text:
    The Insurance Company of Pennsylvania versus The Phœnix Insurance Company.
    1. An insurance company executed to Trask a marine policy on a ship, “ for account of whom it may concern, loss if any, payable to assured or order;” no assignment of the policy to lie valid “ unless the consent of the insurers be first obtained.” lie mortgaged the ship to Bell, and covenanted to keep her insured, assigned the policy in blank and delivered it to Bell as collateral; a partial loss having occurred, Held, that Bell was entitled to recover from the insurers in preference to. a subsequently attaching creditor of Trask.
    2. The transaction was an equitable transfer of the right to receive the money, not an assignment of the policy. Per Hare, P. J.
    3. The relation of insurer and insured is one of confidence; a stranger cannot become a party to the agreement without the insurer’s consent. Id.

    4. The premium note was not paid by Trask, and after the loss the insurer settled with Bell; the amount of the note being allowed to be set off, the condition against assignment which was for the insurer’s benefit was thus waived.
    5. No exception being taken below to a point reserved, the presumption was that it was assented to as a true statement of the facts.
    6. If a judge in a reserved point, state facts without agreement, the objection must be made and exception taken at the time.
    February 8th 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to tbe District Court of Philadelphia: Of January Term 1871, No. 348.
    This was a scire facias in foreign attachment, issued to December Term 1868, by The Insurance Company of the State of Pennsylvania against B. J. Trask; The Phoenix Insurance Company being the garnishees: the attachment had been served upon them September 22d 1868:
    The question in the case was, whether William Bell, mortgagee of the vessel and assignee of the policy as collateral security, was entitled to receive the amount due by the insurers in preference to the attaching creditor. Bell appeared and took defence under the garnishees.
    The plaintiff gave in evidence a policy of insurance, dated February 26th 1867, from The Phoenix Insurance Company to Benjamin J. H. Trask for $5000, “lost or not lost, at and from the 15th day of December 1865, at noon, and to continue until the 15th day of December 1867, at noon, and if then on a passage, with liberty to renew for not exceeding three months, &c., ‘ for account of whom it may concern, loss, if any, payable to the assured or order,’ upon the ship called the Shakespeare, valued at $80,000.”
    The policy contained also this clause: “ It is also agreed that no assignment of this policy shall be valid unless the premium has been paid or note given therefor is further secured by a previous endorsement of the person or persons for whose benefit said assign ment is intended, and unless the consent of the insurers be first obtained.”
    The signature of B. J. H. Trask, Jr., was on the back of the policy.
    It was agreed at the trial that there was a partial loss on “ The Shakespeare,” and that there was due on the policy by the garnishee the sum of $1283.93, being their adjusted share of the loss.
    The garnishees gave in evidence a mortgage of the “ Shakespeare,” dated July 8th 1867, from Trask to BelLfor $40,000; the mortgage contained a covenant by Trask to keep the vessel insured for the benefit of the mortgagee.
    Bell testified, that he had lent Trask money in 1865,1866, and 1867, and that Trask had executed the mortgage on.the ship as security for the debt, and assigned and delivered to him the policy as collateral security for the mortgage; that the endorsement in blank had been made to him at the same time; he had not possession of the vessel at the time of the loss.
    H. J. Moody testified: “ I acted as the agent of Mr. Bell in the adjustment and collection of these insurances on the Shakespeare. Early in September 1868 I had an interview with Mr. Wucherer, the president of the Phoenix Insurance Company, in relation to the amount due by the Phoenix Company on this policy, in which interview I told Mr. Wucherer that Mr. Trask had assigned in the policy to Mr. Bell. Mr. Wucherer claimed to set off against the amount due upon the policy, the amount of another premium-note of Mr. Trask’s which they held.”
    The following letters from Mr. Wucherer were put in evidence:
    “ Philadelphia, September 6th 1868.
    “ Messrs. Moody & Telfair, New York:

      “ In reply to your favor of the 15th we have to inform you that we are willing to settle the claim for loss on ship Shakespeare on the basis of $30,667.67, as adopted by the Orient & International Insurance Companies of New York, our proportion being l-16th or $1916.67, from which is to be deducted the amount due under a judgment obtained through our attorney, William D. Booth, Esq.”
    “ Philadelphia, September 22d 1868.
    “ Messrs. Moody & Telfair, &c.:
    “ We wrote you on the 16th instant stating our willingness to settle the claim for partial loss on the ship Shakespeare on the basis adopted by the Atlantic and other insurance companies of New York, making our proportion $1916.67, deducting therefrom the amount due under our judgment against Mr. Trask, since when we have not had the pleasure of hearing from you. We have now to inform you that we have this day been served with an attachment at the suit of the Insurance Company of the State of Pennsylvania for any funds in our hands of Benjamin J. H. Trask.”

      The court instructed the jury to find Tor the plaintiff, and reserved two points:—
    1. Whether the endorsement of the policy by Trask, and his delivering it to Bell, in pursuance of the covenant to keep the ship insured for the benefit of the latter, was a good, equitable assignment of the amount, if any, that might become due under the policy to Trask, constituting an answer to the attachment subsequently laid on the garnishee.
    2. Whether the agreement by the garnishee to appropriate the amount due to Bell on the policy, as assigned, to the payment of the premiums due by Trask, was a waiver of their right to rely on the non-payment of premium by Trask, as a reason why the assignment should be void.
    The verdict was for the plaintiffs, finding in the hands of the garnishee $1283.93.
    The court afterwards entered judgment for the garnishees on the points reserved, non obstante veredicto: Hare, P. J., delivering the following opinion:—

      “ This case arises under the following circumstances: It is an attachment issued by the plaintiffs for the amount due on a marine policy executed by the defendants in favor of Trask, the defendant in the judgment. The garnishees admitted the execution of the policy and the loss, but contended that the demand had been assigned by Trask prior to the attachment, as collateral security for a mortgage of the vessel to William Bell, who appeared and took defence under the garnishee.
    “ The evidence on this point was as follows: Trask mortgaged the ship to Bell by an indenture dated July 8th 1867, containing a covenant to keep the vessel insured for the benefit of the mortgagee. There was no formal or written transfer of the policy, but it was endorsed in blank by Trask and given to Bell in pursuance of the covenant. These facts were not contested by the plaintiffs at the trial; but it was contended that the transfer was invalid, because the consent of the insurers had not been given as required by the policy, which contained the following condition : 4 Provided, that no assignment of this policy shall be valid unless the premium has been paid or the note given therefor is further secured by a previous endorsement of the person or persons for whose benefit said assignment is intended, or unless the consent of the insurers be first obtained.’ The question therefore is, whether there was a failure to comply with the terms of this provision invalidating the transfer of the policy to Bell.

      “ The assignment of a policy of insurance may be viewed in two different aspects. In one of them it passes the insurance considered as such. In the other it is a mere equitable transfer of the right to receive any sum that may be due in the event of a loss. A purchaser who buys a vessel and takes an assignment of the policy, is substituted in place of tbe vendor. He must, it is true, sue in the name of the latter, but the recovery is in his own right, and the defendants cannot rely on the determination of the insurable interest of the nominal plaintiff as a bar. The liability of the insurers is under these circumstances for all practical purposes the same as if the insurance had been effected in the first instance by the assignee. It is a qualified negotiation of the instrument, which may be likened to the passage of a covenant of warranty with the estate to which it is made incident by the deed. Such is also the rule in the case of an insurance against fire, except that the consent of the insurers is requisite to give validity to the transfer.
    “ On the other hand, an assignment of the policy to a stranger in interest, can only operate as an equitable appropriation or transfer of the damages that are or may be payable for the destruction of the property by the perils for which the insurers have agreed to be answerable. The fund is assigned and not the contract, nor the right to be indemnified under it in the event of loss. The assignee stands in the shoes of the assignor without acquiring a neAY or independent status, and cannot recover unless the assignor has an insurable interest when the loss occurs. Such an instance is afforded by the transfer of a policy as collateral security to a creditor who has no estate or interest in the premises insured: Bibend v. Liverpool, 30 California 78.
    “ In the cases above supposed, the distinction is plainly marked and may be readily applied, but there is a third where the assignment may have a twofold operation, and it is not always easy to say which was designed. This occurs Avhen the policy is transferred to a mortgagee of the property covered by the insurance. Here there are tAvo insurable interests, each of which may subsist and be a ground of action, notwithstanding the determination of the other. The mortgagor is entitled to indemnity as the owner of the equity of redemption; the mortgagee, by virtue of his lien for the debt; and as the extinguishment of the mortgage will not affect the right of the mortgagor, so a sale or alienation by the mortgagor ayíII not preclude a recovery by the mortgagee. Such at least is the case when the consent of the insurers is obtained, or is not requisite to the validity of the transfer, and there is no condition against alienation. When, however, the insurance is against fire, or contains a proviso that it shall not be assigned without the consent of the insurers, a different question may be presented. If the property is conveyed under these circumstances and the policy transferred to the purchaser without the sanction of the insurers, the insurance will be at an end, and there can be no liability under it for a subsequent loss. The assignor cannot recover, because his insurable interest has been determined by the sale; and the assignee is not a party to the contract originally, or by virtue of the assignment. When, lioAvever, the policy is assigned to a mortgagee, and not to an absolute purchaser, there is this material difference, that the assignor retains an insurable interest, and may recover as if the mortgage had not been executed. His right in this regard is a chose in action, a demand assignable in eqitity to any one to whom he thinks fit to transfer it; and it may consequently be transferred as a collateral security to the mortgagee. It is immaterial that the policy does not attach to the insurable interest of the latter; he will still be entitled to the amount due for any loss that may be sustained by the mortgagor. The assignee contends that this Anew should be taken in the present instance. If the assignment did not operate to pass the contract of insurance because the assent of the insurers Avas not given, it should still be construed as an equitable transfer of the claim of the assignor to compensation for the loss.
    “ The force of this argument is so obvious, that it must prevail unless excluded by the terms of the policy. It is well established that a contract should be so 'construed ut res valeat; and general words of grant will consequently be applied to that which the party can transfer, and not to that Avhich he cannot. A vessel which has been insured is mortgaged. The insurers do not, perhaps will not, sanction an assignment of the policy. The loss is, however, payable by the terms of the instrument to the order of the mortgagor, and Avould be so if there were no express stipulation. Instead of giving an order or power of attorney, with a clause declaring his intention to pass the fund irrevocably by Avay of anticipation, he endorses the policy in blank and delivers it to the mortgagee in pursuance of an agreement to keep the property insured for the benefit of the latter. Manifestly the transaction should be construed in accordance Avith the intention of the parties as an equitable transfer of the right to receive the money, and not as an assignment of the policy as an insurance.
    “ It is, hoAvever, said, on behalf of the plaintiffs, that the words of the condition are broad enough to include any assignment, either of the policy, as such, or of the amount that may be due under it in the eve^t of loss. In considering this argument, it is necessary to remember that restraints on alienation are to be strictly construed. Of two interpretations, that is to be preferred which reconciles their operation with the general principle that every one may give what he possesses or is entitled to receive. A man who contracts with one person may well refuse to permit another to become a party to the agreement. This is peculiarly true when the relation is one of trust and confidence, which is necessarily the case betAveen the insurers and the insured. The former may therefore properly require that they should not be put under an obligation to indemnify a third person by an act to which they do not agree. But a provision that the insured shall not be permitted to transfer the amount that may become due under the contract as originally made, is a very different thing. Rights of action
      ex contractu are in the contemplation of equity as susceptible of alienation as rights which have been reduced into possession. In either case a restraint imposed capriciously without a sufficient cause, is contrary to good policy and void.
    “ It is accordingly established that the right of action arising from a loss may be transferred subsequently without the consent of the insurers, notwithstanding the express provision that if such an assignment be made, ‘ the policy shall be void, and all liability of the company under it shall henceforth cease.’ The West Branch Insurance Company v. Helfenstein, 4 Wright 289. Woodward, C. J., said that ‘however competent it might be for the company to make the contract of insurance dependent upon such a condition, it was not competent for them to limit the legal effect of a claim upon them after a loss. The insured acquired by reason of the loss, a legal right to receive so much money from the hands of the company. That chose in action he might assign. The condition appealed to was not a defence. If it was applicable to a case like that under consideration, it was void and null because opposed to the law of the land.
    “ In this instance, the assignment was subsequent to the loss; but the reasoning of the Chief Justice is not less in point where the transfer is made, previously and designed to take effect when the loss occurs. A man cannot, it is said, assign the freight of the ship which he is about to build, or the wool of the sheep which he intends to buy; but a contingent right depending on an existing contract is assignable in equity, and for some purposes, at law.
    “ These views are sustained by the cases of Cresswell v. The Brooklyn Eire Insurance Company, 39 Bark. 227, and Shotwell v. The Jefferson Insurance Company, 5 Bosworth 247, which bear a close analogy to the present, and are indeed identical in principle. The former case was virtually a bill in equity by an unpaid vendor to have the benefit of an insurance effected by the purchaser. It appeared from the evidence that the vendee had gone into possession under an agreement to keep the premises insured as security for the unpaid balance of the purchase-money. A policy was taken out in pursuance of this agreement, which contained the following proviso: ‘ The interest of the insured in this policy is not assignable unless by consent of this corporation, manifested in writing. In case of any transfer or termination of the interest of the insured, either by sale or otherwise, without such consent, this policy shall thenceforth be void and of no effect.’
    “ The court held that if the interest of the assured had been assigned without consent, it would have been a breach of the condition, and no recovery could have been bad on the policy by any one. It was, however, established under Mellon v. The Eranklin Fire Insurance Company, 17 New York 609, that such a clause did not apply to a transfer of the policy, or of the claim arising under it, after the happening of a loss. In the case before the court, the plaintiff was not an assignee of the policy in the sense of the condition, nor did his claim arise through a transfer of the interest covered by the insurance. His true position was that of an equitable assignee of the right of the purchaser to compensation for the destruction of the premises. It had been contended that an equitable assignment of the policy of insurance was as much within the prohibition of the policy, and within the mischief it was intended to prevent, as a legal assignment. It was not necessary to consider the truth of this proposition, because the right which plaintiff had acquired was not to the policy as such, buffo the money due as compensation for the loss. Such an assignment was not equivalent to an assignment of the policy, whether made before or after the occurrence of the injury. The short answer to the objection made on behalf of the insurance company, was that the plaintiff was an equitable assignee of the fund arising out of the obligation of the contract, and not of the policy, and therefore not within the clause prohibiting the assignment of the policy.
    The distinction was drawn with much precision in Shotwell v. The Jefferson Insurance Company. The plaintiff effected an insurance on his real estate, Avith a proviso that the premises should not be alienated, or the policy be assigned without the consent of the insurers. He subsequently sold the house, and covenanted to keep it insured for the benefit of the vendee. The latter went into possession, and paid the purchase-money except the last instalment of $1500. It was held, under these circumstances, that the policy was not avoided by the sale. The vendor might recover to the extent of his insurable interest, or, in other words, so far as he was prejudiced by the loss. The judgment must, however, be limited to the amount of the purchase-money. There could be no recovery under the policy for the injury sustained by the vendee. In this regard, it made no difference that the vendor had covenanted to keep the premises insured for the benefit of the purchaser. This stipulation operated as an equitable assignment of any demand that might accrue in his own right; but did not confer an independent right on the covenantee. The consent of the insurers was requisite to the transfer of the policy as an insurance, it was not requisite to the transfer of the policy as a demand. It followed that the insurers were not entitled to subrogation to the lien for the unpaid purchase-money. If such a right could have arisen under other circumstances, it wás precluded by the covenant which operated as an implied assignment, entitling the vendee to have the fund applied to the extinguishment of the unpaid balance of the purchase-money.

      We may, therefore, draw the following inferences with regard to the case in hand: 1st. That the assignment should be viewed as a transfer of the claim for damages in the event of loss, and not of the policy as a contract to insure; and next, that this claim might be transferred without the consent of the insurers, notwithstanding any provision to the contrary in the contract. If, however, we thought differently on these points, we should still be of opinion that the plaintiffs were not entitled to judgment. The policy is against losses by the perils of the sea; and might, consequently, pass to any one who acquired a title to the vessel unless restrained : Powles v. Jones, 13 M. & W. 101. The restraint imposed was not absolute, but that no transfer should be valid without the consent of the insurers, ‘ unless the premium had been paid or the note given therefor was further secured by the previous endorsement of the person or persons for whose benefit the assignment was intended.’ The premium was not paid when the insurance was effected by Trask, nor was the note given for it endorsed by Bell when the policy was subsequently transferred; but on the 16th of September 1868, the garnishees came to a settlement with Messrs. Moody & Telfair acting for Bell, by which it was agreed that the loss should be paid to him after deducting the amount of a judgment which had been obtained for the premiums due by Trask. This arrangement took place prior to the attachment, and with full knowledge that Bell claimed as assignee. The effect was to satisfy the premiums by setting them off against the amount due under the assignment. It was, therefore, not only an admission by the garnishees that the assignment was valid, but a bar precluding them from alleging the non-payment of the premium as a reason why it should be void. A provision against the transfer of a policy is intended for the benefit of the insurers, and, if waived by them, cannot be set up by a creditor under a subsequent attachment.
    “ The case is, therefore, against the plaintiff in every respect, and judgment is entered for the garnishees on the points reserved.”
    The plaintiffs took a writ of error.
    The specifications of error were:—
    I. Reserving the 2d point, because the statements therein contained were not agreed to by the parties, nor was there any evidence to support the same.
    2 and 3. Not entering judgment for the plaintiff on the verdict; and entering judgment for the garnishee on the points reserved non obstante veredicto.

      J. S. Q-endell and JE. S. Miller, for plaintiffs in error.
    A mortgagee, as such, has no interest in an insurance by the mortgagor : Phillips on Ins., § 405. A “ policy for whom it may concern” is for the benefit of those who are, in the contemplation of the parties, making the insurance: 2 Duer on Ins. 30-34; 2 Phillips on Ins., §§ 379-383; De Bolle v. Ins. Co., 4 Wharton 68; Steele v. Franklin Ins. Co., 5 Harris 290.
    The assignment was invalid under the last clause of the policy, 1st, because the premium had not been paid, nor the note given therefor secured by the endorsement of the assignee: 2d, because the consent of the insurers was not obtained.
    The restriction is valid: Ferree v. Ins. Co., 17 P. F. Smith 373; 1 Phillips on Ins. § 107; 1 Parsons on Marine Ins. 60; and it is doubtful whether a transfer before loss of the amount, if any, that might become due under the policy, would be sustained. The confidential relationship between the insurer and the insured still exists. It would very palpably have been a mere device to avoid the effect of the condition.
    The 2d point was improperly reserved: the facts, upon which the point reserved arises, must be either admitted on the record, or found by the jury: Wilson v. Steamboat Tuscarora, 1 Casey 317. There was no evidence of the facts assumed by the court to exist.

      J. B. Thayer, for defendants in error.
    The words, “for whom it may concern,” and loss if any payable to assured or order, imply an intention to cover other interests than that of the insured, and constitute an express waiver of the condition requiring the assent of the insurers to an assignment: 1 Parsons on Ins. 55, 56; Nat. Ins. Co. v. Crane, 16 Md. 260; Brown v. Roger Williams Ins. Co., 5 R. I. 394; Rogers v. The Traders’ Ins. Co., 6 Paige 583; 1 Parsons on Ins. 65. The assignment to which the restraining clause in a marine policy is intended to apply, is an absolute assignment, not an assignment to a mortgagee as collateral: 1 Parsons on Ins. 59; Ellis v. Kreutzinger, 27 Missouri 311; Folsomb v. Belknap, 10 Foster 231; Lazarus v. Commonwealth Ins. Co., 5 Pick. 76; Prices. Tower, 1 Gray 426; Mellen v. Hamilton Ins. Co., 17 N. Y. 635. There was an express waiver of the condition when the garnishee, prior to the attachment, and knowing of the assignment, agreed upon a settlement of the loss. Such waiver may be by parol: Penna. Ins. Co. v. Bowman, 8 Wright 89; Buckley v. Garrett, 11 Id. 204. A policy of insurance is transferable like any other chose in actiou, and without notice to the underwriters, vests an equitable interest in the assignee: 1 Parsons on Ins., p. 52; Godin v. London Ins. Co., 1 Burrows 496; Wells v. Archer, 10 S. & R. 412; 1 Phillips on Ins. 98.
    A clause prohibiting assignments after loss, is void: West Branch Ins. Co. v. Helfenstein, 4 Wright 289. A chose in action, equitably assigned, is not liable to attachment: Canal Co. v. Ins. Co., 2 Phila. R. 354; Nesmith v. Drum, 8 W. & S. 9; Watson
      v. Bagaley, 2 Jones 164; United States v. Vaughan, 3 Binn. 394; Pellam v. Hart, 1 Barr 263; Cromwell v. Brooklyn Ins. Co., 39 Barbour 227; Dickinson v. Philips, 1 Id. 454; Carter v. Rocket, 8 Paige 437; Providence Bank v. Benson, 24 Pickering 204; Drake on Attachment, § 204. An attaching creditor stands upon no better footing than his debtor: United States v. Vaughan, 3 Binn. 394; Dix v. Cobb, 4 Mass. 508; Walker v. Coover, 15 P. F. Smith 430; Drake on Attachment, § 608 et seq.; Walters v. Washington Ins. Co., 1 Iowa 404.
    February, 15th 1872,
   The opinion of the court was delivered by

Sharswood, J.

We affirm the judgment upon the opinion given by the learned president of the District Court. The condition contained in the policy against assignment was for the benefit of the insurers and could be waived by them, and even if the question arose upon the record we think there was ample evidence that they did waive it. No exception was taken to the reservation in the court below, and such being the ease, we are bound to assume that it was assented to or acquiesced in by all parties as a true statement of the facts. Very great injustice might be done if a party not objecting at the time of the reservation should be permitted afterwards to take the ground that there was no evidence of the facts or that they ought to have been submitted to the jury. If a point of law be reserved it must be done by stating on the record the facts on which it arises: Winchester v. Bennett, 4 P. F. Smith 510; Wilde v. Trainor, 9 Ibid. 439; Ferguson v. Wright, 11 Ibid. 258; Campbell v. O’Neill, 14 Ibid. 290. Unless the facts are found by the jury specially, there is no mode of reserving a question but by an agreement, and if the judge states the facts without such an agreement, the party must make his objection and enter his exception at the time according to every rule for the fair trial of causes.

Judgment affirmed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Fisher versus Rush.
    1. Pislier, being life-tenant, leased to Harding for ten years, at a money rent, Harding also to take down an old building and erect a new one; the remaindermen agreed that the lease should continue during the term, although Fisher should die. Rush erected the building and entered a lien for the erection and “alteration, repairing and improvement.” Eeld, 1. The lease was a contract with Harding for the erection of the building. 2. Fisher was the person in possession at the commencement of the building, at whose instance it was erected, and was within sect. 24, Act of April 28th 1840. 3. The Act of August 1st 1868 does not apply, the words “ alteration, repairing and improvement” in the lien being surplusage. 4. The lien could be sustained.

      2. Bush took notes from Harding for the amount due him, on which judgment was recovered: Hád, that the notes did not relieve the lien. Per Stroud, J.
    February 8th 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, 0. J., at Nisi Prius.
    Error to the District Court oí'Philadelphia: No 33, to January Term 1871.
    This was a scire facias issued December 17th 1869, on a mechanic’s lien, by Jacob Rush against Eliza B. Fisher, owner, and John D. Brown and P. A. Harding, lessees and contractors.
    The lien was filed June 11th 1869; the claim being for $8240.09, for work and materials for a three-storied building occupied by P. A. Harding & Co., on the lot No. 806 Arch street, Philadelphia; part being under a contract with the lessees and the other part according to the bill of particulars annexed to the claim at the request of P. A. Harding & Co., “ for and towards the erection and construction, alteration, repairing of and improvement and on the credit of said building.”
    The contract referred to in the claim was between Jacob Rush and John D. Brown and P. A. Harding, dated October 31st 1868, by which Rush agreed to “ take down and rebuild the old building on lot 806 Arch street. * * * Rush taking all the risk and furnishing all materials, and deliver the same to Brown & Harding on or before February 1st 1869;” Brown & Harding to pay Rush $7000 in monthly instalments, commencing on November 1868, and ending in July 1869.
    The “ bill of particulars ” mentioned in the claim was for counters, shelving, heaters, &c., amounting to $1243.09. A case stated was filed by which it was agreed that Samuel H. Fisher, being the owner of the premises, died in 1865, having by his will given to his wife the said Eliza B. Fisher, defendant, all his real estate for life, and directed that on her death it should be distributed under the intestate laws of this Commonwealth. He left his widow and seven children to survive him. Mrs. Fisher, by lease dated June 15th 1868, let the premises to P. A. Harding for ten years, from the 1st of August then next, he “ paying for the same unto the said Eliza B. Fisher, for and during the full term of her life, then to Jeremiah Smith, for the benefit and use of the heirs of Samuel H. Fisher, deceased, who have the remainder of the property under the will of Samuel H. Fisher, the yearly rent or sum of fifteen hundred dollars, in monthly payments as therein expressed, and further improving the said property and keeping the same fully insured as hereinafter stipulated and covenanted.
    “ And also that the said P. A. Harding, &c., will on the commencement of the term of this lease, begin to prepare for the removal of the building now erected on the said lot of ground. And as soon as arrangements can be made will commence and finish as speedily as possible the erection of a new store building on the said lot, of which the front portion shall be at least three stories in height. * * * The said building shall be substantially erected and well finished, and shall be adapted to the millinery goods or dry goods business, and shall never be used for the manufactory of anything in which machineryis employed, whereby the building may be in any way injured or the value of the property lessened. The front of the said building is to be of as good material as pressed brick, and finished in an ornamental manner. Gas-pipes are to be placed in all of the rooms, and the necessary flues are to be constructed.”
    The children of the testator, who would take under the intestate laws on the death of Eliza B. Fisher, afterwards agreed that in the event of her death before the lease should expire, Plarding should hold the premises until the end of the term. Harding entered into partnership with Brown, and assigned to him an undivided part of the lease, Brown binding himself to pay half the rent and jointly to perform the other covenants. Harding & Brown then entered into the contract set out in the mechanic’s claim as before stated. Rush, in pursuance of the agreement, took down the house on the premises and erected another according to his contract, “and under and by virtue of the covenant in the lease.”
    On the 28th of Jannary 1869, Harding & Brown assigned the lease to Thomas Woods, as collateral security for three notes, amounting in all to $5613.25.
    Nothing remained of the old building but the western party-wall, part of the foundation wall, and bricks of the old building. On its completion the building was delivered to Harding & Brown, the contract having been fully complied with by Rush; and all the mechanics and material-men having released Rush : up to July 19th 1869, Brown & Harding had paid. Rush $3827.50. On the 12th of May 1869, Brown & Harding gave to Rush five notes of about equal amounts, payable in three, five, seven, nine and twelve months respectively, amounting in all to $3375.66. They gave him also a note for $1400, on which they paid him $221 on the 19 th of July 1869 ; all these notes had been passed away by Rush, had been dishonored and taken up by him, and were still owing, except the $221. On two of them judgment had been obtained by Rush’s endorsee against Harding & Brown ; the judgment was unsatisfied and had been marked to the use of Rush. Shortly before December 1869, Harding and Rush agreed that the payments made should be first applied to the payment of the bill of $1243.09, for counters, shelving, &c.; the notes of May 12th 1869 were given under an agreement with Harding & Brown that they should not discharge the building, but were received only as collateral, and were to discharge the lien only when paid; at the same time Harding & Brown were notified that the lien would be entered before the expiration of six months: they subsequently informed Rush that they could not pay the notes and directed the lien to be entered.
    Woods went into the possession of the premises under his above-mentioned assignment, between June and November 1869, with notice of the foregoing facts, and in this scire facias he W'as duly served as terre-tenant. In 1870 he purchased all Harding & Brown’s right at sheriff’s sale.
    It was also agreed by the case that “ if the court should be of the opinion that the plaintiff is not entitled to maintain this lien, then judgment to be entered in favor of the defendants; but if the court should be of the opinion that said plaintiff is entitled to judgment, then judgment to be entered for the plaintiff. If the court should be of the opinion, that notwithstanding the agreement relating to the appropriation of the payments, first to the payment of the $1243.09 for counters, shelving, &c. ; said payment must be applied to the $7000 contract, then all the payments, viz., $3827.50, to be credited on the $7000 contract, and the judgment be liquidated at $3173.50, with interest from May 12th 1869. If the court should be of the opinion that the receipt of Harding & Brown’s notes, selling or transferring them, and judgments thereon against Harding & Co., entitled the defendants to claim a credit therefor, then the judgment to be entered for the defendants; and should the court be with the plaintiff on all the points, then judgment to be entered for plaintiff for $4415.50, with interest from May 12th 1869.
    The court, Stroud, J., entered judgment for the plaintiff for $3486.47, “the whole of his claim, exclusive of the $1243.09, the amount stated to be the value of the counter and shelving.”
    The defendant terre-tenant took a writ of error.
    No assignment of errors appeared on the paper-book.

      G. S. Selden, for Woods and J. B. Honey, for Fisher, plaintiffs in error.

      B. S. Simpson and G. H. Davis, for defendants in error.
    February 15th 1872,
   The opinion of the court was delivered by

Sharswood, J.

The lease by the plaintiff in error to Harding was in this instance a contract by him to erect the building. He wras to be paid, not in money, but in the term for years of the premises; the increased rent would be his until the termination of the lease, when it would enure to the benefit of the life-tenant and owners in fee. It is clear that Mrs. Fisher was “ the person in possession at the time of commencing the said building and at whose instance it was erected,” and so within the letter as well as spirit and intention of the Act of April 28th 1840, sect. 24, Pamph. L. 474. The case is not distinguished from Woodward v. Leiby, 12 Casey 437; Leiby v. Wilson, 4 Wright 63; Hopper v. Childs, 7 Id. 310.

It is equally clear that the provisions of the Act of August 1st 1868, Pamph. L. 1168, do not apply. That act is specially confined to debts contracted “ in or about the repair, alteration or addition to any house.” The claim filed in accordance with the fact is for a debt contracted, “ for and toward the erection and construction ” of the building. Although the words “ alteration and repairing of and improvement” are added, they are evidently mere surplusage and cannot change the character of the lien.

Judgment affirmed.


author: Williams, J.

text:
    Wistar et al. versus Philadelphia.
    1. The city of Philadelphia has no power to open a street without paying or giving security to the owner of the land for damages.
    2. The city has no power to construct a culvert in a street not opened, although laid out.
    3. A street was laid out and viewers appointed to assess damages; they reported no damages to Wistar; he filed exceptions ; the city could not open the street while proceedings were pending without giving security for the damages.
    4. While the proceedings were pending the city made a culvert in the street: Held, that a municipal claim for the cost could not be sustained against Wistar.
    February 9th 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 326, 327 and 328, of January Term 1871.
    Each of these cases was a scire facias on a municipal claim by The City of Philadelphia, to the use of Wilson & Hailey, against “Wistar Est., owner or reputed owner-or whoever may be owner.” The writs were issued November 19th 1870. The return was “made known by posting and publication and ‘Nihil,’ as to defendant.”
    The lien was filed in the District Court of Philadelphia by The City of Philadelphia, to the use of William H. Wilson and John Hailey, trading as Wilson & Hailey, against “ Wistar Est.,” owner or reputed owner, or whoever may be owner, for the sum of two hundred and forty-three dollars, “ for work and labor done and performed, and material furnished in constructing culvert in front of all that certain lot or piece of ground, situate on the east side of Ontario Street, commencing,” &c. '
    An affidavit of defence was filed, viz.:
    “ Richard Wistar, one of the defendants, for himself and for his co-defendant, being duly sworn according to law, declares that he has a just and legal defence to the whole of the plaintiff's claim in each of the three cases, the nature and character of which are as follows: That since the passage of an ordinance directing the Chief Commissioner of Highways to open and grade Ontario street, north from Girard Avenue to Thompson street, the fee simple of the lots bounding thereon — and for culverting along which in part, these three liens are filed — has descended to the defendants, their deceased aunt, Miss Sallie Wistar, having only a life estate therein; that * * * the opening of said Ontario street would cut the said lots in a manner highly damaging to value thereof, and justly entitling them to heavy damages from the owners on the Broad street front, who were the petitioners for opening the same; that these defendants presented a petition to the Court of Quarter Sessions, praying a jury to assess the damages, by reason of the city taking the ground of these defendants; that said jury reported that no damages were to be paid to these defendants, for so taking their land, which report was filed in court; that within the time allowed by law, these defendants filed exceptions to the errors, both in law and fact, to said report, which said exceptions have never; been reached for argument in said court, but are still pending and undetermined; that hearing, by rumor, that the highway department, or some of its officers, were about awarding a contract for building a culvert along the line of Ontario street, these defendants served written notice upon the chief commissioner of the department, of the foregoing facts, and that the report of the jury aforesaid was still pending and not yet confirmed, and that any contract for building any culvert thereon, before the confirmation of report according to law, would be, as they were advised, illegal; and that any attempt to enforce any claim or lien would be resisted. Yet, while the report of jury was then and still is depending and undetermined, the contract was awarded, as they are informed, without any security having been entered or given, to secure to the defendants their damages for taking said land, on a final report of a jury, to the contractor for whose use these claims are marked: And these defendants, by B. Wistar, further say, that although well known to the department, and to said contractor, as being the owners of the lots against which these claims are filed; and their residence in the City of Philadelphia likewise well known; yet, the scire facias aforesaid, in each case, was not served upon these defendants, or either of them, or any effort made to do so.” * * *
    The court entered judgment for the plaintiff for want of a sufficient affidavit of defence for §246.17.
    This was assigned for error on the removal of the case by defendants to the Supreme Court.

      P. Wain, for plaintiffs in error.
    The street could not be opened till damages were determined; until opened a culvert could not be made: Commonwealth v. Philadelphia, 2 Whart. 294. The street could not be opened before security was given to owner of land for his damages: Act of April 21st 1855, § 7, Pamph. L. 266, 2 Br. Purd. 1287, pl. 124; Sower v. City, 11 Casey 231; Large v. City, Id. in notâ.

      Savidge and Powell, for defendants in error.
    February 26th 1872,
   The opinion of the court was delivered, by

Williams, J.

It is clear that the city has no' authority to open a street without paying or giving security for the payment of the damages that may be occasioned to the owners of the land over which it is laid out: Sower v. The City of Philadelphia, 11 Casey 231. And it is equally clear that the corporation has no power to construct a culvert or sewer in a street until it has been legally and properly opened. Though laid out, it is hot a street within the meaning of the acts authorizing the construction of sewers in the streets of the city at the expense of the owners of the property fronting thereon, until it has been duly opened by authority of law. It follows that the city had no authority to open Ontario street through the defendant’s ground, and to construct the culvert for which the claims in these cases were filed, while proceedings ivere pending in the Court of Quarter Sessions for the assessment of the damages sustained by the defendants, without first giving security for the payment thereof. The affidavit of defence substantially alleges that the opening of the street will cut the defendants’ lots in a manner highly damaging to the value thereof; that proceedings to assess the damages occasioned the defendants thereby, are still pending and undetermined in the Court of Quarter Sessions; that the defendants served written notice upon the Chief Commissioner of the Highway Department of the pendency of said proceedings, and that any contract for building any culvert on the line of Ontario street before the confirmation of the report of the jury, would be, as they were advised, illegal, and that any attempt to enforce any claim or lien would be resisted; yet in face of said notice, and after receiving the same, and while the report of the jury was then and is still depending and undetermined, the contract was awarded to the contractor for whose use these claims are marked, without any security having been entered or given to secure to the defendants their damages for taking said land.

If the facts be as alleged in the affidavit, it is plain that the city had no authority to construct the culvert and to charge any part of the cost thereof on the defendants’.property; and the District Court erred in entering .judgments for the plaintiffs in these cases for want of a sufficient affidavit of defence.

The other grounds of defence set up in the affidavit need not be specifically noticed. It is enough to say that there is nothing in any of them that would constitute a defence to the claims sought to be recovered.

Judgment reversed, and a procedendo awarded in each case.


author: Per Curiam.

text:
    Evans versus Chew.
    1. The 67th sect, of Act of February 24th 1834, coniines powers extended to administrators c. t. a. to those given to executors virtute officii, and not to a power of sale collateral to their duties as executors or unconnected with them.
    2. A general power to sell will be presumed to be for the payment of debts.
    3. A purchaser is not required to call for an account, or an inventory of personalty, or list of debts.
    4. A power to sell for the purpose of distributing the proceeds amongst persons named in the will, is a power belonging to the executor, virtaie officii, as well where the power is discretionary as where the direction is absolute.
    5. Ross v. Barclay, 6 Harris 179 ; Waters v. Margerum, 10 P. F. Smith 39, explained.
    February 9th 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Certificate from Nisi Prius: No. 404, to January Term 1871.
    This was an action and case stated, in which Benjamin Chew and Samuel Chew, administrators d. i. n. c. t. a. of Benjamin Chew, deceased, were plaintiffs, and Thomas W. Evans defendant. The action was entered March 10th 1871.
    The case stated exhibited the following facts: The decedent being seised in fee, amongst other real estate, of a lot of land in Germantown, situated on Germantown Avenue, died, having made his will dated March 16th 1835, by which he gave to his wife an annuity, and devised to her his real estate in Germantown called Cliveden, for life, if she should make that her permanent residence ; in case she should not desire to do so, he authorized his executors or the survivor to sell it, and invest the proceeds for her benefit during life, and at her death the proceeds to merge in his general estate, charging it however with the payment of $16,000 to his daughter Anne. He charged his children with specific sums as advancements, and to some he directed certain portions of his land to be conveyed. He further provided :—
    “ I trust that a due allowance on this and all other subjects will harmoniously be made by my children above named each with the other in the manner above stated, and that it will be an easy matter with my executors and children to arrange their different accounts with each other, no interest is to be charged on any of the advances I have made — under these considerations it is my will and desire and I do hereby order and direct that all my lands houses and real estate whatsoever and wheresoever the same may be situated, shall be sold and disposed of by my executors hereinafter named or the survivors or survivor of them in such parts and parcels and at such time or times and on such terms and in such manner as my said executors or the survivors or survivor of them shall in their good discretion think fit and most advantageous for the benefit of my estate, reserving the estate called Cliveden which is not to be sold until after the death of my dear wife if she should not think proper to dispose of the whole or a part of it ■ earlier in the manner I have hereinbefore expressed and empowered her to do and I do hereby give and grant to and invest in my executors hereinafter named and the survivors or survivor of them full ample and complete authority power and right to sell and dispose of and legally to convey to any purchaser or purchasers in fee or on condition any part or parts and every part of my lands, houses and real estate. * * * And I do also give grant to and invest in my executors or the survivors or survivor of them full ample and complete power, authority and right after they have had full time and opportunity to possess themselves of the knowledge of the several parts of my estate and shall be able on a full 'view of my affairs to adjust and arrange their reasonable prospects of the product of my estate and thereby anticipate what may be reasonably expected as the share of each of my children in case it should be the wish and desir,e of any or all my children including those I shall name as executors whose honor I am sure I can trust to for a due impartiality towards themselves or others, instead of waiting for the proceeds of any sale or sales to be made of lands, &c., to take a portion or part of lands into their own hands at the valuation estimated and affixed by my executors or the survivors or survivor of them to such portion or part of my lands for the purpose of converting the same to their own immediate objects, to convey and make over to such individual or individuals so desiring the possession and exercise of right over such land to apply the same to their own purposes such portion or part of my said lands as my executors or the survivors or survivor of them may deem expedient provided always that such individual or individuals shall take and receive the same as so much paid and* advanced to them for and on account of their respective share or shares of my estate, my executors, or the survivors or survivor of them taking due care and caution that such appropriation of land shall fall short of and may not be likely to exceed the proportion that may be coming to the share of such individual or individuals * * * and now as respects my whole and entire estate whether real or personal or both having directed that my real estate should be sold except that which I have hereinbefore given devised and bequeathed and under the qualifications hereinbefore expressed, my will is and I do hereby order direct devise and bequeath that the proceeds shall be equally divided among my seven children hereinbefore named, and that as soon as a reasonable sum may be collected it may be divided and paid over to my said seven children in equal parts if they shall be living at the time of my decease, but in case any of my said children should die before me leaving a child or children then such child or children shall succeed to and take such proportion as their parent would have taken if such parent had been living, regard being had in the payment of the proceeds of the sales or appropriation of land to the state of the accounts I' have hereinbefore mentioned of the advances I have made to my several children — the direction however of the sale of my real estate and the division of the proceeds of the sales is to be subject to the provision hereinbefore made in case any of my said children shall take any land or lands in advance in part of* their portion or share of my estate at the value affixed to the same by my executors or the survivors or survivor of them, in such case the party or parties taking land in advance must not consider themselves entitled to participate in the proceeds of any sales made by my executors until the respective shares from the proceeds of sales made by my executors of those who do not take land in advance may equal the amount of the value of the land of those who do take land.” * * *
    He made two codicils to his will, not varying the provisions above stated. He appointed his wife, three of his sons, and his son-in-law, executors. The executors having all died or been dismissed, administration was on the 28th of December 1866, granted to the plaintiffs. All the debts of the estate had been paid, and the specific provisions for his daughter Anne and his other children carried out. The widow was dead.
    In December 1870, the plaintiffs as administrators aforesaid, contracted to sell and convey to the defendant the lot of land above mentioned, for $5500. The sale was made for the purpose of dividing and distributing the proceeds amongst the children of the testator or their representatives, in accordance with the directions of the will.
    It was agreed; that “ if the court shall be of opinion that the plaintiffs are competent to vest in the defendant the title of Benjanain Chew, to the said premises by deed executed by them in pursuance of the powers in the said will contained and for the purposes aforesaid, then judgment to be entered for the plaintiffs for the sum of five thousand and five hundred dollars, but without costs of suit; otherwise for the defendant.”
    The court at Nisi Prius entered judgment for the plaintiffs for $5500, Sharswood, J., delivering the following opinion:—
    “It is as old as the Year Book 15 Hen. 7th, fol. 11 b, that land is not a testamentary matter. Hence, a power relating to real estate given in a will to executors was a mere common-law power to them, nominatim ; it did not therefore pass to executors, nor could it be exercised by an administrator de bonis non cum testamento annexo. The subject is learnedly and ably investigated by Mr. Justice Cowen, in Conklin v. Egerton’s Administrator, 21 Wendell 430. The common law in this respect was changed in this state by the Act of Assembly of March 12th 1800, 3 Sm. L. 433, which provided, that where there was either a devise to executors to be sold, or a naked power to them to sell, it should survive upon the death of one or more, or be exercised by the acting executor in case one or more renounced, or by an administrator de bonis non when all die or renounce. These provisions were all incorporated by the revisers in the Act of February 24th 1834, sections 13, 14, 67: Pamph. L. pp. 75, 86. As to the administrator de bonis non, it is expressed thus: ‘ all and singular the provisions of this act relative to the powers, duties and liabilities of executors are hereby extended to administrators with the will annexed.’ In their report they declare, that for the sake of brevity they have introduced this general provision, placing administrators with the will annexed on the same footing in every respect with executors: 2 Parke & Johnson 765. Whether this Act of 1800 was or was not supplied and repealed by the Act of 1834, it seems very clear and has always been considered that the intention of this legislation was confined to powers given to executors as such virtute officii, and did not extend to a power of sale collateral to or unconnected with their duties as executors : Ross v. Barclay, 6 Harris 179; Keefer v. Schwartz, 11 Wright 503; Waters v. Margerum, 10 P. F. Smith 44. It was held in Commonwealth v. Forney, 3 W. & S. 853, that where executors are dismissed 'and an administrator de bonis non with the will annexed is appointed, it is the duty of the court to take a bond with sureties in an amount commensurate with the powers and trusts contained in the will. This case was upon a bond given prior to 1832 ; but by the Act of March 29th of that year, § 23, Pamph. L. 195, it was expressly directed that when an executor shall be dismissed, the court shall award new letters to be granted by the register upon such security as the court shall think proper. The ordinary cases of a grant, of administration by the register, on the death or renunciation of executors, were provided for by the eighteenth and nineteenth sections of that act, without any special direction as to security; that resting on the twenty-seventh section, which declares that in case of any grant of administration, the bonds should have respect to the value of the estate. The eighth section of the Act of April 22d 1856, Pamph. L. 533, first made specific provision that the register, in granting letters of administration with the will annexed, should ‘ take adequate security for the faithful accounting for the proceeds of any sales of real estate the administrator may make under such will.’
    “A general power to sell will of course be conclusively presumed to be for the payment of debts ; for a purchaser is never required to call for or look into an account, or demand an inventory of personalty or list of debts. Such was the power in Meredith’s Estate, 1 Parsons 438. Mr. Binney’s opinion, Hood on Executors, p. 241, note. About the authority of an administrator with the will annexed, in such a case, there could be no question. A power also to sell for the purpose of distributing the proceeds amongst persons named or described in the will is a power which it seems equally clear belongs to the executor virtute officii. This would be the case without any question where there is an absolute direction to sell, and not a mere discretionary power, for in that case the estate would be converted into money from the death of the testator; but the same rule, as it appears to me, applies where there is only a power. In the case of Keefer v. Schwartz, 11 Wright 503, there was indeed an absolute direction, but it is not rested on this ground in the opinion. Mr. Justice Strong said: ‘ The executors were not made testamentary trustees of the property. They were directed to sell for distribution. Their powers and duties were official by virtue of their office.’ Some difficulty appears to have arisen in the minds of counsel, from what was evidently merely a dictum of Chief Justice Gribson, in Ross v. Barclay, that ‘ no statute of Pennsylvania empowers an administrator, with the will annexed, to execute a trust of land confided to an executor by title or name for any other purpose than to sell for payment of debts;’ and his declaration in the same case,* that a power could not be exercised by such administrator ‘to turn the land into money for the convenience of partition.’ This last phrase is repeated in Waters v. Margerum. In both of these cases the trust extended beyond the sale and distribution virtute officii to an investment; in short a trust for a collateral purpose. The executors were, in both these cases, testamentary trustees, and they were invested with the power as such. These dicta were, therefore, entirely aside from the case. For myself, I may say, that I copied the phrase from Ross v. Barclay, as is often done in the hurry of composition, and it passed without notice in consultation. I may have, and probably had, in my mind, not a sale for purposes of distribution, but what is not uncommon in the country, a power to executors to make partition with an ancillary power of sale and conveyance for that purpose.
    “ On the whole it appears that the administrators, with the will annexed, of Benjamin CheAY, had the same power to sell his land as his executors had; and I am of opinion, therefore, that the plaintiffs are competent to vest in the defendant the title of Benjamin Chew, of Cliveden, to the premises by deed, executed by them in pursuance of the powers in the said will contained.”
    The defendants certified the case to the court in banc, and there assigned the judgment entered at Nisi Prius for error.

      S. J. McCarthy and Porter, for plaintiff in error.
    An administrator c. t. m cannot sell the testator’s real estate to divide and distribute the proceeds amongst legatees: Ross v. Barclay, 6 Harris 179; Waters v. Margerum, 10 P. F. Smith 39; Conklin v. Edgerton, 21 Wendell 430. To effect a conversion, the will must order a sale absolutely for all purposes, irrespective of contingencies and independent of discretion: Bleight v. Bank, 10 Barr 131; Wright v. Trustees, 1 Hoff. 203; Evans v. Kingsberry, 2 Randolph 120. The Acts of March 12th 1800, § 1, 3 Sm. L. 433; Act of February 24th 1834 §§ 13, 14, 67, Pamph. L. 75, 86; 1 Br. Purd. 417, 418, 419, pl. 64, 71, 72, 74, do not give to administrators c. t. a. the power to sell for distribution. The powers under this will are personal trusts and cannot pass to others than the trustees named: Cole v. Wade, 16 Vesey 27; Wills v. Cowper, 2 Hammond 127. The executors take as trustees, not virtute officii: 1 Powell on Devises 238; Judson v. Gibbons, 5 Wendell 224; 1 Sugden on Powers 138, pl. 37.

      P. C. MeMurtrie, for defendants in error.
    The question is, whether a power to sell to pay legacies, given to executors, can be exercised by an administrator d. b. n. c. t. a. No legatee, or any one claiming under the testator, ever had any estate in the land under tie terms of the "will: Chew v. Chew, 4 Casey 17.
    The recipient of the proceeds of the exercise of such a power to sell to pay legacies has no estate in the land whatever: Allison v. Wilson, 13 S. & R. 332; Alexander v. McMurry, 8 Watts 504. An executor can no more refuse to sell, to raise the fund for the residuary legatees, than for a pecuniary legatee: 2 Sugden on Powers 158-59.
    An administrator c. t. a. can sell under a power, when the proceeds are payable to legatees, whether pecuniary or residuary: Cornell v. Green, 10 S. & R. 14; Allison v. Wilson, 13 Id. 330; Heron v. Hoffner, 3 Rawle 393; Allison v. Kurtz, 2 Watts 185; Commonwealth v. Forney, 3 W. & S. 353; Cobb v. Biddle, 2 Harris 444.
    February 15th 1872.
   Judgment was entered

Per Curiam.

We are of opinion that without any reasonable doubt, the administrator de bonis non cum testamento annexo of Benjamin Chew, deceased, can exercise the powers of sale granted by the will to his executors; and affirm thffi judgment on the opinion delivered at Nisi Prius.

Judgment affirmed.


text:
    Dickerson et al. versus Peters.
    1. The councils of Philadelphia by resolution directed the department of highways “ to enter into a contract with a competent paver (to) be selected by a majority of owners of property on Oxford street, &c., for the paving thereof.” Held, that a discretion was vested in the department to determine the competency of the paver selected.
    2. When the department has exercised its discretion in favor of a paver selected by a majority of owners, the resolution is complied with.
    3. A selection by a majority of the owners is revocable : the proceeding is in fieri until the contact be awarded.
    4. Under the resolution, a majority of the owners selected Peters as paver; a majority subsequently and before the contract was awarded, selected íaunce: Held, that a mandamus could not be awarded to give the contract to Peters.
    February 12th 1873.
    Before Agnew, Sharswood, and Williams, JJ. Thompson, 0. J., at Nisi Prius.
    Writ of error to the Court of Common Pleas of Philadelphia: No. 13, to July Term 1871.
    The proceedings in this case were commenced, January 14th 1870, by the petition of Emanuel Peters, setting forth a resolution, of the councils of Philadelphia directing the department of highways to make “a contract with a competent paver who shall 'be selected by a majority of the owners of property fronting on Orthodox street from,” &c., on the condition that the contractor shall collect the costs of paving from the property-owners, and enter into an obligation to keep the street in repair for three years; that under that resolution a majority of the owners of property on Orthodox street, &c., selected the petitioner as a competent paver to do said paving; that after 'the selection, the petitioner gave notice “in two daily papers having the largest circulation,” &c., as required by the ordinance of councils, that on the 3d of December 1869 he would apply to the department for the contract; that on the day mentioned he applied to Mahlon H. Dickerson, James Work and Hiram Hooker, the commissioners of highways, for the contract, informing them of his selection by a majority of the owners of property; that he was ready to enter into the contract and the obligations, &c.; that notwithstanding the foregoing facts and that the petitioner was a competent paver, the commissioners of highways refused to enter into a contract with him. The prayer was for a mandamus to the commissioners of highways to enter into contract with the petitioner for paving Orthodox street, &c.
    An alternative mandamus, returnable January 22d, was issued. On that day the defendants made return, denying that the petitioner had been selected by a majority of the owners of property on Orthodox street from, &c.; that the surveyor of the district had certified to the defendants that a majority of such owners had selected Johnson & Faunce; that the petitioner had filed a bill in the Supreme Court against the defendants in which the charging part is the same as in their foregoing petition and asking that the petitioner should elect between proceeding on that bill and this petition.
    Attached to the return was an agreement between a number of owners of property on Orthodox street fronting, &c., and Johnson & Eaunce to pave the street; with the certificate of the surveyor of the disti'ict that they were a majority of such owners.
    The petitioner by a replication traversed the allegations of fact in the return, and put himself on the country.
    On the trial of the issue, April 28th 1870, before Ludlow, J., the petitioner gave in evidence a list of property-owners on the part of Orthodox street to be paved, with a certificate of the surveyor of the district that the list contained the names of all such owners.
    Peters, the petitioner, testified that he presented to the commissioners of highways a paper signed by a majority of property-owners on the part of Orthodox street to be paved, selecting him as the paver, and certified by the surveyor on the 25th of September 1869 to be so, and upon the faith of the paper and at a cost of $45, he advertised his intention to apply for the contract; that he tendered a bond for his compliance with the conditions of the contract, and the commissioners refused to give him the contract.
    The defendants gave in evidence a paper in date subsequent to that of the petitioner, and containing a number of the names which were to that paper, certified by the surveyor to contain a majority of the owners of property, selecting Eaunce & Johnson as the pavers. This paper was presented to the commissioners of highways, December 1st 1869.
    The defendants requested the court to charge:
    That if there was not an exclusive selection of the relator, the defendants were vested with a discretion, and the verdict should be for the defendant.
    The court charged, that the selection made by the owners, in September 1869, of the relator, exhausted their power under the ordinance; and if that selection was acted upon by Peters, they were estopped from making any other selection after that without cause.
    The verdict was for the plaintiff (petitioner).
    On the 8th of April 18.71, after motions by defendants for a new trial and judgment non obstante veredicto, the court entered judgment on the verdict and awarded a peremptory mandamus.
    On the 12th of April the defendants took out a writ of error, and amongst other errors, assigned for error the charge of the court in answer to their point.

      D. W. Sellers, for plaintiff in error.
    A discretion was vested in the commissioners: Conner v. Board of Health, 7 Phila. R. 629; Laughlin v. Kneass, Id. 634. A mandamus could not issue to direct commissioners how to decide: Commonwealth v. Perkins, 7 Barr 44; Resp. v. Clarkson, 1 Yeates 46; United States v. Lawrence, 3 Id. 42.

      J. T. Hopple and F. 0. Brewster, for defendant in error,
    cited Philadelphia v. Reilly, 10 P. F. Smith 467.
    February 19th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

By the resolutions of the councils of the city and county of Philadelphia, of November 13th 1869, the department of highways were authorized and directed “ to enter into a contract with a competent paver or pavers, who shall be selected by a majority of the owners of property fronting on Orthodox street, from Frankford street to Tacony road (in the twenty-third ward), for the paving thereof.” It cannot be controverted that a discretion was thereby vested in the department to determine the question of the competency of the paver who might be selected. It is true, that no objection was made to Mr. Peters, the nominee, on the ground of want of competency. But it is very important to bear in mind the fact that this discretion existed in considering the question which arises upon this record, whether the learned judge below was right in charging the jury as he did in substance, that a selection once made by a majority of the owners of property was irrevocable without cause. If the department exercised its discretion in favor of a paver selected by the majority, the terms of the resolution were complied with. Why should the owners be absolutely bound by their first nomination — for nomination was all that it was ? The learned judge thought that if the nomination was acted on by the nominees they were estopped from making any other selection without cause. But what was done by the nominee that ought to work such an estoppel ? It is said, that as required by law he had advertised his intention to apply to the department for the contract and had incurred that expense. But the very object of the law in requiring the advertisement was to call public attention to the claims of the 'nominee. It is evident that the whole proceeding was in fieri until a contract was actually awarded. Until then, the question of the competency of the paver selected was open to be decided by the department adversely to him, and upon well-settled principles, the court could not be called upon to command them to exercise their discretion in favor of any particular person. It is clear that they could not award the contract to any person not selected, and had the mandamus prayed for and awarded been to command the commissioners not to give the contract to Johnson & Faunce, because they were not duly selected, it could better have borne an argument. But by a peremptory mandamus to the commissioners to award the contract to Emanuel Peters, the court decide that he is a competent person — a question devolved exclusively upon the department of highways, and a question necessarily open to the very last moment.

We think it follows from this course of reasoning, that the learned.judge below fell into an error in holding that “the selection made by the owners in September 1869, of the relator, exhausted their power.” It may be that Peters had a right of action against them for revoking their selection without sufficient cause, if he had incurred expense on the footing of it, but the nomination was essentially a revocable act while the proceeding was in fieri and before the contract was actually awarded. The owners ought not to be bound by a hasty or unwise ■ selection, nor to be required to assign a sufficient cause for revoking it if they see fit to do so. For the reasons given we think the peremptory mandamus ought not to have been awarded.

Judgment reversed.


text:
    Garsed et al. versus Turner.
    1. Garsed contracted to lease Turner a dye-shop, furnish him work, &c., Turner to put in fixtures, which he did, and was ready to perform the work. In a suit by Turner for breach of contract, no points being presented, the court charged, “if the contract was broken by the defendants, the plaintiff is entitled to be put in the same position, pecuniarily, as' he would have been if the contract had been kept, regard being had to the fact that the plaintiff soon afterwards obtained other employmentHeld, not to be error.
    2. Where there is no prayer for instructions, the court cannot be convicted for error except for positive misdirection.
    3. The proper measure of damages was the value of the bargain.
    4. A general objection to the admission of evidence will not avail unless it appear that the evidence was irrelevant or inadmissible for any purpose.
    5. The competency of a witness cannot be questioned under a general objection to evidence.
    February 12th 1872.
    Before Agnew, Shakswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: Of July Term 1871, No. 14.
    This was an action on the case commenced September 15th 1869, by John B. Turner against Richard B. Garsed, Henry T. Garsed and Alfred W. Garsed,. trading as Garsed & Brothers.
    The declaration was that in consideration of the plaintiff renting from the defendants two buildings at $400 rent, to carry on dyeing and bleaching, the defendants promised to lease him the buildings, furnish him with water and the machinery in the dye-house, the plaintiff to furnish the additional machinery required, with the right at the end of the lease to remove it, if not purchased by defendants; to give him all the dyeing and bleaching they might require, and pay him at the customary price; to use their influence to obtain for him similar work from others; to give him a lease for five years; that the plaintiff fitted up the premises for dyeing and bleaching and put machinery in them. The plaintiff averred his readiness to perform his part of the agreement, that he had offered to take the buildings and to do the dyeing and bleaching defendants might give him or procure for him and pay the rent: but the defendants would not rent the premises to him or allow him to use them or any of the machinery in them, nor give him dyeing and bleaching work, nor procure him such work from others, nor give a lease of the premises as agreed on. The damages claimed were the amount expended in fitting up the premises and putting in the machinery; loss of profits plaintiff would have made in dyeing and bleaching.
    The case was tried January 30th 1871, before Hare, P. J.
    The plaintiff testified that he was a dyer and bleacher; in 1869 he met Richard Garsed, who asked plaintiff to take his work of dyeing; said he would give plaintiff a lease of dye-house, drying-house, &c., and all their work, and would do his best to get work from others; plaintiff asked him to put'his proposition in writing, which he did by following letter:—
    “Philadelphia, February 5th 1869.
    “ Jno. B. Turner, Esq.:
    “ Dear Sir: As I feared, I was compelled to go over to New York, hence the delay in answering you. I will rent you the two buildings for dye and bleach house, as they are, furnishing you water, and the use of all machinery now in the dye-house; any additional machinery required you must furnish at your own expense, and at the end of lease, — if we do not agree as to purchasing the same, — you of course are to be at liberty of removing the same.

      “ I will give a lease for five years, or less, and will give our work so long as it is done satisfactorily, and use every influence to procure work for you. The rent to be four hundred dollars per annum.”
    Plaintiff told him the letter was satisfactory, and he would come; he took possession May 1st; he was ready and began to fit up the place. He described the machinery which he put in and stated its cost; stated that he hired a man to help him and his wrages; the value of plaintiff’s own time; he bought drugs and had everything ready; asked defendants several times for work, they said they had none; after being there eighteen weeks he came away; the defendants had his improvements and were using them.
    The plaintiff gave other evidence to show his contract, the amount expended, and the damage sustained by him, and generally in support of his case.
    The defendants gave evidence in answer to the plaintiff’s case.

      Several exceptions, not important to specify, were taken by dezendants to the admission of evidence. No points were submitted to the court.
    The court charged:—
    “ If the contract was broken by the defendants, the plaintiff is entitled to be put in the same position, pecuniarily, as he would have been if the contract had been kept, regard being had to' the fact that the plaintiff soon afterwards obtained other employment. There is a difficulty in this case, from the fact that the plaintiff had incurred considerable expense in fitting up the dye-house; but still the evidence shows that the defendants were willing that the plaintiff should remove the articles that he put there, so that the only loss in regard to these articles would seem to be the loss of a favorable opportunity of making profit by them.”
    The verdict was for the plaintiff for $2500.
    The defendants took a writ of error. In two specifications they assigned the charge for error.
    6r. M. Dallas, A. D. Campbell and J. P. Q-owen, for plaintiffs in error.

      R. P. White and 6r. S. Parle, for defendant in error.
    March 4th 1872,
   The opinion of the court was delivered, by

Williams, J.

The principal question in this case relates to the proper measure of damages for the breach of the alleged contract. The District Court instructed the jury that “ if the contract was broken by the defendants, the plaintiff is entitled to be put in the same position, pecuniarily, as he would have been if the contract had been kept, regard being had to the fact that the plaintiff soon afterwards obtained other employment.” This instruction is complained of as erroneous, because, as contended, it furnished no proper rule by which to measure the damages, being but a general statement of the result to be arrived at, without any teaching as to how that result was to be attained. Where there is no prayer for instructions, the court cannot be convicted of error except for positive misdirection, though the instructions are not as full and specific as they might have been. Mere omission to charge, as we have often said, does not amount to misdirection, and where the proper rule has been laid down for the guidance of the jury, the omission of specific instructions to aid them in its application cannot be regarded, or assigned as error. As no instructions were requested in this case, the only question is, whether the court was guilty of misdirection in instructing the jury that the plaintiff was entitled to be put in the same position, pecuniarily, as he would have been if the contract had been kept. This was but another mode of saying that the plaintiff was entitled to recover what he would have made directly out of the contract if it had been fulfilled ; and if so, there was no error in the instruction: Hoy v. Gronoble, 10 Casey 9. This of course excludes remote or speculative damages. It was conceded on the argument that the proper measure of damages for the breach of the contract was the value of the bargain.

But what was the value of the bargain, if it was not the profit which the plaintiff would have made immediately out of the contract if he had been allowed to perform it ? If the damages found by the jury would have put the plaintiff in the same position, pecuniarily, as he would have been if the contract had been kept, then it is clear that he recovered the value of his bargain, viz., the direct profit which he would have made out of the contract if it had not been broken. "We think that the rule laid down by the court as thé proper measure of damages was substantially correct, and we cannot say, therefore, that the jury were misled by the terms in which it was expressed. Nor was there any error in saying to the jury that “ there is a difficulty in this case from the fact that the plaintiff had incurred considerable expense in fitting up the dye-house; but still the evidence shows that the defendants were willing that the plaintiff should remove the articles that he put there, so that the only loss in regard to these articles would seem to be the loss of a favorable opportunity of making profit by them.” This was evidently said for the purpose of preventing the jury from finding as damages the expense incurred by the plaintiff in fitting up the dye-house, and limiting their finding as it respects the articles which the plaintiff put in the dye-house, to the damages occasioned by the loss of a favorable opportunity of making profit by their use in performing the contract. If the improvements which the plaintiff made to the dye-house were necessary in order to enable him to pei’form the contract, then the loss of a favorable opportunity of making profit by their use was a circumstance proper for the consideration of the jury in determining the amount of damages to which the plaintiff was entitled, and the defendants have no reason to complain of the instruction. Besides, the evidence shows that the expense of fitting up the dye-house far exceeded the value of the articles when removed, and we see no reason why the plaintiff was not entitled to recover the difference. If so, the instruction was more favorable than the defendants had any right to ask. The other assignments relate to the admission of evidence, and need not be particularly noticed. The record shows nothing but a general objection to the admission of the evidence complained of, and we have repeatedly said that such an objection will be of no avail unless it clearly appears that the evidence was not relevant or admissible for any purpose. Nor can any question as to the competency of a witness be raised under such an objection. In this case it does not clearly appear that the evidence was irrelevant and inadmissible. On the contrary, we think it tended to throw some light on the question of damages, and was, therefore, properly received.

Judgment affirmed.


author: Agnew, J.

text:
    Springer, with notice to Wittich, versus Phillips, Alienee, &c.
    1. A ground-rent was reserved to Parry, the grantee covenanting for himself and his assigns, to pay to Parry, his heirs and assigns, the principal after ten years. Held, that an alienee of Parry, after the ten years, might maintain covenant against the alienee of the grantee. ■
    2. After the ten years, the owner of the rent continued to receive it; the right to demand the principal did not thereby lapse and the rent become irredeemable after that time.
    3. Such rent will not be held irredeemable unless the intent of the parties to the deed is very clear to make it so.
    4. The policy of the law is to unfetter lands and make them freely alienable.
    6. Parry covenanted that on the payment of the principal the rent should be extinguished, &c., and that he, his “heirs and assigns,” would at the cost of the grantee, “his heirs and assigns, execute” a release and discharge of the rent to the grantee, “ his heirs and assigns.” Held, that the release was to be prepared by the grantee and tendered for execution to the owner of the rent.
    6. The action for the principal was a demand; the owner should prepare the release and bring the money into court; his rights would there be protected by a proper order.
    7. In this case the Supreme Court, in affirming the judgment below for the principal of the rent, directed that the owner of the land have leave to file in court a release, to be executed by owner of the rent and be delivered to the owner of the land on payment of the principal, and on failure to file the deed in thirty days, execution might issue.
    February 12th 1872.
    Before Agnew, Sharsw'ood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 27, to July Term 1871.
    This was an action of covenant, commenced November 19th 1870, by Benjamin Phillips, alienee of Oliver Parry and Rachel R. his wife, and Nathaniel Randolph against John Springer, with notice to Conrad Wittich, terre-tenant.
    It was brought to recover the principal reserved in a ground-rent deed dated March 30th 1862, between Parry and wife and Randolph of the first part and Springer of the second part. By the deed the grantors conveyed to the grantee a lot of land in Third street, Philadelphia, in consideration of one dollar and the “performance of the covenant and agreement,” thereinafter mentioned. The reservation was:
    “Yielding and paying therefor and thereout unto the said Oliver Parry and Nathaniel Randolph, their heirs and assigns, the yearly rent or sum of fifty-four dollars lawful silver money of the United States of America, each dollar weighing, &c., in equal half-yearly payments on the first day of the third and ninth months in every year hereafter for ever.” * * *
    The deed further provided: “ That if the said John Springer, his heirs or assigns, shall and do at any time, within ten years from the date hereof, pay or cause to he paid to the said Oliver Parry and Nathaniel Randolph, their heirs or assigns, the sum of $900 lawful money as aforesaid; and the arrearages of the said yearly rent, to the time of such payment; then the same shall for ever thereafter cease and be extinguished, and the covenant for the payment thereof shall become void; and then they, the said Oliver Parry and Nathaniel Randolph, their heirs or assigns, shall and will, at the proper costs and charges in the law of the said grantee, his heirs or assigns, seal and execute a sufficient release and discharge of the said yearly rent hereby reserved to the said John Springer, his heirs and assigns for ever,” &e.
    And the said John Springer, for himself, his heirs, executors, administrators and assigns, doth hereby covenant and agree to and with the said Oliver Parry and Nathaniel Randolph, their heirs and assigns, to pay the said principal sum of $900, within the period of ten years from the date hereof, in extinguishment of said ground-rent, and in default thereof the same may and shall be forthwith recoverable by the said Oliver Parry and Nathaniel Randolph, their heirs or assigns, against the said John Springer, his heirs and assigns, with all arrears of said rent, and be first payable out of the proceeds of the sale of the said premises under any judgment for said principal sum, and upon payment and satisfaction of such judgment with all arrears of said rent to the date of such payment, the said ground-rent shall forthwith cease and become extinguished as aforesaid.” * * *
    By deed, Parry and wife and Randolph assigned the deed, &c., to Phillips.
    Wittich, the terre-tenant, filed an affidavit of defence, averring:
    That he has paid to the plaintiff the annual rent above reserved in full. That he is advised, and believes, that the plaintiff cannot set up and claim anything, on account of the' covenant made by the original parties to said deed — the one to extinguish said rent, the other to pay $900, the consideration therefor.
    1. Because such covenants are not assignable at law, and that this was not, in fact and in terms, assigned to plaintiff
    2. That no deed of extinguishment was tendered to defendant before suit brought.
    3. That the assignment of said rent to plaintiff worked a dissolution and breach of said covenant on the part of plaintiff’s vendors, and that the said covenant thereupon became void, and was mutually waived, abandoned and extinguished.

      4. That neither the plaintiff nor this deponent are parties or privies to said covenant.
    5. That the said supposed breach, if any, on the part of affiant occurred on the 30th day of March, A. ». 1862, and thereupon, a right of action, if ever, accrued to plaintiff on said covenant to recover the said $900, with interest in currency; but the plaintiff did not then, nor in any reasonable time afterwards, tender his deed of extinguishment and demand his money with interest, but on the contrary waived and relinquished said breach, if any there was, and deiñanded ground-rent in specie as reserved in said deed; and in consideration of the premises, this affiant did agree to pay, and in fact has paid, to the plaintiff, from time to time, all the ground-rent as the same became due, in specie, up to the present time. Wherefore he says that the supposed breach, if any there were, has by mutual agreement, and for a sufficient consideration, been condoned, tolled, and the covenant rescinded before suit brought.
    It was admitted by agreement in writing, that the ground-rent had been paid in specie, by Wittich the terre-tenant, on March 1st 1871.
    The court entered judgment for the plaintiff for want of a sufficient affidavit of defence.
    Wittich the terre-tenant took out a writ of error.

      L. Stover, for plaintiff in error.
    The covenant was personal between the grantors and Springer the grantee: Congleton v. Pattison, 10 East 180; Coke Litt. 215 b; Spencer’s Case, 5 Reports 16.
    The covenant being mutual and dependent, the party suing must allege and show performance: Stokes v. Burrell, 3 Grant’s Cases 242; Bank v. Hagner, 1 Peters 464; 2 Smith’s Leading Cases 26, note 5.
    Acceptance of rent after breach is a waiver: Newman v. Rutter, 8 Watts 55.

      P. Hunn, Jr., for defendant in error.
    The covenant runs with the land and may be enforced by the assignee: Hurst v. Lithgrow, 2 Yeates 24. The covenant to pay the principal to assignee binds as the covenant to pay the rent.
    The deed is to be construed according to the intentions of the parties: Newman v. Rutter, 8 Watts 51; Bear v. Whisler, 7 Id. 144. Plaintiff and defendant are privies in contract and estate: Thomas’ Co. Lit. 506; 2 Prest. Conv. 327, 345; Bouvier’s Law Diet., tits. Privies, Privity of Estate, Privity of Contracts. This is not a forfeiture, nor an entry, nor a penalty: 2 Bl. Com. 267; Wharton’s Lexicon, tit. Forfeiture. This action is the demand: Byles on Bills 170, 361.
    The covenant to pay the principal is distinct from the covenant to pay rent, and so is not affected by the receipts if the receipts are to be construed as receipts for the rent: Bear v. Whisler, 7 Watts 144; Irvine v. Campbell, 6 Binney 118.
    February 26th 1872,
   The opinion of the court was delivered, by

Agnew, J.

The right of the plaintiff to maintain this action is very clear. The covenant extends in express térms to the assigns of the original ground^landlord, and descends also upon the assigns of the original grantor of the estate. It relates directly to the estate itself, which is bound for the rent, and is discharged by the payment of the stipulated price. It would be difficult to conceive of a covenant real more intimately connected with the subject-matter of the deed, or which more directly concerns the holder of the rent and the owner of the land out of which it issues. The following authorities are referred to if any were necessary to prove so plain a proposition: Streaper v. Fisher, 1 Rawle 165; Herbaugh v. Zentmyer, 2 Rawle 159; Weidner v. Foster, 2 Penna. 23; Royer v. Ake, 3 Id. 461.

Under the special terms of the covenants in the ground-rent deed, it was not necessary to tender the release of the rent prior to a suit on the covenant for the payment of the stipulated price, viz., $900. The language is, “ then (that is payment of the price being made) the same (to wit, the rent) shall for ever thereafter cease and be extinguished, and the covenant for the payment thereof shall become void; and then the said Oliver Parry and Nathaniel Randolph, their heirs or assigns, shall and will, at the proper' costs and charges in the law of the said grantee, his heirs and assigns, seal and execute a sufficient release and discharge,” &c. It is evident that the release was by the terms of the covenant to be prepared by the owner of the land, and tendered for execution by the owner of the rent. The action is a demand, and all the owner of the estate had to do was to prepare the release and bring the money into court, .and his rights would be protected by a proper order. This can yet be done by our order in relation to execution.

We are also of opinion that by all the terms of the deed when considered as a whole, the right to demand the nine hundred dollars as the price of the estate, did not lapse by the expiration of the term of ten years, and the continued payment and acceptance of the rent afterwards. The undoubted intention of the parties as gathered from the entire deed was, that the ground-rent should be extinguished by the payment of the stipulated price of the property within the term of ten years ; but there is nothing which evidences an intention to make the rent irredeemable after that time. The policy of the law is to unfetter the lands of the Commonwealth, and make them freely alienable. There should be something very clear in the intent of the parties to the deed to fix upon the estate an irredeemable charge before we should be compelled to declare that to be the effect of the deed.

These are all the questions in the record which we deem worthy of notice, and the judgment is therefore affirmed, and it is also ordered that the defendant below, and Conrad Wittich, terre-tenant, have leave within thirty days to file in the office of the prothonotary of the District Court, a deed of release and discharge of the yearly ground-rent reserved, to be sealed and executed by the plaintiff below, according to the covenant set forth in the deed creating the ground-rent, and to be delivered to the said Conrad Wittich, on the payment of the sum of $900 and interest since March 1st 1871; and that execution be stayed in the meantime; and on the failure of the defendant and terre-tenant to file a deed for execution within that period, the plaintiff may have leave to issue execution on his judgment.