author: Mr. Justice Gordon

text:
    Ruff versus Ruff.
    Where the judgment in an attachment suit is in favor of the garnishee the defendant therein is not thereby precluded from again bringing suit against said garnishee for the same subject-matter.
    October 24th 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Sharswood, J., absent.
    Error to the Court of Common Pleas of Westmoreland county : Of October and November Term 1877, No. 135.
    Debt on bond with warrant of attorney by C. P. Ruff, for use of William Hillis, against Michael Ruff.
    On the 1st of August 1868, Michael Ruff gave his judgment note to C. P. Ruff for $1000, payable in six years, with interest, and delivered the same to the said O. P. Ruff.
    On the 20th day of February 1874, C. P. Ruff assigned said judgment note to William Hillis for a valuable consideration. Afterwards, Hillis, on the 28th of February 1874, caused a judgment to be confessed thereon in the Court of Common Pleas of Westmoreland county, at No. 185, May Term 1874, in favor of the said William Hillis.
    Prior to the assignment aforesaid, Thomas J. Barclay, at No. 279, May Term 1870, issued an attachment execution against C. R. Painter, O. P. Ruff and E. J. Keenan, with notice to the said Michael Ruff, as garnishee, upon which attachment an issue AA'as directed, and the case Avas tried in the Court of Common Pleas of Westmoreland county, Avith Thomas J. Barclay, as plaintiff, and Michael Ruff, garnishee, as defendant, resulting in a verdict and judgment for the defendant.
    Whereupon the said Michael Ruff, on the 22d of April 1874, obtained a rule to shoAV cause why the said judgment, at No. 185, May Term 1874, should not be opened, and he allowed to make defence thereto. On the 24th of March 1875, the said rule was made absolute, the lien of the judgment to be preserved.
    On the 5th of July 1875, Michael Ruff filed the following special plea: And now, to wit, July 5th 1875, the defendant pleads that the said plaintiff ought not to have and maintain his action against him, because that, at No. 277, May Term 1870, attachment execution issued out of the Court of Common Pleas of Westmoreland county, wherein Thomas J. Barclay is plaintiff, and C. P. Ruff and E. J. Keenan are defendants, with notice to the defendant as. garnish^, the debt secured by the note upon which this “suit was, inter alia, attached on 22d March 1870, and it was so proceeded upon that on the 9th September 1874, the said court directed a . feigned issue to try and determine.whether the said,Michael Ruff, thn-dgfendant^was indebted.to the said. C. P. Ruff, the..plaintiff, on 22cTMar5h IH7D71did directed that Thomas J. Barclay should be plaintiff, and the said Michael Ruff, defendant, which issue, in pursuance of said order, ivas made up by the parties, on the 25th September 1874; and, whereas, also at the said Court of Common Pleas of November Term 1874, the said issue came on for trial, and xvas so proceeded upon, that on the 28th November 1874, there -was a yerdict and judgment for the defendant, Michael Ruff— that he was notriEdebted-in*any manner to the said C. P. Ruff— at’the time aforesaid, to wit: on 22d March 1870; i:o wit: after the date of the note in suit. Whereupon he prays judgment' ■ whether the said plaintiff ought to have and maintain his said action against him. ' ■
    To this special plea the plaintiff demurred, and, after ai'gument upon the demurrer, the court, Logan, P. J., entered judgment for the defendant, holding that the judgment and recovery in the issue between Barclay and Michael Ruff was a bar to the recovery >> by Hillis in the present action.
    The plaintiff took this Avrit, assigning this action of the court for error.

      A. A. Stewart, H. D. Poster and McAfee Atkinson, for plaintiff in error.
    — The plaintiff in this action, being neither a party nor privy, could not be heard in the determination of the action of Barclay v. Painter et al., and therefore is not concluded from recovery in this action: Breading v. Siegworth, 5 Casey 396; Tams v. Bullitt, 11 Id. 311.
    To make a former verdict and judgment conclusive, it must be between the same parties. The party must have had a right to appear and be heard: 1 Starkie Ev., part 2, §§ 57, 60; 1 Greenleaf Ev., §§ 523, 8; Hart’s Appeal, 8 Barr 37; Carmack v. Commonwealth, 5 Binn. 184; Respublica v. Davis, 3 Yeates 128; Timbers v. Katz, 6 W. & S. 290; Bratton v. Mitchell, 3 Barr 49; Hurst v. McNeil, 1 Wash. C. C. 70; Hamm v. Beaver, 7 Casey 58; Mer. Ins. Co. v. Algeo, Id. 446; Ihmsen v. Ormsby, 8 Id. 198; Childs v. Digby, 12 Harris 26.

      Cowan & Hewlett and H. C. & J. A. Marchand, for defendant in error.'
    — C. P. Ruff, having been a party to the attachment execution, was barred by the verdict and judgment in favor of Michael Huff, the garnishee, because in that trial the subject-matter in dispute was legally determined against him, and he having no right to assign it to ilillis, the latter took nothing by the assignment. Here the judgment on the attachment execution was by a court of competent jurisdiction, on the same subject-matter, between the same parties and for the same purpose. The plea is therefore good: Aspden v. Nixon, 4 How. 467.
   Mr. Justice Gordon

delivered the opinion of the court, January 7th 1878.

William Hillis having taken the assignment of the judgment note, executed by Michael Ruff in favor of C. P. Ruff, after the issuing of the attachment by Barclay, can have no other or better standing in this controversy than his assignor. We may treat the matter, therefore, as between the original parties to the note. It appears, from the statement we have before us, that Thomas J. Barclay, to May Term 1870, issued an attachment, from a judgment he then had against C. P. Ruff and others, with notice to Michael Ruff, the defendant in the case now trying, as garnishee. Upon this attachment the court directed an issue with Barclay as plaintiff and the garnishee as defendant. A trial was had, in due course, which resulted in a verdict and judgment for the defendant. This established conclusively, as to the parties to the issue and their privies, that Michael Ruff had, in his hands, no money, goods or effects of any kind, belonging to C. P. Ruff.

The one question for us to resolve is, was O. P. Ruff, by reason of his having been served with the writ of attachment, such a party or privy to this issue as would make the judgment therein binding on him ? If he is so bound, the demurrer to the defendant’s plea in bar was well ruled by the court below; if not, that ruling was erroneous. But if he was such a party, then should he have been included in the issue and the jury should also have been sworn as to him ; this, however, was not done; and why not ? The answer is, because he had no standing as a party against the garnishee, and was, therefore, properly excluded from a participation in the trial. If he had aught to say against the judgment, from which the attachment issued, he might have pleaded and had issue; it is, that he might have such opportunity, that the Act of Assembly directs that notice be given the debtor, if he is in the county. With such trial, however, the garnishee has no concern, neither is it a prerequisite to a trial against him: McCormac v. Hancock, 2 Barr 310. It is thus apparent that the two issues are quite distinct, and that whilst in the latter, the garnishee has no interest, in the former the debtor has none, and so may not intervene either to direct or control it. So completely does his interest antagonize that of both the contending parties that, even before the Act of 1869, he might have been a witness for either: Gemmill v. Butler, 4 Barr 232. Again, it is not correct to assume that the attaching creditor stands, in all respects, in the place of the debtor as to the goods and credits attached; for, if such were the case, then would a judgment, for or against the garnishee, be conclusive, not only as to the debtor, but also as to his creditors. Such, however, is not the case as to creditors or trustees in insolvency: Breading v. Siegworth, 5 Casey 396; Tams v. Bullitt, 11 Id. 308.

What shall we say, then; that the debtor is concluded by the result of an issue in which he has no interest; from which by legal rule he is excluded; in which he cannot be heard, except as a witness, and which does not conclude his creditors? This proposition contains in itself its own answer. If one is to be concluded by a judgment he must have his day in court; some say in, and control over, the trial. But C. P. Ruff had neither control over nor say in the issue between Barclay and the garnishee. Barclay might have permitted the case to go by default; he might have discontinued, or he and the garnishee might have compromised, and C. P. Ruff could not have intervened to prevent either. He was literally barred out of the case, and for the sufficient reason that he was no party to it; hence, by all rule, he is not concluded by the judgment resulting from its trial.

The judgment of the court below is reversed, and it is ordered that judgment be entered, on the demurrer, for the plaintiff for the amount of the original judgment, with interest to this date (January 7th 1878), to be liquidated by the prothonotary of the Court of Common Pleas of Westmoreland county.


source: Caselaw Access Project

license: Public Domain

text:
    Pennsylvania Railroad Co. versus Borough of Irwin.
    1. A railroad company having in the construction of its road changed the location of a township road, and having erected a bridge over a creek for a new public road, and refused to repair and maintain it, the township rebuilt it. Meld, that the company was liable to the" township for the cost of the bridge.
    2. The company having originally built the bridge to meet the necessities of the public, the duty devolved upon it to maintain and repair it.
    October 25th 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Asnew, C. J., and Sharswood, J., absent.

      Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1877, No. 245.
    The borough of Irwin, plaintiff below, brought an action of assumpsit for the value of a bridge, against the Pennsylvania Railroad Company, which pleaded non-assumpsit. On the trial the jury found a special verdict of the following facts : that the railroad company, in the construction of their road in 1851, changed the location of the township road, and a bridge over the creek became, and is still necessary ; that the company erected a bridge at that time and renewed it in 1853 and 1866 ; that the bridge as made in 1851 was adequate to the necessities of the public; that in 1875 it was necessary to rebuild the bridge ; that plaintiff below notified defendant to rebuild it; that defendant refused to do so, and plaintiff below rebuilt it; that the bridge built in 1851 cost $150 ; that in 1853, $250 ; that in 1866, $800; and that in 1875 was of the value of $3497. The court entered judgment on the special verdict for this last amount for plaintiff below. The entry of this judgment was assigned for error.

      H. D. Foster and H. C. & J. A. Marchand, for plaintiff in error.
    — The maintenance and repair of public highways are thrown upon the county in which they are located: Rex v. Inhabitants of West Riding of Yorkshire, 2 East 342; Rex v. Inhabitants of Bucks, 12 Id. 192; and without a contract there is no liability on the part of the railroad to maintain the bridge, unless the law imposes the duty on it. The Act of Assembly of 27th March 1848, Pamph. L. 275, requires railroad companies to construct bridges, but does not compel them to maintain and keep them in repair. A bridge is part of a highway Rapho v. Moore, 18 P. F. Smith 404. The railroad company was bound to build in the first instance, but was not bound to repair and maintain. This last duty fell upon the authorities: Meadville v. The Erie Canal Co., 6 Harris 66; Erie v. The Erie Canal Co., 9 P. F. Smith 174; Township of Newlin v. Davis, 27 Id. 317

      Edgar Cowan, for defendant in error.
    — The railroad company being originally liable to build the liability to repair is continuous: Commonwealth v. Pittsburgh and Connellsville Railroad Co., 12 Harris 161; Woodring v. Forks Township, 4 Casey 361; Pottsville v. Norwegian Township, 2 Harris 543; Phoenixville v. Phoenix Iron Co., 9 Wright 139.
   Mr. Justice Gordon

delivered the opinion of the court, November 5th 1877.

The railroad company by making use of the former permanent road-bed, not only made a bridge a necessity, but also rendered its perpetual maintenance a necessity, for by no other means could the highway be made to subserve the purposes of its creation. Such being the case, and the company having refused to rebuild, it was the duty of the borough of Irwin so to do, for upon it as to the public, devolved the duty of keeping the roads and streets within its limits in proper order: Newlin v. Davis, 27 P. F. Smith 317; If, however, this rebuilding was a duty, which by law, rested upon the company and which it ought to have performed, then is the borough entitled to recover the cost of such rebuilding from the company: Pottsville Borough v. Norwegian Township, 2 Harris 543; Penna. Railroad Co. v. Duquesne Borough, 10 Wright 223. The remaining question is, did such a duty devolve upon the company ? Where the owner of the land, over which a public road runs, cuts a ditch across such road for his own purposes, he is not only bound to build a bridge but to maintain it perpetually thereafter: Woodring v. Forks Township, 4 Casey 355. But there is no reason why a corporation in a similar case should be exempt from an obligation to which a natural person would be liable; besides this, it is not reasonable that the company having for its own purposes and profit created the necessity for the bridge in question should throw the burden of its maintenance over upon the public; for not only did it give rise to this necessity but that necessity is continued for its own benefit; if the company occupied the old road in the first place, it still continues the occupancy thereof. If it was necessary for it to build the bridge, it is just as necessary for it to rebuild when dilapidation and decay make rebuilding proper. The duty of the company, then, is obvious unless it is released therefrom by some Act of Assembly. But the Act of 1848 so far from relieving it of this obligation recognises and enforces it, for it 'requires the corporation, when it conceives it to be necessary to use a public road, “ to cause the same to be reconstructed, forthwith, at its own proper expense, on the most favorable location and in as perfect a manner as the original road.” The intention here manifestly is that no additional or unwonted burthen should be cast upon the public by the company’s use of the old road; but the maintenance of a bridge is such a burthen, often a very heavy one, and such as the company and not the municipality should support. This duty of bridge maintenance was recognised in the case of the Pennsylvania Railroad Company v. Duquesne Borough, above cited, as against the vendor of the state canals, though the necessity for the bridge in controversy had been created by the Commonwealth, by which it had originally been built, and against which such a duty as maintenance could not have been enforced.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Laird’s Appeal.
    1. An express direction by a testator to sell liis real estate, and divide the proceeds, works a conversion of it into personalty at his death, and the fact that by the terms of his will he permitted one of his sons, at his option, to take said real estate at an appraisement, does not change the effect of the direction.
    2. J. devised her estate in trust for her two sons, F. and W., but provided that in case either of them died within the period of twenty-one years from her decease, without issue then living, the whole should go to the survivor and his heirs. The will further provided that in case both sons should die within twenty-one years without issue then living, then devise over to other persons.^ F. died within five years from the death of his mother, and without issue. V. died shortly thereafter. He left a widow enceinte, who, two months after his death, gave birth to a child. Held, that W. died leaving “ issue then living,” and the devise took full effect.
    October 25th 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Sharswood, J., absent.
    Appeal from the Orphans’ Court of Westmoreland county: Of October and November Term 1877, No. 242.
    This was the appeal of J. M. Laird and others, from the decree of the court confirming the report of the auditor appointed to distribute the fund in the hands of the executor of the estate of Eliza M. Johnston, deceased.
    Eliza M. Johnston died oft the 30th of September 1865. Her husband and two sons survived her. She left a will, wherein, after certain specific legacies, she devised all of her estate, in trust, to her two sons, to be divided and paid to them share and share alike, when they respectively arrived at the age of twenty-one years.
    The will contained this further direction: “ Item : If either of my said sons should die within the period of twenty-one years from my decease, without issue then living, then, and in that event, I devise all I have devised to him, or to said trustee for his use, real and personal, to the survivor, his heirs and assigns. Item : If both of my said sons should die within the period of twenty-one years from my decease, without issue then living, then, and in that event, I devise all I have devised them, both real and personal, or to said trustee for them, to my husband, James It. Johnston, for life, so that he may take the interest and rents and profits for life, but not the principal, and the remainder and principal thereof, after his death, I devise to my brothers and sisters who may then be living, their heirs and assigns for ever.”
    E. L. Johnston, the eldest son, who was born on the 29th of May 1846, died unmarried and without issue, on the 8th of May 1870. W. R. Johnston, the other son, who was born on the 29th of November 1848, died on the 2d June 1871, leaving a widow. On Ae 25th of July 1871, this widow gave birth to a child, Eliza M. Johnston, which child died on the 25th of November 1875. James R. Johnston, the husband of testatrix, died in March 1874. The fund in question was claimed on the one hand by the administrator of Eliza M. Johnston, the younger, the child of W. R. Johnston, and on the other by the appellants, who were the brothers and sisters of the testatrix.
    The estate of the testatrix over which the controversy arose, came to her under the provisions of the will of her father, Rev. Erancis Laird, which was proved in 1854. Among the provisions of this will was the following:—
    “ Lastly, it is my will that after the death of my beloved wife, Mary, all my estate be appraised and sold as soon as it can be done with advantage ; and if any of my sons think proper to take the farm on which I now live, at the appraisement, he shall have the privilege of doing so on paying' the other heirs their respective shares; and it is my will that all the money arising from the sale of my real estate be equally divided among all my children, share and share alike.”
    The auditor to whom the fund was referred for distribution, in his construction of this provision of Mr. Laird’s will, said:—
    “ The intention of the testator is clear and unequivocal. He directs all his real estate to be appraised and sold, and that all the money arising from the sale of the same be equally divided among all his children. This, under the ruling in Morrow v. Brenizer, 2 Rawle 185, made all the estate personal at his decease. None of his children, neither his sons or daughters, had any interest in his estate as realty. The permission given any of his sons to take the homestead farm at the appraisement, meant plainly this: that any of the sons might, if he chose, become the purchaser of the homestead farm at the price fixed by the appraisers. Until the choice was made, the homestead farm, as to all the testator’s children, remained personal property ; and after the choice made by the four sons, it vested in them as real estate, as purchasers under the will of their father, and not as heirs to said real estate. In regard to the daughters, the homestead farm was as to them personal property all the time. It was such at the decease of the testator, and remained such after the sons had taken it at the appraisement, their interest being their respective shares; not of the land, but of its appraised value.”
    The auditor was therefore of the. opinion that the fund thus derived by testatrix from her father’s estate was personal property, and should as such be distributed. He then reported, inter alia, as follows: “ Erancis L. Johnston having died on the 8th of May 1870, within twenty-one years from his mother’s death, viz., four years, seven months and eight days after her decease, without issue, the estate did not vest in his lifetime. Did it vest in William R. Johnston? ' At the decease of William R. Johnston, on the 2d of June 1871, his wife, Elizabeth V., was enceinte, and on the 25th of July 1871 was delivered of a daughter, Eliza M. Johnston. The vesting of the fund depended on the fact that there was issue living at the death of William.”
    Reviewing the authorities upon the capacity of posthumous children to inherit, the auditor proceeded :—
    “ The conclusion is clear that W. R. Johnston, when he died, left issue living at the time of his death. The only remaining question is, to what time do the words £ then living’ refer — to the death of William R., who survived Francis L., or to the expiration of twenty-one years from the death of Eliza M. Johnston, the testatrix? The language of the will is as follows, viz : £ Item: If both my sons should die within the period of twenty-one years from my decease without issue then living, then, and in that event,’ &c. Eliza M. Johnston, the younger, was the only lineal descendant of Eliza M. Johnston, the testatrix. It is a fundamental principle of (he law that the heir can only be disinherited by clear and express language — by an implication so strong that an intention to the contrary cannot be supposed. The authorities on this point are so numerous and so well known that the auditor deems it superfluous to refer to them here. The first object of the testatrix was to make provision for her sons and their descendants; and, therefore, if a fair construction of the devising clause in the will, will give the estate to the issue, that construction must be adopted. Transfer the words without issue then living, so as to make the sentence read: If both my said sons should die without issue then living within the period of twenty-one years from my decease, and the conclusion is almost irresistible that the words £ then living ’ refer to the time of the death of William, and not to the twenty-one years from the death of the testatrix. And keeping in view the fact that Eliza M. Johnston, the younger (the issue of William R.), was the heir of the testatrix, the same conclusion must be arrived at without transferring any word.”
    The auditor therefore awarded the fund to the administrator of Eliza M. Johnston, the child of W. R. Johnston.
    Exceptions wrero filed to this report, which the court, Logan, P. .J., dismissed and confirmed the report, and from this decree this appeal was taken by the exceptants.

      H. P. Laird, for appellants.
    — The manifest intent of the testatrix was that if the line of her children or their descendants should become extinct, within the period of twenty-one years from her death, then all her estate should go to and be vested in her brothers and sisters then surviving ; and the auditor erred in not appropriating the money in the hands of the accountant to the surviving brothers and sisters of said decedent. Having issue vested no absolute estate in the children of the testatrix, and their offspring, upon the death of either could take no greater estate than the parent had at the time of his death, which would he a determinable-estate until the expiration of the twenty-one years. There is no possible implication of a devise to the issue within the twenty-one years, of a higher or mo.re certain character than that given to the sons of the testatrix, and on the decease of the last of them his issue had but a life-estate until the expiration of the twenty-one years, and having died before that period the estate passed under the residuary clause after the death of James R. Johnston, the husband of Mrs. Eliza Johnston.
    In Mr. Laird’s will there was no absolute direction to sell, because upon an appraisement it might be taken by any of the sons. The power to sell being conditional, the proceeds of the real estate were distributable as real estate: Stoner v. Zimmerman, 9 Harris 394; Nagle’s Appeal, 1 Id. 260; Henry v. McCloskey, 9 Watts 145; Biggert’s Estate, 8 Harris 17.
    No authority, either English or American, can be found-to sustain the position that a direction to appraise real estate works a conversion out and out, because non constat that the parties entitled to take at the appraisement will take it, and therefore the attempt at conversion may fail. This kind of direction does not proceed far enough to make a conversion.

      Joel S. Bigham and A. M. Fulton, for appellee.
    — The estate of Mr. Laird in the hands of Mrs. Johnston or her estate would be personalty, 1. Because under her father’s, will she could in no event receive anything but money, the option to take at appraisement being to the sons only, and her share, at most, but a charge on the land; and, 2. Because the appraisement and sale under proceedings in the Orphans’ Court divested her interest in the land, if she had any, and converted the estate into money. Money, wearing the impress of realty, can retain it through one descent only: Dyer v. Cornell, 4 Barr 359; Grider v. McClay, 11 S. & R. 224.
    The will does not provide for the failure of issue at the end of twenty-one years, but at the death of the survivor. This is apparent from the term “without issue then living.” The words, “then living,” must refer to the death of the survivor, otherwise the estate would have vested absolutely upon the birth of issue to the survivor, although he had outlived his issue and still have died within the twenty-one years. That is, that if the condition was simply that if the survivor should die within the time without issue a birth of issue would have filled the condition regardless of whether the issue survived his father or not, as in the case of the husband’s curtesy at common law
   Mr. Justice Mercur

delivered the opinion of the court, November 5th 1877.

Francis Laird, by his last will and testament, directed that after the death of his wife, all his estate should be appraised and sold, lie further directed that if any of his sons thought proper to take the farm at the appraisement he should have the privilege of doing so, on paying the other heirs their respective shares, and that all the money arising from the sale be equally divided among all his children, share and share alike. He died leaving sons and daughters. The rule is too well settled, to need the citation of authorities, that an express and explicit direction by the will, to sell the real estate of the testator and divide the proceeds, works a conversion of it into personalty on his death. In this case there was an express direction to sell. The fact that it further permitted one of his sons, at his option, to take it at the valuation to be made, did not change the effect of the direction to sell. Whether or not a son acquired it, it was nevertheless a sale, and the one taking it became a purchaser. Until that period of time it continued personalty.

The only other question we deem necessary to consider is whether William It. Johnson died “without issue then living.” Eliza M. Johnson devised the property in question, in trust for her two sons, Francis L. and William R., but provided in case either of them died within the period of twenty-one years from her decease, without issue then living, the whole should go to the survivor and his heirs. The will further provided, that in case both of her said sons should die within twenty-one years from her decease, without issue then living, then devise over to other persons. Francis died within less than five years after the death of his mother, without issue. William R. died afterwards, but within twrenty-one years after his mother’s death. He left a widow, then enoeints, who in less than two months thereafter gave birth to a child.

It is unnecessary to cite authorities to prove that a child in ventre sa mere, is in law bom for all purposes of inheritance. This is an acknowledged principle of English law. Under our statute it can inherit in like manner as if born in the lifetime of the intestate. The language “then living,” manifestly refers to the time of the death of the son. Hence, it follows that William R. died leaving “issue then living,” and the devise took full effect.

Decree affirmed.


text:
    Westmoreland Coal Co.’s Appeal.
    1. A tenant for life may, when not precluded by restraining «words, work open mines to exhaustion.
    2. The term “mine,” when applied to coal, is equivalent to a worked vein, and if it be worked a tenant for life may pursue it to the boundaries of the tract.
    3. Where there are two different tracts separated by an intervening tract owned by another, with a vein extending beneath them, the opening on one tract does not extend to the other, and the tenant for life mining under the unopened one is guilty of waste.
    October 25th 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Sharswood, J., absent.
    Error to the Court of Common- Pleas of Westmoreland county: Of October and November Term 1877, No. 275.
    This was a bill in equity filed by John Irwin and others against the Westmoreland Coal Company, to restrain it from committing waste and for an account. It alleged that the plaintiffs are the owners of the freehold (where the alleged waste is committed), after the life-estate of Mrs. Martha Hughes is determined, and that it is underlaid with the Pittsburgh vein or seam of bituminous- coal. That defendant has by drifts and adits opened the vein, and is mining and carrying away the coal, to the lasting injury and waste of the reversion; that defendant is a purchaser from Martha Hughes, the tenant for life, and has constructed no works on the lands which could come to the reversioners; that the coal is more valuable than the surface and defendant has the means to take the whole of it out in a short time. The prayers of the bill are for an injunction restraining defendant from committing waste and for an account for ' the coal mined. Defendant filed an answer, in which it is averred that the bill is defective for want of all of the parties in interest; that the plaintiffs are not the owners of the fee-simple of the reversion of the freehold in question, upon the death of Mrs. Martha Hughes ; that it descended to her upon the death of her son William Fullerton, who died unmarried and without issue in 1849; that there are underlying the tract in question two veins, the upper one of about two or two-a-nd-a-half feet in thickness, and the lower, the Pittsburgh vein; that during the lifetime of Humphrey Fullerton the ancestor of William Fullerton, who owned the land under the will of his father, coal was mined by him or his tenants from the upper vein ; that the lower vein was not mined, but defendant is, under Martha Fullerton, lessee of both veins underlying the tract, and that she had the right to work these veins without impeachment of waste, and that defendant has opened through its other lands to the Pittsburgh vein, underlying the tract in question and has taken out 250 tons of coal.
    That the title to the land was derived as follows : Humphrey Fullerton died seised of the land, January 29th 1835, and left a widow, Martha Fullerton, with two children, Hannah and William. Martha, the widow, September 6th 1836, married Watson Hughes, and had by this marriage two children, Anna Hughes and Harriet Hughes. Hannah and William Fullerton, children by the first marriage, both died in their minority, without issue, intestate.
    A master was appointed, and ho reported that the title to the land was as above stated; that on February 2d 1869, Watson Hughes and Martha, his wife, sold all their right and title to the coal underlying the tract to John George, Jr., Israel Painter and A. L. McFarland, who, on March 20th 1871, sold to the Westmoreland, Youghiogheny Coal Company, which, May 14th 1872, sold to the Westmoreland Coal Company. That there are two seams or veins, a lower and an upper one, underlying the tract. The upper one was opened and mined during the lifetime of Humphrey Fullerton, but the lower one was not opened till after his death and that of his children. The upper is a small and the lower a large one, aud the difference between them is sixty feet. That defendant has opened a drift through their other lands to the lower one, and had taken out coal to the amount of ninety-three one-hundredth acres, worth unmined $250 per acre. The master concluded that, as the lower vein -was opened by defendant, it was guilty of waste, and reported in favor of an injunction.. On coming in of this report the court granted the injunction and referred the case back to the master to state an account. He reported that defendants should pay plaintiffs $1804.52, and a decree was accordingly made. The granting of the injunction and the entry of this decree were assigned for error.

      H. D. Foster and H. C. & J. A. Marchand, for appellants.—
    There were two tracts owned by Fullerton, and between those two was a tract owned by appellant. The Pittsburgh vein on one had been opened during his lifetime. The appellant "worked this vein through the intervening tract owned by it, into the other. A tenant for life subject to waste may open new workings to pursue old veins which were opened when he came into the estate: Bainbridge on Mines and Mining, 50; Kier v. Peterson, 5 Wright 357; Willard v. Willard, 6 P. F. Smith 119; Neel v. Neel, 7 Harris 323. The tenant for life has the usufruct of the whole land in following out the use made by the donor. Under the will the widow had a right to take out the coal whether the mines had been opened or not: Clavering v. Clavering, 2 Peere Williams 389; Coates v. Cheever, 1 Cowan 477; Saunders’ Case, 5 Coke 12; Crouch v. Puryear, 1 Randolph 258; Finley v. Severn, 6 Munford 154; Ex’rs of Reed v. Reed, 1 C. E. Green Ch. Rep. 248; Billings v. Taylor, 10 Pick. 460; Irwin v. Covode, 12 Harris 162; Lynn’s Appeal, 7 Casey 44.

      Edgar Cowan, for appellees.
    — Waste is a destruction in houses, shade trees, or other corporeal hereditaments, to the disinherison of him that hath the remainder in reversion: Coke’s Litt. 63. Tenants for life are prohibited from destroying those things which are not included in the temporary profits of the land: 1 Cruise on Real Prop. 115; Givens v. McCalmont, 4 Watts 465; Jackson v. Brownson, 7 Johns. 227; 4 Kent. Com. 74. The mining of coal as claimed by appellant would destroy the inheritance. The mine was not opened during the lifetime of Fullerton, and appellant has no right to work it. Only opened mines can be worked: Astry v. Ballard, 2 Levinz 185; Whitfield v. Bewit, 2 Peere Williams 240; Stoughton v. Leigh, 1 Taunt. 402; Coates v. Cheever, 1 Cowan 480.
   Mr. Justice Mercur

delivered the opinion of the court, November 5th 1877.

The rule is well settled that it is not waste in a tenant for life, to work open mines. When not precluded by restraining words, such a tenant may work them to exhaustion. Kier v. Peterson, 5 Wright 357; Neel v. Neel, 7 Harris 323; Irwin v. Covode, 12 Id. 162.

It may be conceded that the term mine, when applied to coal is generally equivalent to a worked vein, for by working the vein, it becomes a mine; it therefore follows that if a mine be opened and worked, the tenant for life may pursue that vein to the boundaries of the tract on which it is found. Here the attempt is made to enlarge the rule, and to pursue it further. It is contended the right to mine is not limited or restricted to the particular tract or body of lands on which the mine had been opened ; but extends to a body of lands entirely separated and removed from the other; that if a vein of the same quality and character extends from the former land, to the latter, it constitutes one mine, although it has never been opened on the latter land. To this conclusion we cannot assent.

If the rule would apply in this case where the parcels of lands are one mile apart, there is no limit to the distance the tenant may pursue it, short of the termination of the vein. If she has the right to open the vein on the distant tract by pursuing it under ground, she would have a right to reach it by sinking a shaft on that tract. If she has a right to the coal, she is not restrained to the one manner of reaching it. Hence it would follow that the tract might be dotted over with openings, when none existed before. Neither tract is appendant nor appurtenant to the other. If she had a life estate in the distant tract only, the fallacy of claiming a right to remove the coal therefrom would be most manifest. The unanswerable reason would be that the mine on that tract had never been opened.

Decree affirmed.


author: Mr. Justice Woodward

text:
    Gilbert’s Appeal. Tarr’s Estate.
    1. While to make legacies a charge on land it must be found that such was the testator’s intention, still it is not necessary that its ascertainment ^should rest on direct expression. It is enough if the intention appears by natural and obvious implication from the provisions of the will.
    2. Testator gave certain land to one of his sons, at §33 per acre, the proceeds thereof to be divided into eight equal shares, and distributed equally among his sons and daughters. Held, that it was the intent of the testator that the land should bo charged with the payment of these legacies.
    3. Haekadorn’s Appeal, 1 Jones 86, and Wright’s Appeal, 2 Jones 256. distinguished. Hart v. Homiller, 8 Harris 248, followed.
    October 26th 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Sharswood, J., absent.
    Appeal from the Court of Common Pleas of Westmoreland county: Of October and November Term 1876, No. 114.
    This appeal was from the decree of the court confirming the report of the auditor awarding distribution of the proceeds of the sheriff’s sale of the property of James R. Tarr, Jr. The contest over the fund was between the creditors of James R. Tarr, Jr., and the legatees under the will of James R. Tarr, Sr., who contended that under the provisions of said will their legacies were a charge upon the land sold. The material portions of the will of James R. Tarr, Sr., which was dated December 13th 1864, were as follows :—
    “ * * * And as to my worldly effects, I order that all my just debts, funeral expenses, and charges of proving this my will, be in the first place fully paid and satisfied, and after the payment thereof, I give and bequeath my real estate (the several lots of land) in the village of Bethany, in said township, and the land adjoining said village on the east, together with the appurtenances, the brick house and buildings,. and all .the household furniture, and the cows, hogs and sheep, just as it now is, to my wife, Mary Tarr, to possess and use so long as she shall live ; and after her death, I order that the said Bethany property, real and personal, be sold, and the proceeds thereof be distributed among my children, giving my son Irwin W. Tarr twenty-five dollars, and to my daughter Ann Eliza Tarr one hundred dollars, and to my daughter Mary Ann Butter-more twenty-five dollars, and the residue bo equally distributed among Rose Husband, James R. Tarr, Catharine Tarr, Gasper Tarr, Sarah Gilbert, Matilda Bovard, Melker Tarr and Francis Tarr, * * * about seventy acres of land, and not to exceed seventy-five acres, including the buildings, I give and bequeath the same to my son James R. Tarr, at thirty-three dollars per acre, and the proceeds thereof to be divided into eight equal shares, including his own, and distributed equally among my sons and daughters, Rose Husband, Catharine Tarr, Gasper Tarr, Sarah Gilbert, Matilda Bovard, Melker Tarr and Francis Tarr, my son James R. Tarr to have possession of the 'said real estate immediately after my just debts are paid; and'in one year after he shall get possession of the same he shall commence paying annually the share of each, commencing with Rose Husband; and in one year following the time when Rose Husband’s share is due, he shall pay Catharine Tarr her share, and so on with the rest, paying each one his or her share in the order they are named above; and I order that the balance of my farm be divided into two parts, making the turnpike road the line between them, and all the land north of said road, excepting what I give to my son James, I give and bequeath to my daughter Rose Husband, at thirty dollars per acre, the proceeds to be divided into eight equal shares, including her own, and to be paid in equal annual payments, in the same manner, time and order that James R. Tarr is to pay his, and to the same ones of my sons and daughters, commencing with James R. Tarr, and also to have possession immediately after my debts are paid; and the remainder of my land on the south side of said road, I give and bequeath to my son Melker Tarr, at thirty dollars per acre, the proceeds to be equally distributed and paid to the rest of my children, in the same manner that they are to be paid by James R. Tarr and Rose Husband, and to the same ones. I order that Ann Tarr shall retain possession of the house in which she now lives, and the two acres of ground belonging thereto, for a home as long as she shall live, or as long as she shall stay on the same, and after her death or her removal therefrom, then the same to fall to my son Melker Tarr. I order that my executors of this my will, lease or rent my said farm on the turnpike road until my debts are fully paid; and the remainder of my estate I give and bequeath to James R. Tarr, Rose Husband, Catharine Tarr, Gasper Tarr, Sarah Gilbert, Matilda Bovard, Melker Tarr, Francis Tarr and Mary Ann Butter-more, to be equally divided among them.”
    The auditor, after a’review of the cases of Montgomery v. McElroy, 3 W. & S. 370; Brandt’s Appeal, 8 Watts 198; Wright’s Appeal, 2 Jones 257; Hackadorn’s Appeal, 1 Jones 86; was of the opinion that there was no express charge of these legacies upon the land devised to James R. Tarr, nor was he able by an examination of the whole will to find by any legal inference, that it was the intention of the testator that they should be a charge upon the land devised to his son. He therefore found that these legacies were not liens on the real estate of James R. Tarr, Jr., and consequently not entitled to share in this fund, and he awarded it to the contesting creditors.
    The court dismissed the exception to this report and confirmed the same.
    From this decree Mrs. Gilbert and Mrs. Bovard appealed.

      H. P. Laird, for appellants.
    — Whether or not a legacy is to be .charged upon land is to be collected from all parts of a will, and no form of words is necessary to produce that effect where the intention is manifest: English v. Harvey; 2 Rawle 305; Tole v. Hardy, 6 Cowen 333; Ripple v. Ripple, 1 Rawle 389.
    The testator intended to confer .the title upon the devisees only on condition that they paid the valuation fixed. The intent to charge is plain: Field’s Appeal, 12 Casey 11; Knecht’s Appeal, 21 P. F. Smith 343; Ruston v. Ruston, 2 Dall. 243; Tower’s Appropriation, 9 W. & S. 103; Swoope’s Appeal, 3 Casey 58; Baker’s Appeal, 9 P. F. Smith 313; Hart v. Homiller’s Ex’rs, 11 Harris 42.

      Henry D. Foster, for appellees,
    relied upon Ilackadorn’s Appeal, 1 Jones 86, and Wright’s Appeal, 2 Id. 256.
   Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

James R. Tan*, Sr., by his will dated the 13th day of December 1864, devised to his son, James R. Tarr, Jr., a tract of land described in the proceedings for the sheriff’s sale as containing seventy-four acres, more or less. The following are the terms of the gift: “I give and bequeath the same to my son, James R. Tarr, at thirty-three dollars per acre, and the proceeds thereof to be divided into eight equal shares, including his own, and distributed equally among my sons and daughters,” seven of whom, in addition to the devisee, • the testator then mentioned. Two other pieces of land were then given to his daughter, Rose Husband, and another son, Melker Tarr, both at the valuation of thirty dollars per acre. The executors Avero required to rent the real estate until the debts of the testator should be paid, and possession by the devisees Avas postponed until such payment should be made. Some lots of land in and adjoining the village of Bethany, and his household furniture, coavs, hogs and sheep, “just as it now is,” in the language of the will, were given to the widow, Mary Tarr, during her life, and at her death, a sale was ordered of all that property, the proceeds to be distributed amongst the children of the testator. IrAfin W. Tarr, a son, AA'as to receive twenty-five dollars; a daughter, Ann Eliza Tarr, one hundred dollars ; and another daughter, Mary Ann Buttermore, tAventy-five dollars, The residue was to be divdded amongst his eight other children. The concluding clause of the Avill gave “ the remainder” of the testator’s estate to nine of his children, eight of them being those designated to receive the proceeds of the real estate, and the ninth being Mrs. Mary Ann Buttermore.

It is apparent that the devises and bequests preceding the concluding gift of “ the remainder,” had embraced the entire estate of Mr. Tarr. Directions for sale and distribution had been given . of the real and personal property which Mrs. Tarr was to take for life. That there was no other personal fund is clear from the provision for the payment of debts from rents afterwards to accrue. The residuary clause could have application, therefore, to nothing except the lands devised to James R. and Melker Tarr and Mrs. Husband, in the event that either of them should refuse to accept the devise in his or her favor at the valuation fixed. It is true that Mrs. Buttermore was brought in to share in the property in such an event, but it is obvious, nevertheless, that the clause must have been designed “to have the operation attributed to it, or it could have no operation at all.

It was the plain purpose of this will to furnish to the legatees for the amount of the valuation of the land devised to James R. Tarr, Jr., the security of the land itself. He was to take it at “ thirty-three dollars per acre,” and the “proceeds” were to be divided and distributed. A specified sum of money was not to be paid to each legatee — each was to have a share of the purchase-money, which was to be “the proceeds” of the land. While the order, amounts and periods of payments after the devisee should obtain possession were defined, yet the language of the will makes this a different case from those where a gift of land to a child has been accompanied or followed by a direction that he should pay certain specified and enumerated legacies. Such a devise, without more, if accepted by the devisee, would make him personally liable, but a charge upon the land would not be created. But where, from the entire body of a will, an intention is manifested on the part of the testator to make the property the security of the legatees, it will become subject to the charge.

While, in order to make legacies a charge on land, it must be found that- such was the testator’s intention, still it is not necessary that its ascertainment should rest on direct expression. It is enough if the intention appears by natural and obvious implication from the provisions of the'will. Ho form of words is necessary to produce the effect, and where the intent is manifest, courts are bound to carry it into execution: Gibson, C. J., in Ripple v. Ripple, 1 Rawle 386. There a testator had devised three-fourths of a tract of land to his son, followed by this direction: “My son Philip is to keep and provide for my beloved wife, and my eldest daughters, Catharine and Elizabeth, during their natural lives.” It was held, that although land devised is not expressly charged with the maintenance of infirm children of the testator, yet if such an intention can be clearly collected from all the parts of the will, considered in reference to the testator’s circumstances, the charge will attach upon the land, and follow it into the hands of subsequent purchasers. In Hoover v. Hoover, 5 Barr 351, a devise by John Hoover to his son David, “ yielding and paying out of the same $7250, in instalments of $700,” was held to charge the land; and Bell, J., said, that “in a will, no precise form of words is necessary to create a condition. Any expression denoting such an intention will have that effect.” Thus a devise “ to A., he paying,” or “he to pay 500Z. within one month after my decease,” would be a condition for breach of which the heir might enter: 2 Powell on Devises 251. Where, as here, the devisee was to take the land “ at thirty-three dollars per acre,” and the legacies were to consist of “the proceeds” derivable out of it, for the distribution of which provision was made, the condition that the land should be made subject to the amount of the valuation would seem to be a natural and necessary implication.

At the argument, the counsel for the appellees relied on the authority of Haclcadorn’s Appeal, 1 Jones 86, and Wright’s Appeal, 2 Id. 256. In the first of these cases, the testator, after devising different parcels of land to his sons, directed the selection of appraisers, the valuation of the lands, and payments out of the valuation to his daughters in order to equalize the shares of his sons and daughters, with the qualification that the share of each son should be twenty-five dollars more than that of either of the daughters. The will contained this exceptional provision: “ The divide that my daughters may have received out of the proceeds of my personal estate to be counted to them out of their share.” The payments, besides, •were to be made by the sons whose lots should be most valuable. Of course, no land could be charged, for no land could be designated. The properties, the devisees of which were to become liable, could only be ascertained by the appraisement to be made after the testator’s death. In Wright’s Appeal, all that is shown in regard to the will was the statement by the reporter that Carson had devised land to his son Thomas ; that if he chose to accept, he was to pay $1700 to different persons; and that he accepted. In a contest between his alienee and one of the legatees, it was held that the land was not charged. In the later case of Hart v. Homiller, 8 Harris 248, after giving his son Samuel the use of certain real estate during the life or widowhood of his wife, at a yearly rent of $50, to be paid to the wife, the testator directed that upon her death or marriage, a division of the property should be made, and thereupon devised to Samuel and his heirs and assigns the store he then occupied, and the lot of ground back as far as the slaughter-house, at a valuation to be made by six respectable bricklayers and carpenters. This valuation was included in the residue of the estate, which was given to the testator’s six children, of whom Samuel was one. The interest of Samuel was sold at sheriff’s sale, and afterwards sold to Hart, under a judgment against the first purchaser. It was held that the terms of the will made the amount of the valuation a charge on the land, and that the purchaser at the sheriff’s sale held it subject to the charge. Hackadorn’s Appeal and Wright’s Appeal are precedents to govern cases presenting precisely indentical facts, but for the settlement of this litigation Hart v. Homiller, furnishes a better and safer rule.

The decree is reversed at the costs of the appellees, and it is now ordered and decreed that the fund remaining in court be applied in payment of the shares of Sarah Gilbert and Matilda Bovard, in the valuation of the land of James R. Tarr, Jr., as established by the devise to him in James R. Tarr, Sr.’s will.


author: Mr. Justice Paxson

text:
    Greenawalt et al. versus McEnelley et al.

    1. Where evidence of cohabitation and reputation is offered to create a presumption of marriage, and the evidence of reputation is divided, the facts of such cohabitation and reputation are still proper to be taken into considera-
    tion by the jury, with the other concomitant circumstances, and if they are satisfied that the marriage is fairly established, under all the evidence in the cause, they are bound to conclude the fact of marriage.
    2. The admissions of parties of the fact of their marriage are in the- nature of direct proof, and are competent evidence of the fact.
    3. The admissions of a party of the fact of his marriage are against his ' interest, and when made under circumstances of deliberation are entitled to great weight. Denials, on the contrary, being declarations in his own interest, are entitled to little weight in opposition thereto.
    4. A wife is a competent witness to prove a marriage contract between herself and her deceased husband, in a contest where the legality of the marriage is in question.
    October 26th 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Sharswood, J., absent.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1876, No. 180.
    Ejectment by A. Greenawalt and others against Joseph Mc-Enelley and Minnie May Guffey, by her guardian, M. M. Hick, for a tract of eighty-four acres of land. The plaintiffs claimed the land as the collateral heirs of Benjamin ■ Guffey, deceased, while the defendant, Minnie May Guffey, through her guardian, claimed as the child of said decedent.
    The plaintiffs alleged that said Minnie Guffey was not a legitimate child of said Benjamin Guffey, and that her mother, Margaret'Oolors, now Gilson, was not married to him. In proof of the marriage there was the' direct and positive testimony of Mrs. Gilson that she was married to said Benjamin Guffey; the admissions of their marriage by the latter on a number of occasions to different parties; the fact that he treated her as his wife and introduced her and called her such in the presence of others, together with ■ abundant evidence of reputation and cohabitation. Mrs. Gilson testified that the marriage took place at the office of an alderman in Pittsburgh, and, it seems, at other times had made statements, which were testified to by other witnesses, at variance with this testimony. The evidence of the plaintiff's in the main went to show that the admissions of Benjamin Guffey in his lifetime indicated that no relation of marriage existed between him and Margaret Colors, and further that her statements in relation to the alleged marriage were inconsistent and unreliable.
    At the trial before Logan, P. J., the defendants offered to prove by Mrs. Gilson that she was married to Benjamin Guffey in 1868, and that Minnie was born in 1864.
    Plaintiffs objected on the" ground that the witness was incompetent to prove a marriage contract with her alleged husband, after his death, if he were not married to witness, whose child is claiming his estate, and because the very question in the case was this alleged marriage, and for the purposes of the trial she appears as a stranger seeking to give title to her child to Guffey’s estate by proving a contract of marriage, when his lips are sealed in death.
    The court overruled the objection, and admitted the evidence.
    The plaintiffs presented, among others, the following points, to which are appended the answers of the court:—
    4. If the jury find that the declarations and admissions of Benjamin Guffey as to the alleged marriage are conflicting, sometimes admitting that he was married, and at other times denying it, until near the close of his life, then the law would raise no presumption of marriage from such conflicting statements.
    Ans. “We cannot say that the admissions standing alone, disconnected from the other testimony in the cause, would raise a presumption of marriage in law, and though the point is affirmed, yet with other facts in the cause, the jury might be justified in finding therefrom a presumption in fact of marriage. Admissions of Benjamin Guffey of the fact of his marriage, would be against his interest, and if established, to have been repeatedly made under circumstances evincive of deliberation, and not by mere casual and unconsidered expression, would be of groat weight. Denial by him of the marriage would, however, be declarations in his own interest, and are entitled to but little weight in opposition to admissions against his interest.”
    5. Mrs. Gilson, formerly Margaret Colors, having testified to a time and place of her marriage, if the jury find from the evidence that she fixed a different time and place — at one time at Kelley’s, in Westmoreland county, and at another time, after night, in Allegheny city, and that she did not call any alderman in the city of Pittsburgh to sustain her allegation, and produced no certificate of her marriage in Pittsburgh, and made no inquiry for the alderman — from such a state of facts the legal presumption would be that the evidence to sustain the allegation of a marriage in Pittsburgh never existed.
    Ans. “ That point we have refused, and answer it in the negative. The facts raised in it are proper subject-matter for vour eonsideration in passing upon the credit you, shall give to the woman. Her alleged contradictory statements ai'e all proper subjects for your consideration in determining the fact of the marriage.”
    The court in their general charge, inter alia, said:
    [“ Marriage may be established as all other contracts of a kindred kind, either by direct proof by some one who was a witness of the fact of the marriage, or execution of the contract, or it may be established by the admission of the parties made against their interest which is in the nature of direct proof, hr it may be inferred from facts and circumstances which raise the presumption of the existence of the marriage relation. * * *]
    “ Coming then to the question of the admissions of the parties, they may be looked upon either as in corroboration or negation of the allegation made by Mrs. Grilson as to the fact of the marriage. It is testified by a number of witnesses that Benjamin Gruffey at various times made admissions to different witnesses, testifying to the fact that he was married to this lady; and there are also in evidence admissions of a contrary character, or rather denials by him, of tk¿ fact that he was married. [The admissions of Benjamin Gruffey of the fact of his marriage would be against his interest, and if once established to have been repeatedly made, under circumstances evincing their truth, and not mere casual or jocular expressions, they would be of great weight. Denials, however, by him, of his marriage are declarations in his own favor, and are entitled to little weight to contradict his admissions in opposition to his interest. Therefore, under these suggestions, you will look at the question of his admissions, which, as we have stated, are against his interest, and are entitled to great weight, and also take into consideration his denials of the fact of his marriage, which, as we have stated, are declarations in his own favor, and are entitled to little weight in opposition to admissions against his interest.]
    “ * * * Coming then to the question of the presumption of the marriage, which, as we have said, is inferable from circumstances, as cohabitation and reputation, it may be said, as the undoubted rule of the law, that unless cohabitation and reputation go together they do not, by themselves raise the presumption of marriage. But where there is a divided reputation, a divided reputation and cohabitation do not, by themselves, constitute presumptive evidence of the fact of marriage. In this case it is conceded that the reputation • of the fact as to whether they were married or not, was divided in its character, and, therefore, there could be no presumption of the fact of the marriage raised from cohabitation and reputation; cohabitation and reputation in so far as they are developed in the cause, strengthening the one way or weakening the other, are proper circumstances to be looked at, either in affirmance of the truth of the assertions of Mrs. Grilson, and the admissions of Benjamin Gruffey, or in opposition to them, as they may tend to evince a want of truth in her statement. [Whilst cohabitation and reputation are not by themselves, under the evidence in this cause, presumptive evidence of marriage, yet they are proper facts to be taken into consideration in determining the cause, as the courts say, with other concomitant circumstances, and if the jury are satisfied that the marriage is fairly established under all the evidence in the cause, the jury would be bound to conclude the fact of the marriage, or at least find the fact of the presumption of marriage.] You will, therefore, look at those circumstances in this light as illustrating the main fact in the cause.”
    Verdict for defendants, and plaintiffs took this writ, their assignments of error being 1 and 2, the foregoing answers to plaintiffs’ points, and 3, 6 and 7, the respective portions of the charge in brackets, as noted above.

      H. P. Laird and H. D. Foster, for plaintiffs in error.
    — It is a novel proposition, that the admission of marriage by the husband, being against his interest, is of great weight; and that his denial of it, being in favor of his own interest, is entitled to little weight. Where declarations on the question of reputation and pedigree are divided, no conclusion of marriage can be drawn therefrom.
    There being no evidence legally sufficient of a marriage at any time proven by reputation, cohabitation, and divided admissions, and a marriage having been alleged to have occurred at a particular time and place, the judge should have told the jury that the whole case rested on the testimony of Margaret Gilson, and that in examining that testimony they should also take into consideration the alleged contradictory statements she had made.
    Mrs. Gilson’s testimony ought to have been excluded, both on the ground of the policy of the law, and that she was directly interested in the result of the action.

      Edgar Cowan and H. C. & J. A. Marchand, for defendants in error.
   Mr. Justice Paxson

delivered the opinion of the court, November 19th 1877.

We need not discuss the question whether Margaret Gilson would have been a competent witness prior to the Act of April 15th 1809, Pamph. L. 30. That act clearly made her competent, this being a contest between parties claiming the estate of Benjamin Guffey, her deceased husband, by devolution. She was not called to testify against her husband, nor to any fact the knowledge of which was acquired by reason of her confidential relations with him, but as to matters within her own knowledge.

There was abundant evidence to prove the marriage. There was her own direct and positive testimony ; the admission of their marriage by her husband, which is in the nature of direct proof; and there was evidence of reputation and cohabitation. The court instructed the jury that in order to establish a presumption of marriage, there must be evidence of cohabitation as well as reputation. This is undoubtedly the rule. See Richard v. Brehm, 23 P. F. Smith 144, where this subject is discussed and authorities cited by Mr. Justice Mercur. In this connection the court further charged: “ In this case it is conceded that the reputation of the fact as to whether they were married or not was divided in its character, and therefore there could be no presumption of the fact of the marriage raised from cohabitation and reputation. Cohabitation and reputation, in so far as they are developed in the cause, strengthening the one way or weakening the other, are proper circumstances to be looked at, either in affirmance of the truth of the assertions of Mrs. Gilson and the admissions of Benjamin Guffey, or in opposition to them, as they may tend to evince a want of truth in her statement. Whilst cohabitation and reputation are not by themselves, under the evidence in this cause, presumptive evidence of marriage, yet they are proper facts to be taken into consideration in determining the cause, as the courts say, with other concomitant circumstances; and if the jury are satisfied that the marriage is fairly established under all the evidence in the cause, they would be bound to conclude the fact of the marriage.” This was entirely correct; and taking the charge as a whole, it was a sound, clear and adequate presentation of the law of the case. The plaintiffs have selected some isolated passages from the charge, and assigned them as error,' together with the answers of the court to the plaintiffs’ fourth and fifth points. In the answer to the fourth point (first assignment), the court instructed the jury that the admission of Benjamin Guffey of. the fact of his marriage would be against his interest, and if established to have been repeatedly made under circumstances evincive of deliberation, and not by mere casual and unconsidered expressions, would be of great weight. Denial by him of the marriage would, however, be declarations in his own interest, and are entitled to but little weight in opposition to admissions against his interest.” The portion of this ruling that was especially criticized was the statement that the admission by Benjamin Guffey of the - fact of his marriage was against his interest. If we concede that proposition the remainder of the paragraph is free from objection. It is not necessary to discuss the abstract question whether admissions of marriage are against interest. The learned judge was not dealing with abstractions: he was applying the law to the facts of the case. As thus applied, his ruling was correct. The admissions were clearly against the interest of Mr. Guffey. They imposed upon him the burden of' .the support and maintenance of the woman and her child. This was a direct pecuniary charge. We throw out of the case all that was said upon the argument as to the blessings of the marriage state, and with it the scriptural citations tending to show that it “ is not good for man to be alone.” The interest referred to by the learned judge was a pecuniary interest, not a matter of sentiment. Taken in this sense, and applied to the facts of the case we see no error in the instruction.

We are unable to see any error in that portion of the charge embraced in the third assignment. The admissions by the parties of their marriage is in the nature of direct proof, and is certainly competent evidence of the fact. When such admission is made under circumstances that show it to be against interest, it is evidence against the person making it with the same force and effect as any other admission against interest. This has been held to be so in criminal cases. On the trial of an indictment for polygamy or adultery the prisoner’s deliberate admission of his marriage to the alleged wife is admissible as sufficient evidence of the marriage: 2 Greenl. on Ev., § 461, and authorities cited in note. So in an action for criminal conversation: Forney v. Hallacher, 8 S & R. 159.

The remaining assignments do not require discussion. They disclose no substantial error, and the judgment therefore must be affirmed.


author: Per Curiam.

text:
    Indiana County versus The Agricultural Society of Indiana County.
    1. The prohibitions of the constitution of 1874 are prospective only, and do not repeal local statutes in force at the time of its adoption, and whoso provisions are inconsistent therewith.
    2. The Act of March 29th 1851 enables county agricultural societies to receive from_ the treasurer of the county a certain bounty. Art. 9, sect. 7, of the constitution of 1874, prohibits the General Assembly authorizing any county to appropriate money for or loan its credit to any association, corporation or individual. Held, that the prohibition of the constitution was wholly prospective, and did not repeal the Act of 1851.
    3. Lehigh Iron Co. v. Lower Macungie Township, 31 P. F. Smith 482, followed.
    October 26th 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Sharswood, J., absent.
    Error to the Court of Common Pleas of Indiana county: Of October and November Term 1877, No. 210.
    Debt by the Indiana County Agricultural Society against the County of Indiana.
    The 4th section of the Act of March 29th 1851, Pamph. L. 290, entitled “An Act to incorporate the Pennsylvania Agricultural Society,” provides, “ that when any number of individuals shall organize themselves into an agricultural or horticultural society, or any agricultural or horticultural society, now organized within any of the counties of this Commonwealth, shall have adopted a constitution and by-laws for their government, elected their officers, and raised annually, by the voluntary contribution of its members any sum of money, which shall have been actually paid into its treasury for the purpose of being disbursed for the promotion of agricultural knowledge and improvement, and that fact be attested by the affidavits of their president and treasurer filed with the commissioners of the county, the said county society shall be entitled to receive annually, a like sum from the treasurer of their said county: Provided, that said annual payment out of the county funds shall not exceed one hundred dollars; Provided, further, that but one such society in any county shall be entitled to reeeiye such appropriation in any one year, under this act.”
    The Indiana County Agricultural Society was organized in 1855 and incorporated in 1857.
    The society purchased grounds, erected buildings, held annual fairs, paid premiums and otherwise followed out the purposes for •which it was founded. • The $100 bounty provided for in the 4th section of the foregoing act was regularly paid to the society up to 1869, from which time the county, being largely in debt for public buildings then in process of erection, no further demand was made for the same until 1874, when the affidavits required by the act were filed and demand made for $600, being the bounty for the years from 1869 to 1874 inclusive, which demand being refused, this suit was brought. ' ^
    At the trial, the defendant submitted the following points :—
    1. That since the adoption of the present constitution, sect. 7, art. 9, no county can, by virtue of any legislative authority, loan its credit to or appropriate money for any corporation, this being inconsistent with the provisions of the fourth section of the Act of March 29th 1851, which Act of Assembly gives no authority to the defendant to make the payment from the county treasury claimed by the plaintiff, and the defendant cannot recover.
    2. That the provisions of the fourth section of the Act of March 29th 1851, being inconsistent with sect. 7, art. 9, of the present constitution, the said fourth section is repealed, and the plaintiff cannot recover.
    Sect. 7, art. 9, of the constitution, is in these words: “ The General Assembly shall not authorize any county, city, borough, township or incorporated district, to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, association, institution or individual.”
    In answer to the above points the court, Blair, P. J., said:—
    These points are refused, pro forma, and we reserve the following question, viz:

      “ Whether sect. 7, art. 9, of the present constitution, repeals the fourth section of the Act of Assembly of 29th of March 1851, and prevents any recovery at all. If the court should be of opinion that it does, then judgment is to be entered for defendant non obstante veredicto.

    The verdict was for the plaintiff, and after argument upon the reserved question the court entered j udgment on the verdict, being of opinion that the act was not repealed by the seventh section of the constitution, and said: ‘ ‘ The thing prohibited by the constitution is not the payment of money, by a county, to an agricultural society, or to any other association, corporation, institution, or individual, under and by virtue of an act passed long ago, authorizing and requiring the county to make such payment. No prohibition is placed, by the section in question, upon appropriations under existing laws. It relates to future legislation, authorizing and sanctioning new expenditures and loans of credit, but leaves the past legislation to stand until it is repealed. The language is in the future tense, and forbids such legislation in the time to come.”
    The action of the court in entering this judgment was assigned for error by the defendant, who took this writ.

      Harry White, for plaintiff iff error.
    — The purpose of the constitutional provision was to prevent municipal authorities from making any appropriation of the public funds to corporations, associations, institutions or individuals. The Act of 1851 and the constitutional provision cannot stand together, and the latter must operate as a repeal of the former. Every affirmative statute is a repeal by implication of a precedent affirmatiA'o one, so far as it is contrary thereto: Dwarris on Statutes 678.
    The language of the seventh section is not only prospective. It withdraws the power from any corporation to appropriate money to any corporation. The money cannot leave the county treasury without the action of the commissioners making a.n appropriation by issuing a warrant therefor. If they have no authority to do this, their act is void.
    The constitution repeals all statutes that are antagonistic to its provisions.

      Geo. W. Hood and Silas M. Clark, for defendant in error.
    — ■ The words of the constitutional amendment are prospective only and intended to restrain future grants of power by the legislature: Wilkesbarre City Hospital v. Luzerne County, 3 Norris 55. Unless the constitution in plain and unequivocal terms repeals an Act of Assembly it will operate prospectively: Taylor v. Mitchell, 7 P. F. Smith 209; Cooley’s Constitutional Limitations 62; Speer v. School Directors, 14 Wright 150.
    Local statutes in force when the new constitution was adopted remain in force until repealed by other legislation: Lehigh Iron Co. v. Supervisors of Lower Macungie Township, 31 P. F. Smith 482; City of Pittsburgh v. Roup, 1 W. N. C. 254; Hayes v. Commonwealth, 1 Norris 518; Bright v. Oak Dale Coal and Mining Co., 31 Leg. Int. 141; Washington University v. Rouse, 8 Wall. 442.
   The judgment of the Supreme Court was entered November 5th 1877,

Per Curiam.

— The right of the agricultural society to recover rests on the fourth section of the Act of 29th March 1851, Pamph. L. 290. The plaintiff in error claims the act is made void by section 7, article 9, of the constitution of 1874. That section declares, “ the General Assembly shall not authorize any county, city, borough, township or incorporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to any corporation, association, institution or individual.”

This section deals only with legislative power. That power is thereby limited and restricted. It declares what it “shall not” do. It annulled nothing that the legislature had done. It forbid such legislation thereafter. It struck down no law. Its prohibitions were wholly prospective. This conclusion is fully sustained by Lehigh Iron Co. v. Lower Macungie Township, 31 P. F. Smith 482. It is there said the convention did not intend to repeal special tax laws, but to leave to legislative wisdom and conscience the time and manner of making them conform to the spirit of the constitution. No legislative action has impaired the Act of 1851. It, therefore, remains in full force.

All the facts necessary to give the defendant in error the benefit of the act were found by the jury, and as we discover no error in the rulings of the court Judgment affirmed.


text:
    Myers et al., Administrators, versus Scully.
    S. endorsed a note for $10,000 for B., and as collateral security for said endorsement B. transferred to S. certain shares of stock in the Homestead Bank and Insurance Company. At the time of his death B. had paid assessments on said stock, amounting to seventy-five per cent, of its par value, leaving twenty-five per cent, unpaid. B. also had an insurance in said company for $10,000, and upon his death the company deducted therefrom the balance due it. The note was lifted by S., and upon the sale of the stock the administrators of B. claimed one-fourth of the proceeds, on the ground that that proportion of the par value of the stock had been paid for by the money of the estate of B.; but the court awarded the whole fund to S. Held, that this distribution was erroneous, and that the one-fourth belonged to the. legal representatives of B., to be distributed as the law directs.

      October 29th 1877.
    Before Agnew, C. J., Mercür, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 244. In Equity.
    This appeal was from the decree of the court distributing the proceeds of the sale of certain stock which belonged to John It. Bingler, deceased.
    The proceeding was by bill in equity filed by John D. Scully against E. II. Myers and Frank Kohne, administrators of said John R. Bingler, deceased. The cause was heard upon bill and answer, and after hearing the court made an order for the sale of the stock, and three-fourths of the net proceeds, $3047.25, were paid to Scully, the remaining one-fourth'being paid into court to'await the result of this controversy. The court afterwards awarded this remaining one-fourth to Scully, and from this decree this appeal was taken. The other material facts are fully stated in the opinion of this court.

      A. M. Brown and Archie Cummins, for appellants.
    — The status of all claims against the estate of an intestate or testator is fixed by his death. The rights of his creditors then become fixed; and no act of the executor or administrator can alter them: Scott v. Ramsey, 1 Binn. 221; Deichman’s Appeal, 2 Whart. 395; Bosler’s Admr’s v. Exchange Bank, 4 Barr 32.
    And if the status of claims against the estate of the deceased is fixed by his death, the status of a pledge made by him in his lifetime is also fixed by his death. In whatsoever state the pledge may be when the death of the pledgor overtakes it, in that'1 state it must remain, so far as the pledgor or his estate is concerned. The estate belongs to all the creditors. The assets are for payment and distribution among them. If loaned or pledged by the administrator, they can be recovered back again: Abbott v. Reeves, 13 Wright 494.
    The duties of executors and administrators are strictly those of settlement: Fluck et al. v. Hager, 1 P. F. Smith 459; Wilhelm v. Folmer, 6 Barr 296; Bonsell’s Appeal, 1 Rawle 274; Kaufman v. Crawford, 9 W. & S. 134. If Mr. Scully was affected at all by this transaction of the administrators with the Homestead Bank, it was simply that he became chargeable as trustee of the fund in dispute: Hill on Trustees 164, 3d Am. ed. 246; Abbott v. Reeves, Buck & Co., supra. In this matter the Homestead Bank is itself a trustee: Bayard v. Farmers’ and Mechanics’ Bank, 2 P. F. Smith 232; and the transaction of Bingler’s administrators with it could not deprive the creditors of their rights.

      M. W. Acheson, for appellee.
    — In the settlement between the appellants and the company of the dealings and transactions between their intestate and the company the sum of $5250 in the hands of the company and payable upon the policy of insurance was appropriated to the past due assessments which Bingler owed upon his stock. That appropriation was by and with the consent of the appellants and was presumably correct. The appellee does not admit that under the contracts between Bingler and the company the latter had no right to insist upon the appropriation aforesaid. The contrary is not alleged in the answer, and it would seem from the contract relations of the parties, that the insurance money in the hands of the company would be applicable to past due stock assessments owed by the assured to the company upon his stock. But if the company had not such light of appropriation then the appellants merely did voluntarily what their testator was hound to do in his lifetime, and what they, as his personal representatives, were bound to do. Upon this record it cannot be successfully maintained that there is any evidence that the appellants as executors of John R. Bingler made any misappropriation of the assets of the estate. It does not appear that the estate of John R. Bingler is insolvent, nor does it appear that the estate owes one dollar besides the debt due the appellee.
   Mr. Justice Gordon

delivered the opinion of the court, January 7th 1878.

This case comes to us from the decree of the court below, on distribution after sale, on petition of John D. Scully, of some two hundred and ten shares of the Homestead Bank and Life Insurance Company, which belonged to John R. Bingler in his lifetime. It seems that, about the 80th of May 1876, the appellee endorsed, for Bingler’s accommodation, a note of $10,000, which was discounted at the Diamond Savings Bank. As collateral security for this endorsement, Bingler transferred to Scully the stock shares above stated. During the life of the decedent the note was renewed, from time to time, and was paid down to $8769.51, which balance was paid by Scully. Also, during this time, Bingler had paid assessments upon the said stock amounting to seventy-five per cent, of its par value, leaving twenty-five per cent, unpaid and due and owing the Homestead Bank and Life Insurance Company. Bingler, before his decease, had, from this same company, taken a risk upon his life of $10,000, and on his death, from the insurance money thus falling due to his estate, the sum of $5250 was retained by the said company as the balance due it on the shares of stock above stated. The proceeds of this stock, sold by order of court, were not sufficient to cover .the amount of Scully’s claim. How, this is the contention between the parties to this suit: the administrators of John R. Bingler claim twenty-five per cent, of the money arising from the aforesaid sale, since that proportion of the par value of the stock was paid for by tbe money of the estate, and which, but for the superior equities of the bank, would have come, into their hands. Scully, on the other hand, claims the whole amount of said proceeds, because, as he alleges, the whole amount of said stock having been pledged to him, he is entitled to hold the same, not merely as it was when assigned to him, or as it was at the time of Bingler’s death, but as improved by the funds of the estate after that event. It is for us to determine as to the soundness of this claim. What was assigned to Scully ? Certainly only seventy-five per cent, of the par value of the stock; for that was all Bingler had to assign. Had the money, therefore, due to the administrators, not been appropriated to the payment of the remaining twenty-five per cent., the sale would have realized but three-fourths of what is now in court, and the appellee would have had no more than the appellants contend he should have. Now, had there been no insurance on Bingler’s life, or had the policy been procured from some other company, the above would have been exactly the condition of affairs; for it would hardly be contended that the representatives of the estate would have been obliged to pay the amount due upon the stock in order to improve the collaterals in Scully’s hands. If, however, he had no claim on the estate for a preference of this kind, over other creditors, why shall he have such a claim as matters now stand ? As we have said, the money of the estate was appropriated to the balance due on the stock subscriptions only in consequence of the company’s equity so to appropriate it; it was so done by force of that equity and not by the will of the administrators. It was, therefore, but a conversion of the funds of the estate from cash to stock, but they remained, in this form, not the less assets of the estate. Admitting, however, that this appropriation was made by the company with the assent of the administrators, and that it could not otherwise have been done, it does not follow that it was so done for Scully’s benefit, for the property thus acquired could only be disposed of according to the legal rules governing the distribution of the estates of decedents. Even had the administrators so intended, they could not thus give the appellee a preference over other creditors. It is said, however, that it no where appears that there are other creditors to be affected, there being no allegation that the estate is insolvent. But it is alleged, and not denied, that the administrators had not the means to redeem the pledged stock; in other words, to pay the note Scully was obliged to lift. It follows, necessarily, if the estate is not able to pay its debts it must be insolvent; aside from this, if it bo not so, then is the appellee’s contest profitless, for his claim will be paid in full, and his collaterals are of no account.

But it has been urged, that there can be but little if any doubt, that the agreement between Bingler and Scully was, that the stock should be paid in full by Bingler, in order that his endorser might have the security unencumbered, and that the administrators, by per" mitting the payment thereof, did but carry out such agreement-Be this as it may, there was certainly the prior agreement that Bingler should pay the note for which Scully became liable; but what of that ? There is such a contract with every creditor and Scully had no superior equity, which entitled him to a preference over others, or w'hich gave him a right to seize the assets of the estate and apply them to his own use. These belong to the legal representatives of the estate, and it is their right and duty to possess themselves of and distribute them as the law directs.

The decree of the Court of Common Pleas, No. 1, of Allegheny county is reversed, at the costs of the appellee, and it is ordered that the money now in court, being the one-fourth part of the net proceeds of the sale of certain shares of stock of the Homestead Bank and Insurance Co., formerly belonging to John R. Bingler, deceased, be paid into the hands of the administrators of the estate of the said John R. Bingler, deceased.


author: Chief Justice Agnew

text:
    McLaughlin versus Ihmsen.
    1. An unrecorded mortgage is valid as against the heirs of the mortgagor.
    2. A scire facias will lie on an unrecorded mortgage.
    3. Tryon v. Munson, 27 P. F. Smith 250, followed.
    October 29th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 217.

      Scire facias sur mortgage issued by Frederick L. Ihmsen, surviving executor of Christian Ihmsen, deceased, against Elizabeth McLaughlin, testamentary guardian of the minor children of Charles T. Ihmsen, deceased.
    On June 22d 1869, Charles T., William and Christian Ihmsen, executed and delivered to Eleanor Ihmsen and Frederick L. Ihmsen, executors of the estate of their father, Christian Ihmsen, deceased, a mortgage upon certain real estate, to secure a bond for the payment of $15,000, on or before June 22d 1874.
    This mortgage was not recorded until the 6th day of June 1875. In the meantime, on the 29th day of May 1870, Charles T. Ihmsen died. No proceedings were had on the mortgage until the 24th day of February 1876, when a sci. fa. was issued thereon, to the 1st Monday of March 1876. In the meantime William Ihmsen had also died.
    The writ therefore issued against Christian Ihmsen, the survivor of the three mortgagors, and also against the executors, widows and heirs of William and Charles T. Ihmsen.
    Christian Ihmsen and the executors, widows and heirs of William Ihmsen, made no defence. Mrs. Elizabeth McLaughlin, the testamentary guardian of the minor heirs of Charles T. Ihmsen, appeared and made defence, on the ground that as the mortgage had not been recorded within five years after the death of said Charles T. Ihmsen, the heirs took the real estate, discharged from the lien of the same. On the 9th day of February 1877, a verdict was taken for plaintiff, subject to the opinion of the court in banc upon the question of law thus reserved. The court afterwards, on July 14th 1877, gave judgment for the plaintiff. On the reserved question, judgment was entered on the verdict on July 21st 1877. On the 6th of August 1877, Mrs. McLaughlin, the said guardian, sued out this writ of error.

      J. M. Kennedy and John Barton, for plaintiffs in error.
    — The 24th sect, of the Act of 1884, Bright. Purd. 422, provides, “No debts of a decedent, except they be secured by mortgage or judgment, shall remain a lien on the real estate of such decedent longer than five years after the decease of such debtor, unless an action for the recovery thereof bo commenced and duly prosecuted against his heirs, executors or administrators, within the period of five years after his decease.”
    The exception as to mortgages, in this section, applies only to recorded mortgages, such as are liens at the time of the death of the debtor: Nice’s Appeal, 4 P. F. Smith 200.
    The bond given is the evidence of the debt. The mortgage is given to secure the payment of the bond. When the obligor in the bond is released from all liability upon the bond by payment, the running of the Statute of Limitations, or otherwise, is not the conditional conveyance of the title to the land, by the mortgagor, ended and annulled? and does not the title revert back to the mortgagor ?
    Then is it not in conflict with the true spirit and meaning of the statute, to say to these children of Charles T. Ihmsen, although they and the land inherited from their father are discharged and released from- all liability for the debt secured by this bond, and the bond, as to them, is no longer a binding obligation, yet the mortgage given to secure that debt can be enforced. Scire facias is not the proper remedy upon an unrecorded mortgage.

      M. W. Acheson, for defendant in error.
    — Nice’s Appeal, supra, was a contest between creditors, and that case is itself authority for the position that an unrecorded mortgage binds the estate as against the mortgagor himself. Mellon’s Appeal, 8 Casey 121, and Britton’s Appeal, 9 Wright 172, are authority for the same principle. This case, however, is ruled by Tryon v. Munson, 27 P. F. Smith 250.
   Chief Justice Agnew

delivered the opinion of the court, November 7th 1877.

That a mortgage conveys an estate as a security for the payment of a debt is held in numerous cases. And even though unrecorded, it is good against the mortgagor himself or his alienee, or mortgagee with actual notice, or a judgment creditor with notice, before his debt is contracted: Mellon’s Appeal, 8 Casey 121; Britton’s Appeal, 9 Wright 172; Nice’s Appeal, 4 P. F. Smith 200; Tryon v. Munson, 27 Id. 262. In the last case the authorities are all reviewed, and it is shown that the effect thus attributed, necessarily springs from the nature of the estate conveyed as a security,- and therefore must prevail, not only against the mortgagor, but his heirs on whom the law casts the property, and who are mere volunteers in accepting it. The 24th section of the Act of 1834, limiting the lien of the debt against the real estate of the decedent, applies to the general estate descended to his heirs, but does not relieve the property specially pledged for the payment of a debt by the deed of the decedent, which estops his heirs, who are mere volunteers, from averring anything contrary to his deed.

That a scire facias to enforce the pledge may issue on an unrecorded mortgage is also proved by the authorities referred to. Tryon v. Munson was a case thoroughly argued and considered, and maintains the doctrine of many cases on the subject of mortgages. Judgment affirmed.