author: Chief Justice Sharswood

text:
    Welch et al. versus Emerson.
    By articles of agreement, TV. agreed with E. to sell to him a tract of land for 8800, of which sum 8300 were to be paid on a day certain, and the balance in yearly payments, with interest. The agreement also provided that if E. failed to make the payments TV. should take possession of the premises and sell the same, upon giving notice to E. of twenty-four hours. E. entered and held possession of the land but never made any of the payments, alleging as a reason therefor that there were liens on the land which should first be discharged. After the expiration of the time for the final payment and when the liens were all discharged, M., the grantee of TV., served notice of twenty-four hours on E., that he thereby took possession of the land and that the second day thereafter, on the premises, at a stated hour, would expose the same for sale. In pursuance of this notice M. sent his agent to the premises, who remained thereon about fifteen minutes, during which time he sold the land to another person, and then being ordered off by E. left with the purchaser, E. remaining in undisturbed possession. The purchaser then brought eject-* ment against E. to recover the land. Upon a special verdict, in which the jury found that there had been a mere going upon the premises, the court directed judgment to be entered for the plaintiff, to be set aside and entered for defendant if the latter paid the purchase-money with interest within thirty days : Held, that defendant was 'entitled to this conditional verdict as his equity was not extinguished by the entry and sale : Held, furthev, that the mere going upon the premises and a sale in pursuance of the notice was not a taking possession according to the terms of the contract.
    June 21st 1880.
    Before Sharswood, C. J., Mercur, Gordon,, Trunks y, Sterrett and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas of McKean county: Of May Term 1880, No. 98.
    Ejectment brought in April 1879 by George K. Welch and A. I. Wilcox against Enos Emerson, to recover a tract of land in McKean county.
    The material facts were as follows: On the 3d of November 1872 J. M. Welch sold a lot of land containing forty acres to Enos Emerson, by articles of agreement. The purchase-money was $800. No part of this sum was paid in hand, but the sum of $300 was to be paid on the first day of the following April, and as a further security for this sum a judgment note was given therefor, payable on the 1st day of April 1873.
    At the foot of the articles of agreement was the following stipulation : “ And the said E. Emerson further covenants and agrees that in case of failure to make the payments aforesaid at the times hereinbefore stipulated with the interest and taxes, then the party of the first part shall have the right and privilege to take possession of the premises ■ and sell the same to any other person on a notice being given to the said E. Emerson of twenty-four hours.”
    On the 2d of December 1873, J. M. Welch conveyed to George M. Welch a number of tracts of land in McKean county, including the lot in controversy. George M. Welch continued to hold the title to this lot until February 1879, when the proceedings, out of which the question in this case arose, were had. Emerson went into possession and remained in possession, but never paid anything. In September 1873, a judgment was entered against him upon the note given to secure the first payment, and a writ of fi. fa. was issued. The proceedings on this writ were stayed by the court on the petition of Emerson setting out that there were judgments against J. M. Welch which were liens upon the land to an amount exceeding the purchase-money. At the same time F. W. Knox, Esq., for Emerson, offered to pay the entire sum due on the contract if the liens could be discharged and a deed obtained. From September 1873 to March 1878, matters continued in much the same condition, but on the 9th of March 1878 the liens having meantime been discharged by payment by George M. Welch, or by lapse of time, Welch caused a deed to be tendered to Emerson and made a demand for the purchase-money. Nothing was paid, however, and on the 17th of February 1879 Welch caused a notice to be served 'upon Emerson setting out that he took possession under the terms of the contract and would proceed to sell the premises on the 19th of February at 9 o’clock A. m.
    On that day at 9 o’clock A. M., Boyer, the agent of George M. Welch and A. I. Wilcox drove to the barn on the premises and there the agent offered the lot for sale and sold it to Wilcox, agent for George K. Welch, for the sum of $1200. They then left. No effort was made to take actual possession of the lot. When Wilcox and Boyer drove to the barn on the morning of the 19th, Emerson came out and ordered them off. George K. Welch, the purchaser, then brought this suit. At the trial the court directed the jury to find a special verdict, which set forth the foregoing facts and reserved the following question:
    “ If the court be of opinion upon these facts that a mere going upon the premises in pursuance of such notice is a sufficient taking possession by the vendee under the contract, that it was made by the proper person and at the proper time to enable the vendor to extinguish the vendee’s equity, then we find for the plaintiffs the land described in the writ. If the court be of the opinion that such entry was not a sufficient taking of such possession, or that it was not made by the proper person or at the proper time, then we find for the plaintiffs the land described in the writ to be set aside and entered for the defendant on the payment of the sum of §1086.40 within thirty days from the entry of judgment hereon.”
    The court subsequently entered judgment'for the plaintiff to be set aside and entered for the defendant upon payment made by the latter within thirty days, as provided in the special verdict.
    Williams, P. J., after a recital of the above facts, delivered an opinion, saying: 44 The question raised by the special verdict is, whether the plaintiff shall recover according to the terms of the contract of November 3d 1872 a verdict for the possession, to be released on payment of the purchase-money, or adversely and absolutely. This depends upon the construction to be given to the clause in the contract under which this proceeding was had and the effect of what was done on the premises on the 17th and 19th days of February 1879. The contract of November 3d 1872, was a contract ofsale which vested an equitable title to the land described therein in Emerson, the vendee. He went into possession under this contract. Now, the law provides two well-defined methods by which such an equity may be extinguished. An action of ejectment to compel specific execution of the agreement and a sale by the sheriff upon a judgment obtained for the purchase-money. But the parties to this contract sought to provide still another method and one that might be made use of by the vendor himself without the necessity of recourse to the machinery of the courts. They accordingly- provided, in express terms, that on failure by the vendee to make the payments, the vendor should 4 have the right and privilege to take possession of the premises and sell the same to any other person on a notice given to the said Emerson of twenty-four hours.’ Upon failure by the vendee to make the payments, the, vendor then had an election of remedies. He might proceed upon his contract in the courts, or he might proceed by his own act to 4 take possession of the premises.’ If he chose his remedy at law, the law would extinguish the equity of the vendee and put him back into possession. If he chose the remedy provided for his own enforcement, he could retake the possession and so extinguish the vendee’s equity. Being in possession and holding the title he might, of course, sell, and 4 to any other person,’ just as he could have sold if this contract had never been made. But so summary a mode of extinguishing the equity is relieved against by the provision that this proceeding should be had only 4 on a notice being given to the said Emerson of -twenty-four hours.’ Of what is Emerson to have this notice of 4 twenty-four hours ?’ the plaintiff says. Of the time and place of sale. But 'suppose the vendor does not choose to sell. Having exercised his 4 right and privilege to take possession of the premises,’ he may choose to remain in possession and occupy them himself. Holding the legal title, he enters upon the land and ousts the holder of the equity in accordance with the provisions of the contract. He thereby becomes the holder of the equity which his vendee acquired under the contract. The legal and equitable titles are united in him and the vendee’s equity is extinguished. Having thus the title and the possesion he may never sell — the land may descend to his heirs like any other land held in fee simple.
    “We think it more reasonable to construe this clause as requiring a twenty-four hours’ notice of the intent to adopt this remedy. The vendee is in possession — he has not paid the purchase-money —the vendor elects to take the money provided by this clause in the contract. He must give his vendee twenty-four hours’ notice that he intends to ‘ take possession of the premises ’ and so oust him and extinguish his equity. If within the twenty-four hours the vendee pays the purchase-money, the right of the vendor to ‘ take possession of the premises ’ is gone and the title of the vendee saved. If he does not pay the purchase-money, his days of grace are gone and the vendor may come and ‘ take possession of the premises ’ and so end the contract and the equitable title created by it. But suppose the notice to be served in accordance with our construction of the contract, what must the vendor do in order to entitle himself to the benefit of this remedy? We reply in the language of the contract, he must ‘ take possession of the premises.’ A mere going on the land for a few moments is not enough. The ‘ possession of the premises ’ must be taken by the vendor — it must be an actual, visible possession — an ouster of the vendee. But, it is argued, such a construction of this contract puts it in the power of the vendee to defeat his vendor by a successful resistance of the effort to take possession. What effect forcible resistance to an actual effort to ‘ take possession of the premises ’ might have upon the rights of the vendor it is not now necessary to determine. The special verdict finds that the plaintiff made an entry merely upon the premises. The evidence showed that he drove upon the land near the barn, and after a few moments drove away again. No effort was made to take actual possession, and without such an effort forcibly resisted the question suggested is not raised.
    “ The real position of the plaintiff is, after all, this : That the entry upon the premises and sale made by Boyer to Wilcox, as agent of the plaintiff, Welch, extinguished Emerson’s equity, though he was left in actual possession. The equity being thus extinguished, the action of ejectment is brought to obtain the possession, and the plaintiff insists that the defendant cannot reply his contract in defence of his possession, because the rights acquired under it were divested by the entry and sale.
    “ The reply to this seems to be that the contract provided for no such means of divesting the vendee’s title. The words of this clause, 4 shall -have the right and privilege to take possession of the premises,’ contemplated an actual taking of possession. The vendee did not agree that an entry upon any part of the premises should divest his title, nor that upon notice that the possessson was wanted or claimed by the vendor, his right to the possession should be at an end. He did agree, however, 'that if he failed to pay the vendor need not wait for the law to give him back the possession, but might come and take it. That such stipulations are capable of enforcement, when it can be done without a breach of the peace, has been frequently held. Such in effect is the holding in Rich v. Keyser, 4 P. F. Smith 86, and Overdeer v. Lewis, 1 W. & S. 90. If it can not be done without a breach of the peace, by reason of the vendee’s resistance, the remedy is probably by action upon the covenant to recover damages for its breach, as in any other case of breach of covenant: Rich v. Keyser, supra. But our question does not reach the case of forcible resistance. It is, in substance, whether an entry upon land of which the defendant remains in the peaceable and undisputed possession, is a 4 taking of possession of the premises’ in accordance with the terms of the contract of 3d of November 1872. We have sufficiently indicated the construction which we put upon the contract, and our opinion that the vendor did not avail himself of his 4 right and privilege to take possession of the premises.’ It then follows that the vendee, being called upon by this action of ejectment to defend his possession, may do so under the contract of sale. We should be glad to see our way clear, under all the facts surrounding this case, to a different conclusion, but we cannot. Judgment will, therefore, be entered on the conditional verdict, and the payments made within thirty days from the day of filing this opinion will be held to be a compliance with the terms of the special verdict.”
    The plaintiffs then took this writ and alleged that the court erred in this action.

      A. G. Olmstead, C. B. Curtis, J. B. Clark and C. H. Noyes, for plaintiffs in error. —
    No question is made that what was done was done at the proper time, by the proper person and after proper notice; the sole question is whether that which was done was sufficient to extinguish the defendant’s equity. This depends upon the proper construction and effect of the. clause in the agreement. Keeping in view the situation of the parties and the rights of each under the contract, it is evident that their meaning in this clause was simply this : That if Emerson neglected or refused to make the payments, &c., as agreed, and continued to neglect and refuse to pay the same for twenty-four hours after notice from Welch, then Welch should have again the same rights which he had in the land before the contract, that is to say, the right of possession, and the right to sell to whom he pleased. This would leave no right or equity in Emerson after the twenty-four -hours’ notice. His “ equity,” if it may be’ so called, would be extinguished. The effect would be the same as though the parties had said in their contract that in such case the contract should be totally rescinded.
    When the vendee permitted the time to pass without making payment, his equity expired, because he had so agreed : Stone v. Sprague, 20 Barb. (N. Y.) 509. Where specific performance is demanded by one who is himself in default, it is a matter of equitable discretion: Miller v. Henlen, 1 P. E. Smith 265. The right to tako possession, without more,’ is, perhaps, not inconsistent with the vendee’s equity. The vendor has this right after default by the vendee, without any special agreement, and in case he exercises it the vendee may still tender payment and demand performance. It may be doubted whether possession obtained under this clause in the agreement would extinguish the vendee’s equity: Youst v. Martin, 3 S. & R. 432. But the right to sell to any other person is plainly inconsistent with any equity in the vendee. Its exercise implies a complete termination of the vendee’s rights.

      Berry & Elliott, N. B. Smiley, David Sterrett and Wm. M. Boggs, for defendant in error.
    The clause in the contract provided a method, without legal process, by which the equitable estate of Emerson might be extinguished in the event of his default in making the payments at the times stipulated. In order, however, to divest his title under this provision it was necessary that everything thereby required to be done by the vendor be performed with exactness. As we read this power, the first thing the vendor was to do, was to give Emerson twenty-four hours’ notice of his intention to take possession, the evident purpose of such requirement being to allow the vendee that time to pay the purchase-money and save his title. If a pra.per notice had been given, the vendor is required by the contract, if he desires to terminate the vendee’s title, to enter and take actual possession of the premises, turning the vendee out. The mere going upon the land without disturbing or attempting to disturb Emerson, who was in the occupancy thereof, could not be such taking of possession as contemplated by the contract.
    It will not be contended that giving notice of an intention to perform an act is equivalent to performance of the act itself. Neither the vendor nor his assignee had the right in February 1879, to take possession of the land and sell the same under the provision in the contract for that purpose. It is a power which the vendor had the right to exercise at the time when the payments fell due, and no notice having been given of the. vendor’s intension to exercise such right until nearly a year after the last payment fell due, the vendor thereby waived his right to proceed under that provision in the contract.
    October 4th 1880.
   Chief Justice Sharswood

delivered the opinion of the Court,

We concur in opinion with the learned judge in the court below that upon the special finding of the jury the equity of the defendant was not extinguished, and that he was entitled to a conditional verdict in his favor. The vendor undertook, it would seem, to provide a summary remedy for himself, and he must not be disappointed if he is required strictly to pursue the course prescribed. The jury have found that there was a mere going upon the premises and a sale, in pursuance of the notice. Surely this was not a “ taking possession’' according to the terms of the contract.

But really the clause in the article gave the vendor no right or remedy which he did not possess without it. It is hornbook law that the legal owner can take possession if he can do so without a breach of the peace. If an action of trespass is brought against him he can justify under the plea of liberum tenementum. He cannot be dispossessed by an ejectment except by some one suing on a better title. If it be as in this instance a vendor who has regained possession peaceably, his vendee can eject him only by showing that he has paid the purchase-money and has a right to call for a conveyance. What wTas there in the clause of the article in question to show that it ivas intended by the parties that the equity of the vendee should be entirely extinguished and gone ? Nobody doubts that the vendor could maintain ejectment on his legal title without any formal entry or taking possession. The learned counsel for the plaintiff in error very candidly concedes that it may be doubted whether possession obtained under this clause in the agreement would extinguish the vendee’s equity. There can be no doubt that if tfie vendor had recovered in ejectment and been placed in possession by the sheriff, the equity of the vendee would not be affected. He would still have a right to recover back the possession upon tender or payment of the whole purchase-money, unless a conditional verdict taking the place of a decree in equity had limited a time for the payment. The recovery in ejectment by the mortgagee certainly does not foreclose the mortgage and extinguish the equity of redemption. Neither does the recovery by the vendor. But the learned counsel contend that the right after taking possession to sell to any other person is plainly inconsistent with any equity in the vendee. Why so? The article does not expressly sa.y nor necessarily imply that the sale shall be discharged of the equity, and ought we to import such a provision into the contract without some word on which to found it? We have seen that the bare agreement that he should take possession the vendor no right he did not without it; why then should the agreement that he might sell to any'other be construed to give him any power which he did not possess before ? He might without it have sold his legal title. What is there in the contract which says he shall do more ? The purchaser took with notice of the defendant’s equity, and of course subject to it.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Emerson and Wall’s Appeal.
    A court .of equity has no jurisdiction to appoint a receiver to take charge of an oil-producing well pending an ejectment brought to try the title to the possession of the premises.
    June 22d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkby, Sterrett and Green, JJ. Paxson, J., absent.
    Appeal from the Court of Common Pleas of McKean county: Of May Term 1880, No. —. In Equity.
    Bill in equity filed by George K. Welch against Enos Emerson, Marcus Wall, E. A. Roter and Charles Spreter.
    In April 1879, George K. Welch, commenced an action of ejectment against Enos Emerson for the land in dispute and caused a writ of estrepement to issue against him and others holding under him in actual possession. F. A. Roter and Charles Spreter, tenants in possession of five acres of the land, gave bail in the sum of $1000, and had the writ of estrepement dissolved as to the five acres and completed the well they were boring. The plaintiff, afterwards, on the 25th of July 1879, procured an alias writ of estrepement,
    On the 10th of September following, Welch filed this bill and claimed the right to have a receiver appointed, because irreparable injury would result to him, unless the oil should be secured at once, by other wells sunk upon the land. The defendant, Emersop, at the hearing had the same day, contended that he had the equitable title and right of possession. The court, in consideration of the situation of the property and what they believed was necessary for its preservation to those really entitled, decided to appoint a receiver of five-sixteenths of the oil as royalty, pending the litigation between the parties, and adjudged the remainder to the working interest.
    The action of ejectment came on and the trial resulted in a judgment for the plaintiff for the land, to be released on the payment of a certain sum within thirty days, with leave to defendant to pay the money into court. (See preceding case of Welch v. Emerson. —Rep.) Emerson then paid the money into court, but the plaintiff in that case took a writ of error to the Supreme Court, and after-wards Emerson and Wall took this appeal.

      In the present equity proceeding, the court, Williams, P. J., delivered the following opinion: — “ The bill and affidavits in this case disclose a peculiar state of facts. An action of ejectment is pending between these parties, which was brought on 4th April 1879 ; on the same day an estrepement to stay waste was issued; the land is valuable as oil land, and is surrounded on all sides by productive oil territory; the map attached to the affidavit of A. I. Wilcox shows that no less than twenty-eight wells have been put down, or are in process of drilling near enough to the lines of this lot to draw oil from it; within a short time its value will be greatly impaired if not wholly destroyed by the natural drainage from it by means of this large number of wells along its lines on adjoining lands.
    “ The plaintiff had the legal title and claims to have extinguished the defendant’s equity and to have clothed himself with a complete title thereby.
    “ The defendant, Emerson, claims on the other hand to hold the equitable title under a contract made on the 23d of November 1872, which he insists has not been extinguished. The determination of the action of ejectment depends on this question. If the attempt to extinguish the equity by re-entry and sale under a provision in the contract of November -23d 1872, was authorized by and valid and effectual under the terms of that contract, the plaintiff m.ust recover without condition; if not, then his recovery must be conditional and such as to save the equitable title and rights acquired under it.
    “ Emerson claims to have leased to one Marcus Wall, another of the defendants in this case, in 1877; nothing, however, was done on the land by Wall until after the action of ejectment was commenced. On the 23d of April 1879, Wall sub-let to Doty. On the 26th of April 1879, Doty assigned to Roter & Spreter, who at once began work upon their mase. They gave bond and secured an order modifying the estrepement so far as to permit them to put down one well; this well is finished and is producing at least one hundred and fifty barrels of petroleum daily; they cannot operate further without giving additional bonds and securing another modification of the writ of estrepement; they have a lease of oil land now known to be of great value. By the terms of their lease, they are bound to render one-fourth of the oil to Wall. What is needed for the interest of owners and lessees is to operate the territory before it is drained by adjoining owners who are crowding the lines on every side; the writ of estrepement prevents this; Wall does not give security and dissolve the writ, but insists on his one-fourth of the oil produced. The tenants cannot afford to furnish security necessary to secure the dissolution of the writ and take the chances of a recovery by Welch for the land and the mesne profits which they have accounted for and must in that case continue to account for to Wall. Upon consideration of the situation of this property and what is necessary for its preservation to those really entitled, we have decided to appoint a receiver in accordance with the prayer of the bill, for five-sixteenths of the oil as royalty. The remainder appears by the affidavits to be a sufficient provision for the working interest, and the tenants express their willingness to operate the íand actively upon this basis.
    “ The estrepement will be dissolved on motion made in the action of ejectment without further bail, and from this time forward the receiver will take charge of the royalty for the benefit of the successful party in that action ; in this way alone can the value of the land be saved to the owners ; the enforcement of the estrepement against the tenants will not save the oil, for if he does not obtain it his neighbors will.
    “ The tenants should not be required to furnish security for dissolving the writ and take all the chances of the litigation; and their immediate landlord will do nothing to protect them or to dissolve the writ.
    “ We must, therefore, make the appointment, or the value of this land must be lost by its owners and gained by its crowding and grasping neighbors.”
    The court then made the following decree :
    “And now, to wit: September 10th 1879, on hearing the bill, proofs and arguments of counsel, and upon due consideration thereof, it is ordered and decreed: That Samuel P. Boyer be appointed receiver of five-sixteenths of all the petroleum, oil and other minerals to be after this date produced, pumped or raised upon a certain piece of land mentioned in the plaintiff’s bill, to wit, five acres from the west end of a certain tract situated in Keating township, McKean county, Pennsylvania, known as the Jesse L. Geary tract, and the same particularly described in the plaintiff’s bill; said five acres being that part thereof, of which defendants Roter & Spreter are now in possession under lease from defendant, Marcus Wall; and the said defendants, Roter & Spreter, and their assignees, are ordered to deliver to said receiver the full and fair five-sixteenths of all the oil so pumped or raised upon said premises; and the said defendants, Enos Emerson, Marcus Wall, F. A. Roter and Charles Spreter, their agents, servants and assignees are enjoined and restrained from interfering with, or in any manner hindering said receiver in entering upon said premises, demanding, receiving and taking the said five-sixteenths of the oil, &c., as above directed; and the said receiver is empowered and authorized to sell and convert the said oil and other minerals into money from time to time ; the said oil and minerals, as well as the avails thereof, to be held pending litigation between the parties to this case, subject to the control and until the further order of the court; and it is further ordered that the receiyer give a bond in the sum of $20,000, with sufficient sureties to be approved by the court or a law judge thereof, for the faithful performance of his duties. No order to issue until the plaintiff shall file a bond with sufficient surety or sureties in the sum of $2000, conditioned that said plaintiff will save harmless and indemnify the defendants against any loss or damage by reason of this order and decree.”'
    October 4th 1880.
    From this decree Emerson and Wall took this appeal.

      David Sterrett, N. B. Smiley, Berry Elliott and William M. Boggs, for appellants.
    The court had no authority to appoint a receiver in a case such as the one at bar : Kerr on Receivers 111; Schlecht’s Appeal, 10 P. F. Smith 175.

      Clark & Noyes, A. G. Olmstead and C. B. Curtis, for appellee.
    —This is not merely a case of conflicting titles, like Schlecht’s Appeal, in which the effect was, practically, to turn the defendants out of possession by a bill in equity. Sharswood, J., in that case says : “ An injunction and-receiver are resorted to in any case only to preserve property in statu quo pending a contest. For any waste the law has provided a remedy by estrepement, or an injunction may be obtained if preferred, but anything like an averment of waste is not to be found in this bill.” The appointment of a receiver rests in the sound discretion of the court: Milwaukee Railroad Co. v. Soutter, 2 Wallace 521. A court of equity will interfere, even in cases of disputed titles, when the peculiar circumstances seem to require it, even where the cause is pending in another court: Daniels’s Chancery, vol. 2, 1725, 4th ed: Kerr on Receivers 13. If the remedy afforded by the courts of ordinary jurisdiction is inadequate for the purposes of justice, the Court of Chancery will, on a proper case being made out, ex debito Justitice, appoint a receiver: Kerr on Receivers 1, 2. The jurisdiction to appoint receivers in similar cases, was fully recognised in Chicago & Allegheny Oil & Min. Co. v. U. S. Petroleum Co., 12 P. F. Smith 83, though in that case the decree was refused on the merits of the ease. Equity will restrain a purchaser who has obtained possession without paying the purchase-money from committing waste: Crawford v. Alexander, 15 Vesey 138; Kerr on Injunctions 263, 288.
   Chief Justice Sharswood

delivered the opinion of the- court,

It may be very convenient wherever there is an adverse claimant to an oil well that the court should have power to appoint a receiver to take possession of it and work it for the benefit of the successful litigant. It may be that if the tenant in possession is obstinate and will not give security to dissolve an estrepement, the effect of the execution of the writ- may be, that the entire territory will be pumped dry by wells sunk on surrounding property, and thus the value of it be destroyed as to both parties. But will that consideration give a court of equity jurisdiction of a mere ejectment bill, and the power to take possession of the land in controversy ? We think not. The legislature may, perhaps, be competent to give some remedy, taking care to preserve to the defendant his constitutional right of trial by jury. The mere granting of an issue in the discretion of the chancellor is not enough. Eor the courts to assume such a jurisdiction would, we think, be a clear case of judicial legislation.

Decree reversed and bill dismissed with costs.


author: Mr. Justice Mercur

text:
    Innis versus Templeton
    1. A married woman has no capacity to contract for the sale of her real estate, nor to convey it, other-wise than in the precise statutory mode conferring the power.
    2. The fact that a married woman may have received a part or the whole of the purchase-money for her real estate, in consideration of her agreement, or induced the purchaser to make valuable improvements thereon, is insufficient to pass her title thereto, where the form of transfer prescribed by the statute has not been observed.
    3. The doctrine of estoppel cannot be invoked to enforce the agreement of a married woman for the sale of her land when her agreement was otherwise void. Legal incapacity cannot he removed, even by fraudulent representations, so as to create an estoppel in the act to which the incapacity relates.
    June 22d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey, Sterrett and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas of McKean county: Of May Term 1880, No. 67.
    Ejectment by William J. hnnis against P. A. Templeton.
    By agreement the parties waived a trial by jury and submitted the case to the decision of the court, Williams, P. J., who found the facts as follows :—
    “That in the months of September, October and November 1877, and until the 28th of August 1878, the land in controversy was held by Lois M. Innis, wife of William Innis, by virtue of a contract with Calvin T. Chamberlain, and was in her actual possession, being part of a larger tract held by her under said Chamberlain contract. That said Lois M. Innis and William Innis leased to E. H. Watkins ‘for, the term of fifteen years for the purpose of obtaining oil,’ a part of the land then in her possession, described as follows, viz.: ‘Fifty acres of my, the first party’s, homestead,’ without designation of boundaries or other description than as given above. That there was a contemporaneous parol agreement by which Mrs. Innis, then having fifty-six acres to lease, was to be at liberty to locate the six acres so as to cover the buildings occupied by her, and such other land adjacent as she pleased, and the remainder of the fifty-six acres should be covered by the written lease. That said Lois M. Innis never has located the said six acres, so as to be held by her. That said lease of fifty acres was dated 11th November 1877, was duly signed and acknowledged by Lois M. Innis and her husband, and delivered to the said Watkins. That it contained, inter alia, the following agreement: “Said E. H. Watkins agrees ‘to commence and complete a well in four months from date of the lease, and the second well on same land in eight months after the completion of the first,’ &c. Also, ‘if the party of the second part fail to comply with this contract, then it is null and void and of no effect.’ The work done under the lease by E. II. Watkins was, to begin work on a rig on the 27th of March 1878, more than four months after the date of the contract. Work was suspended within a few days and nothing more done until July. On .the 17th of July he began to drill, and on the 22d of August completed the first well. The following extensions of time for completing the first well were made in Avriting and endorsed on or attached to the lease, viz.: 14th March 1878, extension to 5th of August, signed by Mrs. Innis and her husband. 18th July 1878, extension for twenty days from the first of August next, signed Lois M. Innis. It also appears that on the 6th of July about $20 in money was paid by E. H. Watkins to Innis and Avife for compensation for delay. Neither of the agreements for an extension of time were acknowledged by Mrs. Innis. The title of E. H. Watkins is now vested in the plaintiff by agreements in writing of date 22d September 1878. The title of the defendant was obtained from Mrs. Innis and husband, who sold their title to him and assigned their contract from O. T. Chamberlain on the 28th of August 1878. This action is brought for that portion of the land leased to E. H. Watkins, Avhich may be called the south half. The other half having been transferred by him to John Knott as the consideration in full for the Avork done upon the first well prior to his sale to the plaintiff. That neither Lois M. Innis nor W. Innis, her husband, gaye any notice of, or did any act indicating their intention to repudiate the agreements, extending the time of performance until about the time the Avell Avas completed in August 1878.”
    The defendant asked the court to find in accordance with the following propositions : 1. To find as matter of laAV, that the lease or contract of Innis and Avife of November 11th 1877 to E. H.' Watkins is void at law for want of any description of the property alleged to be conveyed. 2. To find as matter of law, that th alleged extension of March 14th 1878 is void at law for Avant of acknOAvledgment as required by statute, the contract having become forfeit, and the estate reverted to the grantor. 3. To find, as matter of law, that the agreement or contracts of July 6th 1878 and July 18th 1878, are void at law, being the agreement of a married woman purporting to pass her separate estate, and not joint with her husband and separately acknowledged as required by statute. 4. That under the law and the evidence in this case, plaintiff cannot recover.
    The conclusions of law of the court were as follows: “ 1. Upon the propositions submitted in the first request, the court find adversely to the defendant, and that the contract or lease was not ‘void at law’ for want of description. When Mrs. Innis indicated the part she was to retain the lease would cover the entire residue. Neither she nor one holding under her can set up her delay to indicate the six aeres she would retain as a reason for defeating her grant altogether. 2. No work having been done within the four months from November 11th 1877, the lease became null and void at the expiration of that time in accordance with its terms. 3. Mrs. Innis, being under disability, could renew, resuscitate or remake the lease by the same formalities necessary to its creation, and in no other way. 4. That upon defendant’s second request therefore, the court find that the agreement of March 14th is inoperative, because unacknowledged by- Mrs. Innis. 5. That the agreement of July 18th 1878, is also inoperative and for the same reason. 6. That, however, the receipt of July 6th 1878, might operate by way of estoppel against one sui juris, it cannot estop Mrs. Innis because under disability. 7. That inasmuch as the plaintiff shows neither performance of his agreement, or such a renewal thereof as is binding upon Mrs. Innis, the proposition contained in the fourth request of defendant’s counsel is affirmed. The court find that the plaintiff has shown no right to a recovery in this case. Upon the whole case, therefore, the court find in favor of the defendant; accordingly let judgment be entered in favor of the defendant.”
    The plaintiff excepted, but the court overruled the exceptions and entered judgment in accordance with their original findings.

      W. B. Chapman & Son and J. C. Sturgeon & Bro., for plaintiff in error.
    The clause of forfeiture mentioned in the contract belongs to the class of conditions subsequent, and if so, the title and possession of the land passed to Watkins on the delivery of the contract. It is not denied that he went into possession of the land, and while at work thereon the agreement to extend the time for performance until August was made. This was a promise by Innis and wife that they would waive the time and the forfeiture. Certainly this extension was binding on the married woman, and it did not require an acknowledgment: Lycoming Ins. v. Schollenberger, 8 Wright 263; Helme v. Philadelphia Life Insurance Co., 11 P. F. Smith 110. The right to declare a forfeiture is a personal right. Mrs. Innis was estopped: Cord on Married Women, sect. 246; Bispham’s Equity, sect. 293; McCullough v. Wilson, 9 Harris 436. An acknowledgment was not necessary, for there was no conveyance of land: Dayton v. Newman, 7 Harris 199; Fryer v. Rishell, 3 Norris 521. The receipt of money by Mrs. Innis after the alleged forfeiture estopped her from denying the validity of the lease.
    October 4th 1880.

      A. G. Olmstead and E. R. Mayo, for defendant in error.
    A married woman’s power to convey or charge her real estate in Pennsylvania is derived solely from the Act of February 24th 1770, and the requirements of that act as to separate examination and acknowledgment must be strictly pursued, and so appear on the magistrate’s certificate: Graham and Wife v. Long, 15 P. F. Smith 383; Rumfelt v. Clemens, 10 Wright 455; Kirkland v. Hepselgefser, 2 Grant 84. The agreement by Mrs. Innis of July 18th 1878, for a further extension of the limited rights of Watkins is void because her husband did not join in it, and it was not separately acknowledged by her.
    The original lease of November 11th 1877, having become void in legal effect on the 11th of March 1878, by its own limitations, Mrs. Innis could ratify, renew or extend it in no other way than by re-execution in the manner and form directed by the Act of 1770 : Glidden v. Strupler, 2 P. F. Smith 400; Williams v. Baker et al., 21 Id. 476; Ledger Loan & Building Association v. Cook et al., 6 W. N. C. 428. A vendee or lessee in .possession under a married woman’s conveyance void for want of proper execution cannot set up her receipt of purchase-money or rent, nor valuable improvements made by her permission, to defeat her title on the ground of estoppel: Glidden v. Strupler, supra; Rumfelt v. Clemens, 10 Wright 455; Richards v. McClellan, 5 Casey 385; Bispham’s Principles of Equity, sect. 293, p. 356; Williams v. Baker, 21 P. F. Smith 476. Much less can the plaintiff in this case, being out of possession, recover upon his contract. The void contract of a married woman cannot be enforced by the indirect way of estoppel: Keen v. Coleman, 3 Wright 299.
   Mr. Justice Mercur

delivered the opinion of the court,

The plaintiff seeks to recover the land in question under title derived from Lois M. Innis. By agreement filed the parties waived a trial by jury, and submitted the case to the decision of the court. The facts found and admitted show, inter alia, that Mrs. Innis, a married woman, held a title to, and was in the actual possession of, a tract of land called her “homestead.” While thus holding and in the possession thereof, she and her husband of the one part, and one Watkins of the other part, entered into an article of agreement, dated the 11th November 1877, whereby the party of the first part agreed to lease to Watkins fifty acres of said land for the term of fifteen years, for the purpose of obtaining oil; said Watkins agreed to pay one-eighth part of the oil found on the premises, and to commence and complete one oil well in four months from the date of the lease or contract. It was further stipulated if he failed “ to comply with this contract, then it is null and void and of no effect.” The boundaries of the land on which Watkins might experiment for the discovery of oil were not designated in the writing. There was a cotemporaneous parol agreement by which Mrs. Innis might locate six acres so as to cover the buildings occupied by her, and such other lands adjoining as she pleased, and the written lease cover the residue of the fifty-six acres. The court found in fact that she never located the six acres. The land let to Watkins was “ wild timber land and unenclosed.”

Watkins did not complete nor even commence a well, Avithin four months after the date of his agreement. On the 27th March 1878, he began work on a rig : but it Avas suspended within a few days and nothing done until July. On the 17th July he began to drill, and on the 22d August completed the first Avell. The Avritten agreement of the 11th November 1877 Avas duly acknowledged by Mrs. Innis and husband. On the 28th August 1878, they sold and assigned the land to the defendant. The plaintiff seeks to recover on a title acquired from Watkins on the 22d of September following. As the latter did not perform the act necessary to continue the term, Avithin the time stipulated in the Avritten contract, it thereby, by its terms, became “null and void and of no effect.” The plaintiff claims such effect shall not be given to the failure of Watkins to fulfil his contract for tAvo reasons : one, that there was no sufficient re-entry by Mrs. Innis to make the agreement of forfeiture effective; the other, that a right to declare the forfeiture was waived by a subsequent agreement of the parties to the contract.

In considering what weight should be given to the first reason, due regard must be had to the condition of the land and the purpose of the written contract. The land was wholly unimproved. The. object was to compel the sinking of wells for the purpose of ascertaining whether it contained oil. The precise limits Avithin which the experiment should be made were not designated. Watkins was not allowed any indefinite time in which to complete a Avell. It Avas to be done within the time specified. If not then done, all rights under the contract were to be void. If the Avell was completed, and no oil Avas found, no payment was to be made. Although the instrument contained some words incident to a lease, yet its main purpose Avas more in the nature of a contract to search for oil. No certain profit Avas reserved or agreed to be paid. It was wholly contingent on the finding of oil.

The necessity of entry for a breach of condition is not held as inflexibly in Pennsylvania as in England and in some of our sister states. With us much depends on the terms of the instrument. If no formal re-entry be thereby contemplated, none is required. We have shown that substantially the instrument gave only a license to search for oil within no distinctly defined boundaries. The court found, as a fact, that the land in controversy was in the actual possession of Mrs. Innis, from a date prior to the 11th November 1877, until she sold to the defendant. We discover no sufficient evidence to convict the court of error in so finding. Then she having been continually in lawful possession, no re-entry was necessary to revest the estate. The breach of condition operated as a forfeiture of all right in Watkins, and the whole estate revested in her by operation of law: Hamilton v. Elliott, 5 S. & R. 375 ; Kenrick v. Smick, 7 W. & S. 41; Sheaffer v. Sheaffer, 1 Wright 525; Davis v. Moss, 2 Id. 346.

The remaining objection to the forfeiture is the alleged waiver thereof. Conceding that the acts and declarations of Mrs. Innis were sufficient to establish a waiver in case she had been a feme sole, yet it is an unquestioned fact that during the whole time she was under coverture. The question then is,-were they sufficient to transfer the title of a married woman in real estate or estop her from asserting it ?

It is a settled rule of law that a married woman has no capacity to contract for the sale of her real estate, nor to convey it otherwise than in the precise statutory mode conferring the power: Kirkland v. Hepselgefser, 2 Grant 84; Rumfelt v. Clemens, 10 Wright 455; Glidden v. Strupler, 2 P. F. Smith 400; Dunham v. Wright, 3 Id. 167 ; Graham v. Long, 15 Id. 383; Brown v. Bennett, 25 Id. 420.

The title which she had transferred according to the requirement of the statute on the 11th November 1877, had reverted to her. It became hers as absolutely and unconditionally as if she had not executed that agreement. Her title then could not be sold without an instrument in writing duly executed and acknowledged by herself and her husband. Without this the instrument as to her was void, and passed no title at law or in equity: Glidden v. Strupler, supra; Dunham v. Wright, supra. The fact that she may have received a part or the whole of the purchase-money, in consideration of her agreement, or induced the purchaser to make valuable improvements thereon, is insufficient to pass her title to real estate when the form of transfer prescribed by the statute has not been observed. To hold otherwise would operate as a repeal of the statute which designates the only mode in which a married woman can convey her real estate: Rumfelt v. Clemens, supra; Glidden v. Strupler, supra; Thorndell v. Morrison, 1 Casey 326; Richards v. McClelland, 5 Id. 386; Pettet v. Fritz, Executor, 9 Id. 118.

The doctrine of estoppel cannot be invoked to enforce the agreement of Mrs. Innis for the sale of her land, when her agreement was otherwise void. Legal incapacity cannot be removed even by fraudulent representations, so as to create an estoppel in the act to which the incapacity relates. Hence, it was held in Keen v. Coleman, 3 Wright 299, that a married woman who falsely and fraudlently represented that she was single when she executed a judgment bond, thereby obtaining the consideration therefor, was not estopped from setting up her coverture in defence to a recovery on the bond.

In the present case Watkins knew Mrs. Innis to be a married woman. He knew she had no capacity to sell or convey land without a deed duly executed and acknowledged by herself and her husband. He was not deceived, and had no reason to complain of her subsequent refusal to relieve him from the consequences of his foolish conduct: Alexander v. Kerr, 2 Rawle 90; Crest v. Jack, 3 Watts 238; Carr v. Wallace, 7 Id. 394 ; McAninch v. Laughlin, 1 Harris 371; Hill a. Epley, 7 Casey 333.

In some cases a married woman may be estopped from repudiating her executed contract in a sale of personal property; but we are now considering the question of a divestiture of her title to real estate arising on an executory contract.

The acts of Mrs. Innis given in evidence, and the offer to prove other acts, which was rejected, are both insufficient to move a chancellor to decree specific performance.

The evidence of the acts of the defendant in error after he acquired title was properly rejected. It was clearly insufficient to estop him. Nor did the fact that he purchased subject to all outstanding leases in force,” defeat the title which he would otherwise have acquired. That clause was designed for the protection of Mrs. Innis, and not to infuse new life into a void contract nor into one that had lost its force. We do not deem it necessary to consider the assignments separately. We discover nothing in.any of them calling for correction.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Overseers of Laporte Borough versus Overseers of Hillsgrove Township.
    1. Under the Act of March 16th 1868, authorizing writs of error in poor oases, there can he no review of the judgment of the Quarter Sessions on the; facts and merits of the case, but only of such decisions on points of law andl evidence as may have been excepted to. '■
    2. By the docket of a justice of the peace it appeared that suit was brought against B., the husband'and father of the paupers, whose settlement was the subject of controversy, for rent due on a lease to him of a certain house, and that said suit, after the admission of a set-off of §5, resulted in a judgment against B. of §17.50, upon which he afterwards paid §10: Held, that this ■was legitimate evidence of a lawful demand for and payment of rent to the amount above specified.
    3. Where an attempt is made to impeach an order of relief on the ground of fraud the declarations of the pauper are admissible for the purpose of showing that the officers acted in good faith in issuing the order and affording relief.
    I. Under the poor laws a settlement cannot be acquired by leasing alone, there must also be the payment of rent, but this money need not be paid in money ; it may be paid in the equivalent of money, labor or other services, and hence where one contracts to pay in services it is competent to show that he did not comply with that contract, and as a consequence did not gain a settlement in a poor district thereby.
    5. When an order of relief is conclusive of the fact that the persons named therein were the proper subjects of an order of removal, although the latter was not made until nine months after the first was issued.
    June 22d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkby, Sterrett and Green, JJ. Paxson, J., absent.
    Error to the Quarter Sessions of Sullivan county: Of May Term 1880, No. 201.
    In the court below this was an appeal by the Overseers of the Poor of the borough of Laporte from an order of removal of Mrs. Elizabeth Burnett and her five children from the poor district of Hills-grove. The case was argued before Elwell, P. J., of the Twenty-sixth Judicial District, having been certified to said district by Ingham, P. J., of the Forty-fourth District. The facts and conclusion of law will be found in the following opinion of Elwell, P. J.:
    “ On the 5th day of December 1879 an order was issued by two justices of the peace for the removal of Elizabeth Burnett and five minor children from the township of Hillsgrove to the borough of Laporte, upon the allegation of the overseers of the poor of said township that they had become chargeable upon that district, having no settlement therein. Whereupon the justices having adjudged that the borough of Laporte was the place of their last legal settlement ordered their removal thereto. From this order the said borough appealed to the court. Elizabeth Burnett is the wife of Henry Burnett, and they are the parents of the five children mentioned in the order. It appears by the evidence that in the latter part of March 1878, Burnett took-a lease of a house and lot of Wheeler Green in Hillsgrove township at a yearly rent of $15; that he moved into that house about a week before the 1st day of April 1878, and that he remained there with his family until the latter part of February 1879, when he was arrested upon a charge of violating the laws in regard to the sale of liquor. He was convicted, sentenced and remained in jail until the 4th day of April 1879, when he was discharged from custody. Before his arrest he paid $12.50 on his rent to Mr. Green, and had contracted for the lease of his property for another year from the 1st day of April 1879, for the same rent. On the 10th day of March 1879, an order of relief was issued by two justices of the peace,- by which Elizabeth Burnett and her five children became or were declared to be a town charge. On the 15th day of March 1879, an order of removal was issued, directing the overseers of the poor of Hillsgrove township to remove Mrs. Burnett and children from Hillsgrove to Laporte township, which was adjudged to be the place of their last legal settlement. Under this order the family 'was removed to Laporte township on the 19th day of March 1879. Laporte township appealed, and this order was reversed by the court and the persons mentioned in this order were removed back to Hillsgrove township on the 27th of September 1879.
    “ Henry Burnett, in the year 1878-79, and before and since, was able to labor and support his family. The facts in regard to the obtaining the order of relief will be more particularly mentioned when we come to consider the question of settlement in Hillsgrove. The overseers of the borough of Laporte deny that Henry Burnett ever had a settlement in that district, and it is alleged that if he did at one time have a settlement there, it was not his last place of settlement, he having subsequently to his residence there acquired a settlement in Laporte township and again a still subsequent settlement in Plunkett’s Creek township in Lycoming county, and that under the facts the continuity of the occupation of the Green house was not broken by the removal of Burnett’s wife and children ; that by the renting, occupation and payment of rent he acquired a settlement in Hillsgrove township.
    “In order that the whole case may appear in the records, the facts in regard to these several settlements must be considered. I begin with the borough of Laporte. In 1871 Burnett took a lease of the Methodist Episcopal parsonage in the borough of Laporte at $2.50 per month, and with his family resided therein, so far as appears, without a break until March 1872. Judge Ingham and Walter Spencer do not remember of his being there in the winter of 1871-2, but it appears that he was there during the summer, and he was there in March 1872, at -which time (March 23d 1872) suit was brought against him before Justice Meylert, to recover for nine months’ rent, $22.50. He claimed and was allowed $5 for repairs on the rented premises. . Judgment was rendered against him on the 30th of March 1872 for $17.50, and on the same day he paid thereon $10, which was at the same time receipted by one of the trustees of the parsonage, and the payment was noted on the docket of the justice., From the parsonage Burnett moved to a house which he rented at $1.50 per month. This house is known as the ‘Brewster’ house, and is also in the borough of Laporte. He lived there, according to the testimony of the agent, John H. Green, three and a half or four months. He paid part of the rent; Mr. Green says not more than $5. From there he moved to what is called the ‘ Hays house,’ also in the borough, he having leased the same of the agent, William Meylert, at a rent of $5 a year for the garden and fifty cents per month for the house. He remained in that house six months and paid $8 rent.
    “ The evidence clearly establishes that Burnett bona fide took lease of real estate in the borough of Laporte of the rental value of $10 per year and that he dwelt upon the same for one whole year and. paid the said rent.
    “ From the ‘ Hays house’ Burnett moved to the Laporte tannery in Laporte township. He worked for the tannery company and lived in one of its houses for which so far as appears no rent was charged or paid.
    “ It does not appear that the company paid any less wages to married men who occupied their houses than to other workmen who did not, and besides, it does not appear how long Burnett occupied a house there. Probably more than one year.
    “On the 20th of June 1876 he moved with his family to Plunkett’s Creek, Lycoming county, and rented a house of the tannery company at Proctoryville in said township (Plunkett’s Creek) at $2 per month, and lived in it until the 1st of April 1877, and paid on the rent $7.50.
    “ He then rented a house of Edward Day in said township, the yearly rental of which was worth $12 per year. He had with the house a garden. In addition Mr. Day gave him a patch for potatoes if he would clear it off — over half an acre’. Mr. Day had at that place thirty acres of ground. The contract between Day and Burnett was, that Burnett was to take care of the place for the house and garden and potato patch. He was to see to things, and if cattle got in to turn them out. There were no windows in the house at the time of the contract; he was to get windows and put them in and leave them in when he went away. He was to keep persons from stealing the apples on the place. He lived at the place until about a week before the 1st of April 1878, and moved from there to a house in Hillsgrove township, rented of Wheeler Green, as before stated.
    “While in the Day house in Plunkett’s Creek township he cleared off the potato patch and raised potatoes,' doing work, as he says, at the nreparation worth $5 or $6. He put the windows in the house worth $3 or $4, and he testifies that he took care of the place as he agreed. But it appears from other testimony that although he put the windows in the house he did not leave them there when he left. He protected the orchard from depredation by others, according to Mr. Day, by taking the fruit himself, tie refused to drive the cattle from the wheat of Mr. Day, and he committed trespass by cutting down trees. He testifies that he paid rent by cutting oats for Mr. Day, but the latter testifies that the charge for cutting oats was but $1.50, and that he paid to him. When he went on the place the yard about the house was fenced oh three sides with palings, making fifty-four feet of that kind of fence; when he left all of the palings but fifteen were gone. Instead of attempting to protect the crops of his landlord he declared he would not drive the cattle off it if they eat all the wheat up by the roots. In short, he failed to render the ‘stipulated service’ to his landlord. Besides positive neglect, he committed waste to the freehold approximating, if .not quite equal to, the rental value of the property leased. I find as a fact that he did not pay rent to Mr. Day.
    “ From the Day place he moved with his family to Hillsgrove township, having a short time before rented the Green place, as above stated. The facts in regard to the renting, payment of rent and dwelling upon that property being fully stated in the first part of this opinion, I come now to the consideration of the circumstances under which the family of Burnett was made chargeable upon the township of Hillsgrove whereby the foundation for the order of removal from that township was laid. On the part of the township several witnesses testified that Mrs. Burnett, after her husband was sent to jail, declared that she must have help from the township; that she had but $2.40 in money, and a very small supply of provisions; that she declared she was not able to do her work, and must have the assistance of a hired girl. And Justice Biddle testifies that she desired him to procure an order of relief; that she was reluctant to apply to the town, but was forced to do so. It is also proved by two witnesses that Burnett said to one of the overseers of the poor, ‘ you folks will have to take care of my family.’
    “ All of the testimony is contradicted by Mrs. Burnett, so far as regards her declarations. She- deposes that she did not apply for assistance; that she told the officers when she needed assistance she would let them know; that she had money, and showed it to the township officers; that th.ey made false representations to her in regard to the length of time her husband would be in jail, and in regard to the ability of the town to furnish her support until after a special tax was laid. Burnett denies having made the declarations imputed to him. On the other hand it is shown by the township that Mrs. Burnett received some support from a store in pursuance of the order of relief, and a load of wood prepared for use.
    “Now as regards the question whether these persons were chargeable to and had become a charge upon the township of Hillsgrove, nothing need be said further than to refer to a well-settled rule in regard to the conclusiveness of an order of relief. No appeal lies from such an order: Lampeter Township v. Lancaster Borough, 2 Yeates 164. Overseers are merely ministerial officers, exercising an authority conferred by the order of the magistrates, and are not trusted with any discretionary powers: Overseers v. Baker’s Exr’s, 2 Watts 282, per Sergeant, J. It is necessary that a pauper, before he is removed, should have become chargeable, or have become likely to become chargeable, to the district- which undertakes to remove him; otherwise the justices have no jurisdiction ; but an order of relief is conclusive evidence of the chargeableness of a pauper: Cumberland Township v. Jefferson Township, 1 Casey 465. Under any direction, where an order of relief or maintenance is issued, the township on whom it is made is bound to support the pauper until they find the place of his last settlement. From such an order there is no appeal. The overseers who receive such order are bound to obey it: Overseers of Milton v. Overseers of Williamsport, 9 Barr 49, per Burnside, J.
    “In Cumberland v. Jefferson, supra, evidence was given to prove that the pauper was an able-bodied woman, and not chargeable as a pauper. Proof was submitted by the plaintiff of her inability to earn a livelihood. In the opinion of the Supreme Court, delivered by Woodward, J., as we have seen, he held that the order of relief was conclusive evidence of the chargeableness of the pauper.
    “ The law submits that question to the adjudication of a tribunal whose decision cannot be reviewed except in cases where it is shown by a clear preponderance of evidence that it was obtained by fraud. Fraud is not protected by any judgment or decree of any court: Mitchell v. Eintzer, 5 Barr 217 ; Bigelow on Estoppel 149.
    “ The legal presumption is in favor of the honesty and fairness of a transaction, unless upon its face the contrary appears.
    “ In this case, the good faith of the justices who granted the order of relief, as well as that of the overseers of the poor, is attacked by the testimony of Mrs. Burnett, but, unless Justice Biddle, the two overseers of the poor, Mrs. Fincel and Aaron Lewis have testified falsely, Mrs. Burnett did apply for relief, and did appear to need it. It is objected that her statement in regard to her necessities is not evidence. I hold, however, that, taken in consideration with the surrounding circumstances, they are evidence as part of the res gestee ; and her acceptance of the relief, is also evidence in behalf of the township. No doubt the overseers were anxious to avoid the completion of the settlement of Burnett in Hillsgrove township, and were willing his family should become a town charge to that end. But the weight of evidence is, that the family needed assistance, and that it was rendered at the request of Mrs. Burnett, and in accordance with the declaration of the husband that the town ‘ would have to take care of his family.’
    “ If there was a conspiracy to defeat the settlement in Hillsgrove, as alleged, the defendant has failed to establish it by a preponderance of evidence.
    “ It does not appear by the evidence that Burnett returned to Hills-grove after being liberated from jail. The only remaining question in the case is, whether he dwelt one whole year upon the .Green property. His family was removed by an order of removal to Laporte township before the year expired; that order on appeal was reversed, but as it was no doubt granted under the belief that he had a settlement there, I am of the opinion that his dwelling upon the leased property in Hillsgrove ceased with the removal of his family from the premises, and that his settlement there was not complete.
    “ When a pauper has become actually chargeable to a district be may be immediately removed, although if allowed to remain he would shortly acquire a settlement.
    “It is objected that the order of removal in this case should be quashed because it is alleged it separates husband and wife. I do • not so understand the effect of it. Wé hold that the settlement of Henry Burnett is in Laporte borough, and not in Laporte township, nor in Plunkett’s Creek, nor in Hillsgrove. His wife and family, by this order, were removed to his place of settlement, and so far as appears, to his place of residence at the time the order was issued. This is not forbidden by the statute.
    “ Settlement being entirely a matter of statutory regulations, the court has no discretion upon the subject, as Burnett has almost acquired a settlement in Hillsgrove, I have reluctantly reached the conclusion to affirm this order of removal.
    “ And now, April 21st 1880, it is ordered and adjudged that the order of removal in this case be affirmed, and that the borough of Láporte pay the costs, to wit: the office costs and plaintiff’s bill of $24.66, and $ for expenses in maintaining the pauper. In filling the blank for expenses nothing but the actual cost of supporting the paupers should be allowed. Pay to the township officers ought not to be allowed.”
    The counsel for Laporte borough excepted to the rulings of the court: 1. Because the court erred in finding as a fact that the paupers had a settlement in the borough of Laporte by renting real estate in said borough, and dwelling upon the same one whole year and paying the said rent. 2. In not finding as a fact that Henry Burnett did, subsequently to his residence in Laporte borough, acquire a settlement in Laporte township; and also in Plunkett’s Creek township, Lycoming county, by renting real estate in each of said districts, dwelling upon the same one whole year, and paying in each case a rent of $10. 8; In not finding as a fact that the order of relief upon Hillsgrove township for the maintainance of the wife and children of Henry Burnett was obtained through fraud, falsehood and misrepresentations, and for the mere purpose of preventing said paupers from dwelling upon the property leased by said Burnett, and on which he and his family dwelt until fraudulently removed by the officers of said township, he having paid more than $10 rent. 4. In not finding that Henry Burnett, his wife and family, in fact and law had a settlement in said township of Hillsgrove at tne time of obtaining the order of removal in question, on the 5th of December 1879. 5. In holding that the declarations of Mrs. Burnett were evidence. 6. In holding that the order of removal was not illegal, and did not, within the Act of Assembly, separate husband and wife. 7. In affirming the order of removal, and directing the costs and expenses to be paid by the borough of Laporte. 8. In admitting the evidence of Wm. Meylert so far as it related to any release or payment of rent by Henry Burnett for the Methodist Episcopal parsonage in Laporte borough, and in admitting in evidence a copy of the docket of Wm. Meylert, an alleged justice of the peace, in regard to the suit of the Trustees of the M. E. Church v. Henry Burnett. 9. In finding that Henry Burnett did not pay rent to Edward Day, after the uncontradicted evidence of the improvements made by him. 10. In finding as a matter of law in this case, that the order of relief, was conclusive of the fact of the parties therein named being proper subjects of relief, when it was shown that the order of relief was granted nine months, or nearly that, before the order of removal, and that the. circumstances were entirely changed, so that any occasion for relief (if any ever existed) had entirely ceased. 11. In finding that an order of removal which had been reversed, and paupers sent back to the township, stopped or broke the residence of the paupers in said township, and their occupancy of the leased tenement. 12. In admitting the evidence of Edward Day, as to any damages done by Henry Burnett to his (Day’s) property, as being entirely irrelevant and immaterial, as the same could not, in any way, he set-off against any work done or repairs made on his place, towards the rent The court overruled these exceptions, when the Borough of Laporte took this writ and alleged that in this action the court erred.

      E. M. Dunham, and E. P. Ingham, for the Overseers of Laporte Borough.
    It was error to admit in evidence the docket of the justice of the peace. When officers move persons in their charge out of a township they do so at the risk of the township. And if they are improperly removed, and the township is compelled to receive them again, they were in law residents of the township from which they were unlawfully removed. The plaintiff acted fraudulently in procuring the removal. An order of relief is only conclusive for a reasonable time. Admissions of the pauper are not evidence: West Buffalo v. Walker, 7 Watts 173. Payment of rent may be made by labor and improvements : Brier Creek v. Mt. Pleasant, 10 Watts 432; Beaver Township v. Hartley Township, 1 Jones 154.
    October 4th 1880.

      Charles F. Sweet, for the Overseers of Hillsgrove Township.
    The admission of the docket of the justice and the testimony founded thereon were proper: Numbers v. Shelley, 28 P. E. Smith 426. Burnett did not render to Day the stipulated services to the value of ten dollars per year. On the contrary, in addition to his omission of duty, he did him positive injury. The legal presumption is in favor of the fairness of the acts of the overseers : Overseers of Union v. Aurand and Wolfe, 10 Watts 134. It was competent for Hillsgrove township to prove the statements of Mrs. Burnett in regard to her necessities. The leasing by Burnett of the house in Hillsgrove for the second year gave him no tenure there.
   Mr. Justice Gordon

delivered the opinion of the court,

In the case of Lower Augusta v. Selinsgrove, 14 P. F. Smith 166, it was held, that under the Act of March 16th 1868, authorizing writs of error in poor cases, there can be no review of the judgment of the Quarter Sessions on the facts and merits of the case, but only of such decisions on points of law and evidence as may have been excepted to. This relieves us from an examination of all those assignments of error which are based on the findings by the court below of facts tending to establish the settlement which forms the subject of the present controversy. Nevertheless, we are free to say, after careful examination of those facts, that, in our opinion, the learned judge of the court below has arrived at ss correct conclusion. We may, indeed, concede that the question is a close one and not free from doubt, but on the whole, the evidence preponderates in favor of the judgment which he has reached. We turn then to the consideration of those exceptions to the admission of evidence and rulings upon points of law which it is our legitimate duty to consider. The exceptions to evidence are three: first, to the admission of the docket of William Meylert, a justice of the peace in the borough of Laporte. By this docket it appears that suit was brought by the trustees of the Methodist Parsonage against Henry Burnett, the husband and father of the paupers whose settlement is the subject of the present contention, for the rent due on a lease to him of that building. This suit, after the admission of a set-off of five dollars for repairs, resulted in a judgment against Burnett of seventeen dollars and fifty cents, upon which he afterwards paid ten dollars. That this was legitimate evidence of a lawful demand for and payment of rent to the amount above specified is too clear for argument, and if, in addition to this, it was used for some other and improper purpose, specific exception ought to have been taken thereto.

Second, to the admission of evidence to prove the declarations of Mrs. Burnett at or about the time of the issuing of the order of relief. But as an attempt was made to impeach this order on the ground of fraud, the allegation being that it was procured at a time when Burnett’s family needed no relief, and for the purpose of preventing a settlement in Hillsgrove township, her declarations were certainly pertinent as affording some evidence of the condition of herself and her children. According to the testimony of Esquire Biddle, the order was procured at her own instance and upon her own representations of the necessities of herself and family, hence, her declarations at and about that time were part and parcel of the transaction, and as such, admissible for the purpose of showing that the officers acted in good faith in issuing the order and affording relief. Nor must it be forgotten that a ease like the one in hand is not for the jury but for the court, and that the rules governing the admission of evidence do not apply with the same strictness to the latter as to the former. Where evidence is addressed to the court alone, it is not necessary that its admissibility should be determined at the time of its offer, but its final reception or rejection must depend on its relevancy or irrelevancy as it appears in connection with the whole case. When offered it may be irrelevant, but it may afterwards become relevant; it may be valueless or impertinent in chief, but may be found to be both valuable and pertinent as rebutting. It may be objectionable as proof of the main subject of controversy, but may be unobjectionable as the test of the credibility of a witness; all this, however, must be determined by the court on a view of the whole case and not upon a partial presentation of it. Such then being the proper standpoint from which to view the rulings in the case under consideration, an examination of the whole testimony, as we have it now before us, makes it evident that Mrs. Burnett’s declarations might have been used to impeach her testimony for the defence, if for no other purpose.

Third. Exception has been taken to the admission of the evidence delivered by Edward Day. But we think this was admissible for the purpose of proving that, whilst there had been a leasing by Burnett in Plunkett’s Creek township, there had been no payment of rent. Day says that he let him have a house on the back part of his own place ; that in consideration thereof he was to perform certain services, and as there were no windows in the house, he was to get windows and put them in. Now, surely, it was proper for him to inform the court whether or not these conditions were performed; to state that the windows, though obtained and put in to the house, were taken away when Burnett left; that he did not look after and protect the property as he had agreed to do, but on the contrary, cut down the timber and destroyed the fence. Under the poor laws a settlement cannot be acquired by leasing alone, there must also be the payment of rent, but this rent need not be paid in money; it may be paid in the equivalent of money, labor or other services. Had Burnett complied with his contract and thus paid his rent, doubtless he would have acquired a settlement in Plunkett’s Creek township, hence, the pertinency of the proof that he did not comply with that contract, and, as a consequence, did not gain a settlement in that poor district. It is true, Burnett himself tells a very different story, but this does not render Day’s testimony incompetent ; it only raises a question of credibility which it is not our province to settle. Finally, exception is taken to the finding of the court that, as a matter of law, the order of relief was conclusive of the fact that the persons named therein were the proper subjects of an order of removal, though this last-named order was not made until nine months after the first was issued. But, undoubtedly, such an order was evidence, and that conclusive, that the persons therein named were paupers, and for the time being chargeable upon the township of Hillsgrove, and thus being paupers, they were, of course, the subjects of an order of removal: Cumberland v. Jefferson, 1 Casey 426. What possible effect the interval of nine months, between the dates of the two orders, can have upon the question involved in this case, has not been made clear to us. If, at the time of the removal, the persons constituting the family of Burnett had ceased to be paupers, the order of removal would be inoperative, but if they continued to be a charge, the relief order would be as effective as proof of the inception of that charge as it was on the day of its issue. For this order is after all but the statutory method of indicating the person or persons who are entitled to the public support: the warrant to the overseers for putting the name or names of such person or persons on the poor books. But when in this manner they become the subjects of public relief, they so continue until such relief is no longer necessary. It follows that the order for relief is conclusive only of the fact that at the time of its issue the persons therein named were entitled to maintenance as paupers, but it is only prima facie evidence of the continuing necessity for relief. If, therefore, theBurnetts were not paupers at the time of the issuing of the order of removal, the defendant might have proved that fact and so relieved itself of responsibility, but it is obvious that the time intervening between the order for relief and the order for removal has nothing to do with the question of settlement, the only .one involved in this case.

The judgment of the court below is affirmed.


text:
    Lant’s Appeal.
    1. In equity where a person has a legal right to dispose of property and intends to do so and the instrument to carry out this intention is at law ineffectual, the courts will regard it as reformed and decree it„to be such as it ought to have been to effectually carry out said intention.
    2. A woman in contemplation of marriage obtained from her intended, husband his verbal consent that she should dispose of her property by will or otherwise as she pleased. The day before her marriage she executed a null whereby she made a liberal provision for her husband and gave the residue of her estate to relatives, friends and charities: Meld, that while said will was revoked by her subsequent marriage, by reason of the Act of April 8th 1833, it might, nevertheless, take effect in equity as an ante-nuptial settlement, and that on every principle of equitable estoppel the husband’s mouth ought to be shut from interposing an objection to its full enforcement.
    June 28d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey, Sterrett and Green, JJ. Paxson, J., absent.
    Appeal from the Orphans’ Court of Lancaster county: Of May Term 1880, No. 198.
    Appeal of Julia M. Lant from the decree of the court dismissing her exceptions to the report of the auditors appointed to distribute the estate of Elizabeth M. Mullen, deceased.
    The deceased, Elizabeth M. Dunn, who was a maiden lady of considerable wealth, in 1875 agreed to marry John A. Mullen, and February 9th 1876 was fixed as the day for the marriage. In December 187 5 Mullen called upon Mrs. Dunn, the mother of the deceased, and asked her consent to the marriage, saying, “ I don’t want her money, I only want herself.” Mrs. Dunn then gave her •consent to the proposed marriage. About a week before the date fixed for the marriage, Miss Dunn sent for Judge Livingston to write her will for her. He informed her “that she could not make a will then or dispose of any of her property without the consent of and power and authority from her intended husband,” to which she replied: “ I will see Mr. Mullen, and if I get it fixed as you have stated I will send for you again.” A day or two before the marriage she again sent for the judge and told him that her mother had first spoken to Mr. Mullen, and that he had expressed himself to her mother as being perfectly satisfied with anything she would do'with regard to her'property. She then said, “ I then spoke to him and told him what I wanted to do, and the whole thing has been arranged as you said it should be, and Mr. Mullen is perfectly satisfied, and now I want you to write my will for me.” On the day before the marriage, in the forenoon, Miss Dunn asked her mother to speak to Mullen, and ask if he was satisfied for her to dispose of her effects. In pursuance of this request Mrs. Dunn saw Mullen, and asked him “ if he was satisfied for her-to dispose of her effects,” and he said “ he was perfectly satisfied.” Mrs. Dunn told her daughter what he said. Lizzie then, wrote out the items of disposition of her estate, intending to get Judge Livingston to write them out in the form of a will. After writing down the disposition she desired to make of her estate, Lizzie again said to her mother : “Now I have the items wrote out, and I want you to speak to John again and ask him if he isn’t satisfied.” Mrs. Dunn said: “Lizzie, did you not speak to him yourself?” Lizzie said, “ Yes, but I want you to talk to him again, and if he is not satisfied I won’t marry him.” The same evening Mrs. Dunn told him “Lizzie wanted her to ask him if he wasn’t satisfied that she should dispose of her fortune, by will or any way she pleased;” and he said, “yes, I am satisfied for Lizzie to dispose of her fortune, by will or otherwise, any way she pleases.” Just as they stopped talking Judge Livingston came in and laid a paper down on the table, and Mullen asked Mrs. Dunn “ if there was any paper he was wanted to sign.” Then Lizzie came into the parlor, and Mrs. Dunn, being called into the dining-room, left Lizzie, Mr. Mullen.and the judge together in the parlor. The judge read the paper over to Lizzie item by item. She said it was just as she wished it. Mr. Mullen said he was going down street and would be back shortly. This was before the paper was signed. Lizzie said to him, “ I am about signing” or “ executing the paper we spoke of,” and Mullen replied, “ O ! very well,” or “very well,” and, closing the door, went out. He did not see the paper, which was taken by Judge Livingston, and kept by him at his office until after the death of Mrs. Mullen.
    On February 9th 1876, Elizabeth Dunn was married to Mullen, and in August following became very ill. During this illness Mullen had a conversation with Rev. Michael J. McBride, wherein he complained that he was treated badly by the family of his wife, and that “they had made a will without consulting me.” Father McBride said, “John, didn’t you give your consent before the marriage,” and Mullen replied, “Yes; but they should have had it in Avriting. A verbal consent will not hold in law.” On August 26th 1878, Elizabeth Mullen died without children, and a few days thereafter the above-mentioned paper, which was executed on February 8th 1876, aatus admitted to probate as a Avill, and letters testamentary were granted by the register of Avills of Lancaster county to the executors named therein. . On September 3d 1878, John A. Mullen filed a petition with the register, praying to have said probate and letters testamentary vacated and annulled, on the ground that the said will had been revoked by the marriage of the testatrix subsequent to the execution of the alleged will. The executors named therein filed an answer, and the register refused the prayer of the petition. An appeal was taken to the Orphans’ Court, which made a decree granting the prayer and vacating the probate and letters testamentary. Letters of administration were then granted on the estate of the deceased, to her husband, John A. Mullen, who filed his account May 15th 1879, showing a balance in his hands of $76,646.89. The sister of the deceased, Julia M. Lant, filed exceptions to this account, and on July 3d 1879, the Orphans’ Court referred the matter to auditors to. pass upon the exceptions and distribute the balance in the hands of the administrator.
    The auditors, inter alia, reported: “From the evidence we find that John A. Mullen,-before the marriage, assented or consented that his intended wife might make a will; that she did make a will — the paper produced before the auditors; that John A. Mullen did not know its contents, and that- there was no ante-nuptial contract between Elizabeth M. Dunn and John A. Mullin, or marriage settlement of her separate estate. This "will having been revoked by her subsequent marriage (Act of April 8th 1833, sect. 16), the balance in the administrator’s hands must be distributed in accordance with the provisions of the intestate laws of this Commonwealth.” And they then awarded the whole balance for distribution, $75,538.33, to Mullen.
    To this report Julia M. Lant filed exceptions, alleging that the auditors erred, inter alia, in not finding as a fact, under the evidence produced, that there was an ante-nuptial contract or agreement between Elizabeth M. Dunn aud John A. Mullen with regard to the disposition of her separate estate based upon a valid and valuable consideration; and in awarding to John A. Mullen the whole balance in his hands as administrator.
    The court, Patterson, A. L. J., dismissed the exceptions and confirmed the report, whence this appeal.

      N. M. North, S. N. Reynolds and P. D. Baker, for appellant.
    —Almost any bona fide and reasonable agreement, made before marriage, to secure the wife either in the enjoyment of her own property or a portion of that of her husband, whether during coverture or after his or her death, will be carried into execution in chancery : Stilley v. Folger, 14 Ohio St. 610 ; 2 Kent Com. 163; English v. Foxall, 2 Pet. 595 ; Hunter v. Bryant, 2 Wheat. 32; Tarbell v. Tarbell, 10 Allen 278; Smith v. Chappell, 31 Conn. 589. Such an agreement will be enforced in favor of collateral relatives: Neves v. Scott, 9 How. 196; s. c. 13 Id. 268. With respect to form, equity pays no regard to externals, but considers only the substantial intention of the parties: Peachey Mar. Settl. 65; Macq. Husband and Wife 242; Acton v. Pierce, 2 Vern. 480; Crostwaight v. Hutchinson, 2 Bibb 407; Siles v. Fleming, 1 Dev. Eq. 185; Kenly v. Kenly, 2 How. (Miss.) 751; Logan v. Weinholt, 1 Cl. & Fin. 611; Hammersley v. DeBeil, 12 Id. 45 ; Moorhouse v. Colvin, 15 Beav. 349. A parol ante-nuptial settlement by which the husband and wife agreed that the wife’s chattels should continue her own notwithstanding the marriage, and they were so treated by him during the marriage, is binding at the decease of either or both, and the husband has no right of survivor-ship, nor does the intestate law affect them : Gackenbach v. Brouse, 4 W. & S. 546 ; Barnes v. Irwin, 2 Dallas 199. The auditors having found that Mullen had consented that his intended wife might dispose of her property as she pleased, committed a palpable error when they failed to give it the effect of a contract. It was not material whether she called the paper a will, deed, indenture, power of attorney, sketch of will, or any other name, it embodied the intention of the parties, and should have been executed in equity as the evidence of that intention. Mullen induced his wife to enter into the marriage relation by his representations that he was willing she should dispose of her property as she pleased, and he should be bound thereby: Mowry v. Jordan, 15 Beav. 377 ; Pulsford v. Richards, 17 Id. 94; Bold v. Hutchinson, 20 Id. 259 ; Peachey on Marriage Settlements 87.
    October 4th 1880.

      Richard P. White and Thomas F. Franklin, for appellee.
    If the paper executed by Mrs. Mullen operated as a will, it was, whether made with the consent of the husband or not, revoked by the subsequent marriage, by reason of the provisions of the Act of April 8th 1833, sect. 14, Pamph. L. 250. But an agreement is attempted tobe set up, made by Mr. Mullen verbally before marriage, the effect of which is claimed to be to sustain the validity of the will, notwithstanding the subsequent marriage, and the case of Gackenbach v. Brouse, cited and relied on by appellants, as recognising the validity of such an agreement when clearly and satisfactorily established. That was a case of mutual agreements, by which each party agreed that they would each retain their own property. It was decided before the Act of 1848, and was placed on the ground that the provisions of the intestate law were not designed for a case where the course of the property at the wife’s death was marked out by a settlement. But in this case the proof falls far short of showing anything in the nature of an agreement on Mr. Mullen’s part as to the disposition of her property after her death in case she died intestate. It amounts to nothing beyond his assent that she should make a will, or that she might dispose of her estate as she chose, and it is not nearly so strong a case as Fransen’s Appeal, 2 Casey 202, or Kurtz v. Saylor, 8 Harris 205. See also Talbot v. Calvert, 12 Id. 327.
   Chief Justice Sharswood

delivered the opinion of the court,

There are some matters involved in this controversy which must be assumed if not conceded as not in dispute. First, that the instrument purporting to be the last will and testament of Elizabeth M. Dunn, dated February 8th 1876, cannot take effect as a will, having been revoked by her marriage with the appellee on the following day. Probate of it was refused by the tribunal having exclusive jurisdiction as far as personal property is concerned, and ifs decree unappealed from is conclusive. Second, this revocation was by the positive provision of the statute 8th April 1833, sect. 14, Pamph. L. 250, “ A will executed by a single woman shall be deemed revoked by her subsequent marriage.” This law was not known to her and not adverted to by her counsel called in by her to give his advice and prepare the instrument. It was certainly not thought by her that such a result would follow. She did not mean it to be revoked by her marriage. On the contrary, both she and her counsel meant to make a disposition which would be effectual after the marriage which was to be celebrated within twenty-four hours, after the paper was executed. The execution of the will at the time and under the circumstances was a plain mistake. Had it been postponed only a few hours until after the marriage ceremony was performed it would have been a valid and effectual disposition of her property. Third, there was a contract made by John A. Mullen, the intended husband, at or about the time the instrument was executed, by which she was to have the power “to dispose of her fortune by will or otherwise any way she pleased.” That this was the contract is established by the most conclusive testimony, confirmed by the admission of the husband afterwards, who put his refusal to give effect to it not on the ground that he had not freely and fairly so agreed, but that because it was not in writing he was not bound by it. In this he was mistaken, for a parol ante-nuptial contract such as this, being in consideration of marriage, which is a valuable one, is unquestionably binding on the parties: Gackenbach ¶. Brown, 4 W. & S. 546. That he knew and considered at the time the instrument in question was executed, that it was intended to carry out and give effect to his ante-nuptial agreement, is proved by the clearest and most convincing evidence.

If, as it has been earnestly contended, the decree of the court below must be affirmed, and the entire personal estate of the decedent awarded to the appellee, then it is not to be disputed that there must be some palpable defect in equitable jurisdiction in this Commonwealth to render necessary so gross an injustice, so revolting to the moral sense of what is right and wrong. We think, however, that fortunately there are two very familiar, and well settled principles of equity often recognised and applied by our courts which prevent such a result. One of these principles is, that whatever a chancellor on the facts of a case would have decreed to be done the courts will consider as having actually been done. Another principle is, that wherever a person has the legal right to dispose of property and means to do so, the form of the instrument adopted for the purpose, if at law ineffectual, will be disregarded,' and it will be reformed so as to be made effectual.

Suppose then that at the time the paper of February 8th 1876, was executed by Elizabeth M. Dunn, she had filed a bill in equity setting forth the ante-nuptial contract made by John A. Mullen and the marriage about to be solemnized and praying that it might be carried into execution by some instrument of writing to be signed by him, what would have been the. decree of the court? Surely upon the undisputed facts the prayer of the bill would have been granted, and the decree would have been either that the husband and wife should join in a conveyance to trustees in trust for the separate use of the wife with full power in her to dispose of the same in her lifetime by sale or gift, and after her death by a will in writing or any writing in the nature of a last will and testament. Such is the ordinary form of such powers in marriage settlements. If the complainant was willing the court might decree simply that the husband himself should execute a declaration of trust to the same effect. Nothing is better settled than that a court of equity in decreeing the specific performance of marriage articles will make such a decree as will give full effect to the intention of the parties without, regard to the legal construction of the words used in them. Thus, if by the words according to their lega] construction, a fee-tail would be vested in the parties or either of them, a strict settlement will be decreed to the husband or husband and wife for life, with remainders to the children of the marriage — successively in tail — according to the most approved forms of deeds of marriage settlement: 2 Story’s Eq. Jur. sect. 983, and authorities there cited. Now if we are to consider as having actually been done what a chancellor would have decreed to be done, then we have at the time of the execution of the paper of February 8th 1876 either a conveyance to a trustee or a declaration executed by the husband to the same effect. Surely, then, under such a declaration or deed of settlement this paper, though ineffectual as a will under the statute, was still a writing in the nature of a last will and testament, a clause introduced into such powers for the very purpose of providing against mere technical objections, which would prevent the instrument from being admitted to probate as a will. It was a disposition of property to take effect at death if not revoked by the party during life. That is a. writing in the nature of a last will and testament. This paper was so intended beyond all question. It was executed under and in pursuance of the contract on the eve of the marriage — indeed it might almost be said to have been in the consideration of equity cotemporaneous with the ceremony— executed for the express purpose with th'e knowledge and consent of John A. Mullen of having just the effect here stated. It makes most liberal provision for him and upon every principle of equitable estoppel his mouth ought to be shut from interposing an objection to its full enforcement.

The case, too, is equally within the second principle of equity adverted to ; a paper executed by a person who had a perfect legal right to dispose of her property, and intended to do so, but by a plain mistake of the scrivener it was drawn in the form of a will when it ought to have been a deed or declaration of trust. Surely it must be in the power of a court of equity in this Commonwealth to correct so gross and palpable a mistake, to reform the instrument and decree it to be such as it ought to have been, so as effectually to carry out the intention of the parties.

Decree reversed and record remitted to the Orphans’ Coui’t of Lancaster county, that distribution may be there made according to the principle of this opinion, the costs of this appeal to be paid by the estate.