text:
    Bell’s Appeal.
    1. Section 1 of Act of March 12th 1800 as to sale of real estate under a will when no person is named to execute the power, is not repealed by 12th section of Act of February 24th 1834.
    2. The Act of 1834 merely regulated the mode in which the power was to be executed.
    3. Section 8 of Act of April 22d 1856, does not repeal section 12 of Act of 1834.
    4. A testator directed his land to be sold and the proceeds to be divided amongst three daughters, naming no one to execute the power. The executor having become the owner of two shares, sold the whole at private sale. Held, that this did not divest the interest of the third.
    5. Not having obtained authority from the Orphans' Court, his vendee took no title to the third share, either in the land or its proceeds.
    6. It seems that if he had reported the sale to the Orphans' Court and it had been confirmed after notice to all in interest, it would have validated the sale.
    November 10th 1870.
    Before Thompson, C. J., Read, Agnew, Shakswood and Williams, JJ.
    Appeal from the Orphans’ Court of Allegheny county: No. 199, to October and November Term 1869.
    The proceeding in this case arose on tbe distribution of the sum of $4506.06, the balance in the hands of William Galbreath, surviving executor &c., of Samuel Galbreath, deceased. The matter was referred to Thomas MacConnell, Esq,, as auditor. By his report it appeared that the decedent died in 1841, seised of a farm of about 107 acres, and having made his will, which was proved January 10th 1842. By it he directed, that after the death of his widow and of his son Robert and his wife, his farm should be sold and after giving some small legacies, he ordered the balance of the proceeds to be equally divided amongst his daughters, Ann Miller, Nancy Potter and Elizabeth Scroggs. There was no one named in the will to execute the power of sale. Elizabeth Scroggs and Nancy Potter conveyed their interests in the farm to William Galbreath, the surviving executor. Robert, having survived the testator’s widow and his own wife, died in December 1865, Ann Miller, who had removed to the state of Indiana, died about the 7th of February 1866, having made a will dated in 1868, leaving

      the following children, Samuel G. Miller, James Miller and Nancy Herriott, residing in Indiana; John Miller and Ann Miller, residing in Iowa. By her will she gave to Nancy Herriott $800 of her “proportion” of her father’s estate, and further directed: “ But in case that said interest shall be worth more than $800, I do hereby direct that the same may be equally divided among my children that may be living at the time of my brother Robert Galbreath’s death.” She appointed Nancy Herriott executor.
    In December 1866, Mrs. Herriott wrote to Mrs. Potter, one of the daughters of the decedent, expressing an anxious wish that the land of her grandfather should be sold; this letter was shown to William Galbreath, the executor; letters were written also by other children of Mrs. Miller to the same effect, generally to one Cyrus K., Potter, a grandson of the decedent, who attended much to the business of the executor in reference to this real estate. The executor, in view of the urgency of these letters and of the unproductivenes of the farm, on the 15th of January 1867, without having asked or procured any authority from the Orphans’ Court, contracted to sell it to Matthew Andrews for $6000, of which $2000 were paid in hand, $1000 to be paid on the 1st of April then next, $1500 on the 1st of April 1868, and $1500 on the 1st of April 1869. In the articles he did not state that he sold as executor. On the 15th of March 1867, Andrews by articles contracted to sell to Abraham Bell and James K. Bell, at an advance of $1250, and the executor accepted them as purchasers instead of Andrews. On the 30th of March, the Bells paid the executor $1000, the second instalment of the purchase-money. Mrs. Herriott, and three others of Mrs. Miller’s children, were informed of the sale of the farm and these transactions in connection with it; she came to Pittsburg, and stayed at the house of the executor, was informed of all the circumstances and expressed no dissatisfaction. ' Being about to return home from Pittsburg Mrs. Herriott and the executor went to the office of his counsel, that she might receive her share of the proceeds of the sale of the farm, and there was informed that it could not be paid unless letters testamentary on Mrs. Miller’s estate were taken out in Pennsylvania ; the executor also learned, for the first time, that his sale being without authority from the Orphans’ Court, was invalid. The executor, however, paid Mrs. Herriott $100, for which she gave him her individual receipt, as so much “ on account of her share in the proceeds of the sale of land of the heirs of the late Samuel Galbreath, deceased.”
    Letters testamentary on the estate of Ann Miller were on the 22d of October 1867 granted in Pennsylvania to Mrs. Herriott.
    Application was made by the executor to the Orphans’ Court of Allegheny for authority to sell the farm.
    After opposition by the children of Mrs. Miller, who desired partition, the court authorized the sale of the farm. It was struck down to Abralwn Bell and James K. Bell for $10,425. This sale was set aside and the farm was again exposed to sale and bought by the same persons for $18,350 — one-third of the purchase-money to be paid in cash, one-third in one year and oirethird in two years, both with interest; this sale was confirmed March 21st 1868. The fund to be distributed is the balance of the first instalment of the purchase-money.
    The claimants on the fund were the children of Mrs. Miller and the Bells. As to the two-thirds which the Bells ■ claimed under the conveyance to William Galbreath by Elizabeth Scrdggs and Nancy Potter, their right was awarded.
    Their ground of claim to the other third is thus stated by the auditor:
    * * * “ The Messrs. Bell claim that the urgency of the children and devisees, or legatees, of Ann Miller, in the winter of 1866 and 1867, and in the spring of 1867, to have the land sold, and what they said in their letters on the subject, amounted to an authority to William Galbreath to sell the land, as their agent, and without any authority from the Orphans’ Court, for the purpose. They also claim that the acts of Nancy Herriott, the executrix of Ann Miller, after the sale to Andrews, and especially the acceptance of the $100 on the 3d of April 1867, and her receipt for it, declaring it to be on account of her share of proceeds of sale of land of the heirs of the late Samuel Galbreath, deceased, amounted to a ratification of the sale to Andrews; a ratification of it by her, as the executrix of her mother, and estopped the legatees or devisees of her mother from claiming anything, except what they are entitled to, out of the sale to Andrews. The Messrs. Bell claim that the Orphans’ Court sale was not made for the benefit of the devisee of Samuel Galbreath, deceased, but was only to perfect the title of them (the Bells) in the property ; that whether the property sold for much or little, at the Orphans’ Court sale, was nothing to those devisees or legatees; that their rights were fixed by the sale to Andrews, and that they can only participate in the proceeds of the sale to him.
    “ It is claimed, on behalf of the Messrs. Bell, that the will of Samuel Galbreath had the effect to convert the land into personal property, and that, therefore, the Statute of Frauds did not stand in the way of the children of Ann Miller, or of her executrix, authorizing William Galbreath, by parol, to turn the property into money, or ratifying, by parol, the sale, for that purpose, to Matthew Andrews.” * * *
    “ But it is claimed by the Bells that the children of Ann Miller are estopped from claiming any part of the proceeds of the last sale. It therefore becomes necessary to examine what the claim has to sustain it.

      “ Ann Miller’s children expressed a desire to have the property divided, saying they believed it would sell better if it was divided. At least, this is the language of Mrs. Herriott. They urged the executor to sell it, even if it went for less than he had been holding it at. But they did not say one word as to the mode in which he should sell it. They recognised the fact that, being the sur^ viving executor, he was the person to make the sale, and they urge him to make the sale. Is it not a fair, and even a violent presumption that they desired him to make it in the way in which the law required him to make it ? Can it be supposed for a moment that they intended he should make it in a way that would pass no title to the purchaser; in a way in which no prudent man would buy, and, consequently, in a way in which it could not fail to be sacrificed ?
    “ The auditor thinks there is nothing in the acts either of Nancy Herriott, or any other of Ann Miller’s children, before the sale to Andrews, as far as he has evidence of such acts, that amounts to an authority from them to the executor, to make the sale to Matthew Andrews in the way he made it; and he so finds.
    “ It is alleged that Nancy Herriott ratified the sale to Andrews, by making no objection to it, and by receiving the $100 in the way before stated. Cyrus K. Potter says he told Mrs. Herriott all about the sale, and explained it all to her, and she made no objection to it.
    “ It must be remembered that Mrs. Herriott was a stranger here. So far as we are informed, she was entirely ignorant as to the value of land in the neighborhood, or as to the value of this land, except as she was informed of it by William Galbreath and Cyrus K. Potter. She was not told, so far as we know, that just two months after Andrews bought it, he sold it at an advance of $1250. There is no proof that she was told the property was sold in a way not authorized by law; in a way that would not pass a good title to the purchaser, and consequently in a way in which it was not to be expected that it would bring a fair price. The trustee was her uncle, and Cyrus K. Potter was her cousin — men in whom she would naturally have confidence— and it is not strange that she took their word, and made no objection to the sale until afterwards, when she found what the true state of the case was. Besides, she was here, far away from her home, without money to take her back to where she lived, and dependent on the friendship and hospitality of those very persons. Under these circumstances, it is not to be wondered at that she did not express any dissatisfaction with the sale, even if she felt it. If she had been told that the sale was made without authority of law, that at such a sale no prudent man would buy at all, and that at it probably no man at all would buy and pay a full price for the property, is it not likely that she would have expressed dissatisfaction with the transaction, and refused to have anything to do with it ?
    “ Then as to the receipt of the $100 by Mrs. Iierriott, there is no direct proof — no proof at all, apart from the transaction itself — that it was received, and the receipt given for it, with a view to ratifying the sale to Andrews. There was no proof that she was told that if she received the money, and signed the receipt for it, in the way it was written, it would amount to a ratification of the sale; no proof that the subject of ratification was mentioned to-her at all, or that she had any knowledge that the sale needed ratification. She was a woman unaccustomed to do business, unacquainted with the legal effect of any act she did, or of any paper she signed, and, it seems to the auditor, ignorant of her rights in the premises. Under these circumstances, the auditor thinks that no ratification of the sale to Andrews can be implied from the acts of Mrs. Iierriott.”
    The'auditor, accordingly, after deducting some payments and the expenses of the audit, awarded to the Bells two-thirds of the balance, $2730.70, and to Nancy Iierriott, executrix of Ann Miller, one-third, $1365.35.
    The Bells excepted to the report, that the auditor did not award the whole sum to them.
    The Orphans’ Court confirmed the report, and decreed distribution accordingly.
    The Bells appealed to the Supreme Court and assigned the decree for error.

      C. Hasbrouck and R. Woods, for appellants.
    — The Act of March 12th 1800, § 3, Sm. Laws 434, Purd. 282, pl. 67, provides that when “ testators have devised their real estate to their executors, to be sold, or have directed their executors to sell and convey such real estate, or have directed, or may hereafter direct such real estate to be sold, without naming or declaring who shall sell the same, if one or more of such executors is or are since dead or shall hereafter die, it shall and may be lawful for the surviving executor or executors, to sell and convey such real estate, or manage the same, for the benefit of the persons interested therein, as fully and completely as he, she, or they, together with his, her, or their co-executor, or co-executors, would be empowered to do, if he, she, or they, were still living.” The Act of April 22d 1856, § 8, Pamph. L. 533, Purd. 277, pl. 25, provides that “ Nothing in any Act of Assembly contained, shall be taken or construed to repeal or impair the Act of the 12th March 1800. * * * And it shall be the duty of the register of wills, in granting letters of administration, with the will annexed, to take adequate security for the faithful accounting for the proceeds of any sales of real estate, the administrator may make,” &c. This act repeals the 12th section of the Act of February 24th 1834, § 12, Pamph. L. 75 ; Purd. 282, pl. 61, requiring the sales referred to in Act of 1800 to be made under the authority of the Orphans’ Court. By Act of March 14th 1850, § 2, Pamph. L. 195, Purd. 976, pl. 64, the powers of sale under a will may be executed by a private sale. The will of Samuel Galbreath worked a conversion of his lands, and his daughters took an interest in the proceeds only : Allison v. Wilson, 13 S. & R. 332; Miller v. Meetch, 8 Barr 417; Morris v. Brenizer, 2 Rawle 185 ; Allison v. Kurtz, 2 Watts 185; Silverthorn v. McKinster, 2 Jones 67; Horner’s Appeal, 6 P. F. Smith, 405.

      T. C. Lazear, for appellee.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— The reasons given by the learned auditor for the distribution made of the fund in this case are so satisfactory that we need do nothing more than notice a point made on the argument, which does not seem to have been made on the hearing before the auditor. The appellants’ counsel contend that the 8th section of the Act of 22d April 1856, Pamph. L. 533, repeals the 12th section of the Act of 24th February 1834, Pamph. L. 75, and that now, under the Act of 12th March 1800, 4 Dallas 593, in all cases where the testator has devised or directed his real estate to be sold, without naming or declaring who shall sell the same, the power may be exercised by the surviving executor, without the control and direction of the Orphans’ Court having jurisdiction of his accounts, with the same effect as it might have been exercised by such executor before the Act of 1834, and, therefore, that under the private sale made by the executor in this case a good equitable title to the land, which the testator directed to be sold, vested in the purchaser under whom the appellants claim. But we are of the opinion that the 12th section of the Act of 1834 was not intended to repeal or impair the Act of 1800, giving power to the surviving executors to sell and convey real estate when the direction and authority to sell are not given to any person by name or description, but merely to regulate the mode or form in which the power should be exercised. There is no inconsistency between the two acts, and it would be a strained construction of the Act of 1856 to hold that it was intended to repeal by implication the 12th section of the Act of 1834. If the legislature had intended its repeal, it would have been easy for them to have done it by apt words. Whatever, else may have been their purpose, it is clear' that they did not intend to repeal, by implication, so wholesome a provision of the statute.

If the direction to sell the land and divide the proceeds worked a conversion of the land into money, and vested the fee in the executor, leaving to the legatees only an interest in the proceeds, the executor had no power to sell the land at private sale; nor had he any power to sell the appellee’s interest. He was not her authorized agent to make the sale, and he did not profess to make it as her agent, or under any authority derived from her. He cpuld only make a valid sale of the land by applying to the Orphans’ Court and obtaining its order and direction. And as he failed to do this, the sale which he made vested in the purchaser no title to the share of the appellee’s mother, either in the land or its proceeds. If he had reported the sale to the court, and obtained an order confirming it, on due notice to all parties in interest, that might have cured the want of a previous ord'er and rendered the sale as valid and binding as if made under the order and direction of the court.

Decree confirmed, at the costs of the appellants.


source: Caselaw Access Project

author: by Williams, J.

license: Public Domain

text:
    Robinson et al. versus Myers.
    1. It is incumbent on a grantee to show that an alteration, beneficial to him, in a deed, was properly made.
    2. If it appear that the alteration is written with the same pen and ink as the body, the inference would be that it was made before the sealing and delivery; if otherwise such inference would not arise and other evidence would be required to explain it.
    3. The law does not presume that an interlineation in a deed is a forgery or made after execution; it is a question of fact for the jury, upon proof adduced by him who offers the deed.
    4. R. made, laid out, and numbered town lots,- and recorded the plot; amongst others were 269, 270, and 271. By deed referring to the plot, he conveyed 271 to M., as bounded on the east by an alley, and 269 to W., as bounded on the west by an alley; no alley appearing on the plot. On the application of J., who had become the owner of 269 and 271 and representing 270 as an alley, the Quarter Sessions vacated “said lot 270.” Held, that J. was not entitled to 270.
    5. The plot being referred to, was as much a part of the deed as if incorporated in it.
    6. M. and J. fenced 270 and used it as a yard; if it had been an alley, this was an extinguishment.
    7. If an alley, it was extinguished also by the proceedings in the Quarter Sessions.
    8. When a verdict is taken subject to a reserved question, it should be rendered in favor of the plaintiff.
    9. The facts upon which a reserved question arises should be found or agreed upon, and they and the question should be distinctly stated; the judgment to be pronounced should be specified as in a case stated.
    10. Paul v. Carver, 2 Casey 223, Cox v. Ereedley, 9 Id. 124, distinguished.

      November 4th and 5th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1869.
    This was an action of ejectment by William Robinson, Jr., against Joseph Myers for lot No. 270 -in the plaintiff’s extension of Allegheny City, called “Buena Vista.” The writ was issued July 20th 1867.
    The plaintiff having died after the commencement of the suit, John D. Robinson and others, his heirs and devisees were, on the 16th of April 1869, substituted as plaintiffs.
    The lot in controversy was part of a large tract granted by the Commonwealth to James Robinson, which descended to the plaintiff in 1810 as heir at law of James Robinson.
    In 1854 the plaintiff adopted a plan of lots, of which that in controversy is one, called “Buena Vista;” it was acknowledged July 19th, and recorded June 20th of the same year, in the recorder’s office of Allegheny county in “plan book,” &e.
    “ Buena Vista” contains altogether 289 lots.
    The accompanying diagram exhibits so much of the plan as is necessary for an understanding of the case.

      On the trial, April 16tk_1869, before Sterrett, P. J., the plaintiff having- given evidence of the foregoing facts, rested.

      The defendant offered in evidence the following deeds, viz.:—
    1. rWilliam -Robinson, Jr., to James Morgan, dated February 14tn 1857, for “lots 271 and 272 on William Robinson, Jr.’s plan, &c. * * Commencing at the corner of lot No. 273; thence northwardly ninety feet, to an alley; thence eastwardly forty feet; thence southwardly along an ■ alley, -ninety feet to Taylor Avenue.” * * The words “ along an alley” were manifestly interlined, and no note of the interlineation was made in the attestation clause or elsewhere on the deed.'
    2. William Robinson, Jr., to William C. Maholm, dated November 22d 1858, for “lots No. 268 and 269 on William Robinson, Jr.’s plan, &c., * * commencing at the distance of 404 feet east of Pasture Lane (the east corner of the lot 270); thence northwardly along a 20-feet alley ninety feet to an alley; thence easterly 40 feet; thence southwardly 90 feet to Taylor Avenue; thence westwardly along said avenue 40 feet, to the place of beginning.” In this deed it was originally written, “northwardly along an alley ninety feet;” this was changed by altering “ an” into “ a 20,” and interlining feet” before “ alley.” This’ alteration was manifest on the face of the deed, and was nowhere noted on it. Both deeds stated that the lots were part of “ Buena Vista,” and referred to the record of the plan. The alley mentioned in the deed is lot 270, as laid down in the plan.
    The plaintiffs objected to the Offer on account of the alterations and interlineations in the deeds.
    The court sustained the objection until the interlineations should be explained.
    The defendant then called John Ramsey, who testified as to the Morgan deed:—
    “I am a witness to this deed. It is written by me. I made the interlineation of the words “ along an alley.” I made the interlineation at the request of James .Morgan, after General Robinson had told me to leave alleys opposite the alleys in his plot. It was done after the deed was executed, and delivered to Morgan. I had no' authority to make the interlineations, except by his directing me to leave alleys opposite the alleys in his plan. I was acting as agent for General Robinson in selling the lots. The alteration was made very shortly after the deed was delivered to Morgan. I know that Mr. Morgan brought the deed back to me after he got it, and wanted me to make the interlineation. I told him it was no use. He insisted on it being done, and I made it.” v
    As to the Maholm deed: “ I wrote this deed also. I cannot say whether, the words “ a 20-feet,” interlined, are in my handwriting or not. The word ‘alley’is in my handwriting. Shortly after the alteration General Robinson countermanded his instruction to leave alleys opposite other alleys.”

      Arthur Hobson testified:**'*“ The words interlined “a 20-feet,” are in the handwriting of Mr. Ramsey. I was street commissioner at the time Taylor Avenue was paved opposite the lot in dispute, 'or alley. Mr. Morgan stated -to me that it was a private alley, and I .called on General Robinson to know if it was an alley or private property. He stated that he had no property there — that the alley was laid out for the purpose of those lots— Morgan’s lots. * * * In paving Taylor Avenue we put in curb along across the foot of what is claimed was an alley. Mr. Morgan desired me to do this. I then called on General Robinson, and he said the alley was for the benefit of .the Morgan property. Morgan stated to me that it was a private alley. He had the lot enclosed as part of his cattle yard. It was so enclosed at the time of the conversation between him and me.”
    Robert Ray testified: “Am acquainted with the handwriting of John Ramsey. Think the words “a 20-feet” are in his handwriting.”
    The court then admitted the deeds in evidence, and sealed a hill of exceptions for the plaintiffs.
    The defendant gave in evidence a deed dated September 21st 1865, from MaholnTto Morgan for lots Nos. 268 and 269, and deed dated December 7th 1866, from Morgan to defendant for lots Nos. 268, 269, 271 and 272.
    Also proceedings in the Court of Quarter Sessions of Allegheny county, showing a petition representing:—
    “That a private alley on lot 270, in Robinson’s extension of Buena Yista, in the Second Ward of the city of Allegheny, running from Taylor Avenue north, of the width of 20 feet, and of the depth of feet, between lots Nos. 269 and 271, in said plan of General William Robinson, Jr.-, has heretofore been granted by deed; that the ownership of said lots and of the soil over which the said alley is laid out is now in Joseph Myers, who is also the owner of all other lots having a right to use said alley ; that the same has never been opened and is useless to the community;” and praying “the court to close up and vacate the same,” &c.
    Also, the decree of the court, August 31st 1867 : “ That the said lot No. 270, in Robinson’s extension of Buena Yista, in the Second Ward of Allegheny City, running from Taylor Avenue north, of the width of 20 feet, between lots 269 and 271 of said plan, shall be and the same is hereby declared vacated.”
    The plaintiffs in rebuttal gave evidence that “ Mr. Myers used the lot as a part of his cattle-yard. There was an open shed on the line of Davis’s alley. Morgan fenced in the lots immediately after he bought; it has continued to he fenced in ever since; there was a shed built across the lot; the lot was never used as an alley.”

      The plaintiffs requested the court to charge: — -
    1. That under all the evidence in this cáse the plaintiffs are entitled to a verdict.
    2. That the evidence in respect to .the interlineations and alterations in the deeds from Robinson to Morgan and Maholm is not sufficient to show that they or any of them were made with the assent or authority of Robinson, and the'jury must reject said interlineations and alterations as unauthorized interpolations.
    ■ 3. That whether or not the defendant has a right of way over the ground in controversy is immaterial in, this action, as the existence of such easement would not prevent the plaintiffs recovering in'ejectment the land itself.
    4. That, if the defendant Myers ever had'any right of way over-the ground in controversy it arose on the principle of estoppel from the alleged recitals in Robinson’s deeds to Morgan and Maholm, and said deeds did not convey to the grantees therein, any title to the soil of said lot No. 270.
    5. That if the, jury believe from the evidence that the ground in controversy was never actually openedi as an alley, and has never been used as such, but that James Morgan, shortly after his purchase from Robinson, enclosed said ground as part of his cattle yard — -fencing said ground at both ends — that he subsequently erected and maintained a shed across said ground, and that the defendant continued so to keep said ground enclosed and fenced, -and maintained said shed across it, and this has been the constant use of said ground by Morgan and defendant — any right of way over said ground by .virtue of Robinson’s deeds must be regarded as extinguished or abandoned. >
    7. That the aforesaid decree of the Court of Quarter Sessions was inoperative to divest the title of William Robinson, Jr., to the ground in controversy.
    These points were all refused.
    After recapitulating the evidence the court further charged:
    [“We have admitted the deeds in evidence in connection with the testimony bearing upon the question of interlineation, and if you are satisfied from all the evidence on Jffie subject that these interlineations were in the deeds at the time they were respectively executed and delivered, or that they were made subsequently with' the knowledge and consent of the grantor — Glen. Robinson — we instruct you pro forma, that your verdict should be for the defendant.]"
    “ It is in evidence and not denied that the strip in controversy was never used as an alley — that shortly after the sale by Glen. Robinson the lots including the one in controversy were enclosed and used as a cattle-pen, and continue to be so used. The plaintiffs consider these facts material ■ to their right to recover. If you find in favor of the defendant, your verdict will be taken subject to the opinion of the court in banc as to the right of the plaintiffs to recover under the facts found and admitted, viz. : Whether under the deeds of G-en. Robinson to Morgan and Maholm — and the proceedings in the Court of Quarter Sessions, in connection with these facts, viz. : (that the alley was never accepted and used by the public, or used by private individuals as an alley, and shortly after the sale was enclosed and used in connection with other lots as a cattle-pen), the plaintiffs are entitled to recover in this action ?”
    The jury found for the defendant subject to the opinion of the court on the questions of law reserved. The court afterwards entered judgment on the verdict for the defendant.
    The plaintiffs took out a writ of error.
    They assigned for error :—
    1. The admission of the deeds in evidence.
    2-7. The refusal of their points.
    8. The part of the charge in brackets. '
    9. Entering judgment for the defendant.
    10. Not entering judgment for the plaintiff on the questions reserved.

      M. A. Woodward and M. W. Aeheson, for in error.
    The plan of “ Buena Vista” was part of the defendant’s title : Birmingham v. Anderson, 4 Wright 513, s. c. 12 Id. 253; it showed that 270 was a lot not an alley. The proof was that the alterations had not been made when the deed was executed, but-had been afterwards made without the grantor’s consent. The questions of whether the alterations were made before the execution of the deed or if afterwards with the grantor’s consent were submitted without evidence. But the utmost effect of the calls for an alley would be to give to the grantees a right of way over 270, by implication or on the principle of estoppel: O’Linda v. Lothrop, 21 Pick. 232; Washburn on Easements 169; Bellinger v. Burial Ground Society, 10 Barr 137.
    The soil under a highway passes, if at all, as parcel of the land; this is a question of intention to be ascertained from deseiptions, &c., in the deed: Angell on Highways, see. 314. Land will not pass as appertenant to land. Nothing could pass with lots but a perpetual easement over 270: Washburn on Easements 129. The soil notwithstanding may be recovered in ejectment: Cooper v. Smith, 9 S. & R. 26; the way being discontinued the lot was free from the encumbrance: Washburn on Easements 196; 3 Kent’s Com. 448, 450; Taylor v. Hampton, 4 McCord 96; Crain v. Toy, 16 Barb. R. 184; Coming v. Gould, 16 Wend. 540; Arnold v. Cornman, 14 Wright 361. The defendant’s title, if any, was extinguished by the proceedings in the Quarter Sessions.

      October 9th 1871,

      S. Schoyer, for defendant in error.
    Ramsay being a witness to the deed, might be contradicted by the party calling him: 1 Grreenlf. Ev., § 443. The jury might infer from the other evidence that he falsified when he said he did not know whether the alterations were in his writing, “ when every one in the court-room xcould have sworn by comparison” that it was his. An alteration in a deed is presumed to be legitimate: Simpson v. Stackhouse, 9 Barr 187; Jordan v. Stewart, 11 Harris 244; 1 Greenlf. Ev., § 564. The question of easement does not arise. When the lots adjoining the alley were conveyed in fee the purchasers took the soil to the middle of the alley: Paul v. Carver, 2 Casey 225; Ball v. Ball, 1 Philada. R. 87; Cox v. Freedly, 9 Casey 130. Streets laid out on a plot are not public until adopted by the public: McCall v. Davis, 6 P. F. Smith 431.
   The opinion of the court was delivered,

by Williams, J.

The first question presented by this record arises on the admission in evidence of the deeds to Morgan and Maholm, under which the defendant claims title to the lot in controversy.

When first offered, they were rejected on account of material alterations not noted in the attestation clause, which were apparent on their face. The subscribing witness was then called to account for the alterations, and instead of showing that the interlineation in the deed to Morgan was made before its execution and delivery, his testimony tended to prove that it was made afterwards, without the knowledge and consent of the grantor. He said: “lam a witness to this deed. It is written by me. I made the interlineation of the words ‘along an alley.’ I made the interlineation at the request of James Morgan after Greneral Robinson had told me to leave alleys opposite the alleys in his plot. It was done after the deed was .executed and delivered to Morgan. I had no authority to make the interlineation except by his directing me to leave alleys opposite the alleys in his plan. I'was acting as agent for Greneral Robinson in selling lots. The alteration was made very shortly after the cleed was delivered to Morgan. I know that Morgan brought the deed back to me after he got it, and wanted me to make the interlineation; I told him it was no use. He insisted on it being done, and I.made it.” If the interlineation apparent on the face of the deed rendered its appearance suspicious, the testimony nf the scrivener and subscribing witness entirely destroyed its character as an instrument of evidence, and it ought to have been rejected. But having been admitted, the jury should have been instructed in accordance with the plaintiff’s second point, that the evidence in respect to the interlineations was not sufficient to show that it was made with the assent or authority of the grantor, and the jury must reject it as an unauthorized interpolation. With respect to the interlineation in the deed to Maholm, the witness said: “ I wrote this deed also; I cannot say whether the words ‘ a twenty-feet,’ interlined are in my.handwriting or not. The word ‘alley’ is in my handwriting.” The defendant then, showed by the testimony of Arthur Hobson and Robert Ray, that they were acquainted with the handwriting of the witness, and that the words “ a twenty feet,” interlined in the deed, are in his handwriting, and he also showed by the testimony of Hobson-, that in 1858 or 1859, he called on General Robinson “ to know if the lot in dispute was an alley or private property, and that he stated that he had no property there; that it was laid out for the purpose of these lots, the Morgan iots.” It is not easy to see how this testimony relieved the deed from the suspicion that led to its rejection when first offered. It is true, that it tends to show that the interlineation is in the handwriting of the scrivener, but this must have been apparent on inspection of the deed, if, as stated in defendant’s paper-book. “ Everybody in the court-room would have sworn to it by comparison with the context.”

The declaration of Robinson that the alley was laid out for the purpose of the Morgan lots has little or no bearing on the question, whether the interlineation in the deed to Maholm was made before its execution and delivery or afterwards with his knowledge and consent. As it was beneficial to the defendant, the bur-then was on him of showing that it was properly made. If it appeared to be written with the same pen and ink as the body of the instrument, the natural inference would be that it was made before the sealing and delivery of the deed. But if it did not appear to be made with the same pen and ink, no such presumption would arisen and other evidence would be required to explain it. The original deed was not produced before us on the argument, and it was not shown by any evidence given on the trial whether the interlineation appeared to be written with the same pen and ink as the body of the deed or not, we cannot therefore say that the court erred in admitting it. Whatever may have once been the rule, the law does not now presume that an interlineation in a deed is a forgery, nor that it was made after the execution of the instrument, but leaves it as a question of fact to be determined by the jury. As was said in Jordan v. Stewart, 11 Harris 249, so long as any ground of suspicion is apparent on the face of the instrument, the law presumes nothing, but leaves the question as to the time when it was done to be ultimately found by the jury upon proof to be adduced by him who offers it in evidence.

'But a graver question is as to the effect of the deeds, if the interlineations were properly made as found by the jury. Did the deeds, as thus interlined, convey in fee simple the lot in question to the grantees under whom the defendants claim title ? They do not profess to convey any title to the lot, nor any right of way over it. The deed to Morgan conveys lots No. 271 and 272,. and the deed to Maholm, lots 268 and 269, and in express terms they convey nothing more. If they convey the right to the use of the lot as an alley, it is by way of estoppel, and not by express grant. The deed to Morgan describes the line between lot No. 271 and the lot in dispute, No. 270, as running “ along an alleyand the deed to Maholm describes the line between lots No. 269 and No. 270, the lot in controversy, as running along “a twenty-feet alley.” But on the recorded plan, which is referred to and recited in both deeds, no alley is laid down between lots 269 and 271, nor is there any alley adjoining either of these lots. The lot in dispute lies between them, and is laid down on the plan as lot No. 270. The plan being referred to in the deed, is as'much a material and essential part of the conveyance, and has the same force and effect, as if it were incorporated into the deed: Borough of Birmingham v. Anderson, 12 Wright 253; and it shows that the closing boundary line of these lots, as called for in the deeds, is a misdescription. Besides, it is admitted that no alley was ever opened or laid out upon or over the lot in dispute. Nor was it ever used as an alley, either by the public or by the owners of the adjoining lots. Shortly after the sale to Morgan, he enclosed it with lots No. 271 and 272, and used the whole enclosure as a cattle-pen down to the time of the trial* The defendant, as we have already said, is not entitled to the use of the lot as an alley by virtue of an express grant of it in either of the deeds. And it is very doubtful whether he is entitled to its use as an alley under the misdescription of the lots granted by the deeds: Commonwealth v. McDonald, 16 S. & R. 390. But be this as it may, if. the defendant is entitled to the use of the lot as an alley, he is only entitled to it on the principle of estoppel: O’Linda v. Lothrop, 21 Pick. 292. And if so, has he anything more than an easement in the lot or right of way over it ? Has he the title to the land in fee simple because the adjoining lots granted by the de.eds are described as bounded by “an alley” or a “twenty-feet alley ?” The court below so decided on the authority of Paul v. Carver, 2 Casey 223. The doctrine of that case is this: A conveyance of land bounded by the side.of the street gives the grantee a title to the centre of it, if the grantor had title to that extent and did not, expressly or by clear implication, reserve it, although the distances set forth in the deed bring the line only to the side of the street; and if such street be vacated, the grantee will have the right to extend his line to the middle of it: Cox v. Freedley, 9 Casey 124. But in this case there was no alley or street by which the lots were bounded. The recorded plan, which is to be taken as a part of the defendant’s title, shows that the ground in question is a lot, and not a street. And it is admitted that no alley was ever laid out over tbe lot, or ever used by the public or by private individuals. There is, then, no ground or reason for the application of the rule laid down in Paul v. Carver to this case. It would work injustice to the parties; and its establishment as a principle to govern such a case as this would be productive of mischief. The utmost interest, then, that the defendant could take under the deeds was an easement or the right to the use of the lot as an alley. But if the defendant had the right of way over the lot, his act in fencing it up and using it as a cattle-yard, was sufficient to extinguish it: 3 Kent’s Com. 449; Taylor v. Hampton, 4 McCord 96; Corning v. Gould, 16 Wend. 531. But if not extinguished by these acts, it was unquestionably extinguished by the decree of the Court of Quarter Sessions vacating, under the provisions of the Act of May 8th 1854, the private alley over the lot, if any such had been granted by the deeds of Robinson to Morgan and Maholm. The court below, therefore, erred in deciding the reserved question in favor of the defendant.

But in reversing the judgment we cannot direct it to be entered in favor’of the plaintiff, for the reason that the verdict is for the defendant. When a verdict is taken subject to the opinion of the court in banc upon 'questions of law reserved, it should be rendered in favor of the plaintiff; otherwise if the decision be for the plaintiff, no judgment can be entered in his favor. The facts upon which the questions arise should be found by the jury or agreed upon by the parties, and should be distinctly stated, as well as the questions raised upon them ; and the judgment to be pronounced upon their solution should also be specified, as in a case stated.

Judgment reversed, and a venire facias de novo awarded.


author: by Read, J.

text:
    Fleming’s Appeal.
    1. A. leased to F. an oil refinery till March 1st 1870, one-third of the net profits, “ after deducting all expenses, outlays and losses,” to be paid to A., F. “ to keep full and correct books of accounts of the business of said firm, and the results of the business are to be made out on the first day of January, 1868, and semi-annually thereafter, and distribution of the net profits, viz.: one-third to said A., and two-thirds to F., shall be made at such time as the parties hereto may determine.” Provision was made for erecting permanent fixtures, if the parties agreed to do so, A. to pay for them, either in cash, or •out of his one-third of the net profits, or secure it by a mortgage on the premises. Held, that the account was to be taken at the close of the lease, and not on January 1st 1868.
    2. Distribution was not to be made in January 1868, but when the parties might determine.
    3. A bill was filed for an account, the answer denied the obligation to .'.furnish an account, the case without replication was referred to a master to'state an account; immediately before the decree on the master’s report, a replication nunc pro tunc was filed by leave of the court. Held, that the want of a replication previously was cured.
    November 11th 1870.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the District Oourt of Allegheny county: In Equity: No. 204, to October and November Term 1869.
    On the 8th of March 1867, the Ardesco Oil Company entered into a written agreement with Joseph Fleming, Lemuel Wilcox, Jr., Alexander M. Byers, Alexander N-immicE and William K. Nimmiek, trading as Fleming & Co., by which the company leased their oil refinery, machinery, &e., to Fleming & Co. until the 1st of March 1870 — the lease, however, not to expire at that time unless by three months’ notice of one of the parties to the other, and for want of notice the lease was to continue for another year, so on from year to year, to be terminated only on like notice, Fleming & Co. to furnish material and men to operate the works. “ Fleming & Co. are to pay said Ardesco Oil Company the one-third of the net profits and gains arising from the business of the said Ardesco Oil Works, after deducting all expenses, outlays and losses. * * * To keep full and correct books of accounts of the business of said firm, and the results of the business are to be made out on the 1st day of January, A. D. 1868, and.semi-annually thereafter, and distribution of the net profits, viz.: one-third to said Ardesco Oil Company and two-thirds to Fleming & Co., shall be made at such time us the parties hereto may determine. ' Fleming & Co. are to have the sole, exclusive and entire «control and management of the business and of the said Ardesco Oil Works.”
    “ Fleming & Co. are to have the right and privilege to construct and place in position, on the said Ardesco Oil Works’ property, as a part of said worEs (the said Ardesco Oil Company desiring such improvements made), a large iron tank for crude oil, &c.; also three iron stills, &c.; and should stills and tank be made as aforesaid, the said Ardesco Oil Company hereby agree to pay to said Fleming & Co. the amount which the said tank and stills shall cost, including all expenses in constructing and placing the same in position, which said amount ’"may be paid in cash, or, if the said Ardesco Oil Company may desire, it may be deducted out of the one-third of the net profits payable to them; or the said Ardesco Oil Company will execute a mortgage on said Ardesco Oil Works’ property for the amount, payable on the 1st day of March, A. D. 1870. At the termination of this lease, or any renewal thereof, the Ardesco Oil Company are to purchase from Fleming & Co. all the barrels, chemicals, &c., that the said Fleming & Co. may have on hand at the works aforesaid, at the then market price,” &c.
    On the 18th of February 1868, the company filed a bill against Eleming & Co., setting forth the agreement, the entry of the defendants under the lease, and averring that the one-third of the net profits was in lieu of rent, and that the defendants were to render an account on the 1st of January 1868, and semi-annually thereafter, and that large profits had been made; that since the 1st of January 1868 the plaintiffs had demanded an account showing the net profits of the business; that the defendants had refused to comply with the request to furnish an account or to pay the plaintiffs one-third of the net profits; that the defendants furnished an account, but not such as the plaintiffs were entitled to, and did not exhibit' the condition of the business, to enable the plaintiffs to determine what was the condition of the business, so that they might determine what were the net profits, and that the account was incorrect.
    The prayer was for a decree for an account and payment by the defendants to plaintiffs of the one-third of the balance and for general relief.
    The defendants answered, denying that the articles provided for any payment in lieu of rent, or that they were to render an account on the 1st of January 1868, or semi-annually thereafter; shortly after January 1st 1868 they made out a correct account (“B.” made part of the pleadings) of the results of the business, believing that to be all they were ’ required to make; they declined to make any payment on account of the one-third of the net profits, because no provision was-made by the agreement for distribution of the net profits before March 1st 1870, the end of the term; that the distribution should be made only at such time as the parties should determine, and they had not determined on a time to make distribution; that both parties had declared their wish to have a tank and stills erected, as provided in the articles; the defendants had begun their erection; that the cost would be $30,000 or $40,000; the. plaintiffs had refused to pay for them otherwise than by their one-third of the profits, of which at the end' of the term there may be none; and had encumbered their property with a mortgage equal to or beyond its value, and had thus disabled themselves from securing the defendants for the cost by a mortgage on the works; that the account furnished was correct, and such as the defendants were bound to make.
    No replication was filed, and the case was set down for hearing on bill and answer. On the 8th of August 1868, the court, Hampton, P. J., referred the case “to Thomas Ewing, Esq., as master, to take - a general account of the business of the defendants in operating the Ardesco Oil Works, and of the net profits thereof to the 1st day of January 1868.”
    The master reported “ that the erection of a tank and stills was agreed on by the parties and a stone foundation laid; the iron for the work was on the ground, the cost being estimated at $30,000 ; when the defendants, learning that the company were about to mortgage their property for $100,000, and supposing this would endanger their security for the cost of the tanks, &c., requested Mr. O’Hara, the president of the company, ‘ either to secure, them for their outlays or give them some personal pledge for the repayment of the same, at the same time informing him of the probable cost of the improvement, and what they had heard relative to the mortgage of the Ardesco oil property. Mr. O’Hara replied, substantially, that the agreement gave him three ways of paying for the improvements, and that he 'elected to pay it from the profits of the business, and that he would give them no security, and would make no personal promise to pay it; and that if his share of the profits did not repay the outlay, it would be their loss.’ The mortgage was executed and recorded.
    “ The defendants then declined to proceed with the projected improvements, and removed the iron prepared for the tank, and afterwards sold it at cost to JByers & Go. — a firm identical with Fleming & Co., except that Mr. Wilcox is not a member.
    “ The foundation and stones hauled still remain a permanent fixture on the-premises, and the defendants, having paid the cost thereof, now claimed to recover it from the Ardesco Company as a debt due and unpaid.
    “ Can the charge be maintained at the present time?” * * *
    In the opinion of the master the facts do hot warrant the charge of these items at the present time against the Ardesco Company; but the expense was incurred in the reasonable prosecution of the business by Fleming & Co., under the contract, and should for the present be placed in the expense account awaiting the final result of the business.
    “ It would appear to be for the interest of all the parties to have these improvements completed. They are necessary to the successful management of the works; and if completed, the entire expense would be chargeable to the Ardesco Company, and be either paid in cash or deducted frorn its share of the profits.
    “ These items, amounting in all to the sum of $1192.42, are, in the schedules hereto attached, deducted from the Dr. side of the Ardesco Company’s account, a,s found on the books of Fleming & Co., and placed to Dr. side of expense account, to await future determination.” * * *
    The item of amounts paid for insurance was allowed by the master against the plaintiffs.
    The master further reported:—
    “ The defendants appear to have operated the works judiciously, economically and in good faith. Looking at the entire agreement, and taking into consideration all the facts of the case, the master is of the opinion that in law and equity the defendants are entitled to deduct from the earnings the interest they have paid, to ascertain the net gains and profits of the business, one-third of which is payable to plaintiff.” * * *
    May 8th 1871,
    He stated an account between the parties to January 1st 1868, showing a balance of net profits amounting to $22,560.04.
    The plaintiffs filed exceptions to the allowance by the master of the expense of insurance and of interest, and that the cost of the foundation for the tank, &c., was allowed in the expense account.
    The defendants excepted, averring that their account rendered under the pleadings was conclusive, and that the cost, of the foundation of the tank should be charged to the plaintiffs.
    September 24th 1869 the court sustained the plaintiffs’ exceptions, as above stated, dismissed the defendants’, and referred the account to the master, to be corrected according to this decree.
    The master accordingly reported, making the corrections and finding that the balance to the credit of profit and loss was $30,034.89.
    On the 25th of September the plaintiff, by permission of the court, filed a general replication, nunc pro tunc.

    On the 30th of September the court decreed that “ the defendants pay to the plaintiff the sum of $10,762.50, being the one-third part of the balance to credit of profit and loss, as. corrected by the master’s report, including interest from July 1st 1868, together with the costs,” &c.
    The defendants appealed to the Supreme Court, and assigned the decree for error.

      J. Veech, for appellants.

      H. Burgwin, for appellee.
   The opinion of the court was delivered,

by Read, J.

By articles of agreement, dated 8th March 1867, the Ardesco Oil Company leased to Joseph Fleming and others, partners under the firm of Fleming & Co., their oil refinery property, containing about eight acres, situate in McClure township, Allegheny county, until the 1st .of March 1870. The said Fleming & Co. were to operate the said works and to furnish and procure sufficient crude oil, men and material to run the said works to their full capacity, with the proviso, however, that they were not to be run unless the said Fleming & Co. shall deem it profitable to do so.

It was further agreed that the said Fleming & Co. were to pay said Ardesco Oil ..Company the one-third of the net profits and gains arising from the business of said Ardesco Oil Works after deducting all expenses, outlays and losses. “ 4. And the said Fleming & Co. agree to keep full and correct books of accounts of the business of the said firm, and the results of the business is to be made out on the 1st day of January A. D. 1868, and semiannually thereafter, and distribution of the net profits, viz.: one-third to said Ardesco Oil Company and two-thirds to Fleming & Co. shall be made at such time as the parties hereto may determine.”

Fleming & Co. were to have entire control and management of the business and works. A privilege was given to Fleming & Co. to construct a large iron tank for crude oil, which said company were to pay for in cash, or, if company desires it, it may be deducted out of their one-third of the net profits, or will execute a mortgage on said oil company’s property, payable on 1st March 1870.

At the termination of the lease, or any renewal thereof, said company were to purchase from Fleming k Co. all barrels, chemicals, &c., with a provision for a reference in case of disagreement, Fleming & Co. not to be responsible for any injury or damage to the work by fire or other accidents.

Then there is a provision for termination of lease on 1st March 1870, and for renewals thereof.

The bill was filed on 18th February 1868, and states since 1st January 1868 plaintiffs had demanded accounts of business and profits and payments, both of which were refused. 6th and 7th paragraphs admit that defendants .had furnished to plaintiffs a balance sheet or trial balance up to 1st January 1868, which is appended as exhibit B, but that it was not such an account as plaintiffs were entitled to, and was incorrect and untrue, and they pray the 'court to order a full and correct account of the business and profits up to 1st January 1868, and that defendants be decreed to pay plaintiffs one-third part of said net profits.

The answer denies that defendants were to render any other account than a statement of the “ results of the business” which they have done by furnishing a statement truly made up from their books, but have declined to pay Mr. O’Hara, as demanded, because there is no provision for any distribution or payment prior to the end of the term, and it is provided distribution shall be made at such time as the parties thereto may determine, and averring that no such determination has yet been made. After reciting the 7th paragraph of the lease, defendants aver that the parties, having agreed to erect an iron tank, and its erection begun, which would cost from $80,000 to '$40,000, plaintiff had mortgaged the property leased to its value and had refused to pay the expense otherwise than by his share of the profits, of which, at the end of the term,'there might be none. That “ Exhibit B” is a correct and true statement of the “ results of the business” up to January 1st 1868.

The want of a replication was cured by the subsequent order of the court, by which it was filed nunc pro tunc (2 Dan. Ch. Pr. 1st Am. ed. 1846, p. 971; 1 Dan. Pr., 4th ed., by Field and Dunn 776). On the 8th August 1868 the court referred it to Thomas Ewing, Esq., as master, to take a general account of the business of'the, defendants in operating the Ardesco Oil Works and of 'the net profits thereof to the 1st -day of January 1868. The master made a report, to which exceptions were filed by the plaintiff and also by the defendant. The 2d, 3d and 4th exceptions of the plaintiffs were sustained, and the exceptions of the defendants were dismissed, and the account was referred back to the master for correction, which was done in accordance with the decree of the court.

On the 30th September 1869 the court made a final decree, by which the defendants were ordered to pay to the plaintiff the sum of $10,762.50, being the one-third part of the balance to credit of profit and loss, including intérest from 1st July 1868, together with the costs of the cause.

It is perfectly clear, from the nature of the lease and its provisions, that the proper period for an account was at the close of the lease, and not on the 1st January 1868, and that the exhibit B was not an account, but the results of the business up to that period, and distribution was to be made at such time as the parties thereto may determine. No such determination was arrived at or made, and, of course, no distribution was to be made or was made, and, consequently, no money was due and payable by the defendants to the plaintiff.

The error on the part of the court was their assumption that on the 1st January 1868 the period of distribution and payment had arrived, and this error pervaded all their proceedings to the final decree, which was palpably wrong and must be reversed. The error commenced with the reference.to the master to take a general account. This makes it unnecessary to consider the errors assigned, but, as it may promote a settlement between the parties, we would say that, having read the master’s report, we believe him to be entirely correct in all .his decisions in relation to the tank, the insurance and interest; and for the reasons assigned by him,

Decree reversed.


author: by Thompson, C. J.

text:
    Irvin versus Bleakley.
    1. Irvin contracted to buy land from Bleakley, paid half the purchase-money down and was to pay the remainder in 60 days when the deed was to be delivered. The money was not paid or demanded, at the end of 60'days nor deed tendered. After that the time for performance became indefinite, but mutual and dependent whenever it should occur.
    , 2. Whichever party first desired to enforce performance was bound to regard his part of his contract as a condition precedent and perform or tender performance.

      3. Where the vendor proceeds on his legal title a tender is not necessary; but the conveyance will be provided for by a conditional verdict.
    4. A party in default has no right to insist upon rescission.
    5. A vendee cannot insist upon a rescission on the ground of encumbrances, when he owes unpaid purchase-money sufficient to discharge them.
    - 6. A vendor is not bound to remove encumbrances unless upon demand of the vendee for performance, and at the same tima showing a readiness to perform his part.
    November 11th and 12th 1870.
    Before Thompson, C. J., Agnew,1 Read, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 208, to October and November Term 1869. .
    This was an action.of assumpsit, brought May 20th 1868, by Samuel P. Irvin against James Bleakley.
    The plaintiff declared: 1. That on the 4th of February 1865, he, with one J. W. Murphy, purchased from the defendant several pieces of land in Yenango county, one containing 20 acres, adjoining out-lots of the borough of Franklin, one out-lot containing about 2 acres, another out-lot containing about 3 acres, out of which the defendant reserved seventy-five feet fronting on a public street to the back of the. lot; one containing one and a half acres, one containing about 3 acres, .and one containing about two acres, for the consideration of $40,000, of which the plaintiff had paid $20,000, and agreed to pay the remainder and accept a conveyance within sixty days from the date of the agreement, the defendant undertaking to make and tender a deed at that time, clear of all encumbrances, but the defendant had neglected to do so and the plaintiff had been injured and put to great expense— in the whole $25,000.
    2.. The defendant, in consideration of $20,000 paid by the plaintiff, promised to convey to him a good title to about 34 acres of land in Yenango county, within sixty days from the 4th of February 1865, and refused at that time to convey, and relinquished the contract, to plaintiff’s damage $25,000.
    The plaintiff declared also in the common counts:—
    A contract was made between the parties,, as set out in the declaration, and the plaintiff paid $20,000 on account of the purchase-money. He never paid or tendered the balance, nor did the defendant tender a deed. The defendant continued in possession of the premises. The plaintiff alleged that, the defendant having failed to make a deed according to the contract, having continued in possession, and having done other acts to the radical detriment of the property whilst in possession, he, the plaintiff, had the right to rescind and recover the purchase-money which he had paid.
    The case was tried June 9th 1869, before Kirkpatrick, J.
    The-plaintiff gave in evidence the agreement and his payment of $20,000. He alsj gave evidence that a water-pipe by authority of the Jamestown and Franklin Railroad company, in 1867 was laid across part of the land contracted to be sold, the defendant on application had refused to give the railroad company permission to lay the pipe, also that there was a large oil-tank erected by defendant on part of the property sold, also that a slaughter-house was erected by permission of the defendant on one of the lots sold; that there was an engine erected by defendant on one of the lots sold for the purpose of pumping oil into boats, requiring a frontage of one of the lots on the river of 60 or 80 feet. He gave evidence, that the defendant gave one McDowell privilege to quarry stone on.the land included in the contract, that the defendant wanted to make it profitable to get the stone out there, and told McDowell to get stone out there when he wanted them, he would not charge him, defendant only wanted a good quarry.
    There was in evidence a judgment entered in Venango county December 3d 1863, in favor of Venango County against Henry Dubbs, James Bleakley and others, in the sum of $30,000, conditioned for the faithful execution by Dubbs of his office as county treasurer, with a release of judgment January 18th 1865, by S. P. Calmont, attorney for the commissioners, and an entry March 29th 1866, signed by two of the commissioners, that the judgment was discharged, the condition having been complied with.
    Plaintiff gave in evidence two judgments entered in the Common Pleas of Venango county against the defendant and others, one November 28th 1867 for $1030.43, the other May 6th 1868 for $6320. There were a number of offers of evidence which were rejected by the court, but which it is not necessary to state specifically.
    The plaintiff having closed, the court, on motion of the defendant, directed a non-suit to be entered, which the court in banc refused to take off.
    This was assigned for error, on the removal of the case to the Supreme Court by the plaintiff.

      A. Blakely, and S. A. Purviance, for, plaintiff in error.
    The defendant by his conduct could not have a decree for specific performance, and the plaintiff therefore may disaffirm the contract and recover the purchase-money paid: Cooper v. Brown, 2 McLean 495; Bank of Columbia, v. Hagner, 1 Peters 455. An encumbrance is an objection to the title: Garnet v. Macon, 2 Brockenbrough 186. If the vendor does not complete the contract, the vendee may disaffirm and recover back the purchase-money : Feay v. De Camp, 15 S. & R. 230; Wilkinson v. Ferree, 12 Harris 192. The vendor must discharge encumbrances: Nicol v. Carr, 11 Casey 383; Erwin v. Myers, 10 Wright 106. The question whether the defendant had abandoned the contract should have been submitted to the jury, there being facts from which it might be inferred: Youst v. Martin, 3 S. & R. 429.

      February 9th 1871

      J. E. Kerr, and E. S. Golden, for defendant in error.
    The rescission must be perfect before suit: Peirsol v. Chapin, 8 Wright 12. The undertakings are dependent: Bank of Columbia v. Hagner, supra; Keeler v. Schmertz, 10 Wright 135. Performance may be waived by mutual acquiescence, and neither gains an advantage : Shaw v. The Turnpike, 3 Penna. R. 445; Youst v. Martin, 3 S. & R. 423; Power v. North, 15 Id. 12. When a party intends to rescind he must do so promptly on the breach: Lawrence v. Dale, 3 Johns. Ch. 22; Fry on Specific Performance, sect. 703; Ayers v Mitchell, 3 S. & M. 683; McKay v. Carrington, 1 McLean 50.
    “ Whichever party has the right to rescind, must do it within the time specified, if there be such time, otherwise within a reasonable time:” 2 Parsons on Contracts 677. Where there has been indulgence on both sides, one party cannot suddenly rescind without notice to the other: Forsyth v. N. A. Oil Co., 3 P. F. Smith 173; 3 Leading Cases in Equity 87; Wiswall v. McGowan, Hoffman’s Ch, 125-129; Dalzell v. Crawford, 1 Parsons’s Rep. 56; Tiernan v. Rowland, 3 Harris 429.
    A written contract for sale of land should not be abandoned by parol: Fuller v. Hubbard, 6 Cowen 1; Fry on Specific Perf., sects. 698, 699; 2 Parsons on Contr. 675, 679; Price v. Asherton, 1 Y. & C. 82.
    The delay is a question of time, merely, and this is never per se material, unaccompanied with change of circumstances or other facts rendering justice impossible: Pratt v. Law, 9 Cranch 456; Brashier v. Gratz, 6 Wheaton 528; Tiernan v. Rowland, Dalzell v. Crawford, supra; Smith v. Patton, 1 S. & R. 84; Baum v. Dubois, 7 Wright 260.
    When an encumbrance is removed before decree in a bill for rescission, filed by the vendee, the court refuses to rescind: Davidson v. Moss, 5 How. (Miss.) 673; Note to Adams’ Eq. 403; Innis v. Campbell, 1 Rawle 373; Townsend v. Champernown, 1 Y. & J. 449; Hampton v. Speckenagle, 9 S. & R. 212.
    When it is apparent that plaintiff could not pay the purchase-money, no tender is necessary: Cooper v. Brown, 2 McLean 500; Hampton v. Speckenagle, 9 S. & R. 212; Hebpauch v. Auld, 5 Cranch 252; Cooper v. Brown, 2 McLean 455.
   The opinion of the court was delivered,

by Thompson, C. J.

If essential elements, indispensible to a plaintiff’s right of recovery appear to be wanting in his case, when he has given his evidence, the court commits no error in granting a nonsuit, either on motion, or of its own accord. That is what was done in this case, and this, and the refusal to take it off, constitute the supposed error of the case.' We have very carefully examined the testimony given by the plaintiffs below, and have not been able to discover the error complained of. The plaintiffs were bound by their articles of agreement with the defendant below, to pay the balance of the purchase-money for the property, which is the subject of this dispute, “ in sixty days from the date of the articles (the 4th of February 1865), with interest on the whole amount from the 29th December 1864, or as soon thereafter as ' the deed and title-papers shall be perfected and tendered.” No money was paid or demanded at the end of the sixty days, nor was a deed tendered by the vendor. That period having passed, the time for performance by the parties became indefinite, but mutual and dependent whenever it should occur. In this category, whichever of the parties first desired to enforce performance was bound to regard his part of the contract as a condition precedent, and perform or- offer performance in order to enable him to proceed to enforce the contract: 1 Wright 135; 2 W. & S. 227; 1 Casey 354; 4 Id. 294; 3 W. & S. 300; 4 Id. 527.

The exception to this rule, if exception it be, is where the vendor proceeds on his legal title; there a tender is not necessary. But a conveyance will be provided for in the conditional verdict, if plaintiff recovers. The vendee must tender the unpaid purchase-money, as a general thing, whether he wishes to rescind or enforce the agreement. This results from the principle that a party himself in default, has no right to insist on rescission while in default: 2 Pars, on Con. 5th ed. 679. In the case in hand, the balance of the purchase-money, $20,000, was never paid or tendered by the plaintiffs at all, nor a deed demanded from the defendant, or notice of a determination to rescind the contract given for over three years after performance was by the articles of agreement to have taken place. In this condition of things and without reference to performance on their part, the plaintiffs brought this suit to rescind the contract, and recover back the purchase-money paid in hand, viz. $20,000.

The claim to rescind seems to be rested on acts of the defendant which the plaintiffs insist do, per se, amount to rescission. When the defendant sold, he retained possession of the premises, with the assent of the vendees, as we may infer from the fact that they made no demand of it at any time. Indeed, the law is, where the contract is silent on the subject of possession, the vendor retains it, until he has received his • purchase-money: Smith v. Patten, 1 S. & R. 84; Baum v. Dubois, 7 Wright 260. It is alleged that the acts of the defendant while thus in possession, so changed the property that it justified them in claiming a rescission of the contract. This is an idle claim, in view of the evidence given. The acts neither changed nor deteriorated the property in the least; besides, the plaintiffs made no objection to any of the uses now complained of. One was that defendant allowed a person to erect a rude slaughter-house on one of the lots; another was, in permitting a person to open a stone quarry upon another portion of the property, and haul away a few loads of stone from it, to compensate for opening; a third was, laying an oil pipe through one of the lots to an oil tank which defendant had erected on a piece of ground he had reserved in the sale; and a fourth, that the Jamestown and Franklin Railroad Company laid a water-pipe across a portion of one of the out lots embraced by the purchase. The company took the possession of this ground for this purpose under their charter, the defendant refusing to grant it, on the •ground that he had already sold the property. None of these matters in the least changed the property from any intended use by the plaintiffs, and if any in the least deteriorated, that could have been compensated in damages. All were temporary uses. There is less than nothing in these things as grounds of rescission. It is not as if the ground sold had been a small lot or piece of ground, in which case some of these things might have been a more serious encroachment; but the purchase was of a number of acres, but how' much I cannot state with precision. There is nothing in all this for which the learned court should be reversed.

We need say little of the alleged encumbrances. The first one, a judgment of the county of' Venango against Bleakley, and others, was entered on the bail bond of the treasurer of Venango county for $30,000. It was a cautionary judgment. It was both entered and released before the plaintiffs purchased, as to the defendant’s property. The release was by the attorney of the commissioners, and as they never objected, so far as the testimony goes, it must be presumed to have been authorized by them. The commissioners themselves discharged the judgment against all parties two years before suit was brought by the plaintiffs. There were two other judgments against the defendant and others, amounting to some six or seven thousand dollars, which the purchase-money in the hands of the plaintiffs would nearly three times over have satisfied. This was therefore no ground for a rescission; they had the means in their own hands to pay the judgments if the defendant did not satisfy them. He was not bound, however, to remove them unless he was put upon doing so by the demand of the plaintiffs of performance, and at the same time showing a readiness and willingness on their part to comply with their covenants. This they did not do. Why should the defendant have removed these liens in consideration of the plaintiffs, without knowing whether they were going to complete the contract on their part ? While they did nothing towards that end, their existence did not hurt them: Hampton v. Speckenagle, 9 S. & R. 212.

The exceptions to the admission and rejection of evidence are insufficiently presented according to our rules of court on the subject of assignments of error, and we are not therefore bound to discuss them. We have, however, considered them so far as to see that there is nothing to disturb the decision of the court in the ease, and therefore the judgment is Affirmed.


author: by Agnew, J.

text:
    McCullough versus The Commonwealth.
    1. In order to keep the peace, a constable may arrest, imprison, break open doors and the like.
    2. A constable may arrest for reasonable cause of suspicion alone.
    3. A jailer is bound to receive a person arrested by a constable for a breach of the peace in his presence»
    4. A constable is bound to present to the court all offences inquirable into by them.
    5. The return being made under a special oath at the time, is equivalent to an oath and charge before a magistrate.
    6. It is the duty of the Quarter Sessions to take notice of such return.
    7. The return of a constable against one for selling liquor to minors, &c., under the Act of May 8th 1854, although that act does not impose on him the duty of making the return, is sufficient to authorize the court to issue process for the offender and to direct the district attorney to send a bill to the grand jury.
    8. It is not necessary in such case, that the offender should have a hearing before a magistrate before sending a bill to the grand jury.
    9. A grand jury cannot indict without a previous prosecution before a magistrate; — except in offences of public notoriety, such as are within their own knowledge, as are given them in charge by the court, and. as are sent to them by the district attorney.
    10. Individuals cannot go before a grand jury and prefer charges. This is a breach of privilege on the part of the grand jury and highly improper in the volunteer.
    11. When a bill has been sent up by the district attorney, under the sanction of the court upon the return of aproper officer, the bill cannot be quashed except for matters apparent on the record.
    November 14th 1870.
    Before Thompson, C. J., Eead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Quarter Sessions of Washington county: of October and November Term, 1870, No. 104.
    On the 20th of February 1870, Andrew Neil, constable of Monongahela city, made return to the Court of Quarter Sessions of Peter McCullough, for keeping a tippling house, selling liquor on Sunday, to minors and men of intemperate habits. On the 21st the court issued a bench warrant, to which the sheriff returned that the defendant had given security for his appearance at the next term. On the 19th of May, the grand jury returned a bill of indictment charging the defendant with furnishing intoxicating drink to Hezekiah Cooper, a person of known intemperate habits, &e. On the 10th of May, before pleading the defendant moved to quash the indictment for the following reasons:—
    1. The said indictment is not based upon an accusation made before a committing magistrate, founded upon probable cause, and supported by oath or affirmation.
    2. The said indictment is not based upon a presentment by the grand jury made from the personal knowledge or observation of its members, or upon the testimony of witnesses who had been previously examined under oath, orally or in writing, by the court, and by the court sent before thorn.

      January 3d 1871,
    3. The offence charged in the said indictment, is not of such a nature as to require the extraordinary intervention of the court, ag that the grand jury, at the instance of the court, should be 'directed to proceed to its investigation.
    The court (Acheson, P. J.), on the same' day overruled the motion to quash, and the defendant pleaded, “not guilty.”
    Same day the jury found the defendant guilty. He thereupon moved in arrest of judgment for the same reasons as those assigned on the motion to quash, except the 3d, viz. “ That the offence charged in the said indictment is not of such a nature as to warrant the court, of its own motion, in directing its investigation by the grand jury, without a preliminary examination or a presentment.”
    The motion was overruled, and May 20th, the defendant was sentenced to pay a fine of $20 and suffer imprisonment for 10 days.
    The defendant obtained a writ of error,- and assigned for error, overruling the motions to quash and in arrest of judgment.

      D. F. Patterson (with whom was T. S. Baird), for plaintiffs in error
    cited: Acts of May 8th 1854, sect. 1, Pamph. L. 603, Purd. 666, pl. 31; March 31st 1856, sect. 33 et seq; Pamph. L. 207, Purd. 187 pl. 41; Updegraff v. Commonwealth, 6 S. & R. 5. On the 3d reason he cited 1 Chitty’s Crim. Law 162; 4 Bl. Comm. 301; 1 Bishop’s Crim. Prac. 731.
    There was no paper-book or oral argument for the Commonwealth.
   The opinion of the court wag delivered,

by Agnew, J.

At February sessions, 1870, Andrew Neil, a constable, in his quarterly return, under oath, and as a part of it, returned Peter McCullough for keeping a tippling-house contrary to law, and also for selling liquors on Sunday, to minors and to men of intemperate habits. On this return the court awarded process for Peter McCullough, upon which he was arrested, and gave bail for his appearance at the next term. At the following term the district attorney sent up a bill against him to the grand jury, for furnishing intoxicating drinks as a beverage to Hezekiah Cooper, a person of known intemperate habits, contrary to law. v&his bill was returned a true bill. It was founded upon the Act of 8th of May 1854, commonly called the “ Buckalew act,” one of the most beneficent laws on the statute book. Viewing the habitual drunkard as a poor captive to appetite, enthralled by a slavery too strong for reason and duty, it comes to his relief by striking down the hand that puts the cup to his lips, and puts it in the power of wife, children and relatives to stay the hand of the seller of strong drink, by a notice which exposes him to punishment, if the warning be disregarded.

The defendant moved to quash this indictment on the ground that it was not based upon an accusation made before a committing magistrate, founded on probable cause, and supported by oath; that it was not based upon a presentment of the grand jury made from the personal knowledge or observation of any of its members, or upon the testimony of witnesses sent before them by the court; and that the offence is not of that nature which required the extraordinary intervention of the court to order it to be investigated by the grand jury. The substance of all these exceptions is, in short, that the return of the proper constable, under oath, and made to the proper court, is not a sufficient ground to enable that court to direct, or to authorize the district attorney, exercising the powers of the former attorney-general, to send up a bill to the grand jury for the offences returned by the constable. The court refused the motion to quash, the defendant was convicted and sentenced under the indictment, and this certiorari is brought to reverse the proceeding. The ground of the motion to quash brings into view the office and" authority of the constable, and the powers of the court and district attorney. The office of constable is ancient, his duties important and powers large. His general duty is to keep the peace; and for this purpose he may arrest, imprison, break open doors, and the like: 1 Black Com. 356; 1 Chitty C. L. 20 to 25. A constable may justify an arrest for a reasonable cause of suspicion alone. Russell v. Shuster, 8 W. & S. 309. He may arrest for a breach of the peace in his presence, and deposit the prisoner in jail, and the jailer is bound to receive him: Commonwealth v. Deacon, 8 S. & R. 47. And what is more to our present purpose, he is bound to present to the term or last court all offences inquirable in those courts : 2 Hawk. P. L. C., chap. 10, sect. 34. Those are all common-law powers, and the last, that of making a return, is in the nature of an official information against the offenders; and, besides being made under a special oath at the time of the return, it is the equivalent of an oath and charge before a magistrate. In this state the Court of Quarter Sessions, which is a court of record, and has jurisdiction to try the offenders, takes the place of all other courts at common law for the trial of ordinary offences; the return to it is appropriate, and it becomes the duty of the court to take notice of the return.

In addition to these common-law duties many statutory duties have been imposed upon constables in this State. Under an old law, he was bound to search public-houses and places suspected of entertaining tipplers on Sunday, and to disperse them quietly. By numerous laws he was bound to make returns under oath of various offences, such as killing deer out of season, unlawful acts against the laws for preserving fish, the births of bastard children, tippling-houses kept without license, the want of index boards required by the road law, breaches of the peace at elections, wagers upon elections, and others which do not recur to my memory. In view of these important duties and authorities we cannot hold that the return of the constable was nugatory, because no special duty is imposed by the Act of 8th April 1854. On the contrary, we think it was a sufficient ground to authorize the court to issue process to bring in the offender, and to direct the district attorney to send up a bill to the grand jury. Nor do we think there was any want of power in the court to direct a bill, or in the district attorney to send up a bill for the offence so returned. It has never been thought that the 9th section of the 9th article of the .Constitution, commonly called the Bill of Rights, prohibits all modes of originating a criminal charge against offenders, except that by a prosecution before a committing magistrate. Had it been so thought, the court, the attorney-general, and the grand jury would have been stripped of powers universally conceded to them. In that event the court could give no offence in charge to the grand jury, the attorney-general could send up no bill, and the grand jury could make no presentment of their own knowledge, but all prosecutions would have to pass first through the hands of inferior magistrates; for in all the instances mentioned the defendant could not be heard by himself or his counsel, demand the nature or cause of accusation, or meet the witnesses face to face, until after the bill had been found by the grand jury.

In the Federal courts, .and in some of the states, it has been held that the grand jury alone may call witnesses and institute all prosecutions of their own motion, and without the agency of the district attorney: 1 Whart. C. L., ed. 1868, §§ 453 and 458. In this state the power of the grand jury is more restricted, and the better opinion is that they can act only upon and present offences of public notoriety, and such as are within their own knowledge; such as are given to them in charge by the court, and such as are sent up to them by the district attorney; and in no other cases can they indict without a previous prosecution before a magistrate, according to the terms of the Bill of Rights: 1 Wh. C. L., ed. 1868, § 458 and note. It has, therefore, been held not to be allowable for individuals to go before the grand jury with their witnesses and to prefer charges. Such conduct is looked upon as a breach of privilege on part of the grand jury, and as a highly improper act on part of such volunteers. Its effect is to deprive the accused of a responsible prosecutor, who can be made liable in costs, and also to respond in damages for a false and malicious prosecution. It is in violation of the act authorizing the defendant to refuse to plead until the name of a prosecutor be endorsed on the bill of indictment. The usual course, where a presentment is thus surreptitiously procured, and bill founded upon it, has been to quash the indictment on motion, and before plea pleaded. It is the only way to reach the wrong. But when the bill has been regularly sent up by the district attorney, under the sanction of the court, upon' the return of a proper officer, as in this case, the bill cannot be quashed unless for matters apparent on the face of the record. The court was, therefore, right in refusing to quash the indictment, and the sentence of the defendant is affirmed.