text:
    McKee v. Bartley.
    An averment in a declaration in assumpsit, that plaintiff agreed to malee and deliver to defendants a wagon, for a sum mentioned, and agreed between them: held a sufficient averment of a consideration after verdict.
    Isr error from the Common Pleas of Allegheny.
    Assumpsit. The plaintiff declared for the non-delivery of a wagon, according to the agreement of the parties, and upon the money counts. The question was, whether there was an averment of a consideration in the first count- — the verdict being entered generally. The averment was, that defendants contracted to make and deliver to plaintiffs a certain wagon, for a sum then mentioned and agreed to between them, but that he did not deliver, &c.

      Alien, for plaintiff in error.

      Marshall and Q-ueger, contó.

      Sept. 18.
   Bell, J.

A general verdict and judgment cannot be sustained, if any of the counts of the declaration be bad, although the other counts are sufficient, if there be nothing to show that the damages were assessed on the good counts alone: Dryden v. Dryden, 9 Pick. 546. The plaintiff in error claims the benefit of this rule, on the ground that the first count of the narr. filed in this case is substantially defective, for want of a sufficient statement of the consideration of the contract sued on. It is very true, that in assumpsit, except in those cases where the action is founded on a negotiable instrument, a consideration must be set out in direct terms; and its total omission is fatal, even after verdict: Hemmenway v. Hickes, 4 Pick. 499. But, as in all other cases, a merely formal defect in the statement of it is cured by pleading over and going to trial. This is tantamount to an agreement to waive all objection as to matter of form; and the judgment ought not be disturbed, if, from the declaration, it can bo gathered a consideration existed, and the nature of it, though the manner of setting it out may be very imperfect. In the present instance, the first count avers that the defendant below contracted to make and deliver to the plaintiffs “a certain wagon, for a sum then mentioned and agreed to between them.” It must he admitted that this is a very imperfect statement of the respective undertakings of the parties, and lacking the degree of certainty the rules of pleading require; but, without conceding to it too much, it may fairly be taken as an averment, that in consideration of a certain sum of money, which the plaintiff had agreed to pay to the defendants, the latter undertook to make and deliver to the former the wagon; and the omission to name the amount to be paid is, at this stage of the cause, not a fault sufficient to destroy the judgment. It is, rather, a good title lamely averred, than the allegation of a vicious one; and, therefore, falls within the protection of the familiar rule. The modern inclination of courts is to uphold judgments rendered after an investigation of merits; and they will never interfere, if the plaintiff’s pleading shows substantially a title to sue, however inartificially it may be described. It is enough, if the language used imports a right which has been passed on by a jury. This, we think, may truly be said of the case in hand. The other errors assigned were withdrawn on the argument.

Judgment affirmed.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    Evans v. Evans.
    A widow is dowable of a fee simple, determinable by executory devise on her husband dying without issue living at the time of his death.
    The common law courts have jurisdiction in dower by a widow of a tenant m common dying seised of a fee simple in parcel of the lands, and of a fee simple determinable by executory devise in another parcel.
    In error from the District Court of Allegheny.
    Evans devised his lands equally to his sons George and Oliver, and his wife Sarah. Sarah devised to her two sons George and Oliver, “and to their heirs and assigns, share and share alike; but, should either of my two sons die without leaving lawful issue living at the time of his death, then the estate of such son, so dying without issue, shall vest in the surviving brother and his heirs for ever.”

      Oliver died without issue, and his widow brought dower for the lands devised to her husband by his father and .mother.
    The court was of opinion that the action at law was proper, and that she could recover
      .

    Loomis, for plaintiff in error,
    cited 3 Barr, 60; Co. Litt. 202 b, n. 2; Park on Dower, 181; 3 Preston on Abs. 373; 1 Cruise, § 165, § 166, §186 ; 4 Kent, 270-3; Co. Litt. 241 a, n. 4; 4 Kent, 149 ; Prest. Est. 445.

      Lunlop and Williams, contrd,,
    cited Prest. Abs. 372; Co. Litt. 202 b, n. 2; 4 Kent, 49-50 ; 3 B. & P. 652, n.; 2 Bl. 154-5; Park, 153; 9 C. L. 475; 2 Bing. 447.

      Oct. 2.

       The devise in this case, it would seem, passed a fee simple, with an executory devise over: Langley v. Heald, 7 W. & S. 96.

   Gibson, C. J.

Notwithstanding what the conveyancers and text-writers have said about the difficulty presented to us, not one of them has hinted at the true solution of it, except Mr. Preston. All agree that where the husband’s fee is determined by recovery, condition, or collateral limitation, the wife’s dower determines with it. But why a collateral limitation, rather than by any other limitation of the estate, which extinguishes the husband’s fee, of which the dower is -but an appendage ? I have a deferential respect for the opinions of Mr. Butler, who was, perhaps, the best conveyancer of his day; but I cannot apprehend the reason of' his distinction in the note to Co. Litt. 241a, between a fee limited to continue to a particular period at its creation, which curtesy or dower may survive, and the devise of a fee simple, or a fee tail absolute or conditional, which, by subsequent words, is made determinable upon some particular event, at the happening of which, curtesy or dower will also cease. In Doe v. Hutton, Lord Alvanly spoke doubtingly of it; and, without absolutely dissenting from it, refused to give it his approbation. The system of estates at the common law is a complicated and an artificial one; but still it is a system complete in all its parts, and consistent with technical reason. But how to reconcile to any system of reason, technical or natural, the existence of a derivative estate, after the extinction of that from which it was derived, was for him to show; and he has not done it. He drew his instances from statutory estates, whose limitations have been moulded more benignly; and though he affirms that a wife might have been endowed of an extinct conditional fee before the statute de donis, he gives no precedent for it. The case of a tenant in tail, says Mr. Preston in his Abstracts of Title, vol. 3, 372, “is an exception arising from an equitable construction of the statute de donis; and the cases of dower of estates determinable by executory devise and springing use, owe their existence to the circumstance that these limitations are not governed by common-law principles.” The mounting of a fee on a fee by executory devise, is proof of that. This very satisfactory solution of the doubt was glanced at, but not developed, in Buekworth v. Thirkell. Before the statute of wills, there was no executory devise; and before the statute of uses, there was no springing use. Like estates tail, which were created by the statute de donis, and of which there is constantly dower, though tenant in tail claims fer formam doni, it was the benign temper of the judges who moulded the limitations of the estates introduced by them, whether original or derivative, so as to relax the severer principles of the common law; and, among other things, to preserve curtesy and dower from being barred by determinations of the original estate, which could not be prevented. Sammes and Paynes’ case, 1 Leo, 167, is an example of this temper, in the case of a springing use. A mother covenanted to stand seised to the use of her elder daughter, on condition that she would pay 1007. to her other daughter, within a year after she should attain the age of eighteen; and if the elder should fail in payment, or die without issue before the day of payment, then to the use of the other daughter in tail. The mother died; the elder took husband, had issue, and died without issue before the day of payment; and it was adjudged that the husband should be tenant by the curtesy. Flavell v. Ventrice, 1 Roll. Abr. 676, was also the case of a springing use; in which, however, the court was divided. That two of the judges had not embraced the new faith at that day, is not surprising; but that Lord Eldon should have inclined to think as he did, in Maundrell v. Maundrell, 10 Ves. 263, that a husband might bar his wife’s do wer by executing a power of appointment, is more remarkable. He was still groping after a fancied distinction between a collateral limitation and a limitation of the estate; which, if it exists, has nothing to do with an estate conveyed to uses. It may be safely said, that Buckworth v. Thirkell, Goodenough v. Goodenough, and Moody v. King, had a solid foundation in the interpretation of the statutes which sustained the estate from which the curtesy or dower was derived. Lord Alvanly is reported to have said, in Doe v. Hutton, 3 B. & P. 653, that Buckworth v. Thirkell made a good deal of noise in the profession at the time it was decided — a remark which was properly disposed of by Chief Justice Best, in Moody v. King. “Whatever conveyancers might have thought of the case,” said he, “when it was first decided, they have since considered it as having settled the law; and it would be productive of much confusion if we were to unsettle it again.” Including the decision then made, we have three cases in point, without an antagonist case in all the books; and if to overturn them for the sake of a technical principle would have bred much confusion then, it would breed more confusion noAV. The English courts have gone upon a liberal principle; and we are bound to follow them.

Judgment affirmed.


author: Rogers, J.

text:
    Bears v. Ambler.
    The tenant in possession is liable for an injury resulting from the grate oyer a yault under the highway in front of his premises being out of repair ; and the landlord is not liable if the premises were let in good repair, and he was not bound by the lease to keep them in repair.
    In error from the District Court of Allegheny.
    The defendant, Bears, Avas the lessee in possession of a tavern in Pittsburgh, and the defendant, Weaver, was the lessor. It did not appear that there were any covenants. in the lease respecting repairs. There was a vault under the sidewalk on the public street in front of the premises, into which there was an opening, covered by a grate. One of the bars of the grate was broken during the term. The plaintiff was walking along the street in the evening, when her foot slipped through the broken grate, and she was injured. Eor this the action was brought.
    Hepburn, P. J., instructed the jury that the tenant was liable, but not the landlord, for it was shown that the premises were in good repair when demised, and it did not appear he was bound by his covenants to repair.
    The defendant, Bears, excepted, and sued out this writ of error.

      Sept. 27.
   Rogers, J.

The laAv of the case is accurately stated in the charge. A tenant or occupier is always liable for an injury caused by his neglect, irrespective of any contract between him and the landlord, or owner of the property. So far as the public is concerned, it is nothing to them who may be ultimately liable for repairs. It is the duty of the tenant or occupier in the first instance to keep the ways in such order as not to endanger others, whatever may be his agreement with the landlord or owner of the premises. And this imposes no hardship on him of which he can justly complain, as the landlord and owner is liable on his contract, or his expenditure may be deducted from the rent. Third persons have no means of ascertaining their agreement; moreover the rule of law is, that in the absence of any contract to the contrary, the tenant is bound to keep the premises in repair: Long v. Fitzsimmons, 1 W. & S. 530. The tenant always; the landlord may

Judgment affirmed.


author: Burnside, J.

text:
    Moore v. Small.
    The declarations by a trespasser, that he had released his claim to the holder of the title, with an attornment by the tenant of the trespasser, and the subsequent assessment in the name of the owner of the legal title, are evidence of an abandonment by the trespasser to the real owner.
    And the agreement to pay a sum of money in consideration of the abandonment, is equivalent to an actual payment.
    A statement that a trespasser had released to the legal owner, does not imply that he had executed a written release.
    In error from the District Court of Allegheny.
    The case is stated at length in the opinion of this court.

      T. Williams, for plaintiff in error.

      Forward, contrá.

      Oct. 12.
   Burnside, J.

The plaintiff in error was plaintiff below. He claimed the lot in question, under the entry of one Ray, in 1817 or 1818, and the building of a small dwelling-house thereon. There was at that time a small blacksmith shop on another part of the lot. Ray sold to the plaintiff for a valuable consideration, in 1819, who entered and continued in possession until 1829 or 1830, when he leased to Small, the defendant, who entered and continued in possession from that period until the trial of this cause. It was admitted that the property was assessed to the plaintiff, Moore, from 1819 to 1837.

The defendant claimed title under the executors of James O’Hara, deceased, who had a patent for the lot, dated the 1st of March, 1797. After exhibiting the legal title for the lot, he offered in evidence a lease from the executors of O’Hara to Small, the defendant, of the 1st of April, 1835, with a receipt thereon for the payment of $30 rent on the — day of October, T837; and then proved, by R. A. Campbell, Esq., that he had known the lot since 1814. In 1815 or 1816, the lot was taken up and settled by some person. His father cleared the lot in front of this lot in 1814. The lot was cleared before Ray’s time, but he cannot tell who cleared it. Ray got possession in 1818 or 1819; after that, C. Moore, the plaintiff, got it. He lived in it five or six years, when he moved to the Diamond. There was no dispute, as to the ownership of the lot, until 1834 or 1835. It was not known who owned it. Moore had peaceable possession. In 1835, Moore declared to Campbell that he had made an arrangement with Mr. Denny, and was going to give up possession of the lot. Mr. Denny was to pay him, or had paid him, $50. The witness understood from Moore he had released all claim to the lot, for this consideration. He said he had settled his claim with Mr. Denny for $50.

Ray was examined. He stated that he had sold his improvement to Moore, for $95. When he built his cabin, he did not claim the lot. John Anderson proved that he had built the blacksmith shop before Ray built his house; he had no authority for building the shop. The defendant further gave evidence of the assessment to Harmar Denny, in 1838 and 1839, and, subsequent to that period, to the heirs of James O’Hara.

There was other evidence on both sides; but I deem it immaterial in the settlement of the legal question raised on the trial, and of no importance in the case.

There was a bill of exceptions to the admitting of the lease in evidence, of the 1st of April, 1835. This has been but slightly urged; we think it was properly admitted. It was a part of the defendant’s case. It was dated before there was twenty-one years’ adverse possession. Connecting the lease with Campbell’s evidence, it was clearly evidence. It would have been more regular to have examined Campbell before the lease was offered. But this court will not inquire minutely into the time and order in which evidence is given: Salmon v. Rance, 3 S. & R. 311, 314; Wolverton v. The Commonwealth, 7 S. & R. 273.

The first point of the plaintiff was answered in the affirmative.

The second point: That the declarations of Moore, as testified by the witness, Campbell, that he had made an agreement with Denny, and was going to give up possession of the lot, is no evidence of an actual surrender of the lot, or transfer of the possession in conformity with the intention expressed by him in the conversation with Campbell — but the contrary. To this the court answered: If Moore told Campbell that he had made an arrangement with Denny, and was going to give up the possession of the lot, and that he, Denny, had paid or was to pay him $50, and that he had released all claim for this consideration, or that he had settled his claim to the lot with Denny for $50, and afterwards Denny gave a lease of the lot to Small, the tenant in possession, and the property was assessed to him about that time, and taxes paid by Mr. Denny, it is evidence of a relinquishment by Moore of his inchoate right, and of the acquiescence in the attornment by Small to Denny, and that the possession was transferred to him. I am unable to discover any error in this answer. The plaintiff was a mere intruder on a patented lot. Such a claim can scarcely be called an imperfect right: 1 Yeat. 509, 516. To give him a right he must have had an actual, continued, visible, notorious, distinct, and hostile possession for twenty-one years: 6 S. & R. 21. I agree that one who enters as a trespasser, and builds a house and lives in it, acquires something which he may transfer to another, and if the possession of the two added together amounts to twenty-one years, and was adverse to him who had the legal title, the act of limitations will be a bar to a recovery; Overfield v. Christie, 7 S. & R. 177. I am aware that it was otherwise decided by Judge Washington in Potts v. Gilbert, 3 Wash. C. C. R. 475; but this decision of Judge Washington never was acknowledged as sound by any land lawyer or judge of this state. Such intrusion is but a mere imperfect right, until it is protected by the statute of limitations; and the moment the intruder agrees to surrender to the legal owner, his possession ceases to be adverse, and his claim to the land is at an end.

The court were further requested to instruct the jury, that the conditions of the arrangement referred to or proved by the witness, that Denny either paid or would pay the plaintiff the sum of $50, are entirely uncertain, and in the alternative of a payment yet to be made, would, under the contract, be entirely inoperative until a compliance had been first shown by Denny, by the payment of the $50; and would therefore authorize no inference of assent, until the money was actually paid. To this the court answered: the agreement of Mr. Denny to pa.y, and a liability on his part to pay, was as operative as if the money had been actually paid.

We think there was no error in this answer, and that it was such as the case and the point required. Two years after the arrangement the lot was taxed to Denny, and afterwards to the estate of O’Hara, of which Denny was an executor. The tenant attorned, and paid rent to Denny under a written lease. If Moore omitted to get his money, it was his own affair; he abandoned the adverse possession of the lot by such an agreement.

4th. That the testimony of the witness that he understood the plaintiff to say or mean that he had released his claim, implied the existence of a written instrument of transfer, and is therefore, not being the best evidence, incompetent to prove the fact of an assignment of that kind or description. The court, in answer to this point, said: “ Under the circumstances of this case, I do not think the rule here stated applies, though as a general principle it is law. Moore had no legal title, and his conveyance to Denny would make his title no better than it was. Any acknowledgment of Denny’s title, as evidence of the transfer to him, would be all that was necessary. If that was done, the defendant is entitled to a verdict.”

In this answer I fully concur. Moore had no title at that time. His claim to the lot was imperfect. If his tenant had left the possession, the heirs of O’Hara, having a full legal title, would have been in constructive possession. When the lot was vacant the legal title always carried with it constructive possession, and that remains until ousted by actual occupancy. If Denny had brought an ejectment in 1835, he must have recovered against Moore and his tenant; they had no title to resist him. Mr. Denny, as the representative of the O’Hara estate, chose to give him or promised to give him $50, rather than be troubled with an ejectment. In such a case a parol release was as good as a written one; and when the tenant attorned, when Moore agreed to deliver over the possession to the owner of the legal estate, the claim of Moore ceased to be adverse, and his imperfect title was at an end. The statute of limitations had ceased to run.

Judgment affirmed.


author: Bell, J.

text:
    Miltenberger v. Beacom.
    Where an insurance is made generally by one having an interest, and he receives the amount of the loss ; another owner may recover from Mm on proving that the insurance was made on his interest, without showing a previous request to make the insurance.
    And where lessor on ground-rent has entered for the arrears, under a covenant that he may hold until the arrears are paid, and states an account with the sub-lessees of the rents received, in which he charges them with the premium : it is a question for the jury, whether he intended the insurance to cover their interest, though they have objected to the account generally.
    In error from the District Court of Allegheny.
    Assumpsit. The defendant demised certain premises to Clements, reserving a perpetual rent, with a covenant that the lessor might re-enter and hold until the arrears were paid. Clements demised part of the premises to the ancestor of the plaintiffs.
    The rent being in arrear, defendant entered. Whilst in possession he effected a policy of insurance on the property in his own name, and, as was stated by the insurers’ agent, as his own. He furnished to the plaintiffs accounts of the rents received, and charged them with the premiums of the insurance, and the same charge appeared in his books. This account was objected to by the plaintiffs, and account render brought; but the record did not show what were the grounds of the objection, nor was the evidence of the referee in that action (stated in the opinion of this court) upon the paper-book. The policy contained a stipulation that the insurers might repair, and that the policy should not be assignable but on consent of the insurers. The houses were burned whilst defendant was in possession, and this action brought by the plaintiffs, as owners of the property, to recover the amount received by defendant, on account of the loss.
    Lowrie, J., instructed the jury, the defendant was the agent of plaintiffs, but not bound to keep the property insured, and the policy was evidence he insured his own interest only, in which event plaintiffs could not recover. But that the accounts and other matters showed he considered himself entitled to insure as their agent, and at their expense, and if he did so, he could not afterwards assert that he had not acted as their agent, and he must account for the amount received, deducting the premium.

      Graft, for plaintiff in error.

      T. Hamilton and T. Williams, contó.

      Oct. 16.
   Bell, J.

It is the observation of Marshall, in his

Treatise on Insurance, that it would be extremely difficult to give any accurate definition of an insurable interest. The complicated rights which different persons may have in the same thing, require that not only the owner of the absolute property, but those, also, who have a limited interest, may be at liberty to protect it by insurance. It is accordingly recognised as a rule in this department of the law, that almost any qualified property in the thing insured, or any reasonable expectation of profit or advantage to spring from it, may be the subject of this species of contract, provided it be founded in some legal or equitable title: Marshall on Ins. 105. Thus a disseisor, especially after the right of entry is tolled, may represent the estate as his own, and effect an insurance of it, for he is the owner, though his title be defeasible: Curry v The Com. In. Co., 10 Pick. 541. So may a mortgagor, to the full value of the estate, after it has been taken out of his hands by the mortgagee, if the right to redeem still resides in the former: Columbia Ins. Co. v. Lawrence, 2 Pet. S. C. Rep. 25. . And a consignee who has accepted hills on the credit of the goods consigned (Wolff v. Horncastle, 1 Bos. & Pul. 316), or made advances on the faith of the consignment, may insure them in his own name: Parks et al. v. The General Ins. Co. 5 Pick. 34. In Strong v. The Manufacturers’ Ins. Co., 10 Pick. 43, it is said that the value of the plaintiff’s interest in the subject insured is not material. If he had an insurable interest at the time the policy wa,s effected, and also at the time of the loss, he may recover the whole "amount of damages done to the property, not exceeding the sum insured. Under this doctrine it is scarcely to be doubted that the plaintiff in error, having entered upon the demised premises by virtue of the covenants contained in the instrument called a perpetual lease, and looking to the tenements thereon erected as the chief, if not only, source of payment of the rent in arrear, had such an interest in them as was insurable to the extent of their value. The destruction of these houses involved as well the means of payment of existing arrears as of future rents. It was, therefore, the interest of the plaintiff in error to preserve them, or to secure the means of rebuilding them in the event of disaster. In this respect, his relation to the property was, in principle, similar to that of an insuring consignee to secure advances; or of the possessor of a qualified interest in the premises, subject to defeasance, as, for instance, a mortgagee or disseisor. I can, therefore, perceive no legal objection to a policy on the houses in question, purchased by Mm in Ms own name, and intended to cover only Ms interest in the annual rent. But were this otherwise, it seems to be settled that one who has, in fraud of the underwriters, received a sum insured by him to protect a pretended interest without existence, is not liable over to thfe owner of the property described in the policy. In Grant v. Hill, 4 Taunt. 380, Sir James Mansfield declares that such wrongful receipt, without any consideration, would not operate to convert the party into a trustee of the true owner, and consequently the latter could not recover in an action for money had and received; and in this the whole court concurred.

But, on the other hand, it is very clear one may insure, in his own name, the property of another for the benefit of the owner, without his previous authority or sanction; and it will enure to the party intended to be protected, upon his subsequent adoption of it, even after a loss has occurred. This doctrine was asserted in Durand v. Thouron, 1 Porter’s Ala. Rep. 238, and Watkins v. Durand, Ib. 251. In the first of these cases, the policy was of the goods in the defendant’s store, without discrimination; but it appeared the plaintiff’s goods, which had been deposited with the defendant for sale, were included in the list of goods insured; and the defendant, after the loss, promised to account with the plaintiff for their proportion of the subscription. On the trial, the defendant requested the court to instruct the jury, that if no instructions to insure were given by the plaintiff, when the goods were deposited or before the fire, the goods were not covered. This the ¿ourt refused to do; and, on error brought, this refusal was sanctioned by the Supreme Court, saying the case was properly put on the ground that the defendant’s promise to account contained an admission that he had insured for and on account of the plaintiffs. In the second case, the assurance effected by the defendant was of “ goods belonging to himself, or held in trust or on commission.” In both, the plaintiffs were allowed to recover in an action for money had, although the amount of. the insurance was less than the value of the defendant’s proper goods destroyed. In Hagedorn v. Oliverson, 2 Maul. & Selw. 485, a ship bound to foreign ports was insured by one having no personal interest in her, in his own name and for every person to whom the same appertained. This was done without the previous authority of the owner, for whose benefit the insurance was in fact effected. He gave it no sanction before the loss of the ship, but afterwards adopted the policy; and it was held he was entitled to recover directly against the underwriter. This case is commented on by Hughes, in his Treatise on Insurance, p. 41. He says of it, that the insurance being for the benefit of the owner, the reasonable presumption was that he would adopt the act; and although he was under no legal obligation to repay the premium to the party negotiating the policy, there was such a moral obligation as furnished a sufficient consideration to support his adoption of it, after the happening of the loss.

These authorities abundantly prove that the contract of assurance, like other contracts, may be effected by the agency of a third person, without the authority of the party to be benefited, if he subsequently recognise it. It is true, that to enable the beneficiary to sue upon it directly, he must be expressly named, or the policy must be so framed as to cover, generally or specially, the interest of all concerned. But where the agent receives the fund, this, as the authorities show, is not necessary to the support of an action for money had and received. In such case it is sufficient to prove the defendant constituted himself the representative of the interest insured, as agent of the owner, and that the latter ratified the act, before or after the loss suffered. In the present instance, the only question was, did Miltenberger act as the agent of the owners of the property, in procuring the insurance ? This, of course, was a question of fact for the jury, and was so submitted by the court. Was there any evidence of it? In the account furnished to the plaintiffs below by the defendant, showing, as he averred, the condition of their pecuniary relations, there is a charge for four years’ services in collecting rents, $40, and another, for premiums paid for insurance in 1845 and 1846, $22.50. In his books of account, produced on the trial, there is a similar entry, and it is conceded they relate to the subject of this contest. These certainly furnish some ground for the inference, that when the insurance was procured, the defendant regarded himself as the representative of the owners, and acted for the protection of their interests as well as his own. Why charge them with the premiums if they were to take nothing in any event under the risk ? But it is said the plaintiffs repudiated the charge of the premium, and thereby, instead of adopting, disavowed the act of the defendant. Upon this point, we have only the evidence of Mr. Hamilton, who simply says the account was not adopted by the plaintiff. It is asserted here, this was because the defendant charged interest on the arrears of rent, and refused to allow it on the sums, collected by him. The record does not show the reason of its rejection; and as it contained several items of debit and credit, we cannot take it for granted, in the absence of proof, that it was disallowed because of the charge of the premium. It is said, too, this charge was excluded from the account stated by the referees, in the action of account render, with the assent of the plaintiffs. But the testimony of the referee examined is, that it was agreed by the parties not to introduce the subject of the. insurance there, inasmuch as another suit — the present — was pending to test their rival claims to the sum received from the underwriters. These adverse allegations were legitimate subjects for the jury, and were doubtless pressed upon their .attention by the counsel of the respective parties.

The inference of agency is also supported, in a considerable degree, by the stipulations of the policy itself. By its terms, it was left in the option of the insurance company, in case of loss, either to restore the buildings to their original condition, or pay the amount of the assessed damages. Had the company re-erected the houses, it cannot be thought they would have been the property of the defendant, to the exclusion of the former owners, and it is difficult to imagine that he supposed an election to pay the damages suffered, would work a change in the relative rights of the parties. A jury might, therefore, well be content with slighter proof aliunde, than would be satisfactory in other cases, to establish the conclusion that the defendant, from the beginning, regarded the sum insured, as representing the property in the tenements. But it is enough here, that they have acted upon some proof in finding his receipt of it a trust.

The defendant, however, principally complains of that part of the charge in which the court asserts, that having entered under the deed of perpetual lease, to collect the arrears of rent, he became the agent of the plaintiff. Admitting the proposition to be incorrect, a candid examination of the whole charge will make it manifest the inaccuracy did the defendant no harm. The court expressly instructed the jury, that under the supposed agency he was not bound to insure for the benefit of the plaintiffs, and refer them to the other ¡3roofs in the case, as furnishing the only evidence upon which the presence of an agency in the transaction of the policy can be established.

Judgment affirmed.


text:
    Hays v. Heidelberg.
    A sale by the sheriff (under a judgment) to the administrator of the defendant, who paid no money, but purchased in trust for the creditors and heirs, is fraudulent as to creditors; and they may proceed by execution on judgments subsequently recovered, and sell the land.
    And a judgment-creditor-, who as agent for another purchases part of the land from the administrator, the price of which is applied in part satisfaction of his judgment, is not thereby estopped from proceeding against the land to recover the residue of his judgment.
    An agreement by one creditor to acquiesce in the trust would be under the implied stipulation that the other creditors would do the same ; and adversary proceedings by one of them would discharge him from his engagement.
    In error from the District Court of Allegheny.
    The plaintiffs in this ejectment had the title of the heirs of S. Semple, who died in 1813, greatly indebted. They gave in evidence a judgment against his administrators in 1815, and a sheriff’s sale thereunder, and deed in 1815, to Wilkins, one of his administrators, for $2,300, of which $2,224 was returned as paid to the administrators of Semple, “ being the balance arising from the sale, after deducting the costs on the writ.”
    Wilkins proved that he purchased as a trustee for the creditors and heirs of Semple; that the trust was notorious, and that no money had in fact passed between himself and the sheriff. He put one Redding in possession, who paid the taxes. In 1847, he conveyed to the plaintiffs, subject to the trust under which he held it (what was the language of the deed did not appear).
    The defendant’s title was — a judgment confessed to Ross by the administrators of Semple, and a judgment in a suit brought in 1819, and confessed to Addison by the same, Craft being the defendant’s attorney in both cases: these were regularly revived. In 1833, the sheriff levied on the land, “being in the possession of tenants under the administrators of Semple, who hold the same in trust for the payment of debts of said Semple, and subject to a deduction of five acres sold to Beelenand made a sale to Ross, who, in 1834, conveyed to Craft, the defendant’s landlord.
    The plaintiffs then proved that in 1818 one Beelen had purchased by parol, from the administrators of Semple, a piece of the land purchased by Wilkins, and had employed Ross to make a purchase of another adjoining parcel from the same parties. He concluded the bargain as attorney for Beelen. In 1847, Wilkins, by deed — reciting his title from the sheriff, and the purchase by Beelen, which had been paid for by giving a credit on Ross’s judgment, and that Beelen’s estate had been sold by the sheriff to Anderson, who had conveyed to Craft in consideration of the said sum thus credited — conveyed the same to Craft. It was farther proved that the sale to Wilkins was by an arrangement among the administrators of Semple to enable them to pay the debts, and that the fact was communicated to the court when the deed was acknowledged, and that Craft acted as their attorney.
    The plaintiffs contended, that the sale by the sheriff to Wilkins after the explanation by him, vested the title in trust for the heirs and creditors of Semple. That he having taken possession, paid taxes, and sold part of the land to one who purchased through the agency of Ross, his judgment was not a lien, and the sale thereunder passed no title. That the levy under Ross’s judgment, and the purchase as agent for Beelen, proved he was cognisant of the trust, and recognised it. That the entry of the judgment by Craft, and the deed to him from Wilkins, proved his knowledge of the trust.
    These points were negatived by Hepburn, P. J., who directed • a verdict for the defendants.

      Wylie and Forward, for plaintiff in error.

      Metcalf and Loomis, contiA.

      Oct. 2.
   Bell, J.

The title under which the defendant claims the land in dispute, was tested in Payne v. Craft, 7 W. & S. 458, and in the aspect the controversy then wore, found perfect at all points. An exploration of the ground then reviewed is unnecessary, and we are therefore reduced to the single inquiry, whether the sheriff’s sale to Wilkins, and the subsequent transactions connected with it, are of sufficient efficacy to defeat the estate, otherwise undoubtedly vested in Mr. Craft. The supposed title, originating in that sale, was on the former occasion introduced by the defendant as outstanding, and attacked by their adversaries as fraudulent and void against the creditors of Steel Semple. This derogation of it seems to have been accepted by the court as well founded. When pronouncing the judgment in that case, Mr. Justice Kennedy said: “ The previous sale of the Juliet Semple tract by the sheriff to Yfilliam Wilkins, whether regarded as void or as merely colourable, no money having been paid by him on it, excepting the costs, which were paid out of the assets of the estate, still left it liable as before to be taken in execution and sold for the payment of the debts of Steel Semple.” If this conclusion be sound, it must put an end to this litigation. Had it been the very point of the case decided, we should scarcely have felt ourselves at liberty to permit it again to be agitated. But as it was based on an accusation of the then plaintiffs, compelled by the exigencies of their case, but now disclaimed by them, and as the effect of the sale to Wilkins, on the rights of the litigants, was not a leading subject of inquiry on that investigation, we have consented to regard it as still being an open question.

It is part of the plaintiffs’ case, that that sale was without consideration, being in fact a contrivance to transfer the legal estate to the apparent vendee, subject to a parol trust for the benefit of the creditors and heirs of the decedent. The motives which led to it, and the object of the parties by whom it was designed and effected, were doubtless fair, and, morally regarded, unobjectionable. But the sheriff’s conveyance being purely voluntary, and its direct tendency to hinder and delay the creditors of Steel Semple in the remedies afforded them by law, it is unquestionably, as to them, within the purview of the 13 Eliz. fraudulent and void. It will not do to answer that the very object of the proposed trust was to promote the interest of the creditors by nursing the estate of the debtor through a series of years, and thus rendering it effective for the payment of debts to which it was then wholly inadequate. This advantage could only be procured by delay; and delay, in the absence of the creditor’s consent, could only result from hindering and defeating their liens upon the lands of the decedent, and the legal means of enforcing them. Unless this effect be ascribable to the sheriff’s conveyance, it is powerless against creditors, and the moment an attempt is made to confer upon it this quality, it is brought within the withering influence of the statute, which instantly destroys it as an instrument of intended fraud. The truth is, that nothing that the administrators could do, of themselves, short of payment, or an authorized sale for the payment of the debts of their intestate, would be permitted to interpose a barrier between the creditors and the estate of the debtor; and certainly the attempt so to interpose, in this instance, was in no degree assisted by the colourable use of legal process, for this is, in very terms, prohibited by the statute. In the well considered case of Piatt v. St. Clair’s heirs, decided by the Supreme Court of Ohio (6 Ohio Bep. 93), the facts were singularly like those in our case. There the estate of St. Clair, being deeply indebted, was exposed to sale for the non-payment of taxes, and purchased at a nominal price by one of the hoirs for himself and the co-heirs. Afterwards, upon an order of the proper court, the administrators of the deceased again exposed the estate at public sale, and struck it off to the same heir, who, however, neither paid nor gave security for the payment of the purchase-money. This sale was returned to and confirmed by the court. Subsequently, the administrator and purchasing heir joined in a conveyance to a third person, in trust to pay the purchase-money, and liquidate such claims against the estate of St. Clair as the parties to the deeds might see fit and expedient. But these sales and conveyances were declared void against the creditors of St. Clair, and they were permitted to come in on the estate, though, as was observed by the judge who pronounced that judgment, there was no doubt that these arrangements were made by the administrators and other persons concerned, with an intention to place the real estate of the intestate in a situation to be managed for the benefit of the 'heirs, and to use it advantageously for them, to discharge the demands against the estate, without any design of injury to the creditors, or any distinct impression that injury would result to them. As has already been intimated, the same remarks may, with justice, be applied to the action of the administrator, and his coadjutors in this instance; but this does not relieve it of the illegal taint which infected it from the beginning.

But were it conceded to be a case not within the statute of Elizabeth, it is very certain the trust attempted to be engrafted on the legal title would be wholly inoperative to bind creditors not expressly assenting to it. It is wholly unlike Wilt v. Franklin, 1 Binn. 518, to which an attempt was made to assimilate it, at the argument. There the creditors of the assignor had no hold on the fund assigned, at the time of the assignment; and the trust created being for their benefit, their acquiescence was presumed, as the result of general experience, that men do not reject that which promotes their interests. But here the creditors of Semple had a grasp upon his estate, and a means of rendering it effective, which they might well consider as superior to that offered by the proposed trust. At all events, the law will not undertake to decide for them in this particular, by attributing to them a presumptive assent, founded upon a possible advantage tendered, but which might turn out to be none at all. In such a case, creditors could not be deemed as acquiescing by their mere silence, or be held bound expressly to disclaim the trust. On the contrary, it is incumbent on him who sets it up, to show a recognition of it, and an agreement to abide by it, either by express words or something equivalent. Without this, the sale and conveyance to Mr. Wilkins left the estate just where it stood before, in respect to the lien of the creditors. It was a proceeding without fruits, so far as they were concerned; for it in no degree disturbed the original relative position of the parties. In Bruch v. Lantz, 2 Rawle, 417, Mr. Justice Rogers, in speaking of a power under a will to sell lands, says:— The power in the will constitutes the executors trustees for the devisees and heirs; the general law, with the devise, trustees for the benefit of the creditors. The creditors have an interest in the fund paramount to the title of the devisees and heirs, and independent of the will of the testator. Where, then, the executor or trustee becomes the purchaser, he takes it, clothed with the same trusts as it was liable to in his hands, previous to the sale. The law will not endure that a sham sale, or one against public policy, shall create a right in prejudice of creditors who have liens on the land; nor should their rights be impaired, without an express assent on their part. The creditors should still, notwithstanding a pretended sale or transfer, which may be a mere cover to fraud, be at liberty to pursue their remedy against the executors; and, upon judgment and execution, to sell the land, as they might do if it were in the possession of the heirs or devisees.” These remarks are as pertinent here as in the case in which they were made, and their application as obvious.

But it is said there is evidence in this ease, showing a recognition of and an assent to the proposed trusts, by Mr. Ross, the judgment-creditor, viz: his acceptance of a benefit under it, which, upon the principle settled in Adlum-y. Yard, 1 R. 163, estops those claiming under him, with notice, from impeaching it, though originally within the purview of the 13 Eliz. That case, differing from the principle asserted in Kidney v. Coussmaker, 12 Yes. 136, announces that the doctrine of election is as applicable to creditors as to legatees and other volunteers. It has been followed by similar adjudications, and is not now to be impeached. But the eminent judge who delivered that opinion concurs with me in saying, that it pushes the doctrine of election by creditors as far as it can be safely carried. Were it necessary, I think it would be easy to distinguish that case from the present, on the same ground of difference which exists between this and Wilt v. Eranklin. In Adlum v. Yard, the accepting creditor had no claim on the assigned fund, except through the medium of the deed of trust. By the acceptance of a dividend under it, he derived a benefit which, without its existence, he would not have enjoyed; and this was said to be a new and perfect consideration, sufficient to support a contract of ratification of a deed, otherwise fraudulent. This was the turning point of that case; for it was there conceded, that a contract forbidden by a statute, is incapable of confirmation, except on terms consistent with the statute, and upon a new consideration. But, in our case, we look in vain for such a consideration. Without the aid of the trust, and by mere operation of law, the creditors of Semple’s estate had dominion over the fund; and a mere change in the mode of its administration could surely work no such advantage as would constitute, in respect to them, a new consideration. Being entitled to the whole value of the land in payment of their claims, and in a condition to enforce that title, why should acceptance of a portion of it, at the hands of a pretended trustee, acting under a deed void against creditors, preclude them from asserting .their paramount right by process ? We have seen this can only be on’the ground of estoppel or of agreement; but such an acceptance, it seems to me, amounts to neither, for there is no such benefit conferred on the creditor, or disadvantage suffered by the debtor, as can bind the conscience of the former, or clothe his act with the character of a contract.

But supposing this to be otherwise, the question recurs, Was there such an acceptance by Boss, under the trust, as bound him to a subsequent acquiescence in it ? To work this effect, I take it the payment and receipt must be between the trustee and creditor, intended by both of them to be a direct execution of the trust, and showing a subsequent recognition and acknowledgment of it. It must not be the result of a collateral arrangement, in the prosecution of which the creditor acts in another character, and where the appropriation by him may as well be referred to an assertion of his general rights, as to a particular one growing from the trust. The only pecuniary transaction to which the plaintiffs point us, as showing acceptance under the trust, is the purchase made by Mr. Ross, as the agent of Beelen, from Wilkins, and the subsequent appropriation of the purchase-money in part satisfaction of Ross’s claim against Semple’s estate. In conducting and concluding the negotiation, Boss was the mere instrument of Beelen, and though he may have been made aware of the character in which Wilkins claimed to hold the land, of which however there is no direct proof, there is nothing to show that he then, ,as a creditor, assented to the trust. Upon its face, the title to Wilkins was absolute, and he was therefore in a condition to convey to Beelen, irrespective of any latent trust. The fact that Boss, as Beelen’s agent, charges the latter in their running account with the purchase-money, has no connexion with, or reference to the trust; and the subsequent entry of it, in 1819, as a credit on the judgment recovered by Ross, is expressly in favour of all the administrators of Steel Semple. This, so far from an unequivocal acquiescence in the conveyance to Wilkins in trust, tends rather to establish an intent to disclaim it. At all events, the appropriation of the money in part discharge of the debt due to him from Semple’s estate, is entirely consistent with the idea of such a disclaimer. Had he intended to place his rights as a creditor in subordination to the trust, the proper course would have been to pay the money to Wilkins, as trustee for all the creditors. But instead of this, he retained it, crediting it as so much received for the benefit of the estate. But it is enough that there was no such acceptance of money from the alleged trustee, in Ms character of trustee, as will support an inference of assent. All that was said or done by Ross, is entirely reconcile-able with an intention to stand upon his rights at law.

Nor does the subsequent recital of these transactions, in the deed from Wilkins to Craft, made in 1847, produce a consequence other than that which is fairly ascribable to the transactions themselves, supposing that Craft’s title, under his deed of 1834, was open to be affected by statements contained in a conveyance to him of a small portion of the tract, made long after. But upon this part of the ease, it may be observed, there is proof of Mr. Craft’s knowledge of Ross’s act, and had there been found sufficient to affect the title in the hands of the latter, the former, as purchaser from him, with notice, would, perhaps, have stood in the same predicament.

There is yet another element in the case which we think is decisive against the pretensions of the plaintiff. Admitting, for the sake of the argument, the presence of plenary proof of an agreement by Ross from the beginning, to live under the supposed trust, it must be conceded that agreement was necessarily coupled with an implied condition that the other creditors should also so agree. It cannot be pretended that by acquiescence, the hands of one creditor would be tied, while all the rest were left at liberty to prosecute their legal rights. Such a trust must be good "as to all, or void as to all. From its very nature, it is entire and incapable of separation and distribution, binding upon some, while others are left free. To be sure, all need not agree to it at the same moment, and perhaps those assenting should be held to it until there be an active manifestation of dissent by others. But if any one refusing creditor proceeds against, and sells the subject of the trust at law, both the legal and equitable title passes, and, as a consequence, the trust is nullified as to all. This result of his proceeding is essentially necessary to the security of the non-assenting creditor. He is entitled to claim that the Avhole of his debtor’s interest in the la,nd shall pass by the judicial sale; for, otherwise, he might be defeated of his debt by the encumbrance of a trust to which he is not a party. Now, there is no. rule which forbids an assenting creditor to become a purchaser at such sale, and as his title is derived from a source superior to the trust, he will, of course, take the land discharged of it. Even in the case of a trustee who is bound to protect the trust and promote its execution, it is said there is no principle of equity which will invalidate his title to property taken out of his hands by the law, and purchased by him from one appointed by the same authority to sell it: Prevost v. Gratz, 1 Pet. C. C. R. 378; Fisk v. Sarber, 6 W. & S. 18. A fortiori, a purchase for value by a cestui que trust, must be attended with the same consequences.

Let us apply these principles to the facts before us. It is admitted that besides Mr. Ross, there were other creditors of Semple’s estate. Their number, and the amount of the debts due to them, is not shown, but the record exhibits two other judgments recovered against the administrators of Semple, one by William Johnston in 1815, and the other by the executors of Judge Addison in 1821, in an action brought in time after the decedent’s death to preserve the lien. Erom 1815, the date of the sale to Wilkins, down to 1833, there is a total absence of any indication of assent to the trust by the general creditors. The evidence we have is strongly opposed to it. The repeated revivals of the lien of Ross’s judgment, manifest an intention to preserve his legal advantage. But setting that aside on this point of the argument, the same remark is true of Addison’s judgment, which is sedulously kept alive for the purposes of lien and execution. As to the plaintiff in this judgment, there is not a particle of proof that she acquiesced in the proposed trust. Standing aloof from it, she caused executions to be issued, simultaneously with those of Mr. Ross, under which this land was levied on, condemned, sold, and conveyed by the sheriff. What is there to impeach the title derived upon this sale under the principles just brought into view ? Nothing. An admission that the purchase-money, after deducting the amount of Addison’s judgment, was subject to the exigencies of the trust, as against Ross — and this is the utmost that could be claimed — will avail tbe plaintiffs nothing, for in the absence of actual fraud, this reaches not the purchaser’s title.

The views expressed cover the whole case, and show the title to be in the defendant.

Judgment affirmed.

Burnside and Coulter, Js., dissented.


author: Coulter, J.

text:
    Twitchell & Norton v. The Commonwealth.
    A conspiracy to cheat, by offering to sell forged foreign bank-notes of a denomination the circulation of which is prohibited in this state, is indictable.
    The act intended to be done is sufficiently set forth in an averment that defendants “did fraudulently offer to sell, pass, utter, and publish to,” &c., the forged notes.
    In error from the Quarter Sessions of Allegheny.
    This was an indictment for a conspiracy to cheat. Two points were made: first, that an indictable offence was not laid; and secondly, that it was not laid with sufficient certainty.
    The offence was a conspiracy to cheat by offering to sell ten forged notes, purporting to be $3 notes of the Commercial Bank of Cincinnati.
    The averment alleged to be uncertain was that, in pursuance of their conspiracy, the defendants did “ offer to sell, pass, utter, and publish to,” &c.; and because the means whereby the conspiracy was to he effected were not stated.

      Barragh, for plaintiff in error.

      Magellan, contrd.

      Oct. 28.
   Coulter, J.

The first section of the act of Assembly of 12th April, 1828, enacts that it shall be unlawful to issue or circulate, with intent to create or continue a circulating medium, any bill, note, check, or ticket, for a less sum than ten dollars. The third section, hoAvever, enacts that such notes, bills, or tickets shall not be void or of none effect, and provides that the holder, notwithstanding anything contained in that act, may bring suit thereon, and recover the amount thereof, witb intérest; and the fourth section makes the drawer, acceptor, and every person or body corporate who shall endorse the said bills, checks, or notes, or in any way put their name thereon, liable to the holder for the principal sum expressed thereon, and twenty per cent, interest. • Such notes or bills are, therefore, of value to the holder when they are genuine, although those who issue or circulate them with intent to create or continue them as a circulating medium, are liable to a penalty. And it is therefore an injury to any individual to have simulated or counterfeited notes or bills of that description imposed upon him for value received from him.

There can be no question that genuine $3 bills on the Bank of Cincinnati are of value to the holder in this state, and therefore to transfer to him, for value received from him, counterfeited notes of that description, is a fraud and an injury to him. The question in this case is not whether an individual could be indicted for counterfeiting or passing such notes or not, and therefore I say nothing about it. But the question is, whether an indictment will lie against two or more for confederating and conspiring to pass counterfeited and false notes of that description upon an individual or individuals for the purpose of cheating him. The conspiracy to cheat, in such case, is the gist of the offence. All combinations in society to effect an evil purpose are dangerous, and when their object and purpose is to cheat an individual, by whatever means, they are obnoxious to the criminal law. In the case of The Commonwealth v. McKisson, 8 S. & R. 420, it was ruled that, in an indictment for conspiracy to cheat, an overt act need not be set out. The concentrated energy of several combined wills, operating simultaneously and by concert upon any one individual, is dangerous, even to the cautious and circumspect; but when brought to bear upon the unwary and unsuspecting, it is fatal. It is therefore the business of the law to protect individuals from such conspiracies. It is not a crime punishable by the laws for an individual to marry a minor, although the parent of the female refuse his consent; but a conspiracy to effect and bring about such marriage is indictable, as was held in the case of The Commonwealth v. Miflin, 5 W. & S. 461, in which case it is truly asserted to be settled law, that there are acts which, though innocent in themselves when done by an individual, .are criminal when done by concert.

I am very far from intimating that the passage of bills or notes under five dollars, which are false and counterfeited, by any one who knows them to be counterfeit, is innocent in any aspect -when done by an individual; but it is aggravated into higher guilt when done by conspiracy, and undoubtedly is an injury both to society and the individual defrauded, and within the purview of the criminal law against conspiracies.

Bills and notes under five dollars are circulated daily and hourly here and everywhere; and it would be an evil of enormous magnitude if conspiracies to make or circulate false or forged ones were beyond or above the reach of the law. But such an offence is a conspiracy to cheat, and therefore indictable. The first error assigned is therefore overruled.

As to the second error assigned, that the offence is not sufficiently set out, I have only to say, that the third count of the indictment, and that on which the plaintiff in error was convicted, is drawn with formal precision and full amplitude, and that every element or ingredient necessary to constitute the offence is averred in sufficient form.

Judgment affirmed.


text:
    McKeon v. King.
    Where the petition of a landlord to recover possession of the demised property under the act of 1830 sets out the facts necessary to give the magistrates jurisdiction, and their inquest recites that they found these facts to be true, it is sufficient, though the facts found are not otherwise stated in the inquest.
    A sheriff’s vendee of the landlord’s title is within the act.
    A bill of exceptions cannot be taken in such proceedings.
    In error from the Common Pleas of Allegheny.
    The plaintiff was the sheriff’s vendee of the title of defendant’s landlord. The petition presented by him to two justices, set out the demise to defendant, the sale to plaintiff, that the rent was in arrear, &c. The inquests recited this petition, and found “that the particulars of the complaint were just and true.” Objections were taken to certain witnesses, and the proceedings were affirmed by the court.

      Mellon, for plaintiff in error.

      Dunlop, contó.

      Sept. 23.
   Gibson, C. J.

The statute expressly gives jurisdiction of a case like the present; and policy requires that the proceedings be not too nicely scanned as to form. The plaint and inquisition before us wouldj however, stand the test of a severe scrutiny even as to that. True, it is not detailed in the inquisition, which is the material part of it, that the complainant had demised the premises for years to a person from whom the complainant derives title, that rent was in arrear, and that there was not sufficient unprivileged property on the premises to answer a distress for it: but the plaint contains explicit averments of these several facts, and they are generally found in the inquisition, to be “in all particulars just and true.” They might have been found directly and specially; but surely enough was found by a tribunal of laymen, without the tautology of repeating them. As to the fact that the lease was not made directly by the complainant, it is entirely clear that an assignee is entitled to the remedy. The exceptions to evidence were out of place; for there is no such thing at common law, and the statute extends no further than to courts of record.

Judgment affirmed.


text:
    Wagner v. Wagner.
    Where defendant pays the debt after suit brought, the plaintiff is entitled to judgment for costs.
    In error from the District Court of Allegheny.
    After suit brought, the defendant filed a plea, that since the issuing of the writ, he had paid the claim on which suit was brought. The plaintiff filed a paper admitting the truth of the plea, and praying judgment for costs.
    The court gave judgment for defendant.

      Sept. 18.
   Coulter, J.

The pleadings in the cause are neither technical nor formal. The plea puis darrein continuance lacks something of what has been considered necessary. It was pleaded, before issue was joined and before continuance, and ought to have prayed judgment as to the further maintenance of the suit by the plaintiff. The single fact is alleged, that he has paid the claim of the plaintiff, since the suit was commenced. The plaintiff admits that the defendant has paid the claim since the suit was brought, and asks judgment for costs. The court below give judgment for the defendant on the ground that the reply of the plaintiff amounts to a demurrer, and that, having settled without providing for the payment of costs, he cannot recover them. We are not over-technical in this state, as to pleadings; and I do not know what course the court below should have prescribed to the plaintiff, when this plea puis darrein continuance was put in before there was a continuance or issue joined. It seems to me that nothing was more natural than that the plaintiff’s attorneys should adopt the very course which they did; that is, admit the fact to be as alleged by defendant, which they could not deny, and ask judgment for costs.

The plea of defendant was an admission that the action was well brought, and that the plaintiff was entitled to costs up to the time of the payment of the money. Why should the plaintiff demur to what he knew was just and true? His reply has no feature of demurrer, but is simply an admission of the statement of defendant as true, which entitled him to costs; and he asks for costs. What better form could an issue have been thrown into, to determine who was entitled to costs ? The notion that a party who receives a debt and gives an acquittance for it, when suit is pending, thereby gives up his right to costs, is new to me in practice, and I believe to every member of this court. Nothing is more common in practice than to pay the amount of debt, and after-wards pay the costs. The very instance under consideration shows the prevalence of the practice. It is often convenient to receive money at some distance from the public offices, or when perhaps the attorneys are absent from home. Founded on the practice in this state, we think the plaintiff was entitled to costs, and that the judgment of the court below was erroneous.

Judgment reversed, and judgment rendered for the plaintiff for costs.


text:
    Young’s Petition.
    A writ of certiorari is within the act of 1791, and will be quashed if the judgment or decree sought to be removed was not entered within seven years.
    Certiorari to the Common Pleas of Allegheny.
    Young filed a petition to prove a contract for the conveyance of lands against the executors of Aitken. Proof was made, and a decree accordingly entered in 1828, that the facts were sufficiently proved within the act of 1818.
    This certiorari was sued out as late as 1846.

      Hamilton now moved to quash the writ.

      McOandless and Metcalf, contrá.

      Sept. 18.
   Rogers, J.

It is claimed on the part of the appellee that the certiorari must be quashed on. two grounds: 1st, That there is no allocatur; and 2d, That more than seven years have elapsed since the decree of the court. Regularly, a certiorari must be allowed either generally or specially; but as a certiorari in proper cases is a matter of right, and as this a case where a special allocatur is not required, this objection would interpose no difficulty, for if there was nothing else, we would allow the writ nunc pro tunc. But the second exception has something more substantial in it. The act of the 13th April, 1791, declares that no fine or common recovery, nor any judgment in a real, personal, or mixed action, nor any appeal from the Register’s Court, shall be awarded or reversed for any defect or error therein, unless the writ of error be commenced, or the appeal brought and prosecuted within seven years after such fine levied, common recovery suffered, judgment signed and entered of record, and decree pronounced. This proceeding, it is true, does not come within the letter, but it certainly does within the spirit of the act. The object of the act is to limit the time when a party shall be permitted to review a judgment or decree of a subordinate court. Now this object would in a measure be defeated if this court would be at liberty to reverse a decree merely because the proceedings had been removed by certiorari, and not by writ of error. An appeal is in the nature of a new trial; a certiorari, in the nature of a writ of error. A certiorari is generally a proceeding only to give effect to objections to the form of proceedings: 2 Chitty’s General Practice, 219. The only effect of the certiorari in this case is to remove the proceedings for the inspection of the court. In substance, it is an appeal from the decision of the Court of Common Pleas, a proceeding to obtain a rehearing on the merits, and as such, it unquestionably comes within the true intent and meaning of the act of the 13th April, 1791, which prohibits this court from reversing proceedings after seven years may have elapsed from the time of the decree pronounced. And although it is not a writ of error technically so called, yet it is in the nature of a writ of error, its only office being to remove the proceedings for the inspection of the court. The act of limitations, as well to writs of error or certiorari, as in other cases, is a most beneficial statute, being a statute of repose, and absolutely necessary to quiet titles. As such it has been much favoured in latter times by the courts.

Writ of certiorari quashed, and record remitted.


author: Per Curiam.

text:
    In re Beeler’s Road.
    Where proceedings in a road case have been affirmed by this court, the Quarter Sessions cannot, under the original proceedings, alter the courses marked on the land by the viewers, which are always to govern, as in other cases of surveys.
    Certiorari to the Quarter Sessions of Allegheny.
    A road having been laid out and marked on the land, the proceedings were removed to this court and affirmed. After the cause was remitted, an “ additional report of viewers” was filed, correcting certain errors in their former report. A re-review was ordered to examine these errors and report made, on which an order to open accordingly was made.
    From this an appeal was taken.

      Hamilton and Loomis, for appellant.

      Washington, contrd.

      Sept. 11.
   Per Curiam.

This record is a budget of blunders. The Quarter Sessions had no power to interfere with the proceedings after they had been affirmed by this court. Nothing remained but to order the road to be opened according to the survey; and though two plots of it had been returned slightly differing in one of the courses, there was no suggestion of a difference between the lines on the ground, which, in this as well as in every other case, constitute the survey. Whatever may be the description of those lines in the order, it will be the duty of the supervisors to go by the lines of the survey as they discover them from the marks, or, these failing, from the information of those who were present when the lines were run.

Proceedings, subsequent to confirmation by the Supreme Court, quashed.


text:
    Overseers v. Kline.
    One who has used the services of a negro as a reputed slave is liable to the township for her support, when she becomes chargeable as a pauper.
    But he is not liable for the value of the services of the negro.
    The overseers of the poor may sue in that name.
    In error from the District Court of Allegheny.
    The overseers of the poor of Baldwin township brought an action against Kline, to recover the cost of the maintenance of a negro who had been held by him as a slave, and also to recover the value of her services while so held. It was in proof that the negro had been bought and sold as a slave, and reputed as such for fifty-six years, and had lived with defendant for many years. The court instructed the jury, that as there was no evidence that the negro was lawfully a slave of defendant, he was not liable, under the act of Assembly, for her maintenance; nor was he liable for the value of her services, under Urie v. Johnston, 3 Penn. Rep. 212.

      Dunlop, for plaintiff in error.

      Hampden, contó.

      Sept. 16.
   Rogers, J.

The first point, viz: whether the plaintiffs were entitled to recover the cost and maintenance of the negro, Sylph, from the time that she became a charge to the township until the commencement of this suit, is virtually decided in favour of the plaintiffs, in Overseers of Ferguson v. Overseers of Buffaloe, 6 S. & R. 104. The only difference is, that one was a contest between two townships; the other, between the township and the master, de facto. The principle on which the case turns, applies to this case. A slave, as is there ruled, who has been so defectively registered under the act of the 1st March, 1180, as to be entitled to his freedom, but who nevertheless has continued, until an advanced age, a slave defacto, has a settlement in the township in which his master resides, which is bound to maintain him until the master can be compelled to talce the burden on himself. It is, it is true, not strictly decided, but assumed, that the master is ultimately liable for the maintenance of the slave, on the impregnable ground, that if the slave continued with his master, whether ignorantly or voluntarily, until he became unable to make provision for his old age, it would be inhuman to permit the master to deny the legality of the servitude, and thus get rid of the duties he would else have to fulfil. The master would be estopped from controverting the legality of the servitude.

But while we differ from the court on that point, we agree that the plaintiff has no right to recover, on a quantum meruit, compensation for the services of Sylph, during the time she was held in servitude by the defendant. This point is also ruled in Urie v. Johnston, 3 Penn. Rep. 212, and in Alfred v. Fitz James, 3 Esp. 3. There is no difference between the case of Urie v. John ston and this, except that in one case the slave was registered; in the other he was not. But in neither case is it absolutely void; for, in The Overseers of Ferguson Township v. The Overseers of Buffaloe Township, Judge Gribson remarks, that the act of 1780 does not, in express terms, render the servitude of a.n unrecorded negro void. Sylph was at least held by a claim of right. There is not the slightest reason to believe that the defendant knew that she was entitled to her liberty, in consequence of the omission to register her name. That was as well known to Sylph as to him. The case of Swires v. Parsons, 5 W. & S. 357, has a direct bearing on this point. The implication of a promise to pay for her work and labour, is rebutted by proof of circumstances, showing such a relation between the parties as repels the idea of contract. If it appeared in evidence, that the defendant knew of the non-registry of Sylph, that she was entitled to her liberty, and fraudulently concealed that fact from her, a different ease would be presented. Or if he had compelled her (taking advantage of her ignorance) to serve him, it would be another matter. She might waive the tort, and recover on a quantum meruit perhaps. But this is not pretended. The probability is, that the defendant, who obtained title to her services by his intermarriage with Mrs. Brawdy, who purchased her for a fair price, honestly believed her to be a slave; and there is nothing to affect his conscience, or to make it inequitable or unjust to withhold from her wages for the time she remained voluntarily his servant. Had he known the true state of the case, non constat that he would not have dispensed with her services altogether.

Taking this view of the case, which makes it necessary to remand the record, it is right to notice the objection to the form of the action. It seems to me suit may be sustained under the 10th section of the act of 9th March, 1771, 1 Smith’s Laws, 338, which declares overseers of the poor, of the respective townships, to' be bodies corporate, and enables them to sue and be sued. This act is not expressly repealed, and may well stand with the act of the 16th June, 1836.

Judgment reversed, and a venire de novo awarded.


text:
    Weaver v. Wood.
    Where a imiten contract is executed for a consideration therein mentioned, a party is not concluded in an action for the breach of a parol contract from showing that the agreement evidenced by the written contract was the consideration for the contemporaneous parol contract. The written agreement is conclusive as evidence of the terms, only in actions founded on that contract.
    An agreement to lease at a fair rent is sufficiently certain, for a tender of an agreement for a sufficient rent must precede the action for a breach of the agreement to lease ; unless the defendant has waived a tender. And a letting of the premises to another would be a waiver.
    In error from tbe District Court of Allegheny.
    The plaintiff declared that he was possessed of the unexpired term, viz: four years, of an hotel which was destroyed by fire. That the defendant, the lessor, was desirous of rebuilding the same, but could not do so unless the plaintiff would surrender his term; and as the new house was to be more expensive than the former one, defendant could not let it for the same rent. That the defendant promised, in consideration of a surrender of plaintiff’s term, that if he erected an hotel upon the land he would “ give a lease of the same” to plaintiff, when ready for use, for the remainder of the old term, for a fair rent, or for such rent as any good man would give. In consideration whereof, plaintiff did surrender his term, and defendant erected the house. But though often requested to fix a rent and give plaintiff a lease, he refused so to do, and demised the same to a stranger. A verdict was entered for plaintiff on this count, reserving certain points.
    The surrender referred to in the narr. was signed by plaintiff and several others, lessees of defendant. It recited their tenancies, and the destruction of the buildings by fire, and “ in consideration of the same, and of the said Wood (defendant) hereby releasing us from any rent or rents from said date, and the sum of one dollar to us,” &c., surrendered their terms.
    Judgment non obstante iVas entered for defendant on the points reserved, which were decided as follows: — The contract was in writing, and therefore parol evidence of a different consideration could not be given: 4 Rawle, 130. That the contract to “ give a lease” implied a writing, and showed the agreement was imperfect. That there was no mutuality, since the plaintiff was not bound to accept a lease: 7 W. 50; 14 Eng. C. L. Rep. 170; 17 S. & R. 45; 1 Johns. C. Rep. 273. That the contract was uncertain as to the •amount of the rent.

      Me Landless and Loomis, for plaintiff in error.

      Shaler and Williams, contrá.

      Oct. 16.
   Gibson, C. J.

The questions reserved at the trial

were, whether the whole contract was embodied in the written surrender of the lease: whether the parol contract set up as independent of it, was mutual: and whether it was certain. It was supposed that the parol evidence contradicted the allegation of consideration contained in the written surrender, which was stated in it to be the nominal sum of a dollar, and a release from the payment of rent, which would have continued to accrue. For the purpose of its efficacy, these undoubtedly constituted the consideration of the surrender, which however was, in turn, the consideration of another and a distinct contract. Had Weaver refused to give up the premises, he would not have been allowed to say that the promise of Wood to give him another lease, was the consideration for the surrender of the previous one, and that, as it had failed, he was not bound by the instrument. The consideration to support it would have been that which was expressed in it, and he would have been compelled to yield. On the other hand, Wood may not insist that the parol promise is controlled by the consideration of the surrender. The executed contract and the executory one, are distinct and without connexion, further than that the former is the consideration of the latter. This consideration belongs to the class called executory in the text-books, as distinguished from a concurrent consideration, which is promise for promise, by which both parties are bound, or neither is. By a conditional promise, resting on an executory consideration, neither is bound till the consideration has been executed. It is noticed in Chitty on Contracts, 16; and the nature of it was said in Clark v. Russel, 3 Watts, 217, to be such, that if a party promise another a definite or a reasonable reward if he will do a particular thing, the party promised is not bound to do it; yet if he does it without more, he entitles himself to the reward. On the other hand, the promisor may retract before performance. Strictly speaking, there is no contract before that; for the offer is accepted only by the performance of the condition of it; but when that is done, there is the concurrent assent of two minds, and the contract is mutual as well as complete. What was the promise and its consideration here ? I want you to surrender your lease, says Wood to Weaver, that I may build a new hotel on the ruins of the old one: do that thing, and I will give you a lease of it. Weaver does that thing, and claims performance of the promise. But, says Wood, here is yonx written surrender, which says nothing of any promise, hut on the contrary says that the consideration of it is a dollar and a release of rent: you can’t contradict that. I do not contradict it, says Weaver. I agree that it was the consideration of my surrender, and I agree that it concludes me from maintaining that my surrender was the consideration of your promise, without which I would not have signed it. As the paper was not sealed, a consideration was necessary to support it; and hence the insignificant one of a dollar, and the idle release of rent that was to cease with the lease. Can it be said for this, that the instrument concluded Weaver from asserting anything, except that there was a sufficient consideration for it ? The nature of the transaction was misconceived, by treating the two contracts as a single one, resting on a concurrent consideration, and requiring, therefore, in the first instance, to be mutually binding. The promise rested on an executory consideration, and whether it were to do the promisor a specific act of service, or to execute an instrument which would give him a legal advantage, cannot differ the nature or the effect of it. The benefit was conferred by a written surrender ; but it had no less effect to support the promise than if it had been effected before the statute of frauds, by cancellation or destruction of the lease. The writing was not framed exclusively for the case of Weaver, who signed it in common with other tenants of Wood in the same predicament; but when that was done, the contract became mutual and binding. The objection to it for uncertainty or incompleteness, is equally fallacious. A written lease was doubtless contemplated: yet the framing and execution of it was not to be a reduction of the terms of the bargain to writing, but a fulfilment of it by performance of the thing to be done. A vendor would not be listened to in defending an action for the breach of a parol contract to convey, were he to assert that the bargain was incomplete till it was executed and obsolete. To allow such a defence would make every such contract an abortion; yet it is settled that an action may be maintained on it. For the rest, an agreement for a lease at a fair rent, seems certain enough, as it may be reduced to certainty by recourse to extrinsic circumstances. Had not Wood put it out of his power to perform his promise by leasing to another, Weaver must have offered him a rent which would satisfy a jury that it was a fair one, before he had instituted his action; but that the repudiation of the contract exonerated him from it is plain, on a familiar principle of .the law of tender. The value of rents is not more variable than the price of goods or labour; yet the action of indebitatus assumpsit for- a quantum valebant or a quantum meruit is founded on a contract which leaves the price to the jury. Where a mode of fixing it has been appointed by the parties, it must be pursued, or the contract will be so imperfect that an action cannot be maintained on it; but it was held in Dennis v. Alexander, 3 Barr, 51, that it is so only while something remains to be done by the terms of the contract itself. In Scott v. Wells, 6 W. & S. 368, it was held that the terms of, a sale are certain enough where the price of the thing can be ascertained by computation; and in Smyth v. Craig, Ib. 20, that the quantity of a thing sold must be determined by the jury when the ascertainment of it by means provided by the parties, has been prevented by the obstinacy of the defendant. Had the point been taken, it would have been more difficult to sustain the action on the proof to fix the extent of the term; but there was perhaps some evidence of a promise to let for a period equal to the term which the surrendered lease had to run; but it was not made a subject of contest, and the law of the case, in other respects, entitles the plaintiff to recover.

Judgment for the defendant reversed; and judgment for the plaintiff.


text:
    Sullivan v. Weaver.
    A writ of erre® does not lie to a judgment on an award under the compulsory arbitration act.
    In error from the Common Pleas of Armstrong.
    The plaintiff in this case entered a rule to choose arbitrators, who, having been chosen, filed their report. The defendant then sued out this writ of error, and assigned errors in the narr. and the award.

      Phelps, for plaintiff in error.

      McOlure, contó.

      Oct. 18.
   Burnside, J.

From proceedings under the compulsory arbitration act, there is no remedy by writ of error. The act of Assembly gives a remedy by appeal, and appeal only. Such has been the uniform course of decision in this court. The cases on this subject are collected and reviewed by Mr. Justice Huston in Le Barren v. Harriott et al. 3 Penn. Rep. 154. In Brinter v. Ridenhour, not reported, it was held, after award for the plaintiff,- and no cause of action stated in the declaration, this court would not interfere. We can do nothing for the plaintiff in error. .

Judgment affirmed.


text:
    Welty v. Ruffner.
    It seems that service of rules to accept lands appraised in partition in the Or- ' phans’ Court, or to show cause why they should not be sold, is properly made on the parties in interest at the commencement of the proceedings, and their subsequent vendees need not be followed. But the sale cannot be avoided collaterally for such a defect, if it be one.
    In error from the Common Pleas of Westmoreland.
    Ruffner dying, his heirs proceeded, in the Orphans’ Court, to have partition of his lands. After the date of the inquest, one of the heirs conveyed to Layton and Hughes, whose deed was recorded before the confirmation. Personal service of the rule to accept or refuse, was ordered and made upon the heir who had conveyed. The plaintiff purchased from Layton and Hughes by an unrecorded deed, before the rule to show cause why the land should not be sold was granted. Personal service was ordered and made of this rule upon the parties to the record. A sale was made and confirmed, and the heir who had conveyed received a share of the proceeds. The plaintiff then brought ejectment for his share of the land, alleging the sale was defective for want of personal service of the notices; but,
    White, P. J., told the jury he could not recover on that ground.

      jKuhns, for plaintiff in error.
    Laws, contrá.

      Oct. 19.
   Gibson, C. J.

This ejectment is brought to recover the share of Mary Ilanlin, one of the children of George Ruffner, an intestate, whose land was parted in the Orphans’ Court, on the ground that the plaintiff was not served with notice of the rule to show cause why the estate rejected by the children, at the valuation, should not be sold. Mary had not parted with her share when the partition was commenced, but she and her husband sold it to Layton and Hughes, subsequently to the valuation, but before service of the rule to come in and elect; and they in turn sold it to the plaintiff, before the rule to., show cause was served. The conveyance to them was recorded in due time; but their conveyance to the plaintiff has not been recorded at all. The, objection is, that these notices Avere served on Mary, Avith the other children, and not on the plaintiff or his vendors. A petitioner for partition must state the names of the heirs as the groundwork of the proceeding; but it would'be most unreasonable to make him follow the ownership through every transfer, during the pendency of it. Unless the deeds were recorded, he would be unable to do so; and yet they are recorded for the protection only of purchasers against secret conveyances in pais; not to affect a purchaser under the decree of a court of record, with notice of an irregularity in the proceedings, traced from a source so remote. The presumption is in-favour of regularity, if the contrary is not self-apparent; and a purchaser under proceedings regular on the face of them, may rely on it. But the plaintiff did not even record his deed; and whatever plausibility there would have been in an objection urged by Layton and Hughes, he must be silent. But even -they would have had no case. The vendee of a child’s share takes an interest in an estate Avhich he knows Avill be parted in a short time; and if he does not choose to rely on his own vigilance, he must stipulate for a communication of the notice necessary to be given to his vendor; and should he omit to do so, still lis pendens is as near to actual notice as the registry of a deed: and perhaps there never was a case in Avhich the representative of a child’s share Avas unapprised by it of a proceeding like the present. It may be affirmed, therefore, that neither injustice nor inconvenience will be felt, from the principle. There is, however, another, which is equally decisive. Even if the supposed irregularity would be fatal to the sale on- appeal, it would not affect the validity of- it in a collateral action. The Orphans’ Court is a court of record; and it has all the qualities incidental to such a tribunal: consequently, the principle just stated is applicable to its decrees in all its force. Painter v. Henderson, 7 Barr, 48, is in substance this very case; and there it was held that the decree of the Orphans’ Court in partition, assigning the estate to the widow instead of the children, Avas not to be examined collaterally. And even a reversal of a decree on appeal, would not avoid a sale under it. The 49th section of the act of 1832 provides, “ that no reversal of any decree or proceedings of the Orphans’ Court, for the sale of real estate, shall have the effect of divesting any estate or interest acquired under such decree or proceedings, by persons not party thereto, when the Orphans’ Court has jurisdiction of the cause” — a provision which fits the case before us; for it would be strange if a party who could not affect the sale by appeal, might do it collaterally. He must look to the purchase-money, and follow it into the hands that have received it mala fide.

Judgment affirmed.