text:
    Scowden’s Appeal.
    1. The Act of June 12th 1879, entitled “ An act to pi-ovide for the holding of courts in certain cities of this Commonwealth,” provides that in all counties containing a population of not less than 60,000 inhabitants, and in which there is now or may hereafter be, any incorporated city of the fifth class, it shall be the duty of the president judge, upon the application of'the mayor and councils of such incorporated city, to make an order for the holding of one week of court or more, if necessai-y, in said city : Held, that said act is in conflict with sect. 7, art. 3, of the Constitution, and is void.
    2. The fourth section of said act makes it the duty of the prothonotary and other county officers to attend the sessions of said court, in said city, and to bring with them papers and documents, &e.: Held, that said section is in with scot. 4, art. 14, of the Constitution, which provides that pro-shall keep their offices in the county town of the counties of they shall respectively be the officers. The plain meaning of these words is that the officers referred to shall keep the records and papers pertaining thereto at the county seat.
    3. Per Paxsojj, J. — This act is an attempt to evade the Constitution. It is special legislation under the attempted disguise of a general law. Of all ^orms sPeo^ legislation this is the most vicious.
    November 22d 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, O. J., absent.
    Appeal from the Court of Common Pleas of Crawford county; Of October and November Term 1879, No. 882. In Equity.
    Bill in equity filed by J. D. Gill, Cyrus Kitchen, Alexander Power and P. A. Laffer, against Joseph Soowden, William J. Kerr, James Jamison, commissioners of Crawford county, and the city of Titusville, praying for an injunction upon the commissioners of said county, restraining them from expending public money under 'the Act of Assembly of June 12th 1879, relating to holding of courts in certain cities of the Commonwealth.
    The bill alleged that the said commissioners were about to expend money of the county in procuring suitable rooms in the city of Titusville for holding the courts in that city, under thb provisions of the Act of June 12th 1879, Pamph. L. 174; and averred that said act was unconstitutional, and prayed that the defendants be restrained. The material portions of the Act of 1879 will be found set forth in the opinion of this court. The defendants filed an answer, in which they admitted their intention to act as averred in the bill, and the case was referred to a master, D. 0. McCoy, Esq., who reported that the act was constitutional and in favor of the dismissal of the bill. Exceptions were filed to the report, which the court, Church, P. J., sustained in an opinion deciding tfiat the act was unconstitutional, and making a decree awarding an injunction as prayed for. From this decree this appeal was taken.

      S. Minor, Thomas Roddy, F. B. Guthrie and Roger Sherman, for appellants.
    In the case of Wheeler v. Philadelphia, 27 P. F. Smith 348, and Kilgore v. Magee, 4 Norris 401, this court decided that classification of cities by population was within the scope of legislative power under the Constitution, even though there might be but one city in such class, provided that the act of classification was so drawn as to include those that might in the future come into existence.
    In the case of The Commonwealth ex rel. Fertig et al. v. County Commissioners, 7 Norris 258, the Supreme Court held the Act of April 18th 1878, Pamph. L. 29, an act with the same title and for the same purpose as the act in question, unconstitutional, for the reason that-it did not classify cities or counties by population, but by geographical description, and did not by its terms provide for future growth of either cities or counties, and by reason of these defects in the enactment, the operation thereof would be for ever restricted to one city and one county. This Act of 1879 was passed to meet this decision and avoid the vice of the former act.
    Here is no geographical description, but a distinct classification of counties by population, and distinct provisions for the wants and growth of the future. Language could not make these requisites plainer or more comprehensive. But by the words following this portion of the first section, a limitation is placed upon the counties where courts may be held under the provisions of this law, and it is claimed that this renders the law obnoxious to the constitutional provisions regarding special legislation. The appellants think not; for what follows refers to a classification made and already in active existence of cities in being and to grow up in the indefinite future, and to come within the classification already established. Legislation as to cities of the fifth class-is lawful; and whether it be said that the words restraining the operation of the act to counties having or to have sixty thousand inhabitants is a limitation upon the cities of the fifth class, or that the cities of the fifth class are limitations upon the counties of sixty thousand inhabitants, or both, you have, after all, no legislation that does not relate to counties and cities classified according to law. It is eminently proper, and in accordance with public policy and public convenience, that places should be designated for the holding of courts, regulated by the population of such places, and that they should be of such size and importance that the courts would be needed by the people.
    But again, it is said that the act under consideration provides for the keeping of the offices of the county officials in another place than the county seat.
    The language of the- act will bear no such construction. They are to attend the sessions of the courts in those cities, and bring with them such papers and documents and perform such official duties as said court in the transaction of its business at such times may require. They are to bring no dockets, no seals, to open no office, to keep none at any time, but merely to attend the courts, and there perform their official duties, incident to the business done before the court while it sits. Under the legal Arbitration and Referee Acts, the papers of the particular cases tried are taken from the file and before these courts ; and in our part of the state we have not yet heard of any one’s rights being imperiled thereby. Nor when causes are referred to masters and auditors, who habitually sit all over the county, .and even go to distant parts of the state to suit the convenience of parties. Nor do we think that it is in any way derogotary to the dignity of a court to sit within reach of the citizens upon whose rights it is to adjudicate.

      W. R. Bole, F. P. Roy and J. W. Smith, for appellees.
    We contend that the Act of 1879 is unconstitutional for the following reasons so ably set forth in the opinion of the court below: I. In that it violates section 7 of article 3 of the Constitution, prohibiting special legislation in the following particulars : 1. In legislating for certain counties to the exclusion of all others, without any general classification of counties. 2. In legislating for certain cities of the fifth class to the exclusion of other cities of the same class. 3. In prescribing the duties of. county officers in certain counties to the exclusion of all others. 4. In prescribing the powers and duties of city officers in certain cities of the fifth class to the exclusion of others of the same class. II. In that it violates section 3 of article 3 of the Constitution, which provides that “ No bill shall be passed containing more than one subject, which shall be clearly expressed in its title.”- III. In that it violates section 1 of article 2 of the Constitution, which vests the legislative power in the General Assembly, to wit: In that legislative power is delegated by this act to the mayor and council of certain cities. IV. In that it violates section 4 of article 14 of the Constitution, requiring county officers to keep their offices in' the county town of the county in which they shall be officers. V. In that it violates section 26 of article 5 of the Constitution, which provides that all laws relating to courts shall be general and of uniform operation, &c. VI. In that it violates section 17 of article 1 of the Constitution, forbidding the legislature to pass any law impairing the obligation of contracts.
   Mr. Justice Paxson

delivered the opinion of the court, January 3d 1881.

This was an appeal by the Commissioners of Crawford county from a decree of the court below, restraining them “ from expending any public money in procuring rooms for holding courts in Titusville, or for any other purpose mentioned or contemplated by the Act of Assembly approved June 12th 1879, entitled ‘An act to provide for the holding of courts in certain cities of this Commonwealth.’ ”

A former Act of Assembly intended to accomplish the same result was declared to be unconstitutional by this court. See Com. ex. rel. Fertig et al. v. Patton et al., 7 Norris 258. The ground of objection was that it was in conflict with article 3, section 7, of the Constitution, prohibiting special legislation. The Act of June 12th 1879 was evidently framed with a view to avoid this difficulty. The first section thereof provides “ that in all counties of this Commonwealth where there is now or may hereafter be a population of not less than sixty thousand inhabitants, and in which there is now or may hereafter be any incorporated city of the fifth class, subject to the provisions of the Act of 23d May 1874, and the several supplements thereto, or which may be incorporated under said acts, it shall be the duty of the president judge, or of the additional law judge, or of either, upon the application of the mayor and council of such incorporated city, to make an order providing for the holding of one week of court, or more if necessary, at the discretion of the court, after each regular term of court of said county, for the trial of civil or criminal cases in said city:” Then follow several other sections providing for the details' of this arrangement.

It is no part of our business to discuss the wisdom of this legislation. However vicious in principle we might regard it, our plain duty is to enforce it, provided it is not in conflict with the fundamental law.

It requires but a glance at the act to see that it is an attempt to evade the Constitution. It is special legislation under the attempted disguise of a general law. Of all forms of special legislation this is the most vicious.

In Wheeler v. The City, 27 P. F. Smith 338, we decided that an act classifying cities by population was not transgressive of the Constitution. We need not now repeat the reasons for this ruling. It is sufficient to say they have no application here. The Act of June 12th 1879 makes no attempt at .the classification of cities. It is merely an effort to legislate for certain .cities of the fifth class to the exclusion of all other cities of the same class. That is to say, it refers only to cities of the fifth class which are situated in a county having a population of sixty thousand. The act was doubtless regarded by its framers as a classification of counties, but it is not so. Nor does any good reason occur to my mind why there should be such classification. If there be such reasons, amounting to a necessity therefor, we shall probably hear of them in due season. In the meantime, classification which is grounded in no. necessity, and has for its sole object an evasion of the Constitution, will not be encouraged.

What has been said is decisive of the case. As, however, there may be future attempts of the same character, I will call attention to another provision of the act which is equally defective. The 4th section is as follows : “ It shall be the duty of the sheriff of the county, of the register of wills, and clerk of the Orphans’ Court, of the prothonotary of the Court of Common Pleas, of the clerk of the Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace, or the deputy of either, and of the district attorney, to attend the sessions of said court in said city, and to bring with them such papers and documents, and perform such official duties as said court in the transaction of its business at such times may require.”

This section of the act is in conflict with section 4 of article 14 of the Constitution. Said section provides that “ protkonotaries, clerks of courts, recorders of deeds, registers of wills, county surveyors and sheriffs shall keep their offices in the county town of the counties of which they shall respectively be officers.” The plain meaning of the words '“ shall keep their offices in the county town,” is that the officers referred to shall keep the records and papers pertaining thereto at the county seat. It does not mean that they shall keep a room there with bare walls and empty pigeon holes. This is not what the Constitution contemplates by the woid “office.” On the contrary it has a much broader signification and refers to the place in which the business of such office is transacted and the records kept. This constitutional provision is eminently wise. Aside from the danger of the destruction or loss of the public records consequent upon their periodical removal to distant points, the public inconvenience resulting therefrom would be intolerable. The case bears no analogy to the taking out of the proper office the papers in a single cause to be used before arbitrators, nor to the production of a paper or book upon a subpoena. The act in question is broad enough to empower the court to order the entire records in either or all of the offices to be removed to Titusville during any and every term of the court to be held there. Indeed it is difficult to see how causes could be tried there without the removal of a considerable portion of the records. The practical effect of the enforcement of this clause of the Constitution will be to put an end for the future to such legislation as we have been considering. So long as, the records are required to be kept at the county seat it will be found practically impossible to hold the courts elsewhere. We see little to regret in this result. It adds neither to the dignity nor the usefulness of a court to give it a peripatetic character.

The decree is affirmed, and the appeal dismissed at the costs of the appellants.


source: Caselaw Access Project

author: Mr. Justice GreIEn

license: Public Domain

text:
    Myers et al. versus Boyd et al.
    1. Attached to a recorded mortgage was the following certificate: “ Crawford county, ss. Subscribed and acknowledged before me this 8th day of July 1872. A. M. Smith. Recorder.’-’ Held, that the certificate did not contain the necessary ingredients of a valid acknowledgment and the mortgage should not have been recorded.
    2. In order that a deed or mortgage may become efficacious it must be acknowledged- by the grantor, before a competent officer, who must certify such acknowledgment “'with the day and year, when the same was made, and by whom.”
    November 22d 1880.
    Before Mercur, Gordon, Paxson, Trunicey, Steruett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas of Crawford county: Of O-ctober and November Term 1880, No. 860.
    Scire facias sur mortgage by David T. Boyd and others against Sidney J. Myers and the Second National Bank of Titusville, terretenant.
    On the 15th of June 1872, Sidney J. Myers signed a-mortgage which was given to Boyd, upon eight acres of land in Crawford county, the consideration therefor being $2000. At the foot of the mortgage was the following: “ Crawford county, ss: Subscribed and acknowledged before me, this eighth day of July 1872, A. M. Smith, Recorder.” The mbrtgage was for five years, and was recorded. The Second National Bank purchased the mortgaged property at a sheriff’s sale without notice of the mortgage. On the 26th of March 1875, Boyd issued this scire facias upon the mortgage. At the trial the plaintiffs offered the mortgage in evidence, which was objected to because it was not properly a record, and, therefore, not notice to the purchaser at the sheriff’s sale. The court admitted it in evidence.
    The defendant presented the following point which the court refused: The- acknowledgment and certificate are defective, and did not entitle the mortgage to be recorded. The record of a mortgage not entitled to be recorded, is not notice to a purchaser at a sheriff’s sale, and such purchaser would take the land discharged from such improperly recorded mortgage.
    The court directed a verdict for plaintiff, when defendants took this writ and alleged that the court .erred in refusing the above point.

      Roger Sherman, for plaintiffs in error.
    Is the certificate of the recorder, as to the acknowledgment of the mortgage, sufficient to entitle it to be recorded ? If it was not, then the record of it was no notice to a purchaser, and he would take it discharged of the mortgage: Hibherd v. Bovier, 1 Grant 266 : Goepp v. Gartiser, 11 Casey 130; Uhler v. Hutchinson, 11 Harris 110; Jordan v.
      Stewart, Id. 244. The Act of Assembly of 1715, sect. 2, 1 Purd. Dig. 460, provides that in all cases and before all officers, the grantor shall go in person before the officer who shall take the acknowledgment. . This must be done before record of the instrument is permitted. The certificate of the officer must state the requirements of the statute. It is true that no particular form of words is necessary, but it must appear that those things required to be done to insure protection were done: Watson v. Bailey, 1 Binn. 470 ; Jourdan v. Jourdan, 9 S. & R. 273. It is clear that to guard against fraud and false personation, if is the grantor who should appear before the officer and acknowledge his signature to the instrument. Certainly the officer should say so in some form, and not leave material things to be inferred or guessed at. To infer that the grantor, Myers, appeared before the recorder and acknowledged this particular instrument, is to assume that which nowffiere is shown. Nor does it appear what instrument was acknowledged.

      H. L. Richmond & Sons, for defendants in error.
    We do not perceive why the certificate does not literally and in spirit comply with all the requirements of the various Acts of Assembly. It shows by the caption “Crawford county, ss,” that it was taken within the recorder’s jurisdiction, that the subscriber, that is the person subscribing, appeared “ before,'” that is, in the presence of him, the recorder, and then and there “ subscribed and acknowledged” what ? Nothing whatever, but the paper to which each, in the presence of the other, put their respective hands and seals. There was no other paper subscribed, or to be subscribed, no other subscription acknowledged, or to be acknowledged, than the subscription to that particular deed, to which the recorder set his name and affixed his official seal.
   Mr. Justice GreIEn

delivered the opinion of the court, January 3d 1881.

The Act of 28th May 1715, sect. 2, 1 Purd. Dig. 460, pi. 10, provides as follows: “All bargains and sales, deeds and conveyances of lands, tenements and hereditaments in this province, may be recorded in the said office; but before the same shall be so recorded, the parties concerned shall procure the grantor or bargainor named in such deed, or else two or more of the witnesses (who were present at the execution thereof) to come before one of the justices of the pea'ce of the proper county or city where the lands lie, who is hereby empowered to take such acknowledgment of the grantor, if one, or of one of the grantors, if more.”

By the terms of this act, before a deed can be recorded, the grantor must go before a magistrate (other persons have since been authorized), and make acknowledgment thereof.

Sect. 8 of tbe same act provides: “ But in tbe case tbe grantor be dead or cannot appear, then the witnesses brought before such justice shall by him be examined, upon oath or affirmation, to prove the execution of the deed there produced; whereupon the same justice shall, under his hand and seal, certify such acknowledgment or proof upon the back of the deed, with the day and year when the same was made, and by whom.”

The eighth section of the act provides that no mortgage or defeasible deed shall be sufficient to pass any estate, “ unless such deed be acknowledged or proved and recorded * * * as hereinbefore directed for other deeds.”

It will thus be seen that in order that a deed or mortgage may become efficacious it must be acknowledged by the grantor, before a competent officer, who must certify such acknowledgment “ with the day and year when the same was made, and by whom.” The only certificate attached to the. mortgage in the present case is in the following words: “Subscribed and acknowledged before me this eighth day of July 1872.” A mere inspection of this certificate shows that it is entirely destitute of the chief ingredients essential to constitute .a valid acknowledgment. It does not state that the grantor appeared before the officer, though the statute positively requires the personal presence of the grantor before the person who is to take the acknowledgment. It does not state that either the grantor or any one else made an acknowledgment of any kind of the instrument in question, although the statute distinctly directs that the officer shall certify “by whom” the acknowledgment was made.

The Act of 24th February 1770, sect. 2, which directs the manner in which married women shall make acknowledgment of deeds executed by them, does not prescribe any form of words in which it shall be done, nor does it direct the officer to certify the acknowledgment in any particular. Yet the decisions under that statute have constantly held that the requirements of the act must be com.plied with, and further, that this must appear in the certificate of the officer, otherwise the deed as to the feme covert grantor is inoperative and will not pass her estate: Watson v. Bailey, 1 Binn. 470; Fowler v. McClurg, 6 S. & R. 143; Evans v. Commonwealth, 4 Id. 272; Jourdan v. Jourdan, 9 Id. 273. How much more is it essential that the requirements of the statute should be observed and pursued, in a case like the present, where the officer is expressly directed to certify to the special facts of the acknowledgment. This certificate contains no information upon the most vital subjects. It does not state what was acknowledged nor by whom any acknowledgment was made, and above all it does not state affirmatively, as it certainly should, that the grantor in the mortgage appeared before the officer for this or any other purpose. Were such a latitude allowed in the performance of this important duty, the opportunities for false personation would be alarmingly increased. In all the particulars mentioned, this certificate is fatally defective, and the necessary consequence, also prescribed by the same statute, follows, to wit, that the mortgage was not entitled to be recorded at all. In Goepp v. Gartisor, 11 Casey 133, we ruled as follows : “ But if a deed or mortgage is defectively registered, or the judgment or lien appears on its face to be null and void, then he (a purchaser at sheriff's sale) is not bound to notice them at all: Magaw v. Garrett, 1 Casey 319—22; Bolton v. Johns, 5 Barr 149. In the last case Chief Justice Gibson says : ‘ The defective registry of a deed is a nullity,’ ‘ and in the case before us the lien filed was a nullity which the purchaser was not bound to notice. Even had actual notice been given him he would have been informed of nothing but an abortive attempt to create a lien where none could exist.’ ” To the same effect is Uhler v. Hutchinson, 11 Harris 110. It follows from these considerations that the learned judge of the court below was in error in his answer to the defendant’s first noint, and in admitting the mortgage in evidence.

Judgment reversed, and venire facias de novo awarded-


author: Mr. Justice Gordon

text:
    Mitchell versus Coombs et al.
    O. executed a mortgage to a bank to secure the payment of a bond. . The bond was paid by 0., but the bank instead of satisfying the mortgage retained it as security for further discounts: Eeld, that as to judgment-creditors the mortgage was satisfied, and no arrangement not apparent on its face would avail to continue its lien.
    November 23d 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrbtt, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas, of Qrawford county: Of October and November Term 1880, No. 105.
    Scire facias sur mortgage issued by D. H. Mitchell, president, in trust for the Producers’ and Manufacturers’ Bank against’Nelson Coombs and E. A. L. Roberts and W. B. Roberts, partners as Roberts & Co., terre-tenants.
    On the 30th of June 1869, Nelson Coombs, the defendant, executed a judgment bond and the mortgage upon which the scire facias issued in this case, to E. W. Ames, president, in trust for the Titus-ville Savings Bank. This bond and mortgage were given for the sum of $1000, payable in two months from the 29th of June 1869, and the mortgage was recorded on the 5th of July 1869, and became the first lien on the property therein mentioned.
    On the 10th of February 1871, Coombs being still indebted to the Savings Bank, and the bank not willing to wait longer on him, an arrangement was made between, the plaintiff representing the Producers’ and Manufacturers’ Bank, and C. C. Duffield, cashier, who represented the Titusville Savings Bank, the mortgagee, by which the plaintiff advanced the mone3 to pay the Savings Bank and took an assignment of the bond and mortgage. The plaintiff was induced to do this'through the representations of the defendant that it was a first lien, and that there was no defence or set-off against it. And the defendant, Coombs, was instrumental in having this arrangement made so that he could have further indulgence.
    The terre-tenants, W. B. & E. A. L. Roberts doing business as Roberts & Co., took a mortgage from the defendant, Coombs, dated June 13th 1871. This mortgage covered the land included in plaintiff’s mortgage and was recorded June 19th 1871.
    The assignment to plaintiff of the mortgage of Coombs to the Savings Bank was not recorded until October 17th 1873. And upon the same day this scire facias on the mortgage in the name of the plaintiff was issued.
    Under the mortgage to Roberts & Co. there was a foreclosure and sale on a levari facias at August Term 1874, and the property bid in by E. A. L. & W. B. Roberts, and deeds were acknowledged and delivered to them.
    On the 30th of June 1879, while this suit was still pending, E. A. L. & W. B. Roberts presented their petition to the court setting forth the above facts in relation to the execution of their mortgage, and the sheriff’s sale thereunder, and alleged that the defendant, Nelson Coombs, had paid the plaintiff the amount due on said mortgage and asked leave to be made defendants, which was granted.
    At the trial before McDermitt, P. J. (of the Thirty-fifth Judicial District), the plaintiff presented the following points, to which are appended the answers of the court.
    2. The record of the mortgage was notice to the world of its existence as alien, and the assignment thereof having been recorded October 17th 1873, was notice to the terre-tenants who purchased at sheriff’s sale in August 1874 of its continuance in the hands of plaintiff, and the purchase by them would be-subject to the lien of this mortgage.
    Ans. “ The purchaser at'the sheriff’s sale took a good title provided the sale was made on a lien prior to the recording ot the assignment of the mortgage to the plaintiff. Thus explained the point is refused.”
    3. No notice of any alleged payment of- the mortgage having been given at the time of the sheriff’s sale, the Messrs. Roberts are presumed to have purchased the property for a sum less by the amount of the mortgage than they otherwise would have paid.
    Ans. “It is wholly immaterial whether the defendants, Roberts, purchased the land for $1000 less than they would have paid had it not been for the mortgage. The point is refused.”
    4. The terre-tenants (Roberts) by their purchase at sheriff’s sale acquired no greater right than Coombs, the mortgagor, had to the land embraced in the mortgage at the time their lien attached.
    Ans. “ As explained in the general charge, this point is answered in the negative.”
    The following were among the points of the defendant with the answers of the court thereto :
    1. That the bond and mortgage in question were for the payment of $1000 on the 29th of August 1869, absolutely and without any stipulation that the same was security for future discounts, and if the jury believe that the mortgage was paid by Coombs to the mortgagee in October 1869, the lien of the mortgage is discharged, especially as to subsequent purchasers at sheriff’s sale of the premises in question, and the verdict should be for defendants.
    Ans. “Affirmed.”
    2. That under the evidence in this case, Mitchell, president, did not purchase the mortgage from the Titusville Savings Bank,'nor pay this bank anything for the assignment thereof, and it is not to be treated as a bona fide purchaser of the same, and the same should not prejudice bona fide purchasers of the premises at judicial sale.
    Ans. “ The law is correctly stated in this point, but the facts assumed in it you must find from the evidence.”
    3. That if the jury believe from the evidence the negotiation whereby an assignment of the mortgage in suit was taken as collateral, for the payment of the note was entirely between Coombs and Mitchell, it can have no greater effect than the creation of a parol mortgage and will not make a valid lien against the premises in hands of defendants, Roberts, purchasers of the premises at judicial sale without notice.
    Ans. “So far as the defendants, Roberts, are concerned this point is affirmed, but refused as to Coombs.”
    4. That the alleged assignment of the mortgage in question was not recorded until October 17th 1873, and that the lien of the mortgage upon same premises, dated June 13th 1871, of Coombs to Roberts, and the judgments of Guthrie against Coombs entered January 18th 1870 and January 16tbi 1871, under which' Roberts became the owners of the premises in question, were liens long prior to the recording of this assignment, and therefore defendants, Roberts, held the premises discharged of any lien of the alleged mortgage.
    Ans. “If the-facts are as assumed in this point it is affirmed.”
    In the general charge the court, inter alia, said: “ According to the evidence of the defendant, Coombs, and of D. H. Mitchell, the plaintiff in trust, this mortgage was on the 10th of February 1871, assigned by Coombs to the plaintiff as security for a loan of $1000.
    * * * If this case was between the defendant, Coombs, alone, and the plaintiff, the mortgage would, under the evidence, be valid; but when the rights of subsequent lien-creditors or purchasers at a judicial sale are involved and become so prior to the recording of the assignment to the plaintiff, the law as to them is different. * * * If you are reasonably satisfied, from the evidence, that Coombs paid this mortgage in full to the mortgagee prior to the assignment to the plaintiff, your verdict must be in favor of the defendants, Roberts, terre-tenants.”
    The jury found for the plaintiff against Nelson Coombs in the sum of $1347, but judgment not to be a lien on the land described in the mortgage.
    After judgment thereon Mitchell took this writ and alleged that the court erred in the answers to the above points and in the foregoing portions of the general charge.

      Neill & Heywang and Guthrie & Byles, for plaintiff in error. —
    The assignee of a mortgage is not bound to record his assignment, and the plaintiff was not bound to record his assignment as against Guthrie or Roberts: Mott v. Clark, 9 Barr 399 ; Craft v. Webster, 4 Rawle 242 ; Goff v. Denny, 2 Phila. 275 : Pepper’s Appeal, 27 P. F. Smith 377; Johnson v. McCurdy, 2 Norris 282. Even if Coombs paid the mortgage to the Savings Bank in October 1869, and still allowed it to remain as a continuing security for future advances which the bank by a binding agreement was obliged to make to him, and did make on the strength of the mortgage as security; and if while it remained as a security the Savings Bank assigned it to plaintiff, and plaintiff purchased upon the representation of Coombs, that it was a valid mortgage and a first lien, a subsequent purchaser, whether at judicial sale or otherwise, was bound to inquire concerning that mortgage whether the assignment of it to the plaintiff' was recorded or not, and the court under the facts in this case should have qualified the affirmance of the defendant’s point.
    The-rule that a mortgage becomes extinct on payment and cannot be resuscitated by the parties,- meets with an exception where the mortgage is assigned to a third person, who gives value on the faith of a statement by the mortgagor, that the full amount is due, and that there is no offset: 1 White & Tudor’s Lead. Cas. Eq. 876. Coombs is estopped: Scott v. Sadler, 2 P. F. Smith 211. This does not rest however alone upon the doctrine of estoppel but also upon our recording act. While in this state a mortgage is but a security, yet it has all the effect of a conveyance of the legal title, and an assignee bf a mortgage for value is entitled to the protection of that act. This subject is fully considered by Rogers, J., in Mott v. Clark, supra. See also, Bassett v. Nosworthy, 2 White & Tudor’s Lead. Gas. in Eq. 58 et seq. We contend, therefore, that the plaintiff was a bona fide holder for value of the mortgage without notice.

      J. Douglass and C. W. Tyler, for defendants in error.
    The bond and mortgage given by Coombs to the Titusville Savings Bank being conditioned for the payment of a specific sum at a given time, its payment discharged the lien of the mortgage, and the parol arrangement by which it was agreed that the mortgage should remain unsatisfied and in full force as collateral security for future loans, was void as against creditors : Irvin v. Tabb, 17 S. & R. 419. This agreement between Coombs and the Titusville Savings Bank was in parol and would constitute, if valid, an oral mortgage. It is settled that no such security exists in Pennsylvania: Bowers v. Oyster, 3 P. & W. 239; Mode’s Appeal, 6 W. & S. 280; Kinley v. Hill, 4 Id. 226. Admitting that the parol agreement between Coombs and Duffield, representing the Titus-ville Savings Bank, was valid, and that the mortgage remained a security for the loans which were made from time to time, the lien would begin upon the date of the actual advancement. This would be true even if the expressed condition of the mortgage had been to secure future advances: Appeal of the Bank of Commerce, 8 Wright 423; Ter Hoven v. Kerns, 2 Barr 96; Bank of Montgomery County’s Appeal, 12 Casey 170; Parker v. Jacoby, 3 Grant 300; Parmentier v. Gillespie, 9 Barr 86; Mullison’s Estate, 18 P. F. Smith 212; Stevenson’s Appeal, Id. 212.
   Mr. Justice Gordon

delivered the opinion of the court, January 3d 1881.

The mortgage in suit was executed by Nelson Coombs, June 30th 1869, to E. Ames, president, in trust for the Titusville Savings Bank, and was intended to secure, not future advancements, but a bond of $1000, which Coombs, at that time owed the bank. Shortly after this bond became due, it was, as the jury have found, fully paid. The bank, however, instead of satisfying the mortgage, retained it as security for future discounts.

As to Coombs, his acquiescence in this arrangement would, no doubt, estop him from setting up the payment of the bond to defeat the mortgage, but as to his judgment creditors, the transaction was of no legal force. As to them the mortgage was satisfied, and no arrangement, not apparent on its face, would avail to continue its lien.

Chief Justice Gibson, in Irwin v. Tabb, 17 S. & R. 423, says: “ It must, perhaps; be conceded, that a mortgage to secure future advances, which does not contain notice of the agreement, is void against creditors generally.” But the argument used to support this doctrine, will apply a fortiori tó a mortgage which, though paid in full, is retained as security by the mortgagee under a secret agreement for future discounts — discounts not contemplated by the parties when the mortgage was executed. In the case, as stated by the chief justice, creditors would at least be notified that there was an intention to secure some future indebtedness though of an indefinite character, but in the case before us there is notice of nothing but of the intention of the parties to secure a present indebtedness of $1000. It'is true, as in Gault v. McGrath, 8 Casey 392, a mortgage with its bonds may be executed as security for notes and their subsequent renewals; or as in the Bank of Commerce, 8 Wright 423, they may serve as collaterals for paper to be thereafter discounted, but for whatever purpose they may be given, they extend not beyond the amount specified in them, and when that amount is paid, they are, as to creditors, no longer operative.

And thus it was held, in Anderson v. Neff, 11 S. & R. 223, and in Craft v. Webster, 4 Rawle 255, that a mortgage is but a security for a debt, and when that is paid or extinguished, it can never be resuscitated.

What then had the. Titusville Savings Bank, on the 10th of February 1871, to assign to the Producers’ and Manufacturers’ Bank, but a satisfied mortgage, good neither as a security nor as a conveyance ?

And let us suppose that this assignment, made, as it was, with Coombs’s consent, not only estopped him, but, as to creditors, amounted to a novation of the mortgage, yet, as to them, it could be nothing more than a novation, .and, in order to give it effect, they must have notice.

But, before this assignment was executed, the Guthrie judgments were upon the dockets, and before it was recorded, the Roberts mortgage was entered. It thus follows, that the mortgage in suit cannot, under any view of the facts, occupy the status of a first lien, and it also follows that the purchasers at the sheriff’s sale took the property unencumbered by any such lien.

The verdict, under the charge of the court, warranted the entry of a judgment for the terre-tenants, E. A. L. and W. B. Roberts, and ought to have been so entered. It may yet be amended if it be thought necessary, though, as it stands, the effect is much the same, since the land is discharged of the lien.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Monongahela Water Co. versus Stewartson et ux.
    1. Oross-oxamination must be confined to matters stated in the examination in chief, and to questions affecting the credibility of the witness.
    2. In an action to recover damages for injuries received from falling into an excavation, defendant, on cross-examination, proposed to ask the plaintiff' whether she had not agreed to waive her right to damages for a consideration: Held, that the question was properly-excluded.
    3. The court allowed plaintiff's counsel to ask a witness whether or not, immediately prior to the putting up of a barricade around the excavation, he notified the party in charge of the work of the dangerous character of the placo, and that a barricade was necessary, for the purpose of showing an admission of negligence on the part of the defendant company, by the erection of a barricade after the accident, and also to show that there was no barricade before: Held, that the question should have been excluded.
    4. A witness who had known the plaintiff for a number of years before the accident and was with her several weeks thereafter was permitted to give her opinion of the injury upon the plaintiff’s health: Held, that her opinion should have been excluded. The witness had no means of special knowledge or experience, and the jury, not herself, should have drawn the inferences from the facts she narrated.
    November 3d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Error to tbe Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 116.
    Case by William B. Stewartson and Harriet N. Stewartson, bis wife, in right of said wife, against tbe Monongahela Water Company, to recover damages for injuries received by Mrs. Stewartson through falling into an excavation.
    Tbe defendant is a company incorporated under statutes of Pennsylvania for the purpose of supplying water to that part of tbe city of Pittsburgh on the south side of the Monongahela river. The pipes of the company extend along the streets of what was Birmingham, East Birmingham, Monongahela ’borough, Temperanceville, and other suburbs of the old city. In the summer of 1876, the company, at the request of the citizens on the heights of Allentown, were laying pipes in the comparatively unsettled portions of the city. For that purpose they employed William Dickson, who had sole and exclusive control of the excavation for pipe laying. On the 14th. of June 1876, an excavation was made in what is on the map as Plain avenue, an unpaved street. The plaintiff, Mrs. Stewartson, saw the men at work at the excavation during the 14th. On that evening she alleged that she was proceeding down an alley leading into Plain avenue and fell into the excavation and sustained the injuries complained of. ■
    The trial was before Kirkpatrick, A. L. J.
    The verdict was for plaintiffs, and after judgment thereon defendant took this writ alleging that the court erred as follows:—

      1. In excluding the testimony sought to be elicited from plaintiff by the following question :—
    “ Q. Didn’t you arrange (through Daniel Wenke) with the officers of the company, that if they would not charge you with any water, you would not find any fault with them about the matter?”
    2. In excluding the question proposed by defendant’s counsel to plaintiff, as follows:
    To ask witness whether she did not say to Stengle (superintendent of defendant company) that she had been only a little scratched ?
    3. In admitting the following offer: Plaintiff’s counsel propose to ask the witness whether or not immediately prior to the putting up of the barricade, he notified the party in charge of the work of ■ the dangerous character of the place, and that a barricade was necessary, for the purpose of showing an admission of negligence upon the part of the defendant company, by the erection of a barricade after the accident, and also to show that there was no such barricade before.
    4. In admitting the question of plaintiff’s counsel to the servant girl, Miss Fern: “ From your knowledge of the woman before and after the accident,- could you tell us what effect it had upon her health ?”
    5. In admitting the question of plaintiff’s counsel to Dr. Case: “ From your professional knowledge of Mrs. SteAvartson’s condition, will she ever be a healthy woman ?”

      Thomas M. Marshall, for plaintiff in error.
    The first assignment of error is to the ruling of the court upon the cross-examination of plaintiff. She had been examined at length as to the alleged injuries to her person, their extent, &c. The defence proposed to ask her if she had not agreed to waive her right to damages if the company would grant her immunity from Avaterrent. The question, if answered in the affirmative, tended to show that she Avas not greatly injured. We contend that a large latitude of cross-examination is alloAvable when the party is a Avitness testifying to the extent of injuries which mainly consisted of “ pain and anguish,” and the truth of Avhich rests entirely in the veracity of the witness.
    Immediately after the injuries to the plaintiff, Mr. Stengle called upon her and had a conversation as to the extent of her injuries. Knowing this fact, after the plaintiff had been examined in chief as to the extent of her injuries by falling into the excavation, in cross-examination we proposed to inquire if she had not said to Mr. Stengle, superintendent, of the defendant company, that she had “ only been a little scratched ” by the fall into the ditch. This went directly to the question of the extent of the damages.
    The pretence that a notice by a third party to the workmen employed at the excavation tended to prove an admission of negligence on the part of the company is beyond precedent. The offer and' assignment of error is all that is deemed necessary. The fourth error is to the admission of a servant girl as an expert.

      W. C. Moreland and Hampton & Dalzell, for defendants in error.
    —Cross-examination must be confined to the matters which have been stated in the examination in chief. A party will.not be permitted to lead out new matter, constituting his own case, by the cross-examination of his adversary’s witness: Ellmaker v. Buckley, 16 S. & R. 72; Floyd v. Bovard, 6 W. & S. 75; Mitchell v. Welch, 5 Harris 339; Turner v. Reynolds, 11 Id. 199 ; Jackson v. Bitch, 12 P. F. Smith 455.
    The court permitted the plaintiffs to show that the police officer on duty on the street where the accident happened, warned the party in charge that a barricade was necessary, 'and that after said warning one was erected. Dickson was certainly the proper party to notify. He was in charge of the work, and notice to him was notice to the defendant: Frazier v. Penna. Railroad Co., 2 Wright 104. To prove the putting up of the barricade was competent on the question of negligence: Penna. Railroad Co. v. Henderson, 1 P. F. Smith 315; McKee v. Bidwell, 24 Id. 218.
    Miss Fern had been Mrs. Stewartson’s neighbor for eleven years, and her nurse after her injury. Dr. Case was her family physician. Surely both were competent to give an opinion as to the result of the injury. The competency of a person to give his opinion as an expert, if on a preliminary examination he appears to have any pretensions to speak as such, rests much in the discretion of the judge trying the cause: Ardesco Oil Co. v. Gilson, 13 P. F. Smith 147.
   Mr. Justice Trunkey

delivered the opinion of the court, November 15th 1880.

Cross-examination must be confined to matters stated in the examination in chief, and to questions affecting the credibility of the witness. A party will not be permitted to leave out new matter constituting his own case: Jackson v. Litch, 12 P. F. Smith 451. Where the plaintiff testifies in his own behalf, the defendant has no right to introduce his defence on the cross-examination; at the time of making his defence he may examine the plaintiff in chief as if under cross-examination: Malone v. Dougherty, 19 P. F. Smith 46. The question, made the subject of the first assignment of error, was whether the plaintiff had not agreed to waive her right of damages for a consideration. That was matter of defence— it was not said to be for another purpose — and the court rightly overruled it.

The second assignment is the refusal of the court to permit tlie defendant, on cross-examination of the plaintiff, to ask whether she did not say to Stengle that she had been only a little scratched. The witness had already stated that Stengle was at her house the next day after the accident. In chief she testified that she was severely hurt. Had she answered the question affirmatively, it would have tended to show her view of the injury at the time; if negatively, ground would have been laid for contradiction. The question directly related to the subject of her examination in chief and was admissible.

Reese testified that a barricade was put up the next morning after the accident, and that was competent on the question of negligence: McKee v. Bidwell, 24 P. F. Smith 218. Then the plaintiff was allowed “ to ask the witness whether or not, immediately prior to the putting up of the barricade, he notified the party in charge of the work of the dangerous character of the place and that a barricade was necessary, for the purpose of showing an admission of negligence upon the part of the defendant company, by the erection of a barricade after the accident, and also to show that there rvas no such barricade before.” This notice was after the accident; so, also, was the admission of the person in charge of the work; altogether too long after for declarations of an agent to be competent. Frazier v. Pennsylvania Railroad Co., 2 Wright 104, cited in support of the offer does not apply. There testimony was rejected relating to the knowledge of the superintendent prior to the accident, and nothing in the case touches admissions by a laborer or agent. The admission by an agent as to a past occurrence is not evidence against his principal: Fawcett v. Bigley,. 9 P. F. Smith 411; Pennsylvania Railroad Co. v. Titusville & Pithole Plank Road Co., 21 Id. 350; Bigley v. Williams, 30 Id. 107. The third assignment of error must be sustained.

We are also of opinion that the fourth assignment is well taken. Miss Fern was acquainted with the plaintiff before the accident and was with her a number of weeks after. It does not appear that she had any experience whatever to qualify her to speak as an expert, and yet she was permitted to give her opinion of the effect of the injury upon the plaintiff’s health. She was positive that the accident had a very bad effect, but had she been an expert she might have been as doubtful of the cause of the plaintiff’s subsequent ill health as was Dr. Case. No better illustration than this can be given of the propriety of excluding opinions of persons who have no knowledge or experience on the subject. It was said by the present chief justice that no clearly defined rule can be found as to what constitutes an expert. Much depends on the nature of the question in regard to which an opinion is asked. While, undoubtedly, it must appear that the witness has enjoyed some means of special knowledge or experience, no rule can be laid down in the nature of things as to the extent of it: Ardesco Oil Co. v. Gilson, 13 P. F. Smith 146. This witness had no means of- special knowledge or experience, and the jury, not herself, should have drawn the inferences from the facts she narrated.

The fifth assignment is not sustained.

Judgment reversed, and a venire facias de novo awarded.


text:
    Messersmith versus Sharon Savings Bank.
    . 1. The transferees of stock in an incorporated company is not liable for an unpaid subscription.
    2. The capital stock of a corporation is a trust fund for the protection and benefit of creditors, and this extends to the entire stock subscribed, and not merely to the percentage paid in, and a subscriber cannot cast off his liability by a transfer of his stock to another party.
    November 23d 1880.
    Before Merour, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the .Court of Common Pleas of Mercer county: Of October and November Term 1880, No. 46.
    Debt by the Sharon Savings Bank, to the use of A. E. Graham, against Jacob Messersmith, to recover assessments upon stock.
    The legal plaintiff was duly incorporated on the 10th of September 1869. Its capital stock was $50,000, divided into one thousand shares, twenty-five of which were subscribed by the defendant. The corporation having become insolvent, made an assignment to the use of plaintiff for the benefit of creditors on the 16th of September 1878- Prior thereto only twenty-five per cent, of the original stock had been called in by the board of managers, and which the defendant had paid on his shares. He then in'good faith, and before said assignment was made or the insolvency of the corporation was known to him, and with the knowledge and assent of the bank, transferred his stock to F. Buhl. Since the assignment the directors have called in the unpaid seventy-five per cent, of the original stock. And the defendant refusing to pay the assessment upon his said shares, this suit was brought for the collection of the same, and for the payment of the bank’s liabilities.
    The' court, McDermitt, P. J., in an opinion, after stating the facts as above, said:

      “ Whether he is liable under the facts above stated is the legal question reserved. Common honesty, elementary law and all the decisions, state and national, regard the capital stock of a corporation as a trust fund for the benefit and protection of its creditors. Neither the directors not the stockholders, nor both combined, can withhold the same from the reach of the corporation’s creditors. The stock so held in trust is the entire subscribed stock, not merely the paid in percentage. Whatever legal acts the board of directors may perform relative to the mode and manner of collecting the capital stock, they cannot, by any device whatever, release the liability of both the original stockholder and his assignee from the payment in full of the stock originally subscribed, when the same becomes necessary for the payment of the corporation’s debts ; and, as our own Supreme Court holds, in the Pittsburgh and Baltimore Coal, Coke and Iron Co. v. Otterson, 4 W. N. C. 545, that an assignee of such stock is not liable in a suit by the corporation to collect the assessments made thereon subsequent to his purchase of it, though he agreed with his assignor at the time of the assignment to pay them, and though, too, he did pay some of them, and though he was, as the owner of such stock, elected a director and aetéd as such, it follows as a legal corollary that the original subscriber must be or no one is. The question reserved is ruled in favor of the plaintiff.”
    This action of the court was assigned for error by defendant, who took this writ.

      Stranahan & Mehard and John McClure, for plaintiff in error.—
    When an original subscriber to the stock of an incorporated company, who is so bound to pay the instalments on his subscription, from time to time as they are called in by the company, transfers his stock to another person, such other person is substituted not only to the rights but to the obligations of the original subscriber, and he is bound to pay up the instalments called for after the transfer to him. The liability to pay the instalments is shifted from the outgoing to the incoming shareholder. A privity is created between the two by the assignment of the one and the acceptance of the other, and also between them and the corporation, for it would be absurd to say, upon general reasoning, that if the original subscribers have the power of assigning their shares, they should, after disposing of them, be liable to the burdens which are thrown upon the owners of the stock: Angell & Ames on Corporations, sect. 534; Webster v. Upton’s Assignee, 1 Otto 65.
    It may be answered to all this, as stated by the learned judge of the court below in his opinion, that the assignee of the stock is not liable for unpaid assessments on stock, and, therefore, it follows as a legal corollary that the original subscriber must be or no one is. It was held by Justice Kennedy, in the case of The West Philadelphia Canal Co. v. Innes, 3 Whart. 197, that the assignee was not liable, and yet he used the language so directly applicable to this case and above quoted. If the. original subscriber, acting honestly and good faith, is released by the company, it does not necessarily follow that his assignee is liable or that no one is, or he must find some person that is liable. It is enough that the original subscriber has done all that is required of him without looking for any other to bear or share a burden which he did- nothing to bring about and for which he is not responsible.

      Thomas Tanner and S. Griffith & Son, for defendants in error.—
    This court has held in a long line of decisions, from that in Schuylkill Nav. Co. v. Sansom, 1 Binn. 70, to that in Pittsburgh and Baltimore Coal, Coke and Iron Co. v. Otters on, 4 W. N. C. 545, that the transferree of stock in an incorporated company is not liable for the unpaid subscription. With this last principle firmly established, what becomes of the trust fiind to which creditors are to resort if the subscribers are released by a transfer of their shares ? If a transfer of unpaid shares is a release from further liability, the greater part of a corporation’s assets in many cases may be frittered away through transfers. We contend that it is not in the power of either the directors or stockholders of a corporation,”or of both together, to release a subscriber from liability to pay for stock taken by him, or to deprive the creditors of the corporation of any part of the security afforded by its capital as a trust fund: Burke v. Smith, 16 Wall. 395 ; Johnson v. Laflin, 17 Albany L. J. 146; 6 Central L. J. 124; Thompson’s National Bank Cases 331; McClarren v. Franciscus, 43 Mo. 467.
    There is no force in the plaintiff's contention that, unless a transfer operates as a release the liability of a subscriber to the eapital of a corporation is of indefinite duration; the same limitation applies to such contracts as to others, whether by parol or specialty: Pittsburgh and Connellsville Railroad Co. v. Byers, 8 Casey 22; McCleery v. Pittsburgh and Connellsville Railroad Co., Id, 25. In any event the plaintiff in error could havé protected himself by requiring indemnity from his transferree. The principle laid down in plaintiff’s citation from Angell & Ames on Corporations, sect. 534, is not without reason, since it imposes the subscriber’s liability on his transferree; but since, under the rulings of this court, that liability does not follow a transfer, we contend that no part of the principle cited should prevail in this state.
   Mr. Justice Gordon

delivered the opinion of the court, January 3d 1881.

It is difficult to understand upon what principle Messersmith seeks to avoid his obligation to the plaintiff corporation. There was no doubt about his liability when he subscribed for the stock, but he now seems to think that he ought to be released by virtue of his assignment to McCarter. Exactly why this should be so, why he should be discharged from his contract by the mere fact of his assignment of it to a third party, has not been made clear to us. Had McCarter agreed with the bank to assume this obligation, and had the bank thereupon executed a release to Messersmith. the matter would be of easy comprehension, hut that the transfer of the stock, without more, should have the effect contended for cannot he admitted. It is said the bank officers assented to the transfer, and that it was made on the books of the bank. Concede this to be so, that does not help the matter, for McCarter did not thereby assume the unpaid instalments of the stock subscription, neither was Messersmith thereby released: Franks Oil Co. v. McCleary, 13 P. F. Smith 317; Coal Co. v. Otterson, 4 W. N. C. 545.

Furthermore, as was well said by. the learned judge of the court below, the capital stock of a corporation is a trust fund for the protection and benefit of creditors, and this extends to the entire stock subscribed, and not merely to the percentage paid in. This is true, and with him -we are inclined to think that such stock would be but sorry security for creditors if the subscriber could, at any lime, cast off his liability by a transfer to another party, who, as we have seen, thereby assumes no liability to the corporation.

On no principle of law or morals can the doctrine advocated by the defendant be sustained, since it, in effect, makes the execution of the contract depend wholly upon the will of the obligor.

Judgment affirmed.


text:
    Berger’s Appeal.
    1. T. agreed to purchase of II. a tract of laud when the encumbrances were removed. They met a number of creditors at the prothonotary’s office who released all of II.’s real estate from the liens of the judgments except one tract, and M. agreed that the judgment of B. should have preference in the order of lien to his own. S. was acting as agent for B., and refused to release B.'s judgment unless such priority was given, and signed the release upon the assurance that M. so agreed. The agreement was in writing. M. contended that his contract to give B. priority was nudum pactum, because S. had no authority to release; and because he had received no consideration for the performance. B. pursued the land excepted from the release and claimed the money by virtue of M.’s agreement: Held, that this conduct was a ratification by B. nf the act of S. ; that the mutual promises were a sufficient consideration for the contract, and that M. was bound by his contemporaneous promise.
    2. The ratification of a contract originally made by one without authority, will relieve the agent from all responsibility, if the contract purports to be made by him merely as agent, although without such ratification he would be liable to the other party and also in some cases to the principal.
    November 23d 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Appeal from the Court of Common Pleas of Crawford county: Of October and November Term 1880, No. 204.

      Appeal of Peter Berger from the decree of the court confirming the report of the auditor appointed to pass upon the exceptions to the special return of the sheriff of the sale of tire real estate of W. R. Hoig. .
    The facts are set forth in the following report of the auditor, D. C. McCoy, Esq.:
    “ In February 1876, W. R. Hoig was the owner of several pieces of real estate, and at the same time a number of judgments existed against him, liens upon the same. Among said judgments was one in favor of C. R. Marsh for $1500, entered August 14th 1875, and one in favor of Peter Berger, entered October 26th 1875, for $594.84, and between these two judgments the controversy in this case arises. On the 28th of February 1876, W. C. Thomas, desiring to purchase one of the pieces of real estate owned by said Hoig, in case'the same could be released from the liens by which it was encumbered, went in company with his counsel, and C. R. Marsh and John W. Swift, to the prothonotary’s office for the purpose of releasing certain of the liens, and the following entries were made upon the appearance docket: In the case of C. R. Marsh v. W. R. Hoig, No. 424, August Term 1875, ‘ I hereby release the lien of this judgment upon all the real estate of the defendant, W. R. Hoig, except his farm in Woodcock township, west of the Susquehanna, turnpike, adjoining land of James Clark, and agree that the judgment of Peter Berger, No. 827, August Term 1875, shall have preference in the order of lien to this one, February 28th 1876. C. R. Marsh.’
    “ On the judgment of Peter Berger v. W. R. Hoig, ‘ I, John. W. Swift, agent for Peter Berger in this case, hereby release the lien of this judgment upon all the real estate of the defendant, W. R. Hoig, except his farm in Woodcock township, west of the Susquehanna and Waterford turnpike, and adjoining land of James Clark, containing about thirty-four acres, more or less, February 28th 1876. John W. Swipt, agent for Peter Berger.’ Peter Berger was then in Europe, having gone there some time before, and having verbally empowered Swift to look after his judgment against Hoig, and receive and deposit the money to the credit of Berger, in case the judgment should be paid in his absence. At the time the releases above mentioned were signed, Swift refused to execute the release of the Berger judgment unless it was agreed that it should have priority of lien of the Marsh judgment on the land of Hoig excepted in both releases, to which it was, in fact, the subsequent lien of both. This is stated as a fact, because the preponderance of the testimony is so. But it is fair to state also that Marsh does not now remember the fact. The matter rested in this way until after the return of Berger from Europe. The time when he returned did not appear on the hearing. After his return the writ upon which the sale in this case was made was issued, and the sale proceeded with, as shown by the writ' and return. The sheriff having made a special return under the Act of 1846, after paying the balance of a prior lien applied the balance of the fund in his hands to the Marsh judgment, it being next in lien. To this return a number of exceptions were filed on behalf of Berger, all resulting practically in the same thing, to wit: that the agreement contained in the release of the Marsh judgment is operative, and that the fund should be applied to the payment of the Berger judgment in preference to that of Marsh. It is claimed and not disputed that the purchase-money paid by Thomas at the time the release was signed was applied to the payment of prior liens against Hoig. The land sold on this writ is the same which is excepted from the operation of both the-releases above mentioned. On the foregoing facts it is claimed on behalf of Berger that he having accepted and ratified the act of Swift in releasing the lien of his judgment from all the real estate of Hoig except the piece from which this fund arises, and the fact that Swift refused to execute the release unless the Berger judgment was to have preference over the Marsh judgment in lien, that the agreement of Marsh to give it priority is binding, and that Marsh is estopped from disputing its operation. While it is claimed by Marsh that he had no intention of giving the Berger judgment priority of lien to his own on this particular piece of land, and that even if he had, that Swift had no power to release the lien of the Berger judgment, and that even if he had the power, and the lien of the Berger judgment was released by the act of Swiff, that as between himself and Berger there was no consideration for his agreement to give priority to the Berger judgment, and that the agreement is not binding, and further, that so far as the equities are concerned, he is in a better position than Berger. The position that the release is not operative because the releasor did not intend it to be so, is not sound. The language is too plain to be misunderstood; it speaks for itself and its language admits of no construction but the one that Berger’s judgment was to have priority of lien. -The release and the agreement which it contains, that the Berger judgment shall have priority, are not under seal, and no consideration is mentioned for the execution thereof. Therefore, to make it binding, a consideration must be shown. Was there a sufficient consideration for the release of the Marsh judgment, and the agreement that it should be postponed in lien to that of Berger as between Marsh and Berger ? The parties met at the prothonotary’s office for the purpose of releasing the liens of the judgments which they held from a certain piece of land that Thomas was about to purchase. Marsh’s judgment was prior to Berger’s. Marsh surely could gain nothing by giving Berger priority, and therefore unless Berger would have lost something if Marsh, had refused to make the agreement, there is no consideration. Was anything yielded by Berger or for him? In strict law it might be said that lie released the lien of his judgment from the other lands of Hoig, and particularly that purchased by Thomas?
    “ The answer is, in strict law, he did not. There is not the semblance of evidence that Swift had any authority to release the lien of the Berger judgment. The act of Swift at the time was entirely void for want of authority. An attorney of the court, and of record in the cause for Bei'ger, would have no such power, much less would Swift. At the time of the transaction the lien of the Berger judgment was not released from any land, and if it was a question for decision here, I should say it is very doubtful if it is now: In equity the Marsh judgment has surely the stronger claim. It is first in order of lien and fairly entitled to be first paid. The purchase-money paid by Thomas having gone to the payment of prior liens, and having brought, as was claimed and not denied, a larger price than it would likely bring at sheriff’s sale, as was reasonable, and seemed to be understood by all parties that it would, it is difficult to see how Marsh gained and Berger yielded anything in the transaction. It seems to me that under the facts of this case equity would refuse to enforce this agreement. The doctrine of estoppel is invoked on behalf of Berger. I think it does not apply. Berger made no purchase and relinquished no rights, and invested nothing at, and during the transaction at the prothonotary’s office. Then neither the act or the silence of Marsh would operate as an estoppel unless the equities are against him, which they are not here. The doctrine of estoppel is applied to prevent injustice and not to create rights. An eminent judge has said ‘ that it is to be used as a shield, not as a sword.’ I am of the opinion that the Marsh judgment is entitled to priority over that of Berger, and that the exceptions to the sheriff’s special return and the acknowledgment of the sheriff’s deed, ought to be dismissed and the deed acknowledged and distribution made accordingly.”
    Exceptions were filed to this report, which the court, Church, P. J., dismissed and confirmed the report. From this decree this appeal was taken.

      Roddy, H. J. Humes and C. M. Boush, for appellant.

      H. L. Richmond, Jr., for appellee.
   Mr. Justice Trunkey

delivered the opinion of the court, January 3d 1881.

Thomas agreed to purchase of Hoig a tract of land, the bargain to be consummated when the encumbrances were removed. They met a number of creditors at the prothonotary’s office, who released all Iloig’s real estate from the lien of their judgments except one tract; and Marsh agreed that Berger’s judgment should have preference in the order of lien to his own. Swift was acting as agent for Berger and refused to release Berger’s judgment unless such priority was given, and signed the release upon assurance that Marsh so agreed. The agreement to give preference is in writing; the inducement or consideration is proved by oral testimony, and the fact is found by the auditor.

It is conceded that each creditor is bound by his release, on the faith of which Thomas took the land and paid the purchase-money. But Marsh claims that his contract to give Berger priority is nudum pactum, because Swift had no authority to release; and also because he received no consideration for the postponement.

Upon the act of Swift, as agent for Berger, Thomas paid the purchase-money to Hoig. If Swift’s act was authorized by the principal, he was not personally liable ; but if he had no authority, or exceeded the authority delegated to him, he became personally responsible to Thomas for the validity of the release. Where an agent has no authority and undertakes to act for the principal, he will be personally responsible therefor to the person with whom he is dealing for or on account of his principal; for by holding himself out as having authority to act he draws the other party into a reciprocal engagement. Whatever was done by Swift as agent is valid, if subsequently ratified by Berger. A great jurist said, no maxim is better settled in reason and law than that a subsequent ratification has a retrospective effect, and is equivalent to a prior command. The general rule is, that the subsequent assent of the principal to his agent’s conduct renders the principal liable on contracts made in violation of the principal’s orders, or even where there has been no previous retainer or employment; and this assent may be inferred from acts of the principal. Berger has pursued the land excepted from the release; he claims the money by virtue of Marsh’s agreement; he exeepted to the auditor’s report, and has appealed to this court, insisting upon the enforcement of that agreement. No stronger evidence of ratification ought to be required. But Swift was his agent in fact for some purposes, and though informed of his agent’s act, he. did not disavow it, and therefore he made the agent’s act his own : Bredin v. Dubarry, 14 S. & R. 27. We discover nothing in this case to take it out of the operation of general and familiar rules relative to ratification by a principal of what has been done in his name by one acting as his agent. In general, the ratification of a contract originally made by one without authority, will relieve the agent from all responsibility if the contract purports to be made by him merely as agent, although without such ratification, he would be liable to the other party, and also in some cases to the principal. The facts in th¡3 case clearly show a contract which could be approved by Berger and made his own. If the contract were void, no subsequent act would ratify it; the rule has exceptions. Where a contract has been made by a person with one as agent who has no authority, the parties do not always stand oh equal terms; since the principal may elect to ratify the act or disavow it. This is not the only case where one contracting party may be bound before the other; for instance, one who makes an executory contract with an infant is liable thereon, though the infant may renounce or confirm when he arrives -at majority; and a married woman may hold a party to performance of an agreement with her, though it could not be enforced against her. Thomas properly acted upon the release; had it not been ratified he would have remedy, if compelled to pay Berger’s judgment, against Swift; the ratification has the same effect as original" authority, and Berger is bound while Swift is not answerable at all. Now, the rights of the parties are to be considered as if Berger himself originally released and made the agreement with Marsh.

The consideration, in part if not entirely, for Berger’s release, was Marsh’s agreement to postpone the lien of his judgment on the. remaining farm of IToig. This was sufficient if the release conferred a slight benefit on Marsh or a third person ; or if Berger suffered the least injury or inconvenience without benefiting any person. But it was a benefit to Hoig and Thomas, and it was a giving up of a right by Berger. It is immaterial that Marsh received no benefit, if he procured a benefit to another, or caused the appellant to part with a legal right. Mutual promises are a sufficient consideration for each other; Marsh and Thomas enjoy all which Berger gave, and Marsh is bound by his cotemporaneous promise.

It Was pressed in argument that the appellee’s judgment has the stronger claim in equity. This is not apparent. He contracted that his legal right of priority should be postponed, in favor of the appellant. He himself wrote and signed the contract, and there is not the slightest evidence of fraud or imposition. It is manifest that for some cause he was generous to Hoig and wished the sale to Thomas consummated, to which end he made the agreement; but there is nothing in that calling for its rescission.

Decree reversed, and it is now considered and decreed that the judgment of Peter Berger, No. 827, August Term 1875, is entitled to preference in the order of lien to the judgment of C. R. Marsh at No. 424, August Term 1875, and that the fund be appropriated accordingly. Costs of this appeal to be paid by the appellee.


author: Mr. Justice Sterrett

text:
    Garbracht versus The Commonwealth.
    1. To constitute a sale of personal property, especially under a penal statute, there must be a transfer of the title for a certain consideration.
    2. Delivery, either actual or constructive, is an essential ingredient in a sale of personal property. An agreement to sell is only executory until the contract is completed by delivery.
    3. A travelling agent for a wholesale licensed liquor dealer, doing business in Erie, solicited and received orders for whiskey in Mercer county. The orders were transmitted to his employer in Erie, and by him the whiskey was shipped, by freight or express, consigned to the parties respectively, from whom the orders were obtained. The agent was indicted in Mercer county for selling liquor without a license and was -tried, convicted and sentenced : Held, that he was improperly convicted, as Erie was the place of delivery, and in law the sales were made there and not in Mercer county.
    4. The place of sale is the point at which goods ordered are set apart and delivered to the purchaser, or to a common carrier who, for the purposes of delivery, represents him.
    5. The Act of April 12th 1875 does not prohibit an agent, who is aresident of the state, from soliciting or taking orders for liquors in counties other than that in which the dealer may be licensed.
    6. Shriver v. Pittsburgh, 16 P. F. Smith 446, followed.
    November 24th-1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Quarter Sessions of Mercer county: Of October and November Term 1880, No. 303.
    Indictment of John Garbracht for selling liquor without a license.
    H. V. Claus, a resident of the city of Erie, was a wholesale' dealer in liquors and groceries, and duly licensed to keep a wholesale liquor store in said city. This license was granted by the Board of Licensers of the city of Erie under the Act of Assembly approved May 10th 1871, Pampb. L. 728, entitled “An Act regulating the mode of granting licenses to taverns, brewers and vendors of liquors with or without other goods in the city of Erie,” and the supplements thereto. The defendant was the travelling agent of Claus, and was also a resident of Erie. As such agent he took orders for whiskey from the witnesses called on the part of the Commonwealth in quantities of one gallon and upward, forwarded the orders to his principal, Claus, by mail, who shipped the whiskey so ordered from his house at Erie to the witnesses by freight or express. Garbracht never delivered any liquor himself and never took an order for any quantity less than one gallon.
    At the trial, before McDermitt, P. J., the defendant offered in evidence a certified copy of the license granted to H. Y. Claus by the Board of Licensers of the city of Erie, dated April 5th 1880, authorizing the said Claus to keep a wholesale liquor store in the city of Erie for one year, which offer defendant proposed to follow with evidence showing that the only traffic in liquors by the defendant was as the agent of Claus; that no liquors were delivered by the defendant himself, but that all orders taken by him were filled by the said Claus. The court rejected the offer. (First assignment of error.
    The defendant submitted the following point which the court refused: “ If the evidence shows nothing more than that the defendant took orders for'liquors in Mercer county in quantities not loss than one gallon, which liquors were delivered, not by the defendant, but by his principal, the verdict should be not guilty.”
    The refusal of this point constituted the second assignment of error.
    In the general charge the court, inter alia, said: “ That if they believe from the evidence beyond all reasonable doubt that the defendant solicited orders from the witnesses who testified here to-day, or from any of them, for the sale of liquors to him or to them, and in pursuance of such orders so obtained he sent them, or either of them, to Erie to the house for which he testifies he was an agent, and if that house sent the liquor down to these men, he is guilty.” (Third assignment.)
    The jury found the defendant guilty, and h'e was sentenced to pay a fine of $800 to the county of Mercer and undergo an imprisonment .of ninety days. He then took this writ and alleged that the court erred as set forth in the above assignments of error.

      Vincent and Edwin W. Jackson, for plaintiff in error.
    There is nothing in the Act of April 12th 1875, Pamph. L. 40, nor in any other Act of A-ssembly making it an indictable offence for any one, principal or agent, to solicit orders for liquors in wholesale quantities. In fact the Act of 1875 must be construed as recognising the legality of such a business. There is nothing forbidding the agent of-a person resident within this Common-wealth from taking orders for the sale of liquors. Unless specially prohibited, persons doing business in Pennsylvania have a right under their local license to take orders for goods elsewhere than in the county in which is their usual place of business. We insist that the court below erred in refusing to admit the evidence offered by the defendant mentioned in the first assignment of error. The law merchant will govern as to the locus of the sales and the sales in this case were made in the city of Erie: 2 Parsons on Cont. 586, 5th ed.; Finch v. Mansfield, 97 Mass. 89 ; 9 Am. Law Reg. 506 ; Shriver et al. v. Pittsburgh, 16 P. F. Smith 446.

      Stranahan & Mehard, for defendant in error.
    We hold that a license to sell liquors is a question of police regulation as well as one of revenue. Governing the one question the courts of and laws for the different counties adopt rigid and severe restrictions with reference to the granting of license, having m consideration the public welfare, and, as in Mercer county, refusing to grant license where, in their opinion, it will be detrimental to the public good. Relating to the other question of revenue, the license fee differs in many counties in the state. Upon the question of police regulations we contend that all sales of liquors in Mercer county should come under its legal restrictions and be subject to its legal penalties. If this view be not correct, the most rigid prohibitory laws for the county would be a dead letter, and liquor could be sold in any and evei’y part rf the county by travelling agents, no matter how unworthy or irresponsible, and the liquor shipped in by freight or express and the money therefor paid when the order is taken or to the agent after delivery. This is surely neither the spirit nor letter of our law. If the theory of the plaintiff in error is correct, if would work a serious loss or injury to the revenues of the state, as a license in one county would permit sales in every county, and the entire state would be flooded with agents peddling whiskey under the guise of soliciting orders, and one license would do for the entire state, instead of licenses in each county of the state.
   Mr. Justice Sterrett

delivered the opinion of the court, January 3d 1881.

The contention of the plaintiff in error is that the sales of intoxicating liquors, alleged to have been made without license in Mercer county and for which he was convicted and sentenced, were not made in that county, but in the city of Erie; and that, upon the uncontradicted testimony in the case, the jury could not have found otherwise if they had been properly instructed as to the legal effect of the evidence.

The plaintiff in error had no license,-and the only fact which it was incumbent on the Commonwealth to prove was that he sold intoxicating liquors in the county of Mercer, as charged in the indictment. It was clearly shown that he obtained orders for whiskey, and in some instances collected bills for the same, in that county; but, this alone, without proof of delivery there, was insufficient to substantiate the charge of selling contrary to law within the jurisdiction of the proper court. To constitute a sale of personal property, especially under a penal statute, there must be a transfer of the title for a certain consideration. Orders for goods may be received, but until they are transferred or set apart to the purchaser the sale is incomplete. Delivery, either actual or constructive, is an essential ingredient in a sale of personal property. An agreement to sell is only executory until the contract is completed by delivery. When, as in the present case, the act of selling without license constitutes the offence, it must appear affirmatively not only that a sale, in the proper sense of the term, was actually made, but it must be located within the proper county. Doubtless sales were effected through the agency of the plaintiff in error, but if they were not shown to have been made in Mercer county 'he was improperly convicted. The testimony, as to all the material facts, was not conflicting. The plaintiff in error was a travelling agent for H. V. Claus, a licensed wholesale liquor dealer, doing business in the city of Erie. The orders for whiskey which he solicited and received in Mercer county were transmitted to his employer, who filled them at his store in Erie, and shipped the whiskey, by freight or express, consigned to the parties respectively from whom the orders were obtained. It was put up in packages, addressed to the consignees in Mercer county, delivered to the carrier at Erie and transported thence, according to the usual course of business. There was no evidence that the plaintiff in error had any whiskey in his possession in Mercer county or that he personally delivered any there. It also appeared that he collected bills for some of th.e orders which he obtained. There was nothing in the testimony to justify the jury in finding that the facts were materially different from those above stated; and, assuming them to be true, we think the only legitimate conclusion is that Erie was the place of delivery, and in law the sales were made there and not in Mercer county. The place of sale is the point at which goods ordered or purchased are set apart and delivered to the purchaser, or to a common carrier, who for the purposes of delivery represents him. For example, a merchant in New York orders goods from a Boston .house and they are consigned thence to him, either by a carrier of bis own selection, or in the usual course of trade, the transaction is an executed Boston contract: 2 Pars. on Cont. 586. The same principle is recognised in Shriver & Co. v. Pittsburgh, 16 P. F. Smith 446; Finch v. Mansfield, 97 Mass. 89. In the former case, the city of Pittsburgh was authorized to impose a tax “ upon all articles of trade and commerce sold in said city,” and the question was whether certain goods were sold in the city. About one-sixth of the gross sales of Shriver & Co., wholesale grocers, were made directly at their store in the city without the intervention of outside agents. The other five-sixths were effected through agents employed for the purpose of procuring orders and making contracts of sale outside the city. These orders were transmitted to the firm, who filled them at their store in Pittsburgh, and consigned the goods to the purchasers by the most direct means of conveyance. Shriver & Co. contended that the sales, thus represented by the orders, were not made in the city, and hence they were not taxable on the amount so sold; but, it was held by this court that the goods thus ordered through their agents, put up at their store and shipped thence to their customers, were sold in the city, and that the amount should be included in their account sales returned for taxation.

In Finch v. Mansfield, supra, the consideration of the notes sued on was the price of liquors ordered by the defendant in Massachusetts from the plaintiffs in Connecticut through an agent of the latter, and the eardinal question in the case was, in which state was the sale made. The jury were instructed that if the agent merely solicited from the defendant an order for liquors and forwarded it to the plaintiffs in New Haven, and thereupon they filled it and delivered the goods to a common carrier directed to the defendant at Deerfield, Massachusetts, according to the order, the sale was in Connecticut. This instruction was excepted to, but the Supreme Court of Massachusetts held that it was correct even under the stringent provisions of the “ Maine law” then in force in that state. In delivering the opinion of the court, Mr. Justice Hoar says : “ If the agent had authority merely to receive and transmit to his principals, at New Haven, orders fOr'liquors to be sent by railroad to defendants in Massachusetts, the plaintiffs completing the contract by delivering them on the railroad in Connecticut, and defendant agreeing to pay the freight, it is very plain that this would not constitute a sale in Massachusetts. The only agreement to sell, or act of sale, would be at New Haven. The first existence of the contract would be when the plaintiffs, at New Haven, assented to defendant’s proposal, transmitted through the agent, and the sale would be completed when the liquors were delivered at the railroad .directed to the defendant.”

The cases above cited appear to sustain the contention of the plaintiff in error, that under any reasonable view of the evidence the sales were made at Erie and not in Mercer county. If there had been evidence to show that he delivered any wh'iskey in the latter county or agreed to do so, and his agreement was carried out by his principal, a different ease would be presented; but, under the evidence before us, there was nothing to justify a jury in so finding. It was no doubt competent for the legislature to have made it an indictable offence for licensed liquor dealers, in person or by agent, to solicit or take orders for liquors, or offer to sell the same in any other county than that in which they are licensed and have their place of business ; but if it had been so intended the phraseology of the law would have been different. The eighth section of the act does in substance so provide as to non-residents of the state. It declares that no hawker, peddler or travelling agent shall engage in selling for any person or persons who are non-residents of this Commonwealth, “ or in vending, trading or contracting in any manner whatsoever in intoxicating liquors within the limits thereof.” This stringent provision as to non-residents indicates that the legislature did not intend t'o prohibit agents of licensed residents of the state from taking orders for the sale of liquors outside the county in which their principals are located.

We think, therefore, that there was error in charging the jury, “that if they believe from the evidence, beyond all reasonable doubt, that defendant solicited orders from the witnesses, or any of them, for the sale of liquors to him or them, and in pursuance of such orders so obtained, he sent them or either of them to Erie, to the house for which he testifies he was agent, and if that house sent the liquor down to these men, he is guilty.” There was also error in refusing to affirm defendant’s point; but, as has already been observed, if there was any evidence of delivery in Mercer county, by the plaintiff in error himself, or by his employer in pursuance of his agent’s agreement so to do, the point was properly refused, for the reason that it does not exclude Mercer county a's the place of delivery. The undisputed testimony, however, is that Erie was the place of delivery. We are also of opinion that as the case stood, the offer which forms the subject of the first assignment should have been received. The allegations of fact contained in this offer were, however, substantially proved by the witnesses.

Judgment reversed, and record, with copy of this opinion setting forth the causes of refusal, remanded to the Court of Quarter Sessions of Mercer county, for further proceedings.