text:
    Hepburn’s Appeal.
    1. A wife and husband conveyed her property to a trustee to sell her real estate, collect claims due her, and invest the proceeds in his discretion in real or personal estate or as she should direct and appropriate them to her ‘‘ sole and separate use” during life, if the interest should not he sufficient for her “ comfort and convenience,” the trustee might appropriate any or all of the principal for that purpose, she to dispose of the fund by will, hut if she died without a will, the trustee to “ pay the fund or convey the same if it he real estate” to her “ heirs at law who shall he living at her death or tbe heirs of such as shall be dead, such heirs representing” their parent. Held, that on the death of the husband the wife was entitled to the fund absolutely.
    2. The restrictions of the trust related only to the wife’s coverture.
    3. The heirs were not purchasers under the terms of the trust.
    4. The real estate was sold by order of the court under the Act of April 18th 1853 (Price Act). The conversion did not change the rights of the wife.
    5. The court below ordered the trustee who contested the widow’s claim to pay the costs. It being the duty of the court below to dispose of the costs as they might think right, the Supreme Court would not reverse the order unless error should be made to appear.
    May 11th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Appeal from the decree of the Court of Common Pleas of Cumberland county: No. 110, to May Term 1870.
    The proceedings in this case commenced by the petition of Anna R. Burns, the widow of R. K. Burns, setting forth that Samuel Hepburn had been in the lifetime of her husband her trustee, and as such received the sum of $2855.84; that the object of the trust no longer existed, and praying for a citation to the trustee to show cause why the trust fund should not be paid to her. The trustee filed an answer, setting forth the terms of the trust, &c. The case was heard on bill and answer; and will be found fully stated in the opinion of Judge Graham, delivered February 15th 1870, as follows:
    “ This case arises under the following circumstances: Mrs. Ann Rebecca Burns, formerly Showalter, owned certain real and personal property in Virginia, coming from the estates of her father, Joseph Showalter, her mother and her brother, Dritt Showalter, all deceased. The petitioner was married to Rufus K. Burns, and after their marriage, to wit, on the 22d May 1844, they executed a deed to John Fishburn, particularly describing the real and personal property of Mrs. Burns, and conveying the same to the said John Fishburn, now deceased. In the deed to John Fishburn the following trusts are declared: — ■
    [,-■ ‘“In trust that the said John Fishburn shall and will sell and convey the said two tracts of land at such time and to such person or persons, and for such price as he shall deem just and proper, and will best promote the object of this trust, and that he will collect the money and claims so due and owing to the said R. K. Burns and Anna Rebecca his wife, in the right of the said Anna Rebecca, by any and all of the person or persons or others hereinbefore mentioned; and when the said real estate shall be thus sold and the money thus collected, that he, the said John Fish-burn, shall put the same in some safe stock, loan, fund or other real estate, as he, in his discretion, shall think will best promote the object of this trust, or as the said Anna Rebecca shall direct; and shall, after paying the expenses of executing this trust, appropriate the net proceeds to the sole and separate use of the said Anna Rebecca Burns for and during her natural life ; and if the interest of the fund thus invested, or the proceeds of the real estate thus purchased, shall not, in the opinion of the said John Eishburn, or his successors in the execution of the said trust, be sufficient for the convenience and comfort of the said Anna Rebecca, he, the said trustee, may, in his discretion, appropriate any part 'or the whole of the said money so to be collected from the estate of Joseph Showalter, deceased, or Elizabeth Showalter, or from Dritt Showalter, to and for that purpose. And in further trust, that he will permit the said Anna Rebecca Burns to have, use and enjoy the said household furniture and plate for and during her natural life; and that she, the said Anna Rebecca Burns, shall have the right and privilege by her last will and testament, duly authenticated, to devise, bequeath and dispose of the whole of the said fund hereby conveyed and assigned to the said John Eishburn, as the same shall be vested at the time when the said will shall take effect, whether it be then real or personal property; and if the said Anna Rebecca Burns shall die without duly executing any last will and testament, then in further trust and confidence, that he, the said John Eishburn, or his successor in the said trust, shall and do pay the whole of said fund, or convey the same, if if be real estate, to the heirs at law of the said Anna Rebecca Burns, who shall be living at the time of her death, or the heirs of such as shall be dead; such heirs representing his, her or their parent.”
    “ John Eishburn, the aforesaid trustee, purchased certain real estate in Cumberland county, in pursuance of the aforesaid trust. After the death of Eishburn, upon the petition of R. K. Burns and Anna Rebecca Burns his wife, Hon. Samuel Hepburn was appointed trustee by the court, and upon his petition, in which R. K. Burns and wife joined, said real estate was sold by order of court, and the purchase-money received by the said Hon. Samuel Hepburn, trustee as aforesaid.
    “ Rufus K. Burns, the husband of Anna Rebecca Burns, died the 5th of November 1866; and on the 13th February 1869, the said Anna Rebecca Burns presented her petition to the court, representing that her said husband, R. K. Burns, was dead; that she remained a widow, and asking that a citation be awarded to the said Hon. Samuel Hepburn, trustee as aforesaid, to show cause why the said trust should not be annulled and determined, and the trust fund in his hands paid over to the petitioner.
    “ The answer of the trustee denies that the object of the trust no longer exists and that the trust is determined, and further denies that the petitioner has a right to the entire control and disposal of the fund.

      “ This trust deed of 22d May 1844 was executed by Mrs. Burns during coverture; it recites a marriage agreement between her and her husband before marriage respecting her property. This ante-nuptial agreement is not produced, nor is there any evidence of it, except the recital in the deed of trust to John Fishburn. A deed of trust executed by a married woman would be of doubtful validity, although binding on her husband, and would be enforced against him for the benefit and protection of the wife. But when the object is to protect the property of the wife from the husband, to secure it during coverture, and when the whole profit is given to the said wife during her life, with power to dispose of it by will, and if she die intestate it is to go to her heirs or representatives; this indicates an absolute estate, and the court will declare the trust terminated upon the death of the husband. * * *
    “The trust in this case being created by Mrs. Burns of her own estate, derived from her deceased father and brother, for her sole and separate use, was for the. purpose of protecting it from her husband, for she reserved the power of disposing of it by will, and if she died intestate, then it was to pass to her heirs at law or next of kin, as the same might be real or personal estate. On the death of her husband the purpose of the trust was fulfilled and the trust terminated, and she was clearly entitled to the possession and use of the entire fund.
    “And now, 15th February 1870, it is ordered, adjudged and decreed that Hon. Samuel Hepburn, trustee, pay to Anna Rebecca Burns, the petitioner, the balance of the trust fund in his hands, and the costs of this proceeding.”
    The trustee appealed to the Supreme Court, and assigned for error:—
    1. Decreeing that the trust fund should be paid over to Mrs. A. R. Burns.
    2. Directing appellant to pay all the costs of this proceeding.

      S. Hepburn, Jr., and W. H. Miller, for appellant,
    cited Crosly v. Davis, 4 Penna. L. J. 193; Acts of April 25th 1850, § 11, Pamph. L. 571, May 3d 1855, § 5, Pamph. L. 416, Purd. 974, 975, pl. 56, 57; Lancaster v. Dolan, 1 Rawle 231; Rife v. Greyer, 9 P. F. Smith 393.

      L. J. W. Poulke, M. C. Hernan and W. M. Penrose, for appellee,
    cited Harrison v. Brolaskey, 8 Harris 300; Freyvogle v. Hughes, 6 P. F. Smith 228; Ellmaker v. Ellmaker, 4 Watts 89; Hileman v. Bouslaugh, 1 Harris 344; Dodson v. Ball, 10 P. F. Smith 492. As to costs: Coleman v. Ross, 10 Wright 180.
   The opinion of the court was delivered, October 20th 1870, by

Thompson, C. J.

The facts bring this case so certainly within the principles of Freyvogle v. Hughes, 6 P. F. Smith 228, and Dodson v. Ball, 10 Id. 492, that we need do little more than refer to them as authority for our conclusions in it. The trust mentioned was of the wife’s sole estate existing before marriage, and its purpose was manifestly for the purpose of freeing it from all dominion and control of her husband during life, and giving to her the issues and profits to her own separate use, with power tc devise it, notwithstanding coverture, to whom she pleased, and on failure so to do, that it should go to her heirs. These restrictions had reference only to a state of coverture ; when that ceased they ceased, for there was no other purpose in law existing for their continuance. They came into existence to protect her rights of property during coverture not to extinguish them, and when the purpose was subserved her control necessarily revived. By operation of law her legal and equitable titles were united; there was nothing to keep them apart. There are innumerable decisions to this effect. The heirs were not purchasers under the terms of the trust; they would in any event only take this through the cestui que trust, and not by title paramount. There was nothing in any of the proceedings substituting the appellant for the original trustee, or in the decree for the sale of the real estate, which in the least change the relation of the cestui que trust to the trust estates. If the duties of the trustee were in any respect changed by the conversion of the property into money, her rights were not and could not be. The Act of Assembly, under which the sale was ordered, carefully provides that no change in the rights of a cestui que trust shall result from any change in the nature of the property. The court below was certainly right in decreeing in favor of the appellee, Mrs. Burns, as to the trust-money in the hands of the appellant. The proceedings in the case being in equity, it was the duty of the court to dispose of the costs as it might deem right. As there is nothing to show that this was not done, we have nothing to correct — we cannot presume against the accuracy of the court in a proceeding in equity any more than in a judgment at law; the error must be made to appear, and that was not the case here. Seeing nothing to change, alter or correct, we must affirm the decree of the court in this case.

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


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    Eyster’s Appeal.
    1. J. died indebted, bis land was sold under bis will to 0., one of bis executors. Suit was brought against the executors; C. was not served; a general judgment was taken by default. A scire facias to charge the land was issued against the executors, the widow and children, in which O. was served and in which judgment was taken by default. Held, that the judgments were regular and C.’s land might be sold under them.
    2. C. filed a bill in equity to restrain the judgment-creditor from proceeding. Held, that if the judgment had been irregular, the remedy was at law by writ of error to the judgments and not in equity.
    May 11th 1870.
    Before Thompson, O. J., Bead, Agnew and Sharswoob, JJ.
    Appeal from the decree of the Court of Common Pleas of Franklin county: In Equity : No. 102, to May Term 1870.
    Jacob Eyster died on the 30th of September 1862, seised of a large real estate, which he authorized his executors, Charles W. Eyster and Christian S. Eyster (his sons), to sell, and directed that his estate should be divided amongst his wife and children according to the intestate laws.
    At the time of his death the testator was in partnership with his son, Charles W. Eyster. The executors sold the real estate. One of the parcels of it was sold on the 1st of July 1864, to Anthony Frey, who immediately conveyed it to Christian S. Eyster. Charles W. Eyster was the acting executor, and appeared to have had the proceeds of the estate exclusively in his hands. The account of the executors was finally confirmed January 5th 1866; it showed a balance of $29,710.67 in their hands. On the 19th of January 1867, Charles made an assignment of all his estate for the benefit of his creditors.
    On the 19th of January 1867, Samuel Frederick, executor, &c., brought suit against Charles W. Eyster, surviving partner of C. W. Eyster & Co., in which judgment was recovered May 24th for $1154.55, and a fi. fa. issued thereon, which was returned “nulla bona.” On the 12th of June 1867, the same plaintiff commenced an action of assumpsit against Charles W. and Christian S. Eyster, executors, &c., of Jacob Eyster, deceased. The writ was served on Charles, and returned “nihil” as to Christian. On the 6th óf August 1867, the plaintiff took judgment by default generally for want of an appearance for $1169.95.
    On the 29th of June 1867, a similar action was commenced by John Sprecher against the same defendants; the return was thé same ; and judgment was taken by the plaintiff August 6th 1867, in the same way for $215.60. Sprecher issued a scire facias on the above judgment; the docket entry is as follows:—
    “ John Sprecher v. Charles W. Eyster and Christian S. Eyster, executors of Jacob Eyster, deceased, with notice to Sarah, as widow, and Charles W. Eyster, C. S. Eyster, Elizabeth, intermarried with Wesley Howe, Susan, lately intermarried with Alonzo Frey, deceased, Jacob Eyster, John S. Eyster, Edward O. Eyster, Wilbur F. Eyster, children of the said deceased.
    “ 19th August 1867, sci. fa. to revive and continue the lien of judgment, No. 238, August T. 1867. Debt, $215.60. 30th September 1867, ‘ Served the within writ by reading it to the defendant, Charles W. Eyster, and making the contents known, and on Christian S. Eyster, by leaving a full, true and attested copy at his house, with an adult member of his family, so answers, &c,, 28th October 1867, judgment in favor of plaintiff by default for want of an appearance for $217.60, interest and costs.’ ”
    A similar scire facias was issued on the Frederick judgment, except that certain of the purchasers of the testator’s real estate were joined as terre-tenants; Christian S. Eyster was named as legatee, &c., but not as terre-tenant. ■
    The terre-tenants filed affidavits of defence.
    In this scire facias was the following entry:—
    “ 9th November 1867, judgment in favor of plaintiff by default for want of an appearance against each and all of the defendants, except the” (terre-tenants, naming them) for $1188.08.
    Judgment was afterwards, April 16th 1868, rendered against the terre-tenants on the verdict of a jury for $1188.08. Sprecher issued a fi. fa. on his judgment to October Term 1869, and that part of the testator’s real estate which Christian S. Eyster had purchased was levied on by the sheriff. Christian S. Eyster, thereupon filed a bill setting forth the foregoing facts, and also that Frederick threatened to levy upon the same real estate by virtue of his judgment. The prayers were, 1. For a decree that said real estate was “the separate and exclusive property” of the plaintiff. 2. For a decree that Sprecher’s and Frederick’s judgments were no subsisting liens. 3 and 4. For an injunction to restrain the sheriff from proceeding under the executions against the said real estate; and Frederick from issuing an execution to levy on and sell it. 5. For a decree that if the said real estate is liable at all, only its proportionate part shall be collected from it. 6. Gene- *- ral relief.
    An answer and replication were filed, and J. H. McCauley appointed master. He found the foregoing with other facts, and also found: “as a fact that the claims of the estate of Samuel Frederick, deceased, and of John Sprecher, now deceased, for which judgments have been obtained, as hereinbefore stated, against the executors of the said Jacob Eyster, deceased, with notice to his widow and heirs, were the proper debts of the said Jacob Eyster, existing at the time of his decease, and were then, and still are, debts binding upon all the real estate of which the said Jacob Eyster died seised.”

      The Court of Common Pleas (Rowe, J., delivering the opinion), confirmed the report of the master and dismissed the bill, with costs.
    The plaintiff appealed to the Supreme Court, and assigned the decree of the Court of Common Pleas for error.
    The case was submitted to the Supreme Court on paper-books, by

      J. W. Douglass, W. S. Stenger and J. McD. Sharpe, for appellants, and

      Stumbaugh and Gehr, for appellees.
   The opinion of the court was delivered, July 7th 1870, by

Read, J.

Jacob Eyster died on the 30th September 1862, indebted to John Sprecher, and to Samuel Frederick, a creditor of the firm of C. W. Eyster & Co., of which the decedent was a partner. Upon these debts suits were commenced, and judgments were obtained against the executors of the decedent, and seir.e facias were issued upon them, with notice to the widow and heirs of the deceased, and judgments obtained upon them. In relation to these judgments, the master reports, as a fact that the claims of the estate of Samuel Frederick, deceased, and of John Sprecher, now deceased, for which judgments have been obtained, as herein-before stated, against the executors of the said Jacob Eyster, deceased, with notice to his widow and heirs, were the proper debts of the said Jacob Eyster, existing at the time of the decease, and were then and still are debts binding upon all the real estate, of which the said Jacob Eyster died seised.

The appellant, who is one of the executors of the decedent, as a purchaser of one of the pieces of the said real estate, brings this his bill to prevent the sale of it for the payment of these debts. The ground assumed is, that the Sprecher judgments were irregularly obtained. If this be so, then the remedy was at law by writ of error, and not by an application to a court of equity, but we agree with the learned judge in the court below, that there is . ao error in either of them, and that under proceedings under them, .he real estate claimed by the appellant may be sold to pay the •debt of the decedent.

If the appellant is obliged to pay this debt it is his own fault, for if he had attended to his duties as an executor the debt would have been paid long ago.

The creditors of the decedent should not suffer for the default of the executors.

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


author: Agnew, J.

text:
    Gump’s Appeal.
    1. Parol evidence of mistake is admissible to qualify or contradict a ■written instrument.
    2. L. by articles agreed to sell land to G., $2000 to be secured by a judgment-note with interest. The deed and note were delivered and judgment entered. It was afterwards discovered that the scrivener had accidentally omitted “with interest,” from the note. Held, that by the 39th section of Act of June 13th 1840, and 3d section of 16th of April 1845, the Court of Common Pleas in equity had jurisdiction to correct the mistake and decree the payment of interest that was overdue.
    3. An accidental omission from a writing comes under the head of mistake.
    4. The opening of a judgment is purely discretionary and no appeal lies from an adverse decision. t

    5. The Court of Common Pleas in equity could not reform a judgment on the law side.
    May 12th 1870.
    Before Thompson, C. J., Read, Agnew and" Sharswood, JJ.
    Appeal from the decree of the Court of Common Pleas of Bed-ford county: In Equity: No. 49, to May term 1870.
    On the 13th of January 1869, Jacob Lingenfelter filed a bill against George W. Gump, which set out:
    That the plaintiff and the defendant on the 18th of November 1865, entered into an agreement under seal, by which plaintiff bound himself to sell the defendant his farm for $3000, of which $1000 was to be paid on the 1st day of April then next, and $400 annually thereafter, with interest from the 1st of April, till the whole should be ,paid; that on the 30th of March 1866, the plaintiff delivered the deed for the farm, the defendant paid $1000, gave his judgment-note for $2000 the balance, payable in annual instalments of $400 ; but by mistake interest as stipulated in the agreement was omitted and the defendant refused to pay interest.
    The prayer was that the defendant be decreed to pay the interest.
    The defendant admitted the contract, the delivery of the deed and the note on which judgment had been entered, averred that in consequence of some difficulty about liens on the plaintiff’s farm, he and the plaintiff had agreed at the execution of the deed, that the unpaid $2000 should be without interest and that he had paid two of the instalments without interest. Further he “ maintained that the execution and delivery of the deed by the plaintiff to me, and the acceptance of my said note by him, is a merger of the said article of agreement, and that he should not, therefore, be permitted further to proceed with his said supposed complaint.”
    The case was referred to John P. Reed, Esquire, as examiner and master. He reported:— * * *
    “ That by the mistake of the attorney and scrivener the provision in the agreement that the defendant should'pay interest on the $2000, annually, from the 1st day of April 1866, was omitted in the note, and the same was received by the payee from the attorney without reading the same or noticing the omission. That the weight of the evidence shows that this omission was a pure mistake, and that the defendant knew it to be an omission, that he acknowledged it to be the agreement that he pay interest, but claimed that the agreement was afterwards changed by plaintiff and defendant so as to relieve defendant of the interest — the evidence shows that this is a mistake, and that there was no change in the agreement — also, that the defendant subsequently agreed to pay the interest if plaintiff would procure certain releases and clear the docket — and the docket is cleared.
    “ Under these facts the master reports, as his opinion, thaffthe defendant in equity and good conscience is bound to pay the interest claimed by the plaintiff.”
    The master then stated an account showing that the amount of interest due to the plaintiff was $815.59.
    The master’s report with exceptions by the defendant, was filed June 24th 1869.
    The case was set down for hearing for September 11th, and ■then was continued. October 2d, the plaintiff moved to amend the prayer of his bill as follows:—
    “ 1. That the judgment for $2000 entered' upon the said judgment-note be corrected so that the said $2000 shall bear interest from the 1st day of April 1866, payable annually according to the terms of the said agreement between the said plaintiff and defendant.
    “ 2. That the said defendant may be decreed to make payment of said interest, viz.: (setting out the several sums of interest and the dates when due), with interest from the dates when they respectively became due.” .
    3. General relief.
    The motion was allowed, the plaintiff to give notice to the defendant of the motion and order. On the 14th of October the amendment was filed; the same day the defendant’s protest against allowing the amendment was filed.
    On the 13th day of December 1869, the court decreed, “ that the said judgment for $2000, entered upon the said judgment-note to No. 6 of November Term 1866, be corrected, so that the said $2000 shall bear interest from the 1st day of April, A. d. 1866, payable annually, according to the terms of the agreement between the said plaintiff and defendant; and that the said defendant shall pay unto the said Jacob Lingenfelter, the several sums of interest, viz.: $120, due April 1st 1867; $96 due April 1st 1868; and $72 due April 1st 1869, with, interest on said sums, from the day they respectively became due; and also the sum of $48, on the 1st day of April 1870, and $24 on the 1st day of April 1871; and that the said George W. Gump do further pay unto the said Jacob Lingenfelter, the costs of this suit.”
    The defendant appealed to the Supreme Court and assigned for error:—
    1. That the evidence did not sustain the facts found and the opinion of the master.

      2. The evidence contradicted a written agreement.
    5. The plaintiff had a remedy at law.
    6. The agreement was merged in the deed and note.
    7. The plaintiff was estopped by accepting the deed and note.
    8. Allowing the amendment.
    9. The decree.

      Cessna & Spang, for appellant.

      Russell & Longenecker, for appellee. Equity
    will correct a mistake in a written instrument: Chalfant v. Williams, 11 Casey 215; Bank v. Fordyce, 9 Barr 279; Rearich v. Swinehart, 1 Jones 238; Barnhart v. Riddle, 5 Casey 96; Musselman v. Stoner, 7 Id. 270; Lauchner v. Rex, 8 Harris 464. The objection to the jurisdiction was too late: 1 Troub. & H. Pract. 75; Bank of Kentucky v. Schuylkill Bank, 1 Parsons R. 226; Adams v. Beach, 1 Phila. R. 99. Amendments are in the discretion of the court: Yohe v. Robertson, 2 Wharton 155. Costs in equity are at the discretion of the court: Coleman v. Ross, 10 Wright 180. A court of equity disposes of the whole case: McGowin v. Remington, 2 Jones 56; Shollenberger’s Appeal, 9 Harris 340.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

The finding of the masterthat the provision in the agreement for the payment of interest on $2000 annually, from the 1st day of April 1866, was omitted by the mistake of the attorney in writing the single bill, is sustained by clear and convincing evidence. The objection that the writing cannot be contradicted is unsound. Plain mistake ranks with fraud as an exception to the rule which forbids the admission of parol evidence to qualify or contradict written instruments: Christ v. Diffenbaugh, 1 S. & R. 464; Renshaw v. Gans, 7 Barr 117. The accidental omission of interest from the single bill being shown, the next1 question is that of jurisdiction. The 39th section of the Act of 13th June 1840, Purd. 402, pl. 5, declared that the equity jurisdiction of the Supreme Court within the city and county of Philadelphia and of the Court of Common Pleas for said county shall be extended to all eases arising in said city and county, over which courts of chancery entertain jurisdiction on the grounds of fraud, accident, mistake or account. This act was followed by that of 16th April 1845, the 3d section of which declared that the 39th section of the Act of 1840 shall be construed to give jurisdiction in all eases where chancery entertains jurisdiction under either of the heads of fraud, accident, mistake and account, whether such fraud, accident, mistake or account be actual or constructive. These jurisdictions and powers were extended over the state to the several Courts of Common Pleas by the Act of 14th February 1857. A liberal interpretation is given to the chancery powers thus conferred: Wesley Church v. Moore, 10 Barr 280; Yard v. Patton, 1 Harris 282. Gibson, C. J., remarked in the former case that the equity jurisdiction conferred by the statutes for this purpose, is a valuable, indeed indispensable one, and it ought to be extended by every interpretation of which the words are susceptible. That a mistake or accidental omission, its equivalent, m drawing up the terms of a written instrument, falls within the jurisdiction of chancery under the head of mistake, is clear, and appears by the text books and numerous decisions: 1 Story’s Equity, §§ 152, 153, 154, 155, 156; Marquis of Townshend v. Stangroom, 6 Ves. Jr., 328, a, and notes to Sumner ed; Hunt v. Rousmanier, 1 Peters 13; Graham v. Pancoast, 6 Casey 89; Nace v. Boyer Id. 99; Ferris v. Henderson, 2 Jones 49; Jenks v. Fritz, 7 W. & S. 201. On general principles the jurisdiction of the Court of Common Pleas over this bill is indisputable.

But it is said that the plaintiff had an adequate remedy at law, either by an action on the original agreement to recover the omitted interest, or by application to the Court of Common Pleas to open the judgment entered on the single bill for the purpose of reforming it. The adequacy of either is extremely doubtful. In an action at law, the plaintiff would have been met by the objection that the contract of sale merged in the deed, and the security taken for the unpaid purchase-money, and by the stiff and rigorous character of the evidence required in a common-law court. Ejectment would not lie to enforce payment after the delivery of the deed, and assumpsit (which-has been suggested also) would have no advantage over covenant on the article of agreement. None of these forms of action in a case such as this would be equivalent to the more direct and plastic remedy by bill in equity. The application to the court to open the judgment is even more objectionable. It is a purely discretionary proceeding, and no appeal lies upon an adverse decision. The application besides, presents no means of compelling discovery. And were the judgment to be opened it would be a question how far- the Court of Common Pleas could get behind the single bill on which the judgment was entered. The judgment follows truly the single •bill, while the error lies back of both in the omission to insert the interest. Would the court reform the single bill and enter judgment for a greater amount than the confession authorized ? All these difficulties attending the plaintiff’s proceedings at common law make the bill in equity the only safe and entire remedy. The allowance of the amendment to the bill was immaterial. It was only framed to admit of a decree to reform the judgment. But this is superfluous. The court proceeding in equity could not actually reform the judgment remaining on the law side of the court, but by its decree would order payment of the interest according to the terms of the original agreement, and could enforce that decree by all the various forms of process in execution, belonging to a court of equity.

Decree affirmed with costs.

Thompson, C. J., dissented.


text:
    Mussleman’s Appeal.
    1. Ej ectment will not lie by heirs against a widow in possession, nor dower by a widow against them; both must proceed by partition in the Orphans’ Court.
    2. The Orphans’ Court has exclusive jurisdiction to make and enforce distribution of a decedent’s estate.
    3. A court of equity cannot'compel an executor to pay the decedent’s personal estate and enjoin against the sale of the real estate; the jurisdiction is with the Orphans’ Court.
    4. A testator directed his land to be sold without naming any one to execute the power. The control and direction of the sale was exclusively in the Orphans’ Court.
    5. The executor sold without the order of the Orphans’ Court; the vendee entered into possession, but refused to comply with the contract. Equity had not jurisdiction to enforce specific performance.
    6. If the power to sell be expressly conferred on the executor, the Orphans’ Court has jurisdiction to control its exercise on the petition of a partv in interest.
    7. When time is not of the essence of the contract, a decree will be made against the purchaser if the seller can make a title at the time of the decree, unless there has been bad faith or an improper speculation attempted.
    8. Generally a power to order includes a power to ratify.
    9. Where a will orders land to be sold without naming the person to execute the power, the executor derives his power to sell, from the law acting upon the will and not from the court.
    10. In such case it is the exercise of the power which is under the control of the court.
    11. The Orphans’ Court may ratify such sale in a case where it would confirm it, if made under a previous order.
    12. The purchaser under such sale by an executor is a party to the sale, and on an application for ratification, he can be brought in by citation to protect his interest.
    May 12th 1870.
    Before Thompson, C. J., Read, Asnew and Shakswood, JJ.
    Appeal from the decree of the Court of Common Pleas of Qumberland county: In Equity: No. 109, to May Term 1870.

      In the court below this was a bill by John Mussleman, executor, &c., of Samuel Mussleman, deceased, against James I). Bell, to enforce the specific performance of a sale of the land of the decedent sold by the executor after his death.
    The decedent died August 31st 1868; his will, proved September 7th 1868, contained the following provisions:—
    “ I will and order that my farm, with the appertenances, containing one hundred and thirty-six acres, be sold to the best advantage during the first ensuing fall after my death, subject, however, to a dower of four thousand dollars, the said four thousand dollars to remain in said farm for the benefit of my wife, or widow, Elizabeth, the interest of said four thousand dollars to be paid to her annually as long as she bears my name and continues to be my widow.
    “Item. The first.year after my death I will and bequeath to my.widow one hundred and fifty dollars out of the proceeds of said farm.
    “Item. As to all'the rest of the money realized by the sale of said farm with the appertenances, I give and bequeath to all my children, equally to be divided between them, viz.: John Mussleman, Elizabeth Gerber, Ann Senseman, the heirs of Catharine Xost and Simon Mussleman.
    “ Item. I give and bequeath, after the death of my widow, the four thousand dollars which remains in said farm for her benefit, to all my children, equally to he divided between them, viz., &c.”
    He appointed his son John Mussleman executor of his will. No person was authorized by the will to sell the real estate. The widow elected not to take under the will.
    On the 17th of October 1867, the executor exposed the testator’s real estate to public sale under the following conditions:—
    “2. That no person shall, be allowed to retract his or her bidding.
    “ 3. The purchaser shall pay immediately after the sale to John Mussleman, executor of Samuel Mussleman, deceased, a deposit of ten per cent, of the purchase-money and' sign an agreement for the payment of the remainder, as follows, viz.:
    “ The one-third to remain on the farm as a dower during the natural life of Elizabeth Mussleman, widow of Samuel Mussleman, deceased, and the interest to be paid annually, on the 1st of April (commencing on the 1st of April 1870) to. the said widow. The half of the remainder to be paid on the 1st of April Í869, when a deed shall be given; the balance on the 1st of April 1870, bearing interest from the 1st of April 1869 to he secured by judgment.
    “ 4. The purchaser to give a mortgage for the security of said dower, and to pay the said dower in full at the death of said widow.
    “ 8. Upon failure to comply with the foregoing conditions, the money deposited shall, at the time above mentioned having expired, become forfeited to the vendor, who then' shall be at full liberty, with or without notice, to resell the estate, and if on such sale there shall be any deficiency, the purchaser at this sale, neglecting to comply with these conditions, shall make good such deficiency to the vendor, and all expenses attending such sale.
    “ 9. This property to be sold subject to the lease of the present tenant, for the term of one year from the 1st of April 1869.”
    The defendant became the purchaser, and signed the following paper on the same day :—
    “ I, James D. Bell, of Silver Spring, &c., do acknowledge this day to have become the purchaser of the farm of the late Samuel Mussleman, deceased, at public sale; said farm containing one hundred and thirty-six acres and eighty perches, at a legal sum of two hundred and nine dollars and fifty cents for.each and every acre, amounting to twenty-eight thousand five hundred and ninety-six dollars and seventy-five cents; and I hereby bind myself, my heirs, executors and administrators, to comply fully with, the conditions of sale.”
    The testator left a widow, four children, of whom complainant is one, and two grandchildren, children of a deceased daughter, who were minors.
    The defendant when he purchased was well acquainted with the decedent and his family, and with the provisions of the will, and that the widow had refused to take under it. He paid the hand-money — ten per cent, of the purchase-money — and took possession of the property; changed the terms of the lease, to which it had been sold subject; cleared off a considerable piece of land; injured valuable timber and cut down walnut trees, &c., to the prejudice of. the property. About the 1st of April 1869, when he was to pay his first instalment of the purchase-money and receive a deed, he declared that he would be ready at the time fixed, and that there was “no difficulty or impediment in the way.”
    The deed of the complainant as executor under the power of the will was,-on 31st of March 1869, handed to defendant’s counsel, who refused it on the 1st of April 1869 ; and on the 2d, 3d and 6th of April, the defendant himself “ utterly refused to take the title and complete his purchase.”
    To obviate any objection to the conveyance under the power in the will, the widow and adult heirs executed releases which were offered to defendant, and the guardian of the minors was and is willing under the sanction of the court to make conveyance under the various Acts of Assembly — especially under the “ Price Act;” “ and all parties are still ready to execute any conveyance or perform any act or acts so as to convey the entire title of said tract of land, provided such conveyance or acts are required for the purpose.”

      The bill set out the foregoing facts.
    The prayer was: 1, for specific performance; 2, that the defendant should pay the purchase-money due April 1st 1869 into court, and deposit there the securities for the balance as provided by the terms of sale; 3, for further relief.
    In the body of the bill the name of the plaintiff was stated:—
    “ John Mussleman for himself, the other distributees, legatees, and widow of Samuel Mussleman, deceased.”
    The bill was endorsed:—
    John Mussleman, executor of Samuel Mussleman, deceased, v. James D. Bell.
    The title of the case was stated in the same way in the subpoena.
    The defendant demurred, because—
    1. The contract was made not with “ John Mussleman for himself, the other distributees, legatees, and widow of Samuel Mussleman, deceased,” but with John Mussleman, executor of Samuel Mussleman, deceased.
    2. The law affords a full and adequate remedy.. /
    3. The contract provides a remedy for non-compliance with its terms on the part of the vendee.
    4. John Mussleman had no authority, either as executor or otherwise, to make the contract.
    5. John Mussleman having failed to comply with the terms of the contract by at least a tender of a conveyance of “ the farm of Samuel Mussleman, deceased,” to the defendant, on April 1st 1869, the time fixed for that purpose, he is not now entitled to a decree for specific performance.
    6. The deeds tendered are not a conveyance of “ the farm of Samuel Mussleman, deceased,” but merely a conveyance of .the interests of the several grantors therein named in said farm to the defendant.
    The Court of Common Pleas (Graham, P. J., delivering the opinion), sustained the demurrer and dismissed the bill.
    The plaintiff appealed, and assigned the decree of the court for error.

      H. Hummerich and W. M. Penrose, for appellants.
    As to parties. Either title to the bill brought in all the parties in interest. The executor could have been compelled to act: Houck v. Houck, 5 Barr 273; McFarland’s Appeal, 1 Wright 300; Douglas v. Harfall, 2 Sim. & Stu. 184; Cullen v. Queensbury, 1 Br. C. C. 101; Mare v. Malachy, 1 M. & C. 572; Doloret v. Rothchild, 1 Sim. & Stu. 590; Sugden on Vend. & P., § 196; Story’s Eq. Pl., § 160, 170. Equity is not necessarily excluded because there is a remedy at law; 1 Story’s Eq. Jur., § 718; Sugden on Vendors 31, 185, 755; Seton v. Slade, 7 Vesey 265; Forster v. Hayman, 2 Casey 266; French v. Maschall, 1 O’Connor & Lawson 465. As to the authority of plaintiff to sell: Act of February 24th 1834, § 12, Pamph. L. 75, Purd. 282, pl. 61; Perkins’s Profitable Book, § 547; Shepherd’s Touchstone 449. The provisions of the act are for the benefit of the parties interested, and they have waived them: Follmer’s Appeal, 1 Wright 121; Walworth v. Abel, 2 P. F. Smith 370. The purchaser would have got all he contracted for: Tiernan v. Roland, 3 Harris 437; Batten on Specif. Perf. 122, 279. The plaintiff had an inchoate title, which might be perfected by application to the Orphans’ Court. It is 'sufficient if the vendor could make title at the time of the decree: Sugden on Vendors 222, 223; 1 Story’s Eq. Jur., § 777; Ley v. Huber, 3 Watts 367; Moss v. Hanson, 5 Harris 382; Weemes v. Brewster, 2 Har. & Grev. 390; Cotton v. Wood, 3 Monro 313-14; Tyne v. Williams, 3 Bibb 366; Pierce v. Nickols, 1 Paige 244; Findley v. Lynch, 2 Bibb 566; Hepburn v. Dunlop, 1 Wheat. 179; Paton v. Rodgers, 6 Mad. 256; Coffin v. Cooper, 14 Vesey 205; Sugden on Vend. 293; Esdaile v. Stephenson, 6 Mad. 366; Paton v. Rogers, Id. 256; Maginnis v. Fallon, 2 Id. 583; Langford v. Pitt, 2 P. Wms. 629. The defendant having refused to accept a title, tender was immaterial: Batten on Specif. Perf. 125; Heron v. Hoffner, 3 Rawle 400; Smith v. Webster, 2 Watts 478; Markley v. Swartzlander, 8 W. & S. 172; Eshbach v. Zimmerman, 2 Barr 313; Hall, v. Holmes, 4 Id. 254; Hawk v. Greensweig, 2 Id. 295. Time was not here of the essence of the contract, and if it had been, the defendant should have given reasonable notice of his purpose to rescind. The defendant cannot avail himself of any of the objections he has made because he took possession of the property, and has so acted that he cannot put the vendors in statu quo: Sugden on Vend. 225; Fleetwood v. Green, 15 Vesey 594; Margravine v. Noel, 1 Mad. 310; Ex parte Sidebottom, 1 Mon. & Ay. 655.

      Henderson & Hays, for appellees.
    When the subject of a contract is the land itself, the purchaser has a right to a title clear of all defects and encumbrances: Herrod v. Blackburn, 6 P. F. Smith 103. Where the decree sought is merely for payment of money, equity has not jurisdiction: Kauffman’s Appeal, 5 P. F. Smith 383; Dech’s Appeal, 7 Id. 468; Tripp v. Bishop, 6 Id. 424. The executor had no authority to sell: Houck v. Houck, 5 Barr 273; McFarland’s Appeal, 1 Wright 300. Every title is doubtful which exposes a party to litigation: Speakman v. Forepaugh, 8 Wright 371. Where the party is not diligent equity will not aid: Brightly’s Eq., § 217-19. The defendant took possession under the assurance of a good title: Erwin v. Myers, 10 Wright 111; Freetly v. Barnhart, 1 P. F. Smith 281. It is doubtful whether the discretion of the court in dismissing the bill can be inquired into: Renninger v. Thompson, 6 S. & R. 1; Frederick v. Gray, 10 Id. 186; Nice v. Bowman, 6 Watts 29; M‘Kee v. Sanford, 1 Casey 105; Helfenstein v. Leonard, 14 Wright 477.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

In the early period of the Orphans’ Court in this state, it occupied a low place in the judicial system ; and even in the first quarter of this century, its decrees could be set aside collaterally: Messinger v. Kintner, 4 Binney 97; Snyder’s Lessee v. Snyder, 6 Binney 488. In the latter case Judge Yeates questioned the doctrine, and did so again in Huckle v. Phillips, 2 S. & R. 10. It was not until the able and exhaustive opinion of Judge Duncan, delivered in 1824, in McPherson v. Cunliff, 11 S. & R. 422, which settled the proper position of the Orphans’ Court, that it reached its true dignity, and the way was prepared for the revision of the Orphans’ Court system, its jurisdiction, powers and practice, contained in the Acts of 29th March 1832, 24th of February 1834, and 16th of June 1836. Under these laws, the Orphans’ Court came up to the full measure of a court of record, standing upon an equality with the others. At first, the true extent of the work was not perceived, especially by those who disliked to unlearn what they knew, and who took with difficulty to a new system. But its powers have grown clearer to the professional vision, and its utility increased in appreciation. Hence, in Seider v. Seider, 5 Whart. 208, it was held, that ejectment will not lie by heirs against a widow in possession, but the proceeding must he by partition in the Orphans’ Court. The converse followed, that the widow of an intestate, dying seised, cannot maintain dower in the Common Pleas, but must resort to partition in the Orphans’ Court: Thomas v. Simpson, 3 Barr 60; Evans v. Evans, 5 Casey 277. So the jurisdiction of this court is exclusive to enforce payment of legacies charged on land, and extends to the alienee of the title: Mohler’s Appeal, 8 Barr 26; Gibson’s Appeal, 1 Casey 191; Chess’s Appeal, 4 Barr 52. Judge Rogers exhibits the decided advantage of the proceeding in the Orphans’ Court for specific performance of a decedent’s contract over the clumsy proceeding to prove contract in the Common Pleas. It is perhaps unfortunate that this court had, in an earlier case, held that the Common Pleas jurisdiction was not taken away: Wetherill v. Seitzinger, 9 W. & S. 177; Shull v. Stephens, MS., December 20th 1852. Then came Myers v. Black, 5 Harris 193, in which it was held, that ejectment will not lie to enforce specific performance of the contract of a decedent vendor, hut that the exclusive remedy of the vendee is in the Orphans’ Court, in pursuance of the terms of the Act of 1806, which requires the statutory remedy to be followed. This is reaffirmed in Porter v. Dougherty, 1 Casey 405; and see Anshutz’s Appeal, 10 Casey 375. Holiday v. Ward, 7 Harris 485, decides, that the question of advancement belongs wholly to the Orphans’ Court, and cannot be settled in an action of ejectment. The argument of C. J. Black, maintaining the exclusiveness of the Orphans’ Court, is very forcible. Shollenberger’s Appeal, 9 Harris 337, decided finally, overturning Richards’ Appeal, 6 S. & R. 464, that the confirmation of a guardian’s settlement was a final decree against his ward for a balance found due to the guardian, for which a fieri facias could issue, and that the remedy was in the Orphans’ Court alone. The opinion of Judge Woodward is an able exposition of the jurisdiction and powers of the Orphans’ Court. Ashford v. Ewing, 1 Casey 213, decided, that since the Acts of 1832, 1833, 1834, and 1836, the Orphans’ Court has exclusive jurisdiction to make and enforce distribution of the estates of decedents, and that a common law action will not lie for a distributive share. The opinion of C. J. Lewis contains a full statement of the subject of jurisdiction. This was followed by Black v. Black, 10 Casey 354, in which the present chief justice takes strong ground for exclusive jurisdiction. Loomis v. Loomis, 3 Casey 233, touches more immediately the case before us. It holds, that the Court of Common Pleas, even as a court of equity, cannot interfere in a matter within the exclusive jurisdiction of the Orphans’ Court, and therefore it could not entertain a bill in equity to compel an executor to pay debts and legacies out of personal estate, and enjoin against the sale of the real estate.

I have been thus specific in stating the powers and'jurisdiction of the Orphans’ Court, because of the merits of this case, and our strong desire to sustain the bill in the Common Pleas. But it cannot be done. The case is this: Samuel Mussleman made his will on the 12th of December 1866, ordering his land to be sold to the best advantage, subject to a dower, as he terms it, of $4000, to remain for the use of his widow, during widowhood, and directing the proceeds of sale to be distributed among his children, and he appointed- John Mussleman, the plaintiff in this bill, his sole executor. The power of sale was given to no one by name or description, and it therefore fell within the 12th section of the Act of the 24th of February 1834, to wit: “ All powers, authorities and directions, relating to real estate, contained in any last will, and not given to any person by name or description, shall be deemed to have been given to the executor thereof, but no such power, authority or direction, shall be exercised or carried into effect by them, except under the control and direction of the Orphans’ Court having jurisdiction of their accounts.” Thus it is evident that the jurisdiction over any sale made by executors under the power conferred by this section is vested exclusively in the Orphans’ Court, for to that court alone is the control and direction over it given. It is argued by the appellants, that the power is vested in the executor by force of the will itself, because the distribution of the proceeds of sale is to be made by him, but the .distribution itself is not vested in the executor by the terms of the will, and were it so, it has been held as most accordant with the express words of the law, the power of bale not being by name or description, the jurisdiction of the Orphans’ Court is not excluded: John Wood’s Estate, 1 Barr 371-2; Houck v. Houck, 5 Id. 273; McFarland’s Appeal, 1 Wright 300; and even were the power expressly conferred upon the executor, the Orphans’ Court has jurisdiction to control its exercise at the petition of a party in interest, under the Acts of 1832 and 1836, as we held at Philadelphia last term, in the case of Dundas’s Estate, 14 P. F. Smith 325.

This exclusiveness derives still greater force from analogous legislation. The 15th section of the act of the 14th of June 1836, relating to assignees for creditors and other trustees, vests jurisdiction in trusts generally in the Court of Common Pleas, but is followed by this proviso, “ that nothing herein contained shall extend to trusts created by will and vested in executors or administrators, either by the words of the will, or by the provisions or operations of law, whenever such executors or administrators are answerable to the Orphans’ Court.” This proviso has evident reference to the powers conferred on the executor by the 12th section of the Act of the 24th of July 1834. A similar division of power will be found in the Act of the 18th of April ‘1853, called “ Price’s Act,” where, in all cases of real estate acquired by descent or will, the Orphans’ Court takes jurisdiction, and in all other cases, the Court of Common Pleas.

The bill of John Mussleman, the executor, sets forth the death of Samuel Mussleman, his last will, the power of sale, the sale by him, as executor, to James D. Bell, for the sum of $29,015.75; Bell’s knowledge of the will, his payment of $2859.67, as hand-money, taking possession of the land, changing the terms of the tenant’s lease, clearing land and taking off a large quantity of valuable timber and other matters, and prays specific performance of the contract. Mussleman made this sale without an order or direction of the Orphans’ Court, or a confirmation of his account. From what has been said, the case being within the exclusive jurisdiction of the Orphans’ Court, under the 12th section of the Act of 1834, the sale by Mussleman was either wholly void, from want of an order of sale, or, if it can be ratified, it can be done only by the Orphans’ Court. The court below was -therefore right in sustaining the demurrer to the jurisdiction of the Common Pleas, though not precisely for the reasons given.

This brings us to consider of the decree we should make. From the facts stated, if the sale can yet be ratified by the Orphans’ Court, the plaintiff should not lose his remedy, and, he should have specific performance. .The remedy provided in the terms of sale is inadequate in a case like this, when the purchaser has taken possession, changed the character of the land in part, and stripped it of valuable timber. The widow’s dower constitutes no objection, as she has released. Owing to Bell’s own acts, time was not of essence in the making of the title, and the doctrine o'f equity is, that when time is not of essence, a decree will be made against the purchaser, if the seller can make a good title at the time of decree, unless there has been bad faith, or an improper speculation attempted: Sugden on Vendors 249; 2 Story’s Equity, § 777; Coffin v. Cooper, 14 Vesey, Jr., 205; Ley v. Huber, 3 Watts 367; Tiernan v. Roland, 3 Harris 429. The question then is, whether the Orphans’ Court can ratify a sale made by an executor under the 12th section of the Act of the 24th of February 1834, without having made a previous order of sale. On general principles a power to order would include a power to ratify. But the executor in this case derives his power to sell from the law acting upon the will, and not from the court; and it is the exercise of the power only which is subjected to the control of the court: Wood’s Estate, 1 Barr 371. Having the power at law, it would seem as if its exercise is not so absolutely void that it may not be ratified by the court, in a case where the court would confirm the sale, if made under its previous order. We are not without instances of ratification in analogous cases. In Klingensmith v. Bean, 2 Watts 486, an Orphans’ Court sale made at a term after the order of sale had expired, and subsequently reported to the court and confirmed, was held to be valid by ratification. So, an order of publication directed to be made in two newspapers, and published in but one, was held to be good 'by ratification: Sankey’s Appeal, 5 P. F. Smith 491. In Wood’s Estate, supra, it was said in reference to an order of court directing a lumping sale, that it was an injudicious exercise of the controlling power of the court, and that the interests of the devisees would be better promoted, by leaving the disposition of the estate in the discretion of the executors, who, it is to be pr esumed, are most competent to judge as to this matter. This was said, of course, on the ground that the power of control remained in the court, which could refuse to confirm it, if the sale were injudicious.

A question has been suggested, whether Bell, the purchaser, can be made amenable to the jurisdiction of the Orphans’ Court. But there is no real difficulty in this. He is a party to the sale over which the court exercises control, and can therefore be brought in by citation to protect his own interests. This is supported by decisions in analogous cases. Thus, when the vendor and vendee of real estate are deceased, and intestate,in a proceeding for specific performance the administrator and the heirs of the vendee, as well as the heirs of the vendor, were required to be brought into the Orphans’ Court and made parties: Anshutz’s Appeal, 10 Casey 375. So, in a case of legacy charged on real estate, the alienee of the devisee was brought into the Orphans’ Court by citation, and made personally liable to payment by its decree: Gibson’s Appeal, 1 Casey 191. In proceedings in partition in the Orphans’ Court, the alienee of the heir is the proper party, and succeeds to the right of election: Ragan’s Estate, 7 Watts 438; Painter v. Henderson, 7 Barr 48; The Orphans’Court may also bring in creditors, in cases of distribution of assets: Kittera’s Estate, 5 Harris 416; Bull’s Appeal, 12 Harris 286. So its decree in the widow’s $300 provision is binding on creditors: Runyan’s Appeal, 3 Casey 121; Spencer’s Appeal, Id. 218. Provision is fully made for the exercise of its jurisdiction by the Orphans’ Court, in the 57th section of the Act of the 29th of March 1832, and “ on petition of any one interested, whether such interest be immediate or remote, setting forth facts necessary to give the court jurisdiction, the specific cause of complaint and the relief desired, supported by oath or affirmation, the Orphans’ Court, or any judge thereof in vacation, may award a citation at a day certain, not less than ten days after the issuing thereof.” This is followed by all the means of enforcing the decree of the court possessed by courts of equity and of law. The doctrine of Dundas’s Estate, fully sustains the power, and, indeed, the duty of bringing in the purchaser, because of his interest in the sale.

Upon the whole case, therefore, we affirm the decree of the Court of Common Pleas, sustaining the demurrer and dismissing the bill, on the ground of want of jurisdiction, with costs to be paid by the appellant; but without prejudice to the right of the appellant to proceed hereafter in.due course of law to obtain confirmation of the sale made by him as executor of Samuel Mussleman to James D. Bell, and to compel specific performance of the same by the said Bell.


text:
    Lehman et al. versus Kellerman.
    . 1. It is error to .nonsuit a plaintiff who has made out a ease for the jury, but it is not error to refuse a nonsuit.
    2. In an action of replevin for grain out and carried away from land of which the plaintiff had. actual adverse possession, the defendant could not defend on his alleged better title to the land.
    3. In such case the defendant’s remedy would be by ejectment and for mesne'profits.
    4. The actual possession operates as a disseisin.
    5. Elliott v. Powell, 10 Watts 453, criticised; Harlan v. Harlan, 3 Harris 507, approved.
    May 12th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.

      Error to tbe Court of Common Pleas of Bedford county: of May Term 1870, No. 38.
    William Kellerman on the 8th of July 1868, brought an action of replevin against Samuel Lehman and others, for forty-five dozen sheaves of wheat and ten dozen sheaves of rye. The defendants amongst other pleas, pleaded “property in themselves.”
    The plaintiff was the owner of a tract of land, warranted and surveyed in the name of Marcus Metzgar. The defendants were owners of an adjoining tract warranted and surveyed in the name of Kinsey Daniels. The defendants alleged that a part of the tract held by the plaintiff was within their survey. The plaintiff being in actual and peaceable possession of the whole in 1867, sowed two or three acres of that part which the defendants claimed as theirs, with wheat and rye.
    In the harvest of 1868, the defendants entered upon the tract and cut and immediately hauled away the wheat and rye, which had ripened on this small piece. For this grain the action of replevin was brought.
    On the trial, February 24th 1869, before King, P. J., the plain tiff proved the taking and rested.
    The defendant moved for a nonsuit; which was refused.
    The defendants gave a large amount of evidence to show his title to the land in dispute, and the plaintiff gave evidence in rebuttal on this question.
    The defendants’ 1st point was:—
    “ That the disseverance of this grain from the realty, and the removal of it, having been both done at once, as a part of the same act, trespass and not replevin was the remedy, as the injury was to the realty, and this action cannot be maintained.”
    Their other points related to the question of title.
    The court answered the 1st point: “ Whilst we think the action of trespass would have been the more appropriate remedy in this case; still, the action of replevin may be maintained, if the jury find that the land on which the grain was raised belonged to the plaintiff or his landlord. The instant the grain was severed from the freehold it was converted into personal property, to recover which the action of replevin will lie.”
    The verdict was for the plaintiff for $9.
    The defendants took a writ of error and, amongst others, assigned for error the refusal of the nonsuit and the answer to the point.

      W. M. Hall (with whom were G. H. Spang and J. Cessna), for plaintiff in error.
    Replevin will not lie where there is a common possession nor where the title to the land is the real subject of controversy between the parties: Brewer v. Fleming, 1 P. F. Smith 102; Mather v. The Trinity Church, 3 S. & R. 509; Baker v. Howell, 6 Id. 476; Brown v. Caldwell, 10 Id. 114; Harlan v.
      Harlan, 3 Harris 507. Nor where the disseverance and removal were part of the same act: Powell v. Smith, 2 Watts 127.

      Russell & Longnecker, for defendant in error.
    Replevin can be maintained in such a case as this: Harlan v. Harlan, 3 Harris 507; Clement v. Wright, 4 Wright 250; Wright v. Guier, 9 Watts 172; Elliott v. Powell, 10 Id. 454; Brewer v. Fleming, 1 P. F. Smith 115; Young v. Herdic, 5 Id. 172.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

It is error to nonsuit a plaintiff who has presented a case sufficient to go to the jury; but is not error to refuse a nonsuit; for when the defendant has given his evidence, he has 'it still in his power to ask the court to instruct the jury upon the insufficiency of the plaintiff’s evidence to maintain the action.

All the other assignments stand upon a single ground, the right of the defendants to try the title to the locus in quo in an action of replevin for the grain cut and carried away by them. The judge said in his charge (and this is not excepted to as being contrary to the evidence), that the plaintiff had possession of the fields and sowed the grain, and that the defendants cut and carried it away, are admitted facts.” An examination of the testimony shows also that the fact of the plaintiff’s actual possession was not rebutted; and that Kellerman, as the tenant of Josiah Miller, had been in possession for several years of the field in which the grain grew, and ploughed it and sowed the crop which the defendants took off. It was a clear case of an adverse and disputed title ; Lehman claiming the field under a warrant and survey in the name of Kensey Daniels, and Miller claiming it under a warrant and survey for Marcus Metzgar ; the question' being as to 'the location of the lines upon these warrants. ■ The plaintiff having the actual adverse possession, according to the principles stated and authorities cited in Powell v. Smith, 2 Watts 126, the defendants could not defend on their alleged better title, in the action of replevin brought for the grain, but must be driven to an action of ejectment and for the mesne profits. The actual possession of the plaintiff operates as a disseisin and turns the true owner over to his action to dispossess the disseisor: Altemose v. Huffsmith, 9 Wright 128, 9; Hoey v. Furman, 1 Barr 300. The chief difficulty is to reconcile some of the decisions heretofore made. Thus in Elliott v. Powell, 10 Watts 453, it was held that a defendant in replevin for a crop of grain cut and carried avray by him, might set up his title to the locus in quo, on the principle that his right of entry justified his entry- and taking the profits of the soil which was his. But the case is not fully reported, and, taken in the full extent of the principle stated in the opinion, would conflict with subsequent as well as previous decisions. Although the plaintiff in that case was in the actual possession and sowed the grain, it does not appear that he did so under an adverse title, while the opinion of Justice Rogers proceeds evidently on the ground that there was no contested, title and the defendant had an immediate right of entry, which he exercised, and thereby put himself into actual possession before the cutting of the grain. Unless this be the fact it is inconsistent with his own opinion in Harlan v. Harlan, 3 Harris 507, in which he several, times refers to Elliott v. Powell, without apparently supposing there is any inconsistency, and takes precisely the distinction here stated in the following clear terms: “ Although the actual possession is in the defendants, yet there is, in the sense attached to it, in the cases cited, no adverse holding, nor the semblance of a contest of title. The title never has nor ever can be disputed by them. The mere assertion of title would be nothing. The court looks to the substance ; and when it appears that in truth it is a trial of title, then it is properly ruled that replevin is not the proper action, but that it must be tried in another form. Beyond, the cases do not go, nor does public policy require they should.” See the cases collected in Brewer v. Fleming, 1 P. F. Smith 115. Applying these principles, stated by Judge Rogers, to the present case, it is evident the whole defence was inadmissible; as it was a contest of title between two warrants and surveys, as to which covered the ground in controversy. The plaintiff having been in the clear, peaceable and undisturbed possession and sowed the grain, the court should have ruled out the defence, and sent the defendants to their remedy by ejectment, and a recovery of the mesne profits. But the verdict having been given to the plaintiff, the result is the same as if the defence had been ruled out, and it is not for the defendants to complain of this error. The judgment is therefore affirmed.


author: Per Curiam.

text:
    Claflin et al. versus Maglaughlin, Garnishee of Spottswood & Kirby.
    1. S. and K. by writing assigned property of the firm, choses in action specified “to the persons hereinafter named and for the purposes herein mentioned * * * and to any other persons having a claim against the firm. * * * The design of this assignment is that the said property shall be divided among the said persons, creditors aforesaid, in proportion to their respective claims, and O. E. M., an attorney in whose hands the above-mentioned note and amounts are for collection, is directed to pay the same over to said creditors after deducting reasonable compensation for his services.” Held, not to be an assignment requiring to be recorded under the Act of 1818.
    2. Assignments, necessary to be recorded, are those in trust for creditors not those which are directly to creditors. Per Graham, P. J.
    3. The assignment was to all the creditors including those not named, and they took directly under it. Id.

      4. The direction to the attorney gave him no interest legal or equitable in the fund. Id.

    May 12th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1870, No. 68.
    This was an amicable action to April Term 1869, and case stated, in which O. S. Claflin and others, trading as Claflin, Partridge & Co., were plaintiffs, and Charles E. Maglaughlin, garnishee of Spottswood & Kirby, were defendants.
    . The facts in the case require no further statement than that made by Judge Graham, President of the court below in the following opinion, which was adopted by the Supreme Court:— ■
    “ The material facts in this case are as follows: Spottswood and Kirby, partners in business, being in failing circumstances, made the following assignment to their creditors : —
    “ ‘ Know all men by these presents, that we, F. A. Kirby and James Spottswood, lately trading and doing business as Spottswood & Kirby, of the borough of Carlisle, county of Cumberland and state of Pennsylvania, do hereby assign and transfer the following described property of the said firm, to the persons hereinafter named, and for the purposes herein mentioned.’

      “ The property transferred is : 1. A note of Messrs. Sponsler & Strohm to the said Spottswood & Kirby for $672.82, due April 2d- 1869. 2. The’ book accounts of the said Spottswood & Kirby.
    “ The persons to whom the above-mentioned property is assigned are the following:
    “ Here follow the names of the creditors of Spottswood & Kirby, including the plaintiffs, ‘ and to any other persons having a claim or demand against the said firm, and arising from the business of the said firm of Spottswood & Kirby. The design of this assignment is that the said property shall be divided among the said persons; the creditors aforesaid, in proportion to their respective claims against the said Spottswood & Kirby, and C. E. Maglaughlin, an attorney, in whose hands the above-mentioned note and amounts are for collection, is directed to pay the same over to the said above-mentioned creditors, after deducting a reasonable compensation for his services.’
    “ This assignment is dated 17th February 1869. On the 1st of March 1869, the plaintiffs obtained judgment against Spottswood & Kirby for $425. The plaintiffs afterwards issued an attachment execution against Spottswood & Kirby, and attached the note and book accounts in the hands of Sponsler & Strohm and C. E. Maglaughlin.
    “ The note and book accounts were in the hands.of C. E. Maglaughlin for collection, before the assignment made by them to their creditors.
    “ The only question raised is whether this is an assignment under the Act 24th March 1818, and void as against creditors not having been recorded, or whether it is an assignment made directly to creditors beneficially interested in it, and is not within the Act of 1818.
    “We consider the law applicable to the facts of this ease too well settled to admit of any doubt. In Chaffees v. Risk, 12 Harris 482, the distinction is clearly stated between assignments which require to be recorded under the Act of 1818, and assignments directly to creditors without the intervention of a trustee, which are not within the provisions of the act and are not required to be recorded. In that case it is said, ‘ In an assignment made directly to creditors, it is not an assignment in trust for creditors at all. A trust is when the legal estate is in one person and the equitable interest in another. But in the case of an assignment to a creditor for the payment of his own debt, the legal estate and the equitable interest are vested in one and the same person.’ The same principle is decided in 6 Wright 441, and Henderson’s Appeal, 7 Casey 502.
    “ In the present case there is neither trustee, nor cestui que trust. The assignment is direct to'the creditors of the assignors. But plaintiffs’ counsel contend that as the assignment includes, after naming the creditors, ‘ any other persons having a claim or demand against the said firm’ that the creditors named will take property assigned for their own use and in trust for the creditors not named. But this argument is not tenable \ no such trust is created by this assignment, it is as direct and positive to creditors not named (if there are any) as to those named, and they take directly under the assignment, and not by virtue of any trust reposed in others.
    “ Plaintiffs’ counsel assume in their argument that there are creditors not named. This is denied by the defendant’s counsel, who say that all the creditors known to the assignors are named, but fearing that one or more creditors, to small amounts, might have been overlooked, and desiring to distribute, their property among all their creditors, the clause including creditors not named was inserted. In this conflict of assertion by counsel we can only say that it is no part of the facts stated, that there are creditors not named in the assignment, and we cannot presume facts outside of the case stated.
    “ The plaintiffs’ counsel further allege that by the assignment Mr. Maglaughlin is made a trustee for the creditors. The claims were placed in Mr. Maglaughlin’s hands for collection before the assignment was made, and it only contains a direction that he shall pay over to the creditors the money when collected, after deducting a reasonable compensation for his services. This gives him no interest in the fund, legal or equitable. The claims were in his hands before the assignment to creditors was. made. The ordinary relation of counsel and client subsisted, nothing more,, and it cannot be that an assignment of a claim by a debtor to a creditor, which is in tbe bands of counsel for collection, must be recorded to give it validity.
    “ Tbis case nearly resembles Henderson’s Appeal, 7 Casey 502. In that case certain claims in tbe bands of Mr. Richmond, an attorney, for collection, were assigned to bim for tbe use of certain New York creditors, and although tbe claims were assigned to the attorney who held them for collection, not a mere direction to pay, as in tbis case, tbe court held tbe assignment was not within the Act of 1818, and tbe claims could not be attached.
    “ Tbe plaintiff has certainly no equity to urge in tbis case. He will come in with the other creditors under the assignment; but not satisfied with tbis he attempts to secure more than one-half of the claims assigned. Equality, it is said, is equity, and in tbis case we consider it both law and equity. Assignments of small amounts, honestly made for the use of all tbe creditors of an insolvent, have been favorably considered by our courts. The cumbrous proceedings under tbe Act of 1818 are ’expensive. Recording deed, appointment of appraisers, filing inventory, settlement of account in court, distribution by an auditor, percentage of assignee and fees ofi counsel, when tbe estate is small, leave but little for creditors, and where a fair and just distribution can be made by counsel in whose bands tbe claims have been placed, assignments such as tbe present are equally beneficial to debtor and creditors.
    “ For the reasons stated, we direct judgment to be entered for tbe defendant.”
    Entering judgment for tbe defendant was assigned for error by tbe plaintiff, who removed tbe case to tbe Supreme Court.

      W. H. Miller, for plaintiff in error,
    cited: Chaffees v. Risk, 12 Harris 432; Henderson’s Appeal, 7 Casey 502; Lucas v. The Sunbury and Erie R. R., 8 Id. 458; Driesbach v. Becker, 10 Id. 152; Englebert v. Blanjot, 2 Wharton 240; Watson v. Bagaley, 2 Jones 165. Act of March 24th 1818, § 5, 7 Smith’s L. 132, Purd. 61, pl. 6.

      C. E. Maglaughlin cited the same authorities:
    also Vallance v. Miners’ Insurance Company, 6 Wright 441.
   The opinion was delivered, July 7th 1870.

Per Curiam.

The judgment on tbe case stated, entered in tbe court below in this case, is fully sustained by the authorities referred to in the opinion of the learned judge, to which may be added, The York County Bank v. Carter, 2 Wright 446. For the reasons so well given by the learned judge, we affirm the judgment.

Judgment affirmed.