author: Per Curiam:

text:
    October Term, 1883.
    No. 122.
    October 11, 1883.
    Shipler’s Appeal.
    A testator declared that he did not intend that his will “ should he in existence,” and subsequently that “ he had destroyed the will — he liad torn it and burned it.” He had been informed by counsel of the legal means of revoking a will. The will was originally written on a full sheet of legal cap paper, and was folded in four folds. There was no writing on the outer sheet excepting an indorsement in the handwriting of the scrivener, “ Last Will of Joseph Sliipler.” The testator tore off and burned the outside sheet of the will. Upon the will, as probated, there were four tears on the left-hand side extending one half inch toward the ruled lines, and reaching to within seven eighths of an inch of the writing. They were made by tearing the will in one place when it was folded. They were not in it when it was returned to the testator by his counsel, and were in it when he died. Upon the page containing the commencement of the will, and above all of the writing, were the words in lead pencil, in the handwriting of the testator, “Last will of Joseph Shipler.” Held that there was no evidence sufficient to warrant a jury in finding that the testator revoked the will.
    2. Semble, that tears which leave the will to exist in the manner framed by the testator might work a revocation, if they were clearly shown aliunde to have been made by him animo revocandi.

    3. Quaere whether if they were shown to have been made by him animo revocandi and no explanations were given as to why he did not extend them into the written text of the will, or its signature, the law would regard such tearing as a destruction.
    4. No declared intent to revoke is a revocation.
    5. The declarations of the testator that he had destroyed his will by tearing it into two pieces and burning one of them, or one half of the will age, as evidence of revocation, more than neutralized by the production of the sheet in the condition in which it appeared.
    Before G-ordon, Trunkey, Sterrett. Green, and Clark, JJ. Merour, C. J., Paxson, J., absent.

      Certiorari to the Orphans’ Court of Mercer Coimty

    Appeal of P. E. Shipler from the decree ©f the Orphans’ Court refusing to grant an issue to test the validity of the will of Joseph Shipler.
    Joseph Shipler died, having made his last will and testament, dated October 13, 1872, which was duly admitted to probate. On May 13, 1882, P. E. Shipler, as heir-at-law of the testator, presented a petition asking for an issue. May 15, 1882, Mary S. Shipler, widow and devisee of the testator, filed an answer denying the facts alleged in the petition.
    June 15, 1882, John J. Alexander, was appointed examiner to take testimony.
    April 9, 1883, the Court, McDermitt, J., filed the following opinion, in which the facts fully appear:
    “From the papers in evidence these facts appear:
    Said alleged will was written and executed the 13th of October, 1872.
    Said testator died on the 16th of September, 1881.
    On the 19th of September, 1881, said P. E. Shipler filed in the proper office a caveat against the probating of said will.
    Said will was probated on the 18th of November, 1881.
    A rule to show cause why an issue should not; be granted was granted on the 13th of May, 1882, when an examiner was also appointed.
    In his petition for an issue, the appellant assigns as reasons therefor:
    That the testator had become dissatisfied with said will, and declared to its then custodian that he intended to destroy it, and requested such custodian to give him possession of it, which request was complied with.
    The testator declared to said former custodian that he had destroyed it by tearing it into two pieces and burning a part of it.
    That from then on to his death, he declared, in the most solemn manner, to other persons that he had no will, that lie had destroyed the only will he ever had, that he had torn it into two pieces, and burned a part of it.
    That said will, when written, was on one full sheet of legal cap, and a part thereof has been entirely torn off and the remaining part has been torn with evident violence.
    That the said 'remnant, now claimed to be said testators’s last will and testament, was forcibly or surreptitiously taken by the principal beneficiary (testator’s widow) under said will, and by her hidden and preserved until the death of the testator, and was then produced by her for probate, wkereby she seeks ‘ to avoid the effect of the revocation and destruction of said instrument as aforesaid,’ etc.
    In her answer to the rule to show cause, the appellee denies all the material allegations of fact set forth in the said petition of the appellant.
    Prom the evidence taken before the examiner, the following facts are found :
    Said will was written by the Hon. William Stewart, a brother-in-law of testator, and the custody of it was retained by said scrivener until his death, and after that it remained in the custody of Robert A. Stewart, his son, and the testator’s nephew.
    I may, in this connection, take judicial notice of the fact that said Robert is a gentleman learned in the law, and had been a member of the bar of said county for some time prior to the conversations referred to by him in his testimony, and had by him with the testator relating to this will.
    The testator told said Robert one or two years before his death, ‘that he did not intend it (said will) should be in existence ’ when he died ; and, in the same conversation, he requested said Robert to give him possession of it, which he, in a few days, did. A short time after it was returned to him, he, in a conversation, said to the said Robert: ‘ Oh, Robert, I destroyed that will, * * I put it away where nobody will find it, in a safe place.’ Said Robert then said to him, that that ‘ would not do. If you were to die, they would find it, and that would not be a legal revocation. I then explained to him to destroy a will, it must be burned, torn, or canceled, and my recollection is that I got Purdon’s Digest and read him the act of Assembly relating to revocation of wills.’
    A short time after this conversation, testator remarked as follows to said Robert: ‘That he had destroyed the will. * * He had torn it and burned it.’
    Testator told P. E. Shipler, the appellant, two or three days before his death, that he had destroyed the will written for him by William Stewart, and that his wife did not have it in her possession then, and he also said to him, in the presence of Dr. Monroe, the day before the night he died: ‘Ess, (the said appellant meaning,) so certain as I lie on this bed, I destroyed that will; I tore it in two and burned one half of it.’
    As the appellant offered no testimony tending to show that the appellee forcibly or surreptitiously took possession of and preserved said will until the testator’s death, as charged in the petition, with a view of thereby avoiding such alleged revocation of it, and as the appellee testifies she did not, I cannot find as a fact that she did.
    The will was written on a full sheet of legal cap paper, xinited at the top in the usual style of such paper, and was folded in the form lawyers usually fold such papers, to wit: in four folds. There was no writing on the outer sheet except an indorsement in the handwriting of the scrivener, ‘Last will of Joseph Shipler.’
    On the page containing the commencement of the will, and above the highest ruled line thereon, and also above all the writing in the will, and in the lead pencil handwriting of the testator, are the following words in this form:
    ‘LAST WILL OF JOSEPH SHIPLER.’
    These words were not written there when said Robert A. Stewart returned the will to the testator as aforesaid.
    The paper upon which the will is written has three perpendicularly ruled lines on the left-hand margin, and one inch and seven sixteenths of an inch from the extreme edge of the paper. There are four tears in the left-hand side of the will equi distant from each other, and extending one half inch toward said perpendicular lines. Numbering them downward, the first and third incline upward and the second and fourth downward. These tears were made by tearing the will in one place when it was folded into four folds; for when it is so folded, they are directly opposite one another both in length and direction. They were not in the will when it was returned to the testator by said Robert A. Stewart.
    The. evidence taken by the examiner is conflicting as to whether they were in the will when the testator died. The appellant and Robert A. Stewart testify they saw them in it the evening of the funeral, and H. A. Gamble, a clerk in the register’s office, testifies they were in it when it was brought to the office for probate, and that they looked as old then as when he was testifying, and that they could not have been made within ten days preceding the time when the will was produced for probate. Robert Stewart had possession of the will the evening of the funeral, and kept it three or four days ; and he testifies they were not made while he had it; but he does not state whether or not they were then in it.
    On the other hand, the appellee, her daughter, Mrs. Helen M. Dight, and her husband, William M. Uight, testify they were not in it in the evening of the funeral.
    The appellant and appellee have each a direct legal interest in the result of the appeal. But the appellant’s two corroborating witnesses have neither a direct nor indirect interest therein, whilst the two corroborating witnesses of the appellee have an indirect interest in supporting the will.
    In view of two of the appellant’s witnesses being disinterested, I find, as a fact, that these tears were in the will when the testator died. I also find, as a fact, that the testator tore off and burned the outside sheet of the will, but there was no writing thereon save the indorsement, “Last will of Joseph Shipler.”
    The appellee testifies that she showed the testator said will on Wednesday or Thursday before his death, and that he said ‘ this will is a good will.’ He died Friday morning. She also testifies that he wanted to erase a fif tydollar annual legacy he had therein given to his mother, but she persuaded him not to do so.
    The will had not been in the actual and exclusive possession of the testator for some considerable time before his death. There is no direct or indirect evidence that he intentionally made said four tears in the will, animo revocandi, nor evidence of any nature from which such fact should be inferred.
    The revocation of this will is claimed to have been made under the thirteenth section of the act of 8 April, 1833, P. L., 250, which reads, ‘no will in writing concerning any real estate shall be repealed, nor shall any devise or direction therein be altered, otherwise than by some other will, or codicil in writing declaring the same,. executed and proved in the same manner as hereinbefore provided, or by burning, canceling, obliterating, or destroying the same by the testator himself, or by some one in his presence and by his express.direction.’
    It is not pretended that the testator repealed or altered this will by making another will, or codicil in writing, but he is alleged to have revoked it by one of the modes designated in the concluding clause of said section, and this clause reads, ‘ or by burning, canceling, obliterating, or destroying the same by the testator himself, or by some one in his presence and by his express direction.’
    “To comply with the statutory requisition of revocation by destroying, there must be some act of destruction, or towards destruction, done animo revocandi — mere words will not suffice.’ Olingan v. Mitclieltree, 31 Pa. St. 25.
    That the testator declared he would destroy said will, and that he had done so, are facts fully established by the evidence. But notwithstanding these facts are so established, these further facts are established in the same way, to wit:
    1. That he only fully burned, or destroyed, the outside sheet of the paper upon which the will was written.
    2. That the only words written on said outside sheet were ‘Last will of Joseph Shipler,’ and these were written by the scrivener.
    3. That the sheet upon .which was written the entire scrip, or body of the will, was neither burned nor destroyed.
    4. Indorsed on the upper end of this sheet and directly above the commencement of the will, are these words, and in the following order:
    ‘LAST WILL OF JOSEPH SHIPLER.’
    5. This indorsement is in lead pencil and in the handwriting of the testator.
    Before the destruction of said outside sheet, Robert A. Stewart, Esq., a member of this bar, had explained to the testator the different legal modes by which he could, alone, revoke his will, and also read to him said section of said act.
    Ordinarily and naturally, a person contemplating the commission of a given act adopts the easiest, if not the most certain, mode of accomplishing it. If the testator intended to destroy his will by burning it, why would he, for that purpose, first separate its sheets ? If he intends to burn one sheet and preserve the other, such separation is not only natural, but necessary. Ordinarily, a person wishing to destroy, by burning, a paper written on a double sheet, would toss both sheets into the fire bodily. But, in this instance, the only sheet worth preserving was carefully separated from the worthless sheet and the latter burned or destroyed, whilst the former was not only retained, but carefully indorsed by the testator, and alleged spoiler, ‘Last will of Joseph Shipler.’ And this indorsement he doubtless intended to remain in lieu of the same indorsement on the back of the destroyed sheet. With the evidence before me, I cannot separate the acts of destroying the outside sheet, and the writing of such indorsement on the preserved sheet. And if this indorsement was written at the same time, oras a part of the res gestee of the act of the testator when he tore off and destroyed said sheet, his intent in writing it overthrows any intent he may, from such tearing and destruction, be presumed to have had of destroying or revoking his will entirely.
    Beyond the burning or destruction of said outside sheet, no ‘ act of destruction or toward destruction done animo revocandi,' is to be found in the evidence, save said tears, which will, hereafter, be noticed.
    As there is no evidence of anything having been written on said destroyed sheet, except the indorsement written by the scrivener, ‘Last will of Joseph Shipler,’ neither the appellee nor any third party should be presumed to have had any interest in its destruction. It must not, therefore, be presumed that she or any third party destroyed it for the purpose of removing a cancellation of the will, which the testator may be conjectured to have written thereon, for before any one ‘ can be fixed with the character of a spoiler, the purport of the paper must be proved to have been what it is surmised to have been.’ McReynolds v. McCord, 6 W., 288.
    The four tears are in the left-hand margin of the paper upon which the will is written. They are about one half inch long, and do not approach the writing of the body of the will more closely than about the seven eighths of an inch.
    Tearing is not enumerated in said act of 1833 as one of the modes of revoking a will, but if the written body of a will was torn into two or more pieces, and such tearing was shown to have been done by the testator himself, or by some one in his presence and by his express direction, and with the intent on his part of revoking his will, such tearing would constitute a destruction within the meaning of said. act.
    I think I have already shown that this will has, • so far as the evidence shows, never been revoked by ‘ burning;’ and that it has been revoked by ‘ canceling or obliterating’ it within the meaning of. those terms as employed in said act, is not, as I understand his counsel, pretended by the appellant. Its ‘destruction,’ therefore, by tearing, is, under the evidence, the only ground upon which its revocation can possibly be predicated.
    The words ‘burning,’ ‘canceling,’ ‘obliterating,’ and ‘ destroying ’ in said act are used in their popular sense, and thus used, they secure the object of the Legislature— a complete manifestation of an executed intention to repeal the will, etc.: Evans’ Appeal, 58 Pa. St., 238. ‘Each word is expressive by an act done to the paper itself, a mark upon it, evincible of a present intent that it shall not operate as a will. ’ Id. ‘ Declarations both verbal and written (of the testator) are admitted to show with what intent an act of apparent destruction or cancelation was done.’ Id.

    By the expression, ‘destruction of a will,’ is commonly understood a disintegration and decomposition of the material on which the will is written, but, as we see, destruction can be effected by doing something tantamount thereto, and the whole document, in order to be revoked, need not necessarily be torn, burnt, or otherwise destroyed, but there must be a destruction of so much as to impair the entirety of the will, so that it may be said that the will does not exist in the iflanner framed by the testator: Flood on Wills, 344, et seq., cited in note 28, on page 303 of 1 Jarman on Wills, 5th Am. Ed.
    This is cited to prove that where it is sought to show a ‘destroying’ of a will by a testator without proof of his words denoting an animo r&oocandi, ‘ there must be a destruction of so much as to impair the entirety of the will, so that it may be said that the will does not exist in the manner framed by the testator.’ Now, these tears may be cut away from the paper entirely, and yet the will will still exist precisely ‘ in the manner framed by the testator.’
    ‘ The degree of tearing, canceling, or obliterating necessary to the revocation of a will is not fixed by the statute. This must depend upon the circumstances of the case. If a will be thrown into the fire and consumed, or if it be torn into many pieces by the testator, the violent presumption would be that the instrument was burnt or torn animo r&oocandi, and it would require strong evidence to rebut this presumption; but if a will be only slightly burned or torn, there would arise no presumption from the act itself of the intention or the quo animo with which it had been done, and the will would not be revoked; but if the slightest burning or the slightest tearing be accompanied with satisfactory evidence, drawn aliunde, of the intention to revoke, the statute will be satisfied and the will revoked :’ Johnson v. Brailsford, 2 Nott and McCord, (South Car.,) 272, S. C. 10, Am. De., 601. The act under which this case was ruled differs . from ours only in including tearing as a mode of revocation.
    The evidence claimed by the appellant to show that these tears were made by the testator is contained in the following extract from testimony of Robert A. Stewart: ‘A short time after this, he (the testator) was again in the office, and he told me that he had destroyed the will. I asked him how. My best recollection is, he told me he had torn it and burned it. And I replied that that would be good and the hiding would not,’ and in the following from the evidence of P. E. Shipler, the appellant: ‘I told him that I thought he had a will that Uncle William had written for him. He said he had had such a will, but had destroyed it. I told him that I thought mother had it then in her possession. He said she had not, and repeated again, he had destroyed it.’ * * * ‘As soon as I sat down, he turned to me and said : ‘ Ess, so certain as I lie on thfcs bed, I destroyed that will. I tore it into two and burned one half of it.’ These extracts Conclusively show the testator to be of the opinion that Ms will was not revoked by tearing alone, for he always declared he had destroyed it by tearing and burning it, and never by tearing alone. It is, by any fair interpretatation of his language, impossible to find that he ever was in the animo revocandi by tearing alone. If the written sheet of the will with his own indorsement, ‘ last will of Joseph Shipler,’ thereon, was not in existence, there would, under the evidence, be no difficulty in finding a revocation; but it is present, and ‘will not down.’ That Joseph Shipler willfully falsified in his dying declarations upon his known death-bed, as to having destroyed this will, it is impossible to believe but that he did so mistakenly is established' beyond the possibility of doubt by its existence and production. My own theory is, that when he tore off and burned the outside sheet, and so indorsed the written sheet, he intended to destroy the latter sheet in the future, but neglected to do so for some time, and when he wished to do so, he could not find it, And he could, after several fruitless searches for it, easily and naturally fall into the belief that he had destroyed it. In such honest belief he doubtless died. But no intention to destroy in the future, even if the testator honestly but mistakenly believes at the time of his death that he has executed such intention, works a revocation : Clingan 0. Mitchp.1 tree, supra. But returning to the tears. The will is not shotvn by the testimony of any'one to have been exclusively in the possession of the testator at the time of his death. In fact, the personal evidence of the appellee shows it was not. As others had had it, no presumption arises that the testator made the tears. There is no direct evidence that he did, nor is there, as before explained, any that he threatened to destroy his will by tearing of this kind. Tears like these, which leave the will to ‘exist in the manner framed by the testator’ might possibly work a revocation, if they were clearly shown aliunde to have been made by him animo renocandi. But such evidence is utterly wanting.
    It must be borne in mind that the proper legal modes of revoking his will had been clearly explained to the testator, and the act of Assembly on that subject read to him. In the light of common sense it is impossible to believe that a testator, whether lawyer or layman, intelligent or ignorant, on the modes of revocation, would attempt to revoke his will by destroying it through the means of tearing it, and so tear it as to .leave it to ‘ exist in the manner framed’ by himself, or in other words, without tearing off his signature or tearing some of its written lines or words. If any presumption could arise that these tears were made by the testator animo renocandi, it would be followed by another presumption, to wit: that he had changed his mind before tearing the paper into the written body of the will, and, therefore, desisted from tearing the body of the will.
    The meaning of the words ‘burning, canceling, obliterating, or destroying’ as used in said act of 1833, are thus explained by Judge Strong in Evans’ Appeal, supra: ‘ It is true we have to do with the meaning of the words ‘canceling, obliterating, and destroying’ as used by the Legislature, but there is nothing in the statute that requires us to attach to them any unusual signification. Let it be admitted that, collocated as they are, we are required to consider them as defining acts of a similar nature. We do. All are acts done to the will itself, and they are not used in their absolutely literal sense. Even burning does not mean entire consumption by fire. This is not claimed, and under a statute very similar it has been so ruled: Bibb ex clem. Mole n. Thomas, 2 William Blackstone, 1043 ; Heed n. Harris, 33 E. C. L., 57. Nor is obliteration, as meant in the act, nothing short of effacing the letters in the will, scratching them out, or blotting them so completely that they cannot be read. A line drawn through the writing is, doubtless, obliteration, though it may leave it as legible as it was before. So the destruction spoken of is not necessarily annihilation, or a change into other forms of matter. Tearing into fragments is unquestionably destruction, though the fragments maybe re-united. All the words are used in their popular sense, and thus used, they secure the object the Legislature had in view, a complete manifestation of an executed intention to repeal. Each word is expressive by an act done to the paper itself, a mark upon it, evincible of a present intent that it shall not operate as a will.’
    There is not one word of this will which is wholly or partially burned, canceled, obliterated, or destroyed. Nor is there a tear or tears upon it ‘ evincible of a present intent that it shall not operate as a will.’
    There is no evidence tending to show whether these tears were made before or after the written sheet of the will was indorsed, ‘Last will of Joseph Shipler.’ They are, therefore, just as likely to have been made before as after that, and if before, no possible presumption can arise that they were made by him animo revocandi. That they were made by violence is apparent, but whether this violence was inflicted intentionally is not shown by the evidence.
    Even if they were shown to have been made by him animo revocandi, and no explanation given as to why he did not extend them into the written text of the will, or its signature, it is extremely doubtful whether the law would regard such tearing as a destruction, and, therefore, a revocation of the will.
    The issue prayed for should not be granted unless the evidence is sufficient to warrant a jury in finding that the testator did revoke his will by tearing it into two pieces and burning one of them or one half of the will, or that he so tore it as to be the equivalent of its destruction animo revocandi, and in my opinion no such evidence has been adduced, because:
    1. No declared intent to revoke is a revocation.

      2. The testator’s declarations that he had destroyed his will by tearing it into two pieces, and burning one of them or one half of the will, are as evidence of revocation more than neutralized by the production of the sheet iipon which is written the entire and unblemished text of the will, including the signatures of the testator and witnesses, and with the indorsement thérein in his own handwriting, ‘Last will of Joseph Shipler.’
    3. To find that the will was revoked by said tears, the following inferences must be first drawn :
    I. That they were made subsequent to the testator tearing the sheets of the will apart and burning or destroying one of them, and indorsing the other, ‘Last will of Joseph Shipler.’
    II. That he made them animo revooandi.

    But there is no evidence to warrant a jury in drawing the first of these inferences, and even if there was, the law of evidence would not permit a jury to draw the second one from the first; for, in law, inference upon inference is not tolerated.
    And now, April 9, 1883, issue as prayed for refused.”
    P.- E. Shipler then took an appeal, and assigned as error the refusal of the Court to grant the issue as prayed for.

      S. Griffith & Son, B. Magoffin, Stranahan & Mehard for appellant.
    The testator repealed his will, in accordance with the act of 8 April, 1833, s. 13 and 14, by burning and destroying it animo revocandi. The facts fully show an intention to destroy or cancel the will. If the intention to revoke is established, the slightest act to carry out the intention ends its existence as a will: Evans Ap., 58 Penna., 246; Warner v. Warner, 37 Vt., 356 ; Avery «. Pixley, 4 Mass., 460; Williams on Executors, 110; Bohanon v. Walcot, 1 How., (Miss.,) 336; Price v. Powell, 3 H. and N., 341; Williams v. Tyley, Johns, 530; Mole v. Thomas, 2 W. Bl., 1043; Jarman on Wills, Vol. I, p. 286-7.

      S. H. Miller and Q. A. Gordon for appellee.
    The will was not burnt or destroyed in accordance with the act of 1833, for it exists now in pex’fect- condition. Tearing or burning a blank leaf does not ixxdicate an intention to destroy the will. Even if it were done animo revocandi, it would not amount to a revocation under the statute: Heise ». Heise, 31 Penna., 249 ; Evans’ Ap., 58 Id., 238. A will cannot be revoked by parol. There must be such an injury with intent to revoke as destroys the entirety of the will: Reed v. Harris, 6 A. and E., 209.
    Appellants’ counsel in reply.
    If the intent be perfect, the slightest, most imperfect act will carry it into effect, provided it be such as the law prescribes, and be done to the paper on which the will is written. It is impossible to draw the line or to establish the degree in which the act mxxst be done. The acts and declarations of testator add weight to the presumption that he intended to repeal the will: 1 Jarman on Wills, 289 • Redfield on Wills, 318 ; White ■». Casten, 1 Jones, N. C. 197; Moore v. DeLaTorre, 1 Philmore, 375; Warner v. Warner, 37 Yt.j 365.
   Per Curiam:

We are so well satisfied with the opinion of the learned judge of the Court below in this case that we affirm his decree for the reasons set forth in that opinion.

The decree is affirmed, and it is ordered that the appellant pay the costs.


source: Caselaw Access Project

author: Green, J. :

license: Public Domain

text:
    October and November Term, 1883,
    No. 188.
    October 9, 1883.
    Young v. Coyle.
    Certain heirs of William Coyle, deceased, by deed, remised, released, and quit-claimed “ all their right, title, interest, and claim of, in, and to all that certain piece or parcel of land —being the same land formerly owned by William Coyle, deceased, and said first parties hereby conveying their interest, as heirs of said deceased; said Robert E. Coyle conveying his own interest as heir; also the undivided half of James W. Coyle’s interest, the same as conveyed to him by the said James W. Coyle and wife — and also all the estate, right, title, interest, property, claim, and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances.”
    At the time of the execution of this deed, one of the releasors had a certain interest in the lands conveyed, which she derived under the will of a deceased heir of William Coyle, in addition to her interest as an heir. Held, that this interest so derived did not pass by the deed.
    Before Gordon, Truk key, Sterrett, Green, and Clark, JJ. Mercur, C. J., and Paxson, J., absent.
    Error to the Court of Common Pleas of Mercer Qounty.

    Case stated between Sadie E. Coyle as plaintiff, and John Young as defendant, to determine the ownership of a third of an undivided one-ninth part of a certain tract of land, situate in Lackawannock township, Mercer county, Pennsylvania.
    The facts, as agreed upon by the parties, were as follows:
    William Coyle at one time owned, in fee simple, the land which was described in the plaintiff’s writ.
    He died intestate, in 1857, leaving to survive him a widow, Nancy H. Coyle, and nine children, viz: James W. Coyle, Manassa B. Coyle, William A. Coyle, Robert E. Coyle, Elizabeth M. Coyle, Martha M. Coyle, Nancy B. Coyle, intermarried with James F. Jackson ; Rosanna J., intermarried with Stephen Miller; and Sadie E. Coyle, the plaintiff.
    Manassa B. Coyle died in 1864, having first made his last will and testament, which was probated, etc., the 11 August, 1864.
    The disposing part of his will reads : “All my effects will be sold and my debts paid off, and the balance put to pay off my article with J. W. Coyle, L. E. Coyle, for their share of the estate, and the rent or interest of my estate will go to support my mother, Nancy H. Coyle, widow of William Coyle, her lifetime, then the rent or interest will go to the support, or for the benefit of my single sisters, equally divided, while they remain single, and go to their benefit while one remains unmarried. When none remains single, then to each brother and sister ten dollars apiece, to be paid by Robert Ewing Coyle, William Alexander Coyle, or either of them, if living, is to have the land property ; if neither should be living, let it be equally divided between my brothers and sisters or their heirs ; this is my request. William A. Coyle and R. E. Coyle to settle all my business. William A. Coyle gets my bass viol; Martha Minerva my tenor violin, with other property. This. I request.”
    The widow, Nancy Coyle, died in 1875.
    Elizabeth and Martha M. and Sadie E., the plaintiff, were the only unmarried sisters of said Manassa B. Coyle when his will was executed and probated, and they are all living and still single and unmarried, and are the only single sisters of said Manassa B.
    James W. Coyle and wife, on the 16th of July, 1867, and as heirs both of said William Coyle and Manassa B. Coyle, deceased, conveyed all their interest in said land to Robert E. and William A. Coyle.
    On the 5th day of September, 1867, the said Robert E. Coyle, Elizabeth M. Coyle, klattie M. Coyle, James F. Jackson and Nancy, his wife, Stephen Miller and Rosanna J., his wife, and the plaintiff, Sadie E. Coyle, executed and delivered to William A. Coyle, above named, a deed or release of their interest in said land, as follows:
    “This indenture, made the fifth day of September, in the year of our Lord one thousand eight hundred and sixty-seven, between Robert E. Coyle, Elizabeth M. Coyle, Sarah E. Coyle, Martha M. Coyle, Stephen Miller, and Rosana J. Miller, and James F. Jackson and Nancy Bliss, his wife, heirs of William Coyle, late Lackawannock township, Mercer county, Pennsylvania, deceased, of the first part, and William A. Coyle, of Mercer county, Pennsylvania, of the second part. Witness, That the said parties of the first part for and in consideration of the sum of nineteen hundred and fifty dollars, lawful money of the United States of America, to them in hand paid by the said party of the second part at and before the selling and delivering of these presents, the receipt whereof is hereby acknowledged, have remised, released, and quit-claimed and by these presents do remise, reli'eze, and quit claim unto tlie said party of second part, and to his heirs and assigns forever. All dll their right, title, interest, and claim of, in, and to all that certain piece or parcel of land, (here follow location and description,) being the same land formerly owned by William Coyle, deceased, and said first parties hereby conveying their interest as heirs of said deceased. Said Robert E.' Coyle conveying his own interest as heir, also the undivided half of James W. Coyle’s interest the same as conveyed to him by said James W. Coyle and wife by deed dated July 16, 1867, together with all and singular the tenements, hereditaments, and appurtenances thereto belonging, or in any wise appertaining, and the reversions, remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, claim, and demand whatsoever, as well in law as in equity, of the said parties of the first part of, in, or to the above-described premises, and every part and parcel thereof with the appurtenances. To have and to hold all and singular the above-mentioned and described premises, together with appurtenances unto the said party of the second part, his heirs and assigns forever. In witness whereof, &c.”
    On the 8th day of May, 1869, the said William A. Coyle executed and delivered to the defendant, John Young, a deed wdth covenants of general warranty for the land described in the plaintiff’s writ. The defendant shortly afterward took possession, and has since remained in pos”session of the whole of said land.
    The case stated concluded as follows:
    “If the Court should be of the opinion that the plaintiff did not, by the above-mentioned deed, dated September 5, 1867, convey to her brother, William A. Coyle, her interest in the undivided one-nintli part of the aforesaid land, which descended to her brother, Manassa B. Coyle, as one of the heirs of William Coyle, deceased, then judgment to be entered for the plaintiff for such interest in said one ninth as vested in the plaintiff upon the death of said Manassa, and after the death of said Nancy H. Coyle, either as heir of said Manassa or under his will— if the title of said plaintiff is such that ejectment may be maintained for such interest.
    “But if of the opinion that all the interest of the plaintiff in said land passed to said William A. Coyle by said deed, or that the title of the plaintiff is such that ejectment cannot be maintained, then judgment to be entered for the defendant, either party to have the right to sue out a writ of error.”
    The Court below filed the following opinion upon the case stated:
    ' “(After stating the facts) Two questions are raised by, and were argued upon these facts.
    1. Bid Sadie E. Coyle, the plaintiff, by her said deed of the 5th of September, 1867, one in which said Robert E. Coyle and others united, convey unto the said William A. "Coyle merely her interest in said land as one of the heirs of her deceased father, or did she convey, not only her interest as an heir of her father, but, also, her interest as an heir, or devisee, of her brother, Manassa ?
    This deed, release, or quit-claim conveyance, commences :
    ‘ This indenture made the fifth day of September in the year of our Lord one thousand eight hundred and sixty-seven between Robert E. Coyle, Elizabeth M. Coyle, Sarah E. Coyle,’ (here follow the names of the other grantors,) ‘heirs of William Coyle, late of Lackawannock township, Mercer county, Pa., deceased, of the first part, and William A. Coyle, of Mercer county, Pa., of the second part. Witness, that the parties on the first part, for and in consideration of the sum of nineteen hundred and fifty dollars, lawful money of the United States of America, to them in hand paid by the said- party of the second part, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have remised, released, and quit-claimed, and by these presents do remise, relieze, and quit-claim unto the said party of the second part, and to his heirs and assigns forever, all their right, title, interest, and claim of in and to all that certain piece or parcel of land ’ (here follow location and description of it) ‘ containing one hundred and eighteen acres, more or less, being the same land formerly owned by William Coyle, deceased. And said first parties hereby conveying their interests as heirs of said deceased,’ (here Robert E. Coyle sets forth that he conveys ‘Ms own interest as heir, also the undivided half of James W. Coyle’s interest, the same as conveyed to him by said James W. Coyle and wife,’ etc.,) ‘together with all and singular, the tenements and appurtenances thereto belonging or in anywise appertaining, and the reversions, remainders, rents, issues, and profits thereof. And also all the estate, right, title, interest, property, claim, and demand whatsoever, as well in law as in equity, of the said parties of the first part of, in, or to the above described premises, and every part and parcel thereof, with the appurtenances.’
    The abdve literal extract contains the premises of this deed in full, and the habendum is : ‘ To have and to hold all and singular the above-mentioned and described premises, together with the appurtenances unto the said party of the second part, his heirs and assigns forever.’
    In the premises, these parties of the first part set forth that they are ‘heirs of William Coyle, late of Lackawannock township, Mercer county, Pennsylvania, deceased,’ and most clearly and distinctly set forth that they are remising, releasing, and quit-claiming to second party for this land, as the heirs of said William Coyle, deceased ; for, after reciting the consideration, its receipt, describing the land by metes and bounds, etc., they continue, ‘ containing one hundred and eighteen acres, more or less, being the same land formerly owned by William Coyle, deceased, and said parties hereby conveying their interest as heirs of said deceased.’ Thus far no argument is necessary to demonstrate that the first party did not remise, release, nor quit-claim, nor even attempt to remise, release, or quit-claim any interest they had in said land, save that which they owned as the heirs of said William Coyle, deceased.
    The premises close thus: ‘Together with all and singular the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining, and the reversions, remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, property, claim, and demand whatsoever, as well in law as inequity, of the said parties o£ the first part of, in, or to the above-described premises, and every part and parcel thereof with the appurtenances.’
    This is the stereotyped conclusion of the premises, given by all the form-books for either a warranty or quit-claim deed ; and has, so far as I know, always been held to have reference to t.he title, legal or equitable, which the grantor has, in .the preceding part of the premises, conveyed, or attempted to convey, to the grantee. The office of such conclusion is to supply any omissions the grantor may, through mistake or oversight, have possibly made in passing the title to the grantee, which he had, in a former part of the deed, attempted to convey to him. This conclusion must be held to have been employed by the grantors for the sole purpose of securing to their grantee the title, whether legal or equitable, or both, which they had inherited from the said William Coyle, deceased.
    Their interest in this land, whether heirs or devisees of Manassa Coyle, is neither mentioned directly nor indirectly in the deed ; and there is neither written nor oral evidence that they had ever agreed to sell or convey it to the defendant.
    The habendum is a form-book one, and merely defines that said grantee shall hold said property, etc., in fee.
    When this deed was executed, the grantors, as the heirs of William Coyle, severally owned the one undivided one-ninth part of said land, and as the heirs or devisees of Manassa Coyle, they owned their several shares or interests in his said one-ninth part; and the defendant’s counsel contend that because they did not, in their said deed to William A. Coyle, except out of its operations their interest in said land as the heirs or devisees of Manassa, that, therefore, it passed under the deed to William A. Coyle, as well as did the interest they owned as their father’s heir. Had they conveyed all their legal and equitable title or interest to William A. Coyle without defining their source or sources of title, their interest in the land as the heirs or devisees of Manassa would, of course, have passed to the grantee, unless it had been excepted out of the operation of the deed. It must, however, be borne in mind that neither in nor dehors the deed is there any evidence that they had ever agreed to convey to William A. Coyle their title as heirs or devisees of Manassa. Why should one except something out of the operation of a conveyance or grant which he has never made, nor agreed to make, either in whole or in part?
    To require one to do this, would be to require him to perform not only a vain, but an act impossible of performance ; for how could he except something out of the operation of a grant which he had never attempted to make, and which the evidence fails to show he ever agreed to make ?
    The defendant’s counsel rely £on the rule of law that every man’s deed shall be taken strongest against himself, and on what is laid down in Altham’s case (8 Coke, 148) generaMs clausula, etc., it hath been insisted that general words in a release (this deed is in effect a release of title) are to be taken strongest against the releasor, and are not to be qualified or restrained by any special recital.’ But herein the true rule and distinction seems to be that where there are general words all alone in a deed of release, they shall be taken most strongly against the releasor ; but where there is a particular "recital in a deed, and then general words follow, the general words shall be qualified by the particular recital: Bacon’s Abridgment, Title Release, K; see also Lyman *. Clark, 9 Mass., 235; Ballantine’s Appeal, 67 P. St., 178.
    Let us apply this doctrine, that ‘ where there is a particular recital in a deed, and then general words follow, ' the general words shall be qualified by the particular recital,’ to ‘the particular recital’ in this deed as to the title intended to be released, remised, and quit-claimed, and the ‘general words’ following such particular recital, and describing the nature, or rather the extent, of the title to be held, and see what the result will be. This particular recital is : ‘ Said first parties hereby conveying their interest as heirs of said deceased,’ (William Coyle.) The general words which follow this particular recital, and under which the defendant’s counsel claim that the title of the heirs of Manassa, or of his devisees, passed to William A. Coyle, are: ‘And also all the estate, right, title, interest, property, claim, and demand whatsoever, as well in law as in equity, of the said parties of the first part of, in, or to the above-described premises,’ etc. Now, according to the three authorities last above-cited, these general words are qualified and controlled by that particular recital. In other words, these general words do not enlarge the title as described by the particular recital.
    I am of the opinion that William A. Coyle only took, under said deed, the title which the grantors had therein inherited as the heirs of the said William Coyle, deceased, and that the defendant has only his title.
    II. The second question is : Does the will of said Manassa Coyle vest in the plaintiff such an interest in this land that she can maintain ejectment for its recovery?
    That the testator, who wrote the will himself, was very illiterate, and that the will is very inartistically drawn, its inspection proves. It does, however, pass to his devisee his real and personal estate, and its provisions, so far as they relate to this case, are :
    1. His mother, the said widow, and who was dead before this suit was brought, was to receive, for her support during life, ‘the rent or interest’ of his land.
    2. After her death, his three single sisters, of whom the plaintiff is one, were to receive their support, and so long as they, or any of them, remained single, ‘the rent or interest ’ of said land.
    The will does not appoint or name any trustee who should take possession of and control the said ‘rent or interest ’ for the use and benefit of said eestuis que trustent'.

    The testator used the words ‘rent or interest’ as synonymous with income or proceeds ; and a devise of such proceeds of land for a given period of time ; and ejectment will, therefore, lie in favor of the devisee for the recovery of the possession of land so devised: Carlyle v. Cannon, 3 R., 489; Tyler on Ejectment, 39.
    As Manassa’s interest in said land is equal to the one undivided one ninth (•$•) of it, and as the plaintiff is the devisee of the one-third part of the ‘rent or interest’ of this said interest, she is, therefore, entitled to recover in this ejectment the possession of the one undivided twenty-seventh (^) part of the land described in the writ.
    And now, 11th August, 1883, judgment on the case stated in favor of the plaintiff for the one undivided one twenty-seventh (^) part of the land described in the writ. The defendant has the right to sue out a writ of error.”
    The defendant thereupon took this writ of error, assigning for error the action of the Court in entering judgment as above.

      Johnson Pearson and 8. Griffith & Sons for plaintiff in error.
    The vendors convey absolutely their “ entire right, title, interest, and claim” in the land, without exception or reservation.
    There are no express words of exception, and there are no words from which an exception can be or is implied: Ballantine’s Appeal, 67 Pa. S. R., 178..
    The clause “ and said parties hereby conveying their interests as heirs of said deceased” does not importan exception, as it contains neither words of exception or negation: Chaplin v. Srodes, 7 Watts, 410.
    ‘ ‘ It is an undoubted rule than an exception in a deed is to be construed most strongly against the grantor, and most favorably to the grantee:” Whitaker v. Brown, 46 P. S. R., 197. And it is submitted that words claimed to create an exception are to be construed in the same way.

      W. A. McCormick and Edwin W. Jackson for defendant in error.
    The doctrine of the law relating to reservations and exceptions has no application to this case, for the reason that the release to William A. Coyle shows on its face that it was only intended to pass the interests of the releasors as the heirs of their father: Bates v. Poster, 59 Maine, 157;'Rapp t>. Rapp, 6 Pa. St., 45.
    At the time the quit-claim deed or release to William A. Coyle was executed, Sadie E. Coyle had a mere naked possibility of interest in the one ninth of the land described in the deed, which had belonged to her brother Manassa, and this was not the subject of release. Manassa B. Coyle devised the “rent or interest of his estate to go to support his mother, Nancy H. Coyle, her lifetime ;” then the “rent or interest” was to go “to support, or for the benefit of, his single sisters, equally divided while they remain single.” At the time the quitclaim deed was executed the mother was still living. The persons who would take after the mother’s life estate was spent were not ascertainable until after the death of the mother. Sadie E. Coyle would take no interest in the land under the will unless she outlived her mother and remained single.
    A remote possibility, altogether uncertain, cannot be released: Shep. Touch., 821, 322. Possibilities or expectancies of persons who are to take under a gift to a class of persons not ascertained, as children who shall attain the age of twenty-one, or those who shall survive their parents, are not releasable: See Pelletreau v. Jackson, 11 Wendell, 110. In the case of a lease to husband and wife for life, the remainder to the survivor of tliem for twenty-one years, the husband granted it over, and though he survived, yet the grant was held void, because it was contingent: Bacon’s Abridgment, Title Release, H.
    November 5, 1883.
   — The opinion of the Court was delivered by

Green, J. :

We are of opinion that the learned Court below was entirely correct in the interpretation given to the deed from Sadie E. Coyle and others to William A. Coyle.

It is scarcely possible to add to the reasons so well expressed in the exhaustive opinion of the Court. The question is one of interest, and does not appear to us as involving any serious doubt as to the meaning of the parties. The grantors commence by describing themselves as heirs of William Coyle, and the property conveyed was acquired by descent from him.

In defining the subject of the conveyance, after describing the tract by its boundaries and quantity, they add, in immediate connection, and as a part of the same sentence, the following: “ Being the same land formerly owned by William Coyle, deceased, and said first parties hereby conveying their interest as heirs of said deceased.”

These last words must have been inserted for some purpose. The courts have no right to reject them. We must give them a reasonable interpretation, and enforce them according to their meaning.

What, then, is their meaning % The natural import of the words is that the interest conveyed is the interest which the grantors held by virtue of their relation as heirs of William Coyle. This is what the words explicitly declare, and unless there are other words in the deed in hostility with this meaning, we are bound to construe them according to their- plain import. When they said, at the beginning of the descriptive sentence, that they released all their right, title, and interest, the grantors must be intended as meaning the whole, as distinguished from something less than the whole, of the interest immediately thereafter defined.

That interest, as we have seen, was their interest in the land as heirs of William Coyle. The literal words, then, which describe the subject of the release, declare it to be all the interest which the grantors held as heirs of William Coyle in a tract of one hundred and eighteen acres of land formerly owned by him.

As if to make this reading absolutely conclusive, the next sentence in the deed declares that Robert E. Coyle, one of the grantors, conveys not only his interest as heir of William Coyle, but also the undivided half of James W. Coyle’s interest, which was conveyed to Robert by deed of July, 1867.

These words would be mere surplusage, and entirely senseless, if all the interest of all the grantors had previ jusly passed. The very fact that this additional interest was specifically mentioned proves that it was not included, and was not supposed to be included, in the previous language of the deed.

The three single sisters held a certain interest in the share of tlieir brother, ManassaB. Coyle, under his will, and they also held their shares, one ninth each, by descent, as heirs of William A. Coyle. These were two distinct interests, the latter of which was released by words of express mention, and the former of which was in no way alluded to, or described, in any part of the deed.

In these circumstances, to deprive them, by mere implication, of their interest in Manassa’s share, would be doing violence, not only to the express terms of the grant, but also to the most familiar and elementary principles of construction.

There may be some question arising under the will of Manassa as to the precise interest taken by the sisters, but as they are all living, and the defendant, upon our view of the deed, has no interest in that question, and the persons who are interested in it are not before us, we forbear its consideration at this time as against the defendant. We think Sadie E. Coyle was entitled to one third of one ninth of the land in question while she is alive and single.

Judgment affirmed.


author: Sterrett, J.

text:
    MONROE COUNTY.
    July Term, 1882,
    No. 188.
    May 2, 1883.
    Day et al. v. Day et al. to the use of the Stroudsburg Bank.
    1. Lands were sold partly for the consideration of certain judgment notes given by the vendees to the vendors secured by a mortgage on the lands. The vendors assigned some of the notes to a bank to secure discounts. Subsequently, the vendees reconveyed the lands to the vendors by a deed in which the latter agreed “ to assume' upon themselves, and pay all of the said promissory notes and obligations still due and unpaid, together with all of the liens by judgment and mortgage now upon the said several tracts of land.” One of the original vendors and mortgagees then entered satisfaction upon the mortgage of record without paying the notes held by the bank. The lands passed into the hands of bona fide purchasers for value, who obtained searches from the recorder of deeds showing no mortgage lien. Held in a scire facias by the bank upon the mortgage that the purchasers had constructive, if not actual, notice from the deed of the liability of the original vendors to pay the notes, and that neither one of the mortgagees, nor both of them, had any power to satisfy the mortgage so as to impair the security of the bank.

      2. An offer to prove that the president of the bank agreed to the conveyance with one of the mortgagees, and further agreed that instead of looking to the judgment notes to release these notes and look to the mortgagees for the payment of the indebtedness, was immaterial and properly rejected since the president, in the absence of authority from the board of directors, had no power to make such an agreement.
    3. An offer to prove by the mortgagee who entered satisfaction that he conferred witli the board of directors of the bank in session in relation to the indebtedness to the bank, and proposed to secure it, and that he received a verbal answer that they would not accept the offer as they had enough real estate was properly rejected as immaterial.
    4. The Court charged the jury that “ the mortgage being in favor of D. and S. jointly, we hold that under the circ uni stances of this case an entry of satisfaction by one of the mortgagees is insufficient in law.” Held that, although this was, perhaps, technical error, the defendants were not injured by it, inasmuch as both of the mortgagees together could not have satisfied the mortgage in such a way as to impair the security of the bank.
    5. Semble that a debtor, in making payment on a mortgage, should always require the production of the note or bond secured by it.
    Before Gordon, Paxson, Trenkey, Sterrett, Green, and Clark, JJ. Mercer, C. J., absent.
    Error to the Court of Common Pleas of Monroe County.

      Alias scire facias sur mortgage by Israel L. Day and Samuel Saylor to the use of the Stroudsburg Bank against Amos Day and Philip Woodring, partners, under the firm-name of Day & Woodring, and Thomas E. Davis and William MoMurtry, heretofore doing business as Davis & McMurtry, Henry Crosky and Charles S. Reilly, doing business as Crosky & Reilly, terre tenants.
    Pleas, nil débet; no lien, and a special plea that Samuel Saylor, one of the original mortgagees, on February 19, 1868, received satisfaction in full of the mortgage upon which the scire facias was brought, and gave a receipt therefor on the margin of the record of the mortgage ; and a further plea of receipt of debt and release and satisfaction of lien of mortgage under seal of Samuel Saylor, one of the mortgagees, dated February 19, 1868.
    On'the-trial before Meyers, P. J., the following facts - appeared:
    On August 17, 1861, Israel Day and Samuel Saylor, by deed of that date, sold and conveyed to Amos Day and Philip Woodring, co-partners, certain real estate situate in Luzerne, Carbon, and Monroe counties, for the consideration of $1 and of two hundred and seventy-nine promissory notes of the vendees for the payment of $126,000 to the vendors. These notes were of various denominations, and payable at different dates. At the same time, Day & Woodring executed and delivered to Day & Saylor a mortgage of said real estate to secure the payment of the notes and obligations. The mortgage was recorded in Monroe county, August 23, 1861. December 3, 1861, Day & Saylor agreed with the Stroudsburg bank, in consideration of the allowance of a line of discounts not exceeding $28,000, to place $28,000 of tbe judgment notes of Day & Woodring with the bank, and thereupon made a formal assignment to the bank of notes to that amount. On August 26, 1864, Amos Day and Philip Woodring, by deed of that date, sold and reconveyed the said real estate to Israel Day and Samuel Saylor. This deed was recorded in Monroe county March 5,1868. It set forth that “Amos Day and Philip Woodring were unable to comply with the terms and conditions of their purchase and take up and pay the said promissory notes and obligations as they fell due and matured, and are now unable to pay them with the accrued interest thereunto, and have, therefore, proposed to the said Israel L. Day and Samuel Saylor to reconvey to them the said real estate mentioned in the said deed (above referred to) upon condition that the said Israel L. Day and Samuel Saylor shall assume upon themselves and pay all of the said promissory notes and obligations still due and unpaid, together with all of the liens by judgment and mortgage now upon the said several tracts of land as well as those subject to which the said deed was given, as those upon the said lands and not therein mentioned, and all of the indebtedness incurred by the said Amos Day and Philip Woodring in the cutting and stocking the logs and lumber now upon the said premises, manufactured and unmanufactured and unsold, (all which said personal property, manufactured and unmanufactured lumber, has been, by bill of sale, for the consideration therein mentioned, conveyed, assigned, and transferred to the said Israel L. Day and Samuel Saylor by the said Amos Day and Philip Woodring,) which proposition has been accepted, and the said Israel L. Day and Samuel Saylor have, by articles of agreement, covenanted and agreed to assume and pay the said notes and liabilities, judgments, and mortgage liens, and to release and discharge the said Amos Day and Philip Woodring therefrom. Now, this indenture witnesses that the said Amos Day, and Sarah, his wife, and the said Philip Woodring, and Mary Ann, his wife, for, and in consideration of, the sum of $1 unto them in hand paid and of the premises have granted, bargained, &c.”
    February 19, 1868, Samuel Saylor entered upon the margin of the record of the mortgage the following:
    “Received full and complete satisfaction of this mortgage, both debt and interest, and I do hereby release the lands and tenements therein mentioned and described from the lien thereof.” It was signed and sealed by him and witnessed by the recorder.
    On March 2, 1868, Israel L. Day and Samuel Saylor, by deed of that date, sold and conveyed to Thomas E. Davis and William McMurtry, two of the defendants, the undivided one half part of the land situated in Monroe county and described in the deed of Day & Saylor to Day & Woodring, and in the deed of reconveyance by Day & Woodring to Day & Saylor. The consideration was $75,-000 : $20,000 paid in cash, $15,000 secured by notes, and $40,000 by a mortgage on the premises. The notes and mortgage were afterwards paid by Davis & McMurtry. On April 5, 1872, Henry Croskey & Co. obtained five several judgments by confession in Carbon county, each for $7,200, against Israel L. Day, Samuel Saylor, and L. A. Buckley. On May 2, 1872, on certified transcripts of the judgments in Carbon county, judgments were entered in Monroe county. On one of these judgments a writ of fieri facias was issued out of the Court of Common Pleas of Monroe county, and all the right, title, and interest of Day & Saylor in the land situate in Monroe county and described in the several deeds already mentioned was levied upon. Upon waiver of inquisition filed, said interest was sold by the sheriff on the 12th of February, 1877, to Henry Croskey and Charles S. Riley for $1,000, and a deed poll for the same executed and delivered to the purchasers.
    May 7, 1877. The plaintiff issued the alias scire facias upon the mortgage from Day & Woodring to Day & Saylor, under which the present contention arises.
    The plaintiff’s cashier testified that he had no notice of the satisfaction of the mortgage, and did not know that Day & Woodring had conveyed the property back to Day & Saylor.

      William McMurtry testified that February 28, 1868, he obtained a certificate under the hand and official seal of the recorder of deeds of Monroe county, that he found no unsatisfied mortgage, or mortgages, against Israel L. Day, Samuel Saylor, Amos Day, and Philip Woodring, or against the firms of Day & Saylor, and Day & Woodring, and that he “undoubtedly inquired of Day & Saylor whether the property was mortgaged.”

      Henry CrosTcey testified that prior to the confession of the judgments to his firm, he obtained certificates from the recorder of deeds of Monroe county showing a clear title.

      Samuel Saylor, being called by the defendants, was asked:

      Q. If you saw Depue S. Miller, president of the Stroudsburg Bank, after the Stroudsburg Bank had received certain judgment notes of Day & Woodring as collateral security for money borrowed from the bank, or to be borrowed, or for discounts to be made to Day & Saylor by said bank, in relation to the transfer and reconveyance of the mortgaged property from Day & Woodring to Day & Saylor, state what the conversation was, and what arrangement was made with Depue S. Miller, president of said bank, in relation to the reconveying of the mortgaged premises, for the purpose of showing that the bank, through its president, knew that the mortgaged property was to be reconveyed by Day & Saylor, and that the same was satisfactory to said bank, and that the reconveyance was made publicly, and not for the purpose of defrauding the bank.
    Objected to as irrelevant and immaterial, and that the bank' would not be bound by the acts or declarations of its president unauthorized by the directors of said bank in matters beyond the ordinary sphere of his duties as president. Objection sustained. Exception, (first assignment of error.)

      ■Q. State whether or not you came to see D. S. Miller, president of the Stroudsburg Bank, at Stroudsburg, to confer with him, inasmuch as the bank held certain judgment notes secured by a mortgage from Day & Woodring to Day & Saylor, in relation to the reconveyance of the mortgaged property from Day & Woodring back again to Day & Saylor, and whether the said bank, through its president, did not agree to the reconveyance, and that, instead of looking to the judgment notes held by the bank, and to the mortgages already referred to as collateral security for money loaned to Day & Saylor on notes discounted for them, agreed to release the said judgment notes, and look to Day & Saylor for the payment of the said indebtedness secured by said judgment notes, inasmuch as the said property was again to pass into the ownership of said Day & Saylor.
    Objected to as irrelevant and immaterial; that the witness is not the proper person to prove the consent of the bank to the arrangement set forth in the defendant’s offer ; that the evidence offered by the counsel of the bank is not the best evidence which the case is susceptible of ; and that the president had no power to' make such agreement, as being outside of his ordinary and official duty as president: Brown v. Simpson, 2 Watts, 238. Objection sustained. Exception, (second assignment of error.)

      Q. Bid you not meet the board of directors in session, and confer with them in relation to the indebtedness of Day & Savior to the bank, and propose to the bank to secure them, and did you not receive a verbal answer to your offer that they would not accept the offer, as they had enough real estate ?
    Objected to as immaterial and irrelevant. Objection sustained. Exception, (third assignment of error.)
    Counsel for the defendant presented, inter alia, the following points which the Court negatived :

      Fourth. That there is no evidence in this case showing that Thomas C. Davis and William McMurtry, or either of them, had notice of the Stroudsburg Bank holding certain notes as collateral security, secured by the mortgage upon which the scire facias in this case was issued before they became purchasers for value of the undivided half, or moiety, of the real estate mentioned in this mortgage, and, therefore, there can be no recovery against them in this suit.

      Fifth. That there is no evidence in this case showing that Henry Croskie and Charles S. Riley, or either of them, had notice before May 2, 1872, when they caused to be entered up certain judgments against I. L. Day, Samuel Sayloi', and Lewis A. Buckley of Nos. 195, 196, 197,198, and 199, of February term, 1872, that the Stroudsburg Bank held certain judgment notes as collateral security for indebtedness of Day & Saylor, secured by mortgage, upon which the scire facias in this case was issued, and, therefore, cannot be affected in this suit by the secret equities which the said bank held, and cannot be affected by notice given after the entering of these judgments.
    The Court further charged the jury as follows, inter alia:

    [‘‘The mortgage being in favor of Israel L. Day and Samuel Saylor, jointly, we hold that under the circumstances of this case an entry of satisfaction by one of the mortgagees is insufficient in law.] Be that as it may, there is another circumstance in this case that will entitle the plaintiffs to a verdict, provided you find that the promissory notes or obligations held by the plaintiffs are part of the same notes for the payment of which Day & Woodring gave the mortgage in suit to Day & Saylor, and that the plaintiffs were the bona fide holders of them for value prior to February 19, 1868, the date of the entry of satisfaction on the mortgage. Davis & McMurtry are purchasers by deed from Day & Saylor of a part of the real estate which Day & Woodring by deed sold and conveyed to Day & Saylor. In this deed, as we have already stated, Day & Saylor not only assumed to pay the notes or obligations given by Day & Woodring to them, due and unpaid, together with all the liens by judgment and mortgage upon the several tracts of land so conveyed; but this assumption and agreement by Day & Saylor to pay said notes, etc., is expressly made part of the consideration of the grant of the premises; so, also, in the tenendum part of the deed, the premises conveyed are held under and subject to the premises set forth in the deed, and in the receipt to the deed these promissory - and the agreement in the deed wherein Day & Saylor stipulated to pay said notes is expressly stated. Prior to the reconveyance by Day & W oodring to Day & Saylor, the fonner were the payors of the notes, and Day & Saylor the payees. By the reconveyance, Day & Saylor became the payors of said notes — not to themselves, for that would be an absurdity — and, therefore, the reasonable construction of the clause in the deed of reconveyance already referred to is that Day & Saylor made themselves liable for the notes and mortgage to such persons or party who, at the time, were the lawful holders of any of said notes. [By the reconveyance, the intention of the parties was to keep the mortgage given to secure the payment of the notes alive, but not for the benefit of Day & Saylor,] for, if that had been the intention, and Day & Saylor had at that time all the notes in possession, there would have been no necessity for the stipulation in the deed. The deed of Day & Woodring to Day & Saylor being in the line of the title of Davis & McMurtry, they are bound by all the provisions in said deed. In addition to that, their deed was placed on record three days after the execution and delivery of the deed to Davis & McMurtry, and before $55,000 of the purchase money was paid by the latter, [they, therefore, had constructive notice of the contents of the deed of Day & Woodring to Day & Saylor.] On both grounds, they had no right to rely on the certificates of the recorder of deeds, [and, though the satisfaction of said mortgage had been signed by both Israel L. Day and Samuel Saylor, it would have been no protection to them, if, at the date of said satisfaction, any of said notes were in the hands of bona fide
      holders.] It was the duty of Davis & McMurtry, by reason of the matter contained in the deed of Day & Woodring to Day & Saylor, to inquire of the parties to said deed for the purpose of ascertaining whether said notes were in fact paid, either by the production of all the notes, or by satisfactory evidence that all liability on said notes had ceased. [What I have said respecting the defense of Davis & McMurtry is equally applicable to the defense made by Henry Croskey and Charles S. Reilly.] [If, therefore, you are satisfied that the notes held by the plaintiffs were part of the notes which constituted the consideration of the mortgage in suit, and the plaintiffs were the lawful holders of them at the date of the entry of the satisfaction on the mortgage, viz: February 19, 1868, of which facts there can scarcely be any question, the plain-, tiffs are entitled to a verdict for the amount of their claim, a statement of which will be furnished to you.”]
    October 4, 1879, verdict for the plaintiff for $2,659 48, and judgment thereon. The defendants took this writ, assigning for error the rejection of their evidence offered as above, the portions of'the charge within brackets, and the overruling of their points.

      William Dams and B. F. Fackenthall for plaintiffs in error.
    1. We contend that when Davis & McMurtry bought, the mortgage being satisfied on the record, they were innocent purchasers for a valuable consideration, without notice of the alleged lien of the bank.
    2. That they made all the inquiries incumbent on them to make.
    3. That they did not have actual notice that the Stroudsburg Bank held any of the notes secured by the mortgage.
    4. That the title papers did not give them constructive notice that any of said notes were outstanding and unpaid.
    5. And that the bank was guilty of laches in not putting their claim on record, and for that reason they cannot recover : Hardy v. Reeves, 5 Vesey, 426 ; Cord well v. Mackrille, 2 Eden, 347; Jones v. Smith, 1 Hare, 52 ; Ware v. Lord Egmont, 4 De. Gex., McN. & G., 469 ; Sellers ». Benner, 9 W. N. C., 88; Twelves ®. Williams, 3 Wharton, 491; Wilson v. McCullough, 11 Harris, 440 ; Sergeant v. Ingersoll, 7 Barr, 340; Boggs v. Varner, 6 W. & S., 474; Brown «. Simpson, 2 Watts, 243; Mott v. Clark, 9 Barr, 404 ; Wetlirill’s Appeal, 3 Grant, 287; Fisher v. Knox, 1 Harris, 622.

      S. Holmes for defendants in error.
    We do not deny the general principle as claimed by counsel for plaintiff in error, and as recognized by the Court below in their opinion discharging the rule for a new trial. As a general proposition, it is doubtless true that satisfaction by one of two or more co-mortgagees is satisfaction as to all, but this applies only where the mortgagees continue to be the holders of the obligations secured by the mortgage. Where these obligations have been assigned, and the mortgagor knows of such assignment, he must pay, not to the mortgagee, but to his assignee. A payment to, and discharge by, the mortgagee is void; and a subsequent purchaser of the premises bound by the mortgage, with constructive notice of the facts, or of such other facts, as should induce a prudent man to make inquiries 'which, properly pursued, would lead to the facts above stated, takes the land subject to the mortgage: 2 Jones on Mortgages, § 956; White v. Hampton, 13 Iowa, 259 ; Purdy v. Huntington, 42 N. Y., 334 ; Wilhelmi v. Leonard, 13 Iowa, 330 ; Heath v. Page, 12 Wr., 130.
    October 1, 1883.
   The opinion of the Court was delivered by

Sterrett, J.

The fact that the Stroudsburg bank, the beneficial plaintiff below, was the owner and bona fide holder of bonds secured by the mortgage in suit, prior to and at the time the entry of satisfaction was made, has been conclusively established by the verdict. It is not pretended that the claim of the bank, for which the notes were assigned and held as security, has ever been paid ; and unless there was error in the rejection of evidence or in the charge of the Court, the verdict is right and the judgment entered thereon should not be disturbed. There was no error in rejecting the offers of evidence referred to in the first, second, and third specifications. In the absence of authority from the board of directors, the president of the bank had no power to make an agreement such as the defendants proposed to prove. It was beyond the sphere of his official duties as president; and it is not pretended that he was authorized by the board to thus release the security held by the bank. The offer to prove that Mr. Saylor met the board of directors in session, and conferred with them in relation to the indebtedness of Hay & Saylor, and pi’oposed to secure them, &c., was too vague and indefinite, as well as immaterial and irrelevant.

There was, perhaps, technical error in charging as complained of in the fourth specification ; but, upon the undisputed facts of the case, the defendants below were not prejudiced thereby. As a general proposition it is undoubtedly true that satisfaction by one or more co-mortgagees is good as to all, but this principle applies only where the mortgagees continue to be the holders of the note or obligation secured by the mortgage. Where the debt or instrument secured by the mortgage has been assigned, and the mortgagor is aware of that fact, he must pay, not to the mortgagee, but to his assignee. Under such circumstances, payment to the mortgagee and entry of satisfaction by him is simply a nullity as to the bona fide owner of the security ; and a subsequent purchaser of the mortgaged premises, with actual or constructive notice of the facts, takes the land subject to the mortgage. In Jones on mortgages, Vol. 2, sec. 956, it is said, that in making payment on a mortgage the debtor should always require the production of the note or bond secured by it, otherwise it may turn out that this evidence of the debt has been assigned, or perhaps that a formal assignment of the mortgage has been made and recorded; and, although the mortgagor is protected in making payment to the mortgagee until he has received notice of the assignment of the mortgage, yet this notice may be constructive, as well as actual, and the debtor al ways incurs much risk in making payments without having actual knowledge that the person to whom he makes payment actually holds the mortgage at the time.

It is, moreover, an undisputed fact that Day & Saylor were not merely co-mortgagees at the time the latter acknowledged satisfaction of the mortgage. They were then the owners, by conveyance, of the land bound by the mortgage. So far as their interest in the mortgage was concerned, it had already merged in the fee acquired by the deed of reconveyance ; but neither the reconveyance nor the entry of satisfaction could, in the least degree, affect the bank as assignees of a portion of the bonds secured by the mortgage. In addition to all this it is a fact, patent upon the face of the deed of reconveyance, that Day & Saylor assumed the payment of all the outstanding bonds secured by the mortgage. It is very clear, therefore, that neither one of the mortgagees, nor both of them together, had any power to satisfy the mortgage so as to impair thereby the security of the bank. Hence it follows, in view of the fact established by the verdict, that the error complained of in the fourth specification was harmless.

There was no error in charging, as complained of in the fifth specification, that, “by the reconveyance from Day & Woodring to Day & Saylor, the intention of the parties was to keep alive the mortgage given to secure the payment of the bonds, but not for the bénefit of Day & Saylor, and that of this fact Davis & McMurtry, terre tenants, had constructive notice.”

It is very evident from the deed itself that such was the intention of the parties ; and it is equally clear that all the terre tenants are affected with constructive, if not actual, notice of everything contained in the deed. It was directly in the line of the title they acquired, and whether it was recorded or not at the time they purchased, it was their duty to see and examine it, and the presumption is that they did do so. This leads to the conclusion that they knew the parties from whom they were purchasing had assumed the payment of the outstanding bonds. It was, therefore, their duty to inquire and satisfy themselves that the bonds had been paid. They had no right to rely upon the statement, written or oral, of their vendors, Day & Saylor. Having agreed to take up the bonds as consideration in part of the reconveyance to them, they practically occupied the position of” obligors. If the terre tenants failed to insist upon the production of the outstanding bonds or other satisfactory evidence that they were paid, they assumed a risk the consequences of which they must bear.

The remaining assignments of error are to the charge of the Court in relation to the effect of the entry of satisfaction, and the subject of notice to the terre tenants of the want of authority in Day & Saylor, or either of them, to satisfy the mortgage. We fail to discover any error in the charge of the learned judge in relation to either of the matters embraced in these assignments, and hence they are not sustained. The instructions on all the essential points in the case were so full and accurate that it is unnecessary to notice the specifications in detail.

Judgment affirmed.