text:
    Ege et al. versus Kille et al.

    1. In trespass for mesne profits, arising from ore lands, it appeared that the defendants were bona fide purchasers for value and in possession under color of title. At the time they took possession the mines were unimproved and defendants expended large sums of money in their development, and made permanent improvements of great value thereon. Held, that having acted in good faith in the working of the mines and removal of the ore they were chargeable only with the value of the ore in place.
    2. The value of the ore in place is to be ascertained by deducting the cost of mining, cleansing and delivering the ore in market, from its market value thus delivered.
    3. The action of mesne profits is an equitable one, and hence a bona fide
    occupant, under claim of title, who has made permanent and valuable improvements, may show them to be a full compensation for the use of the premises. 1
    4. "Whether fast or loose, all the machinery of an ore-bank which is necessary to constitute it such, and without which it would not be an ore-bank equipped and ready for use, are a part of the freehold and pass with the realty.
    5. By their recovery, in ejectment, of the lands the plaintiffs recovered all the fixtures put there by the defendants or their lessees, and by the writ of habere facias possessionem were put in possession thereof. The right of defendants to their equitable defence likewise then became fixed, and this right could not be impaired by the plaintiffs afterwards permitting the former lessees of the defendants to remove a portion of the machinery.
    6. It was not error where there was evidence of increased value to the premises by reason of the machinery and improvements to permit the defendants to send out a statement with the jury.
    May 19th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1877, No. 145.
    Trespass for mesne profits by the heirs of Elizabeth Ege, deceased, against John T. Kille and Charles Wharton.
    The land of which the mesne profits were claimed was recovered by the plaintiffs from the defendants, in an action of ejectment brought 7th June 1872, in which a verdict in their favor was rendered 16th October 1874. On the 26th October 1874 the plaintiffs were put into possession of the premises under a writ of habere facias possessionem. In the ejectment John T. Kille defended as landlord.
    The action of ejectment was originally begun by the heirs of William Cox, deceased, who, on the trial, were nonsuited. The heirs of Elizabeth Ege, deceased, who recovered the verdict and judgment in that case, did not come upon the record as parties plaintiff until 24th April 1874, from which time only did the action commence as to them. (See Kille et al. v. Ege et al., 1 Norris 102.)
    The plaintiffs in this suit sought to recover mesne profits from November 1869 down to the execution of the habere facias, or for the time anterior to the 24th of April 1874, and the profits claimed were those derived from the ore mined and carried away by the defendants and their lessees.
    It was shown that the title to the land was in the plaintiffs for and during the time for which mesne profits were sought to he recovered.
    The trial was had before Herman, P. J. Twenty assignments of error were made to the admission of evidence on the trial, to the ansAvers to points and the charge of the court. The principal questions involved were as to the value of the ore taken, the manner of- proving that value, and the character of the improvements which might be recouped or set off against the value of the ore mined and appropriated by defendants; and for convenience the assignments, as they bear upon these questions, have been grouped together:—
    1. To fix the value of the ore in place and to prove its value.
    Henry Gruiterman, a witness on the stand, having stated that he was one of the lessees of the Gruiterman & Robertson bank ; that he managed it by and through a superintendent, the usual way of managing banks ; that he sent to his superintendent, from time to time, money for the expenses of the bank, in accordance with amounts shown by pay-rolls sent him by the superintendent, and that, by means of an examination of the pay-rolls and the amounts he paid for the expenses of the bank, he can state whether or not he operated- the bank at a profit or loss over and above what he received from the sales of the ore; the defendants proposed to ask the witness whether or not he operated the bank at a loss, and if so, what loss, and at what expense per ton he mined the ore, together with an exhibition of the pay-rolls and his account of expenses and receipts.
    Under objection admitted, which was the 1st assignment.
    Defendants proposed to prove by John T. Kille, one of the defendants, the amount of money he paid in developing the ore upon this property, recovered by the plaintiffs in the ejectment, and in taking out the ore for which he has made return in this case, showing the gross amount received for the same, to be followed by the evidence of the parties to whom he made the payments, that the money was expended for the purpose set forth alone, and this for the purpose of showing the increased value of the property by reason of this development, and that the ore taken out by the defendants was more than paid for by such development.
    Under objection admitted, and 4th assignment.
    The defendants also offered the pay-rolls referred to by the witness Haskell, the agent of Kille, in connection with the testimony of the witness, for the purpose of corroborating his statement, as to the cost of mining the ore, and of showing hoAY the money sent to him by Mr. Kille was expended.
    Admitted under objection, and 5th assignment.

      The 6th point of the plaintiffs was :—
    “ The value of the ore in place is the royalty, which responsible parties, competent to judge of the value, would be willing to pay for the privilege of mining it.”
    The court answered as follows, which was the 13th assignment:— “ This point is refused. The value of the ore in place is ascertained by deducting the cost of mining, cleansing and delivering the ore in the market, from the market value of the ore delivered in the market — the difference is its value in place.”
    The 8th point of plaintiffs was :—
    “ If the jury believe that John T. Kille, one of the defendants, was not skilled in mining ore; that he gave no personal attention to the mining operations; that the prices paid by him for superintending those operations, viz., $200 per month to Charles Wharton, and $1000 per year to E. F. Haskell, were extravagant and unnecessary; that the gross amount of his expenditures was greatly above the legitimate cost of opening and working the mines on plaintiffs’ lands, then little if any weight should be given to the evidence of the amount expended by him, and it should be so regarded by the jury in ascertaining the real or legitimate cost of mining, or the value of the ore in place.”
    The court answered as follows, which was the 14th assignment:—
    “We decline to answer this point as requested. If, however, you find the facts to be as therein stated, then you should so consider the evidences of the amount expended by Kille as that. No extravagant or unnecessary expenditures, but only such, or so much thereof, as are proper and legitimate expenditures, should be tak,en into account in ascertaining the real or legitimate cost of mining or the value of the ore in place.”
    The defendants’ first point was —
    “ The royalty named in the leases given in evidence in this case is not the absolute measure of the value of the ore in place on the lands of the plaintiffs, but is a measure of such value only in connection with the location of the lands and their natural surroundings.”
    The court affirmed this point, which was the 15th assignment.
    The following portion of the general charge was the 20fch assignment :—
    “ The value of the ore in place you will ascertain by estimating the cost of mining, cleansing, and putting the ore into market, and then deducting this cost from the value of the ore in the market— the difference will be the value in place.”
    2. In regard to the character of the improvements, defendants proposed to prove the value of the machinery attached to and used in connection with the ore-banks on the lease as a measure of the value of the improvements to the property, for the purpose of enabling the jury to judge of and fix the value of such improvements to the property, and of their permanent character, and to show the necessary conveniences and machinery required in mining the ore.
    Admitted under objection, and 2d assignment.
    The 3d assignment was to the refusal of the court to permit the plaintiffs to ask a witness whether or not he was disturbed in the possession under their lease, by these plaintiffs.
    The 6th assignment, the refusal of the court to permit plaintiffs in rebuttal to prove that Gruiterman and Robertson, lessees of the defendant _ Kille, since the recovery of the land by the plaintiffs and since the execution of the habere facias, did, on March 7th 1876, and on March 10th 1876, take away from the Gruiterman and Robertson bank, two car loads of machinery, consisting of engines, pumps, pipes, boilers, &c., and that this was done without objection by the plaintiffs, and under the terms and conditions of their lease with Kille, as accepted by the plaintiffs on the attornment of said lessees : this to show that the fixtures, machinery and property connected with the ore-bank did not change its character (of the time of the possession under Kille), when the writ of habere facias was executed; and that defendants should not be permitted to claim the same as permanent improvements, passing with the land.
    The plaintiffs’ third point was :—
    “ The plaintiffs are entitled to recover from the defendants in this case, as damages, the value in place of all the‘ore, timber, &c., taken from the Cox tract by the defendants, or by their lessees, with interest from the time it was taken ; and the defendants are entitled to credit, against that value pf the ore, only for such improvements put upon plaintiffs’ land by defendants or *by their lessees, as the jury believe are of a lasting and permanent character, adding a permanent increase of value to the land, and being of lasting or permanent benefit to it.”
    The 11th assignment was the court’s answer, which was,
    “ This point is answered in the affirmative, and we instruct you as requested, and in addition say to you in explanation, that improvements are of a lasting and permanent character when they are annexed to and made part of the freehold, and give an increase of value to it. The increase is a permanent increase if the value of the land has been increased by the permanent improvements made or put upon it; and if such improvements have increased the the value of the land, they are a lasting and permanent benefit to it.”
    The 5th point of the plaintiffs was:—
    “ If the jury believe that the machinery, buildings and conveniences for mining ore, put by the lessees of the defendants upon the land of the plaintiffs, were for temporary use only, and not structures of a lasting and permanent character, then they are not such improvements as entitle defendants to credit against the plaintiffs’ demand in this action.”

      The qualification contained in brackets in the following answer to this point was the 12th assignment:—
    “We answer this point in the affirmative, and so instruct you. If you believe the machinery, buildings, and conveniences for' mining ore were for temporary use only, and not structures of a lasting and permanent character, then they are not such improvements as entitle defendants to credit against the plaintiffs’ demand in this action. [And we also instruct you that they are structures of a lasting and permanent character, if they are annexed to and made part of the freehold and give an increased value to it,”]
    The defendants’ 5th point was:—
    “ The engines, boilers-, washers, planes, drums, pumps, ropes, cars and all other matters necessary to convert unimproved land into ore-banks opened and ready to operate as such, are permanent improvements to the property, whether they will last a limited number of years or not, and the defendants are entitled to the difference in value between the property as it was without them and as it was when the plaintiffs were put in possession of it on October 26th 1874, with them in its distinctive character as ore-banks ready to operate, as a defence to the value of the ore in place and before it was taken from the ground.”
    The 16th assignment was the following answer of the court to this point:—
    “ In answer to this point, we instruct you that the engines, boilers, washers, planes, drums, pumps, ropes, cars, and all other matters necessary to convert unimproved land into ore-banks opened and ready to operate as such, are permanent improvements to the property, whether they will last a limited number of years or not, provided they be necessary parts of the machinery and fixtures erected and put upon the land for that purpose, and provided also such machinery and fixtures were annexed to the freehold and made part of it and give an increased value to the land. And if, therefore, you find these things to be permanent improvements giving increased value to the land, the defendants will be entitled to the difference in value between the property as it was without them and as it was when the plaintiff's were put in possession of it on October 26th 1874, with them in its distinctive character as ore-banks ready to operate, as a defence to the value of the ore in place and before it was taken from the ground; just to the extent, however, that such difference of value was produced by such improvements made and put upon the premises by the defendants and their lessees.”
    The 17th assignment was to the affirmance by the court of the sixth point of the defendants, which was:—
    “ Whether fast or loose, all the machinery of an ore-bank which is necessary to constitute it such and without which it would not be an ore-bank equipped and ready for use as such, are á part of the freehold, and the recovery of the land by the plaintiffs in the action of ejectment gave to them the ore-banks on it with all the machinery, whether fast or loose, and necessary to constitute them such equipped and ready for use.”
    The 19th assignment was to the leave given by the court to the defendants to send out with the jury a statement w7hich, by its highest estimate, allowed the plaintiffs $17,394.23, being for 30,249.12 tons of ore, at 50 cents per ton, with interest from Novembers 1st 1874, against which the defendants claimed $17,222.2D as the average value of improvements, or $21,666.67 as average increased value by machinery and development of ore, to the property as ore-banks. This statement was also accompanied by a list of the various improvements made to the several ore-banks.
    The verdict was for the plaintiffs for $1839.30, and judgment was entered thereon. The defendants took this writ, the errors assigned being those noted heretofore.

      S. Hepburn, Jr., and S. Hepburn, for plaintiffs in error.
    The testimony offered from which the jury were to ascertain the value of the ore in place was inadmissible, as it consisted chiefly of hearsay and secondary evidence, and the court erred therefore in submitting to the jury the questions as to the cost of mining, cleansing and putting the ore in market, and the market value of the ore, as there was no legitimate evidence upon any of these questions.
    • The various admissions of testimony and instructions of the court on the subject of permanent improvements were contradictory, and tended to confuse the jury. The value of the machinery, &c., as personal property — the only way in which it was valued — was confounded with the permanent increase of value which the developments and improvements gave to the land. This was wrong in any event, but particularly so if it belonged to the lessees of defendants and they w7ere permitted to retain it.
    The action for mesne profits is an equitable one. Is it equity to forbid plaintiffs to recognise the rights of their tenants? The royalty — the rent — had been paid to Kille. Was it right, in an action against him, to make his tenants pay it again by confiscating their property ?
    The average value of the improvements “ and the average increased value by machinery, &c.,” were certainly not supported by any evidence, and therefore the statement sent out with the jury by defendants was an improper one: Morrison v. Moreland, 15 S. & R. 61; Terry’s Executors v. Drabenstadt, 18 P. F. Smith 400.

      L. Todd and John Hays, for defendants in error.
    What better mode could be adopted to ascertain the value of ore in place than the result of mining at the banks for the ore for which compensation is sought ? And the evidence to show this result was competent. The charge of the court upon the measure of damages was in accord with Forsyth v. Wells, 5 Wright 291, and with the positive evidence as to the cost of mining ore, of its market value, supported by the amounts expended in mining by the principals • who paid and the agents who disbursed the money, it would have been error not to submit the question to the jury.
    The instructions of the court upon the questions of permanent improvements are abundantly sustained by authority: Voorhis v. Freeman, 2 W. & S. 119; Pyle v. Pennock, Id. 390; Hill v. Sewald, 3 P. F. Smith 274.
    The plaintiffs were rightly in possession of the machinery. When one fixes his own chattels on another’s land, it is in legal effect a gift of them to the owner of the land: Hill v. Sewald, 3 P. F. Smith 271.
    The recovery in ejectment evicted the tenants: Bauders v. Fletcher, 11 S. &. R. 419; Ross v. Dysart, 9 Casey 452; Tiley v. Moyers, 7 Wright 410; Steel v. Frick, 6 P. F. Smith 175; Schuylkill Improvement Co. v. Schmoele, 7 P. F. Smith 271. It terminated the relation of landlord and tenant between the defendants and their lessees, and the right to remove any of the fixtures —anything that gave the property its changed and distinctive character — was gone: Hill v. Sewald, 3 P. F. Smith 272; Heffner v. Lewis, 23 Id. 302; Hey v. Bruner, 11 Id. 87. The answers of the court were therefore consistent throughout.
    The statement sent out with the jury was based upon evidence and was proper : Blight’s Executors v. Ewing, 2 Casey 135.
    October 1st 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action of trespass for mesne profits. Twenty errors are assigned. It is unnecessary to consider each separately. They involve a few principles only. The controlling questions are, the value of the ore taken; the manner of proving that value; and the character of the improvements which may be recouped or set off against the value of the ore mined and appropriated by and under the defendants.

1. The evidence shows the defendants were bona fide purchasers of the land for value, and were in possession under color of title when the trespasses were committed. At the time they took possession the mines were unimproved. They expended large sums of money in their development. They made permanent improvements of great value. Having acted in good faith in the working of the mines and in the removal of the ore, they should be chargeable for the latter only with its value in place: Forsyth v. Wells, 6 Wright 291; Herdic v. Young, 5 P. F. Smith 176; Coleman’s Appeal, 12 Id. 262.

. 2. Ore-leave, or the right to dig and take ore, can have no general market value. Its value depends on the position and circumstances of each particular mine; on the quality of the ore ; the cost of mining and preparing it for market; its proximity to the places where it is to be used ; and on the facilities for transportation : Coleman’s Appeal, supra. Hence there was no error in the court charging as it did, substantially, that the value of the ore in place was to be ascertained by deducting the cost of mining, cleansing and delivering the ore in market, from its market value thus delivered — the difference being its value in place. Those costs and expenses only which are reasonable and necessary should be deducted from the gross receipts. The court very correctly said, to the jury, “ no extravagant or unnecessary expenditures, but only such, or so much thereof, as are proper and legitimate expenditures, should be taken into account in ascertaining the real or- legitimate cost of mining, or the value of the ore in place.”

We discover no error in the mode of proving the necessary costs and expenses of operating the mines. Due regard should always, be had to the usual and ordinary manner of conducting the particular business in question. Each branch of industry has its usages and its practices. The work of mining is one of magnitude. It requires the employment of many men. Laborers, overseers, superintendents and operatives must perform their allotted parts. The keeping of a pay-roll is a usual and convenient practice. It furnishes a prompt and concise method oHmaking a daily record of current expenses. Confirmed, as its correctness was in this case, by the testimony of the operator and superintendent, it was clearly evidence proper to submit to the jury of the sums expended in operating the mines. Its effect was properly guarded and restricted by the learned judge.

3. The action for mesne profits is equitable in its character: Morrison v. Robinson, 7 Casey 456; Zimmerman v. Eshbach, 3 Harris 417; Kille et al. v. Ege et al, 1 Norris 102. Hence a bona fide occupant, under claim of title, who has made permanent and valuable improvements, may show' them to be a full compensation for the use of the premises: Morrison v. Robinson, supra; Kille v. Ege, supra.

The criterion of a fixture depends on the business for which the premises’ are used. A fixture in a manufactory, mill or colliery may have no adaptation to many other kinds of business. Although not attached, yet, if it be designed for the convenience of trade on the premises, and be so used, or subject to be called into use at any time, it becomes a fixture. If the article is indispensable in carrying on the specific business, it becomes a part of the realty: Voorhis v. Freeman, 2 W. & S. 116; Pyle v. Pennock, Id. 390. This rule, however, does not prevent a tenant, who erects fixtures for the benefit of his trade or business, from removing them from the demised premises within his term. The question here is between persons who were hostile claimants to the land. As between them, all the machinery and implements necessarily used in working the mines became a part of the realty. There was therefore no error in.the court charging, “whether fast or loose, all the machinery of an ore-bank which is necessary to constitute it such, and without which it .would not be an ore-bank equipped and ready for use as such, are a part of the freehold, and the recovery of the land by the plaintiffs in the action of ejectment gave to them the ore-banks on it, with all the machinery, whether fast or loose, necessary to constitute them such equipped and ready for use.” That some machinery was essentially necessary to raise the ore and prepare it for market is very manifest. It was therefore proper to show what machinery was actually used for that purpose, and to submit its necessity and value to the jury. The evidence was rightly received.

The defendants are entitled to an' allowance for such improvements only as are of a lasting and permanent character, and which gave a permanently increased value to the land. This is substantially the third point submitted by the plaintiffs and affirmed by the court. We see no error in the qualification that the increased value may be of limited .duration. In answer to the plaintiffs’ fifth point, the court said if they “were for temporary use only, and not structures of a lasting and permanent character, then they are not such improvements as entitle defendants to credit against the plaintiffs’ demand.” An examination of the answers to the numerous points presented to the court fails to discover any error. All questions relating to the permanency of improvements and of value to the premises were correctly answered.

By the recovery of the land the plaintiffs also recovered all the fixtures thereon put there by the defendants or their lessees. By the execution of the writ of habere facias possessionem the plaintiffs were put in possession thereof. Right of property and actual possession were thus united in them. The right of the defendants to their equitable defence then became fixed. That right could not be impaired by the plaintiffs afterwards permitting the former lessees of the defendants to remove a portion of the machinery. Such a voluntary relinquishment by the plaintiffs of their property to those having no right thereto, either with or without consideration, could not affect the rights of the defendants, who were not a party to the transaction.

■ Inasmuch as there was ample evidence of increased value to the premises by reason of the machinery and improvements, the court committed no error in permitting the defendants to send out a statement with the jury: Blight's Executors v. Ewing, 2 Casey 135.

The case was well and carefully tried. The law was clearly and accurately stated by the learned judge. Substantial justice appears to have been reached; therefore

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Ann Ziegler’s Appeal.
    1. The wife of an insolvent debtor claimed as a creditor on the distribution of his assigned estate, basing her claim, upon a note executed by her husband in 1874, which was the renewal of one dated in 1850, the consideration of the last named having been money received by the husband prior to 1848 as part of the inheritance of the wife from the estate of her father. Held, that the note was a definite recognition of the wife’s right, and there being no evidence that the husband was not solvent at the time it was made the wife was entitled to a pro rata share in the distribution of his assigned estate with subsequent creditors.
    2. Moyer’s Appeal, 27 P. F. Smith 485, followed.
    May 21st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Woodward and Steurett, JJ. Paxson, J., absent.
    Appeal from the Court of Common Pleas of Adams county: Of May Term 1877, No. 177. . •
    Appeal by Ann Ziegler from the decree of the court confirming the report of an auditor, who refused to permit her to participate as a creditor in the assigned estate of her husband, David Ziegler, who was insolvent.
    In May 1875 David Ziegler executed a deed of voluntary assignment for the benefit of creditors, his wife joining therein. When the assignee filed his account it was referred to an auditor to distribute the balance in the assignee’s hands. Mrs. Ziegler made claim to a share in the distribution, alleging that her husband’s estate was indebted to her in the sum of $2481.35. This claim was based upon a note for $4481.35, given to her by her husband in 1874, upon which was endorsed a credit of $2000. This note of $4481.35 was the amount of an obligation, with interest, which David Ziegler gave his wife in 1850, as an acknowledgment of his indebtedness to her in the sum of $1807, money received from his wife’s father, Jacob Waybright, in various sums, prior to 1848, and which was an advancement to his daughter, as appeared by the following clause in the will of Waybright, who died in 1850: “ * * * I will and bequeath to my daughter Ann, intermarried with David Ziegler, eleven hundred and ninety-three dollars, together with eighteen hundred and seven dollars already paid to the said David Ziegler; the said sum of eleven hundred and ninety-three dollars I give to my said daughter, allowing no part or interest therein to be drawn by or to be for the use or benefit of her said husband.”
    The husband testified that “ the note was for money that came to his wife from her father. She let me have it, and I used it. I told her that of course I would pay it back.”
    .The auditor found that there were no other admissions or declarations of the husband at the time he received the money prior to 1848, and that his evidence above given was unworthy of credence. He was also of opinion, that as the money had been taken possession of by the husband and used as his own, nothing which he could do, after the Act of 1848, could give it back to the wife as against the creditors of the husband, and the notes were of no avail as evidence for any such purpose. Further, that there were no such declarations of the husband at the time of receiving the money that would rebut the presumption of law that the husband had not reduced the money into possession : and he therefore disallowed the wife’s claim.
    She excepted, but the court, Herman, P. J., confirmed the report, • and from this decree this appeal was taken.

      W. A. Duncan, for appellant.
    Conversion of the wife’s money by the husband, prior to the Act of 1848, was not reduction into possession; it is only evidence of it, and may be explained by other evidence negativing the intention that he received it as his own : 2 Kent’s Com. 138 ; Gochenaur’s Estate, 11 Harris 460; Moyer’s Appeal, 27 P. F. Smith 482.
    The declarations of the husband were proper and satisfactory evidence to rebut the presumption of personal acquisition by him of his wife’s money : Moyer’s Appeal, 27 P. F. Smith 485 ; Dellinger’s Appeal, 21 Id. 425. The auditor infers from the giving of the obligation in 1850 that there had been no definite promise or understanding previous to that; thus utterly disregarding Moyer’s Appeal, as to the mutual confidence arising from the marital relation.

      R. G. McCreary and David Wills, for appellee.
    The common law gave to the husband an absolute right to his wife’s choses in action, if he reduced them to possession during coverture; and the receipt of them by him was presumed to be a reduction to possession, which presumption could be overthrown only by proof of a positive, clear, and consistent intention to the contrary, existing at the time of receiving them: Hind’s Appeal, 5 Whart. 138. The declarations of the husband must be positive, clear, and consistent with each other : Gray’s Estate, 1 Barr 327 ; Gochenaur’s Estate, 11 Harris 460; Grabill v. Moyer, 9 Wright 584; Johnston v. Johnston, 7 Casey 452; Wesco’s Appeal, 2 P. F. Smith 195.
    If the money was reduced to possession by the husband before the Act of 1848, as found by the auditor, the note given by Ziegler to his wife in 1850 was voluntary, without legal consideration, and void as to creditors of David Ziegler: Gicker’s Adm’rs v. Martin, 14 Wright 138.

      June 18th 1877.
   Mr. Justice Gordon

delivered the opinion of the court,

Where the wife of an insolvent debtor claims as a creditor, on distribution of the assigned estate, it is, doubtless, our duty to see that her claim is bona fide, and founded upon a good.consideration; but this having been affirmatively found and settled, she is to be treated in no other manner than as an ordinary creditor. Erom the auditor’s report we learn that the claim of Mrs. Ziegler rests upon a note executed by her husband, David Ziegler, on the 1st of April 1874, which is the renewal of one dated some time in 1850. The consideration of this last-named note, as the auditor finds, was money received by the debtor prior to the year 1848, as part of the inheritance of the appellant from the estate of her father, Jacob Waybright. On turning to the evidence we find further, that the money thus received was an advancement by Waybright to his daughter, and intended expressly for her use; and from the testimony of Ziegler we gather that, at or about the time he received this money, he told his wife he would use it and pay it back to her, and also, very soon after the death of his father-in-law, at her instance, he executed and delivered the note which forms the subject of the present controversy. This statement of the case renders it undistinguishable from the case of Moyer’s Appeal, 27 P. F. Smith 482, wherein it is said [per Mr. Justice Mercur) that declarations made by the husband, at the time of receiving the wife’s money or choses in action, clearly indicative of an intent to treat them not as a personal acquisition, hut for her use, are sufficient to establish the relation of trustee for the wife. The auditor finds, however, that David Ziegler is not worthy of credence, and hence there is no evidence of his intention to hold this money, so received by him, for her use. With some doubt as to this finding, we assume its correctness ; nevertheless there remain some facts, which we think govern this case. We have, first, the will of Jacob Waybright, in which we find it expressly set out that the money, which he had advanced, Avas intended for the .sole use of his daughter, and then, as in recognition of the intention of the father, thus expressed, and very soon after-his death, we have the execution of this note of August 3d 1850. Here certainly is a very clear and definite recognition by the husband of the Avife’s right, and one which he could not afterwards gainsay or avoid. As, however, it does not appear that he Avas, at that time, other than solvent, or that his estate was then not ample to sustain an alloAvance of that amount in favor of his wife, Avhy is her claim not good? It is true that Waybright’s will, did not and could not change the rights of the husband as to money which he had previously received and reduced to possession; but that Avill, -in connection with the acts of the husband, does show that he regarded that money as paid to him for his wife’s use; and as the rights of no other parties then intervened to prevent the execution of that trust in her favor, and as he chose to recognise and execute it by the delivery of his note, we cannot understand how it can now be impeached by creditors who were not then in existence, and who could not, at that time, have been so much as anticipated. Indeed, as this note was executed since the Act of 1848, it matters little where the money came from which formed its consideration. Had it been raised from a gift of property by the husband to the wife, as there is no evidence that the amount was unreasonable or out of proportion to the balance of his estate, or that he was not at the time solvent, it would be perfectly valid and obligatory. We conclude therefore that Mrs. Ziegler’s claim should have been admitted to a pro rata dividend with the claims of other creditors.

Decree reversed at costs of appellees, and a redistribution is ordered according to the principles expressed in the above opinion.


author: Mr. Justice Mercur

text:
    King’s Appeal.
    The main purpose of the Exemption Act of 1851 was to provide for the widow, and its meaning and spirit to limit its operation to the property left by the husband or father. It was not therefore intended to anply to the property of a wife and mother, and the children cannot after her decease claim the exemption out of her separate property.
    May 21st 1877.
    Before Agnew, C. J., Siiarswood, Mercur, Gordon, Woodward and Sterrett, JJ. Paxson, J., absent.
    Appeal from the Orphans’ Court of Adams county: Of May Term 1877, No. 140.
    Adam Sowers died in 1868, leaving a widow, Lucinda, and three minor children, of whom John L. Bupp was appointed guardian. The widow married Isaiah King, in 1876. The children did not make their home with the step-father, but lived elsewhere, under arrangements made by the guardian. Their mother died in December 1876, seised and possessed of certain real estate and personal property. The husband administered upon the estate, and to him the guardian applied to have appraised and set apart $300 worth of property elected to be retained by him for the use of the children under the provisions of the Act of April 14th 1851, Pamph. L. 612, Purd. Dig. 416, pi. 60. King refused, and the guardian obtained a rule upon the administrator to show cause why the property should not be appraised and set aside for the use of his wards, who in his answer denied that the petitioner was in law entitled to have the same so appraised and set aside.'
    The court, after argument, made the rule absolute, and hence this appeal.

      David Wills and R. G. McCreary, for appellant.
    The intention of the legislature was to limit the provisions of the Act of 1851 to the estate of a deceased husband or father. The purpose of the act was to make an immediate provision for the wants of the family : Hettrick v. Hettrick, 5 P. F. Smith 290; Terry’s Appeal, Id. 344; Sipes v. Mann, 3 Wright 414; Nevin’s Appeal, 11 Id. 230.
    Children under the care of a guardian and who are not inmates of their home, are not the beneficiaries contemplated by the act: Nevin’s Appeal, supra.

      W. A. Duncan, for appellees.
    The children, as well as the widow, are entitled to the benefits of the act: Nevin’s Appeal, 11 Wright 230 ; Hettrick v. Hettrick, 5 P. F. Smith 292. The act does not limit its benefits to the estate of the deceased father' or husband, but includes the estate of a mother who has minor children. Actual residence Avith the deceased is not necessary to entitle children to benefits : Hettrick v. Hettrick, supra.

    October 1st 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

The precise point in contention is presented for the first time in this court: that is, whether, in case a Avife and mother, living with her husband, and owning separate property, dies leaving children, they are entitled to three hundred dollars’ worth of her property, under the Act of 14th April 1851. That act declares “ the widoAV or the children of any decedent, dying within this Commomvealth, testate or intestate, may retain either real or personal property, belonging to said estate, to the value of three hundred dollars, and the same shall not be sold, but suffered to remain for the use of the widoAY and family.” Although the act says “the widoAV or the children” may retain, yet it has been held if there be a widow, the children of the decedent are not entitled to any portion of this exempt property. It all vests in the AvidoAV only: Nevin’s Appeal, 11 Wright 230. In so far as the widoAv’s affection influences her, she may be said to hold for herself and family ; that is, for the use of those children who remain with the family. The widow, however, has the sole right of its appropriation and disposal. The main object of the act is to provide for the widoAV. 'On the death of the husband and father, so much of his property is transferred to his widow, to be used by her as he might have used the same in his lifetime. It is only in case no widow survived to accept this charity of the statute, that it passed to the children. Hence it was well said by Mr. Justice Strong, in Nevin’s Appeal, swpra, the act “ has ahvays been construed rather according to its spirit than its letter.”

The husband and father is liable for the suppoi't and maintenance of his wife and children while they remain members of his family. To entitle the widow to her three hundred dollars’ worth of her husband’s property, she must have sustained the relation of his wife at the time of his death. Hence if she had deserted him, or lived separately from him so long as not to be a part of his family, she thereby forfeits her right to this property: Tozer v. Tozer, not reported; Spier’s Appeal, 2 Casey 233; Hettrick v. Hettrick, 5 P. F. Smith 290 ; Terry’s Appeal, Id. 344.

As part compensation for the loss of his support and maintenance, his property, to a limited amount, shall be substituted. The wife is not, to a like extent, liable for the support of her children. She may be removed by death, yet the husband, the head of the family, with his continued liability, remain. It is contended that, inasmuch as the children now claihfing through their guardian, are not heirs of the surviving husband, but of their deceased mother, this statute applies to their mother’s property and transmits it to them. So far as her property is given to them under the intestate laws, they undoubtedly take it; but that is not the question now before us. The attempt here is to take the property out of the operation of the intestate laws. We think this cannot be done. During the life of the wife her property was not primarily liable for the support of these children. The effort is not then to require it to “ remain” for their support, as before, but to subject it to new uses and purposes.

The main purpose of the act is to provide for the widow. Its meaning and spirit limit its operation to the property left by the husband or father. It was not intended to apply to the property of a wife. This view is in harmony with all our decisions giving construction to the statute. The learned judge therefore erred in making the rule absolute.

Decree reversed, and rule discharged at the costs of the appellee.


author: Mr. Justice Sharswood

text:
    Rutherford versus Boyer.
    Where an original judgment is revived after the payment of usurious interest thereon, without allowing credit for such payment, the defendant in the judgment cannot avail himself of the defence of usury and ask to have deducted the amount so paid out of the proceeds arising from an execution upon the judgment. He should have applied to the court to open the revived judgment; standing unopened it was conclusive and he could not go behind it to show a defence.
    May 22d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1877, No. 9.

      Case stated, which substantially was as follows:
    “On the 27th of November 1871 Rudolph E. Kelker had two judgments entered against Theodore E. Boyer, together amounting to the sum of $3754.45. Dr. W. W. Rutherford purchased them from Kelker; there was nothing usurious in said judgments as originally given, nor in the purchase of them by Rutherford.
    “ The moneys on said judgments and mortgage had been due for several years, and whilst Rutherford was the owner of them, to wit, on the 14th of December 1872, and when there were $4000 due thereon, defendant agreed to pay, and did pay to Rutherford $120, upon an agreement with Rutherford that he would withhold execution on said judgments and mortgage for the term of six months; and execution was withheld thereon accordingly for six months and upwards.
    “ Subsequently, to wit, on the 17th day of December 1872, said judgments were amicably revived by the parties, for the use of Rutherford, for the sum of $3991.56, with interest from 16th December 1872, and without any reference to or allowing any credit for the said $120.
    “ Rutherford died, and Eleanor R. Rutherford became his acting executrix; and the larger of said judgments remaining unpaid, a writ of venditioni exponas was issued on the 31st of July 1875, on which writ the money was made by the sheriff and paid over to said plaintiff, except the sum of $120 and interest thereon, amounting at that time, 23d August 1875, to $139.40, which was by said sheriff paid into court, upon an order of the court for that purpose, procured by defendant on the allegation that the aforesaid transaction in relation to said $120 was usurious.”
    This action was to determine the right to the $120 and the $19.40 interest thereon.
    The court, Pearson, P. J., entered judgment for the defendant, which was the error assigned by the plaintiff, who took this writ.

      Francis Jordan, for plaintiff in error.
    There were two distinct contracts between these parties, the one of record for $4000, and the other the subsequent parol contract for $120. The latter was voluntarily paid, and no effort was made to recover it back within six months, or to obtain' a credit therefor when the judgment was revived. Where a contract for the principal is good, and a. subsequent one for the interest usurious, the latter, though void, does not affect the former, the holder of the first being in the same situation as if the second had never been made: Kelly on Usury, Law Lib. vol. 75, pp. *83, 84; Phillips v. Cockayne, 3 Camp. 119 ; Gray v. Fowler, 1 H. Black. 462 ; Nichols v. Lee, 3 Anstr. 940 ; Barnes v. Hedley, 2 Taunt. 184.

      Money collected or paid upon lawful process of execution cannot be recovered back, though not justly or lawfully due by the defendant in the execution to the plaintiff: Federal Ins. Co. v. Robinson, 1 Norris 357.
    If the defendant had any remedy, it was to apply to the court below to open the judgment: Hopkins v. West, 2 Norris 109.

      F. K. Boas, for defendant in error,
    cited the Act of May 28th 1858, Purd. Dig. 803, pl. 1, Pamph. L. 622, and Heath v. Page, 13 P. F. Smith 108.
    June 11th 1877.
   Mr. Justice Sharswood

delivered the opinion of the court,

The learned judge below was undoubtedly right in holding that when there is a payment of usurious interest for the forbearance of a loan or debt, the right to retain and deduct such excess continues until the whole is paid. It is only when the whole amount and illegal interest has been voluntarily paid, that no suit to recover it back will lie after six months; and we agree also • that in this case there was not a voluntary payment within the meaning of tho Act of May 28th 1858, Pamph. L. 622. Nor do we think that the decision of this court in Federal Insurance Co. v. Robinson, 1 Norris 357, will avail the plaintiff in error. Here the debt, although collected on-execution, was not. paid to the plaintiff, but the excess above legal interest was paid into court and claimed by the defendant as a payment on account. Had the money been raised by an execution on the original judgment, the defendant would have been entitled to it. But it seems to have been overlooked in the court below that the original judgment was revived after the payment of the usury for debt and interest, without allowing credit for such payment. It is clear that, in order to avail himself of this defence, the defendant should have applied to the court to open that judgment. Standing unopened, it was conclusive, and the defendant could not go behind it to show that .there was any defence to it in whole or in part: Hopkins v. West, 2 Norris 343.

Judgment reversed, and judgment for the plaintiff for $139.40 and costs on the case stated.


author: Mr. Justice Woodward

text:
    Waugh’s Executors versus Waugh.
    1. W., for a recited consideration, in a formal deed, which was duly acknowledged and recorded, conveyed a certain property to the children of his deceased brother. In the fullest possible form every interest in the property was transferred except that defined by the words “possession of all of said premises to be given at the death of said W.” W., until his death, lived on the premises with his tenant, who shared with him the crops. A case was stated between the executors of W. and the grantees under the deed to determine who were entitled to the emblements. Held, that the grantees were entitled to them.
    2. Free from the limitation imposed by the provision that possession should be withheld, the deed would have carried to the grantees the entire property in all.its existing conditions, and the growing crops and rents that had accrued would have passed as appurtenances of- the land.
    3. The characteristics of his tenure of the land were stamped upon it by the grantor himself, and the terms employed were large enough to denude it of the common-law incidents of an estate for life. At his death the excepted interest was transmitted to the remaindermen, and all other rights, including the title to emblements, had already been surrendered and conveyed.
    4. The provision for the retention of possession was an exception from the body of the estate conveyed and not the reservation of a newly-created right of which it was to bo the source, and an exception is always to be taken most in favor of the feoffee.
    5. The words of the grant are large enough to cover the emblements, and an intendment from them that would retain in the grantees the incidents of a common-law estate for life would demand a strained construction, and established principles require such a strain to be made only in favor of the grantees.
    May 21st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Woodward and Sterrett, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas of Adams county: Of May Term 1877, No: 188.
    This was a case stated wherein John B. Waugh and others were plaintiffs, and James H. Marshall and Joseph Kittinger, executors of John Waugh, deceased, defendants.
    The material portions were as follows :—
    John Waugh died in April 1874, having made his will dated November 7th 1870, which was proved April 28th 1874, and letters testamentary granted to the defendants, the executors named in the will.
    The plaintiffs are the children of James Waugh, late of Grayson county, Va., who was a brother of John Waugh, and survived him, and died on the 9th day of August 1875.
    John Waugh and James Waugh were sons of William Waugh, who'died in the year 1823, having devised to them his farm in Hamiltonhan township, Adams county, containing 300 acres.
    James Waugh conveyed to John Waugh his portion of the lands devised to them by their father, by deed dated June 14th 1852.
    On the 7th of July 1873, John Waugh executed and delivered to John B. Waugh and the other parties plaintiff, a deed in fee simple for all the lands devised to him and James Waugh by their father, as aforesaid, excepting 18 acres which he had previously sold to John Grelbaugh. The deed, after the description of the property, contained this clause: “ Possession of all said premises to he given at the death of the said John Waugh, together with all and singular the buildings and improvements, ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions, remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and demand whatsoever, of the said party of the first part in law, equity or otherwise howsoever of, in, to, or out of the same.” This deed was recorded July 8th 1873.
    The consideration named in the deed was $2000, but there was a further consideration in a release given by James Waugh, by his attorney in fact, John B. Waugh, to John Waugh, dated the same, July 7th 1873, said power of attorney bearing date July 1st 1873. '
    At the time of the execution of the deed by John Waugh to the plaintiffs, and previously thereto, the farm in question was held under lease from him by J. W. Kittinger, as his tenant, farming the lands and delivering a share of the crops as rent. John Waugh was a bachelor and had his home in the mansion house on his farm, with his tenant, and continued there until his decease in April 1874, at which time Kittinger, the tenant, was holding over under his lease for the previous year, which ended on the 1st of April; and he continued to hold the property on the same terms for the remainder of the year.
    At the time of the death of John Waugh there were growing upon the home farm 45 acres of wheat sown in the fall of 1873, and 18 acres of oats sown in the spring of 1874; these were harvested after his death. The landlord’s share in these growing crops was appraised by the appraiser of collateral inheritances, and also by the general appraisers as the estate of John Waugh, deceased, and the net proceeds thereof, amounting to $392.98, were received bv the defendants, April 1st 1875.
    The plaintiffs claim the net proceeds of the landlord’s portion of the wheat and oats sown upon the farm in John Waugh’s lifetime, and harvested after his decease.
    If upon these facts the plaintiffs are entitled to recover, judgment to be entered in their favor for $411.98 and costs; if otherwise, judgment to be entered for defendants.
    The court (Boss, P. J., of the 38th judicial district) delivered an opinion, which is herewith given in extenso, on account of the novelty of the question involved and the learned and comprehensive manner in which it is discussed :—
    “ This case is one which is well calculated to lead the legal mind into error. I had 'prepared an opinion ruling that the grantor, John Waugh, was a tenant for life, and that the rent was to be apportioned in pursuance of the provisions of the Act of February 24th 1834, Pamph. L. 73, sect. 7.
    “ In that opinion I expended much time and labor, and I think I demonstrated • that the estate of the grantor was a freehold— that the deed did not operate as livery of seisin, although delivered, until his death. This I still believe to be true; and while he lived John‘Waugh had a freehold; but I am now satisfied that all this labor and research was upon a matter that did not touch the point at issue.

      “ The question is whether the deed — the instrument which controls here — vests the right to the rent in the executors or grantees. A tenant for life may merge his particular estate in the remainder. This can be done by deed. If he can merge the whole, he can do so with a part. It cannot be denied that he may assign the right to the rent to the person in remainder, either for a year or a series of years. If he does so, it is perfectly competent for his assignee to receive it.
    “ To put the case most strongly against the plaintiffs, I will treat the grantor as tenant for life, as I think he is. If he be not such tenant, I can see nothing in the way of plaintiffs’ recovery; for save by the statute rent cannot be apportioned: Rockingham v. Penrice, 1 Peere Williams 178; Toller on Ex’rs 177-8. It is always an incident of the reversion: Co. Litt. 143; 2 Bl. 176. But it is not always inseparable : Id.

      “ Assuming then, for the sake of the argument, that after his conveyance the grantor was tenant for life, and a freeholder who had not passed livery of seisin to his grantees, we will turn to the deed to determine the status of his interest at his death.

      “ He conveyed with these words : (The court here recited the portion of the deed contained in the case stated.)
    “ This seems to be decisive. Pie could have conveyed all in his lifetime. He did not see fit to do th&t. He reserved a life estate, and directed that upon his death everything he had reserved should pass.
    “ Suppose the occupancy, the possession, had not been reserved. Clearly the deed would have conveyed the rent accrued, but not yet payable. He simply postponed until his death the action of this conveyance ; immediately upon his death it became operative, and conveyed the rent precisely as if he had assigned it in his lifetime. This seems to be too clear to admit of argument. If it once be conceded that a tenant for life may merge the particular estate by conveyance in his lifetime, it follows logically that, he may convey, its incidents. This is the case here. B.y this deed he conveyed all the incidents of his life estate, if such it were, at his death to the grantees in the deed. The Act of 1834 apportioning the rent was a right conferred by statute; but it was not inalienable, and the conveyance, in express terms, aliened it.
    “ Thus far the reasoning has been on the assumption that the grantor reserved a life estate. As has been said, that is the opinion of the court; but if it be true that the right of occupancy alone was reserved, that no particular estate ivas outstanding, then the case is clear as the noonday sun. In that event the rent could not be apportioned, and the whole of it would be payable to the owners of the fee.

      “ There is another view, as yet unnoticed. What interest— what was the quantity of the estate which the deed vested in' the grantees pending the life of the grantor ?
    “ First, it was an estate in expectancy, it was an estate in-remainder, and that remainder was vested. It therefore carried with it the reversion of all leases made by the grantor during his life, by the operation of common-law principles.. The statute apportioning rent between the executors of the tenant for life and the remainderman is inoperative here, for the tenant for life is the grantor, and his grant carried the rent by express terms, eo instanti with the expiration of his life. lie was the owner of the fee, he aliened it sub modo, and his rights, at his death, by force of his conveyance, vested in the remainderman. Had he conveyed- in hi$ life absolutely, the rent would have passed. He conveys absolutely in his lifetime, to take effect at his death. The result must be the same.
    “ Again, suppose that the same language was used in an executory devise — the reservation being in the same language, and the devise in the same terms, surely upon the termination of the particular estate the devisees in remainder would have taken fee and leasehold, notwithstanding the statute.
    “ The case is sui generis, and it is the first instance in my experience where a tenant in fee simple, by the same conveyance, parts with the title and creates a life tenancy. The doubt in the case arises from the fact that the legal mind, in dealing with estates for life, involuntarily calls up that class of freeholds created by a third person, with remainder over. It was to these that the statute was intended to apply ; but it cannot operate to'defeat the intention of the grantor, or to enable his executors to take that which he expressly grants to others. Again, any deed is to be taken most strongly against the grantor. It may be said that a conveyance of rent is merely a formal routine of conveyancers’ language. But this is without force — especially when the spirit of the whole deed is considered. i
    “ I have said that I had elaborated the inquiry as to whether the grantor was tenant for life. I do not reproduce that part of my discarded opinion here, for I am satisfied that it is immaterial whether he was or was not. If tenant for life, his deed expressly conveys the rent due at his death. If he had no freehold estate, then the rent cannot be apportioned under the statute. It is a question of scientific interest, whether the delivery of a deed operates as livery of seisin in Pennsylvania, in a conveyance like this; but as the question presented by the case stated is clearly with the plaintiffs for -the reasons given, it would be a mere parade of learning and industry to follow that line of thought. It is apparent that judgment must be entered for the plaintiffs.”
    Judgment was entered accordingly, and this entry was the error assigned.

      David Wills and H. B. Woods, for plaintiffs in error.
    The right of possession cannot be in abeyance, and it therefore remained in John Waugh until his death. This right of possession is not a reservation, but an exception: Pres. Shep. Touchstone 80; 4 Cruise 32, c. 24, sect. 1; 2 Bl. Com. 299. “ Possession of all said premises to be given at the death of John Waugh,” as contained in this deed, is clearly an exception, and not a reservation, by John Waugh during his lifetime : Whitaker v. Brown, 10 Wright 197 ; Turner v. Scott, 1 P. F. Smith 131. John Waugh, having the right of possession, had a life estate in the premises, and was entitled to all the incidents of a tenancy for life. Furthermore, the parts of the deed about appurtenances, rent, &c., are nothing more than the formal words of the conveyancer ; but take them in their strongest sense, and they are limited to the time of John Waugh’s death — a time altogether uncertain — and are to be construed with reference to the estate excepted in the conveyance. The rents passing to the grantees are those accruing after the incidents to the life estate are satisfied. It is not as the court below remarks, “ that the right of occupancy alone was reserved.” It' was-more — it was an estate of uncertain duration.

      R. G. McCreary, for defendants in error.
    The growing crops and rents, as they became due, belonged to the grantees as appurtenant to the land, and also by the express terms of the conveyance : Bank of Pennsylvania v. Wise, 3 Watts 394; Wilkins v. Vashbinder, 7 Id. 378 ; Cobel v. Cobel, 8 Barr 342.
    The facts agreed upon in the case manifest clearly the intention of the parties that the estate of John Waugh in the lands should pass to the grantees, subject only to his right of occupancy during his life; and to carry into effect this intent is a cardinal rule of interpretation: Hollingsworth v. Fry, 4 Dallas 347; Means v. Presbyterian Church, 3 W. & S. 303.
    The clause providing for the retention of possession by the grantor in the deed, is in the nature of an exception, and is to be held most favorably to the grantees, and consequently could not postpone full enjoyment of the estate by these, longer than during his life : Co. Litt. 183 a; Sheppard’s Touchstone 100; Bullen v. Denning, 5 B. & C. 842; Jackson v. Hudson, 3 Johns. Rep. 375.
    October 1st 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

If the estate of John Waugh in the land out of which the rents in controversy accrued, had been strictly and technically that of a tenant for life, the.common-law right of his representatives to those rents, subject to the modification made by the revised statutes of 1833 and 1834, would have been clear. Where a tenant for life sows lands, and then his estate is determined, not by his own act, his executors shall have the growing crops, called emblements., Thus if a tenant for his own life sows the ground, and dies before harvest, his executors shall have the emblements, for the estate was uncertain and determined by the act of God: Co. Litt. 55'b. And if tenant for life leases for years, and the lessee for years sows, and after the lessee for life dies before severance, the lessee for years shall have the corn: Gouldsb. 144, pi. 60. The profits of the growing crops, in case the estate of a tenant for life determines by his death before the produce can be gathered, are given on very obvious principles of justice and policy, as the time of the determination of the estate is uncertain. He who rightfully sows ought to reap the profit of his labor; and the emblements are confined to the products of the earth arising from the annual labor of the tenant: 4 Kent’s Com. 73. By the-fifth section of the Act of the 8th of April 1833, it was provided that the emblements, or crops growing on land held by a tenant for life, as well as rents and other periodical payments accruing to such tenant, so far as they should have accrued on the day of his death, might be disposed of by will as other personal estate. And by the seventh section of the Act of the 24th of February 1834, the rents of any real estate accruing to any tenant for life of such estate, who had demised the same for a term not fully expired at his decease, were vested in his executors or administrators, who were required to include in the inventory of his personal estate iSa due proportion of such accruing rent, to be computed according to the time elapsed at his death. If Mr. Waugh, therefore, had been seised of a freehold for life, to which the rules of the common law and the provisions of the statutes of this state were applicable, there would probably be little embarrassment in adjusting the rights of these parties. The wheat growing at the time when the death occurred had been sown by the lessee for years in the fall of 1873, and was the way-going crop for the year beginning on the 1st of April 1873, and ending on the 31st of March 1874. The landlord’s share of the wheat was a portion of the rent of that year. Although severed in the following summer, it had accrued at the date of the landlord’s death in April 1874. If his rights had been those of a tenant for life, it seems obvious that the entire net proceeds of the wheat crop should belong to the executors. The principle of Cobel v. Cobel, 8 Barr 342, in which, under similar facts, it wa.s held that rent went to the devisees of the lessor under the will, and not to the executors, is not applicable in a case like this. The decision there was on the ground that no right to the rent accrued until severance. But the lessor in that case was a tenant in fee, and the question in controversy had relation to the effect on growing crops, as personal property, of a conveyance or devise of land. At least, the executors would be entitled to a share of the proceeds of the wheat crop on some system of apportionment, which need not be definitely settled now. The crop of oats was sown in the spring of 1874,.and the landlord’s share constituted -part of the rent of the farm for the year beginning on the 1st of April 1874, and ending on the 31st of March 1875. The precise date of Mr. Waugh’s death has not been stated in the paper-books, but it occurred some time in April 1874, and if his executors had been entitled to any portion of this crop, it would be too minute to be worth the labor of calculation. In any event, the plaintiffs below, whose estate in remainder became vested in possession at the instant of the determination of the precedent estate, would be entitled to this portion of the fund in dispute.

A more difficult and doubtful question remains to be considered. What was the nature, extent and limit of John Waugh’s interest in this land ? He conveyed it to the plaintiffs by a formal deed on the 7th day of April 1873, for the expressed consideration of $2000, with covenants of general warranty. The description of the premises was followed by an exception of 18 acres which he had sold to one Gelbaugh, and that was succeeded by this clause: “ Possession of all said premises to be given at the death of the said John Waugh, together with all and singular the buildings and improvements, ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, .claim and demand whatsoever of the said party of the first part, in law, equity or otherwise howsoever, of, in, to or out of the same.” The deed was acknowledged on the day of its date, and on the following day was recorded.

In the fullest possible form, every interest in this property was transferred except that defined by the words “possession of all said premises to be given at the death of the said John Waugh.” What was the right which the grantor retained ? By the 5th section of the Act of the 28th of May 1715 (1 Sm. Laws 95), all deeds and conveyances duly made, proved or acknowledged, and recorded, were declared to be of the same force and effect in Pennsylvania for the giving of possession and seisin, and making good the title and assurance of lands, tenements and hereditaments as deeds of feoffment, with livery and sejsin, or .deeds enrolled in any of the king’s courts at Westminster were or should be in the kingdom of Great Britain. Free from the limitation imposed by the provision that possession should be withheld, the deed would have carried to the grantees the entire property in all its existing conditions. The growing crops and the rents that had accrued would have passed as appurtenances of the land. In Wilkins v. Vashbinder, 7 Watts 378, Judge Sergeant said that “ in the case of The Bank v. Wise, 3 Watts 394, the court came to the conclusion that where the owner in fee sows land, and afterwards, while the crop is growing, conveys or devises the land, the emblements, that is, the corn growing at the time of the conveyance or the death of the testator, will pass with the land to the grantee or devisee. In this opinion, the judge added, “we all upon mature consideration concur.” This doctrine has been unqualifiedly affirmed in Cobel v. Cobel, 8 Barr 342, and in Burns v. Cooper, 7 Casey 426. By the terms of the deed the grantor divested himself of all existing and all ulterior rights, excepting simply that of occupancy during his lifetime. Included in those divested rights were the common-law incidents of an estate for life. It is not necessary to refer to rules that have established the wide extent and operation of the word “ hereditament” in along line of the older precedents, for this deed expressly conveyed “reversions, remainders and rents,” as well as “hereditaments.” It has been urged that the concluding terms of the grant was a conveyancer’s mere meaningless routine, and that like the old habendum, these terms have “ degenerated,” in the language of Chancellor Kent (4 Com. 468), “into a mere useless form.” But the premises in a deed now contain a specification of the estate granted, and a consideration of the formal words used here is indispensable to a just conception of the scope of this conveyance. Among the rules of interpretation collected in Sheppard’s Touchstone, p. 87, are those requiring “that the construction be made upon the entire deed, and that one part of it doth help to expound another, and that every word (if it may be) may take effect, and none be rejected, and that all the parts do agree together, and there be no discordance therein;” requiring “that the construction be such that the whole deed and every part of it may take effect, and as much effect as may be to that purpose for which it is made, so that when the deed cannot take effect according to the letter, it be construed so that it take some effect or other;” and requiring “ that all the words of the deed in construction be taken most strongly against him that doth speak them, and most in advantage of the other party.” The characteristics of his tenure of this land were stamped on it by Mr. Waugh himself, and the terms he employed were large enough to denude it of the common-law incidents of an. estate for life. At his death the excepted interest was transmitted to the remaindermen. All other rights, including the title to emblements and rents accruing to his representatives, had been already expressly surrendered and conveyed.

It was competent for the grantor to circumscribe the extent of his life tenancy within any limits he might choose to fix. The rule of the common law relating to emblements extended to every case where the estate for life was determined by the act of God or by the act of the law, and not to the cases where it was determined by the voluntary, wilful, or wrongful act of the tenaht himself: 4 Kent’s Com. 73. Thus, if a woman who holds lands durante viduitate sua — which is an estate for life determinable — sows the lands, and afterwards marries before the severance of the com, she will not be entitled to emblements, because her estate determined by her own act: Oland’s Case, 5 Coke 116 a. The same principle applies if a lessee surrender, or if an estate determine by forfeiture or condition broken, for it is the act of the' lessee: Bissett’s Estates for Life 281, and the cases there cited. The like result must., be worked with at least equal efficiency by a written agreement expressly surrendering any of the ordinary legal incidents of an estate in land.

It has been said already that the words of a grantor are to be taken most strongly against himself. Another rule in the exposition of deeds has application here. The provision for the retention of possession by Mr. Waugh was an exception from the body of the estate conveyed, and not a reservation of a newly created right of which it was to be the source. And an exception is always taken most in favor of the feoffee or lessee, and against the feoffor or lessor: ’Shep. Touch. 100. The rule is illustrated in a case quoted in the Touchstone from Perk. Con., § 646: “If a man be seised of a fishing from such a place to such a place, and hath a mill upon the water, and he grant totam partem suce pisearice de D. quatenus terree suce extenclunt, salvo tamen stagno molendini; this exception doth not take away the fishing of the grantee in the mill-pond, but it shall have relation only to the pool to repair [supply water to] the mill.” “When the intent of the parties is clearly expressed, the intent shall govern the construction; but when the import of words is doubtful, and they are applicable equally in one sense and in another, in this case the construction most in favor of the grantee shall be made :” Preston’s Note in Shep. Touch. 101. In this case the words of the grant are large enough to cover the subject of the controversy. To draw an intendment from them that would retain in the grantor the incidents of a common-law estate for life, would require some constructive strain; and established principles require such a strain to be made only in favor of the grantees. Reversing the position of the parties, and supposing the plaintiffs below to have been the owners of the land in fee, And to have conveyed to John Waugh the right to occupy it during life, reserving to themselves all hereditaments, reversions, remainders, rents and profits, it would seem clear that no claim of his executors to emblements could have been asserted at his death. The grant was as explicit, as the case stands, as the reservation would have been in the case supposed. Mr. Waugh, at any time before his decease, could have surrendered Ms life • tenure, and merged it in the remainder; and while it is conceded that there is room for conflict of opinion in a case so balanced as this, it is still believed that the effect of his deed was to vest in the plaintiffs all those incidents of an estate for life whose assertion in favor of the defendants was the foundation of this litigation.

Judgment affirmed.

Mercur, J., dissents.


author: Per Curiam.

text:
    Hodge’s Appeal.
    Where a mortgage is a security for the whole number of a series of bonds in a distribution of the proceeds of the sale of the mortgaged property, the iiolders of the bonds share pro rata in the distribution, and if a holder of a bond is entitled to its proceeds other holders cannot set up any informality in the manner of its acquisition.
    May 21st 1877.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, Woodward and Sterrett, JJ.' Paxson, J., absent.
    Certiorari sur appeal to the Court of Common Pleas of Adams county: Of May Term 1877, No. 185.
    Appeal by J. Ledyard Hodge from the decree of the court in the distribution of the proceeds of the estate of Emanuel Harmon.
    Harmon executed and delivered to trustees a mortgage on a property in Adams county, to secure the, payment of two hundred bonds, each for the sum of $500. By the terms of the bonds, each holder was entitled to the security of said mortgage, and the bonds were made transferable by delivery, but might, at the option of the holder expressed in writing thereon, be made transferable only by endorsement. The real estate was sold by the sheriff, and after satisfying prior liens in full, there was left remaining to be distributed under the mortgage a balance of $6894.98.
    Before the auditor appointed to distribute this balance, S. A. Whitney produced for payment 198 of these bonds, numbered from 3 to 200, each having thereon this endorsement: “ The within bond is payable to me or assigns. E. Harmon.” The two remaining bonds, numbered 1 and 2, were presented by J. L. Hodge, upon which was the same endorsement, together with the following: “ The within bond is hereby assigned to J. Ledyard Hodge. E. Harmon.” '

      On behalf of Hodge it was contended, that inasmuch as Hodge is a bona fide holder of his bonds for value, paid, he should be paid in full before Whitney can claim any part of the funds, because Whitney is not such a holder; that at the time the bonds were delivered to him, the indebtedness to Whitney by Harmon did not all exist; that it is not known' what indebtedness there was at the time they were delivered ; that they were not delivered as security for any money or credit obtained by Harmon from Mr. Whitney at the time of their delivery; that they were not transferable by delivery, because of the endorsement thereon by Emanuel Harmon, thereby making them transferable only by endorsement, as is stipulated in said bonds ; that the right of the holder of bonds 1 and 2 is superior to any equities which may have been created between Harmon and Whitney by the delivery of the 198 bonds ; and also that the equities of the holder of said bonds are superior to the equities of Whitney on said fund.
    The auditor found that Harmon was indebted to Whitney, but the date and amount of the indebtedness could not be determined from the testimony of the witnesses; that he delivered the 198 bonds numbered from 3 to 200, without assignment or transfer in writing to Whitney as collateral security for his then indebtedness to Whitney, and also for collateral security for subsequent loans which Whitney might make to him; and that at the time of his death the aggregate amount of Harmon’s indebtedness to Whitney and for which the 198 bonds were delivered to him by express, exceeded $50,000 — an amount far beyond what will be realized by a pro rata out of the disputed fund — but that no debt was contracted with, or by,, or loan obtained by Harmon from Whitney at the time the bonds were so delivered, but the whole indebtedness was created at periods beforé and after the delivery of the bonds.
    He was of opinion, therefore, “ that Hodge accepted his bonds upon the condition contained in the whole series, and his equities required that all subsequent holders should hold their bonds properly transferred before they should be allowed to share with him the equities of the security.”
    “ The bonds originally transferable by delivery were divested of that character when Harmon, before passing them out of his hands, impressed upon them a different character, as he was authorized to do by the terms of the bonds, by endorsing upon them in waiting that they should be payable to his assigns. After this endorsement by Harmon, the bonds were transferable only by endorsement; and there being no endorsement to Whitney, his right is incomplete as against the holder of the first two bonds, which were transferred bona fide by endorsement. Furthermore, in analogy to negotiable paper, these bonds were not passed to Whitney in the usual course of business, but as collateral security for past liabilities, and future loans of an indefinite amount.

      He, therefore, awarded to Hodge the amount of the face of his bonds. To this award Whitney excepted, and the court, McClean, P. J., sustained the exception, and directed that the fund should be distributed pro rata among the creditors.
    From this decree Hodge took this appeal.

      J. M. Krauth and M. W. Jacobs, for the appellant.
    The papers produced by Whitney were not bonds, but incomplete and invalid instruments; while the bonds of Hodge were valid and regular, and alone entitled to take under the mortgage. The endorsements made by the obligor before the delivery of the bonds constituted a part of them : Stocking v. Fairchild, 5 Pick. 181; Cook v. Remington, 6 Mod. 237 ; Stone v. Handsbrough, 5 Leigh 422'; Williams v. Handley, 3 Bibb 10. The legal effect of the instrument with the first endorsement only was to render it payable to the obligor, which involved a legal absurdity, and the instrument was void: Pearson v. Nesbit, 1 Dev. (N. 0.) 315; Justices v. Shannonhouse, 2 Id. 6; Brown v. De Winton, 6 C. B. 336 (60 E. C. L. R.); Smalley v. Wight, 44 Maine 442; Smith v. Lusher, 5 Cowen 688.
    Prima facie, at least, Hodge was the only holder of bonds secured by the mortgage; the other bonds, for anything that appeared upon them to the contrary, were still undelivered and the property of the obligor. Upon this state of facts Hodge was entitled to have his claim paid in full, out of the proceeds of the mortgage, for Harmon had no equities against him.
    A creditor who takes a chose in action as collateral security for an antecedent debt is not such a holder for value as will be protected against equities outstanding against the assignor. See cases from Petrie v. Clark, 11 S. & R. 377, to Smith v. Hogeland, 28 P. F. Smith 257, and Pittsburgh and Connellsville Railroad Co. v. Barker, 5 Casey 161; Cary v. White, 52 N. Y. 138; United States v. Hodge, 6 How. 279 ; Bell v. Banks, 3 M. & G. 258 (42 E. C. L. R. 141); Twopenny v. Young, 3 Id. 208 (10 E. C. L. R. 54); Ashton’s Appeal, 23 P. F. Smith 162.
    The bonds were issued for a specific purpose, viz., to discharge certain debts of Harmon. They were put in Whitney’s hands not for this purpose, but to afford him additional security. This was a fraud upon Hodge, and Whitney, having taken the bonds with full notice, was a party to it: Garrard v. Pittsburgh and Connellsville Railroad Co., 5 Casey 154 ; United States v. Hodge, 6 How. 279; Cary v. White, supra.

      R. G. McCreary, for appellee.
    The bonds, without any endorsement, were perfect instruments, the obligations being to trustees and the money named in them being payable to the holder. The endorsement was but a memorandum of a fact existing at the time as to the right of property and was not intended to have the effect claimed. Ño assignment by Harmon, in writing, was necessary. The delivery of these bonds to Whitney was upon valuable consideration and amounted to an equitable assignment: Story’s Eq. Jur., vol. 2, sect. 1047; Brightly’s Eq., sect: 354; Morton v. Naylor, 1 Hill (N. Y.) 583 ; Clemson v. Davidson, 5 Binn. 392-8; McIlree v. Guy, 1 Phila. 488.
    The purchaser of bonds is not bound to see to the application of the purchase-money. The presumption is in favor of its proper application and the onus of proving its misapplication is upon him who asserts it: Co. Litt. 232.
    Where fractional parts of the same mortgage debt are successively assigned to different persons, if the proceeds of the mortgaged property be insufficient to pay all, they take pro rata: Donley v. Hays, 17 S. & R. 400; Mohler’s Appeal, 5 Barr 420; Perry’s Appeal, 10 Harris 43; Hancock’s Appeal, 10 Casey 156.
    June 4th 1877,
   The judgment of the Supreme Court was entered,

Per Curiam.

The mortgage is a security for the whole number, and for each and every bond recited in it. By the terms of the instrument they stand in equal protection. Each bond therefore carries only a fractional interest of $500 in the property mortgaged. The fund arising from the sale of the property is its representative, and is owned by the bondholders in the same proportion. From the terms and nature of the mortgage, the time and manner of the transfer of each are not material; the only real question being whether each holder is entitled to it. The question of ownership, whether it be at law or in equity, is not material. If the holder of a bond is entitled to its proceeds, the holder of other bonds cannot set up mere informalities in the manner of its acquisition. The distribution, according to the act, must be according to equity as well as law. They are therefore entitled to come in pro rata on the mortgage fund.

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


author: Mr. Justice Paxson

text:
    Corpman versus Baccastow et al.

    An absolute deed and separate defeasance made at the same time constitute a mortgage, and if the defeasance is not recorded they are to be considered as an unrecorded mortgage and postponed to a judgment of a subsequent date.
    May 22d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas-of Dauphin county: Of May Term 1876, No. 103.
    Ejectment by W. S. Corpman against John Baccastow and Daniel Wagner, for a tract of seventy acres of land.
    The plaintiff claimed by virtue of a sheriff’s deed given to him in pursuance of a sale in April 1870, of the land in dispute, on a judgment obtained by Ballou & Scott, on the 18th of January 1869, against Jacob Corpman. It appeared that Jacob Corpman purchased the land on the 6th of April 1868, and on the same day he made a deed conveying the same to John Baccastow, for the consideration of $1740. The deed was recorded on the 9th of July 1868. It appeared also that, on the 23d of April 1868, Jacob Corpman and Baccastow entered into an agreement wherein it was stipulated, “ that if Corpman can pay to Baccastow $500, and the rent on April 1st 1869, he is to have possession, of said premises for another year on the same conditions, and so on from year to year until said Corpman has paid to said Baccastow the sum of $1740 and the rent, when said Baccastow shall reconvey said premises to said Corpman; * * * and should said Corpman fail and not comply with the agreement, and pay to said Baccastow $500, and the rent on the 1st of April next, the said Baccastow and his legal representatives shall have the privilege to sell said premises to the best advantage; and after deducting all arrears and backstanding of his claim and rent,, and all expenses of said sale, then the balance, if any, shall be paid to said Corpman or his legal representatives; * * * and said Corpman has the privilege to sell said property at any time within said year, by paying said Baccastow' his claim and rents.”
    This agreement was never recorded.
    At the trial, before Pearson, P. J., Baccastow testified that Oorpman failed to comply with this agreement, and he then sold the property to Wagner, who dispossessed Corpman.'
    J. Corpman testified that he had gotten $1740 from Baccastow, who agreed to take a mortgage upon the premises, and receive eight per cent, interest in the form of rent, and that the deed and agreement were both executed on the 23d of April 1868.
    The plaintiff’s first point was : — ■
    If the jury believe that the deed dated April 6th 1868, and the agreement dated April 23d 1868, were in point of fact executed at the same time then the deed and agreement constitute a mortgage, and not an absolute conveyance.
    Answer. “ The law is as stated in this point.”
    His third point was :—
    If the deed of April 6th 1868„ is found to be simply a mortgage then Jacob Corpman had such an interest in the land upon January 18th 1869, as would be bound by the judgment obtained against him un that day; and the sheriff’s sale under said judgment vested in the purchaser, the plaintiff in this case, the interest which Jacob Corpman had in the premises on the day the judgment was obtained, and just as it was upon the day the judgment was entered.
    Answer. “ At the time the judgment was obtaine'd under which the plaintiff claims title Jacob Corpman had an interest which was bound by the judgment, subject to the prior mortgage, which was an older lien. Had not a sale been made on the mortgage prior to the sale by the sheriff, that sale would have vested the equity of redemption in W. S. Corpman; but as the land was sold by the mortgage creditor in a method which we have decided to be legal, Jacob Corpman had no interest in the land at the time of the sheriff’s sale, and therefore W. S. Corpman took nothing by his purchase.”
    The verdict was for the defendants. The plaintiffs took this writ, and, inter alia, assigned for error the answer to his third point.

      Fleming & McCarrell, for plaintiff in error.
    The deed and agreement constituted a mortgage, and the agreement not having been recorded they must be regarded as an unrecorded mortgage and postponed to subsequent judgment creditors: Friedley v. Hamilton, 17 S. & R. 70; Jaques v. Weeks, 7 Watts 261; Manufacturers’ & Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 335; Wilson et al. v. Shoenberger’s Ex’rs, 7 Casey 295.

      R. A. Lamlerton and Hamilton Alricks, for defendants in error.
    By agreement Jacob Corpman became the tenant, and Baccastow the trustee to sell. Baccastow then held the legal title for the purpose of selling to pay debts. Recording the deed was notice that no credit was to bo given to Jacob Corpman. It was however the accompanying agreement which gave power to sell, with the usual provision for a re-conveyance on the execution of the trust. Although judgment creditors are not within the provisions of the recording act, while they might have priority over an unrecorded mortgage, they would have no lien on real estate assigned for payment of debts. The cases cited by the plaintiff in error do not apply. This is not the case of any unrecorded defeasance alone. Here was a deed of trust coupled with a power to sell.
    It has become a common practice to insert in a mortgage a power of sale upon default of payment: 2 Story Eq. Jur. 1027; Coote on Mortgages, 18 Law Lib. 128.
    A sale under such power is final and conclusive in favor of bona fide purchasers, and is a bar to the equity of redemption: Jackson v. Henry, 10 Johns. 185; Carson v. Blakey, 6 Mo. 273; Eaton v. Whiting, 3 Pick. 484, 491; Waters v. Randall, 6 Metcalf 483, 484.
    May 28th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

The deed of Jacob Corpman to John Baceastow dated April 6th 1868, and the agreement of April 23d 1868, were executed at the same time, and taken together constitute a mortgage.- The deed was recorded prior to the entry of the Ballou & Scott judgment; the agreement has never been recorded. The plaintiff claims title by virtue of a sheriff’s sale under said judgment; the defendants claim by virtue of a sale in pursuance of a power contained in the mortgage. The sale under the mortgage was prior in point of time to the sale by the sheriff upon the judgment. It was contended by the defendants that the sale under the mortgage divested the lien of the judgment, and that Jacob Corpman had no interest in the land at the time of the sheriff’s sale. This raises a question of priority of lien. Its solution is not difficult. It was decided in Friedley v. Hamilton, 17 S. & R. 70, that an absolute deed and defeasance, made at the same time, constitute a mortgage; and if the defeasance be not recorded, it is to be considered as an unrecorded mortgage, and postponed to a judgment of subsequent date, notwithstanding the absolute deed has been duly recorded. This principle has been distinctly recognised and affirmed in Jaques v. Weeks, 7 Watts 261; Manufacturers’ & Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 335 ; Wilson v. Shoenberger’s Ex’rs, 7 Casey 295, and other cases, while in no case has it been doubted or denied. It was contended, however, that this case does not come within the rule referred to for the reason that by the terms of the agreement Baceastow held the legal title for the purpose of selling to pay debts. - The force of this position is not apparent. He had no authority to sell for the payment of debts generally. He could only sell for the payment of the particular debt secured by the mortgage. The mortgagor and mortgagee had by their contract provided a special remedy in case of default in the payment of the money. The instrument was none the less a mortgage by reason of this provision contained therein. Its character and legal effect remained unchanged. It was further contended by the defendants that the sale by Baceastow being under a power divested the lion of the judgment. This might have been so had the lien of the judgment been subject to the power. But it was not. The power of sale was merely the remedy created by the mortgage, and as against the judgment the mortgage was not a lien by reason of the failure to record the defeasance. It follows from what has been said that the first assignment of error must be sustained. It was error to say in answer to the plaintiff’s third point, that by reason of the sale under the power Jacob Corpman had no interest in the land at the time of the sheriff’s sale, and therefore W. S. Corpman took nothing by his purchase. The remaining assignments need not be discussed.

Judgment reversed and a venire de novo awarded.