author: Sharswood, J.

text:
    Hannum versus West Chester.
    1. Davis owning a large tract of land on which was a mill, dam and race, granted to his son a part of it on which was the mill (the dam and race being on the part not granted), “ together also with the mill-dam and race on the several courses as they now run, and have heretofore been in use for the mills through the upper plantation, * * * and all the land now drowned and occupied by said dam and race, or that has been drowned by the same, with the full and uninterrupted right and use of all the water falling into the said dam and race, to be conveyed along the same,” &c. Held, that the land passed.
    2. The maxim “ Quoties in verbis nulla est ambiguitas, ibi nulla expositio contrd verba fienda est, applied.
    3. Although a strained interpretation may be admissible, where an absurdity would ensue, yet if the intention of the parties is not clear but in equilibrio, the words should receive their natural construction.
    January 16th 1872. '<
    Before Thompson, 0. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Chester county: No. 416, to January Term 1871.
    The proceedings in this case were instituted by Samuel Hannum against The Burgesses, &c., of the Borough of West Chester, to obtain compensation for the diversion of water from a stream passing through his plantation for the waterworks of the borough. The venire to the jury to assess the damages was issued December 10th 1866. The jury returned an assessment of damages from which the plaintiff appealed.
    The case was finally tried, March 7th 1871, before Pearson, P. J., of the 12th District.
    The only question decided in the Supreme Court arose upon the construction of the grant under which the plaintiff claimed.
    The plantation of the plaintiff was part of what originally was a much larger tract, on which were a “ fulling-mill,” dam and race; the original owner divided it, the portion on which the mill was located being one division, the portion on which were the dam and the principal part of the race being another ; the latter division is now the plaintiff’s plantation. The natural watercourse for some distance below the dam also passes through the plaintiffs’ land.
    The dam and race so divided the part of the land which was not granted with the mill and which was now the plantation of the plaintiff, as to cut off one part of it .from access to the other, and deprive that part entirely from the use of water; the dam and race being between the part thus cut off from water and the part, of the stream which passed through his land below the stream.
    The borough of West Chester constructed works at about the upper part of the dam for the purpose of diverting the water for use of the town ; they then purchased “ the fulling-mill” tract.
    The rights of the respective parties were as follows:—

      “ The plaintiff’s farm was part of a tract containing 353J acres, patented October 13th 1735, to David Davis.
    “By deed of the 14th June 1742, recited in the subsequent deeds, David Davis and wife, in consideration of natural love and affection to their son, Ellis Davis, &c., conveyed to him 106 acres of the same tract lying on its easternmost side and extending the whole breadth of the tract from north to south, with a fulling-mill thereon, and the race or watercourse thereunto belonging, and the bank to contain one perch in breadth. This deed does not refer to a dam.
    “ David Davis afterwards died intestate, seised of the remainder of tract, leaving eight children, Ellis Davis above named being one; in 1755, these children conveyed their undivided interests in this remainder to Ellis, who thus became the owner of the whole of the original tract.
    “ He died intestate, seised of the original tract, leaving nine children, viz.: Ellis Davis (the second), who was the eldest, George Davis and seven others. On the 15th of the Fifth month 1787, Ellis Davis (who under the intestate laws then existing, was entitled to two shares), with his wife conveyed to his brother, George Davis, another of the heirs, his share in the fulling-mill tract as containing 100 acres, ‘ together also with their two full equal undivided tenth parts of the mill-dam and race on the several courses as they now run, and have heretofore been in use for the mills through the upper plantation, late of Ellis Davis, deceased (of which said upper plantation with the appurtenances, the aforesaid Ellis Davis and Jane his wife, party to these presents, being seised in fee, to and in two full equal undivided tenth parts thereof), and all the land now drowned and occupied by said dam and race, or that has been drowned by the same, with the full and uninterrupted right and use of all the water falling into the said dam and race, to be conveyed along the same, a,nd privilege to dig on the banks to repair small breaches, to pass and repass with workmen, teams, carts or other carriages to haul stone, &c., to and from the said described tract, &c., to repair and cleanse the said dam and race, or either of them as occasion may require; likewise each and every of their several equal undivided one-tenth part of a certain water and watercourse running through the upper plantation used on the north side of the meadow, two days in every week for the use of the. said George Davis on the meadow of the hereby granted premises, the said George Davis, his heirs and assigns, being at a proportionable part of the expense of procuring and bringing the water through the plantation late of Ellis Haines, now John Wagner, as heretofore has been in use. Also, the full right of the said Ellis Davis, and Jane his wife, of and in a small spring of water and dam, heretofore in use on the south side of the meadow, issuing on and out of the said upper plantation, to be solely used by the said George Davis, for the benefit of the hereby granted premises, with the privilege to cleanse and repair said dam and watercourse as occasion may require. To have and to hold the said full, equal and undivided tenth part of and in the said described messuage, &c., and all other the hereditaments and premises hereby granted, or mentioned to be granted with the appurtenances, unto the said George Davis and his heirs, to the use of him, the said George Davis, his heirs and assigns for ever.
    “ On the 13th day of the Sixth month 1789, George Dunn and wife, &c., the other heirs of Ellis Davis (second), conveyed- their interest in the mill tract to George Davis, with the same clauses as to the dam, race, &c., as those above stated, except that as to the small spring and dam.
    “ On the 23d of May 1791, the heirs of Ellis Davis (first) conveyed 68 acres on the south side to Isaac Haines; and on the same day, the same heirs, including George Davis, who was then owner of the fulling-mill tract, conveyed the remainder (that now owned by Hannum, the plaintiff) to Ezra Hoopes, with the following exception: ‘ Except a privilege conveyed to the said George Davis, by the grantors to these presents, in their indenture to him, bearing date the 12th day of Sixth month, a. d. 1789, viz.: their rights to the mill-dam and race or watercourse, as they now run, and have heretofore been in use for the mill, and all the land now drowned and occupied by said dam and race, or that has usually been drowned by the same, with full and uninterrupted right and use of all the water falling into the said dam and race, to be conveyed along the same, -and privilege to dig on the banks to repair small breaches, to pass and repass with workmen, teams, carts and other carriages, to haul stone, &c., to and from the plantation of the said George Davis, to repair and cleanse said dam and race, or either of them as occasion may require, with the least damage possible, &c.’
    “Ezra Hoopes, by his will proved in 1811, devised this plantation to his sons Curtis Hoopes and Moses Hoopes; and in 1812 Moses Hoopes conveyed his interest to Curtis Hoopes.
    “ On the 13th of April 1853, Curtis Hoopes conveyed the tract to Samuel Hannum, the plaintiff in error, ‘ subject to the privilege granted by George Dunn and wife, and others, by their indenture, bearing date the 13th day of the Sixth month, A. d. 1789, of the right to the mill-dam and race, or watercourse as they now-run, and have heretofore been'in use for the mills, and all the land drowned or occupied by said dam and race, or that has usually been drowned by the same, with full and uninterrupted right,’ &e., as in the foregoing deeds.”
    The plaintiff’s 4th and 5th points with their answers are as follows:—

      4. The plaintiff, as owner of the adjacent land, being in the use and enjoyment of the water as it flowed through the race, and the bed of the stream, at the time of the diversion by the defendants and since, they are liable to him for damages of such diversion, without regard to the right to the water of the mill-owner below him.
    Answer : “ Such, we conceive, would be the law if the plaintiff owned the land over which the water flowed; as he neither owns the land, nor has any claim to the water, except on sufferance of the landowners, he is not entitled to recover damages as a tenant in fee of the premises. For our opinion on this point, see the general charge, as an answer in the negative to this point.”
    5. The use of the water by the plaintiff is evidence of license to him by the lower mill-owner, as against any at least but the lower owner, thus to use the water, and if the jury believe that the defendants have interrupted that right, they are liable to him in damages.
    Answer: “ The conveyances under which the plaintiff claims, show that he had no right to use the water in the mill-race and dam. There is no pretence that he owned the soil under either, but used the water on sufferance of the mill-owner, in whom the right to both was vested, and who could at any time exclude the plaintiff therefrom, at his pleasure. He is not such an owner of the premises as is contemplated by the statutes giving damages, but could be prevented at any time by the owners of the premises, from running his cattle into the race or dam. He has not gained any right by usage or prescription as his title, which fully admits that of the lower owner, commenced in 1853, and the defendant took possession of the premises in 1857, and has held the same ever since, until lately. There is not such a length of time since the acknowledgment of the adverse title, as will raise a presumption, or from which we can presume a grant.”
    The defendant’s 1st point and answer were:—
    1. Samuel Hannum, the plaintiff, under the deeds in evidence, has no right to the use of the water of Chester creek running or falling into the dam or race on his property, and therefore can maintain no action for its diversion.
    Answer: “ This point is true as to the dam and race. Mr. Hannum has no right to the soil under either, or the water flowing over the same. He has a right to the water in Chester creek below the mill-dam.”
    After referring to the several deeds, the court charged: * * *
    “ What is the effect of these several conveyances ? As we understand them, Hannum has no interest in, or right to the water in the dam or race, or the land under either. It is precisely the same as if the heirs of Davis had sold the strip of land out of their larger tract, and measured the same off by courses and distances, and conveyed it with the mill; it is equally certain and binding; the land is conveyed according to the location of the race to the dam, and the water-right also. The land under the dam is conveyed according to the spread thereof, to the utmost margin as it then stood. There is no right to raise the dam an inch higher, or spread the race an inch wider, and it is not pretended that there has ever been any change in either since they were first built and dug, though each has perhaps been repaired from time to time to prevent leakage. It is entirely unlike the sale of a mere water-right, where the vendor would have an undoubted right as owner of the underlying soil, to use any portion of the water not required by the vendee, and consequently would be injured by its abstraction for the use of the borough. In this case the owner of the mill, race and dam, would have an unrestricted right to place a fence along each side of his race, and around his whole dam or pool, and keep Hannum and his stock out from the water entirely, as much as he could the cattle of any stranger. If Hannum used either the dam or the race as a watering-place, it was not by right but by sufferance only. * * * We are therefore of the opinion that Mr. Hannum is not the owner of either the land or water within the intention of the statute under which this proceeding commenced, so far as regards either the race or dam, and it is to that the attention of the witnesses has been mainly directed.” * * *
    The verdict was for the plaintiff for $572.
    The plaintiff took a writ of error, and assigned amongst other errors the construction given by the court to the several deeds under which the plaintiff claimed his right.

      J. S. Futhey and P. F. Smith (with whom was Gr. F. Smith), for plaintiff in error.
    A liberal construction must be put upon the deed, ut res magis valeat quam pereat; words are subservient to the intention not the contrary, the purpose of construction being to find the meaning of the parties. Neither is too much regard to the natural and proper signification of words and sentences, to permit the simple intention of the parties from taking effect; words may be transposed contrary to their order to bring them to the intent of the parties: Shoenberger v. Lyon, 7 W. & S. 184, 192; 1 Sheppard’s Touchstone, 86, 87; 4 Cruise’s Digest, page 242, title Deed ch. 50, pl. 2, et in nota; 1 Burton on Real Prop. 164; Parkhurst v. Smith, Willes Rep. 327, especially at 332. So too words are to be interpreted according to the subject-matter : Co. Litt., 36 a; Sheppard’s Touchstone 87; Broom’s Maxims 241; Shurtz v. Thomas, 8 Barr 359; Thompson v. Gregory, 4 Johnson’s Rep. 81; Inhabitants of Worcester v. Green, 2 Pickering 425; Rogers v. Stoever, 12 Harris 186.
    Particular expressions are to be referred to the particular subject-matter, so that full and complete force may be'given to the whole: Sheppard 87.
    The meaning of the phrase is to be collected not from particular words, but from the context; not from particular parts, but from all the parts of the instrument together: Shoenberger v. Lyon, 7 W. & S. 184, 192. It matters not that the exception was of land in contemplation of law, if it was not of land in contemplation of the parties. There is no better way of construing an ancient deed, than by usage, for however general the words may be, it is to be construed by the manner in which the thing granted has always been used: Broom’s Maxims 300.

      W. B. Waddell and W. Darlington, for defendants in error.—
    Conjectural intentions are not to be set up in opposition to express words in a deed: Benson v. The Miners’ Bank, 8 Harris 370; Baker v. McDowell, 3 W. & S. 360; Caldwell v. Fulton, 7 Casey 475; Jackson v. Vermilyea, 6 Cowen 677.
   The opinion of the court was delivered, January 29th 1872, by

Sharswood, J.

There is really but one question which arises on this record, the answer to which disposes of all the errors assigned. That question is, what is the proper construction of the deed of Ellis Davis to George Davis dated May 15th 1787 ? All the subsequent deeds down to that to the plaintiff of April 13th 1853, are substantially the same. The deed in question grants to George Davis “ the mill-dam and race on the several courses as they now run * * * and all the land now drowned and occupied by said dam and race, or that has been drowned by the same with t£e full and uninterrupted right and use of all the water falling into the said dam and race.” The subsequent deed from Ellis Davis to Ezra Hoopes conveyed his tract, excepting that thus previously granted to George. It is true that it is called a privilege, but with a reference in terms to the former deed, and a statement under a videlioet, of what is thus excepted in the same words as before stated. The plaintiff in error maintains that the grant was only of the right to use the mill-dam and race for the purpose of the mill of the grantee; that that was all he needed, and that to put any other construction upon the grant would be unreasonable, for it would be to cut the farm of the grantors into two parts without any access from the one part to the other. But the established canon of construction is Quoties in verbis nulla est ambiguitas, ibinulla expositio contra verba fienda est. It has accordingly been well observed that although a somewhat strained interpretation of an instrument maybe admissible where an absurdity would otherwise ensue, yet if the intention of the parties is not clear and plain, but in equilibrio the words shall receive their more natural and proper construction: Broom’s Legal Maxims 553. Both the arguments based upon the word “ privilege,” and the fact that the description is under an “ una cum,” “ together with,” are met and answered by Caldwell v. Fulton, 7 Casey 475, where both these peculiarities existed. Nor is it clear that there is any such unreasonableness in the grant as contended for, for if there was no other way of getting from one part of the farm to the other or to a public road or outlet, but by crossing the race, a way of necessity would result, and as the grantee stipulated that he should have “ the full and uninterrupted right and use of all the water falling into the said dam and race, to be conveyed along the same,” how could he be perfectly secure in this right and use without interruption unless he was the owner of the land drowned or covered by the water ? We think, therefore, that the conclusion of the learned judge below upon the construction of these deeds was correct. . There is no other point which needs examination, and which is not fully met and answered in the charge and answers to the points. Whether the instructions on the subject of the damages were in the abstract right or wrong, is immaterial as apart from the use of the dam and race to which as we have seen the plaintiff had no right; there was no evidence of any past injury for which damages could have been claimed.

Judgment affirmed.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    McDevitt & Hays’s and Kitchenman’s Appeal.
    1. D. owned, land, in Philadelphia and Chester county. C. entered a judgment against him in Philadelphia, September 21st, which by transfer became a lien in Chester county, September 22d 1868. II. entered ajudgment in Philadelphia, December 26th 1868. M. recorded a mortgage in Chester county, December 9th 1869. K. entered a judgment in Philadelphia, December 15th 1869, which by transfer became a lien in Chester county, December 16th 1869. On the 9th of April 1870, C. assigned his judgment with its liens to H. On the 6th of June 1870, the sheriff sold D.’s land in Philadelphia for enough to pay C.’s judgment. On the 22d of October 1870, the sheriff sold D.’s land in Chester county for enough to pay O.’s judgment. The proceeds of the sale in Philadelphia being in the sheriff's hands, the proceeds in Chester county were called into court for distribution. Held, that they were properly awarded to C.’s judgment assigned to II.
    2. When a defendant’s property is sold under execution, and the proceeds paid to the sheriff, it is a discharge of the debtor to that amount.
    3. A sale of property and receipt by the sheriff are not, per se, satisfaction of any particular encumbrance, although its lien may be extinguished.
    4. A creditor having two funds subject to his encumbrance, may pass by the first, and come upon the second, dependent however upon the equities amongst the junior lien-creditors.
    5. -Benner b. Phillips, 9 W. & S. 20; McGinnis’s Appeal, 4 Harris 445, distinguished.
    January 16th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.

      Appeal from the decree of the Court of' Common Pleas of Chester county: In the distribution of the proceeds of the sheriff’s sale of the real estate of Edward Devlin, deceased: No 103, to July Term 1871.
    The defendant, Edward Devlin, owned real estate in Chester county, on which there was a mortgage in favor of Alexander Maybin for $1936.59, the lien of which dated from May 11th 1867. He owned real estate also in the city of Philadelphia.
    On the 21st of September 1868, judgment was entered against him in the District Court of Philadelphia, in favor of Claghorn, Herring & Co., for $3706.50. This judgment was certified to Chester county, and on the 22d of September became a lien on Devlin’s real estate there. On the 26th of December, H. L. Carson & Sons obtained a judgment in the District Court of Philadelphia against Devlin for $6000.
    On the 9th of December 1869, Hay & McDevitt recorded a mortgage in Chester county for $2000 in their favor against Devlin.
    On the 15th of December 1869, James Kitchenman obtained a judgment in the District Court of Philadelphia against Devlin for $6783.20. This judgment was certified to Chester county, and became a lien on Devlin’s real estate there December 16th 1869. There were other liens against Devlin in Chester county which do not bear upon the question of distribution.
    On the 9th of April 1870, Claghorn, Herring & Co., assigned their judgment's and liens, in both’Philadelphia and Chester county, to Carson & Sons.
    Under Kitchenman’s judgment Devlin’s property in Philadelphia was on the 6th of June 1870, sold by the sheriff for $4000; the proceeds remained in the sheriffs’ hands. The land of defendant in Chester county was sold under the Claghorn judgment (assigned to Carson), on the 27th of October 1870, for $5900 ; this money was paid into court.
    At the time of these sheriff’s sales, the liens against Devlin, both in Philadelphia and Chester county, interested in the distribution were as follows:
    1867. May 11th. Alexander Maybin, 1868. September 21st. Claghorn, Herring & Co., District Court of Philadelphia. <£ ££ 22d. Same transferred to Common Pleas of Chester county (assigned to Carson & Co.,)^ ££ December 26th. H. L. Carson & Sons, District Court of Philadelphia 1869 December 9th. Hay & McDevitt, mortgage in Chester County . . 2000.00 $1936.59 $3706.50 6000.00

      ► $6,783.20 1869 December 15th. James Kitchenman, District' Court of Philadelphia “ “ 16th. Same transferred to Common Pleas of Chester county .
    The distribution in Chester county was referred to Alfred P. Reid, Esq., as auditor.
    No question was raised before him as to the right of Maybin’s lien to be first paid out of the fund.
    Before the auditor in Chester county, Hay and McDevitt and Kitchenman claimed to be paid out of the fund there ; taking the ground that the judgment of Claghorn, Herring & Co. (assigned to Carson) had been satisfied by the previous sale of the defendant’s real estate in Philadelphia.
    The auditor, however, awarded the fund to Claghorn & Co.’s judgment assigned to Carson.
    Exceptions were filed to the auditor’s report and it was confirmed by the Court of Common Pleas. Butler, P. J.
    McDevitt & Hays and Kitchenman appealed to the Supreme Court and assigned the confirmation for error.

      A. S. Letchworth and Porter (with whom was P. P. Monaghan), for appellants.
    The principle that where the equities are equally balanced the legal course of execution is not disturbed, is not to be used to overthrow the equity of another person, and thus work injustice: Ziegler v. Long, 2 Watts 205. Subrogation of the surety will not be permitted to work injustice to the rights of others: Erb’s Appeal, 2 Penna. Rep. 296; McGinnis’s Appeal, 4 Harris 445; Chancellor Kent, 5 Johns. 546; Goswiler’s Estate, 3 Penna. Rep. 200. If neither party can invoke the equitable interference of the court, they are remitted to their legal rights; and the legal course of execution will not be disturbed : Miller v. Jacobs, 3 Watts 477. The execution in Philadelphia being several months prior to that in Chester county, fixed the rights of the claimants upon that fund, which could not be disturbed except by the application of the equitable principle above mentioned. The fund in Philadelphia is inore than sufficient to pay the Claghorn, Herring & Co. judgment, which is the first lien upon it. When the money goes into the hands of the sheriff, it is a payment of the amount for which it is sold, whether it ever reached the creditor or not. He must look to the application of the purchase-money: Benner v. Phillips, 9 W. & S. 20; The Penna. Bank v. Winger, 1 Rawle 295.

      J. Perdue and J. D. Rodney, for appellees..
    If a creditor has two funds, he shall not take his satisfaction out of that fund upon which another creditor has no lien: Lanoy v. Athol, 2 Atk. R. 445; Atty.-Gen. v. Tyndal, 2 Amb. 615; Aldrich v. Cooper, 8 Vesey 391; Cheeseborough v. Millard, 1 John. Ch. 412; Bank of Penn’a v. Winger, 1 Rawle 296; Ramsey’s Appeal, 2 Watts 228; Hasting’s Case, 10 Id. 303; Ziegler v. Long, 2 Id. 205; Del. & Hud. Coal Co.’s Appeal, 2 Wright 512.
   The opinion of the court was delivered, January 29th 1872, by

Agnew, J.

Primarily the decision of this case rests on the question whether the sale of the property of Edward Devlin in Philadelphia, under the judgment of James Kitchenman, was a satisfaction of the judgment of Claghorn, Herring & Co. Benner v. Phillips, 9 W. & S. 20, is cited by the appellants as an authority that a sale of land by the sheriff “ is a payment of the amount for which it is sold; whether it ever reached the pocket of the creditor or not. He must look to the application of the purchase-money.” This is certainly true as to the debtor, and that is the sense in which the language is to be understood. When the property of the defendant in the judgment, real or personal, is sold under execution, and the proceeds paid into the hands of the sheriff, it is a discharge of the debtor’s estate to that amount; but what creditor’s debt it will extinguish is a question to be settled only by the final distribution and appropriation. It is that alone which determines what creditor shall be thrown upon the fund, or shall suffer the loss if he passes it by. Universal practice and numerous authorities prove that the sale and receipt of the money by the sheriff'are not per se a satisfaction of any particular encumbrance, though the lien of it may be extinguished. Hence it has been held over and over again that a creditor having two funds subject to his encumbrance, may pass the first by and come in upon the second for payment; a thing he could not do were the fund first brought into 'distribution a satisfaction of his debt. Whether he will be permitted to do this, or, having done it, whether a junior encumbrance will be permitted to stand in his place by subrogation, will depend upon the equities among the lien-creditors which ought to prevail. The following cases abundantly support these positions : Bank of Pennsylvania v. Winger, 1 Rawle 295; Addams v. Hefferman, 9 Watts 529; Hastings’s Case, 10 Id. 303; Ziegler v. Long, 2 Id. 205; Konigmaker v. Brown, 2 Harris 269; City of Philadelphia v. Cooke, 6 Casey 56; Del. & Hud. Canal Co.’s Appeal, 2 Wright 512; Cummins’s Appeal, 9 W. & S. 73.

This brings us, therefore, to the question, what the equities of the parties are, and on this secondary consideration the decision must rest. As it regards the fund for distribution, it is conceded that the judgment of Claghorn, Herring & Co. is the first lien. It is also the first lien on the funds in Philadelphia county. The case stands thus : The judgment of Claghorn, Herring & Co. was entered first in Philadelphia on the 21st of September 1868, and in Chester county by exemplification filed September 22d 1868. Carson & Co. entered their judgment in Philadelphia on the 26th of December 1868. James Kitchenman, one of the appellants, entered his judgment in Philadelphia on the 15th of December 1869, a year after the entry of the Carson & Co. judgment. He tranferred it by exemplification to Chester county on the 16th of December 1869. The mortgage of Hay & McDevitt, the other appellants, was recorded in Chester county on the 9th day of December 1869, nearly a year also after the entry of the Carson & Co. judgment in Philadelphia. It is obvious, from this state of facts, that when Carson & Co.’s judgment was entered in Philadelphia the case stood thus: Claghorn, Herring & Co. had two funds to resort to — one in Philadelphia and the other in Chester county. Had a sale then taken place, there could have been no conflict of interests whatever. Carson & Co. having but a single fund to look to, could have compelled Claghorn, Herring & Co. to take their judgment out of the Chester county fund, and thus realized their own out of the Philadelphia fund, or could have been subrogated to Claghorn, Herring & Co., which would have been the same thing in effect-. Having this right in equity, it is clear that they had a right to accomplish the same result by their own act, and therefore could take an assignment of the judgment of Claghorn, Herring & Co., and take payment of it out of the fund in Chester county, and thus lift off the Philadelphia fund the encumbrance of the Claghorn, Herring & Co. judgment, and let themselves in upon that fund: Miller v. Jacobs, 3 Watts 477; Bank of Pennsylvania v. Winger, supra; Hasting’s Case, supra; Del. & Hud. Canal Co.’s Appeal, supra. Now, it is not 'to be doubted, that the recording of Hay & McDevitt’s mortgage, and the entry of Kitchenman’s judgment a year later, could not alter the status of the Carson & Co. judgment so as to compel them to suffer a loss, which they were not obliged to sustain when their judgment was obtained. Some of the cases already cited support this position, and it is obviously so in equity. On what principle of law or equity, therefore, can the appellants whose later encumbrances were subject to the prior rights of Carson & Co., ask us to deny their right as assignees of Claghorn, Herring & Co., to take the fund in question out of court? Had the assignment been obtained to frustrate equity and not to advance it, perhaps a different question might arise, but the facts here disclose no such question. McGinnis’s Appeal, 4 Harris 445, is not opposed to this conclusion. McGinnis failed to have himself subrogated to the judgments of McLanahan in Cumberland county, which took the fund from him in that county. Had he been subrogated in Cumberland county it is obvious that the judgments of Mc-Lanahan, which were first also in Franklin county, could be shown there to be satisfied only by the record in Cumberland county. But by the subrogation on the same record in Cumberland they would stand upon the record still open and unpaid in equity, and would therefore be entitled to take the fund in Franklin county, for McGinnis the equitable plaintiff by the subrogation.

But when McGinnis went into Franklin county, and there asked his Cumberland county judgment to be subrogated to McLanahan’s in Franklin county, he was met by the declaration that the court would not undertake to settle claims not within their jurisdiction, and his application failed. Whether this was a good reason it is unnecessary to say, or whether the doctrine of equity is correctly stated in the opinion is unimportant, as the case differs from this in the material fact mentioned. Here Carson & Co. go into Chester county with an actual assignment of Claghorn, Herring & Co.’s judgment, and their equity, as we have seen, is superior to that of either of the appellants.

The record of the judgment of Claghorn, Herring & Co. in Philadelphia affords no evidence of satisfaction there, and the equity of Carson & Co. as prior encumbrancers entitled them to call upon Claghorn, Herring & Co. to take their payment out of the Chester county fund.

Upon the whole case, finding no error in the distribution made by the Court of Common Pleas of Chester county, the decree is affirmed with costs to be paid by the appellants, and the record is ordered to be remitted to the court below for distribution according to the decree.


text:
    Longbine versus Piper.
    1. By the Act of April 26th 1850, § 4 (Ejectment), one who has acquired the plaintiff’s title after ejectment brought, may pursue the action to verdict and judgment; but is not bound to pursue the same ejectment.
    2. One so acquiring the title cannot oust the plaintiff on the record against his will.
    3. The Act of April 26th 1850, § 4, construed.
    January 18th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery county: Of January Term 1872, No. 154.
    On the 3d of April 1869 Charles A. Longbine brought an action of ejectment against Henry A. Piper for a grist-mill and tract of land. Arbitrators, under a compulsory rule, on the 8th of July 1869, awarded in favor of the plaintiff. The defendant appealed from the award July 19th.
    On the 27th of February 1871 John G. Johnson filed a petition in. the case, setting forth that on the 29th of March 1869 William W. Piper was seised of the real estate for which this action of ejectment was instituted, and the premises were then subject to the lien of a judgment for $1591, entered April 3d 1868, in favor of William Miller against said W. W. Piper; that on the said 29th of March W. W. Piper conveyed the premises to Charles A. Longbine ; that an execution was issued on Miller’s judgment against Piper; the premises sold by the sheriff to Johnson the petitioner, and the sheriff’s deed acknowledged December 12th 1870. The prayer of the petition was, that Johnson might be substituted as plaintiff in the ejectment in the place of Longbine.
    On the day the petition was presented, the court granted a rule to show cause why its prayer should not be granted; returnable March 3d 1871. The record does not show that Longbine had any notice of the petition or rule. The rule was argued March 10th, and on the 13th the court (Ross, J.) made it absolute.
    On the 16th of October 1871 B. M. Boyer, Esq., counsel of Longbine, moved the court to strike off the name of Johnson as plaintiff and reinstate Longbine, alleging as reason that Longbine had received no notice of Johnson’s petition, or the rule to show cause. The motion was overruled.
    Longbine took out a writ of error, and assigned for error, the substitution of Johnson’s name as plaintiff in place of his own.

      B. M. Boyer, for plaintiff in error,
    referred to Act of April 26th 1850, sect. 4, Pamph. L. 591, 1 Bright. Purd. 534, pi. 13, which enacts that “where the title of a plaintiff in ejectment to lands may have been changed by sale or assignment after action brought, the suit shall not be affected thereby; but the purchaser or assignee may prosecute said action, and the verdict and judgment in said action shall enure to him in the same manner that they would have enured to the said plaintiff if no sale or assignment had taken place ; and the purchaser of the real estate may be substituted on record by a motion in open court.” The plaintiff might recover notwithstanding his title had been ended: Mitchell v. Freedley, 10 Barr 198; Drexel v. Man, 2 Id. 271; McCulloch v. Cowher, 5 W. & S. 427.

      J. Gr. Johnson and J. Boyd, for defendant in error.
    The Act of 1850 is remedial: Dwarris on Statutes 73, and must be liberally construed, Id. 231; Dillon v. Dougherty, 2 Grant 100. Having obtained his title through a judicial sale, Johnson was entitled to be substituted: Alden v. Grove, 6 Harris 377.
   The opinion of the court was delivered, January 29th 1872, by

Agnew, J.

The true question in this case is not upon the right of John G. Johnston to be substituted as plaintiff in the action of ejectment under the provisions of the Act of 26th April 1850, in order to prevent the action from lapsing by a change of the plaintiff’s title ; but it is whether Mr. Johnston can claim this right of substitution against the plaintiff adversely, and contrary to his will. The Act of 1850 is undoubtedly remedial, and to enable one who has acquired the plaintiff’s title after ejectment brought, to pursue the action to verdict and judgment, and reap the fruits of the recovery. This it had been held before the passage of the act he could not do: McCulloch v. Cowher, 5 W. & S. 427. The words of the Act of 1850 are therefore not mandatory but permissive only. “ The writ shall not be affected thereby (to wit, by the change of title), but the purchaser or assignee may prosecute said action.” But he is not bound to prosecute the suit brought by the former owner; he may sue out his own writ to recover the premises, and for this may have good reasons. But when he asks to oust the plaintiff from his action and compel him to retire from his suit, a very different question arises. The plaintiff may have rights as he believes, which entitle him to prosecute his action to a termination for his own benefit. He may deny wholly the divestiture of title claimed by the person alleging himself to be the purchaser, and entitled to substitution. Eor instance, in the present case Longbine’s title was not sold at sheriff’s sale, but the title of W. W. Piper, his grantor. Now what is there to prevent Longbine from denying the effect of the sale as a transfer of his title ? He may be able to show that the land was not, at the time of sale to him, subject to the lien of the judgment, or that it had been released or discharged therefrom, or that he has some other defence good in equity or law. It is no answer to this to say the fact or facts alleged by him are not true, and this has been found by the court; for the effect of such a position is to deny to him his constitutional right of trial by jury, and to make the court alone the tribunal to determine the facts. The power to award an issue to determine the truth of his allegations does not mend the matter, for this power is discretionary.

By the 11th section of the 9th article of the Constitution, all courts shall be open, and every man for injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and'justice administered without sale, denial or delay. The remedy is parcel of the right; and laws, therefore, that so change the nature and extent of existing remedies, as materially to impair the right, area violation of the right: Green v. Biddle, 8 Wheat. 17; Bronson v. Kinzie, 1 Howard 317. Nor does the prosecution of the plaintiff’s action prevent the purchaser or assignee from bringing his own action and prosecuting it to verdict or judgment. He is, therefore, not denied his remedy. Now surely we are not to interpret the Act of 1850, so as to make it an instrument of injustice, and to enable a party claiming title adversely to the plaintiff in the action to supplant him nolens nolens. But it is said that the prosecution of the action' may be necessary to the rights of the purchaser to prevent injustice, such as the loss of his title by the running of the Statute of Limitations, and the plaintiff may collude with the defendant to let the bar of the statute be completed, or may discontinue, or suffer the action to fail intentionally. No such element is shown to exist in this case, and when a case shall arise possessing such a feature, doubtless the court may make such rules and orders in the case, by virtue 'of the equity of the Act of 1850, as will prevent the plaintiff from sacrificing the rights of the purchaser, and will enable the latter to take part in the trial, by furnishing the requisite evidence to prevent a failure of justice. In this case, though a rule to show cause was granted on the petition of Mr. Johnson, to be substituted, it does not appear by the record that notice of the petition or rule ivas given to Longbine, and it is asserted by the plaintiff that no notice was given to him. This is not denied in the paper-book of the defendant in error. Upon the whole case we think the court erred in making the substitution without the. assent of the plaintiff expressed or implied. The order of the court of March 13th 1871, making the rule on Johnson’s petition absolute, is therefore reversed, the substitution set aside, and Charles A. Longbine reinstated as the legal plaintiff in the record, and a procedendo awarded.


author: Per Curiam.

text:
    Patterson versus Delaware County.
    1 Patterson’s property was returned by the assessor as ‘ ‘ square of ground, factory and machinery,” the whole assessed as real estate, and a tax levied on the valuation for county purposes. Held, that under the Act of April 29th 1844, l 32, the machinery was properly taxed as real estate.
    2. Act of April 29th 1844, $ 32, construed, per Butler, P. J.
    January 18th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Delaware county: Of July Term 1871. No. 101.
    This was an amicable action and case stated, commenced December 2d 1870, between Robert Patterson plaintiff, and the County of Delaware defendant.
    The ease stated the following facts:—
    “ The plaintiff is the owner in fee of a certain lot of land in the city of Chester, in the county of Delaware, situate, &c., upon which is erected a cotton factory. The plaintiff owns and occupies said mill, and owns the machinery therein which is necessary for the purposes of his business in running said mill. The commissioners of the county of Delaware previously to the last triennial assessment in issuing their instructions to the several assessors in the county, embraced in said instructions the following order, viz.: — ‘ You will also take an account of the machinery in all woollen and cotton manufactories within your township as real estate when owned by the proprietor or owner of the building in which such machinery is located, and when owned by a tenant you will return the same for school purposes alone.’ Under these instructions the said property of the plaintiff was returned as follows : ‘ Square of ground, factory and machinery,’ and the whole' assessed as real estate at the sum of $33,000.
    “ The commissioners levied a tax for county purposes on the said total assessment, of three and one-half mills to the dollar, amounting to $115.50. Under a warrant issued by the commissioners, the collector of county tax for the year 1870 demanded of the plaintiff the whole amount of the tax, viz., the sum of $115.50. Payment of that part of the said sum of $115.50 which the plaintiff supposed would be the proper proportion of the machinery included in the said total assessment, was refused by the plaintiff. Thereupon the said collector made a distress on the personal property of the plaintiff, to wit, — certain bales of goods, and was about to advertise and sell the same for the payment of the said tax. His property being thus under distress the plaintiff paid the said tax, under protest, of which protest he notified the collector at the time of payment.

      “ It is submitted for the opinion of the court, whether the said machinery of the plaintiff was properly taxable for county purposes as a part of the said mill and real estate, and whether it should have been included in the said total assessment as aforesaid with the said land and factory. And if the said tax was improperly and unlawfully assessed, and levied by reason of the machinery being included in the assessment, then judgment shall be entered for the plaintiff; but if the court should be of opinion that said tax was not unlawfully and improperly assessed and levied, then judgment to be entered for the defendant.”
    The court entered judgment for the defendant, Butler, P. J., delivering the following opinion :—

      “ It is reasonably plain, we think, that the legislature intended to tax all real estate within its jurisdiction, except such as is expressly exempted.
    “ The 32d section of the Act of 1844 provides that: ‘ All real estate, to wit, houses, lots of grounds, ground-rents, mills and manufactories of all kinds, furnaces, forges, bloomeries, distilleries, sugar-houses, malt-houses, breweries, vineyards, fisheries, ferries, wharves, and all other real estate not exempt by law from taxation, shall be valued and assessed for all state and county purposes.’ Language more comprehensive could not have been employed. After designating real estate in general terms, an attempt is made to enumerate the several descriptions or kinds, apparently for greater certainty'; and then, as if fearful of having overlooked and omitted something that belongs to the class, general terms are again resorted to, that nothing may escape.
    “ And this act, it will be observed, differs in this respect from that of 1834 — the latter closing with the enumeration of certain kinds of real estate; and the enumeration, also, falling short of that contained in the Act of 1844. And this difference is significant. The legislature evidently intended by the subsequent act to embrace all real estate of every description.

    “ That the property taxed in the case before us is real estate is not, of course, doubted. But the plaintiff thinks this particular leind of real estate was not intended to be taxed. He argues that the enumeration of certain kinds in the act, as ‘ houses, lands, lots of ground, ground-rents, mills,’ &c., was to designate precisely what the legislature intended by the preceding terms ‘ all real estate,’and that everything not embraced in this enumeration is excluded. But this view seems to overlook the very important language, before referred to, which follows the enumeration: ‘ all other real estate.’

      “ But suppose we adopt the plaintiff’s view — that the operation of the Act of 1844 is to be confined to the several descriptions of real estate enumerated; what then ? Does not the property here taxed fall within the enumeration ? The machinery in a mill is as much a part of it as are the walls. As the Supreme Court has said in Gray v. Holdship, 17 S. & R. 413: ‘ the machinery, the wheels, stones, and even the bolting-cloths, are a part of the mill,’ and therefore a part of the real estate.
    “ The plaintiff admits this; but says the legislature did not use the term ‘ mill’ in this sense; that while such is the legal signification of the term, the popular meaning is otherwise; and that the legislature must be regarded as adopting the latter. But is the popular meaning otherwise ? When a man, of common intelligence and business experience, speaks of ‘ Mr. Patterson’s Mill,’ what does he mean ? The establishment in its completed condition — fitted for its proper use ? Or the bare walls ? (For there is no intermediate point; all between, from the engines to the spindles, is machinery.) He could hardly mean the latter; for tbe walls do not constitute a mill, and bear no more resemblance to it, than to a barn.
    “ To justify a departure from the legal signification of the term employed in the act, it should, at least, appear very distinctly that it has a different popular signification. In our judgment it does not so appear. And we need not, therefore, determine what would be the proper rule of construction if it did.
    “ Under the Mechanics’ Lien laws a question arose very similar to the one we are considering. The original act authorizing such liens, confined them to claims for work done and materials furnished about the erection of any ‘ house or other building.’ It was, therefore, contended that the engine in a saw-mill, the copper kettles and boiler in a brew-house, and the machinery in a manufactory, are not a part of the £ building’ — not so understood in common parlance — (and with greater reason, we think, than it is now contended that the machinery of a mill is not a part of a mill), and, therefore, that no lien could be filed by those who furnished these things, or did work upon them. But the Supreme Court decided otherwise; holding that everything necessary to perfect the establishment (mill, manufactory, &c.), and fit it for the uses designed, is a part of it, and falls, therefore, within the term £ building Gray v. Holdship, 17 S. & R. 413; Wademan v. Thorp, 5 Watts 115; Morgan v. Arthurs & Co., 3 Watts 140.
    “ But it is urged that such a construction of the statute before us would produce inequality; that machinery would be taxed in one man’s h.ands and not in another’s, and that, therefore, the legislature cannot have intended it. Many of our tax laws, however, operate unequally; and it is difficult, if not impossible, to avoid it. As the Supreme Court has said in Philada. Saving Fund v. Yard, 9 Barr 359, some property is twice taxed — as in cases of ground-rents (the ground and also the rent issuing out of it being taxed); and land purchased on credit (the land and the money borrowed, or mortgage given, to pay for it, both being assessed). One man owning $50,000 invests it on real estate, at interest, and pays no tax; another owning but $1000, invests it in real estate, and he is taxed. Two men invest their means in lumber; as such it is not taxable. But one of them annexes his to his freehold — and it matters not how; he need not change its form, bore a hole or drive a nail — and immediately it becomes real estate, and liable to taxation: while the other may employ his about his business, hire it, erect it into buildings as a tenant, or use it in any way he sees fit (so that he do not annex it to his freehold), and it will remain personal, and exempt. And these latter instances are very similar to the case before us. While the property —the money and lumber — retains its original character it is exempt; when converted into real estate it is taxed. And while the plaintiff's machinery retained its original character of personalty it was exempt; when annexed to the freehold, and thus converted into real estate, it is taxed. It might have gone into the mill as the property of a tenant; of one from whom it was hired; or of the owner of the mill, for some temporary purpose; and it would have remained personalty and exempt. But when placed there by the owner of the mill for the common purposes of the establishment and with a view to permanency, it at once became real estate; its individuality and distinctive character were lost. Under every species of conveyance it will pass as a part of the mill. And the owner can with no more reason complain of the increase of his assessment on this account, than he could have done of the increase which occurred when he put his money into the land on which the building stands, or his lumber into the building itself.
    “ As further evidence that the legislature did not intend such a construction, we are pointed to the special Act of 1850, directing machinery to be assessed in Delaware county for school purposes; which act it is said was unnecessary if machinery was before taxed as real estate. We do not think there is much in this. It matters very little how the legislature of 1850 understood the Act of 1844. The Digest contains ample proof that the legislature not unfrequently acts in ignorance of the existing law. And we all know how much consideration is given to special acts, such as that of 1850. As it is said by the Governor in his last message: ‘Special bills are usually drawn by the member having them in charge, or by some one interested. By what is called courtesy it is considered a breach of etiquette for any other member to interfere with such bills. The result is that they are passed as originally prepared without examination,’ either as to the necessity or propriety of the legislation proposed. Still there was something for the Act of 1850 to operate upon without adopting the plaintiff’s view of that of 1844. There is machinery in Delaware county, and doubtless a large amount, in the possession of tenants and others, not taxable as real estate. And it is quite probable that it was such machinery that the Act of 1850 was intended to cover. Its terms are general, but they cannot properly be regarded as embracing machinery which has lost its distinctive character by being converted into real estate.
    “ What would be the result of adopting the plaintiff’s position ? If what he denominates machinery is to be cast out in the assessment of mills, what is to be included ? Simply the bare walls ? That would hardly be claimed. But where else could we draw the line ? According to the old rule by which it was sought to distinguish between real and personal property — physical annexation? That has been found impracticable, no rule at all, and has, therefore, long since been abandoned. Ch. J. Gibson, in Voorhis v. Freeman, 2 W. & S. 116, says: ‘ The criterion of physical annexation is so limited in its range and so productive of contradictions, even in regard to fixtures in dwelling-houses, to which it was adopted before England had become a manufacturing country, that it will answer for nothing else. The courts will be drawn away from it by its narrowness and want of adaptation to the business and improvements of the age. From the force of habit they have adhered to it after it has ceased to be a guide; for nothing but a passive regard for old notions could have led them to treat machinery as personal property when it was palpably an integrant part of a manufactory or mill, merely because it might be unscrewed or unstrapped, taken to pieces and removed, without injury to the building. It would be difficult to point out any kind of machinery, however complete in its character, or by what means held in its place, which might not with care and trouble be taken to pieces and removed in the same way; and the greater or less facility with which it might be done would be too vague a thing to serve as a test. It would allow the stones, hoppers, meal-chests, and running gear of a grist-mill, and the hammers and bellows of a forge, and parts of other buildings used for manufacturing purposes, to be put into the class of personal property. If physical annexation is the criterion the slightest taelc or ligament should constitute it, else if we get away from it ever so little, we shall have no criterion at all. There are so many fashions, methods and means of it, and so many degrees of connection between material substances that there is nothing about which men would more readily disagree than whether a thing held by a band or cleat was permanently annexed.’ And thus was the rule of physical annexation (as is said in Meigs’s Appeal, 12 P. F. Smith 28) exploded and abandoned.
    “ Now did the legislature intend that the assessors should go back and attempt an application of this abandoned rule, which the courts had found to be, and had pronounced, impossible of application ? We presume not. And if not (and the machinery is to be excluded, as the plaintiff urges), it must have intended that the assessors should confine themselves to the bare walls. There is no middle ground; for, as already observed, from the engines and wheels up to the smallest necessary article, all must be pronounced machinery, if any part is. There is no other place — no point between the walls and the complete equipped mill (as painful experience has demonstrated), at which a line can be drawn designating where the mill ends and the machinery commences.

    “ That the assessors were not intended to stop at the walls is clear. And that there is no point between the walls and the .completed establishment at which they can stop is to us equally ■clear.
    “We cannot, therefore, adopt the views of the able counsel who represent the plaintiff, whether we consider the general terms used in the act, or the special terms on which they rely.”
    The plaintiff took out a writ of error, alleging the entering of the judgment for error.

      J. B. Hinhson and C. Guillou, for plaintiff in error,
    referred to Act April 29th 1844, § 32, Pamph. L. 49T, 2 Br. Purd. 1380, pi. 147. Tax laws are to be construed strictly and not held to include anything not usually designated by them: Spangler v. York Co., 1 Harris 326; Deitz v. Beard, 2 Watts 172. Specific subjects being enumerated, general expressions are weakened: Sharpless v. Philadelphia, 9 Harris 147. Machinery put into a mill by a lessee is personalty: Lemaa v. Miles, 4 Watts 330; Hill v. Sewald, 3 P. F. Smith 271. It may be converted into personalty by agreement between the owner and his vendee: Harlan v. Harlan, 8 Harris 303.
    G. E. Darlington and W. Darlington, for defendant in error,
    were stopped by the court.
   Judgment was entered, February 19th 1872.

Per Curiam.

No elaboration is necessary to prove that the learned judge below was right in his conclusions in this case. We affirm the judgment, therefore, for the reasons so well given by him on the point in controversy.


author: Thompson, C. J.

text:
    Hewes versus Taylor.
    1. Hewes, by letter of 10th, proposed to Taylor to give him goods if he would guaranty payment for goods to be sold to another, and asked where the goods to Taylor should be shipped. Taylor, by letter dated 9th, wrote: “ I received yours yesterday,” and told him where to ship the goods. Held, in a suit against Taylor on a guaranty, that Hewes might prove that the letter dated 9th was in answer to his of 10th.
    2. Dnder the Act of 2Gth April 1855 (Frauds), the date of a writing, whether omitted or inaccurately inserted, may be proved by parol.
    January 19th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Chester county: No. 249, to January Term 1872.
    This was an action of assumpsit by Charles P. Hewes against Elisha B. Taylor.
    The plaintiff, residing in Chester county, Penna., had been selling phosphate of lime to the firm of Ridgway & Miers residing at Crosswicks, N. J. They were in his debt and desired more phosphate; being unwilling to give them further credit, the defendant as the plaintiff alleged, in consideration of a ton of phosphate delivered to him by the plaintiff, agreed to become responsible for the payment of phosphate sent to Ridgway & Miers. The plaintiff accordingly sent them more phosphate, the amount due by them and unpaid being $622.78.
    The plaintiff gave in evidence the following letters:—
    West Chester, September 9th 1871.
    Elisha B. Taylor:
    Respected Friend: — I have an order from Ridgway & Miers for thirty tons of phosphate. They have already about six hundred dollars ($600) worth, — most of it sold I suppose. The agreement between Ridgway & Miers and myself is that they are to sell my phosphate on commission, and after all or any part of what I send them is sold, they are to give me their note for the amount sold payable in sixty days with your endorsement.
    Now, as this will be a larger amount than they have previously had, I don’t feel willing to ship it without first consulting you and knowing whether you will hold yourself responsible to me for the amount of, say two thousand dollars, if I send them that amount of phosphate, as I know nothing about Mr. Ridgway or his partner, or at least very little. Please write an answer by bearer.
    Yours truly, C. P. Hewes.
    West Chester, September 10th 1869.
    Elisha B. Taylor:
    Respected friend: — I wrote to you yesterday by N. T. Hayes in regard to sending Ridgway & Miers phosphate and you going their security. N. T. Hayes tells me you will go their security to me for the amount of two thousand dollars for the compensation of one ton of phosphate. This is a pretty heavy shave, but as it may turn out to Ridgway & Miers’s benefit as well as my own, I will agree to send you the one ton of phosphate as you propose. Please send me word when and where you want it shipped, you to pay freight.
    Please answer by return of mail.
    Yours, &c., C. P. Hewes.
    Doe Run, September 9th 1869.
    C. P. Hewes:
    Sir: I received yours yesterday. Please send one-half ton of phosphate to Samuel Evans, Westdale Station, Delaware county. The other half-ton I will send for or order when I want it.
    Yours respectfully, E. B. Taylor.
    The plaintiff testified: * * *
    “ I wrote to Mr. Taylor September 9th 1869, and received a verbal message in reply. In consequence of that message I wrote next day, dated September 10th 1869. To that letter I received his reply, dated September 9th 1869. September'15th 1869, I shipped the 30 tons to Ridgway & Meirs. I wrote the letter dated September 9th on the day of its date. I sent it by .private messenger. He brought it back with a message from Taylor. I sent the letter of September 9th, by Nathan T. Hayes. Mr. Taylor’s letter of September 9th came subsequently to mine of September 10th and in answer to it. There was an envelope on it at that time. I believe the envelope was post-marked Doe Run, September 9th. My letter dated September 10th was sent to Mr. Taylor that day. I wrote no other letters to him about that time. I don’t remember sending to him more than once.”
    The defendant’s point was :—
    There is no evidence of a guaranty or promise on the part of defendant to pay the debt of Ridgway & Miers, and under the Statute of Frauds of 1855, the plaintiff cannot recover.
    The court (Butler, P. J.) charged the jury that if they found that Mr. Taylor’s letter of September 9th was written in answer to Mr. Hewes’s letter of September 10th, they should find a verdict for the plaintiff, and reserved the point submitted by the defendant.
    The jury found for the plaintiff for $723.63.
    The court subsequently entered judgment for the defendant, notwithstanding the verdict, and delivered the following opinion :—
    “ This is an action to charge the defendant upon a special promise to answer the debt or default of another. On the trial the defendant made the point that no agreement in writing was shown signed by him, as required by the Act of April 26th 1855. This point was reserved-r — the jury being instructed by consent of the parties to find a verdict for the plaintiff for $723.63, if they should first find that the defendant’s letter of September 9th was written in answer to the plaintiff’s of September 10th. And coming now to consider the point, we are clearly of opinion that judgment must be entered for the defendant. What will constitute such writing as is required by the statute, has been much discussed in the English cases, and a good deal in those of our own country; but the time afforded us at present will not admit of a reference to them. That it may be found in a connected correspondence there is no room for doubt. As is said by Mr. Parsons (Parsons on Contracts, p. 298), it may be contained in one or in many papers, provided where there are several the pieces be so connected by mutual reference or otherwise, that there can be no uncertainty when taken together and -viewed as a whole. But this connection of the several parts cannot be made out by extrinsic evidence. If they may be read»apart, or in other connections, evidence is not admissible to prove that they were intended to be read together.
    “ In the case before us the only writing is what is contained in the correspondence. And the plaintiff must rely entirely upon his letter of September 10th and the defendant’s of September 9th. If the dates agreed, these letters-would still not support the action. The plaintiff infers assent to his written statement from the defendant’s order for phosphate. And if the dates corresponded, this inference would' have the support of probability. But it is by no means certain, and the lack of certainty would be fatal. But the dates do not correspond. The defendant’s letter appears to have been written and mailed on the 9th, one day
      earlier than the plaintiff’s; and purports to be an answer to one received on the 8th. It is impossible, therefore, to read it as an answer to the plaintiff’s of the 10th, and we cannot, as we have seen, resort to extrinsic evidence to explain this away and make the letters fit. Upon their face they show no agreement, and it would be as dangerous to resort to parol evidence to make an agreement out of them, as to prove an agreement by such evidence without them. Indeed, unless we change the dates and make the letters speak as of a different time, and then conclude that the defendant’s of the 9th was an answer to the plaintiff’s of the 10th, it does not appear even that the plaintiff’s was ever brought to the defendant’s knowledge. I believe the plaintiff says he forwarded it by mail. But while this affords evidence from which a jury might, probably, find that it was received, the law draws no such conclusion from it in this state, however the rule may be elsewhere: Tanner v. Hughes, 3 P. E. Smith 289 ; Bank v. Brown, 19 Id. 156.”
    The plaintiff took a writ of error, and assigned for error, entering judgment for the defendant on the reserved part.

      W. B. Waddell and W. Darlington (with whom was B. T. Cornwell), for plaintiff in error.
    Writings- may be read in the light of surrounding circumstances : Greenl. Ev. sect. 277. The exclusion of parol evidence is to the terms in which the writing is couched: Barnhart v. Riddle, 5 Casey 92; Aldridge v. Eshleman, 10 Wright 421.

      P. F. Smith (with whom were G. F. Smith and B. Davis), for defendant in error,
    cited Malone v. Keener, 8 Wright 109; Shively v. Black, 9 Id. 345; Boydell v. Drummond, 11 East 142; Smith on Contracts (by Rawle) 103.
   The opinion of the court was delivered, February 19th 1872, by

Thompson, C. J.

It seems to us very clear that the letters of the plaintiff of the 9th and 10th of September 1869, to the defendant, actually preceded his of the 9th, especially when taken in connection with the testimony of the plaintiff himself. He testified that his letter of the 9th of September he sent by Nathan T. Hayes, and that in consequence of the message returned, he wrote the letter of the 10th to the defendant, and that the letter of the latter, dated the 9th, was an answer to his of the 10th. It seems obvious that the plaintiff’s letter of the 10th was in consequence of a communication received from the defendant, for it refers to a proposition he had received from him about guaranteeing Ridgway and Miers’s undertaking, and about which he says he thinks it is “ a pretty heavy shave.” It seems equally apparent that the “shave” had reference to his inquiry in a former letter, whether he, the defendant, would guarantee the payment by Ridgway & Miers, and the answer, through Hayes, if he should fill their order for phosphate. No ingenuity conceivable would be equal to the fabrication of such circumstantial details in the absence of all truth. They certainly, together with the parol testimony, prove a mistake in the date of either the plaintiff’s or defendant’s letters, and in this case it is immaterial which.

But the mistake is what the learned judge below thought could not be proved without contravening the Statute of Frauds of 1855. We think this was error. It is the agreement to guarantee the debt or default of another, which the act requires to be in writing. The agreement would be good without a date, or even if it had an impossible date. The date is a circumstance of identification as to time only; proof of it does not add to, alter or change the terms of the agreement, although it might be forgery if inserted without consent or authority. I know of no case, however, in which it may not be established by parol proof if omitted in the writing by mistake, in the first place.

The letters here connect themselves so completely and perfectly, in sense and in the development of a united design, and both parties so fully acted up to the very details of the proposed contract without objection, the jury could hardly have hesitated in finding that the defendant’s letter of the date of 9th of September was in answer to plaintiff’s of the date of the 10th. This they did, and thus a contract resulted. In Shively v. Black, 9 Wright 345, we held that the consideration of the guaranty to answer for the debt or default of another, although omitted in the writing, could be shown by parol. This was a liberality of construction of the act, equal, if not superior, to that desired in this case. It was shown by my brother Read, in the opinion in that case, that this is the present English rule, although long resisted in their courts. We think the contract found by the jury was legitimately deduced from the letters and testimony, and that the learned court erred in not entering judgment on the verdict. It will be done now here.

And now, February 19th 1872, judgment on the reserved question entered non obstante veredicto is reversed, and judgment is entered on the verdict for $723.63, with interest from its date, and costs of suit.


text:
    Walter’s Appeal.
    1. The provisions of the Act of March 13th 1815, $ 5, limiting dissolution of incestuous marriages to the life of the party, are not confined to divorces but apply to all courts and proceedings.
    2. These provisions are not repealed by the 39th section of Act of March 31st 1860 (Crimes), which declares such marriages void.
    3. Walter married the widow of his son, and died, leaving her to survive him. Held, in the distribution of his estate, that the validity of the marriage could not be questioned.
    4. Repeals by implication are not favored.
    January 19th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. .Williams, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Chester county: No. 178, to January Term 1872.
    The questions in this case arose in the distribution of the estate of William Walter, deceased, remaining in the hands of Israel H. Walter and Wilmer W. Walter, his executors.
    The decedent’s will and codicils were proved August 13t'h 1870, and on the 16th of September, Susannah Walter his widow, by an instrument under seal, agreed to accept under the will. On the 2d of August 1871, she elected to take under the intestate laws and $300 under the exemption laws, and declined to accept the provisions of the will.
    The widow, Susannah Walter, had been the wife of William Walter, Jr., a son of the testator; the son having died she married his father, the testator, August 16th 1866.
    The executors settled their account showing in their hands a balance of $10,882.58.
    The account was confirmed June 13th 1871, and Washington Townsend, Esq., appointed auditor to make distribution.
    Before him the widow claimed her share of the estate under the intestate laws, and also $300 under the exemption laws.
    Her claim was resisted by the children of the testator on the ground that her marriage was incestuous and therefore void.
    They resisted her claim also on the ground of her having accepted under the will. The auditor, who heard much evidence, decided that she was not bound under the circumstances by her acceptance under the will.
    He also decided, “that as the marriage between William Walter and Susannah Walter was not dissolved in the lifetime of the parties, it cannot be inquired into now, and that Susannah Walter is the lawful widow of William Walter, Sr.’’ He therefore awarded to her the amount claimed by her out of the testator’s estate.
    After exceptions to the report of the auditor, it was confirmed by the Orphans’ Court, Butler, P. J.
    Israel II. Walter, a son, and one of the executors, appealed to the Supreme Court, and assigned the decree of confirmation for error.
    The Act of 1705 “Against Incest,”! Smith’s Laws 26, declares marriages within the degrees of consanguinity mentioned in the act — a son’s wife being one — “ to be void to all intents and purposes, and it shall be lawful for the governor to grant a divorce from the bonds of matrimony.”
    The Act of March 13th 1815, § 5, 6 Smith L. 286,1 Br. Purd. 508, pi. 2, provides : “ All marriages within the degrees of consanguinity or affinity, according to the table established by law, are hereby declared void to all intents and purposes, and it shall and may be lawful for the Courts of Common Pleas of this Commonwealth, or any of them, to grant divorces from the bonds of matrimony in such cases; and the parties shall be subject to the like penalties as are contained in the act against incest; but when any of the said marriages shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be inquired into after the death of either the husband or wife.”
    By the Act of March 31st 1860, § 39, Pamph. L. 392, 1 Br. Purd. 326, pi. 39 : “ If any person shall commit incestuous fornication or adultery, or intermarry within the degrees of consanguinity of affinity, according to the following table (established by law'), he or she shall, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment by separate and solitary confinement at labor, not exceeding three years; and all such marriages are hereby declared void.”

      C. H. Pennypacker, for appellant.
    The Act of 1860 declares such marriages void ah initio: Johnston’s Estate, 9 Casey 515; Parker’s Appeal, 8 Wright 312. A contract prohibited by a statute is void: Chitty on Contract 694; Shelford on Marriage and Divorce 138. He referred also to Act of 1815.

      W. Dartington, for appellee.
   The opinion of the court was delivered, January 29th 1872, by

Sharswood, J.

At common law there were two kinds of disabilities affecting the validity of the marriage relation. The first were termed canonical, depending on the law of the church and enforced in the ecclesiastical court. Among these were consanguinity and affinity. These causes rendered marriage voidable only, and it was necessary that the nullity should be declared during the lifetime of the parties, otherwise they were and continued valid for all civil purposes. The second kind were civil disabilities, such as a prior marriage, infancy, idiocy, lunacy, fraud or force. These made the contract void, ah initio, and the union meretricious. In such cases no sentence of nullity or decree of divorce was required, but at all times, whether during the lifetime of the parties or afterwards, the marriage might be considered and treated as null and void: 5 Co. 98 b; Elliott v. Gurr, 2 Phillimore 16; 1 Bl. Com. 434, 435; 2 Kent’s Com. 95. In this state there are no merely canonical disabilities; for the canons of no church are of any binding force, nor are there any ecclesiastical courts to pass sentence upon offenders fro salute animarum. Consanguinity and affinity within the prohibited degrees are civil disabilities by force of express statute, and make the marriage null and void without decree of divorce, except as otherwise provided. That this is so whenever a marriage is declared null and void by the express provision of some statute, is abundantly clear from the text writers and cases. Thus a failure to comply with the provisions of the English Marriage Acts was always held to avoid the marriage in toto and ab initio. Want of consent of parents or guardians; want of celebration in some church or chapel, or by a priest in orders, are enumerated by Sir William Blackstone among civil disabilities. A remarkable case, instar omnium, is Haydon v. Gould, 1 Salk. 119, decided in the Court of Delegates, where a marriage by the minister of a dissenting congregation of Sabbatarians was held to be no marriage at all, and after the death of the woman the man claiming on this ground to be her husband was not allowed administration on her estate.

By the Act of 17©5, entitled “ An act against incest” (1 Smith 26), all marriages thereafter made within the degrees of consanguinity or affinity, according to the table therein contained, were declared to be void to all intents and purposes, and it was made lawful for the governor, for the time being, to grant divorce from the bonds of matrimony. This power of the governor was either repealed or fell with the adoption of the Constitution of 1796. The Act of September 19th 1785 (2 Smith 343), which conferred jurisdiction on the Supreme Court to decree divorce, did not embrace the case of incestuous marriages. It would seem then that no power existed in any court to grant divorces for such cause, until by the Act of March 13th 1815, Pamph. L. 150, it' was conferred on the counts.of common pleas. The 4th section of that act provided “ that all marriages within the degrees of consanguinity or affinity, according to the table established by law, are hereby declared void to all intents and purposes,” and after investing the Courts of Common Pleas with jurisdiction to decree divorces in such cases, it declares, “ but when any of the said marriages shall not have been dissolved during the lifetime of the parties, the lawfulness of the same shall not be inquired into after the death of either the husband or wife.” It will be observed that this provision is not a mere limitation upon the power or jurisdiction of the Common Pleas to grant divorce, but the language is so broad, and that with evident purpose, as to include all courts and proceedings whatever, declaring that the validity of such marriages shall not be inquired into anywhere or any how after the death of either of the parties. It is contended, however, that this provision of the Act of 1815 is repealed by the 39th section of the Act of March 31st I860, Pamph. L. 393, which, after enacting that “ if any person shall commit incestuous fornication or adultery, or intermarry within the degrees of con-^ sanguinity or affinity, according to the table established by law, he or she shall on conviction be sentenced to pay a fine not exceeding $500, and to undergo an imprisonment by separate or solitary confinement at labor, not' exceeding three years,” adds, and all such marriages are hereby declared void.” It is to be observed that the Act of 1815 is not mentioned in the enumeration of acts supposed to be repealed in part or in whole, in the 79th section of the Penal Procedure Act of the same date as the Penal Code, Pamph. L. 451, which is certainly some presumption against the alleged repeal. It must be admitted that the implication is very slight, and implied repeals are never favored. This language of the Act of 1860 is in fact not quite so emphatic as that of 1815. In the former, incestuous marriages are simply declared void; in the latter, void to all intents and purposes. As part of the Penal Code, the Act of 1860 supplies and repeals the Act of 1705, and leaves the Act of 1815 unaffected. Accordingly the Act of 1705 is classed in the 79th section among the repealed statutes. The Act of 1815 did not make such marriages voidable by a decree of separation, but they were declared to be absolutely void, and could be inquired into anywhere and in any proceeding, but not after the death of either of the parties. The Act of 1860 is simply a declaration of the same law.

There is no other question which it is necessary to consider. We agree with the auditor and learned court below upon the facts, that the widow was not bound by her agreement of September 16th 1870.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    Thropp’s Appeal.
    1. Thropp leased to Gagg who erected a frame building, a removable fixture ; a constable levied on the building during the term on executions against Gagg; afterwards Gagg, in consideration of a release of rent due, &c., surrendered the term to Thropp who had no knowledge of the levy, and he took possession; the constable sold the building under the execution. Beld, that the purchaser could not remove the fixtures.
    2. By the arrangement Thropp gave up his right to his rent out of the execution and Gagg’s personal responsibility, which were a consideration for the surrender.
    3. If the constable had given the landlord notice of the levy, the arrangement between 'l'hropp and Gagg would not have been effectual against the levy.
    4. Such building being prim& facie part of the realty is notice to put a creditor of the tenant upon his inquiry as to its character.
    5. Notice of the levy to the landlord was necessary to enable him to protect his rights.
    January 19th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Chester county: In Equity: Of January Term 1872.
    The facts under which the proceedings in this case arose were the following: —
    Isaiah Thropp was the owner of a lot of land on which were a mill and other buildings. He leased them for three years from the 1st of March 1829, and Joseph C. Gillingham and Augustus Gagg as assignees of the lessees, went into possession under the lease. The object of the lease was to dig for flint on the land and grind it, paying to Thropp a royalty. In the prosecution of their business, the tenants erected a frame building connecting it with the old mill, and put into both machinery suitable for their business. On the 13th of September 1870, a constable under two executions against the tenants, levied upon the frame building, subject to a prior levy by the sheriff, under an execution issued out of the Court of Common Pleas of Chester county; the constable so returned to the justice who issued the executions. On the 1st of October alias executions were issued by the justice. On the 10th of October, the tenants agreed with Thropp to surrender their lease in consideration of his releasing the rent due him, and permitting the machinery which had been levied on by the sheriff, and which Thropp claimed to be part of the realty, to be sold for the benefit of the creditors of the tenants.
    On the 13th of October, the tenants surrendered the lease, and Thropp took possession of the demised premises: on the 18th, the constable under the alias executions sold the frame building to Henry Bronson and Joseph Walker; on the 24th the lease was formally cancelled, and the surrender reduced to writing; Thropp thereafter continued in possession of the premises and buildings.
    Bronson and Walker being about removing the frame building by virtue of their purchase at the constable’s sale, Thropp filed a bill against them, praying that they might be restrained from removing the building or exercising any acts of ownership over it. An injunction was issued, and subsequently W. B. Waddell, Esq., was appointed master.
    He found that the frame- building having been erected for the purposes of trade was a movable fixture; that tbe lessees might move it during the term; that the defendants as the purchasers at the constable’s sale had also a right to remove it, and that their right had not been affected by the surrender to Thropp.
    On the coming in of his report, it was again referred to the master to find whether Thropp knew of the constable’s levy when he took the surrender of the lease. He reported that Thropp had no knowledge of the levy at the time of the surrender.
    Exceptions were filed to the report. ■
    In the opinion of the court on the report and exceptions, Butler, P. J., said: * * * “ But subsequently to the seizure in this case and prior to the sale, the tenant surrendered the lease, and the plaintiff, relying upon the principle that a 1 movable fixture ’ can only be severed during the existence of the term, or while the possession of the tenant continues, argues that no severance can now be allowed. It is certainly true that a tenant cannot enter to remove a fixture after the expiration of his term. Here the term provided for by the lease has not expired. The tenant has surrendered, and the effect upon Mm is the same as if it had. He could not, after quitting the possession in pursuance of this act, return and sever the fixture. But where another has acquired rights in the lease, can the tenant surrender such rights or prejudice them by terminating the contract with the landlord ? Suppose the tenant sub-let the premises, or a part of them, would his subsequent surrender oust the sub-tenant ? Clearly we think it would not (and it seems to have been so decided in Mekinzie Lexington, 4 Dana (Kentucky R.) 129), unless it may be where the landlord is without knowledge of the circumstances and would suffer in consequence of the neglect to inform him. In the case before us. the defendant acquired an interest in the lease by the levy on the building, which, as we have seen, was annexed to the term. Their title, under the sale, dates back to the time of the levy. Had the landlord been aware of the levy, we think it could not be doubted that the surrender which he accepted would not affect the defendants. It is found, however, that he was not aware of it. Still does this, under the circumstances, make any difference ? He is no worse off than if he had known it. The surrender cost him nothing. His tenant was insolvent? and he accepted a return of his property. But again, this is not an interest in the lease acquired by contract with the tenant, but by operation of law. A lien was created by the levy, and while it existed the tenant could no more dispose of the property than he could of any other chattel under execution. That he could not directly as by a sale, will be admitted, and that he could not indirectly, as by a surrender of the lease, to which it was annexed, is, we think, nearly as clear. Not only was a lien created by the levy, but possession was transferred to the officer and the building in effect severed: Paxton v. Steckel, 2 Barr 93; Welsh v. Bell, 8 Casey 12 ; so that when the surrender took place it was subject to the rights thus acquired. The character of the property was such that the officer could not take physical possession and remove it from the tenants’ custody, so that if the lien of an execution may in any case be lost by neglect or unnecessary delay in the officer, we see nothing that would justify the suggestion that the lien was lost here.” * * *
    The court decreed that the plaintiff’s bill be dismissed with costs.
    The plaintiff appealed to the Supreme Court, and assigned the decree for error.

      J. J. Lewis, for appellant.
    The fixtures of a tenant are parcel of the land until he exercises his right of removal; his right is not an estate, but a privilege: Gibbons on Fixtures 38, 48; Haller v. Render, 3 Tyr. 959. The term may be ended by surrender as well as the lapse of its time: Lyde v. Russell, 1 B. & Ad. 394. Trover will .not lie against owner of land for fixtures : Overton v. Williston, 7 Casey 155. A levy does not vest title in the execution-creditor: Watson on Sheriffs 176 (7 L. Lib. 126); Lytle v. Mehaffy, 8 Watts 275; Weeton v. Woodcock, 7 M. & W. 14.

      W. Darlington, for appellee.
   The opinion of the court was delivered, January 29th 1872, by

Agnew, J.

Upon a careful examination there appears to be but one question to be decided in this case. Its decision in favor of the appellant renders it unnecessary to determine others raised in the discussion. What was the effect of the surrender of their term by the tenants, Gillingham and Gagg, to Isaiah Thropp, their landlord ? A constable had levied on the building in question as a fixture placed on the land by the tenants for the purpose of trade, which they had a right to remove during their term. This levy was made subject to a levy by the sheriff, under a fi. fa., upon the same building, and also upon certain machinery claimed to be the property of the tenants. The master finds that on the 10th day of October, following the levies by the sheriff and constable, the tenants, Gillingham and Gagg, agreed with Thropp, their landlord, to surrender to him the lease in consideration of his releasing them from the payment of the accruing rent, and permitting the machinery levied on by the sheriff, and claimed by Thropp, to belong to the property, to be sold for the benefit of the creditors of Gillingham and Gagg. The effect of this arrangement was that Thropp let go, not merely the personal responsibility of his tenants for the rent, but his right also under the Act of Assembly to claim an apportionment of the rent up to the time of levy, as well as whatever right he might have to detain the machinery levied on as permanent fixtures. The master also finds as a fact, that at the time of the surrender of the lease, Thropp had no notice of the constable’s levy. No suggestion of fraud is made, or that this arrangement was intended to defeat the creditors. So far as the master’s report goes, it is obvious that the arrangement was a bona fide compromise, by which Thropp suffered a loss in consideration of being permitted to retain on his part the building in question — he let the machinery go which he claimed, and his rent; and the building only was left. The constable made his sale of the building on the 18th of October, and after this arrangement and surrender of the term. Now, admitting that by the prior levy the constable acquired a lien upon the execution, which, if duly prosecuted, would pass the title to the purchaser under the execution, it seems to us the reasoning of the court below on this point is inconclusive. The judge says, their title under the sale dates back to the time of the levy, and thinks it cannot be doubted that the surrender which he accepted would not affect the defendants. It is found, however, that he was not aware of it. Still, does this, under the circumstances (says the judge), make any difference. ? He is no worse off than if he had known it. The surrender cost him nothing. His tenants were insolvent, and he accepted a return of his property. But this is a mistake, the surrender, by the terms upon which it was accepted, cost him his right to follow the property in the hands of the sheriff, that is to say, its proceeds, for his rent. It has been decided conclusively that the landlord has a right to an apportionment of his rent up to the time of the sheriff’s levy, and the Act of 16th June 1836 has made no change in this respect: Morgan v. Moody, 6 W. & S. 335; Pazker & Keller’s Appeal, 5 Barr 390. And is the extinguishment of the personal liability of Gillingham and Gagg no loss ? Because they were then insolvent, it does not follow that the right to pursue them in the future, in case they should acquire property, is of no value. Nor can it be said that the relinquishment of Thropp’s claim to the machinery levied on amounted to nothing. No fraud has been found, and we have no right, therefore, to conclude that the claim of title to the machinery was a mere sham. For aught we know, he might have raised a serious question on the terms of the lease of the right of the tenants to remove the machinery. Seeing that the sheriff and those interested in the writs in his hands did not pursue their writs against the building, it is in some measure evidence of their belief that the claim was not wholly unfounded. However this may be taken as a whole, the arrangement not being found to be otherwise than bond fide, was such a compromise and relinquishment of right on part of the landlord as constituted a valuable consideration, and entitled him to hold the building against the tenants and those claiming their title, unless it is rendered inoperative by tbe prior levy by tbe constable. Had tbe constable given notice of bis levy to the landlord, no doubt tbe rights of tbe creditor in the execution would have taken precedence, and prevented tbe arrangement from being effectual against tbe execution. Or had tbe property been susceptible of manucaption and possession, the actual seizure might have been treated as notice in law, sufficient to defeat any arrangement to tbe prejudice of tbe execution-creditor. But a building of tbe kind described in the plaintiff’s bill is primé facie a part of the realty, of which the creditor must take notice, so as to put him on inquiry as to its true character. No manual possession of it can be taken. In view of this, therefore, and in order to give the landlord an opportunity of protecting his rights, whatever they may be, notice to him of the levy was necessary. It was necessary also to prevent him and the execution-creditor from being prejudiced by any arrangements he might find it expedient to make with his tenants for the termination of the lease. If for the advancement of the remedies of creditors, erections constituting parts of the realty are held to be personalty, in favor of trade, and sold under execution, we cannot lose sight of their apparent nature and attachment to the realty, and of the rights of the landlord who may be misled from a want of notice of the creditor’s claim. It is, therefore, inequitable to recognise no duty as devolving on those who pursue these remedies. There being no notice to the plaintiff, as landlord, and the sale not having been made until after the termination of the lease by surrender of the term, the right to remove the building was gone, as against the landlord. It was a failure to prosecute the levy with due diligence so as to preserve its lien. The decree dismissing the bill at the costs of the plaintiff is therefore reversed, and a decree ordered to be entered, enjoining the defendants from removing the building described in the plaintiff’s bill, from the land of the plaintiff at any and at all times hereafter, and the costs are decreed to be paid by the defendant.

Decree to be drawn up in form for approval.