text:
    Streeper versus McKee.
    1. S. held four notes of a bankrupt, which were secured by a mechanic’s lien. He had the lien appraised, and then proved his debt in the bankrupt court and received a dividend. He subsequently issued a scire facias on the lien to recover the balance of his debt. Held (reversing the court below), that he could proceed upon the lien for this balance. Held, further, that his rights were not affected by the fact that the lien had been appraised at a nominal value.
    2. The retention of the security by S. being expressly recognised in the proceedings in the bankrupt court, it was not necessary to obtain the permission of that court to institute proceedings to enforce it.
    January 31st 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunket, JJ.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1877, No. 117.
    Scire facias sur mechanic’s lien, issued by John Streeper against Joseph D. McKee, for work and labor done by plaintiff upon the building of defendant. The claim was for $2972.87.
    The only defence to the claim was set out in a special plea, which, in substance, averred that proceedings had been instituted in the bankrupt court, against defendant, by his creditors; that before he was declared a bankrupt, upon the petition of defendant, a meeting of his creditors was called to consider a proposition for a composition, under the 17th section of the Act of Congress of June 22d 1874; that at this meeting defendant proposed to pay to each of his general creditors twenty-five per centum of the amounts respectively due them; that this proposition was accepted by the creditors and approved by the court; that plaintiff was a creditor of defendant for the work and labor done, for which a mechanic’s lien was filed, upon which the scire facias in suit issued; that, in addition to said lien, plaintiff held promissory notes of defendant, aggregating $2972.87 ; that having first appraised the said lien at the sum of one dollar, by two appraisers, selected respectively by plaintiff and defendant, plaintiff made proof of his debt upon the promissory notes, and accepted and gave a receipt for twenty-five per centum of his claim, less one dollar, the appraised value of the security, and surrendered to defendant the promissory notes. The plaintiff, in his replication, averred that there was nothing set forth in said special plea which barred his right to recover upon the mechanic’s lien. At the trial the defendant proved the facts set forth in the foregoing plea, by producing the record in the bankruptcy proceedings. The verdict was for the plaintiff for the whole of his claim, less the dividend received, subject to the opinion of the court upon the following question reserved, “Whether, upon the papers given in evidence, the jury ought to be directed to find for the defendant, as showing that the plaintiff waived his right to the further maintenance of the action, by the proof of his claim in the United States Court in bankruptcy, and the acceptance of the amount paid him under the composition.”
    The court subsequently, without filing an opinion, entered judgment for the defendant upon the point reserved, and plaintiff then took this writ, assigning this entry for error.

      Joseph M. Pile, for plaintiff in error.
    — Section 5105 of the Bankrupt Law provides that no creditor proving his debt or claim shall be allowed to maintain any suit in law or equity against the bankrupt. Here, however, the plaintiff proved his demand upon the notes which he held as collateral to the lien claim, but the claim in suit was expressly reserved, and the present proceeding is in rem upon the security : In re Christy, 3 Howard 292. The jurisdiction of the state courts is only extinguished in those cases where the creditor proves his debt: Sampson v. Burton, 4 N. B. R. 1.

      James W. Paita and S. Edwin Megargee, for defendant in . error.
    — The security upon which plaintiff' desires to proceed, without permission from the bankrupt court, is merely a lien given by statute upon the very debt which the evidence shows plaintiff made proof of in that court. Further, the proceedings show that the lien itself was submitted to the jurisdiction of that court. To attempt, therefore, to proceed upon the lien without its permission, is to deliberately disregard the statute : Dingee v. Becker, 9 Phila. R. 196; Black v. McClellen, 12 N. B. R. R. 481; In re Levy, 1 Id., 2d ed., 327. When the composition is affirmed in the bankrupt court, the debt is extinguished: Miller v. Mackenzie, 13 N. B. R. R. 496. The whole purpose of the Bankrupt Law is the equal distribution of the bankrupt’s estate among his creditors, and it permits no one creditor to obtain more than his share of the estate. The valuation of the security retained must be a substantial and real valuation. That proven here was not such as was contemplated by the statute.
    February 25th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

This was a scire facias upon a mechanic’s claim. There was no defence to the claim other than such as was set out in a special plea, and the evidence to sustain it was a record of proceedings in bankruptcy in the District Court of the United States for the Eastern District of Pennsylvania, against the defendant. Whether, upon the papers given in evidence the jury ought to be directedffo find for the defendant, as showing that the plaintiff waived his right to the further maintenance of the action, by the proof of his claim in the United States court, in bankruptcy, and the acceptance' of the amount paid him, was the question reserved at the trial, upon which the court afterwards entered judgment for the defendant.

Proceedings had been instituted in the bankrupt court by his creditors against the defendant. He was not declared a bankrupt, but on his petition a meeting of the creditors was called to consider a proposition of compromise, under the 17th section of the Act of Congress of June 22d 1874. At this meeting the defendant submitted a proposition, offering to pay to each of his general creditors twenty-five per centum in cash upon the amounts owing them, without interest. This proposition was accepted by the creditors. The ulaintiff was a general creditor for $2574.10, and also on four notes for $2972.87, which last amount was secured by the lien upon which the scire facias in this case was issued. It further appeared that two persons were selected by the plaintiff and defendant to appraise this mechanic’s lien, who reported that “ having reference to the present value of the real estate bound by the lien and the encumbrances uj)on said property antedating said lien, they value and appraise the said lien claim or security at the sum of one dollar.” This award was filed in the bankrupt court, accompanying the proof of his debt by the plaintiff, in which he refers to the appraisement, annexed. No objection appears to have been made to the appraisement either by defendant or any of his creditors, and the plaintiff accepted and gave a receipt for twenty-five per centum of the claim, less $1, the appraised value of the security.

It is difficult to see upon these proceedings that there appeared any evidence, either in law or fact, of a waiver by plaintiff of his right to the further maintenance of this action. In fact there certainly was not, for the very appraisement and the deduction of the appraised value of the security from the amount of his claim showed conclusively his intention not to waive. The bankrupt law allows a creditor holding a .pledge or lien for securing a debt due by the bankrupt to be admitted as a creditor only for the balance of the debt, after deducting the value of such property to he ascertained by agreement between him and the assignee. Here there was no assignee, but the apjjraisement was made by agreement between the creditor and bankrupt, and it was filed without objection from any quarter. It is urged, however, that the appraisement was only for a nominal sum and should therefore be disregarded. But how could the court say without evidence that it was merely nominal ? If the prior encumbrances were equal to the full value of the property, the security was worth nothing.' But the plaintiff, looking forward to a prospective appreciation of the property, had a perfect right to retain it, and as the defendant submitted the question of its then value to appraisers, he has no .right to object on this ground, whatever may have been his right or that of his other creditors to raise an objection in the bankrupt court. Then and there was the time and place to make the objection. This retention of the security being expressly recognised in the proceedings of the bankrupt court, it was not necessary to obtain the permission of that court to institute his proceeding to enforce it.

Judgment reversed, and now judgment for the plaintiff upon the verdict on the point reserved.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Barclay et al. versus Wainwright et al.

    1. The land of a lessor is bound by a mechanic’s lien, for materials furnished at the instance of his lessee, if it appears that the latter holds under an improvement lease.
    2. It is not necessary that a lease should contain an express covenant to build to make it an improvement lease; it is sufficient if it appears that such was the intention of the parties to its execution.
    3. In a scire facias upon a mechanic’s lien, the defendant filed an affidavit of defence, in which he averred that he expected to be able to prove that the materials, for which the claim was filed, were not furnished upon the credit of the land, but solely upon the transfer of other securities. Held, that this averment was sufficient to carry the case to a jury.
    4. R. assigned a mortgage to B. as collateral security for a debt due B., for which he had a mechanic’s lien. The assignment contained a stipulation that nothing therein should be construed as a waiver of the right of B. to proceed upon the mechanic’s lien. Held, that parol evidence was admissible to show that at the time the assignment was executed it Was distinctly understood that no proceedings should be had upon the mechanic’s lien until the maturity of the mortgage, and that such agreement was the consideration of the assignment.
    5. Hopper v. Childs, 7 Wright 310, and Reed v. Kenney, 4 W. N. C. 450, distinguished.
    February 1st 1878.
    Before A&new, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to tbe Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1877, No. 113.
    Scire facias sur mechanic’s lien, issued September 5th 1876, by Wainwright & Bryant against William K. Barclay, owner, and Ransom Rogers, contractor, for lumber furnished in the erection of a theatre on the southwest corner of Tenth and Callowhill streets,.in the city of Philadelphia. Barclay filed an affidavit of defence, which set forth in substance that he is the owner in fee of the lot of ground against ■ which this lien was filed; that said property, with a theatre thereon, was demised by deponent to Rogers for five years, from June 1st 1875, with the privilege of purchase before June 1st 1877; that deponent is in no way interested in the business of Rogers, save as his lessor; that he never had an agreement with him in reference to the erection of a building other than contained in his lease to him; that deponent believes, ‘ and expects to be able to prove, that plaintiffs were cognisant in the beginning of the precise relations existing between deponent and Rogers; that one of them saw and read the lease in question; that plaintiffs submitted it to their counsel, who advised them that no lien could be filed against the owner of the ground, and that in consequence of said advice plaintiffs refused to furnish materials to Rogers, and that the latter then gave them a mortgage, or other valuable security, on certain real estate owned by him; and that the materials were not furnished upon the credit of said land, but solely upon the transfer of said securities to them.

      The deponent further averred that neither the said then existing building already erected, nor the new one since constructed, was erected by deponent, or by any one acting under his order or direction, or on the deponent’s credit or the credit of said land, but said new building was erected by the said Rogers on his credit alone and upon his order ; that the deponent never even saw the plans of the architect until after the building had been roofed in; that the old building or theatre, which formerly stood on the lot before referred to, was taken down while deponent was absent from the city.'
    The lease which was attached to the affidavit, and bore date June 1st 1875, provided that Rogers should pay. a rent of $8840 per annum; but as he was about to expend large sums in improvements, this rent should not begin till the 1st of June 1876, after which time weekly payments of $170 each should be made. It was provided, however, that if Rogers should not have a theatre well built, costing at least $17,500, in one 'year from the date of the lease, he should pay rent for the first year; but if such a building should be completed at any time before the termination of the lease, this first year’s rent should be refunded. It was also provided that Rogers should pay in addition to the rent all license fees, and other charges, gas and water bills, Barclay paying the taxes, unless they were increased, in which case Rogers should pay' the excess, being entitled to a credit if they were 'diminished; that Barclay should not be called on for repairs, &c., or to insure; but that Rogers should insure for at least $15,000, and assign the policies to Barclay as security that Rogers would perform his covenants, Barclay, however, being bound in case of a fire to apply the money recovered on the policies to rebuilding. All structures or erections were-to become the property of Barclay at the termination of the lease, and he was to have the right to buy all the personal property appurtenant to the theatre, at a value to be settled by reference if the parties could not agree. Rogers was not to use the premises for any unlawful purpose. He was allowed to assign or underlet. He had an option to buy on terms fixed at any time during the lease, Barclay, however, having the privilege, if Rogers did not buy for two years, upon giving Rogers sixty days’ notice, to sell said premises to anybody who would buy.
    Rogers also filed an affidavit of defence, wherein he averred that in May 1876, deponent agreed with plaintiffs to procure a mortgage of certain property to secure the payment of a certain sum then agreed upon, and to assign the same to the plaintiffs in full payment and satisfaction of the debt due them; that deponent accordingly procured such mortgage, and executed an assignment thereof, and that he subsequently, by previous arrangement, met the plaintiffs, or one of them, with their counsel, at the office of said counsel, and a settlement of their account was then and there effected, and the said assignment duly delivered; that at that interview a written agreement, previously prepared by plaintiffs’ counsel, respecting plaintiffs’ claim and said mortgage, was placed before deponent, with the request that he would execute the same, which deponent did, but without carefully reading it, or procuring a copy thereof; that deponent is advised that the reservation in said agreement of the right to proceed upon a mechanic’s claim upon nonpayment of said mortgage at its maturity, in law, implies an agreement not to enforce such claim until the maturity of such mortgage, viz., until May 1877; and even if the court be of a contrary opinion, deponent says that it was then and there distinctly understood and agreed between plaintiffs and deponent that no proceeding would be had upon said mechanic’s claim until the maturity of said mortgage, which agreement was the consideration of said assignment, and upon the faith of said agreement deponent signed said paper.
    The agreement, which was made a part of the affidavit, contained recitals to the effect that Wainwright & Bryant had supplied certain lumber to Rogers, and received his notes for various amounts, aggregating $6160.93; that said notes were due and unpaid; that the former agreed to deliver up the notes, and in consideration therefor Rogers agreed to assign a mortgage as collateral security therefor. It then contained this clause: “Provided, however, And it is hereby expressly understood and agreed, by and between the said parties hereto, that the assignment of the said mortgage, which is to be made to Chandler P. Wainwright individually, is not to be taken as a payment or satisfaction of the said claim of Wainwright & Bryant, for lumber, as aforesaid, unless the said mortgage, when due, shall be promptly paid with interest to the said Wainwright & Bryant, and nothing herein, or in connection with the taking of the said assignment of mortgage, shall be construed to be a waiver .of the right of the said Wainwright & Bryant to proceed against the said theatre, and the lot upon which the same is erected, on the southwest corner of Tenth and Callowhill streets, under the act ‘ securing to mechanics and others payment for their labor and materials,’ and its supplements, known as the mechanics’ lien law, but that the said Wainwright & Bryant shall be free to so proceed forthwith.”
    The court made absolute a rule for judgment for want of sufficient affidavits of defence, and the defendants took this writ, assigning this action for error.

      W. W. Wiltbank and JE. Spencer Miller, for plaintiffs in error.—
    Since the Act of 1836, in Pennsylvania a leasehold interest is not the subject of a mechanic’s lien: Church v. Griffith, 9 Barr 117; White’s Appeal, 10 Id. 252; Haworth v. Wallace, 2 Harris 118; Schenley’s Appeal, 20 P. F. Smith 98. In all these cases it was held that no claim could be filed because of the provisions of the Act of 1836, and we contend that the case at-bar is analogous to these in every important respect. It is true no rent was here to be charged for the first year, but it will not be urged that this would make the difference between a lease and a building agreement. It was a mere encouragement to take the lease. It is true, also, that the building, if erected, was to be left at the end of the term, but it must be remembered that the original structure was to be pulled down. There was no covenant to build. It is left to the option of the lessee. If he builds, it is for his own benefit, and not for the advantage of the owner. The true distinction is that where the lease contains a covenant on the part of the lessee to build, and is therefore a mere building agreement in disguise, the lessor is owner of the lessee contracts within the meaning of the lien laws: Woodward v. Leiby, 12 Casey 437; Leiby v. Wilson, 4 Wright 63; Fisher v. Rush, 21 P. F. Smith 44. In Reid et al. v. Kenney, 4 W. N. C. 450, the court distinctly held that to amount to a building agreement the lease must compel the lessee to build. The court below disregarded the averment of Rogers that the lien was not to be sued out until the mortgage ivas due, on the ground that this verbal agreement contradicted the written one. It plainly did not, and the evidence of it was clearly admissible: Selden v. Williams, 9 Watts 9; Powelton Co. v. McShain, 25 P. F. Smith 238; Shughart v. Moore, 28 Id. 469; Graver v. Scott, 30 Id. 88; Caley v. The Phila. & Chester County Railroad Co., Id. 364; Lippincott v. Whitman, 2 Norris 244.

      James W. Latta and S. P. Megarge, for defendants in error.—
    This paper may be styled a lease, but is, in reality, the strongest kind of a building contract. Does it admit of argument that this was in fact a contract between Barclay and Rogers, by which the latter was to build a theatre, costing at least $17,500, upon the lot of the former, in consideration Avhereof Rogers Avas to have a lease of the premises for five years at a nominal rental, pay no rent for the first year, and also have the privilege of purchasing the property at a fixed price ? Barclay had it in his poAA'er to compel Rogers to build, by the provision making Rogers liable .for $8400 a year for the entire five years for what was an unproductive piece of property unless improved. What was the inducement to Rogers to “build a theatre upon his lessor’s land ?” It was this : “ erect a substantial theatre upon my lot costing at least $17,500,” says his lessor by the lease, “and I Avill contribute $8400 toAvards the cost by charging you no rent for the first year ; further, I will give you a lease for five years, and I also permit you to purchase the property at á fixed price upon easy terms.”
    The case at bar is analogous to Hopper v. Childs, 7 Wright 310. To say that in this case “there is no covenant to build,” is to raise a question of no importance to the issue. There is not a line in any one of the cases cited, as to improvement-leases, which rests the decision upon the fact, that there was, or was not, a covenant to build contained in the lease. In several of the cases there was no such covenant. The question is, is there a contract to build ? Wainwright & Bryant, in the agreement with Rogers, reserve in the most unequivocal manner all rights under the mechanic’s lien law, and leave themselves free to proceed forthwith. It is a strained construction that would make “forthwith” read “a year hence.” Rogers, in his affidavit, does not set forth anything as taking place or anything said at the execution of the agreement, which under the cases would be a ground for equity to relieve, nor was the parol evidence clear, precise and indubitable: Martin v. Berens, 17 P. F. Smith 461; Penna. Railroad Co. v. Shay, 1 Norris 201; Greenawalk v. Kohne, 4 Id. 369.
    February 25th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

It would not be easy, and might be dangerous, to lay down any general rule by which to determine, in all cases, whether an improvement lease does or does not come within the intent and spirit of the 24th section of the Act of April 28th 1840, Pamph. L. 474, so as to subject the ground and building to the lien of a mechanic or material-man. As was said by Chief Justice Lowrie, in Woodward v. Leiby, 12 Casey 441, “We do not confound building contracts, payable in rents, with improvement leases; though we do not anticipate experience by any theoretical definition of their exact differences. Our most common improvement leases provide only for such labor as is to be done by the tenant himself and his servants, and no question of mechanic’s lien can arise on them. But contracts of letting and building are infinitely various in their forms, and no definition of ours can prevent this variety, for none would be bound to conform to it; and we must be content to ascertain, as cases arise, the special character of each contract, and the class to which it belongs.” It will not do, therefore, to hold, as we have been strongly urged to do by the learned counsel of the plaintiff in error, that the presence of an express covenant by the lease to build, is that which distinguishes a building contract from an improvement lease. It is true there was such a covenant or agreement in Woodward v. Leiby, 12 Casey 437; Leiby v. Wilson, 4 Wright 63; and Fisher v. Rush, 21 P. F. Smith 40; but in Hopper v. Childs, 7 Wright 310, there was none. The lessors there agreed to let the lessee erect, at his own expense, a shingle mill; to allow him to use timber on the tract; and the lessee was to pay the lessor a certain sum for every thousand shingles manufactured by him. It is true that in the latest case, Reid v. Kenney, 4 W. N. C. 452, the absence of the covenant to build was relied on, but it was not all that was relied on, for after stating that the lease contained a mere license, of which the lessee might or might not avail himself, the opinion adds : “ His omission to build, or his actual building, in no wise affected the' amount of the rent he was to pay.”

Considering the whole agreement before us, we think it falls within the category of a building contract. It is true that there is no express covenant to build; but the amount of the rent the lessee was to pay was directly affected by his omission to build, or his actual building. If he did proceed to erect the contemplated building, he was to he released from the payment of the stipulated •rent for the first year. In effect the lessor contributed this sum of $8840 towards the erection of the building. This lease is undoubtedly a very ingenious instrument; hut if we were to allow it to prevail as a mere improvement lease, the lien of mechanics and material-men might in every case be evaded.

We think, however, that there was quite enough in the affidavits of Rogers and Barclay to carry the case to the jury. The former swears very positively, that at the execution of the agreement for the collateral, May 18th 1876, “it was then and there distinctly understood and agreed between plaintiffs and deponent that no proceeding would he had upon said mechanic’s claim until the maturity of said mortgage, which agreement was the consideration of said assignment, and upon the faith of said agreement deponent signed said paper.” This is precisely within the case of Miller v. Henderson, 10 S. & R. 290; and the facts as sworn to by the affidavit would he evidence of fraud, where under all the cases parol evidence is admissible to vary the terms of a written contract.

We think also there was sufficient in Barclay’s affidavit to prevent the entry of the judgment below. He says that he believes, and expects to be able to prove, that the labor and materials for which the claim had been filed, “were not furnished upon the credit of said land, but solely upon the transfer of other securities” to the plaintiff by the contractor, as he has narrated in the affidavit. If made out to the satisfaction of the jury, this certainly would be a good defence : Presbyterian Church v. Allison, 10 Barr 413.

Judgment reversed and procedendo awarded.


author: Mr. Justice Paxson

text:
    Long’s Appeal. Murphy’s Estate.
    1. A paper which was intended to operate as a will, and which is wholly invalid as such, cannot be turned into a declaration of trust, so as to operate as a will and defeat the statute prescribing how the will of a married woman, shall be executed.
    2. Such a paper having been executed by a married woman, her husband added at the end thereof a promise to comply with the directions therein, contained. Held, that this was not such a declaration of trust as could be enforced in equity.

      February 4th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1875, No. 13.
    Appeal of John Long and others from the decree of the court sustaining the exceptions to the report of the auditor in the matter of the estate of John Murphy, deceased.
    The following were the material facts disclosed before the auditor : John Murphy, the decedent, was married to Martha Long on February 25th 1830. At that time she possessed separate estate amounting to the sum of eleven hundred and fifty dollars, which she subsequently gave to her husband, who appropriated the entire sum as he deemed proper. Decedent and his wife resided together for a period exceeding forty years, and by their joint industry and economy accumulated considerable real and personal estate. He died July 21st 1873, having survived his wife but three or four weeks. On May 21st 1867, the decedent executed his last will and testament, by which he bequeathed to his wife a legacy of one thousand dollars, payable at the expiration of one year after his decease. He subsequently, at the request and dictation of his wife, wrote the following on a separate paper :
    “Philada., June 22, 1871.
    I, Mrs. Martha Murphy i am not in good health i wish to make a devide of what I have past me to my friends.
    My Brother, John Long, $400.
    Jane, my sister, 100.
    Margaret, my sister, 350.
    Margaret Jane Brady, 100.
    Martha Lodge, 100.
    Samuel Collins, 100,
    I, John Murphy I will Ancer this Bill in one year after the decease.”
    This paper was written at a time when Mrs. Murphy was dangerously ill and was intended by her as her last will and testament. Decedent subsequently, on September 29th 1871, executed a codicil to his will wherein he bequeathed to his wife the sum of $1150, payable one year after his decease, an annuity of twelve dollars per month and certain real estate for life. During the period between the death of his wife and his own, Murphy, in conversation with different persons, frequently referred to the paper written by him at her request. To one he stated, if his life was spared he would settle that account, and whatever was “ for” his wife he would settle. To another, that if he lived three or four weeks he would pay eleven hundred and fifty.dollars to his wife’s sister, Mrs. Collins, and that this money was for his wife’s friends; that she was a very worthy woman ; and had that amount of money herself. He specified the amount and said it was the same as that contained in his will, and she wanted that amount distributed. Decedent also inquired of the sister of his deceased wife'in regard to this paper, and upon being shown it, said, “Yes, that is my handwriting; I did this according to her wishes, and if I live three or four weeks I will pay this off.” He also said, “ My will says a year, but I will not keep it that long;” that she (the witness) should keep the paper, and show it to his executors, and they would pay the money. Testator further stated to this witness he had invested his wife’s' money in bonds. These bonds were in the possession of the executors of decedent after his death, but were not accounted for nor inventoried, and formed the subject of a surcharge against them by the auditor.
    The auditor, inter alia, reported: “ During his lifetime, both before and after his wife’s death; decedent spoke repeatedly, and to different persons, of the paper, and of the amount of money mentioned therein, as his wife’s money, and promised to pay it if his life was spared. He recognised the distribution of the money made by his wife, and expressed himself in a manner that leaves no room to doubt that he considered himself bound by it, and that he intended to carry.out the wishes of his wife, as expressed in it. * * *
    “It is clear that decedent, in making these acknowledgments and declarations in reference to his wife’s money, spoke of her title to it as in no way depending upon the terms and provisions of his will, but as hers entirely, independent of the disposition he had made of it in ‘ his will and codicil. In the light of all the testimony, the bequest in the will for his wife seems to have been a further acknowledgment by him that that amount of money was hers.
    “In the opinion of your auditor, the testimony produced before him establishes, conclusively, the fact that decedent treated the amount of money specified in the paper, as the property of his wife, and not his own, and that he acknowledged himself liable to her for it, as her trustee ; "that, standing in that relation to each other in reference to this property, Mrs. Murphy was perfectly competent to direct her trustee to dispose of it in the manner set forth in the paper; that by virtue of that paper, the uses of the trust were changed, and that thenceforth he held the money as trustee for the parties named in the paper, and no longer for his wife. To this modification of the trust decedent assented in writing, and agreed to execute the trust in one year after his wife’s death-. His duties in that particular devolved upon his executors after his death.”
    He therefore reported that the claims-of the persons named in the paper should be allowed, and that they were entitled to be pa-id out of the estate of the decedent. The executors of the decedent filed exceptions, which the court, Hanna, J., delivering the opinion, sustained, inter alia, saying:—

      “From the testimony taken before the auditor, and sent'up to us upon the application of the exceptants, it is clearly shown that if the testator received any money from his wife at the time of the marriage, he not only reduced it into possession, but used. and appropriated it for his own purposes, perhaps forty years before' his death. It was never considered by either of them in the nature of a loan, or to be held by him in trust for her. This being the case, and the receipt of the money by the husband having been prior to the statute of April 11th 1848, without any cotemporaneous declaration or admission that he received and held the same in trust for her, is sufficient to work a change of ownership: Gochenaur’s Estate, 11 Harris 460. No ante-nuptial agreement by parol was shown, whereby the parties agreed that the money should remain the property of the wife. This settlement, followed by the disposition and use of the money during marriage, consistent therewith, would have been binding .upon the death of decedent: Gackenbach v. Brouse, 4 W. & S. 546. Nor was any post-nuptial contract for a valuable consideration proven or attempted: Duffy v. Insurance Co., 8 W. & S. 432. A positive and clear declaration at the time of receiving the wife’s chose in action (previous to 1848), may be sufficient to establish the husband as a trustee for the wife; but loose declarations of an intention to repay the money are not enough: Johnston v. Johnston’s Admr., 7 Casey 450. Before the Act of 1848, the husband, by marriage, acquired a right to his wife’s choses in action, if he reduced them to possession during coverture: Tritt’s Admr. v. Colwell’s Admr., 7 Casey 228.
    “In the present case the testator mingled the money received from his wife with his own, and used it either in his business or otherwise, as he saw proper; he never promised to repay his wife, nor did she demand it. We are unable to discover any setting apart by the testator of the money received from his wife; his assets did not disclose any investment in her name or his, as her trustee, or even any securities corresponding in amount to the sum received from her.
    “ For the reasons given, we are of the opinion that the money received by testator from his wife became, not only from the intention of the parties, but by operation of law, absolutely his property.
    “The auditor was inclined to this opinion, but he was misled by the testimony and apparent effect of the paper written by the testator, before referred to, coupled with his declarations and promises after the decease of his wife. In order to award payment of the claims of the persons named in the paper dated June 22d 1871, the auditor has construed it as a declaration by the testator that he held the sum of $1150 in trust for his wife; that she, the cestui que trust, had then directed him, her trustee, to dispose of the money mentioned therein in the manner indicated; that he assented thereto, and thenceforth held the money as trustee for the parties named in the paper, and no longer for his wife, and that the testator agreed to execute the trust in one year after his wife’s death. In this view we think the auditor was in error. That said paper was never prepared as a declaration of trust is apparent, and from the testimony in behalf of the claimants it appeared that the paper was written as, and for, the last will of Mrs. Murphy, who after-wards delivered it into the custody of a sister for safe-keeping. At the date of this paper the testator had already executed his will, whereby he bequeathed to his wife only a legacy of $1000, payable one year after his decease. This was not satisfactory to her, and no doubt the testator then agreed to increase her legacy to $1150, the amount she had given him on her marriage, and in case of her death before him, to pay and distribute the same among her relatives and friends named in the paper he had written at her dictation.
    “ Testator partly performed his promise by executing a codicil to his will on the 29th day of September following, whereby he increased the legacy to his wife to $1150, but he failed after her decease to provide for the distribution of said legacy among her relatives and friends.
    “ The words ‘I, John Murphy, I will ancer this bill in one year after the decease,’ do not constitute any obligation for the nonperformance of which the testator or his estate would be liable. It was a promise without consideration, and the persons named in the paper are but volunteers. If this paper constituted a declaration of trust, and had the wife survived her husband, she would probably have been-entitled to both her legacy and the like amount as cestui que trust. This certainly was not intended by the testator. The auditor to a great extent relied upon the promises of testator after the death of his wife, but these were merely declaratory of an intention never performed, and an agreement and undertaking without consideration. It is almost unnecessary to cite authorities to sustain the views entertained by us in disposing of the questions submitted. In Hill on Trustees, pages 91 and 126, the fundamental principle is laid down that in order to fasten a trust on property of any description, by means of parol declarations, the expressions used must amount to a clear and explicit declaration of trust. Loose and indefinite expressions, and such as indicate only an incomplete and executory intention, are insufficient for this purpose.
    “ The declaration of trust must be complete and unequivocal : Hill on Trustees 134.
    “Again, it has long been an established principle with courts of equity that they will not interfere to perfect the' title of a party claiming merely as a volunteer. To determine who are or who are not regarded as volunteers, it is settled that a valuable consideration is requisite to put the court in motion: See note to page 129, Hill on Trustees. However, it has been held that a blood consideration was sufficient to support an executory trust in equity, at least where the instrument was under seal: See above. But in this state, in Campbell’s Estate, 7 Barr 100, it was held that natural love and affection was not a sufficient consideration for an equitable assignment. And the evidence to establish a parol trust must be clear and positive: Emerick v. Emerick, 3 Phila. Rep. 94; Capehart v. Capehart, 2 Id. 134. See also Raybold v. Raybold, 8 Harris 308.
    “The facts shown in Gray’s Estate, 1 Barr 328, disclose admissions and promises similar to those of the testator in the present case. There the decedent, Gray, four or five years before his death, admitted, on different occasions, that he had some five hundred dollars of his wife’s money, and that it was his intention to pay it back again; that it should not be said that he had any of his wife’s money. On another occasion, when told by an acquaintance that he thought that the money obtained from Ireland should go to Mrs. Gray and her children, the decedent said ‘they should have it,’ and he did not intend to claim it as his own. And again, when another acquaintance ‘ put it at him ’ that he had the money of Mrs. Gray, he admitted it, and said she and her children should have it. Mrs. Gray claimed this five hundred dollars from her husband’s estate, and the auditor awarded her the amount, with interest. This was excepted to by the heirs of decedent, but the Orphans’ Court confirmed the report of the auditor. This decision, upon appeal, was reversed by the Supreme Court.
    “ For the reasons stated, w.e think the auditor was in error in awarding payment of the claims presented before him, and therefore sustain the exceptions. The report is recommitted to the auditor for correction, in accordance with this opinion.”
    All the claimants appealed, and assigned this action of the court for error. This case was first argued on the 30th of January 1877, and was affirmed, his honor, Judge Williams, being absent, by a divided court. It was subsequently ordered to be re-argued.

      Aaron Thompson, for appellants.
    — The testator in his lifetime was a voluntary trustee for his wife, and after her death remained such for the beneficiaries designated by her in the declaration of trust which was ratified by. him, both before and after her decease.
    He had an undoubted right of election, before the Act of 1848, to reduce her personal property into possession, but as he did not do this, he had the same right to treat it continuously as hers, and to regard any trust disposal thereof she might see fit to direct or make. That this money was hers, and so considered by him, is evidenced by his declarations to several persons, including some of these appellants, two or three- years before her death, that he had invested it for her in government bonds, and > that she, or her appointees under the trust should sacredly reap the benefit of it. Surely these emphatic declarations in her lifetime, with other outspoken confirmatory remarks immediately after her death, should leave no doubt of his interpretation of the method of disposition to be made of these trust funds by his executors after his death: Dellinger’s Appeal, 21 P. F. Smith 425; Moyer’s Appeal, 27 Id. 482; Ann Ziegler’s Appeal, 3 Norris 342. A disclaimer of conversion of the wife’s money to his own use may be established by the husband’s subsequent admissions, proved by the positive testimony of witnesses: Gray’s Estate, 1 Barr 329; Gochenaur’s Estate, 11 Harris 460.

      Lewis L. Vail, for appellees.
    — Decedent made no declaration at the time of receiving his wife’s money, or afterwards, clearly evincive of his intent at the moment of reduction into possession that he held it as his wife’s money, or for her use or under her direction, and hence this case is clearly distinguishable from Moyer’s Appeal. The paper Avas not intended as a declaration of trust, and cannot be so construed : Warriner v. Rogers, Law Rep. 16 Eq. 353; Heartley v. Nicholson, Id. 19 Eq. 242.
    March 25th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The auditor found as a fact that John Murphy, the decedent, did not convert to his own use the sum of $1150, received by him as a part of his wife’s estate; that he held it as trustee for his Avife, invested it in government bonds, as his wife’s money, two or three years prior to his death, and repeatedly recognised his obligation to pay it. The court below reversed this finding of the auditor. Upon a careful examination of the evidence, Ave are by no means sure that he was so clearly wrong that his finding of the facts should have been reversed. It must be conceded that the decedent had the right to convert the money. It was evidently the proceeds of property derived by Mrs. Murphy from her parents, at the time of her marriage with the decedent in 1830. At that time there was no statute protecting the separate estates of married women, and his right of conversion ay as clear. But there Avas evidence, not overwhelming, it is true, but sufficient to go to a jury in a common-law proceeding and to sustain a verdict, that the decedent did not convert, and never intended to convert, the money to his OAYn use. The finding of the auditor upon an issue of fact being like the verdict of a jury, ought not to be set aside because it might have been the other Avay. Unless it ought to have been the other way, and was clearly Avrong, it should - not be disturbed. But if we were to reverse the decree upon this point it AYOuld not help the appellants. Assuming that there had been no conversion, and that the decedent held the $1150 in trust for his wife ; that it was her money, to dispose of as she saw proper, have the appellants any valid claim upon it ? The answer to this question depends upon what Mrs. Murphy did to confer such right. It is very plain that any promise made by the decedent not based upon a valid disposition of the money by his wife, would be without consideration and void. The facts are that in the year 1871, his wife being ill at the time, the decedent, at her express direction, wrote, down on a piece of paper the following words :—

“ Philada., June 22, 1871.
. “ I, Mrs. Martha Murphy i am not in good health i wish to make a devide of what I have past me
to my friends.
My Brother, John Long, $400.
Jane, my sister, 100.
Margaret, my sister, ' 350.
Margaret Jane Brady, 100.
Martha Lodge, 100.
Samuel Collins, 100.
I, John Murphy I will Ancer this Bill in one year after the decease.”

This is all there is in the case to show a disposition of her money by Mrs. Murphy. What is the effect of this paper ? Was it intended as a present irrevocable gift to the parties named therein, or was. it intended as a testamentary paper merely ? There was nothing to indicate that it was a present gift. She had no idea of parting with the money during her life. The contrary intent appears upon the face of the paper. She speaks of not being in good health and wishing “to make a devide of what I have past me to my friends.” Then her husband adds to the paper, “I, John Murphy I will Ancer this Bill in one year after the decease.” Whose decease ? Evidently the decease of Mrs. Murphy. Mrs. Collins testifies that Mrs. Murphy “ asked Mr. Murphy to write down how she wished her property to be distributed, and he wrote then this paper at her dictation.” The paper was evidently intended as a will. It was a rude attempt on the part of Mrs. Murphy to dispose of her property after her death. It is needless to say that the paper possessed none of the statutory requirements of such an instrument. The right of a married woman to make a will of her separate estate rests upon statute, and its provisions must be strictly complied with.' It was contended, however, that although the paper is invalid .as a will, it nevertheless creates a, trust in favor of the appellants; that the decedent, as her trustee, was bound to execute it, and has in fact promised to do so. Undoubtedly, if Mrs. Murphy had created a valid trust of this money, assuming it to be her separate estate, her husband, in his lifetime, and his personal representatives since his death, could have been compelled to execute it. But this paper creates no trust that equity would enforce. Had it been in the nature of a present gift to the appellants, the case might have been different. But a paper which is evidently of a testamentary character, which was intended to operate as a will, and which is wholly invalid, cannot be turned into a declaration of trust, so as to operate as a will, and defeat the statute prescribing how the will of a married woman shall be executed. If, then, the paper is inoperative, either as a present gift or testamentary disposition of Mrs. Murphy’s money, it does not need an argument to show that the declaration of the decedent that he would “Ancer the Bill,” or pay the money to the appellants, amounts to nothing. In the absence of any legal liability or duty to pay, his promise to do so was a mere nudum pactum.

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

Sharswood, Mercur and Woodward, JJ., dissent.


author: Mr. Justice Gordon

text:
    Bickel’s Appeal.
    1. A resulting trust in land can be raised only from fraud in obtaining the title thereto, or from the payment of purchase-money when that title is acquired.
    2. In 1841, arbitrators appointed to settle a dispute between certain companies and 0., in regard to the Phoenix tract of coal land, made an award to O. In 1842, O. assigned this award to P. as collateral security, for a debt out of which P. was to take his debt and pay over the balance to O. In 1845, 0..and P. entered into a written agreement to endeavor to purchase the Phoenix tract, and to divide the profits to arise therefrom. In 1846, P. purchased the lands, took title in his own name and continued in possession until his death, when his devisee took possession and remained therein until 1858. In 1856, the executor of P., in making the final payment for the tract, was credited with the amount of the above award. O. made no claim to any interest in the tract during the life of P., and not until some two years after the legal estate had passed to his devisee, and the executor had no knowledge of O.’s claim when he made the settlement. In 1869, O. filed a bill in equity against the executor of P. and the devisee for an account of a share of the profits of the tract. Held,, that the devisee held the tract free from any trust for O.
    3. The Statute of Limitations is applied with the same effect in a court of equity as in a court of law, and although a bill in equity may have a much wider scope as to parties and the subjects embraced by it than a suit at law, and a court of equity having obtained jurisdiction over the parties may settle, every matter in dispute between them touching the controversy, near or remote, direct or collateral, yet it cannot directly or indirectly reach beyond the statute.
    4. O. having a right of action against the executor of P., which arose in 1856, brought suit therefor in 1857. In 1867, O. and the devisee of P. executed an agreement, under the terms of which 0., in 1868, discontinued the suit against the executor of P. In 1869, O. filed a bill in equity against the executor of P., and his devisee asserting that this agreement was void because the devisee, wh'o was a married woman, had not properly executed the same, and praying that the agreement might be set aside, and O. reinstated in all the rights he had surrendered thereunder. Held, that neither as to the executor nor the devisee did the action of 1857 toll the Statute of Limitations which thus began to run in 1856.
    February 5th 1878. Before Agnew, O. J., Sharswood, Mercur, Gordon,'Paxson, Woodward and Tkunkey, JJ.
    Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1875, No. 4. In equity.
    This cause originated in the old Court of Common Pleas, and in the distribution of the business in the reconstruction of the courts under the new constitution was allotted to the causes to be tried by Court of Common Pleas, No. 2.
    The proceedings were as follows: In 1869 John O. Offerman filed a bill in equity against Asa Packer, surviving executor of Robert W. Packer, deceased, and Rollin N. Rathbun and Helena, his wife, which, in substance, averred that in 1841, arbitrators were chosen to settle certain matters in dispute between complainant and the Camden and Amboy Railroad and the Delaware and Raritan Canal Companies, arising out of the purchase of the Phoenix Park tract of coal land; that said arbitrators made an award of $18,085 to complainant, and directed him to deliver up possession of said land to said companies, which was done ; that on the 18th of February 1842, complainant assigned said award to Robert W. Packer as collateral security for a debt, Packer undertaking to collect the award and apply the proceeds to the payment of his debt, and pay over the balance to complainant; that subsequently, on the 17th of June 1845, complainant and Packer entered into a written agreement to purchase for their joint account the Phoenix Park tract and adjacent coal lands, and to divide the profits to accrue therefrom. This agreement was as follows:—
    “It is agreed between John C. Offerman, of Pottsville, and Robert W. Packer, of Reading, Pa., that they jointly and severally agree to and endeavor to'purchase the coal lands called the Phoenix Pai’k tract, containing eight hundred acres, lying in Schuylkill county, on the west branch of the Schuylkill river; these lands belonging to the Camden and Amboy Railroad and Delaware and Raritan Canal Company, and it is understood that they divide the profit accruing out of the said lands. It is also agreed that Offer-man and Packer look out for a person to help make the first payment on the lands, and should we agree to renew the Offerman Railroad and Mining Company, or do otherwise, it is agreed that Offerman shall give one-fourth of his interest to the said Packer for considerations Packer signed to the said Offerman, some time hence, in the award Offerman obtained by arbitrators, in Schuylkill county, in 1841, against the Camden and Amboy Railroad and Delaware and Raritan Canal Company.
    John C. Oeeerman,
    R. W. Packer.
    Witnesses present—
    H. Oeeerman,
    C. Barrington.
    Philadelphia, June 17th 1845.”
    The bill then further averred that on the 30th of May 1846, Packer entered into articles of agreement with parties representing the aforesaid companies, agreeing to pay $81,300 for said lands, the times of payment and the amounts being therein stipulated; .that said purchase was made in pursuance of the agreement between complainant and Packer in June 1845, and that Packer took possession of the lands for their mutual advantage and profit; that Packer died in October 1848, having made his will, which was proved in Berks county, whereby he devised said Phoenix Park tract to his daughter, Helena, intermarried with Rollin N. Rathbun, and appointed Asa Packer one of his executors ; that at the time of his death Robert W. Packer had not received a conveyance of the land, and' had paid bufa small portion of the purchase-money, and that from the income of the land; that in 1850 $66,000 of the principal, with interest, were still due; that neither Packer nor his heirs ever paid any of the purchase-money, except from the profits accruing from the lands and the amount credited said Packer by said companies on the award in favor of complainant; that in 1856 Asa Packer, surviving executor of Robert W. Packer, made a -final settlement with the Camden and Amboy Railroad, and a conveyance of the land was then executed to Helena Rathbun, and that in said settlement, as part consideration therefor, the estate of Robert W. Packer was credited with the award of arbitrators of February 1841, and that said settlement was made without notice to or knowledge of complainant; that Rathbun and wife conveyed said lands to a mining company for $300,000 ; that neither Packer, during his life, nor Rathbun and his wife, nor the executors, having accounted to complainant for the amount of said award or for the profits and value of the one-half of said tract of land, complainant applied for relief to the Orphans’ Court of Berks county, when issues were framed and sent for trial to the Court of Common Pleas of said county to ascertain the facts; that while said issues were pending, on January 30th 1867, complainant was induced to sign an agreement between himself and said Helena Rathbun and her husband, whereby complainant agreed to surrender, without any consideration whatever, the agreement between Packer and complainant of June 17th 1845, as to said tract of land, and to discontinue all suits then pending against Rathbun and wife and Asa Packer, executor, and to refer all matters arising under the award of arbitrators to A. G. Green, Esq., whose award was to be final; that said agreement of 1867 is null and void, because it was signed by R. N. Rathbun “for self and wife,” and was never signed and acknowledged by said wife; that on April 3d 1867, complainant notified the parties interested and the referee that he repudiated said agreement, and would not abide by the report of the referee, nor be bound by any acts of his attorney in the premises; that nevertheless said referee proceeded to consider the case, and awarded complainant the sum of $3195.96, and complainant’s attorney, on July 8th 1868, discontinued his suit against the estate of Packer, commenced March 17th 1857, for the amount due him out of the award of arbitrators assigned to Packer; that said amount is entirely insufficient to pay the indebtedness of said Robert W. Packer and those claiming under him to complainant, and that he has refused to accept the same or recognise the authority of the referee. The bill then prayed,
    ' 1. That the agreement of 1867 might be declared void and complainant reinstated to the rights he may have had prior to entering into the same.
    2. That defendants be ordered to restore to complainant the agreement of June 17th 1845, between complainant and the said Robert W. Packer, which was surrendered under said agreement of compromise of January 30th 1867.
    3. That defendants be decreed to account to complainant for one-half of the profits which accrued yearly from said land, and for one-half of the profit on the sale thereof.
    4. That the defendants be decreed to account for such sum or sums of money as they or the said Robert W. Packer in his lifetime received for your orator.
    The answer of Asa Packer set forth that he was discharged as executor, by the Orphans’ Court of Berks county, on the 30th of January 1865, and that since that time he had had no connection with nor knowledge of the estate. The answer of Rathbun and his wife admitted the purchase of the lands in dispute, on the 30th of May 1846, and averred that said Packer entered into exclusive possession thereof, and retained said possession in his own name and under claim of title in his own right, until his death in 1848, and that thereafter his daughter Helena, as his'devisee, entered and remained in possession, and that no demand was made upon her for a share of the profits until long after the legal title had been conveyed to her in 1856. It denied that Packer made the purchase in pursuance of the agreement of 1845, or that he took possession for their joint benefit, or that any money was contributed by complainant towards the purchase, and averred that the settlement of 1856, in which the award of 1871 was accredited to R. W. Packer’s estate, was made without the knowledge of complainant, without any knowledge on the part of the executors that complainant had any such claim upon the award, and that said claim was not made upon them until after said settlement; that complainant being indebted to the estate of said R. W. Packer, in an amount larger than that realized from the award, the executor refused to pay any money on account of said award, when plaintiff brought suit therefor, in the District Court of Philadelphia, to March Term 1857, against Asa Packer, executor, and in 1858 another suit at Nisi Prius against Asa Parker individually, for the same cause of action, in which last suit complainant was nonsuited in 1860; that under the agreement of 1867, the action of 1857 was discontinued on July 8th 1868. The answer also suggested that whatever claim complainant might have had against the executors of Packer, for the award of 1841, it was barred by the Statute of Limitations, which had begun to run in 1856, at the time of the settlement.
    William J. McElroy, Esq., the master to whom the cause was referred, reported, inter alia, as follows :—
    “ The conclusion which I have arrived at, on a careful consideration of the facts in evidence, is, that Mr. Packer did not purchase these lands in pursuance of the agreement of 1845, but in his own right; that Mr. Offerman, judging him by his own words and conduct, so understood the purchase; and that there was no express trust of the lands, or any portion of them or their proceeds, in favor of Offerman.
    “ It is to be observed also, that neither the executor nor Mrs. Rathbun, when the purchase-money was settled and the legal title conveyed to her in 1856, knew that Offerman had any interest in the award. All they then knew was that he had assigned it absolutely to Packer by a formal paper executed in 1842. So that they were not knowingly using Offerman’s money in paying for the lands, but that which they believed to be a part of Packer’s estate. And this they had a right to infer, for Offerman had so declared in writing, and up to this time had not warned them that it was not so. Even if they had known all the facts, there was no trust, as respects the money due on the award, which would entitle the owner of it to follow it into the land and claim the land in place of the money. Nor could an executor, by using trust funds to pay purchase-money due by his testator, create a resulting trust in favor of the owner of the money, for that would enable him, by his own misconduct, to change the title of his testator’s lands. Offerman, however, never made any such claim, but asserted his right to the money, and sued for its recovery. In addition to this, if by the use or application of this money, in any way, a trust arose by implication of law, it was, long before the filing of this bill, barred by the statute.
    “I therefore report that there has been no trust, express or implied, of these lands or their proceeds, established in favor of the plaintiff, John C. Offerman, and that he is not entitled to an account of the profits of the lands.”
    He further reported : “ With regard to the effect of the Statute of Limitations, it would seem that the complainant’s right accrued as soon as he knew that the award had been collected, and the statute then began to run. This could not have been earlier than 1856, and this is the period fixed by the answer as the time when the defendants used the award in their settlement with the railroad company. On the 17th of March 1857, Mr. Offerman brought suit against the surviving executor for the amount due him out of the award. On the 10th December 1857, he brought another suit on the same claim. In 1868 he presented this claim before the auditor of the accounts of the surviving executor, filed in Berks county. The proceedings in Berks county were terminated by the compromise of 1867, hereinbefore mentioned. The suit of December 1857 terminated by a nonsuit on 12th April 1860. The suit of March 1857, in the District Court of Philadelphia county, was still pending until discontinued by Mr. Seitzinger, as attorney for plaintiff, on July 8th 1868. This discontinuance was undoubtedly entered under the agreement of compromise of 1867, and as that agreement has been decided to be invalid, whatever was done under it must fall with it. That suit in the District Court must therefore be considered here as still subsisting, and its discontinuance can have no effect adversely to the plaintiff’s claim. But the prosecution of the suit having been stopped by the compromise, the plaintiff was obliged to come into a court of equity to have that avoided and to be reinstated in liis rights as they existed previously thereto. It appears -to me that he is not chargeable with laches in the prosecution of this claim, and that having had his suit at law, which was clearly commenced in time, stopped by a discontinuance' based on an invalid agreement, he is not to be turned out of this court, to which he was compelled to resort, by a plea that the Statute of Limitations has been running against him all the time that he was endeavoring to prosecute his claim, and has let down its bar against him by reason of an act done without his consent and against his protest that he would not be bound by it.
    “ I therefore report that the plaintiff is not, so far as the claim now under consideration is concerned, debarred from prosecuting it by reason of the time elapsed since his right accrued. And my conclusion on the whole case is, that the third prayer of the plaintiff’s bill should be refused, that the first and second prayers should be granted, and that under the fourth prayer the defendants should account to the plaintiff as above stated.”
    The complainant excepted to this report, because the master recommended the refusal of his third prayer, and the respondents, because he recommended that the first and second prayers of the bill should be granted. The Court of Common Pleas, No. 2, dismissed the complainant’s exceptions, and sustained those of respondents, and dismissed the bill, which action, inter alia, was assigned for error by John M. Bickel and E. W. Offerman, who it appeared, had become vested with complainant’s rights, were placed upon the record by the proper amendments to the bill, and who took this appeal.

      Henry O. Titus, for appellants.
    — In the agreement of reference in 1867, Offerman contracted for the liability of both Rathbun and his wife. Without the wife’s liability it might well be that-he would not be able to secure the fruits of the contract, and he could not be. asked to accept the liability of the husband alone. The authorities are clear to the point that all must be bound or all are free: Flight v. Bolland, 4 Russ. Chan. 298; Pugh v. Good, 3 W. & S. 62; Bodine v. Glading, 9 Harris 53; Roseburgh v. Sterling, 3 Casey 292; Lawrenson v. Butler, Ohitty’s Contracts, 11th Am. ed. 1874, pp. 20, 21, and cases cited; Lawrenson v. Butler, 1 Sch. & Lef. 13.
    If the agreement is void, the discontinuance of the litigation on the claim in pursuance of said agreement is also nugatory, and in contemplation of law that litigation was pending when the bill was filed, March 9th 1869. That action is still subsisting and is not barred by the Statute of Limitations. If one purchases land under an agreement that another shall be equally concerned, he will be considered in equity as holding for himself and that other: Stewart v. Brown, 2 S. & R. 461; Morey v. Herrick, 6 Harris 128. The agreement of 1845, followed by the purchase of the lands, created a trust, and the burthen is upon the trustee to show its cessation by the execution of its terms or otherwise. If the agreement raised a trust, Offerman cannot be affected by the lapse of time: Price’s Appeal, 4 P. F. Smith 472; Church v. Ruland, 14 Id. 432; Hill on Trusts 406; Snow v. Booth, 8 DeGex., M. & G. 69; Cox v. Dolman, 2 Id. 592.

      R. O. McMurtrie, for appellees.
    — The executor had nothing to do with the contract under which Offerman withdrew his suits. He was no party to it. If the contract was a nullity Mr. Offerman knew this when he accepted it. If he chose to accept from a third person a worthless security, knowing it to be so, as the price for discontinuing a suit against an executor, and he does discontinue, does his right to sue continue ? No trick or anything short of a recognition of a debt will preclude a man from setting up the statute to a legal claim. Fraud even, or concealment of liability, is no answer at law. And the liability here is legal merely.
    The contract was not a nullity ; it certainly bound the husband: Robinson v. Wallace, 3 Wright 129. Has the plaintiff shown any right to an account for the proceeds of the real estate ?

      The argument confounds two distinct things. A contract to buy for joint account, like all other contracts, is perfectly valid, but it creates no other relation than any other contract. It creates a right which may be enforced; but it does not make a man a trustee. The argument is really that such a contract creates a right which will not be barred by the statute. Whereas, it creates a new legal obligation to do an act. The plaintiff admits he surrendered and cancelled his alleged contract, the basis of his claim in 1867, and he received a contract of a third person as the price or consideration.
    The case is then this : The alleged contract was made in 1845. The purchase was in 1846. The conveyance in 1856. Performance was first demanded by Offerman in 1869, while as early as 1846 the conduct of the parties showed, 1. He did not pretend to have a title. 2. Packer asserted exclusive title. And there is another fact indisputable, which demonstrates that he pretended to no title because of the use of the award in paying for the land. On the contrary, instead of asserting that this was used to carry out the contract of purchase for joint account, he sued to recover the money from Packer, on the ground that by thus using the award Packer had received the money for the use of Offerman.
    March 25th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

A resulting trust in land can be raised only from fraud in obtaining title thereto, or from the payment of purchase-money when that title is acquired: Barnet v. Dougherty, 8 Casey 371. Offer-man has failed to bring his case within the reach of either of these rules. That R. W, Packer used any trick, concealment or underhand means in procuring the contract from the Camden and Am-boy Railroad Company, is, so far as we can discover, not even alleged, and that Offerman paid the purchase-money, or any part thereof, which procured or helped to procure that contract, is not proved. It is urged that the alleged trust had its origin in the agreement between Offerman and Packer, dated June 17th 1845. That, however, was not a definite contract to purchase, but only an agreement to endeavor so to do, and this seems to have been based upon the further condition that they could find some one or more persons who would help them to make the first payment of purchase-money. There is, however, no evidence that any such person or persons were ever found, or that there was any further attempt to carry this contract into execution; neither was there the payment of a dollar of money upon it, nor even a covenant therein for the payment of money. Had it been intended to apply the proceeds of the award against the Camden and Amboy Railroad Company and Delaware and Raritan Canal Company, or any part thereof, to this contemplated purchase, such intent would surely have appeared, for that award is mentioned in the agreement, but only to state that Offerman had assigned one-fourth part thereof to Packer, “ for considerations Packer signed to said Offerman some time hence.” The presumption, then, of any such application being thus rebutted, it does not matter that some nine years after this time and after Packer’s death, when the legal title came to be conveyed to the devisee, this award was applied as a credit on the purchase-money still due the company, for not only was this long after the acquisition of the equitable title by Packer, but it was not so applied with Offerman’s assent, or as his property, but as the property of the estate. Moreover, this claim on part of the plaintiff is obviously an after-thought. Packer bought and entered into the actual and exclusive possession of the land in 1846, and was recognised by Offerman, in the most unequivocal manner, as the owner thereof. He made no' claim to any interest therein during Packer’s life, nor until some one or two years after the legal estate had passed by deed to Mrs. Rathbun. Clearly no trust of any kind can be raised on such a state of facts, and we need pursue this branch of the case no farther.

The question next to he considered arises on the Statute of Lim Rations, as affecting the plaintiff’s claim against the estate for the amount of the proceeds of the award above stated. This award, amounting to the sum of $13,085.20, was rendered February 11th 1841; it was assigned to Packer February 18th 1842, he at the same time agreeing to collect the same, and after deducting his own debt, pay over the balance to Offerman. As we have seen, this award was settled with the Camden and Amboy Railroad Company by Packer’s executor in 1856 ; Ave may therefore set it down as a fact, as the auditor has done, that from this last-recited date the statute commenced to run, and unless tolled by suit, or some other act of the parties, it would operate as a bar some time in 1862. On the 17th of March 1857, Offerman brought suit on this claim against Packer’s executor, in which a discontinuance was entered July 8th 1868. On the 10th day of December 1857, a second suit was brought in the District Court of Philadelphia county, against the same party and for the same claim, on which a nonsuit Avas suffered April 12th 1860. Last of all, this bill was preferred some time in 1869. In all this there is nothing to release the grasp of the statute; this, however, is accomplished by the learned auditor, in the manner folloAving. Certain suits had been brought, in the Common Pleas of Berks county, to August Term 1865, by Offer-man, against Rathbun and wife. By an agreement, dated January •30th 1867, it was agreed that Offerman should surrender, for cancellation, the paper of June 17th 1845, and release all claims and demands whatsoever against the defendants and the estate of R. W. Packer, saving and excepting only that arising from the contract respecting the award against the railroad and canal companies, and it was further stipulated that the amount due the plaintiff on this claim should be settled and adjusted by an arbiter in the agreement named and appointed. It was also provided in the instrument just mentioned, that the Berks county suits should be marked settled, and the case pending in the District Court, of March Term 1857, against Asa Packer, as executor of R. W. Packer’s estate, should be discontinued. On the 3d of the following April, Offer-man, having become dissatisfied with the agreement of the 30th of January 1867, gave formal notice of his repudiation thereof, and of his revocation of the submission. Now, the master having found that the agreement above mentioned was void, because not properly executed by Mrs. Rathbun, a feme covert, came to the conclusion, that, as the suit of March 1857 was, as he says, undoubtedly discontinued by Mr. Seitzinger, the plaintiff’s attorney, under and in pursuance of the agreement, the revocation restored the parties to their original status, rendered the discontinuance inoperative, and reinstated the suit of March 1857, and by this means Offerman’s claim was kept alive and the statute tolled. Admitting the facts to be as assumed, we nevertheless cannot admit .the legal conclusion drawn from them. As we have seen, the suit ‘Ü>f March 1857 was against Asa Packer as surviving executor; the present action is brought against this same person, E. P. Wilbur, administrator of Rollin N. Rathbun and Helena Rathbun, and the decree reported by the master is against Packer and Helena Rathbun. But by what process of reasoning is the action of March 1857 made to toll the statute as to Mrs. Rathbun ? It is urged, however, that, though as to her the statute may be operative, it may nevertheless be tolled as to the executor, by virtue of that suit; in other words, as to him, this bill may be made to stand on the foot of the action of 1857. Let us examine this proposition. We observe, in the first place, that without some extrinsic support this bill must fall, for, according to Hamilton v. Hamilton’s Ex’rs, 6 Harris 20, the Statute of Limitations is applied with the same effect in a court of equity as in a court of law. Such being the case, though a bill may have a much wider scope, as to parties and the subjects embraced -by it, than a suit at law, yet it has no greater force as to the statute. A court of equity having obtained jurisdiction over the parties, may settle every subject in dispute between them, touching the controversy, near or remote, direct or collateral, but cannot directly or indirectly reach beyond the statute. But an account is brought into this bill, which, counting from the date thereof, is barred by the statute. How can this apparently insuperable difficulty be overcome ? The answer is, by the action of 1857; as that suit was begun within the six years, it is said, it prevents the running of the statute. No doubt this is correct so far as the claim is involved in and pursued through that suit, but it cannot impart its vigor to any other suit. This is expressly ruled in Magaw v. Clark, 6 Watts 328. In this case the original suit was against Clark & Shryock, in the year 1825, and service of summons was had on Shryock only. In 1830 an alias was issued and served on both, and the narr. and other pleadings were filed as of the suit on this second writ. On demurrer, held, that the Statute of Limitations was a bar- as to both - defendants, notwithstanding the former suit. The decision is put upon the ground that the alias writ having been issued against both Shryock & Clark, and having been served on both, it was in fact a new suit, and not the continuance of the former one, hence was not effective to keep the former alive. It will be observed that thus it was that the alias failed even as to Shryock, who had been served with the original. So also it was said in the case of Wann v. Pattengale, 2 Harris 213, that whatever difficulty might intervene in carrying forward the original suit, the institution of a new and distinct action could not be so connected with the old as, by the use of both, to count back within the period of limitation. This, however, is exactly what is attempted in the present case, under the name of equity; the effort is to engraft this bill upon the action of 1857, so as to give it a power which otherwise it would not have. It mat^, ters not that the suit was in full life when the bill was filed, for, iilf Magaw v. Clark, the alias was of course issued pending the former action; but this bill is certainly quite as much a new suit as was the second summons in that case. Nor can we see where the peculiar equity powers are, which enable a bill to overstride a clear rule of law and attach itself to an action with which it is in nowise connected, except through the claim involved in it. Surely, equity cannot thus overreach the statute, when, as to the statute, a bill is governed by the same rules as a suit at law. Yet it is gravely argued we may begin to count back, in order to reach the statutory period, not from the date of the bill, but from the date of a suit, commenced some nine years before. Conceding that if the claim were of such a character that the statute would not operate upon it, it might be settled in this suit, yet if it were so settled it would be wholly independent of the action in the District Court. It would be the claim itself and not the suit that equity would consider ; so far as that suit was concerned, it would be treated as though it did not exist. For what other purpose, then, is that case now brought into this action than to tide this bill over the bar, of the statute ? Taking up the claim and counting from the date of the bill, and it is found the statute has run; the plaintiff’s case is at an end; but the master, in his desire to do what he considei’s justice, goes back some nine years arid discovers a suit at law involving this claim, and he concludes that, as equity has large powers and powers that may be extended to the last degree, he will graft his bill upon that suit and thus forestall the statute. This cannot be; it is equity run mad.

In this we concede, as of course, what no one doubts, that had the plaintiffs, by the machination or fraud of Packer’s representatives, been induced to defer their claim beyond the statutory period, equity would interfere to prevent the intervention of the statute, but as there is neither proof nor allegation of any such fraud, there is no room for equitable interference on that ground.

So, in like manner, whilst we are not prepared to endorse the finding of the learned master that the non pros, of 1868 was entered, by the attorney of Bickel and Offerman, in fraud of their rights, yet, conceding the accuracy of that finding, it was, nevertheless, a fraud in which the defendants were no way involved ; it was a fraud committed by the plaintiffs’ own agent, and one which, by no possibility, can be set up against the defendants.

Treating the non pros., however, as of no effect, and this is all the plaintiffs can ask, it but follows that a recovery may be had upon any claim set forth in the action of 1857, not older than six years, counting from the teste of the writ. That this count can be made backward from 1857, is due to the fact that that action had its origin in that year, but as it cannot communicate this date to any subsequent suit, either' at law or in equity so neither can it communicate a power which it possesses only by virtue of that date.

Decree affirmed. Costs to be paid by appellants.

Chief Justice Agnew filed a dissenting opinion.


text:
    Wistar versus The City of Philadelphia.
    1. A municipal claim filed against the “heirs of R. W., deceased, owners or reputed owners, or whoever may be the owner,” and describing the real estate against which it is claimed as a lien, is a sufficient designation of the ownership of the premises.
    2. In a scire facias sur municipal claim the sheriff made return, “ made known by posting a true and certified copy of the within writ on the premises herein described, December 5th 1874, and by advertising the same twice a week for two weeks in the Evening Bulletin, a daily paper published in the city, agreeably to the Act of Assembly in such case made and provided, and nihil habet as to the defendants.” Held, that this return was fatally defective, first, because it does not show that a true and attested copy of the writ was posted on a conspicuous part of the premises /hr two iveelcs before the rehirn day, and, secondly, does not show publication, as required, in a daily paper for two weeks before the return-day.
    February 5th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1875, No. 162.
    Scire facias sur municipal claim, filed by the City of Philadelphia to the use of George W. Mooney, to the use of William Armstrong, against a certain property in Stiles street, in said city, for work done on a sewer in front thereof, and against the “ heirs of Richard Wistar, deceased, owners or reputed owners, or whoever may be owner.” The facts stated in the opinion of this court, and the following specifications of error, which were assigned by Wistar to a judgment entered by the court in behalf of the city for want of an affidavit of defence, sufficiently illustrate the case. The assignments of error were :—
    1. The court erred in giving judgment for want of an affidavit of defence in a writ of scire facias, issued upon a claim filed against “the heirs of Richard Wistar, deceased.” 2. The sheriff’s return of “made known,” &c., was insufficient in this: that it does not appear that the copy of said writ was posted by him “on a conspicuous part of the premises therein described.” 3. It does not appear “that a brief notice” of said Avrit Avas published by him according to laAV. 4. It does not appear that “ the city solicitor caused diligent search to be made by an assistant or clerk for the OAvners or reputed owner” of the property levied before issuing a writ of scire facias thereon. 5. It does not appear that notice was served to the owner or reputed owner “ to make payment to the city solicitor within ten days” before suit was brought. And, 6. It appears, notwithstanding the sheriff’s return of nihil habet, that upon the day the writ of scire facias issued, the owner, or reputed owner of the lot, had a residence in the city of Philadelphia, known to the claimant.
    W. S. Sharpiess, for plaintiff in error.
    — The requirements, under the Act of March 11th 1846, Pamph. L. 115, Purd. Dig. 1089, pi. 25, for a valid service of the writ of scire facias, are, 1st, posting a true and attested copy of the writ on a conspicuous part of the premises tAvo weeks before the return-day; and, 2d, publication of a brief notice thereof in a daily newspaper of said county, also two weeks before the return-day. A property-holder has a right to insist that this statute shall be strictly construed. The advertisement, such as it Avas, is not said to have been before the return-day. All that the sheriff can be fixed for, upon his return, is for the allegation that it was advertised before he returned it — whenever that may have been. The Avords, “ agreeably to the Act of Assembly,” &c., Avill not help him. The rule has always been, that even in case of service of a summons, the sheriff must set forth just Avhat he did, and the court will judge Avhether or not that is “ agreeably to the Act of Assembly,” &c. : Weaver v. Springle, 2 Miles 42.

      jHenry Q. Terry, for defendants in error.
    — A municipal assessment against the heirs of A. is valid : Northern Liberties v. Coates’s Heirs, 3 Harris 247; Delaney v. Gault, 6 Casey 67. Every intendment is in favor of the regularity of proceedings in the court below, and their approval of the sheriff’s return raises the presumption that the sheriff did his full duty according to the Act of Assembly. Many titles are held upon judgments obtained upon such returns as here made by the sheriff, and their regularity cannot be now questioned: Cadmus v. Jackson, 2 P. F. Smith 301.
    March 11th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

On the 13th of October 1874, the city of Philadelphia filed in the court below, to the use of George W. Mooney, a lien against the lot described therein, for the sum of $291.02, for the construction of a sewer in front thereof, authorized by ordinance of councils, and against “ the heirs of Richard Wistar, deceased, owners or reputed owners; or whoever may be owner.” On the same day the lien was marked to the use of William Armstrong. On the 21st of November 1874, the claimants’ attorney filed a suggestion that Lewis Wistar was the actual owner of the lot aforesaid, and the same day a writ of scire facias was issued on the said lien, warning the heirs of Richard Wistar, deceased, owners or reputed owners, and Lewis Wistar, actual owner, to appear and show cause, &c. To this writ the sheriff made return, “ made known by posting a true and certified copy of the within writ on the premises herein described, December 5th 1874, and by advertising the same twice a week for two weeks in the Mvening Bulletin, a daily paper published in the city, agreeably to the Act of Assembly in such case made and provided, and nihil habet as to- the defendants.” The claimant having filed proof of a demand for payment of the claim due under the Act of 23d March 1866, Pamph. L. 303, proceeded to take judgment for want of an affidavit of defence. This writ of error was sued out to said judgment, and a number of assignments of error have been filed, alleging irregularities in the proceedings. I will consider them in their order.

1. This assignment is not sustained. It was held in Northern Liberties v. Coates’s Heirs, 3 Harris 245, that a municipal claim filed against the “heirs” of J. C., deceased, owner or reputed owner, or whoever may be owner, and describing the real estate against which it is claimed as a lien, is a sufficient designation of the ownership of the premises. It is not denied in the case at bar that the property is properly described, but it is alleged that the words “ heirs of Richard Wistar, deceased,” do not sufficiently designate the ownership. This is a pi’oceeding in rem. The purpose of the description of the property and the designation of the owner or reputed owner is to give notice to the true owner. It was conceded that Richard Wistar was deceased at the time the claim was filed. Can it be said that filing it against his “heirs” is not calculated to give such notice ? It is true it does not designate any particular persons. But the heirs may be unknown to the claimant; and as was said in the case above cited “may reside at a distance or .even in foreign countries.” Land may be assessed as belonging to the “widow and heirs” of a decedent: Wheeler v. Anthony, 10 Wend. 346. The Act of 22d April 1846, sect. 23, Pamph. L. 486, provides that the real estate of a'decedent may be taxed in the name of the heirs generally by their designation as heirs.

2 and 3. These assignments allege error in entering judgment, for the reason that the sheriff’s return does not show a proper service. The third section of the Act of 11th March 1846, Pamph, L. 115, provides that all such writs of scire facias shall be served “ by posting a true and attested copy of the writ on a conspicuous part of the premises therein described, and by publishing a brief notice thereof in a daily newspaper, in said county, twice a week for two weeks before the return-day.” As before observed, this is a proceeding in rem. It may be carried to the extent of judgment, execution and sale without actual notice to the real owner. It is, therefore, the more important that every essential requisite of the Act of Assembly, prescribing the mode of service, should be complied with. The return of the sheriff must show such compliance. The return in this case is fatally defective for two reasons, first, it does not show that a true and attested copy of the writ was posted on a conspicuous part of the premises for two weeks before the return-day ; and second, it does not show publication, as required, in' a daily paper, for two weeks before the return-day. On the contrary, it appears that the writ was posted December 5th, which was but a day or two before the return-day, and the advertisement in the Bulletin, for aught that appears in the return, might have been inserted after the return-day. Nor. is this omission aided by the additional averment of the return, that it was “ agreeably to the Act of Assembly.” It is the duty of the sheriff to return the mode of service. The court can then determine whether it rvas in accordance with the Act of Assembly. This is the rule even in case of a summons. Delaney v. Gault, 6 Casey 63; Cadmus v. Jackson, 2 P. F. Smith 295, and other cases cited by defendant in error, are not in conflict with this view. They decide that a purchaser at a sheriff’s sale under a judgment obtained in a scire facias on such claims, is not bound to show that the Acts of Assembly have been strictly complied with. He is protected by the judgment. But here the defendant, the true owner of the premises, comes in and asks to have a judgment entered upon a claim, and process, of which he had no actual knowledge, set aside, because service was not made in the manner required by law. The cases are radically different.

4, 5 and 6. These assignments are not sustained. There was ar> affidavit filed showing a demand upon the owner for payment of the claim ; and we are not prepared to say that a judgment upon a return of nihil habet is erroneous, even where the defendant had a known residence in the city. It might be a persuasive reason with the court below to open a judgment entered under such circumstances, but we cannot say, as a matter of law, that it was erroneous.

Judgment reversed and a procedendo awarded.


author: Per Curiam.

text:
    Woltemate’s Appeal. Ditsche’s Estate.
    1. The Act of April 27th 1855, gives illegitimate children the right to inherit from the mother, and the mother from the children, but does not enable the children to inherit from each other.
    2. Grubb’s Appeal, 8 P. IT. Smith 55, and Sfceckel’s Appeal, 14 Id. 493, affirmed.
    February 5th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1875, No. 220.
    Appeal of Rosalie Woltemate, from the decree of the court confirming the report of the auditor upon the account of the administratrix of Xavier Ditsche, deceased.
    Xavier Ditsche died intestate, in 1871, leaving a widow, the accountant, but no issue, nor father, nor mother. A brother, Conrad, and sister, Rosalie, survived him, the latter being intermarried, with Henry C. Woltemate. The auditor found that Xavier, Conrad and Rosalie were the illegitimate children of Elizabeth. Ditsche, who died in 1844. The balance of the fund for distribution, $15.-89.2.45, was claimed by the accountant, as the widow of the intestate, on the ground that he had died without heirs or known kindred. Rosalie and Conrad each claimed $3973.11, one-half the balance, after deducting the widow’s share, as sister and brother of the intestate, on the ground that they were entitled, even if illegitimate, under the third section of the Act of April 27th 1855, Purd. Dig. 810, pi. 40. The auditor held that Rosalie and Conrad were not sister and brother of Xavier Ditsche, nor were they entitled to inherit from him under the Act of 1855, and awarded the whole fund to the widow. Rosalie excepted to this report, but the court dismissed the exceptions and confirmed the same, when she took this appeal.

      W. Wynne Wister, Jr., and Henry M. Phillips, for appellant.—
    The third section of the Act of 1855 provides: “ Illegitimate children shall take and be known by the name of their mother. And they and their mother shall respectively have capacity to take or inherit from each other personal estate, as next of kin, and real estate as heirs in fee simple; and as respects said real or personal estate, so taken and inherited, to transmit the same according to the intestate laws of this state.” The appellant was within the spirit and the language of this act. The words, “ and they and their mother shall respectively have capacity to take and inherit from each other,” create between the illegitimate children of the same mother a capacity to take and inherit from each other. They shall respectively take from each other, means, each one from each.

      B. F. Fisher and Gceorge W. Thorne, for appellee. —
    The intention of the act is that illegitimate children as a class, and their mothers as a class, should have the capacity to inherit, the one class from the other; but it did not create such a capacity between the children, one to another. The construction of the act, in Op-dyke’s Appeal, 13 Wright 373, Grubb’s Appeal, 8 P. E. Smith 55, and Steckel’s Appeal, 14 Id. 493, sustains this construction.
    February 11th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— The interpretation heretofore given to the Act of April 27th 1855, relating to illegitimates, is, that the inheritance of estates is confined to the mother and the illegitimate child, but extends from either to the other : Opdyke’s Appeal, 13 Wright 373; Grubb’s Appeal, 8 P. F. Smith 55; Steckel’s Appeal, 14 Id. 493. This is in accordance with the precise language of the act, to wit: “And they (illegitimate children) and their mothers shall respectively have capacity to take or inherit from each other.” This has been held to be the extent to which the legislature opened the door to illegitimates." As the mother of both the brother and sister, -whose supposed relationship had produced this controversy, died in 1844, not only before the passage of the Act of 1855, but long before the death of the intestate, Xavier Ditsche, there was no link in existence at the time of his death, to bind the brother and sister to each other in a legal bond. Xavier could not transmit to his mother, while his mother only if alive could have transmitted to her child, his sister. There was therefore no relationship between Xavier and Rosalie through which his estate could come to her, unless it be held that the purpose of the Act of 1855 was to legitimate bastards, an intent distinctly denied in Grubb’s Appeal, and reaffirmed in Steckel’s Appeal.

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


text:
    Oberle versus Schmidt et al.

    In a suit upon a promissory note, brought by the third endorser against the second, the latter in an affidavit of defence averred that he was informed, believed and expected to be able to prove that the suit was brought for the use and benefit of the first endorser (also payee), who was the real owner and holder of the note, and not for the benefit of plaintiffs who were merely nominal holders. Held (reversing the court below), that this averment was sufficient to carry the case to the jury, as the payee and first endorser was responsible to every subsequent endorser, and had no right of action against them if he was really the owner of the note.
    February 6th 1878.
    Before A&new, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1875, No. 91.
    Assumpsit by Schmidt & Heil against Charles L. Oberle on a promissory note, made by C. Rhoads, to the order of Charles M. Fauth, and endorsed by Charles M. Fauth, Charles L. Oberle and Schmidt & Heil in the order named. Oberle put in an affidavit of defence, wherein he averred that he was informed, believed and expected to be able to prove, that Fauth was the real owner and holder of the note, and that the suit was brought for his benefit and not for that of plaintiffs, who were merely nominal holders. The court held this affidavit was insufficient, and entered judgment for the plaintiffs, which action defendant assigned for error.

      JE. B. Watson and B. L. Ashhurst, for plaintiff in error.—
    Fauth was responsible to defendant below, and if he was the owner and holder and real plaintiff could not recover against defendant: Murray v. McKee, 10 P. F. Smith 35; Slack v. Kirk, 17 Id. 380; Allwine v. Garberick, 8 Phila. R. 637. Defendant swears he “is informed, believes and expects to be able to prove.” This was sufficient to send the case to a jury: Black v. Halstead, 3 Wright 71. Defendant need not state the manner in which he will prove or the evidence by which he will establish his claim: Eyre v. Yohe, 17 P. F. Smith 477. Can either state grounds of belief or state what he expects to prove: Bronson v. Silverman, Leg. Gaz., vol. 7, p. 355, 1875; 27 P. F. Smith 94; Twitchell v. McMurtrie, Id. 383; Moeck v. Littell, 1 Norris 354.
    No paper-book nor appearance, contra.
    March 11th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

This was an action by the holder of a promissory note against a prior endorser. Prima facie he would be entitled to recover; but the defendant put in an affidavit of defence, averring that he is informed and believes, and expects to be able to prove, that the suit is brought for the use and benefit of Charles M. Fauth (payee and first endorser), who is the real owner and holder of said note, and not for the benefit of the plaintiffs, who are merely nominal holders. This averment was sufficient to carry the case to a jury. Fauth is responsible, as payee and first endorser, to every subsequent endorser.. Hence, if Schmidt & Heil are allowed to recover against Oberle, the next preceding endorser, he, in turn, would have his remedy against .Fauth. It is plain that the latter can have no right of action against any of the subsequent endorsers, and if he is really the owner of the note, as alleged in the affidavit, and this suit was brought for his benefit, there can be no recovery.

Judgment reversed, and a procedendo awarded.