to any interest of the widow of Jacob Yensel.
    The widow continued to reside on the property, farming it, and taking the products until the death of John Yensel.
    Previously to the sale to Coiner he was informed that the property was to be sold subject to the widow’s dower, and after the sale he frequently said that “ he had to give the widow the one-third of all that was raised on the farm.” She continued to live on the farm until the spring of 1871, when she left it. During this time the place was farmed by Coiner, and she received one-third part of all the grain and hay raised on the farm, also a third part of the fruit; after she left it Coiner gave her one-third of the crops until the fall of 1871.
    From the early part of 1871 until October 1872, Coiner made a number of leases of oil wells on which he received a royalty; he made coal leases also, from which he received a royalty, and there were perhaps additional sums of profit from the land other than those usually derived from farm land.
    The claim of the plaintiff was for one-third of the rents and profits of all kinds, including the receipts from the oil and coal leases, during the life of the widow of Jacob Yensel.
    The defendant’s defence, amongst other things was, that under the proceedings in partition, &c., in the Orphans’ Court, the widow’s dower was fixed by law, and that she was concluded by the inquisition and appraisement and approval of the proceedings by the court and these proceedings could not be inquired into collaterally.
    The master reported as his opinion, that the widow was entitled to notice of the rule on heirs in order to divest her interest under the intestate laws, and that although not entitled to take the land at the appraisement, she was a party in interest and should have been named in the petition, decree and notices. He therefore held that the Orphans’ Court had no jurisdiction over her interest and the proceedings in partition did not affect that interest. He stated an account finding that there was due from the defendant to the plaintiff the sum of $9000.69.
    The defendant filed exceptions to the master’s report.
    After argument the court, Jenks, P. Js; overruled the master’s finding and dismissed the bill.
    The plaintiff appealed to the Supreme Court and assigned for error, the decree dismissing the bill.

      Gr. Shiras, Jr. and W. L. Corbit (with whom was J. B. Knox), for appellant.
    The widow was a party to the proceedings and her interest in her husband’s lands would be affected ; she was therefore entitled to notice : Anderson’s Appeal, 12 Casey 476; Kreiser’s Appeal, 19 P. F. Smith 195. She was entitled to notice of the rule on heirs: Acts of March 29th 1832, sects. 42, 43; Pamph. L. 203, 1 Br. Purd. 440, 441, pl. 170, 175; April 14th 1835, sect. 2, Pamph. L. 275, 1 Br. Purd. 435, pl. 147; Ragan’s Estate, 7 Watts 438; Thompson v. Stitt, 6 P. F. Smith 156; Richards v. Rote, 18 Id. 248; Blackwell v. Cameron, 10 Wright 236.

      Gr. A. JenJcs and J. Campbell, for appellee.
    The widow had notice’ of the inquisition, the return of the sheriff showing that all the parties were warned and therefore the Orphans’ Court had jurisdiction: Richards v. Rote, 18 P. F. Smith 248; Horam’s Estate, 9 Id. 152; Dewart v. Purdy, 5 Casey 116; Act of March 29th 1832, sect. 41, Pamph. L. 202, 1 Br. Purd. 437, pl. 158. The proceedings were conclusive: McPherson v. Cunliff, 11 S. & R. 422; Ihmsen v. Ormsby, 8 Casey 200. A decree in partition in the Orphans’ Court cannot be inquired into collaterally: Zeigler’s Appeal, 11 Casey 176; Lair v. Hunsicker, 4 Id. 115; Merklein v. Trapnell, 10 Id. 42; Herr v. Herr, 5 Barr 428; Painter v. Henderson, 7 Id. 48 ; Lockhart v. John, Id. 137; Groff v. Groff, 14 S. & R. 184. The widow had nóinterest inker husband’s land, but that cast on her by the intestate laws, and that is but an annuity in the nature of a rent charge: Power v. Power, 7 Watts 205; Shaupe v. Shaupe, 12 S. & R. 9; Thomas v. Simpson, 3 Barr 60; Gourley v. Kinley, 16 P. F. Smith 270. She was not interested in the rule to accept or refuse; Painter v. Henderson, supra; Scott on Intestate Laws 404. Securing her interest by the deed and recognisance is not indispensable, her intei’est being a fixed statutory lien, and securities taken for it are only cumulative: Hire v. Geiger, 7 W. & S. 273 ; Medlar v. Aulenback, 2 Penna. R. 355; Kline v. Borman, 7 Harris 24. The conditions of sale as to the land being subject to the widow’s dower were of no effect; the trustees could impose no conditions except those prescribed by the law or the court: Randolph’s Appeal, 5 Barr 242; Backenstoss v. Stahler, 9 Casey 251; Harbold v. Kuster, 8 Wright 292.
    November 2d 1874.
   Chief Justice Agnjew

delivered the opinion of'the court,

This case in nearly all its features is governed by the decision in Horam’s Estate, 9 P. F. Smith 152. There, though the practice would be better to give notice to the widow and heirs of the awarding of the partition, it is held to be unnecessary, it being sufficient, if it appear at the return of the writ and inquisition taken, that the parties had notice, at which tiffie it is competent to make objections to the right of partition as well as to the partition itself. In regard to the subsequent rules to accept or refuse, and show cause against a sale, the law does not require service to be made by the sheriff. It may be made by the party or other person. The conclusiveness of the decrees of the Orphans’ Court upon matters within its jurisdiction have been so often asserted and repeated it is unnecessary to cite authority for this well known principle. The distinction upon which the application of this principle depends has been well stated in Richards v. Rote, 18 P. F. Smith 253, by our brother Sharswood, that when the name of a party in interest does not appear in the petition, decree and notices, unless it appears by affidavit that his name is unknown, and publication made accordingly (under the Act of 1835) his share or estate will remain undivided, or undivested if there is a sale ordered, unless by some subsequent act or conduct of such party, or those claiming under him, it has been ratified. But when his name does appear, it will be conclusively presumed in favor of the regularity of the proceedings of a court of justice, that due and regular notice has been given, even though it is not affirmatively shown in the record.

Now in this case the widow was made a party to the petition, and to the writ of partition itself; and in the sheriff’s return of the inquisition taken he recites that the parties in the writ were served and warned to appear. This inquisition setting forth that the premises could not be divided, and returning a valuation thereof, was approved by the court. The confirmation after partition or sale has all the effect of a final decree, and is conclusive of the facts set forth in the proceedings which led to the decree. This is sufficient to bind the widow, for the sale was a legal conversion and divested her interest. The order of sale recites the rule on all the heirs and legal representatives to accept or refuse the premises at the valuation, and the rule to show cause why the real estate should not be jold, and that due proof was made of the service of the rule according to the Act of Assembly. This is the act of the court by way of recital in the order and is evidence of notice. It is true there is found in the record only the copy of the rule on the heirs to accept or refuse, the rule to show cause against the sale not being returned with the record.. But this occurred twenty years and more ago, and the presumption from the recital in the order of sale is, that both rules were issued and served, the clerk having issued them separately. This is a matter of mere practice, and may have arisen from the fact, that as the widow cannot accept premises not divided, but valued and appraised, the necessity for naming her in the rule to accept or refuse, was supposed to be unnecessary. When the premises are accepted they are taken at the valuation fixed by the jury, or now at an advanced bid by one or more of the heirs. But the presumption is that in the rule to show cause against the sale her name did appear, for in the sale the widow has a direct interest, and the recital of service on the heirs and legal representatives is conclusive of the service on the widow, as a legal representative, this being real estate, and the term, legal representatives, having therefore no application to the personal representatives.

But be the fact as it may the presumption of notice to the widow from the recital in the order of sale must be taken to be true. After twenty years it would be a harsh rule that would deprive an innocent purchaser of his estate because the papers are not all on file in the Orphans’ Court. It is proper to add also that the deed to the purchaser recites the proceedings as regular, and as showing the widow a party and notice to all parties.

The recital in the petition of the administrators of John Vensel, deceased, the purchaser at the Orphans’ Court sale, to sell for the payment of his debts, that the property was subject to the dower of Susan Vensel, the widow of Jacob Vensel, deceased, does not change the nature of her estate, which is fixed by the law on an acceptance by the heir, or a sale to a purchaser. The calling of it “dower” is but an ignorant use of a word common in all the country to designate the widow’s estate in the real estate of her husband.

But her husband having died intestate and seised, her estate never was dower, and the incorrect use of the term in a subsequent proceeding cannot possibly change the effect of the proceeding in the Orphans’ Court which converted her estate into a money charge upon the premises sold, with the remedy for collection given in the law. In no possible view of this case can the proceedings in the Orphans’ Court be overturned. Ths assignee of the widow occupies no higher place than she did, and must recover according to the nature of her estate only.

Decree of the Orphans’ Court affirmed, with costs to bo paid by the appellant, and the appeal dismissed.