text:
    Nippes’s Appeal.
    ]. A husband made it voluntary conveyance to his wife of land bound by a lien for the purchase-money due his grantor, not being otherwise indebted. Held, that the lien was not such a debt as would render the conveyance void against subsequent creditors, the wife having taken the land subject to the lien.
    2. There being no evidence of a purpose to defraud creditors, the fact that it was all the -property the husband owned was immaterial.
    3. The husband as “ agent” of the wife insured the building and personal property; a loss by fire having occurred, the insurance company in a suit against them to recover for the loss,paid the amount of loss into court; the creditors of the husband had no claim upon the money except for the premiums for insurance in case he had paid them.
    4. A policy against fire is not an incident to the insured property; it is a special agreement with the insured against his own loss, sustained by fire, not that of any other person as grantee, creditor, &c.
    March 20th 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Montgomery county: No. 42, to January Term 1874.
    The proceedings in this case arose under the following circumstances, as found by the report of Charles H. Stinson, Esq., auditor.
    On the 13th of April 1850, Jesse W. Ramsey conveyed to Daniel S. Nippes a tract of about 57 acres of land, the considera-tion was $1600, of which $700 were paid by his father, who made the contract for the land; the remaining $900 were secured by a judgment from Daniel S. Nippes to Ramsey. On tbe 11th of August 1853, D. S. Nippes conveyed the premises to T. L. Young, the consideration in the deed being $1600. On the 15th of the same August, Young conveyed the premises to Margaret Nippes, the wife of Daniel S. Nippes. On the 12th of October 1867, John J. Hughes recovered a judgment against Daniel S. Nippes for $200. On the 1st of March 1869, Samuel E. Hartranft recovered judgment against Nippes for $214.87. On the 18th of September 1870, John Kennedy recovered a judgment against Nippes for $-.
    On the 18th of October 1870, “Daniel S. Nippes, agent for Margaret Nippes,” insured in the Mutual Insurance- Company of Montgomery county, a dwelling-house, household furniture, spring-house, barn, stock, crops, &c., to the amount of $5050, of which $1650 were on the barn and contents. On tbe 21st of November 1870, the barn and contents were destroyed by fire.
    On the 22d of November 1870, Kennedy and Hartranft, and on the 30th of November, John J. Hughes issued attachment-executions on their judgments, the insurance company being made garnishees. On the 4th of March 1871, a suit was commenced by Nippes and wife against the insurance company to recover the amount of the loss by the fire'. On the 1st of June 1871, the parties compromised the suit, the insurance .company agreeing to pay $1850, “ which included the whole policy on personal property and the loss on the barn of $950 by fire.” On the 12th of July 1871, Ramsey issued an attachment-execution on his judgment given for the purchase-money, making the insurance company garnishees. On the 27th of September 1871, the insurance company “ paid into court $1385, being the balance of money in hand of said company due on the policy of insurance.”
    The auditor further reported:—
    * * * “ Daniel S. Nippes and family since the purchase from Jesse W. Ramsey, have lived on these premises without change. Daniel S. Nippes and Margaret have been married over thirty-two years. The amount of the insurance paid by the insurance company rvas about equally aAvarded between the personal property and the barn destroyed by the fire.
    “ Margaret Nippes, the wife of Daniel S. Nippes, claims the whole fund for distribution, and also the attaching creditors of D. S. Nippes, the husband, ask to be paid out of the same money, their judgments; it is necessary to determine first, to whom the money in court belongs, and the solution of the question depends upon the fact whether the property insured belonged to Margaret Nippes or D. S. Nippes. The only facts submitted are those above stated; Mrs. Nippes claims first, because she exhibits a deed of conveyance for the premises upon AYhich the insurance was, from Mr. Young. There is not a particle of evidence before your auditor to show that she ever paid a cent of the consideration mentioned in the deed, or that she ever had any monej of her own at the time. The consideration mentioned is the same amount originally paid for the premises, a part of which was paid by the father of Daniel S. Nippes, and a judgment given by Daniel for the balance of the purchase-money which still remains a lien upon the premises, and upon which Daniel paid the interest to A. D. 1869. She having acquired title since her marriage cannot claim the property against her husband’s creditors; and if she did not oato the property she cannot claim that which is the proceeds of the insurance out of the same : Bergy’s Appeal, 10 P. F. Smith 408.
    “ Secondly, Mrs. Nippes claims the fund upon the ground, that it Avas a voluntary settlement upon her, by her husband.

      “ At the time the deed Avas made, Daniel S. Nippes was indebted in $900 for part of the purchase-money; he never owned any other property, and by this deed conveyed everything he then OAvned to his wife through Mr. Young. What his personal property Avas worth does not appear, further than it is in proof that the insurance paid included all his personal property destroyed, and that amounted to about $900; whether he had any more at the time the deed Avas made does not appear, had it been more, or had he more estate, real or personal, than was conveyed to the wife through Mr. Young, it was incumbent on her to have shown it. Under the facts of the case your auditor' cannot find that the conveying all of his estate was a reasonable provision for his wife, and therefore the creditors of the husband, Daniel S. Nippes, must be paid out of this fund in the order of the serving of their writs upon the garnishee.”
    Mrs. Nippes filed the following exceptions:—
    1. The auditor erred in deciding that the property insured by the Mutual Eire Insurance Company of Montgomery county, was the property of Daniel S. Nippes, and not the property of his wife, Margaret Nippes, and that the money paid into court by said insurance company should be paid and distributed to the attaching creditors of the.said Daniel S. Nippes.
    2. The auditor erred in not distributing to Margaret Nippes, the nine hundred and fifty dollars ascertained to be the amount of the loss upon the barn.
    8. The auditor erred in not distributing to Margaret Nippes, the nine hundred dollars ascertained to be the amount of the loss upon the personal property.
    The Court of Common Pleas (Ross, P. J.), in deciding on the exceptions, said:—
    * * * “ The claims of the attaching creditors and of Mrs. Nippes present two questions: 1st, Whether the property insured was the estate of Mrs. Nippes; and 2d, If not, whether if she had an insurable interest in it, though not the actual owner, she can take it in preference to the attaching creditors of her husband. It is manifest that if Mrs. Nippes' be vested with the title of this property, it is by virtue of a voluntary settlement made by her husband. Not a dollar of her money was paid upon it. The property was acquired by her husband, partly by a gift of money from his father, and partly by securing the balance of the purchase-money by a judgment. It was his. He conveyed it to his wife by a conveyance through a third person, and to enable her to maintain it as a voluntary settlement, she must show that it was made under circumstances that will justify it in the light of fixed and wise rules of law. To determine the validity of a voluntary settlement made by a husband upon his wife, a series of inquiries may be applied as determining, tests. 1. Was the husband solvent at the time he made it ? 2. If solvent, was he indebted at the time ? 3. Did the settlement denude the husband of all his property ? There are other inquiries, but these embrace the facts of this case. Was D. S. Nippes solvent in 1853, when the settlement was made? Of this there is no evidence of a direct character — we are left to conjecture. But it is the duty of the wife, claiming under a voluntary settlement, to establish solvency on the part of the husband. She fails to show this affirmatively, and her case is weakened by her failure. All that the testimony discloses is, that her husband owned this land valued at $1600,- that the cash paid on it came as a gift from his father, and that he was in debt for it $900, which he had secured by a purchase-money judgment. 2. We thus reach the second inquiry, viz.: Was he indebted at the time ?' This must be answered in the affirmative — for he was, and yet is indebted for the $900 judgment confessed to Mr. Ramsey for the purchase-money; but, being indebted, it devolves upon the wife the duty of establishing solvency of a sufficiency, which will rebut the presumption that then arises, that such settlement was erroneous and fraudulent: Woolston’s Appeal, 1 P. F. Smith 416. It is true that a voluntary settlement is not void if there be any indebtedness to any amount whatever — for if any degree of indebtedness would defeat it, all voluntary settlements would be virtually fraudulent; since no person is at any time absolutely free from debt. But the indebtedness of a solvent man, which will defeat a voluntary settlement, must be to such an amount as, in relation to his remaining assets, and the value of the settlement, is disproportioned to such assets. This disproportion must be such as will tend to hinder, delay or defeat creditors, and leave the' maker of the settlement so bare of property that he cannot reasonably expect to meet his existing liabilities, or those which he must necessarily create, having regard to his business and social relations. In relation to this inquiry, all that the record discloses is a debt of $900; and with the exception of a few tools, no other property save that which was made the subject of the settlement. This, then, was a voluntary settlement made upon Mrs. Nippes; and we now reach the third and last of the proposed testing inquiries. 3. Did the settlement denude him of-all his property? Did it leave him without means to meet and discharge the debts, which having reference to his business and social relations he must necessarily create in the future ? If it did, then it was erroneous and void.' So far as the record shows, the husband had no other property, except a few personal goods, that he could have retained under the exemption laws against the whole world. The policy of insurance shows that stock, crops, all the apparatus of the farm, were held by the wife. But the law strongly condemns a settle-1 ment that thus strips the husband of all his resources, as being against public policy. This rule is to'be rigidly enforced, and courts must.adhere to it, if honest creditors are to be protected and fraudulent debtors restrained. In Ammon’s Appeal, 13 P. F. Smith 285, it was held, that a voluntary settlement which denudes the husband of all or a greater part of his property is much more than a reasonable provision for the wife; for in considering what is, and what is not a reasonable provision, the circumstances of the husband are to be regarded — his probable necessities, as well as his debts': 2 Story’s Eq. 2 v. § 1374. The case disclosed by the record therefore stands thus, — first, an indebted husband; second, a settlement that denudes him of all property that he is shown to have had at the time he made it; and the law arising upon these facts declares that such a settlement is void.
    “ But it is said that the time which has elapsed since the settlement was made, being nearly eighteen years, has revealed, until recently, the incurrence of no subsequent indebtedness — and, that under the ruling in Goff v. Nuttall, 8 Wright 78, this settlement should, from the lapse of time, be held to be good. How the lapse of time can make that valid which, when it was made, the law, arising upon the facts, declared void, I am unable to discern. Goff v. Nuttall differs from the case at bar in one very important particular. There the husband paid no part of the purchase-money — here he paid it all, or secured it to be paid. The cases differ widely, and the conclusion reached in the one is not applicable to, and cannot govern in the other.
    “We agree therefore with the auditor in the conclusion that the settlement was void, and that the real estate was liable to the-claims of the husband’s creditors. Assuming this conclusion to be correct, the question still remains whether this fund,.the fruits of the policy issued to Mrs. Nippes through her husband as her agent, should be distributed to herpr to the attaching creditors of the husband. As I have endeavored to demonstrate, the wife has an insurable interest in the property of her husband. She may insure that interest, and as between him and herself she would be entitled to the fruits of the policy. But though she has this insurable interest, it is subject to the same vicissitudes which may affect her rights as wife in her husband’s property. She has an inchoate right of dower in his realty, but that right may be divested by a sale of the husband’s land, under a judgment or mortgage created by him. Her interest when insured is no more sacred than her interest as wife. If the one is destroyed by a sale under an encumbrance, the other must share the same fate. If it be resisted by creditors, who otherwise would remain unpaid, any .other doctrine than this would enable a wife to acquire an interest by effecting an insurance upon her husband’s property, which would override the rights of his creditors. It would be a fruitful and successful source of fraud. The husband would cease to insure in his own name, and obtaining policies upon the wife’s interest, would in the event of a loss which diminished or entirely destroyed the value of the property, have a fund, obtained through that loss which was beyond the reach of creditors, when the interest insured, that is, of the wife in her inchoate dower, could be sold under execution. Such a theory cannot be tolerated by any system of jurisprudence. The law, is, that as between husband and wife, the latter has an insurable interest jn the property of the former. She may recover from the insurance company, as between herself and him, but the fruits of the policy are as amenable to the husband’s creditors as the interest assured would have been if the husband’s property had been sold at the suit of a creditor.
    “.This doctrine, founded on sacred principles, disposes of the ingenious and subtle argument based upon the existence of the wife’s insurable interest. We admit she possesses it, but declare that, like her right of dower, it is subject to be taken by creditors of the husband.
    “ It follows from this reasoning, although this last point was not ma.de before him, that the auditor was right in distributing the fund to the attaching creditors. The claims of Mr. Anderson were also properly allowed, and it is unnecessary to vindicate that part of the auditor’s opinion.
    “ It inay be remarked that as to $900 of this fund, that which arose from the loss of the personalty, there can be ño question. It was beyond doubt the property of D. S. Nippes; and this portion of the funds, even if there should be error in our conclusions* must go to his creditors. But the reasons vindicating the conclusions of the auditor are so cogent that his entire report must be confirmed.”
    Mrs. Nippes appealed to the Supreme Court, and assigned for error the overruling the exceptions and confirming the report of the auditor.

      J. D. Bennett and G. R. Fox, for appellants.
    A voluntary
    conveyance is not fraudulent if the debts of the grantor are not so great as to leave their payment doubtful from the rest of his property: Wilson v. Howser, 2 Jones 109; Posten v. Posten, 4 Wharton 27; Chambers v. Spencer, 5 Watts 404. The insurance was by the husband as agent for the wife and for her benefit, and the money for the loss having been paid by the company, the husband’s creditors cannot contest her interest:. Insurance Co. v. Chase, 5 Wallace 509; Carpenter v. Ins. Co., 16 Peters 495. She as the wife had an insurable interest in the husband’s property: Harris v. York Ins. Co., 14 Wright 349; Flanders on Insurance 24.

      Gr. W. Rogers, H. IG. Weand and O. T. Miller, for appellee,
    cited Bergey’s Appeal, 10 P. F. Smith 408.
   The opinion-of the court was delivered, May 11th 1874, by

Sharswood, J.

The learned judge below — starting with the assumption that Daniel S. Nippes, in August 1853, when he made the gift to, or voluntary settlement upon his wife, was indebted to Jesse W. Ramsey for the balance of the purchase-money, and that such an indebtedness invalidated the conveyance, if it was of all the husband’s property, and more therefore than a reasonable provision for the wife — came logically to the conclusion that the gift or conveyance was void against the husband’s creditors. But the debt to Ramsey clearly was not such a debt as would render the conveyance void as against subsequent creditors : Williams v. Davis, 19 P. F. Smith 21. It was secured by a judgment which was a lien on the settled land. The deed could not have been intended to hinder, delay and defraud that creditor, the vendor, for the wife took the land subject to the lien of the judgment given to secure its payment. There was then no prior debt upon the ground, of which the subsequent creditors could claim to come in. Unless there was an indebtedness at the time, or unless the evidence disclosed a purpose of defrauding subsequent creditors, carried out by actually incurring such debts, the fact that it was all the property the grantor had at the time is immaterial. That such was the motive of a conveyance may justly be inferred from a grantor’s having entered into a new and hazardous business about the time when the conveyance was made, or from his having contracted large debts immediately thereafter : Mateer v. Hissim, 3 Penna. Rep. 160; Greenfield’s Estate, 2 Harris 489; Snyder v. Christ, 3 Wright 499 ; Goff v. Nuttall, 8 Id. 81. The father of Daniel S. Nippes purchased for him and had conveyed to him the farm in question. He paid seven hundred dollars, and for the balance of the purchase-money Daniel S. Nippes confessed a judgment to the vendor. He then determined to settle this property on his wife, and accordingly it was conveyed to her in fee m the usual way through a third person. What was there to hinder him from doing this ? He owed no debt to any one which was not fully secured, and that upon the very farm in question. He was a farmer, and the evidence disclosed no intention of incurring debts from which he meant to cover up this property. If he had such an intention he certainly did not carry it out. Fourteen years elapse before any debt appears against him. During all this period Daniel S. Nippes and his. wife lived on the farm, and derived their subsistence from it. We think it very clear that this conveyance or settlement was good against the husband’s creditors, and she having insured her interest, and the improvements having been destroyed by fire, the insurance-money belonged to her.

But apart from all this, what did the fund in court represent ? Not the property insured, whether real or personal, but the insurable interest of Mrs. Nippes in that property. If she had no insurable interest the policy was void — but that was a question exclusively between her and the insurers. They paid the money into court at her suit. What title did her husband’s creditors show to any part of it ? How was the insurance, admitting it to have been effected by the husband, with his own money, any fraud upon them unless to the extent of the premiums ? We have no evidence indeed that these premiums were paid with the husband’s money, but the wife being the owner of the farm, residing upon and being entitled to its produce, the presumption is that the money with which the insurance was effected was her owm. Had the property been destroyed by fire, without insurance, where would the creditors have been ? It is plain the insurance made them no worse. Policies of insurance against fire are not deemed in their nature incidents to the property insured, but they are mere special agreements with the person insuring against such loss or damage as they may sustain, and not the loss or damage that any other person having an interest as grantee, mortgagee, creditor, or otherwise may sustain by reason of the subsequent destruction by fire: Carpenter v. The Providence Washington Insurance Company, 16 Peters 495. If creditors have a lien by mortgage, judgment or execution, they can insure their own interest, but they can have no right to attach insurance-money due to any one but their own debtor.

Decree reversed at the costs of the appellees, and record remitted that the fund in court may be paid or distributed, according to the principles of this opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Herdic versus Woodward.
    1. In an action of debt a judgment was entered for want of a sufficient affidavit of defence; on motion of plaintiff, the court ordered the judgment to be stricken off, and permitted the plaintiff to change the form of action. Held, that the action was pending and the court had power to make the order.
    2. The court has power to set aside a judgment by default at the instance of the plaintiff who has been proceeding in mistake.
    3. When the judgment is stricken off, the action stands as before judgment, and may be amended.
    4. A vendee filed a bill for specific performance of a contract for the sale of land, part of the purchase-money payable cash and the remainder in ten annual instalments, the first to be paid on the 1st of April 1865; a decree of conveyance was made, the vendee to secure the balance of the purchase-money, to be ascertained by a master; he reported that $1139 should “ be deducted from the balance of the purchase-money and interest due, leaving a balance of $6204,” &c. This report was confirmed, and the vendee decreed .to pay the $6204 on the 1st of April 1871. Held, “balance due” meant the amount due April 1st 1871, and not the balance of the whole purchase-money.
    5. The vendor having filed a deed according to the decree, brought covenant for a subsequent instalment. Held, that the vendee having failed to take the deed and to comply with the decree in his favor on his bill, could not contest the action of covenant, that being the only means to enforce payment of the remaining instalments.
    March 23d 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: Of January Term 1873. No. 120.

      On the 18th of December 1872, John Y. Woodward brought an action of debt against Peter Herdic.
    The plaintiff filed the following statement of his claim:—
    “April 1st 1872. Instalment due.......$900
    “Interest from April 1st 1865.”
    An affidavit of defence was filed by the defendant, setting out that he had filed a bill in the equity side of the court for the specific performance of the contract on which this suit was brought, that specific performance had been decreed, and the defendant ordered to convey to the plaintiff the land mentioned in the bill and contract, the plaintiff securing the balance of the purchase-money according to the stipulations in the contract, this balance to be ascertained by a master in case the parties should disagree. On appeal from this decree to the Supreme Court it was affirmed. The master afterwards reported that the balance was $6204.53. On the coming in of .his report the court, on the 8th of March 1871, decreed that, Woodward having executed a deed in conformity with the decree of the court, Herdic pay to Woodward $6204.53 on or before the 1st of April 1871; that this decree, on appeal to the Supreme Court, was affirmed. The affidavit averred that this was a final decree, and that upon the return of the record Herdic had paid to Woodward the above-mentioned sum of $6204.53, with interest, &c., in full satisfaction of the money due him “in specific execution of the contract according to the decrees of the court.” The affidavit further averred that Woodward at the commencement of this suit had no cause of action against him, and that if there had been any balance due him, his only remedy was “ in the equity suit before referred to, but which is now fully foreclosed by the final decree of the Supreme Court.”
    On the 29th of August 1871, the court entered judgment fox the plaintiff for want of a sufficient affidavit of defence.
    On the 3d of September 1872, on motion of Woodwai'd’s attorneys, the judgment for want of a sufficient affidavit of defence was sti’icken off, “ and the cause is restored to the condition in which it appeared upon the record at and immediately before the entry of said judgment.”
    On the 18th of September 1872, the court granted leave to the plaintiff to change his form of action to covenant.
    The plaintiff filed a declaration in covenant, vi-z.:—
    That on the 22d of August 1864, Woodward ^nd Herdic entered into an agreement in writing by which it was agreed that Woodward should sell to Herdic his farm for $22,000, of which $5000 were to be paid at the time of the purchase and the balance in ten annual payments, with interest, &c.; that by other articles of agreement on the 24th of December 1864, between the same parties, it was agreed that the first contract should be modified, that in lieu of the payment of $5000 cash Woodward should accept $5000 in bank-stock, and the balance of the purchase-money in ten equal annual payments; Woodward to have the privilege of reserving 12 acres from the land theretofore contracted to be conveyed to Herdic; the value of the 12 acres to be ascertained by three persons named in the agreement, the sum found by these referees to be credited on the contract, and the balance of the purchase-money which should still remain “to be divided and paid in ten equal annual instalments, with interest,” &c.; the deed to be executed on or before the 1st day of April then next,-and the balance of the purchase-money * * * to be secured by the said Herdic by bond and mortgage on the premises, with other stipulations not important to mention; that the value of the 12 acres retained by Woodward and the $5000 paid in bank-stock “left * * * remaining the sum of $9000, which by the'terms of the agreement was to be paid in ten equal annual instalments, with interest,” &c.; that Herdic had not paid the instalment of $900 due April 1st 1872, and had broken his covenant by failing to pay “the said sum of $900.”
    The plaintiff Woodward filed a statement, viz:—
    “ April 1st 1872. Instalment due,
    “ Interest from April 1st 1865,
    Herdic filed an affidavit of defence:—
    That on the 2d of January 1866, Herdic filed in the court below a bill against Woodward for the specific execution of the contract on which this suit was brought; that this case was proceeded in to final hearing in the Court of Common Pleas, and on the 9th of December 1867 a decree was made that Woodward convey to Herdic, “ on receiving from him a bond and mortgage securing the payment of the balance of the purchase-money according to the covenants, &c., contained in said agreement,” the deed to be made in thirty days from the decree on the execution of the bond and mortgage. A master was appointed to ascertain the balance due in case the 'parties could not agree; this decree on appeal was affirmed by the Supreme Coui;t. The affidavit of defence further set out substantially as in the affidavit to the action of ¡ debt, including the decree of court ordering him to pay $6204.53, ascertained by the master, on or before the 1st day of April-1871, Woodward having executed to him a deed in accordance with the decree of December 9th 1867; that defendant had paid the $6204.53 according to the decree; that this decree was final, and at the commencement of this suit plaintiff had no cause of action under the terms of the contract; that his only remedy for the balance would have been in the equity suit, and that is now foreclosed by the final decree of the Supreme Court. The affidavit further averred that the striking off the judgment in the action whilst the form was debt and permitting the plaintiff to change the form to covenant were illegal.
    On the 24th of October 1872, the court directed judgment to be entered for the plaintiff for want of a' sufficient affidavit of defence, for $1308.90.
    The defendant took a writ of error and assigned for error the entering judgment for want of a sufficient affidavit of defence, and permitting the plaintiff to change the form of action after having taken judgment in the action when the form was debt.

      B. S. Bentley, Jr., Maynard, Entermarks & Parker and B. S. Bentley, for plaintiff in error.
    A court of equity having obtained jurisdiction, will comprehend all incidental matters necessary for a full and final determination of the whole controversy: Souder’s Appeal, 7 P. F. Smith 502 ; McGowin v. Remington, 2 Jones 63 ; Taylor v. Cornelius, 10 P. F. Smith 199; Stockton v. Ford, 18 Howard 418; Story’s Eq. Pl., sect. 782 e,t seq. The controversy in the bill in equity covered the whole matters arising out of the contract, and the decree was final and conclusive as to the whole contract.

      S. Linn and W. S. Armstrong, for defendant in error.
    The decree was made to take effect on the 1st of April 1871, and the vendee was not required to make payment of anything not then due. Such a decree it was competent for the court to make, leaving the parties to their remedies for any future failure of performance. In Pennsylvania an action of ejectment brought to enforce the specific performance of an agreement is a substitute for a bill in equity and the plaintiff recovers a verdict corresponding with the equities of the parties at the time of trial, not only the instalments due at the time of suit brought, but all that is due when the verdict is rendered: Peebles v. Reading, 8 S. & R. 484; Lauer v. Lee, 6 Wright 171; Markley v. Swartzlander, 8 W. & S. 172 ; Shaw v. Bayard, 4 Barr 257 ; Reed v. Reed, 2 Jones 121; Aycinena v. Peries, 6 W. & S. 243; Church v. Ruland, 14 P. F. Smith 432; Piersol v. Neill, 13 Id. 420; Brawdy v. Brawdy, 7 Barr 157; Findlay v. Keim, 12 P. F. Smith 112; Ins. Co. v. Algeo, 7 Casey 446. The bill in equity was filed by the defendant in the present action ; it cannot be said that the plaintiff has resorted to inconsistent remedies.
    There was no error in vacating the judgment and allowing the plaintiff to change the form of the action from debt to covenant: Bunce v. Wightman, 5 Casey 335; White v. Leeds, 1 P. F. Smith 187; Kalbach v. Fisher, 1 Rawle 323; Banning v. Taylor, 12 Harris 289; Eldred v. Hazlett, 2 Wright 16; Hutchinson v. Ledlie, 12 Casey 112; Cochran v. Eldridge, 13 Wright 365; Stephens v. Cowan, 6 Watts 511; Collins v. Webster. 2 Wright 150; Breden v. Gilliland, 17 P. F. Smith 34; Riegel v. Wilson, 10 Id. 388.
   Judgment was entered in the Supreme Court, March 30th 1874.

Per Curiam.

The amendment from debt to covenant in this case was made while the action was pending. It is in the power of the court to set aside a judgment in default of a plea or of an affidavit, at the instance of the plaintiff, who finds he has been proceeding in mistake. When the judgment was taken off, the action stood as before judgment was entered, and the. right of' amendment attached.

The effect of the affidavit depends on the meaning of the word “ due,” where it says, “the balance of purchase-money and interest due.” Connecting this sentence with what immediately follows, decreeing this balance ($6204.53) to be paid on or before the 1st day of April 1871, it is obvious the word “'due” refers to and means the balance or sum falling due or payable on and before the 1st of April 1871, and not the whole sum owing upon the entire contract. This excludes the subsequent instalments falling due after April 1871. The action of covenant then, being for the instalment of April 1st 1872, it is obvfous the decree does not include it, and is therefore no bar to the action. Herdic, who was the plaintiff in the bill for specific performance, not having complied with the decree in his favor, by giving his bonds and mortgage for the instalments falling due after April 1st 1871, and taking the deed Woodward filed under the decree, and the decree having made no other provision for these instalments, it is evident Herdic stands in no position to contest the plaintiff’s action of covenant, this being the only means left to him to enforce payment of these instalments.

Judgment affirmed.


author: Agnew, C. J.

text:
    Fessler’s Appeal. May’s Appeal.
    1. May had a contract for land with Mackey; Fessler agreed to pay the purchase-money due at times named, the title to be made to Fessler to be by him held until the purchase-money should' be repaid him by May in logs, according to a contract made at the same time, and upon repayment to convey to May. Held, to be a mortgage of May’s equitable title to Fessler.
    2. Mackey, had contracted in writing to convey the land to May upon certain payments to be made by a given time. This was an agreement of bargain and sale, time being of the essence of the payment; until the time had expired the agreement was binding.
    3. If it were an option-contraet it was enforceable, if the option were exercised according to its terms.
    4. Fessler’s contract with May recited the contract with Mackey; Fessler paid the purchase-money to Mackey and took the deed. Held, that he was estopped from denying May’s title.

      5. Fessler by the log contract was to pay $500 to May on account of the logs, in twelve days ; by failing to pay, May was deprived of the means of cutting and delivering the logs as he had stipulated, held, that Fessler could not set up the log contract as a defence to May’s claim under the mortgage.
    G. Fessler sold by articles to Harris; before Harris paid the purchase-money and got the deed, a bill by May against him and Fessler was served on him. This was notice of May’s title and he could not set up the deed made after-wards by Fessler as defence against May
    7. May’s bill was against Fessler, Harris and others; the prayers were that Fessler convey to May and account for the logs; that the other defendants be restrained from setting up title to the land, from cutting timber, &c., and for general relief. The title being in Fessler at the filing of the bill a prayer for a conveyance from Harris was unnecessary.
    8. Harris having afterwards conveyed the land ; compensation was properly decreed against him. \

    9. A bill in equity is lis pendens of which every one is bound to take notice.
    March 24th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Appeals from the Court of Common Pleas of Gamer on county: In Equity : No. 282 and 447, to January Term 1872.
    On the 6th of May 1867, Henry W. May filed a bill against P. G. Fessler, N. C. Harri% A. H. Spaulding, C. Hunsicker, George Perry, David McOraney and Samuel McOraney. The bill set out:—
    1. Plaintiff on September 11th 1863 owned a tract of timber land on Loshbaugh run, in Cameron county, being part of a tracl; warranted to William Willink, containing about 600 acres, which tract he owned under an agreement with L. A. Mackey and D. Carskaddon, and on the contract he owed to his vendors $1100.
    2. Fessler, the defendant, wishing to purchase logs to be cut from the land, plaintiff’entered into a written contract with him on the 11th of September 1863, Fessler to pay plaintiff $500 in twelve days and $600 more in eighty days, to be applied to the payment of the amount due to Mackey and Carskaddon for the purchase-money of the land; and when this money should be fully paid the.deed to be made to Fessler, who was to hold the title as collateral security until the $1100 should be repaid in logs to be cut from the land by the plaintiff and delivered to Fessler, who agreed upon-such repayment to reconvey the land to the plaintiff. This agreement, “A,” was made part of the bill.
    3. On the same day plaintiff made another agreement with Fessler, in which the first agreement is referred to, and by which plaintiff agreed to sell to Fessler from the land 1,000,000 feet or more of logs, and deliver them on Loshbaugh run, Fessler to pay at the rate of $5.25 per thousand feet, to be paid, $500 in twelve days, and $1.50 per thousand feet as fast as the logs were delivered, $1 per thousand feet to be paid monthly, from the 1st day of January 1864, 75 cents per thousand feet when the drive of the logs should start, and for the balance, after deducting the amount to be paid to Mackay and Carskaddon, Fessler to give plaintiff his note, payable in four months from the time the drive should start. This agreement, “B,” was made part of the bill.
    4. Shortly afterwards Fessler paid Mackey and Carskaddon $500, and then, for the purpose of^garrying out agreement “A,” the contract between plaintiff and Mackey and Carskaddon was, by the consent of all parties in interest, destroyed, and a new contract was made between Fessler and plaintiff for the purpose still of carrying out agreement “A,” whereby Mackey and Carskaddon agreed, on the payment of the remaining $600 due on their contract with' plaintiff, to convey the land to Fessler; he after-wards paid the $600; the land was conveyed to him and he held the legal title.
    5. Plaintiff had always been ready to> perform his part of agreement “B ” on being paid for the logs according to its terms, and in the performance the agreement to repay to Fessler the $1100 paid by him to Mackay and Carskaddon.
    6. Fessler, shortly after contract “B ” was made, paid $250 on account of it, and although often requested, paid no more until April 1864, when he paid $250 more; but the plaintiff, notwithstanding, being anxious and ready to carry out his part of the contract, continued until January 1864 to. cut and get the logs into the creek, to his great inconvenience and damage, on account of Fessler’s failure to comply with his agreement; up to that time he had delivered 61,800 feet of logs, when he demanded payment for them, and was refused by Fessler; plaintiff then offered to pay Fessler all the money advanced for plaintiff if he would let plaintiff have the title to the land and logs; -this, also, Fessler refused; plaintiff then resumed work in getting the logs at great disadvantage and loss, on account of Fessler’s refusal to pay him, and continued-so to work until March 1st 1864, .when he had delivered 180,950 feet of logs in the run, all which Fessler claimed and received, but had refused to comply with the terms of the contract.
    7. Fessler claimed the land and logs as his own, and denied that the plaintiff had any right, title, interest or claim in the same.
    8. By reason of Fessler’s refusal to make his payments, the plaintiff was compelled to discontinue getting the logs into the creek for want of means to carry on so expensive a work, but was still willing and ready to complete the work on the performance by Fessler of his agreement.
    9. The defendant caused agreement “ A ” to be recorded on the 12th of February 1864, for security for himself and notice to others, and had frequently, by verbal and written notices, informed the defendants of the agreement “A” before they began to cut timber, yet the defendants, P. G. Fessler, N. C. Harris, A. H. Spaulding, C. Hunsicker, George Perry, David McCraney and Samuel McCraney, had entered into possession of- the land, and were cutting and taking timber from it.
    The prayers were:—
    1. That Fessler be requir^to account for the logs delivered to him under article “B,” and pay the plaintiff for them as well as for the damages he had sustained by the violation of the contract by Fessler.
    2. That Fessler be compelled to convey the land to the plaintiff on payment to him of the advancements made for the plaintiff should anything be found due.
    3. That the defendants be restrained from setting up title to the land, and from cutting or removing timber, &c., and that they be required to deliver to the plaintiff all the timber cut.
    4. That they be required to account for all the timber cut by them, &c., and for all damages done, &c. ■
    5. For further and general relief.
    The agreements were as follows:—

      “A.” This agreement, made this 11th day of September 1863, between P. G. Fessler and H. W. May — Witnesseth: That whereas the said H. W. May holds an agreement with L. A. Mackey and D. Carskaddon, for a tract of land on Loshbaugh Run in Cameron county. Now this is to show that the said P. G. Fessler agrees to make a certain payment of five hundred dollars to the said May, to apply on the said land, in twelve days, also, a further payment of six hundred dollars in eighty-six days from this date, and it is agreed and understood, that the title of said land shall be made to the said Fessler, and be by him held until the eleven hundred dollars shall be paid by the said May to the said Fessler, in saw-logs, as per terms stated in a contract for logs this day made between the parties. Then the said Fessler agrees by himself, his heirs and assigns, to convey to the said May, his heirs or assigns, the said tract of land free from encumbrance. In witness whereof, the parties have placed their hands and seals.
    “P. G. Fessler. [l. s.]
    “II. W. May.” [l. s.]
    “ B.” Agreement made the 11th day of September, A. d. 1863, between H. W. May, of Wharton township, Potter county, and state of Pennsylvania, of the first part, and P. G. Fessler, of Williamsport, Lycoming county, and state aforesaid, of the second part, as follows:—
    “ The said party of the first part hereby agrees to sell and deliver to the said party of the second part as hereinafter specified, one million or more feet of merchantable white pine saw-logs, board measure; said logs to be well butted off; free from shakes or other defects, and not to run further into tops than to make good merchantable lumber. * * *

      “ It is understood that s-aid logs- are to be cut during the coming fall and winter, and to be hauled into Loshbaugh Run below Herdic’s job, in such manner as to be safe from ice floods, &e., and at suitable places for floating out of said stream, and all to be done in time for the first floods next spring, suitable for driving logs out of said stream. * * *
    “ In consideration of which, the said party of the second part hereby agrees to pay to the party of the first part five dollars and twenty-five cents per thousand feet, board measure, for all logs scaled and accepted, by the man to be sent as aforesaid and so delivered in the stream as aforesaid as follows:—
    “ Five hundred dollars within twelve days, one dollar and fifty cents per M. feet when delivered in the above said run, one dollar per M. feet, payable monthly from the 1st of January, and seventy-five cents per M. feet when the drive starts, and the balance in my notes of four months from the time the drive starts. (The payments on the land are to come out of the two last payments.)”
    Fessler answer was:—
    1. Plaintiff never had any interest in the land except as thereafter stated.
    2. Plaintiff, in September 1863, told Fessler that he had the refusal of the land, and wished Fessler to buy logs and advance him money to enable him to pay for the land: the agreement “B" was then made; Fessler had no recollection of agreement “A.” Fessler was to buy the land, and if plaintiff complied with his contract as to the logs, Fessler was to convey the land to plaintiff; there was no agreement that Fessler should hold the land as collateral security, and convey to plaintiff on being repaid the purchase-money..
    3. Afterward Mackey, by agreement “ O ” attached to the answer, agreed to sell and convey the land to Fessler; this agreement being “independent of any agreement of refusal of the land ” made with plaintiff. Mackey refused to sell the land to plaintiff, unless he would pay or secure the purchase-money, as plaintiff was “totally insolvent.”
    4. Plaintiff failed to get out the logs acccording to his contract. He was to get out 1,000,000 before he could claim any part of the price, except $500 which Fessler paid.
    5. Plaintiff never delivered any logs to Fessler except about 30,000 feet, and he “ afterwards refused to carry out his agreement and abandoned the job.”
    6. 7. Plaintiff tried to sell some of the logs in fraud of his agreement; he had logs in the woods which he never delivered; and by his failure to perform the contract Fessler suffered great damage.
    8. Plaintiff never offered to pay Fessler $11,000 or any part for the amount paid Mackey. , 9. Fessler did not receive the deed until January 4th 1865. when all agreements between him and plaintiff were at an end.
    10. Fessler sold the land September 14th 1866, by articles (“ D.” attached to answer), to N. C. Harris, who had paid him $1000 and taken possession. The equitable title was not then in Fessler, nor at the filing of the bill, and he had no interest in the land except as to the balance of'the purchase-money.
    11. Fessler never acknowledged any agreement with the plaintiff, there Avas no subscribing witness to the agreement “A,” and Fessler did not authorize its being recorded.
    12. Fessler had not been in possession of the land since September 1866, and had not taken aAvay any timber, the land having before that time been sold to Harris.
    The agreements referred to in the answer were:—

      “ C.” Know all men by these presents, that, for and in consideration of the sum of $475, to L. A. Mackey paid by P. G. Fessler, the receipt, &c., and upon the further payment by the said P. G. Fessler, of the sum of $482.75 within three months from the date hereof, I do covenant, &c., to sell and convey to him, his heirs or assigns, or to such party or parties as he may designate, free from encumbrances, the tract or tracts of land situate in the township of Grove, in the county of Cameron, as follows : No. 4940, 495 acres, south part, Wilhelm Willink and others, warrantee, it being all that part of said tract of land formerly situate in Clinton county, and purchased by me at treasurer’s sale, in said county, m 1850; and upon failure to pay the sum last above mentioned within the time above specified, then this agreement to be null and void between both parties.
    “L. A. Mackey, [l. s.]”
    September 19th 1868.
    “D.” Agreement, made and concluded on this 3.4th day of September, a. d. 1866, between Philip G. Fessler, of, &e., and N. 0. Harris, of, &c.,Avitnesseth that, for the consideration hereinafter mentioned, the said party of the first part agrees to sell and convey to the said'.party of the second part, his,heirs and assigns, all that certain tract of unseated land situated in Cameron county, Pa., formerly in Grove township, Clinton county, surveyed on a warrant granted to Wilhelm Willink and others, on the 3d day of February, a. D. 1794, numbered 4940, containing 495 acres, more or less, it being all that part of said tract lying in Clinton county previous to the erection of Cameron county, and being-the same tract of land conveyed by deed, dated January 4th 1865, by Wm. Feeron and Eliza his Avife, to the party of the first part, in consideration whereof the said party of the second part, &c., agrees to pay the said party of the first part, &c., $2000, as follows, to wit: $1000 on.the execution of, this agreement, and the remaining $1000 in one year from the execution of this agreement, with interest. On the payment of the purchase-money, the said party of the first part binds himself; his heirs and assigns, to execute and deliver to the said party of the second part, his heirs or assigns, a warrantee deed for the above-described tract of land, clear of all encumbrances ; and in case that security is given, then the said party of the first part will execute and deliver a deed whenever required by the said party of the second part.
    “Witness our hands and seals, September 14th, A. D. 1867.
    “P. G. Fessler, [l. s.]
    “N. C. Harris, [l. s.]”
    In presence of Henry W. Watson.
    “ Received, Williamsport, September 14th 1866, of N. 0. Harris, his check, payable to my order, on First National Bank of Athens, for $1000, which, when paid, will be in full of the first payment herein mentioned. “ Henry W. Watson,
    “Attorney for P.’G. Fessler.”
    N. 0. Harris answered :—
    1. He had no knowledge of plaintiff having been owner of the land, but believed that he never had been.
    2. He had no knowledge of agreement “ A” and denied that plaintiff had any interest in the land on the 11th of September 1863 ; Mackey and Carskaddon had the title and they were under no obligation to convey to plaintiff, who had never bound himself to pay any of the purchase-money; nor had he paid any of it: on the 4th of January 1865, Mackey and Carskaddon conveyed the land to Fessler and Fessler sold it to Harris, by articles dated September 14th 1866, for $2000 of which $1000 were then paid; $1000 being still unpaid. A copy of the article marked “E” was attached to this answer.
    4. He believed that the conveyance from Mackey and Carskaddon to Fessler was not in pursuance of an agreement between plaintiff and Fessler or Mackey and Carskaddon; he denied that there ever had been any contract between plaintiff and Mackey and Carskaddon, for the purchase of the land, or that Mackey and Carskaddon were under any obligation to -convey the land to the plaintiff; and that when the land was conveyed to Fessler, the plaintiff had any interest in it. '
    The answer then denied under belief, that plaintiff had complied with contract “ B,” &c., for the delivery of the logs to Fessler, &c. '
    9. Harris denied knowledge of the recording of agreement “ A;” — he denied having any notice of the agreements. After he purchased from Fessler, he entered on the land and employed others to 'cut timber for him and take it to’ market; the Craneys, defendants, worked for him but neither they nor Hunsicker who superintended the cutting, had any interest in the land or the timber; Perry and Spaulding had no interest in the land or timber.
    Agreement “E.” was as set out in the answer of Harris.
    By a supplementary answer, Harris averred that he had employed George Perry to make inquiry as to the title, &c., and was informed by him that Fessler owned the land and upon that inforformation he purchased from Fessler and then knew of no claim from any other person; — after he had taken possession and commenced cutting timber, plaintiff forbade his cutting and notified him of his claim, in March or April 1867, a short time before filing the bill; Harris upon inquiry from Perry, Fessler and Carskaddon was informed by them, that plaintiff never had any title or claim to the land, that he had not paid Mackey and Carskaddon for the land nor was he indebted to them for it. Harris had taken logs from this land and another tract adjoining together about 1,098,000 feet and about one-half of this amount was taken from the lot claimed by plaintiff, amounting to about 500,000 and 600,000 feet.
    An examiner was appointed who took a large amount of testimony in the case. Afterwards B. S. Bentley, Esq., was appointed master. In his findings, and in the opinion of C. J. Agnew, the facts sufficiently appear.
    The master reported:—
    “ 1. On the 11th day of September 1863, Henry W. May, plaintiff, held an agreement in writing from Mackey and Carskaddon, in which they had obligated themselves to convey to him the land described in plaintiff’s bill, upon his paying to them the amount therein stipulated, at the time stipulated, which agreement was in full force and effect on the day aforesaid, and by which Henry W. May had an equitable interest in the land that he could sell, mortgage or otherwise dispose of; the facts set forth in first paragraph of plaintiff’s bill are true.
    “ 2. For the purpose of raising means to pay for the said lands, he entered into the agreement with P. G. Fessler, as contained in the two papers, marked ‘ A’ and ‘ B.’ Said two papers, bearing date September 11th 1863, were executed by the parties simultaneously, and are to be construed together as constituting one agreement. Therein P. G. Fessler agreed to pay to Mackey and Carskaddon the amount going to them from Henry W. May as purchase-money on the land, being $1100, or thereabouts, and upon the repayment to him in saw-logs, in the manner provided for in the agreement, he agreed to convey the land to Henry W. May, his heirs and assigns. Henry W. May agreed on his part to cut, sell and deliver to P. G. Fessler one million feet or more white pine logs, at $5.25 per thousand feet, within the time and in the manner particularly set forth in the agreement. And P. G. Fessler agreed to pay for the logs $500, within twelve days from the date of the 'agreement. $1.50 per thousand feet when delivered in the Run, designated in the agreement, the balance to be paid as in the agreement provided for, and the payments made on the land to Mackey and Carskaddon should be taken from, the last two payments, and the facts set forth in paragraphs 2, 3 and 4 of plaintiff's bill are true. .
    “ III. In pursuance of the agreement, Henry W: May commenced cutting and hauling logs, on or about November 1st 1863,,and up to January 28th 1864, he cut and delivered 60,300 feet. Upon his delivering the logs, there, would have been due to H. W. May, according to the agreement, as follows :—
    “ To be paid within twelve days from Sept. 11th 1863, $500.00
    “ “ “ $1.50 per thousand delivered in Run, being $1.50 on 60,300 ft. so delivered, - - 90.45
    $590.45
    “IV. P. G. Fessler did not pay $500 within twelve days from the date of the agreement, nor at any time thereafter up to the 28th of Jan. 1864, nor did he pay $1.50 per ‘ M.’ for the 60,300 ft. delivered in the Run previously to Jan. 28th 1864. But he did pay Sept. 21st 1863, part of the $500, to wit: - - - $250
    “ Also, $5 sometime in January 1864, - 5
    -— $255.00
    “ Thus leaving due to Henry W. May, Jan. 28th 1864, from P. G. Fessler, according to their agreement, ........$335.45

      ‘ V. On the 19th day of September 1863, P. G. Fessler obtained from Mackey and Carskaddon an agreement for the land. This agreement was to the same import and upon the same terms as the one held by Henry W. May from them, and the agreement was obtained by P. G. Fessler in the presence of and with the consent of Henry W. May, and in furtherance of the agreement made between them September 11th 1863.
    “VI. P. G. Fessler paid to Mackey and Carskaddon, on the 19th day of Sept. 1863, - $475.00
    “ And on the 6th day of Jan. 1865, he took a deed for the land, in his own name, from William. Fearon, trustee of Mackey and Carskaddon, and then paid the balance due on the contract, to wit: - - $482.75
    “ Total paid by P. G. Fessler on the land, $957.75

      “ VII. -On the 14th day of September 1866, P. G. 'Fessler sold the land to N. C. Harris, one of the defendants, by contract. N. C. Harris paid, upon the execution of contract, $1000 to P. G. Fessler, and also agreed to pay him $1000 more within one year from the date of the contract. He also paid to George Perry $500 for his services in the sale and purchase of the property, between P. G. Fessler and N. C. Harris, making $2500 paid and agreed to be paid by N. C. Harris for the land.
    “VIII. Prior to the purchase by N. C. Harris, he had employed George Perry to make inquiry as to the title and price of the land. George Perry did make inquiries. He knew that May was cutting logs on the land. He saw the agreement between P. G. Fessler and Henry W. May. He had- conversation with Carskaddon in relation to May’s interest in the land, but did not go to May to make inquiries of him. After the payment of $1000 by N. C. Harris on his contract, notice was given to George Perry, while he and others were at work on the land cutting'logs for N. C. Harris, by Henry W. May, that the logs they were cutting would be held by him when they reached the boom. Before N. C. Harris paid the last $1000 to P. G. Fessler, on his contract, the plaintiff’s bill had been served on him, giving him full notice of plaintiff’s claim. The allegation that personal notice was given by Henry W. May to N. C. Harris, in the fall of 1866, while Harris was negotiating with Fessler, is denied by N. C. Harris, and the allegation is not sustained. The parol evidence of the recording of the contract is insufficient to raise the question of notice, as it is not shown that the contract was acknowledged, or that it was properly recorded, and P. G. Fessler makes oath that it never was acknowledged by him, and there were no subscribing witnesses.
    IX. Warrant 4940, mentioned in the first paragraph of plaintiff’s bill, was divided east and west by the Potter and Cameron county line. The part thereof purchased by the said N. C. Harris, and claimed by the plaintiff, is in the county of Cameron, and south of the said line. N. C. Harris also purchased the part of said warrant lying in Potter county, of other parties. The part lying in Cameron county contained a larger number of acres, and had- more timber growing upon it than the part in Potter county. N. C. Harris sold, and by deed bearing date the 22d day of September 1868, after service of plaintiff’s bill on him, conveyed the undivided half of the warrant to F. N. Page, for a house and lot situate in Athens, Bradford county, Pennsylvania, valued by the parties at $15,000, which I find to be the fair value thereof. He sold the other undivided half of the said warrant to F. L. Wells, 'for the consideration of $15,000 as mentioned in the deed from N. C. Harris to F. L. Wells, bearing date the 24th day of April 1869, and that there is no evidence of the said Harris having expended any money in making improvements before the sales on said lands.

      “X. N. 0. Harris cut aiid took from the lands, before he made sale thereof, at least 1,093,000 feet of white pine, worth $3 per tllOUSQilld. liGGfc
    “ XI. Henry W. May, on the 11th day of September 1863, had not the means to pay Mackey and Carskaddon for the land. ' He had not the means in himself to cut and deliver the logs to P. Gr. Fessler, in accordance with his contract, and it was for the want of such means, the same not being furnished by P. Gr. Fessler, that he did not go on with the job and fulfil his agreement.
    “ XII. The plaintiff went at different times to P. Gf. Fessler during the month of January 1864, to get money, alleging he could not get out the logs unless he could get money,- and alleging there was money due him. He offered to pay to P. Gf. Fessler all the moneys he had advanced on the contract if he would give up or vacate said contracts, and that said Fessler refused.
    “ XIII. P. G. Fessler paid on his contract with May as follows:— September 21st 1863, paid to Henry W. May, - - $250.00 January .1864, “ “ “ “ - - 5.00
    April 4th 1864, “ “ “ “ ' - - 250.00
    September 19th 1863, paid to Mackey and Carskaddon, on land, - - - - - 475.00
    January 4th 1865, paid to Mackey and Carskaddon, on land, ----- 482.75
    $1462.75”
    He received 60,300 feet of logs on contract at $5.25 per thousand, ----- $316.50
    Also, from N. C. Harris, on contract for sale of land to him, September 14th 1866, - 2000.00
    $2316.50
    Deduct amount paid as above, - 1462.75
    Amount received over amount paid, - - $853.75
    “ XIV. The amount of timber taken from the land claimed by plaintiff was 666,667 feet. This, at $3 per thousand, would give - $2000.00
    He also received, on sale of lands to F. N. Page, house and lot valued at - - - 15,000.00
    $17,000.00
    N. C. Harris paid to Fessler $2000.
    Received beyond what he paid, $15,000.
    * * * ■* * *

      “ I find the following legal conclusions from bill, answers and evidence:—
    * * * * * *

      “ II. The agreement of Mackey and Carskaddon to sell, and upon payment of the purchase-money, to convey the land to Henry W. May, as contained in the first finding of fact, was a valid agreement, and binding upon them, and under it the plaintiff had an equitable interest in the land on the 11th day of September 1863, that he could sell, mortgage or otherwise dispose of.
    “III. The arrangement and agreement between Henry W. May and P. Gr. Eessler, entered into on the ’ 11th day of September 1863, was either a sale of plaintiff’s interest in the land, or a mortgage, security or pledge thereof, for the performance of some act. That it was not 'intended as an absolute sale is evident from the terms of the agreement and the situation of the parties. Nor was it a conditional sale. P. Gr. Fessler had no interest in the land that he agreed to part with to Henry W. May, upon certain conditions to be performed by him. In a conditional sale the estate reverts to the vendor, upon non-performance of conditions. This was not the case between Eessler and May. May was the equitable owner of the land. To complete the title, and save his equitable estate, the purchase-money must be paid. May had not the money to pay, but as is frequently the ease, he was willing to put the land in pledge to secure an advancement of the purchase-money. He entered into an agreement with P. Gr. Eessler to advance the money, and to take and hold the title until he should be reimbursed the money he should have advanced. It is true that May agreed to pay in saw-logs, at a particular price, and he also agreed to get out a much larger quantity at a particular price, and to be delivered within a specified time, than was necessary to repay Fessler the money he was to advance upon the lands. Whether he was to get his pay in saw-logs, or in some other way, is immaterial.
    “ There is more in substance than in a name. The arrangement of the parties as contained in their agreements of September 11th 1863, I hold to be in the nature of an imperfect or equitable mortgage, security or pledge. We may call it what we please— its character remains the same; it was a security coupled with a trust. Eessler was to advance the money and take the title in his own name, and to hold in trust for May, until May should reimburse him, and then to convey to him in fee.
    “ It is claimed, however, on the part of the defendants, that admitting it to be a security, mortgage or pledge, it was a pledge for the performance of the entire contract on the part of May, and that he could have no claim in equity without showing an entire performance. I do not assent to this; I think the security was only for advancements to be made by P. Gr. Fessler. That at any time, without the delivery of a single saw-log, upon paying to Eessler the money he had advanced in pursuance of the agreement, and interest, May would have been entitled to a conveyance of the land from Fessler, and a court of equity would have decreed such conveyance, leaving to the parties their common-law remedies for other breaches of the agreement. The transaction being, then, in the nature of a mortgage or security, there could be no forfeiture of estate, and no change' in the relation of the parties, except by agreement of parties, or by proceedings in equity and decree of sale.
    “ IV. That even if there be error in the foregoing conclusion, it would not relieve the defendants. I construe the agreements of September 11th 1863, that Fessler shall not only pay to Mackey and Oarskaddon $500 on the land, within twelve days, but that he shall also pay $500 towards the logs, within twelve days, and that he shall also pay $1.50 per thousand feet so fast as May shall deliver the logs in the stream. This, he did not do, and as a consequence thereof May could not and was not under obligations to go on with the contract.
    “ V. That the contract obtained by P. G. Fessler from Mackey and Oarskaddon, on the 19th day of September 1863, was obtained in pursuance of the agreement of September 11th 1863, and was held in trust by P. G. Fessler for Henry W. May.

      “ VI. That P. G. Fessler was bound to accept the offer made by May, and others on his behalf, and to take the money he had advanced on land and logs, and to assign the contract he held from' Mackey and Oarskaddon for the land, and to vacate or annul the contract he had made with May (he, Fessler, having failed*to perform his part); and having refused to accept the offer, and claiming the land as his, it was not necessary for May to make a tender of the balance that might be due to Fessler after deducting what logs he had received, before filing his bill. The refusal to do anything about it obviated the necessity of a tender as regards the plaintiff’s right to support his bill.
    “ VII. That George Perry was the agent of N. O. Harris in looking up the title to the land. That George Perry had notice, prior to the purchase of the land by the said N. C. Harris, and while he was acting for him in relation to the purchase thereof, sufficient to put him upon inquiry of May; and that N. C. Harris, as principal, was affected by such notice to Perry.
    “ VIII. That N. C. Harris, having purchased the land of Fessler, after notice to George Perry, his agent in the transaction, stood in no better situation than did P. G. Fessler himself, and would hold the land in trust for May, upon the same conditions that Fessler held it.

      “ IX. That in case there be error in the 7th conclusion of law, it could have no effect except as to the $1000, for before anything farther was paid by the said N. C. Harris, the plaintiff’s bill was served on him, which was full and direct notice to him of the plaintiff’s claim. The bill having been served on him November 2Sd 1867, he could have protected Himself against any farther payment to Fessler, and he would have teen protected as to the $1000 paid, provided he had been a boná fide purchaser, without notice. But the result will show that he is protected in either case.
    “X. That if P. G. Fessler held the land in security, as herein-before stated, he could convey no better title to any other person with notice, than he held himself. He could at any time have brought his bill against May, and procured a decree for the sale of the land, and thus have cut off May’s equity. This he was bound to do unless by agreement with May — ‘ Once a mortgage, always a mortgage.’
    “ XI. That the sale and conveyance of the land by N. C. Harris, while the case was pending, and after service of plaintiff’s bill upon him, for a house and lot valued at $15,000, enures to the benefit of the plaintiff, and the said N. C. Harris can take no advantage thereby. It was mala fides in him after service of bill upon him to put it out of his power to comply with the decree for specific performance prayed for, and he must therefore respond in damages under plaintiff’s general prayer for relief.
    # * * * * * * *
    “ XIV. That P. G. Fessler is bound to account to the plaintiff for $853.75, being the amount received by him beyond the amount advanced by him, with interest thereon from September 14th 1866, the day of sale of the lands to N. C. Harris by the said P. G. Fessler.
    “XV. That N. C. Harris is bound to account to the plaintiff for $15,000, being the amount received by him in house and lot and timber, over and above the amount paid by him to P. G. Fessler, with interest thereon from the 10th day of January 1869, being about the proper average of time between the dates of sales to Page and Wells by the said N, C. Harris.
    “ XVI. That the conduct of the plaintiff has not been free from objection in the transaction. He slept upon his rights for three years. He made no tender to P. G. Fessler, before filing his bill, of the money that had been advanced by him. From these facts, and other evidence in the case, I deem it equitable that he should not recover costs, and that he should pay the one-half thereof, and that P. G. Fessler and N. O. Harris should pay the other half thereof.”
    He reported this decree:—
    “ It is therefore ordered, adjudged and decreed, that the defendant P. G. Fessler pay unto Henry W. May, the plaintiff, $853.75, within sixty days from the service of notice upon him of the final confirmation of this decree, and interest thereon from the 14th day of September 1866. And that the said N. C. Harris pay unto Henry W. May, the plaintiff, within four months from the final confirmation of this decree, $15,000 and interest thereon till paid, from the 10th day of January 1869.

      “ That the plaintiff pay the one-half of all costs, and that P. G. Fessler and N. C. Harris pay the other half thereof.”
    Both parties filed exceptions to the report. After argument, The court (Williams, J.), in concluding his opinion, said :—
    “ The bill made a case against Fessler for conveyance under the evidence. We decree compensation, but the bill made no case against Harris, except for an injunction and account. As no conveyance from him is asked, none can be decreed. No facts are alleged in the bill which could sustain such a prayer for relief, if made, and for that reason the prayer for general relief will not justify the decree recommended, so far as it relates to Harris. From this view it follows that we sustain such of the exceptions to the master’s report as relate to the decree against Harris, and such as relate to the decree against Fessler are overruled.”
    A decree was entered in accordance with this conclusion.
    Both parties appealed to the Supreme Court, assigning for error respectively the parts of the decree against them.

      H. W. Patrick and IT. W. Watson, for Fessler and Harris.—
    The construction of the contracts is doubtful, and equity will not entertain the bill, but leave the plaintiff to his remedy at law: Callaghan v. Callaghan, 8 Cl. & Fin. 374; Charnley v. Hansbury, 1 Harris 21; Waters v. Howard, 8 Gill 277. The remedy at. law was adequate: Fry on Specific Perf., sect. 12, p. 34; N. Penn’a Coal Co. v. Snowden, 6 Wright 488; Daniels’s Chan. Pr. 610; Each must have a right to compel specific performance or neither had: Bodine v. Glading, 9 Harris 53; Fry on Specific Perf., sect. 39, p. 30. The plaintiff is not entitled to performance because of his laches by reason of his delay: Fry on Specific Perf. sect. 737, p. 219; Tiernan v. Roland, 3 Harris 438; Greenlee v. Greenlee, 10 Id. 285; Germantown Pass. R. R. Co. v. Fitler, 10 P. F. Smith 133. The land having been sold specific performance could not be decreed and damages in such case will not be awarded: 2 Story’s Eq. J. sect. 793. When several instruments are made at the same time about the same matter they are to be construed as one instrument: 2 Washburne on Real Prop. 481. May had no interest that could be mortgaged; the contract was one-sided: Boston & Maine R. R. v. Bartlett, 3 Cushing 227; Russell’s Appeal, 3 Harris 322; Kerr v. Gilmore, 6 Watts 407; Stoever v. Stoever, 9 S. & R. 447; Rickert v. Madeira, 1 Rawle 327. A conveyance is not a mortgage unless the grantee designed to make a loan on it as security, 2 Washburn on Real Prop. 492, and the debt could be enforced: Id. 482. This was a conditional sale: Flagg v. Mann, 14 Pickering 467. The party agreeing to convey must derive his title from the other party: 2 Washburn on Real Prop. 47.

      S. D. Ball and B. P. Allen, for May.
    The previous contract between May and Mackey and Carskaddon, is to be considered with contract marked “ A,” as well as the acts of the parties subsequent to those agreements and contemplated by the parties when the same were entered into: Chit, on Con. 89 ; Phila. Life Ins. Co. v. American Life and Health Ins. Co., 11 Harris 65. What is agreed to be done, is, in equity, looked upon as actually done: Br. Eq. sect. 245.
    There was an election to take the land by May on thé 11th of September 1863, which as between May and Eessler, gave May an estate in the land that could be mortgaged, and the actual acceptance of the land by May through Eessler as his agent, trustee or mortgagee, on the 19th day of September 1863, according to their-agreement of the 11th of the same month, gave May a mortgageable estate in the land: Kerr v. Day, 2 Harris 112; Daniels v. Davidson, 16 Vesey 253 ; Elder v. Robinson, 7 Harris 364; Cor-son v. Mulvany, 13 Wright 88.
    May’s contract of refusal or option with Mackey and Carskaddon was valid, although signed by them only, the same as if it had also been signed by May: Lowry v. Mehaffy, 10 Watts 387; Shoofstall v. Adams, 2 Grant 209 ; McFarson’s Appeal, 1 Jones 503; Tripp v. Bishop, 6 P. F. Smith 424. By his agreement Eessler so used May’s right to the land as through it to get possession of the title as was agreed to hold for May, and he cannot now turn round and deny May’s right entirely, and claim to hold the land for himself. This is a perfect estoppel from his setting up title to the land for himself: Adam’s Eq. 151; 1 Story’s Eq., § 391; Hill v. Epley, 7 Casey 331; Nerhooth v. Althouse, 8 Watts 427; Hipple v. Rice, 4 Casey 406; Meason v. Kaine, 17 P. F. Smith 126. Wherever it is legally proved that a conveyance was made for the purpose of security, equity regards and treats it as a mortgage : 2 Wash, on Real Prop. 44 and note. Whether covenants in an agreement are dependent or independent is to be determined by the intention of the parties, as it appears on the instrument. If they are independent they are to be treated in all respects as '-.hough they had been written on separate pieces of paper: Lippincott v. Low, 18 P. F. Smith 314.
   The opinion of the court was delivered, May 11th 1874, by

Agnew, C. J.

The clear and methodical report of the master saves us the necessity of discussing many of the questions raised by the numerous assignments of error. These appeals are from the same decree, and we shall notice a few leading points which will govern the decision. The principal question arises upon the agreement between Henry W. May and Philip G. Eessler, dated September 11th 1863. That this paper is a mortgage of May’s equitable interest in the land is very clear. Its terms are express. After- reciting that May held the land by agreement, Fessler agreed to advance for May two sums of $500 and $600 to pay the purchase-money due by May to L. A. Mackey and D. Carskaddon; and then agreed “ that the title of said land shall be made to the said Fessler, and be by him held until the $1100 shall be paid by the said May to the said Fessler, in saw-logs, as per terms stated in a contract for logs this day made between thep'arties.” This language is sufficient in itself, for it distinctly exhibits the relation of debtor and creditor, and not that of vendor and vendee. This is not all, for the writing contains this express covenant: “ Then (viz., on payment) the said Fessler agrees by himself, his heirs and assigns, to convey to the said May, his heirs or assigns, the said tract of land, free of encumbrance.” Thus, by express terms, the interest of May, whatever it was, passed to Fessler as a pledge or security for money to be advanced by Fessler for May, in order to secure May’s purchase of the land. Fessler was a lender of money, not a purchaser of land: Sweetzer’s Appeal, 21 P. F. Smith 264; Danzeisin’s Appeal, 23 P. F. Smith 65.

What interest did pass ? This is equally clear. It would be sufficient on this point to rely on the report of the master confirmed by the court, the testimony being uncontradicted. But let us turn to the evidence and examine it. That Mackey and Carskaddon had a good title is not questioned. The legal title was in William Fearon, in trust for them, but he executed this trust by his conveyance of the 4th of January 1865. Mackey testifies that he gave Carskaddon full authority to treat for the sale of the land with May, and that he transacted the business. Carskaddon testifies that Mackey and he had a contract in writing with H. W. May for the sale of this tract of land, that the nature of their contract was that they agreed to convey the land in question to May, upon certain payments, to be made by a given time or times, the purchase-money, he thinks, was $1100. Then the legal character of the writing was perfectly clear. It was an agreement of bargain and sale, making time of essence in the payment. But making time of essence in the performance of the contract does not change the nature of the agreement itself. So long as the time had not expired the agreement to convey was legally and fully binding. Therefore, calling it a refusal, or an option, cannot change its true character. May had a right to call for a conveyance on payment according to its terms. But even if it were an option contract it was binding and enforceable, if the option be exercised according to its terms: Kerr v. Day, 2 Harris 112; Corson v. Mulvany, 13 Wright 88; Siter, James & Co.’s Appeal, 2 Casey 180 ; Shollenberger v. Brinton, 2 P. F. Smith 98 ; Lowry v. Mehaffy, 10 Watts 389; McFarson’s Appeal, 1 Jones 503. But the case does not rest on the character of the writing alone ; for the parties carried it into actual execution. Carskaddon testifiés: “We considered the land as May’s if he complied with the contract. When we met at the office of Mr. Hirst it was for the purpose of carrying out this arrangement, as I .understood it.” May and Eessler were both present. “ Our object in meeting there was for the purpose of receiving the first payment, and for the purpose of closing up the transaction.” “What we were doing at the meeting in Hirst’s office was in furtherance pf the contract with May, as I understood it. I went there at the instance of Mr. May, for the. purpose of closing up the transaction for the sale of this land.” “We were all together. No one left the office until the matter was entirely closed up. I required the, $100 to be paid before the contract was signed by Mr. Eessler and Mr. Mackey. I got Mr. Mackey’s price for his interest, and I wanted a little more.” It is further in evidence that May paid the $100. It further appears by theagreementandreeeiptsthatEesslerpaid only $957.75. Thus the facts prove beyond a question that Eessler took May’s place under the contract between May and Mackey and Carskaddon, and advanced the money for May by virtue of the agreement of September 11th 1863. He is estopped from denying May’s title, both by his acts and by the recital in his agreement, which opens thus: “ That whereas, the said H. W. May holds an agreement with L. A. Mackey and D. Carskaddon for a tract of land on Lonsbaugh run, in Cameron county.” On every ground it is apparent that Eessler held the equitable title derived from Mackey and Carskaddon as a security for the money advanced by him for May. Hence, when he obtained the legal title from Eearon, the trustee of Mackey and Carskaddon, in execution of their contract, he held the land as a trustee for May under a covenant to convey to him upon the repayment of the sums advanced by him for May, according to the express terms of the agreement of September 11th 1863. This being the true relation of these parties, it puts an end to several controversies. A mortgagee is not the owner of the land, and is entitled only to his money and interest. No question of delay in filing the bill can arise. It is not a case of specific performance to which the doctrine of abandonment by laches can apply. It is not a parol trust, and is not affected by the limitation in the sixth section of the Act of 22d April 1856. Delay will be compensated by interest; and if the mortgagee be in possession, and has incurred expenses, they will be settled in his account for profits he has derived : Harper’s Appeal, 14 P. F. Smith 315.

The next matter to be noticed is the saw-log contract between May and Fessler of even date, viz.: September 11th 1863, set up by Eessler in his defence. By it May agreed to cut, sell and deliver to Eessler one million or more feet (board measure) of white pine saw-logs, at $5.25 per thousand feet, in the time and manner set forth in it, and Eessler agreed to pay to May, in consideration of this $500, within twelve days from the date, and the remainder in certain instalments. The defence turns upon the interpretation of this agreement as to the $500 to be paid in twelve days. Fessler paid but $250 of this sum. May was a poor man, according to Fessler’s own showing, and without this money, according to all the evidence, was unable to prepare for the execution of the log contract, and to carry it out. It is in clear proof that May repeatedly demanded money from Fessler to go on with the contract, and offered to refund what he had received if Fessler would release the contract; but Fessler refused all offers, and both neglected and refused to pay the money. It is beyond controversy that, if Fessler was bound to pay this sum of $500 in twelve days from September 11th 1868, he was in fault, and not May, in the execution of the log contract, and therefore cannot interpose that contract as a defence to the land contract or mortgage. To avoid this he contends that this sum of $500 in the log contract is the identical sum mentioned in the land or mortgage contract which was paid, and to make good this position insists that the two agreements of September 11th 1863 are one in effect. But it is immaterial whether we call the two papers one agreement or two; they contain intrinsic evidence, corroborated also by surrounding circumstances, and cotemporaneous acts, showing that the two sums are not identical. The very reason why the parties made two distinct writings was that the purpose of each was different. The mortgage contract was to enable May to secure the land by providing for the payment of the purchase-money to Mackey and Carskaddon. The purpose of the log contract was to supply Fessler with logs and enable May to refund the money advanced. By the express terms of the mortgage agreement, Fessler agreed to make the payment of $500 to apply on the land in twelve days. This money was not for May himself, but for Mackey and Carskaddon to save the land upon which the logging was to be done, and so the parties mutually treated it, the money being paid in the presence of both parties. On the other hand the $500 to be paid in twelve days on the log contract, was expressed in the agreement to be in consideration of the logs to be cut and delivered by May, and was also expressed to be the first instalment of the $5.25 to be paid per thousand feet. The proof does hot rest oh the expressed consideration alone, but the agreement further provides that the payments on the land shall come out of the last two instalments. The payment of $500 being the first instalment, it is impossible, without violating the express language of the agreements, to say that it is one of the land payments. JExpressio unius est exclusio alterius. This interpretation is supported also by the reason and necessity of the thing as shown in the evidence. Logging contracts such as this are prosecuted in the fall, winter and early spring, and a large outlay of money is necessary in the beginning to provide .a cabin or shelter for the hands and for the team, to make roads, lay in provisions and supplies of grain, hay, &c. The testimony is, that for such a contract this sum of $500 was not more than adequate; and afterwards money is required to pay wages and other current expenses. To conclude the proof, Fessler so interpreted his own contract, for in ten days, September 21st 1863, he paid one-half of this sum of $500, having already paid $475 on the land contract on the 19th of September 1863. It is very clear, therefore, that Fessler was in default on the log contract, and having repeatedly refused May’s demands for money to carry on the work, Fessler cannot now set up the log contract as a defence against the mortgage.

The next matter to be noticed is the relation of Harris to the case. On this point it is sufficient to take Harris’s own answer and his testimony, without entering into the disputed question of Perry’s agency and of actual notice. According to these, when the plaintiff’s bill was served on Harris, he had no title except an unexecuted bargain on which he had paid one instalment of $1000. The remaining one thousand dollars he did not pay until long afterward. The bill was filed May 6th 1867, and served on Harris November 23d 1867, while the second thousand dollars was not paid until October-1869. Harris relied wholly on his agreement of September 14th 1866, and set up no deed either in his answer or his testimony. Indeed, the deed is not referred to in any part of the case. He was, therefore, not such a bond fide purchaser without notice as would be protected, except to the extent of the $1000 paid before service of the bill: Youst v. Martin, 3 S. & R. 423 ; Union Canal Co. v. Young, 1 Wharton 410; Beck v. Ulrich, 1 Harris 636 ; Juvenal v. Jackson, 2 Id. 524; Coxe v. Sartwell, 9 Id. 488; Henry v. Raiman, 1 Casey 360; 2 Sugden’s Yen. & Pow., 8 Am. ed. 523. This being the status of Harris when the bill was filed, the legal title being still in Fessler, it was unnecessary to pray for a conveyance from Harris to May. The prayer for an injunction against Harris and his servants to stay waste by cutting timber was the only prayer then necessary. Had Harris set up a deed by supplemental answer, May might have amended under the Act of 4th May 1864, 1 Bright. Dig. 601, pi. 72 ; Danzeisin’s Appeal, supra. It was therefore an error to dismiss the plaintiff’s bill wholly as to Harris. The learned judge had probably not noticed the state of the case when the bill was filed, and Harris’s omission to set forth any title in himself. But in view of the report of the master, for compensation only against Harris, a prayer for a conveyance is immaterial. In strictness a reconveyance might have been decreed by making Harris’s grantees, Wells and Page, parties. A bill in equity is Us pendens, of which every one is bound to take notice. This is settled in the well-considered case of Diamond v. Lawrence County, 1 Wright 353, in which the doctrine is fully discussed and the authorities cited by Woodward, J. Page and Wells were, therefore, not innocent purchasers without notice. But a court of equity will look to the effect of a decree, and give it such shape as will do equity, and prevent injustice. In view of the relations of Wells and Page to the case, they not being brought in as parties, and to save Harris harmless from damages at their suit, we think the decree for compensation only against Harris is the most equitable and should be approved. The master seems to have weighed the case well and arrived at a judicious conclusion.

Upon the whole case the appeal of Philip Gr. Fessler is dismissed, with costs of appeal to Henry W. May; and in the appeal of Henry W. May, we reverse the decree of the court below dismissing the plaintiff’s bill as to N. 0. Harris, and adopt the report of the master and the decree reported by him, which is hereby confirmed, except as to the time of payment, which, in the case of Philip Gr. Fessler, is fixed at sixty days, and in the case of N. C. Harris at four months from the time of filing this decree. The costs of this appeal to be paid by the defendant P. Gr. Fessler, the costs in the court below to be paid as reported by the master.

SharswooD' and Mercur, JJ., dissented.