text:
    Butterfield versus Lathrop et al.

    1. Under the Acts of April 6th 1869 and January 20th 1870 (the reference of oases in Bradford and other counties), exceptions to the referee’s rulings on evidence must be taken at the time they are made, on review in the Supreme Court the finding of the referee as to facts is as conclusive as a verdict.
    2. The finding of facts is equivalent to a special verdict, and must have the same fulness and certainty, so that the judgment on the report shall be the conclusion of law on the facts.
    3. The exceptions to the report are the substitute for bills of exception to the charge of the court and answers to points.

      4. The Common Pleas has no power over the decision of the referee.
    5. Baxter and numerous other farmers delivered milk to a cheese factory ; each was credited”7with the amount of his milk, and all was manufactured together; the company sold all the cheese ; each farmer was charged with the expense, and received his share of the proceeds in proportion to the milk furnished. Baxter’s interest in the cheese, &e., was sold under an execution against him. Held, that the sale by the factory converted his interest into a money demand, and this interest was therefore not the subject of a levy.
    6. The arrangement at the factory did not constitute the farmers’ partners, nor tenants in common in the cheese: nor was there an agency or bailment as to the particular milk delivered.
    7. It was a sale of milk to be paid for in a certain time and manner.
    March 12th 1872.
    Before Thompson, 0. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Susquehanna county: No. 52, to January Term 1872.
    This action was commenced January 27th 1869, before a justice of the peace, by A. & D. R. Lathrop against A. D. Butterfield; the justice gave judgment for the plaintiff for $57 85 ; the defendant appealed from the judgment to the Court of Common Pleas, where it was referred to I. E. Carmalt, Esq., under the Act of April 6th 1869 (Pamph. L. 725), authorizing references in the county of Bradford; extended with additions to Susquehanna and Wyoming counties, by Act of January 20th 1870 (Pamph. L. 85).
    By these acts parties by agreement may refer their cases to one referee, the trial to be conducted as “by the court with a jury;” the referee to state the facts found and his conclusions of law separately, his decisions may be excepted to and reviewed as if tried by the court with a jury, “ and the referee may as the court, settle exceptions on appeal or writ of error to' the Supreme' Court.” “ The report of the referee on the whole issue shall stand as the decision of the court, and the judgment shall be entered as if the action had been tried by a court before a jury; incase of reversal on appeal or writ of error the Supreme Court shall enter the proper judgment or direct a new trial,” &c. The prothonotary shall enter judgment on the report, and either party may file exceptions to the report within ten days, but not after, and that there may be opportunity for a writ of error or appeal to Supreme Court, execution shall not issue within three weeks from the entry of judgment.
    The following is the referee’s report on the facts :—
    “ On the 1st of April 1868, O. W. Baxter took the farm of Mrs. Zilpha Deans to work on halves for one year, to be to one-half of the expense and have one-half of the products. Ten cows upon the property were included in that arrangement.
    “ He first made butter, but subsequently, after consulting Mrs. Deans, took his milk to the ‘Bridgewater Cheese Factory,’ to be made into cheese and sold according to the custom of that establishment. He commenced carrying milk to the factory on the 18th day of May, A. D. 1868. He ceased working and left the farm on the 22d day of July, A. D. 1868 ; how and under what circumstances does not appear.
    “ A. D. Butterfield, the defendant in this action, testified, and was not contradicted, that in the year 1868 he was one of a committee of three to manage the ‘ Bridgewater Cheese Factory,’ on the part of its patrons, and sell the cheese. He only kept the books of sale. The practice at the factory was to credit the different patrons of that establishment with the number of pounds of milk received — to charge them one and a half cent per pound for what cheese was made — to credit the parties again with the proceeds of the sales in proportion to the amount of milk brought. He, with two others upon the committee, had charge of all sales of cheese in 1868. He kept the books containing the account of the sales, but only knew whom the cheese was made for by the account, which was kept by a girl at the factory. By that account, Butterfield, the defendant, settled with Mrs. Beans and paid her $273.73. This included Mrs. Deans’s personal account and Deans and Baxter’s account. The latter began May 30th and concluded July 25th 1868. After which time the account was kept in the name of Mrs. Deans. At the end of the season the defendant paid the whole of both accounts to Mrs. Deans.
    “Deans and Baxter were credited at the factory from the 18th day of May to the 22d day of July with 10,422 pounds of milk. The average amount of milk during the season required to make a pound of cheese, was 10J pounds. The average of sales that season was 14f cents per pound net for cheese. One-half the above cheese only belonging to Baxter, the referee holding the quitting of Baxter and the change of the account from Deans & Baxter to Mrs. Deans to constitute a surrender at law, and cannot affect third parties in interest.
    “ By the sheriff’s return to judgment as No. 575 of August Term 1868, interest on note given by O. W. Baxter to A. & D. R. Lathrop, the note being given to satisfy an account at A. & D. R. Lathrop’s store of $52.15; the balance was fictitious or to secure future advance.
    “ He, the sheriff, received his writ July 20th, at 8J o’clock A. M., 1868, and sold a quantity of cheese (which was proved to have been Baxter’s interest in the cheese at the factory) on the 30th day of July.
    “ The sale took place opposite Mrs. Deans’s house, about ten rods from it. She did not forbid the sale, though she said to D. R. Lathrop, who bid off the cheese, and to the sheriff, that ‘ they’d better not touch anything — they might, get their fingers burned.’
    “Immediately after sheriff’s sale, Butterfield, the defendant, was notified that A. & D. R. Lathrop had bought Baxter’s interest in the cheese at the factory and wanted the money for it when sold.
    “ The practice at the factory was to sell the cheese at the factory at different times through the season. The cheese was made in bulk, and there was no separation of the cheese. The factory is about one and a half mile from Mrs. Deans’s farm-house. The sheriff’s sale on Lathrop’s judgment was at Mrs. Deans’s house; cheese not there, but was at factory, or had been sold previously by the committee.”
    He stated his conclusions of law as follows :—
    “ Defendant’s law points. * * *
    “ 3. That there was no levy upon the cheese, it not being a chattel — the sale was irregular.
    “ As a legal principle, the referee concedes this point, but does not think it sustained by any evidence on the subject of the levy but the return of the sheriff, which appears to be regular.
    “ 4. That the taking of the milk to the factory was a sale of the milk, and the proper remedy to secure Baxter’s interest was attachment, instead of levy and sale.
    “ From this position the referee dissents. Those working in the factory were in the employ of the patrons of the factory, making and selling cheese for those patrons at a fixed price, cent per pound. The patrons left their milk at the factory as bailors, to be manufactured into cheese by the bailees, who also possessed a power of sale over the product.
    “5. A tenant leaving before the expiration of his lease, has no interest in the property upon the farm.
    “ This may be true of growing crops or other after-acquired property, but cannot be true as against the vested interest of third parties, where, as in this case, there is no evidence of damage or dissent.” * * *
    The defendant removed the record to the Supreme Court.

      Littles and Blaheslee, for plaintiff in error.

      J. B. 'A. H. McQollum, for defendants in error.
    March 30th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

In the court below this cause was referred under the Act of January 20th 1870, Pamph. L. 85, extending to Susquehanna county the provisions of the act entitled “ An act authorizing the reference of civil actions in the county of Bradford,” passed April 6th 1869, Pamph. L. 725. By the 4th section of this latter act it is provided that the referee “ shall state the facts found and the conclusions of law separately, and his decision shall be given and may be excepted to and reviewed in like manner as though tried by the court with a jury, but not otherwise.” It follows that upon the rulings of the referee on the trial before him upon questions arising as to the admission or rejection of evidence, the party objecting must take his exception at the time, and that on review in this court the finding of the referee as to the facts must be regarded as conclusive, just as the verdict of a jury. It is evident that the act contemplates that there shall be in each case what is equivalent to a special verdict. The finding of the referee must have the same certainty and fulness as is required in a special verdict, so that the judgment shall be the conclusion of law upon the facts. Ten days, however, are given after the report is entered to file exceptions thereto, which we take clearly to have been intended by the legislature as a substitute for bills of exceptions to the charge of a court and their answers to points presented. No power is given by either of these acts to the Court of Common Pleas over the decision of the referee. “ The report,” says the Act of 1869, “of the said referee upon the whole issue shall stand as the decision of the court, and judgment shall be entered in the same manner as if the action had been tried by the court before a jury.”

We think there was error in the conclusion of the referee upon the facts as found by him. Indeed upon a very material question the finding would be bad as a special verdict for uncertainty. He says: “ The sheriff’s sale on Lathrop’s judgment was at Mrs. Deans’s house; cheese not there but was at factory, or had been sold previously by the committee.” When sold ? previously to the levy or previously to the sale ? If previously to the levy, it is abundantly clear that Baxter had no interest remaining in any cheese, but if had been converted into a mere money demand on the factory. But suppose that no sale had taken place? The arrangement as proved between the farmers — owners of milk — and the cheese factory, is somewhat peculiar. It certainly did not constitute the parties partners. Nor were the milk-owners tenants iu common of the cheese when manufactured. No one could have claimed an individual share, and considered the sale by the factory as a conversion. Neither replevin nor trover could have been maintained. By the agreement ■ the milk delivered from time to time by the different customers was thrown into a common mass, made into cheese, sold by the committee of the factory, and then the milk paid for at the price produced b.y the cheese, allowing ten and a half pounds of milk to one pound of cheese, deducting the cost of manufacturing. “ The practice at the 'factory,” says the referee, “ was to credit the different patrons of that establishment with the number of pounds of milk received — to charge them one and a half cent per pound for what cheese was made — to credit the parties again with the proceeds of the sales in proportion to the amount of milk brought.” There was evidently no bailment or agency as to the particular milk delivered. By the very terms of the agreement it was to he mixed and confused in part or in whole with other milk indefinitely. It was a sale of the milk to the factory, for which they were to pay at a certain time and in a. certain manner. It is not to he distinguished from the case of Jenkins v. Eichelberger, 4 Watts 121. There the contract was to deliver hides to a tanner at a certain price — the hides when tanned to he returned to the person who had delivered them, to he sold by him, and out of the proceeds, after deducting the price at which they had been delivered, the balance to be paid to the tanner. It was evidently a contrivance by which the hides were to be protected from the creditors of the tanner, but this court held it to be a sale. The same doctrine ivas maintained in Prichett v. Cook, 12 P. F. Smith 193. It is true in both these cases' the question was as to creditors of the manufacturer. But upon the facts as reported by the referee, it does not appear that there was anything to qualify the effect of the absolute delivery of the milk, to be used and mixed indiscriminately with other milk, and for which the party was afterwards to receive a credit at a certain rate. Baxter had then, from the delivery of the milk, a mere demand for the price of its product as agreed upon; and his interest was not such as could be seized and sold on a writ of fieri facias.

Judgment reversed.


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    The Fall Creek Coal and Iron Company versus Smith.
    1. A libel for materials, &e., was filed, and a writ of attachment was issued against five boats, which were attached by the sheriff. Meld, if the attachment were irregular because joint, as the court had jurisdiction, it was a protection to the sheriff.
    2. It was not for the sheriff to determine anything about the irregularity of the writ, but he was bound to serve it.
    3. Where a court has jurisdiction of the action, their officers are not responsible for errors in the process.
    4. It depends upon the action of the party in interest whether irregular process shall become void ; if inhen'entty without efficacy it is void as to all persons, whether interested or not.
    March 13th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Bradford county: No. 292, to January Term 1872.
    This was an action of trespass, issued August 29th 1865, by the Fall Creek Coal and Iron Company against J. Monroe Smith, who was sheriff of Bradford county.
    The case was referred on the 27th of September 1870, to W. H. Jessup, Esq., under the Acts of April 6th 1869 (Pa.mph. L. 725), and January 20th 1870 (Pamph. L. 85).
    Those of the facts necessary to an understanding of the case, •which were found by the referee were: that the plaintiffs employed G. M. Hall to furnish materials and build five canal-boats for them, they to advance money to him from time to time as the work progressed, and pay him the balance when delivered; that Hall was not the agent of the plaintiff in the purchase of materials or employment of labor, but was acting for himself; that Roswell Luther on the 8th of July 1865 filed a libel against the five boats; on this libel an attachment was issued, by virtue of which the defendant as sheriff attached the five boats, but did not remove them; on the 19th of July he withdrew the attachment by order of Luther, and notified Hall, and did not further interfere with the boats; the attachment is the trespass complained of in this case; when the attachment was laid, the boats were in the actual possession of Hall, they had not been delivered to the plaintiffs, were unfinished and not ready for delivery; that the' boats were subsequently sold at some sale, by whom or as whose property did not appear; they were bid in at the request of the agent of the plaintiffs; the purchaser, at the request of the same agent, sold to E. T. Fox, who finished the boats, and upon payment to him by the agent of the expense of completion, they passed into the possession of the plaintiffs.
    The referee reported as conclusions of law, that the plaintiffs had neither possession nor ownership of the boats at the time of the attachment, and could not recover; that under the facts it was immaterial whether the attachment was regular or not; that if the libel were irregular by reason of being a joint one against the five boats, it and the attachment issued on it would be amendable ; that if the libel and attachment were irregular, yet the writ was a protection to the sheriff, and the plaintiffs could not recover.
    He found for the defendant; judgment was entered on the report January 30th 1872.
    The plaintiffs filed exceptions to the referee’s report, and removed the record to the Supreme Court.

      H. W. Patrick and JE. Smith, for plaintiffs in error.
    The attachment showed its irregularity on its face; it showed that the court had no jurisdiction over the subject-matter, and no proceedings under it could have validated it: Parkinson v. Manny, 2 Grant 521. Where there is no jurisdiction the officer is a trespasser: Wise v. Withers, 3 Cranch 331; Elliott v. Piersol, 1 Peters 340; Toof v. Butler, 5 Wend. 276; Savacool v. Boughton, 5 Id. 181. If the officer relies on the process for justification, it must in law appear legal on its face: Conner v. Commonwealth, 3 Binney 38-44; Hall v. Moor, Addison 376.

      Mercur (with whom was S. Peet), for defendant in error,
    referred to Act of June 13th 1836, Pamph. L. 616, 1 Br. Purd. 94, et seq. The irregularity, if any, might have been cured by amendment : Benedict’s Admiralty 488; Id. Rule 24, p. 372. The sheriff could not look behind the writ: Billings v. Russell, 11 Harris 192, and was not responsible for errors in the process, the court having jurisdiction of the action: Hecker v. Jarret, 3 Binn. 404; Allison v. Rheam, 3 S. & R. 139; Kingsbury v. Ledyard, 2 W. & S. 37; 2 Hilliard on Torts 199-204.
    May 13th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

This case comes before this court, from the findings and judgment of a referee, under the Act of Assembly passed April 6th 1869, entitled “ An act authorizing the reference of civil actions in the county of Bradford.” While it is nominally entitled a Writ of error to the Common Pleas of Bradford county, it is only so, for the court had in fact nothing to do Avitli it, only so far as the appointment of the referee was concerned. The assignments of error are therefore directly upon his adjudications. This is something of a novelty in our Commonwealth, where the common-law forms of judicial proceedings have ever been maintained, with feAV exceptions, as best calculated to conserve and secure the rights of persons and property. While, hoAvever, the law remains in force it is our duty to administer it in its true spirit as nearly as we can.

In so far as the facts are concerned we hold that the finding of the referee stands exactly in place of a verdict of a jury, and that this court has no power to interfere with it: Butterfield v. Lathrop (ante 225), decided at the last term of this court. In this case my brother Sharswood shows this to be the necessary result of the provisions of the act beyond all doubt. The fourth section provides that the referee “ shall state the facts found, and conclusions of law, separately; and his decisions shall be given and may be excepted to and reviewed in like manner as though tried by the court with a jury, but not otherwise.” This court has no poAA'er over the findings of a jury, as is well known, and by the express terms of the act just quoted, we have the same power, and no more, in reviewing the findings of a referee under the act. The supplement to this Act of 20th July 1870, in no manner alters these provisions. This view of our power of review under the act leaves the finding of all facts by the referee intact, just as if they had been found by a jury, and without poAver on our part to set it aside, as a court before Avhich a trial had by a jury might do if not satisfied. All controversy, therefore, as to how the canal-boats in question Avere built by Hall, was .ended by the finding of the referee that Hall Avas not the agent of the plaintiffs in the purchase of materials, .or in the employment of the labor, but was acting for. himself.” It is only by way of illustration of the idea that we cannot review the facts, that I remark that we have not the witnesses or their testimony before us to enable us to judge whether the referee drew the proper deductions from the testimony before him or not, the testimony itself being legal, it is not assumed as error that there was not evidence in the case of which this conclusion might be predicated — there was abundance, if believed. We choose to examine this case in the light in which it was tried below, but if the proceeding was in .rem, as we think it was, we do not see very clearly wherein the question of ownership was so material. The lien was good against the boats in whosesoever possession they were.

But passing this — it was strenuously argued that the referee erred in holding that the writ of attachment was a justification of the officer. The foundation of this argument rests on the fact that the attachment was against five canal-boats instead of one. If it had been against one it is not pretended that it would not have been regular and a valid writ. The Act of 13th June 1836 fully authorized it, and for the causes set forth in the attachment, viz. : “ for materials furnished and provided in the building, purchasing and equipping said canal-boats.” Canal-boats are included in the Act above referred to: Hipple v. Canal-boat Fashion, 3 Grant’s Cases 40; Parkinson v. Manny, 2 Id. 521 (Com. Pl. Allegheny Co.). This was not disputed in the case in hand. Now if there were too many boats included in the attachment, what was this but an irregularity ? and might it not have been waived by the party in interest ? The sheriff was not bound to determine anything about this. He held a writ issued by a court of competent jurisdiction in the premises, and it was not only sufficient for his justification but he was bound to serve it. The authorities to this effect are abundant and consistent. In Hecker v. Jarret, 3 Binn. 404, the principle is thus stated, where a court has jurisdiction of the action, their officers are not responsible for errors in their process.” That accurately decides the matter in hand. The same principle is to be found distinctly announced in Billings v. Russell, 11 Har. 189; so in Kingsbury v. Ledyard, 2 W. & S. 37, and it has become text law; Hilliard on Torts, vol. 2, pp. 199, 200, 201, 202, 203, 204, 205. Many other authorities might be added but are not necessary. The distinction between irregular and void process is very great. It depends upon the action of the party interested whether irregular process shall become void or not; but wherever it is inherently without efficacy it is void, not only as to the parties in interest but as to everybody else. It will be seen by these views that we are not able to adopt those taken by the plaintiffs in error on this point, and as we see no error in any other matter or thing in the case, the judgment is affirmed.


author: Sharswood, J.

text:
    Thornton versus The Enterprise Insurance Co.
    1. An insurance was made to T., who gaye a mortgage to W. T. assigned his policy to W. as security, and W. assigned to E. T. afterwards conveyed the property insured to 0., and assigned him the policy; the insurance company refused, to approve the assignment. E. afterwards became the owner of W.’s mortgage, and the company insured his interest as mortgagee. By the policy on payment of a loss the mortgagee was to assign the mortgage to the company: the property was burned, and E. received the amount of his insurance, and assigned the mortgage to the company: Held, that the assignment was properly made, that T. had no claim upon the money paid for the loss, and that the company might recover from T. the amount due on the mortgage.
    2. Under the Act of June 22d 1871, supplement to act extending to Luzerne county the Bradford county law of 1869 relating to reference, the Supreme Court is not authorized to review the evidence, and re-examine the decision of the court below as to facts.
    3. Writs of error bring up questions of law and appeals questions both of fact and law.
    March 14th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. A&new, J., at Nisi Prius.
    Error to the Court of Common Pleas of Luzerne county: No. 279, to January Term 1872.
    This was a scire facias sur mortgage, issued September 21st 1868, by The Enterprise Insurance Company against Joseph D. Thornton; M. E. Coolbaugh, the terre-tenant, was on his own application permitted to appear and defend.
    The case was referred to A. Farnham, Esq., under the Act of April 8th 1869, relating to references, in Bradford county, with its supplements extended to Luzerne and Wayne counties, by Act of March 23d 1870. By a supplement to the last act, passed June 22d 1871 (Pamph. L. 1363), it is provided that the report of the referee on all questions of law and fact, with the whole testimony and bills of exception, shall be filed in the prothonotary’s office, and in order to give the parties an opportunity to enter exceptions “ to the findings of fact and law, and to the admission and rejection of testimony,” the report shall not be filed for ten days after he has notified the parties; the Court of Common Pleas to hear and decide on all exceptions so filed, reserving to the court the power of recommitting the report, and to enter the proper final judgment, which may be removed by writ of error to the Supreme Court, to be heard as other cases; the Supreme Court may enter the proper judgment or direct a new trial. This act to apply to pending cases.
    The scire facias was on a mortgage, dated August 29th 1863, from Joseph D. Thornton to George Williams, on certain real estate in the city of Scranton; the mortgage by assignment became the property of Charles E. Ellis, to whom a policy of insuranee was issued by the plaintiffs, insuring him against loss, “ by reason or means of fire to the property described” in the mortgage.
    The following conditions were annexed to the policy:—
    “ 4. Where a ground-rent, mortgage or other lien on real estate is specifically insured, such insurance shall not be affected by any sale or change of occupation or use of the premises mortgaged or charged, without the knowledge of the insured, though the risk may be thereby increased: Provided, That the insured shall, within thirty days after he shall be informed of any such sale or change of occupation or use, give due notice thereof to this company. In all such cases, upon any loss, the company shall have the option of paying to the insured either such proportion of the sum insured as the damage by fire to the premises mortgaged or charged shall hear to their value immediately before the fire, but not exceeding such value, or else the full amount of such lien or mortgaged debt, or the principal of such ground-rent, in which latter cases this company shall be entitled to require an assignment of such ground-rent, mortgage or other lien, in due form, together with a declaration by the owner of the ground, or (if the same cannot be obtained), then other sufficient evidence that he has no defence or offset thereto. All such insurance shall be subject to the express condition that a marketable title can be shown to the premises, and that the mortgage, lien or ground-rent is the first •lien or encumbrance thereon, unless otherwise expressed in this policy.
    “ 7. This company may at any time and in all cases terminate the insurance and cancel this policy, after giving thirty days’ notice of their intention' to do so ; and at the expiration of the said thirty days the insurance shall cease, and the deposit-money shall be returned without deduction on the surrender of this policy to the company.
    “ 8. Where the property specifically insured hereby shall be sold, this policy shall be void, unless assigned to the purchaser at the execution of the deed; and in such case, and also in case of any assignment of this policy as collateral security for a ground-rent mortgage, or other lien on the premises insured, such assignment shall be brought to the officejof the company for approval within thirty days thereafter, or the policy shall be in like manner void. The company retain the right to approve an assignment or not, at their option; in the latter case the deposit-money will be returned without deduction, on surrender of policy. For every approval of an assignment there shall be paid fifty cents.”
    The referee heard a large amount of testimony, and found “the following conclusions of fact:”—
    1. That on the 15th of April 1863, the plaintiffs issued to Joseph D. Thornton a perpetual policy of insurance (No. 1710) for $4000, afterwards increased to $5000, upon certain buildings in the city of Scranton, in Luzerne county.
    2. That on the 29th of August following Thornton executed to George Williams a mortgage upon the insured property to the amount of $5000, and at the same time, with the approval of the company, assigned over the policy of insurance to him, as collateral security.
    3. That on the 1st of December 1864, Williams assigned the mortgage to C. Earle Ellis.
    4. That on the 14th of June 1865, Thornton conveyed the property to M. E. Coolbaugh, and two days afterwards executed to him an assignment of the policy, receiving from Coolbaugh the premium he had previously paid to the insurance company — that Coolbaugh took the policy to the office of the company to obtain their approval of the transfer to him, and there left the policy, together with the usual fee of fifty cents for such approval.
    5. That the company refused to approve the transfer, and refused to recognise Mr. Coolbaugh as the owner of the policy.
    6. That the company did not, impliedly nor directly, waive a formal approval of the assignment of the policy by writing endorsed thereon.
    7. That the company did not agree with Coolbaugh, nor with his attorney, Lewis D. Yail, to issue a new policy to Coolbaugh, to be made collateral to the mortgage.
    8. That the company refused to insure the interest of Mr. Ooolbaugh, and consented only to insure the mortgage in a reduced amount, viz., the exact sum remaining due upon the mortgage, and that it was agreed by the parties that the mortgagee should be thus secured.
    9. That on the 7th of July 1865, the company issued to C. Earle Ellis, “mortgagee,” a perpetual policy of insurance, No. 3314, on the buildings in question in the sum of $3000, which policy was intended to cover the interest of the mortgagee alone, and to insure simply the mortgage-debt, and which contained a provision for the assignment of the mortgage to the company in the event of a loss, and the payment of the same by them, and that with the consent of Coolbaugh, or of his attorney, Yail, the deposit-money was paid out of the premium which had been returned t'o Joseph D. Thornton.
    10. That afterwards, on the 8d of March 1866, $1000 having in the meantime been paid on the mortgage, policy No. 3314 was surrendered, and a new policy, No. 3972, with similar terms, was issued to C. Earle Ellis in the sum of $2000.
    11. That during the continuance of this last policy, the buildings insured were destroyed by fire, and that Ellis received from the company the amount of his insurance, and that in pursuance of the 4th condition of the policy he assigned over the mortgage to them.
    12. That the amount of principal, bearing interest, due on said mortgage, is $2000.
    The defendants asked the referee to find the facts according to certain specifications presented by him; he declined all, except so far as they were in accordance with his foregoing finding.
    In answer to certain points of law submitted by defendant, the referee, amongst other things, said:—
    * * * “I take the law to be, that an insurance by a mortgagee, as such, is presumptively an insurance of the mortgage-debt, •unless the intent to insure the whole legal and equitable interest, in behalf of both the mortgagor and mortgagee, is apparent from either the declarations or admissions of the parties, or from the agreement between the mortgagor and mortgagee, or from the circumstances of the case. This intent, as between the mortgagor and mortgagee, thus made apparent, will override the insurer’s right of subrogation, unless the policy provides for transferring the interest of the insured to him, upon payment of the loss. In the latter case the intention becomes expressed by the agreement between the parties to the contract of insurance, and the rights of the insurer will, under the policy, prevail over any understanding between the insured and his debtor.
    “As the 4th condition of the^policy issued to Ellis contains a provision of this nature, the riglit of the company to a cession of the mortgage has, upon payment of the loss, become vested under the terms of the policy, and is paramount to any trust that might otherwise have been implied from the fact of the premium having been paid by Coolbaugh.” * * *
    The referee’s conclusions of law were :—
    “ The plaintiffs having insured the mortgage-debt owned by C. Earle Ellis, and a loss having occurred, and having paid over to him the amount of insurance, in discharge thereof, and having received from him an assignment of the bond and mortgage, in accordance with the terms of the policy, are therefore the legal and equitable owners of the bond and mortgage, and are entitled to recover, in this action, the balance due on said bond and mortgage, with interest from the date of assignment, as is claimed by them.
    “I repoi-t that judgment should be entered in favor of the plaintiffs and against the defendant in said action, for the sum of two thousand four hundred and ten dollars and sixty-six cents.”
    The defendant excepted to the 5th to 10th findings of the referee on the facts ; and that he had not found the law as requested by the defendant.
    The Court of Common Pleas (Harding, P. J.) directed judgment to be entered for the plaintiffs for $2410.66, in accordance with the report of the referee, with interest from September 28th 1871.
    The defendant took a writ of error. His l'st-6th and 8th assignments of error were to the referee’s finding of the facts.
    The 7th and 9th-12th assignments were to the referee’s conclusions of law.

      D. C. Harrington, for plaintiff in error,
    argued that the Supreme Court under the Acts of Assembly could review the accuracy of the findings of facts. The insurance being of the property and not of the mortgage-debt, the insurers are not entitled to a cession of the mortgage, but the owner is entitled to have the insurance-monev applied to the mortgage: Smith v. Columbia Insurance Co., 5 Harris 253; Insurance Co. v. Updegraff, 9 Harris 513; Towley v. Palmer, 5 Gray 551; Flanders on Insurance 362, 369.
    Where the mortgagee insures generally he may recover the whole amount of insurance, under a trust, as to the surplus, to hold it for the mortgagor: Flanders on Insurance 364; Carruthers v. Sheddon, 6 Taunt. 17. If the mortgagee insures his interest as mortgagee, and the mortgagor pays, or agrees to pay, the expenses of obtaining the insurance, the mortgagee would have lien on the insurance-money as security for his debt; yet the mortgagor could compel its application to the payment of the mortgage-debt, and any surplus would belong to him: Flanders on Insurance 367, 368; Holbrook v. Am. Ins. Co., 1 Curtis 193; King v. The State Mut. Ins. Co., 7 Cush. 1; Mix v. Hotchkiss, 14 Conn. 32; Concord Mut. Ins. Co. v. Woodbury, 45 Maine 454; Bradford v. Greenwich Ins. Co., 8 Abb. N. Y. 261; Kernochan v. The N. Y. Bowery Ins. Co., 17 N. Y. 433. Conditions and provisions in policies of insurance are to be construed most strictly against the underwriters, as they tend to narrow the range and limit the force of the principal obligation: Hoffman v. Ætna Fire Ins. Co., 32 N. Y. 405.

      8. Woodward and H. Q. MoMurtrie, for defendants in error, cited the several acts in relation to reference.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

Upon the facts found by the referee there can be no douht that the judgment below was right. He reported that the Enterprise Insurance Company distinctly refused to insure Mr. Ooolbaugh the owner, and that the policy issued to the mortgagee was intended to insure simply the mortgage-debt. On its face it was “ to indemnify C. Earle Ellis, mortgagee, for all damage or loss (not exceeding the sum or sums hereinafter recited), which may hereafter happen by reason or means of fire to the property herein described.” It might have presented a different question had it been as in Insurance Co. v. Updegraff, 9 Harris'513, “to make good to the assured all suck loss or damage, not exceeding in amount the sum insured, as shall happen by fire to the property described.” Here was a contract specifically to indemnify C. Earle Ellis as mortgagee. It would seem, therefore, upon its face, apart from the parol evidence, upon which the referee found the intention of the parties, to have been a contract by which the mortgage was specifically insured, and in such case by the express provision of the policy, upon payment by the insurance company of the amount of the mortgage-debt, they are entitled to require an assignment of such mortgage. We are not, however, to be understood as affirming the principle stated by the referee, that naming the assured as “ mortgagee,” raises any presumption that it is the mortgage-debt alone which is specifically insured where the policy is to pay or make good any loss or damage by fire to the property insured. This disposes of the 7th, 9th, 10th, 11th and 12th assignments.

The remaining assignments relate exclusively to the findings of fact by the referee. It is necessary, therefore, to consider the question, whether it is competent for this court to examine these findings as upon a motion for a new trial under the Acts of Assembly which authorize references of this character in Luzerne county. These acts are: “ An act authorizing the reference of civil actions in the county of Bradford,” passed April 6th 1869, Pamph. L. 72o; “An act to extend to the counties of Wayne and Luzerne the provisions of an act authorizing the reference of civil actions in the county of Bradford,” passed March 23d 1870, Pamph. L. 540; and “ A supplement to an act to extend to the counties of Wayne and Luzerne the provisions of an act authorizing the reference of civil actions in the county of Bradford,” &c., passed June 22d 1871, Pamph. L. 1363. In Butterfield v. Lathrop (antea p. 225), decided at Philadelphia, March 30th 1872, we held that under the Act of 1869 the report of the referee on the facts was to be considered in this court as the special verdict of a jury; and if sufficient as such a verdict, the jurisdiction of this court as a court of error was only to determine whether the judgment was right. Under that act the Court of Common Pleas had no power whatever to re-examine and pass upon the report of the referee. The Act of 1871 does afford a remedy in this respect. It provides that exceptions may be filed in the Court of Common Pleas “ to findings of fact or law, and to the admission or rejection of testimony,” and it is made the duty of that court “ to hear and decide upon all exceptions so filed ‘ to the report of the referee, reserving to the court, however, the power of committing the report again to the referee should justice require it.’ ” Thus far the proceeding is conformed to the course of the common law upon a special verdict. The court may award a new trial for any reasons of fact or law; or they may reverse the conclusion of the referee and enter a different judgment upon the verdict, if they are of opinion that the law so requires. What follows relates to the removal of the cause to this court. After enacting that either party may take exceptions to the judgment of the court, and that upon request the court shall reduce their opinion to writing and file the same, it proceeds: Upon the judgment of the court a writ of error may be taken to the Supreme Court by either party, 'which shall be heard by the Supreme Court as writs of error in other cases, and they shall enter the proper judgment, or direct a new trial.” It is the settled distinction between writs of error and appeals, that the former bring before the superior court questions of law only — the latter, both questions of fact and law. Very clearly, therefore, when it is provided that the cause shall be heard in this court as writs of error in other cases, it was not intended to confer the discretionary authority of reviewing the evidence, and re-examining the decision below as to the facts. It is supposed that the power “to direct a new trial” implies as much, — but there are of course many cases in which a court of errors awards a venire faeias de novo, which is in effect to direct a new trial — as whenever an error has been committed in the admission or rejection of evidence appearing on the record by bills of exception, the sealing of which by the referee is expressly required by the Act of 1871. We say nothing when, upon the whole evidence filed of record, there is what would be equivalent to no evidence to submit to a jury. That has not been and cannot be pretended in this case. It is our duty to mould the course of proceeding under the special acts providing for the reference of civil cases, so as most nearly to conform to the common law, and to be regulated by principles and rules most familiar to all.

Judgment affirmed.


author: Williams, J.

text:
    Van Storch versus Griffin.
    1. An exemplification of the record of the state of New York was certified by the clerk, and J. W. Gr. “Justice of the Supreme Court •” it appeared that there were other judges of the same court. J. W. Gr. did not appear to be Chief Justice. Held, not to be properly authenticated.
    2. The record was of proceedings in divorce by the husband, in New York, on the ground of adultery ; the respondent at the time of marriage, of the proceedings, and of the decree, resided in Pennsylvania, and there was no actual service on her. In an action by respondent against a person for breach of promise of marriage after a divorce in Pennsylvania on her own libel, Held, that the record was not evidence against her of adultery.
    3. The decree in New York was that respondent should not marry again during the life of libellant; the decree as to this had no extraterritorial effect.
    4. The plaintiff having been divorced on her own libel in Pennsylvania, it was lawful for her to marry again, and her marriage would be treated as valid everywhere.
    5. In an action for breach of promise of marriage, evidence that the general character of the plaintiff for chastity previously, was bad, is admissible in mitigation of damages.
    March 14th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Luzerne county: No. 358, to January Term 1872.
    This was an action on the case brought August 16th 1869, by Adelia Griffin against William Yan Storch.
    The plaintiff declared in assumpsit that she and the plaintiff had mutually agreed and promised that they would many, and from the time of the promise the plaintiff had been ready to perform her promise, that the defendant although requested had not kept his promise, but had refused to marry the plaintiff. The plaintiff had been previously married to Frederick Hancock, from whom she had been divorced in Pennsylvania on her own libel.
    The case was tried October 23d 1871, before Dana, J. The plaintiff gave evidence by herself and others, that in May 1869, defendant promised that he would marry her, and gave other evidence in corroboration.
    She gave in evidence the records of proceedings in divorce in the Court of Common Pleas of Luzerne county, commenced August 29th 1868 by herself as Adelia Hancock, libellant, against Frederick Hancock, respondent, decree of divorce made February 1869 ; an appeal to the Supreme Court and decree affirmed April 30th 1870.
    Defendant testified that he never had made a promise of marriage to plaintiff, and gave evidence in answer to the plaintiff’s case; also evidence assailing the character of plaintiff and witnesses for veracity,
    He offered in mitigation of damages, evidence, that in 1869 the plaintiff’s character for chastity was bad; the offer was rejected and bills of exception sealed.
    The defendant offered the record of proceedings in divorce in the Supreme Court in Kings county, New York, by Frederick Hancock against Adelia Hancock (plaintiff in this case). The libel was filed May 14th 1868 ; the ground upon which the divorce was asked was the adultery of the respondent; no personal service had been made on defendant, but after affidavit of her residence in Providence, Luzerne county, Pennsylvania, the court ordered notice to be sent to her by mail at that place and also directed publication in certain newspapers to be made.
    The record contained proof of the transmission of the notice to the respondent by mail and also of the publication; also ex parte depositions of facts tending to prove the adultery of respondent; also report of referee that the facts charged were “ true and had been proven before” him ; together with a decree September 21st 1868, as follows: “ And it is further ordered and adjudged that the marriage between the said plaintiff, Frederick Hancock and the said defendant, Adelia Hancock, be dissolved accordingly, and the said parties are and each of them is freed from the obligations thereof, and further, that it shall be lawful for the said plaintiff, Frederick Hancock, to marry again in the same manner as though the defendant was actually dead, but it shall not be lawful for the said defendant to marry again until the said plaintiff shall be actually dead.”
    The exemplification of the record commenced: “ Know ye, that Fl s 1 we ^aT™S inspected the files a-nd records of our Supreme L Court, at the City of Brooklyn in the county of Kings, do find a certain judgment roll remaining there on file of record in words and figures following, to wit: Supreme Court.” * * *
    Then followed all the various proceedings, some appearing to have been had, before A. B. Tappen, some before John N. Lott, some before Jasper W. Gilbert, severally Justices of the Supreme Court.
    The authentication was as follows:
    “ All which we have caused by these presents to be exemplified and the seal of our said court for said county to be hereunto affixed.
    “ Witness Hon. Jasper W. Gilbert, justice of our Supreme Court, this 11th day of March 1870, and in the 94th year of the Independence of the United States.
    John J. White, Clerk.
    “I, Jasper W. Gilbert, justice of the Supreme Court of the state of New York, do hereby certify that John J. White, whose name is subscribed to the preceding exemplification, is the clerk of the county of Kings and clerk of the said Supreme Court, in and for said county, and that full faith and credit are due to his official acts. And further, that the seal affixed to said exemplification is the proper seal of said court, for said county, and that the attestation thereof is in due form of law and by the proper officer.
    “ Witness my hand, at the* city of Brooklyn, this 11th day of March, in the year 1870.
    J. W. Gilbert.”
    The admission of the exemplification was objected to by the plaintiff, rejected by the court and a bill of exceptions sealed for the defendant.
    The verdict was for the plaintiff for $4000.
    The defendant removed the record to the Supreme Court and assigned for error the rejection of his offers of evidence.

      Q-. W. Woodward, (with whom was J. Mahon), for plaintiff in error.
    The authentication of the New York record was sufficient: Clark v. Depew, 1 Casey 509. Evidence of defendants’ character was proper: Foulks v. Sibley, 8 Espinasse 236; Baddeley v. Mortlock, 1 Holt 151; Bench v. Merrick, 1 Car. & K. 463; Boynton v. Kellogg, 3 Mass. R. 189; 2 Parsons on Contracts, § 1.

      J. Handley and H. W. Palmer, for defendant in error.
    Judgment rendered without notice or appearance is not in the due course of law, and will not impose a personal liability: Trumble v. Long, 13 Ohio N. S. 431; Borden v. Fitch, 15 Johnson 121; Colvin v. Reed, 5 P. F. Smith 375; Reed v. Elder, 12 Id. 308; Commonwealth v. Blood, 97 Mass. 338; Rape v. Heaton, 9 Wisconsin 328; Smith v. Steel, 7 W. & S. 447.
    Jurisdiction cannot be acquired or exercised over persons not domiciled within the state or subject to its laws, without actual service or an appearance: Smith v. Smith, 17 Ill. 482; Pollard v. Wegener, 13 Wisconsin 569; Pierce v. Hicock, 39 Vermont 292; Colvin v. Reed, 5 P. F. Smith 375; Reel v. Elder, 12 Id. 308.
    The marriage was in Pennsylvania; a decree under the laws of New York forbidding a future marriage was not binding: Medway v. Needham, 16 Mass. Rep. 158; Putnam v. Putnam, 8 Pick. 433; Stevenson v. Gray, 17 B. Monr. 193; Pousford v. Johnson, 2 Black 51; 1 Bishop on Marr. & D. 371, 392; Story’s Confl. of Laws, sect. 89; 2 Kent’s Com. 62; Baddeley v. Mortlock, 1 Holt 151; Leckey v. Bloser, 12 Harris 467.
    In civil cases evidence of the general character of a party is admissible only when it is put in issue by the pleadings: Anderson v. Long, 10 S. & R. 55; Atkinson v. Graham, 5 Watts 411; Fowler v. Ætna Ins. Co., 6 Cowen 673; Potter v. Webb, 6 Greenl. 14; Humphrey v. Humphrey, 7 Conn. 116; Gough v. St. John, l6 Wend. 646; Ward v. Herndon, 5 Porter 352; Senets v. Plunket, 1 Strobhart 372; Thayer v. Boyle, 30 Maine 475; McKinney v. Rhoads, 5 Watts 343; Nash v. Gilkeson, 5 S. & R. 352; Porter v. Seiler, 11 Harris 424.
    October 23d 1872,
   The opinion of the court was delivered, by

Williams, J.

The record of the divorce obtained by the plaintiff’s husband in the Supreme Court in New York, offered in evidence by the defendant, was clearly inadmissible. It was not certified as directed by the Act of Congress of the 26th of May 1790, nor was it proved as a foreign record by other evidence. The act provides that the records and judicial proceedings of every state shall be proved or admitted in any other court of the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. Under these provisions it is held that the certificate must be given by the judge, if there be but one, or if there be more, then by the chief justice or presiding magistrate of the court from whence the record comes; and he must possess that character at the time he gives the certificate. A certificate that he is the judge that presided at the trial, or that he is the senior judge of the courts of law in the state is insufficient: Lothrop v. Blake, 3 Barr 483; State of Ohio v. Hinchman, 3 Casey 483; 1 Greenl. Ev. § 506. The record offered by the defendant in this case does not purport to be certified by the chief justice or presiding magistrate, nor does it show that the justice, by whom the certificate was given, was the sole judge of the court. On the contrary, the record shows that there were other justices of the cburt by whom the orders preliminary to the final decree were made. There was then no error in rejecting the record on account of the insufficiency of the certificate. But if it had been properly authenticated, it would not have been competent evidence to establish the alleged adultery of the plaintiff, or her incapacity to enter into a marriage contract with the defendant. When the action for divorce was instituted the plaintiff was a resident of Pennsylvania, and the decree was obtained against her without service of process or actual notice of the institution and pendency of the proceedings. The decree that it shall not be lawful for her to marry again until her husband, from whom she was divorced, shall be actually dead, agreeably to the statute of New York, though it may be valid and binding on her in that state, can have no extra-territorial effect. She was as free to marry in this state as if no such decree had been made. Besides, when the defendant made the alleged promise, the plaintiff had been divorced from her former husband by a decree of the court below which had been affirmed by this court; and by our laws she was as capable of entering into a new marriage contract as if she had always been sole. As her maraiage with the defendant would have been valid here, it would be treated as valid everywhere: Phillips v. Gregg, 10 Watts 158; and therefore, it would be regarded .as valid in New York, notwithstanding the decree, made in conformity with the statute of that state, forbidding her marriage during the lifetime of her former husband. Even if the plaintiff and defendant had been residents of the state of New York, and had come into Pennsylvania and been married here, with the express purpose of evading the law of New York, and then had returned and continued to reside there, the marriage would have been recognised and treated as valid by the courts of that state: Story’s Conflict of Laws, §§ 89, 123, 123 a; 2 Kent’s Com. 91, 93; Medway v. Needham, 16 Mass. 157; West Cambridge v. Lexington, 1 Pick. 506; Putnam v. Putnam, 8 Id. 433; Haveland v. Halstead, 34 New York (7 Tiffany) 643.

But there was error in rejecting the defendant’s offer to prove that the general character of the plaintiff for chastity in 1869, and previous to that time, was bad. The evidence was not offered in bar of the action, but in mitigation of the damages. As the contract of marriage is founded in mutual confidence and affection, and necessarily involves the character of the parties for chastity, it would seem to follow that in an action for its breach the plaintiff’s character in this respect must necessarily be put in issue. But if the law be otherwise, as was said in Leckey v. Bloser, 12 Harris 401, the evidence was clearly admissible in mitigation of damages, as the authorities abundantly show: 1 Greenl. Evid., § 54; Sedgw. on Damages 388; Foulkes v. Sellway, 3 Esp. 236; Baddeley v. Mortlock, 1 Holt 151; Irving v. Greenwood, 1 C. & P. 350; Bench v. Merrick, 1 C. & K. 463; Boynton v. Kellogg, 3 Mass. 189; Johnston v. Caulkins, 1 Johns. Cases 116; Willard v. Stone, 7 Cowen 22; Palmer v. Andrews, 7 Wend. 142; Kniffer v. McConnell, 30 New York (3 Tiffany) 285; Burnett v. Simpkins, 24 Ill. 264. The ground on which the evidence is received, as said in Johnston v. Caulkins, is, that the action is brought not only to recover compensation for the immediate injury occasioned by the breach of the promise, but also damages for the loss of reputation which must necessarily depend on the conduct of the party both before and after the injury complained of. Whether the previous bad character of the plaintiff, if unknown to the defendant when he made the promise, would constitute a defence to the action, is a question not presented by the record, and under the pleadings and evidence in this case could not properly be raised. The only defence set up to the action by the defendant is, that he did not make the alleged promise, and if he did, as the jury have found, he must have known from the acts of lewdness to which he testifies, if he tells the truth, that the plaintiff’s character for chastity was bad when he made the promise. But the evidence, though it was not offered as a bar to the action, and would have constituted no defence to it under the circumstances, should have been allowed to go to the jury in mitigation of damages ; and for the error of the court in its rejection the judgment must be reversed and a new trial awarded.

Judgment reversed, and a venire facias de novo awarded.


text:
    Aldrich and Wife versus Bailey et al.

    1. McConnell contracted for land, to pay $2.50 per acre and improve; lie took possession and improved; lie died without paying any money except the cost of surveying, leaving a widow and children ; as between him and his vendor there was no abandonment of the contract. An equitable estate descended to his widow and children.
    2. The widow applied to the vendor for a new contract; it was signed by her, and her signature witnessed by vendor’s attorney in fact; but not signed by vendor ; she paid no purchase-money, but continued to live on the land until her death ; she obtained no equity in the land.
    3. Some of the heirs assigned to the widow their interest in the father’s estate by writing not acknowledged nor recorded. The plaintiff, one of the heirs, afterwards obtained a deed of their interest from a number of McOonnel’s heirs, and then paid the whole purchase-money to the vendor who gave her a deed, which was duly recorded ; she had no notice of the assignment to the widow. Held, that her title was best.
    4. The widow divided the land and set off a portion to a son, who took possession of it; the widow gave him a quit-claim deed for it. This gave him no title as against the vendor.
    5. The defendants claimed under a deed from the son and intervening deeds. One of the defendants holding the widow’s imperfect contract, made payments on the purchase-money to an authorized agent, who afterwards learning plaintiff’s claim, held the money, notified the defendant to receive it, and he declining, the deed was made to plaintiff. She acquired the legal title as her father’s purchase.
    6. The receipt of the money by the agent being by mistake, was not a ratification of the imperfect contract with the widow.,
    _7. The vendor could not abrogate the contract with the father, and sell his land and improvements.
    8. Inquiry, is a duty, where there is no actual or constructive notice ; where it is omitted notice will be presumed.
    9. Pennsylvania Salt Manufacturing Co. v. Neel, 4 P. F. Smith 9, adopted.
    March 14th 1872.
    Before Thompson, 0. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Tioga county: No. 301, to January Term 1872.
    This was an action of ejectment for a tract of land, containing 62 acres, in Sullivan township, commenced May 1st 1869, by Leander Aldrich and Hannah, his wife, in her right, against Robert B. Bailey, Burr R. Bailey, Frank Young, Cornish R. Mudge and Orrin T. Ames.
    Both parties claimed under William Bingham’s estate.
    On the trial June 9th 1871, before White, P. J., the plaintiffs gave in evidence articles of agreement dated December 14th 1832, between Robert H. Rose, attorney in fact for the trustees of William Bingham’s estate, and James McConnell.
    The agreement was: “ That on condition of an improvement and residence on it, the said James McConnell is to be entitled to a lot of land which was surveyed for him in the township of Sullivan, and county of Tioga, containing eighty-five acres and three-tenths of an acre, for which he is to pay to the said trustees two dollars and fifty cents per acre, in the following order, that is to say: one-eighth part on the 14th day of December, one thousand eight hundred and five, and one-eighth part, with interest annually afterwards until the whole be'paid. Interest to commence at time appointed for the first instalment to be paid. And in case the said James McConnell shall abandon the said lot, or leave it untenanted for the term of six months at any time previous to the payment of the first instalment, then the trustees of the estate of the late William Bingham, or their agent or attorney, shall have power to sell and dispose of the said lot to any other person.”
    There was evidence by endorsement on the duplicate contract which remained in the hands of the trustees, that McConnell had paid $4 for survey ; but not of any other payment by him ; McConnell took possession of the land about the date of the contract and improved it; he died some years afterwards, leaving a widow, Sally McConnell, and nine children, Charles, Eli, Henry, Mahala, afterwards the wife of Christopher Green, Hannah (the plaintiff), James, Angeline, afterwards the wife of Frederick Fair-man, Mary, afterwards the wife of Charles McArthur, and Justus. Five of these children, Charles, the oldest, Eli, Henry, Mahala and Hannah, were living with the father at his death ; the mother and these children “ remained on the place awhile,” and all the children left but Charles and Hannah, who was married in July 1847; Charles went away and came back and stayed until after Hannah was married; she and her husband lived oh the farm on different occasions for a year at a time, and finally came back and occupied the east part of the land till the trial, but had nothing to do with the west half (the part in dispute now -in possession of the defendants), which was occupied by Charles, who lived there when the mother died; the land was divided near the middle; Charles and the mother had it measured off and established a division. Aldrich, the plaintiff, farmed the premises on the shares under the mother’s direction, and lived with her until her death; the plaintiff never claimed a right to them till her death; L. Aldrich, plaintiff, testified that she went into possession of the east part under a will of the widow giving them that part.
    The plaintiffs gave in evidence by R. C. Simpson, agent of the Bingham estate, that a paper, hereafter given, was found amongst the papers of that estate, and that the land mentioned in it is the same described in the agreement of December 14th 1832, between the Bingham estate and James McConnell; the paper was signed by Sally McConnell, but was not signed by any one representing the Bingham estate; it was witnessed as to Mrs. McConnell by E. B. Geroulds, a sub-agent of the Bingham trustees.
    The paper was: “ Articles of agreement made between Alexander Baring (and others), trustees of the estate of the late William Bingham, by their attorney, William Bingham Clytner, &c., of the one part, and Sally McConnell, of Sullivan township, county and state aforesaid, of the other part, witnesseth: That the said trustees agree to sell and convey unto the said party of the second part a lot of land, &c., containing eighty-five acres and three-tenths of an acre, provided the said, party of the second part shall and does fulfil all the covenants hereinafter expressed for Mm to perform on his part, &c. The said party of the second part, &c., covenants, &c., to pay for the said land the sum of three hundred and sixteen dollars and fifty-five cents, with interest on the same, payable annually, in ten equal annual payments, &c. On the payment of principal and interest a deed of general warranty to be given.
    “ In case the party of second part shall abandon the said lot, or leave it untenanted for the term of six months at any time previous to the payment of the several instalments and interest agreed to be paid as aforesaid, or if he shall sell, cut or destroy, or suffer to be cut or destroyed, any timber, except where he may clear, fence or improve, or make use of any except for the purposes of the lot, for building on the premises, and for firewood, or if he shall sell, &c., this agreement without the consent of the said trustees or their agent or attorney first obtained in writing for that purpose, or if the interest is not annually paid, or the instalments of principal as they become due, it shall and may be lawful for the said trustees, &c., * * * without demand or entry, to make void this contract, and to hold and enjoy the said land clear of this agreement, and of all claim of anything they may have done under the same or at their option to enter judgment for the moneys due,” &c. * * *
    This paper was dated September 18th 1844.
    The plaintiffs gave in evidence a deed dated January 10th 1869, from James McConnell (the son), E. Eairman and Angeline, his wife, Justus McConnell, Charles McConnell and Eli McConnell, heirs at law of James McConnell, deceased, to Hannah Aldrich, recorded March 2d 1869, for the land in controversy and other lands.
    Deed dated March 1st 1869, from William B. Clymer, attorney of the trustees of the Bingham estate, to Hannah Aldrich, plaintiff, for the land mentioned in foregoing deed, and stated in the history of the case to be 69.6 acres ; this deed recited the agreement of December 14th 1832, with James McConnell, and also the foregoing paper, dated September 13th 1844. Mrs. Aldrich paid the purchase-money to the trustees. This deed was recorded, when did not appear, but from the page of the record-book stated in the paper-book, probably about the same time with that from the heirs.
    , This paper-book did not show anything as to this but the foregoing extracts.
    The plaintiff gave evidence by Simpson that Robert Bailey, defendant, made two payments in 1865 or 1866, on the contract of September 1844; one payment was $100, the other $50. Bailey claimed to be interested in that contract and paid this money to be applied on the purchase-money; three or four years afterwards the trustees received notice of the plaintiffs’ claim, and gave Bailey notice that he could have his money back; he did not take it and it remained in the safe at the agent’s office.
    The defendants under objection and exception gave in evidence the following release, which did not appear to be recorded, but was produced by a witness who testified that at the time of its execution Sally McConnell asked him to keep it.
    “ Be it remembered that we, the undersigned, for ourselves, our heirs, assigns, administrators, &c., do assign over to Sally McConnell and her heirs, viz., Charles McConnell, Eli McConnell, Henry McConnell, Mahala McConnell and Hannah McConnell, for and in consideration of the sum of $15, all our legal right, claim, interest, share of whatsoever name or nature in or on the real or personal estate of James McConnell, deceased, as for my equal right and share in said real or personal estate.
    “ Sullivan, March 4th 1842.
    his
    James ><< McConnell, [l. s.]
    mark,
    his
    Justus M McConnell, [l. s.]
    mark.
    Frederick Fairman, [l. s."
    Charles McArthur, [l. s.j
    Charles McConnell, [l. s.]
    “ In the presence of W. C. Ripley, John Fox, Thomas Jerril, paid witnesses.
    “ Endorsed.
    “We, the undersigned, acknowledge the within sum of $15, by note.
    Sullivan, March 4th 1842.
    his
    James M McConnell.
    mark.
    Frederick F. Fairman.
    Charles McArthur.”
    Also, under objection and exception, a deed dated July 18th 1846, from Sally McConnell to Charles McConnell, conveying the land in. dispute described as the west half of the tract. This deed was recorded after the above deeds of January 10th, and March 2d 1869, to Hannah Aldrich; the precise date of recording did not appear on the paper-book.
    The defendants gave evidence also that in September 10th 1858 Charles McConnell conveyed part of the premises to Benjamin Aldrich; this deed was recorded September 17th 1858. He testified that he had the agreement of Sally McConnell in his possession when he bought from Charles, and within two years he gave it to Mrs. Aldrich. Also a deed without date, from B. Aldrich to Levi Aldrich, which was acknowledged November 13th 1860, and recorded September 13th 1866. Levi testified that he knew of the agreement of the trustees with Mrs. Aldrich, but had not seen it. Levi Aldrich, by deed without date, but acknowledged November 13th 1860, conveyed to Martin A. Cass; this deed was recorded May 5th 1869; Cass testified that he had heard of the contract but had not seen it; Cass by deed not dated but acknowledged, September 16th 1861, conveyed to D. M. Young; this deed was recorded December 9th 1862; Young died shortly afterwards, leaving a minor son, Frank, one of the defendants, whose guardian is Cornish Mudge. The other defendants all claim under D. M. Young, and occupy the land by authority of Mudge the guardian.
    Plaintiffs requested the court to charge:—
    1. That if the jury believe from the evidence that Sally McConnell, under whom defendants’ claim, was left in possession of the land in controversy, at the time of the death of James McConnell, her husband, and remained in possession of it until she sold her interest in the same to Charles McConnell, and that his possession and those claiming under him down to the present defendants, was in pursuance of the interest or title so conveyed by Sally McConnell to Charles McConnell, such conveyance and possession will not affect plaintiff’s right to recover except as to the title of Charles McConnell arising as heir to his father’s estate, and from the paper signed by Justus and James McConnell and others, dated 4th March 1842, and purporting to convey the interest of those executing the same to Sally McConnell and certain of her heirs, among which is the said Charles McConnell and the plaintiffs in this suit.
    2. That the possession and title of the widow Sally McConnell and Charles McConnell, and those claiming under them, as shown by the evidence, except so far as such title is derived from the heirs of James McConnell, deceased, is no defence in this suit.
    _ 3. That by the contract to her from the Bingham trustees,' Sally McConnell acquired no greater title than she had before as widow of James McConnell, and if she had she would have held it as trustee for the plaintiff, Hannah Aldrich, and other heirs of James McConnell, and she could not convey it to Charles McConnell, or to others, so as to affect plaintiff’s right to recover her interest in the suit.
    4. That from all the evidence, plaintiffs are entitled to recover in this suit on her legal title given in evidence for all the land in controversy, subject to a conditional verdict, that if the jury believe from the evidence that Frank Young is entitled to the undivided title of Charles McConnell, derived as heir from his father, James McConnell, as effected by the contract signed by him and others given in evidence, it must be upon condition of. payment of a proper proportion of the purchase-money according to the contract to James McConnell, given in evidence.
    The court, after recapitulating the evidence and referring to the deeds from Charles McConnell and his successors in title to Young, said: * * *
    “ These conveyances are all recorded. By them the equitable title of the land occupied by the defendants, included in plaintiff’s writ, was vested in D. M. Young, unless the jury, from the evidence, believe that Benjamin Aldrich, Levi J. Aldrich, Martin A. Cass and D. M. Young had notice of the secret trust under which Mrs. McConnell held her contract with the Bingham trustees for the whole tract. The fact that her husband held a contract for the same land, executed in 1832, and that a duplicate of it was found in the office of the trustees after the payments had been made by one of the defendants, on the contract with Sally McConnell, in 1865 and 1867, is not notice. Proof of a knowledge of the existence of such a contract by the defendants would be. So would proof of a knowledge by said defendants of the fact that Mrs. McConnell’s husband, in his lifetime, held possession of the land in controversy under such a contract.” * ■* *
    “ Since the date of Charles McConnell’s deed, July 13th 1846, the legal possession of the tract of land in dispute has been in Charles McConnell, Benjamin Aldrich, L. J. Aldrich, M. A. Cass, D. M. Young, and the parties now in possession. So far as the evidence shows, no person has attempted to interfere with their continuous possession, or made any claim to the right of possession as against them, until the bringing of this ejectment. This long-continued, peaceable possession is pretty strong evidence that the claimants under Charles McConnell did not know anything of any other contract with the Bingham trustees for this lot of land than Mrs. McConnell’s contract, and unless the jury are satisfied from the evidence that they did have such knowledge, it cannot be inferred from-the proof of the existence of such a contract, which has been introduced by the plaintiffs in this suit.” * * *
    Upon the points of the plaintiffs, the court charged :—
    “ These points are affirmed, if from the evidence the jury find that the claimants under Charles McConnell had notice of the trust upon which Mrs. McConnell held her contract with the Bingham trustees, but they are not applicable to the case, if the jury do not find that said claimants had some notice. If said claimants were bond fide purchasers of Charles McConnell’s equity, having knowledge of the title under which he claimed, derived through the contract of the Bingham trustees with his mother, and without notice of the prior contract between said trustees and the father of said Charles McConnell, they cannot be affected by the trust which the law imposed on Mrs. McConnell when she made her contract with the Bingham trustees, and are entitled to hold the land claimed in plaintiff’s writ discharged of such trust, subject only to the amount of purchase-money due said trustees on this portion of the land under the contract between said trustees and Mrs. McConnell, and this having been paid to said trustees by Hannah Aldrich, and this title of'said trustees having been conveyed to her by deed of March 1st 1869, the plaintiffs, if not entitled to an absolute verdict, are entitled to a conditional one. If, therefore, under the facts given in evidence, the jury are of opinion that plaintiffs are entitled to an absolute verdict, they will render such verdict. But if the evidence does not authorize such findings, then they are instructed to return a verdict in favor of plaintiffs for the land described in their writ, subject to be released on payment of the purchase-money due on this portion of the land under the Bingham contract, and costs of suit, determining, also, the amount of purchase-money and interest due, and the time of payments of the same and costs.”
    The jury found for the plaintiffs' the land described in their writ to be released on the payment of $414.11.
    The plaintiffs took a writ of error and assigned for error,
    The admission of the evidence objected to :
    The refusal of plaintiffs’ points.
    The parts of the charge above given.

      H. Q. Johns, F. W. Clark and C. H. Seymour, for plaintiffs in error.

      J. B. Niles, M. F. Flliott, J. H. Bosard and N. Sherwood, for defendants in error.
    May 13th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

The legal title to the land in controversy, was in Hannah Aldrich, the wife of Leander Aldrich, by a regular conveyance from the trustees of the Bingham estate, dated March 1st 1869, and recorded April 1st, 1869. The conveyance was made, as it recites, in pursuance of a previous contract entered into between the trustees and James McConnell, her father, on the 14th of December 1832, for the land. The deed also recites, it^is said, a contract with Sally McConnell, her mother, in 1844, by an agent of the trustees for the same land, but what the nature of the recital is, 'we know not, for the deed is not on the paper-books or record, as it ought to have been.

It appears by the testimony, and it was undisputed, that James McConnell entered into the possession of the land contracted for, shortly after the date of the contract, and fully performed, in his lifetime, one of the conditions of the contract, which is set forth as follows: “ That on condition of an improvement and residence on it, the said James McConnell is to be entitled to a lot of land which was surveyed for him in the township of Sullivan, and county of Tioga, containing 85 3-10 acres, for which he is to pay to the said trustees, two dollars and fifty cents per acre, in the following order, that is to say: one-eighth part on the 14th day of December 1835, and one-eighth part with interest annually afterwards until the whole is paid,” &c. Residence and settlement were made part, and were thought to be an important part, of the consideration for the contract at that time, although the money consideration was necessary to be paid, in order to secure a conveyance. There was also a small payment made in money by McConnell, perhaps not more than equal to the surveying fees. As between the trustees and him there was not the smallest act of abandonment of the contract during his lifetime; when, therefore, he died, some years afterwards, an equitable estate in the land descended to his children, and this their mother could neither sell, surrender nor give away.

In May 1844, it would appear that Sally McConnell, the widow, applied to the trustees of the Bingham estate, for a new contract for the land, and she signed a contract for it. But there the contract ended. - The trustees never signed it, nor did she pay any portion of the purchase-money at the time, or afterwards, although she continued to live on the place until she died, some eight or ten years afterwards. The facts given in evidence are barren of dates, not in this instance alone, but in other essential particulars in this case. From this state of the facts, it is apparent that Sally McConnell acquired no equity in the land purchased and improved by her husband, under this imperfect contract. If it be thought that she acquired an equity from a portion of the heirs, by the informal assignment to her of their interest in the real and personal estate of their father in 1842, for the sum of $15, not acknowledged and recorded, it would not avail the defendants, for Mrs. Aldrich has their subsequent conveyance, duly recorded, for their interest in the land in question. Being first on record, and without proof of actual notice, her title to the land as derived from the heirs, would be the best. This is the rule of the recording acts beyond doubt: Penna. Salt Manufacturing Co. v. Neel, 4 P. F. Smith 9; and authorities therein cited.

It seems that after the death of James McConnell, and perhaps after the’ imperfect contract of Sally McConnell, with the trustees of the Bingham estate, a line was run through the land purchased by, James McConnell, and a portion set off to Charles McConnell, which I infer is the land in controversy, but about which I am not certain, the praecipe being indefinite as to whether the entire piece sold to James McConnell is included within the boundaries given or not; but I would presume it was not. Charles McConnell took possession of this portion of the land after Sally, his mother, gave him a quit-claim deed for it, in 1846. If she had ¡no title to the land, this deed gave him none, and certainly this must be held to be the case so far as her contract with the trustees is concerned. It was never executed by them, as an inspection of the paper shows, but as is also distinctly proved by Simpson & Gerould, the agents; and of course gave her no equity.

The title of the defendants is derived through a quit-claim deed from Charles McConnell to Benjamin Aldrich, and by sundry quitclaim deeds to them. Of course, as already said, these deeds amounted to nothing, excepting to estop the parties from ever claiming against them, if at the time they had any title. It appears that in 1865 or 1866, Robert B. Bailey, having a copy of the deficient article between Mrs. McConnell and the trustees, made a payment to the agent of the trustees of $100, and afterwards of $50, both payments, says the witness, Simpson, the agent, “ remain in the safe in our office. * * * Mr. Bailey claimed to be interested in the Sally McConnell contract, or in the land which it represented; paid it to apply on the purchase-money of that land.” Afterwards, on receiving notice of Mrs. Aldrich’s claim under the James McConnell contract, the agent testifies, he notified Mr. Bailey to come and receive his money back.' But this he refused to do. The deed for-the land in question and more, was then made to Mrs. Aldrich, she holding the conveyance of the heirs, and paying up the original purchase-money and interest. Thus she acquired a legal title to the property in question, as part of the original purchase by her father.

The receipt of the purchase-money on account of the Sally McConnell contract, if by mistake, as was testified to by the agent, was not a ratification by the trustees of the defective contract. Ratification is an intelligent act, and in law, I know of no case where it results from a mistake. But if this were less true than it is, the trustees have no authority to abrogate the James McConnell contract and sell his equity in the land, together with valuable improvements put on it by him. Mrs. McConnell’s contract was for the whole land, and to this Bailey’s payment applied, if it applied at all, and we think from the case as disclosed, it amounted to nothing to raise an equity in favor of the defendants. As there were ng deeds on record, it was the duty of the defendants before embarking in an undertaking to acquire title to property sold to another, to inquire of the possessor, how it stood, and where it was ? Any inquiry of Charles McConnell, also, would have disclosed who Sally McConnell was; that she was the widow of James McConnell, and that she could not acquire title for herself to property which had descended to his heirs. So an inquiry of the persons in possession would have disclosed that James McConnell died seised of an equitable title to the lands and in possession. Inquiry is always a duty where notice is not actual or constructive, and where it is a duty and is omitted, the party will be regarded as having notice; that is to say he will be considered as one who intends to take the risk of the status of things. We think that was the condition of the defendants, at least of the holder of the title under which the defence was made in the case, and therefore, we are of opinion that the learned judge should have, in the aspect in which the case stood, affirmed the plaintiffs’ fourth point, which was, “ that from all the evidence in this case, the plaintiffs are entitled to recover in this suit on their legal title given in evidence, for all the land in controversy, subject to a conditional verdict; that if the jury believe from the evidence that E. Young is entitled to the undivided title of Charles McConnell, derived as heir from his father, James McConnell, as affected by the contract signed by him and others given in evidence, it must be upon condition of payment of a proper proportion of the purchase-money, according to the contract to James McConnell, given in evidence.”

The conditional verdict rendered in the case, was widely different, as we understand it. It was for all the land embraced in the writ, some 62 acres, upon the basis that the title, or rather quitclaim, of his mother, vested Charles with title to all the west half, a portion of the land originally of James McConnell, his father. This we think under the testimony was not the case.

The first, second and third points of the plaintiffs, are substantially embraced by the fourth, otherwise they should have been answered also in the affirmative.

As to the admissions of testimony in the bills of exceptions, Nos. 1 and 2, they were in our view of the case harmless, and it was perhaps, at the 'time of their offer and admission, well enough to admit them, to enable the defendants to raise their theory of the case, but to give effect to them, we think, for the reasons already stated, was error. The defendants did not rely on Charles McConnell’s deed for title as against the plaintiffs, any further than as a transfer of his mother’s title under the supposed contract with the trustees of the Bingham estate. But as that amounted to nothing, his deed had no effect.

There is a great want of clearness in the presentation of this case, both on account of the absence of dates, and of deeds which must have been given in evidence. If unhappily this case ever comes to this court again, we trust it will be in a more transparent form than it has appeared at this time.

Judgment reversed, and venire de novo awarded.