text:
    Odenbaugh versus Bradford.
    1. If a deed absolute on its face be in fact a mortgage, it has a legal effect which cannot be changed except by payment or release.
    2. Once a mortgage always a mortgage.
    3. The deed being conditional, the mortgagor has the same time to make payment that any other debtor has.
    4. Delay in asserting a deed to be a mortgage, has not the same effect as in seeking in equity to enforce performance of an executory contract.
    5. Payment does not stand on the footing of performance in equity.
    6. The only effect delay has as to a mortgage, is its bearing on the primary question mortgage or no mortgage.
    7. The question mortgage or no mortgage properly submitted to the jury, under the evidence in this case.
    November 17th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cfreene county: Of October and November Term 1870, No. 115.
    This was an action of ejectment for 157 acres of land brought to June Term 1852, by David Bradford against George W. Odenbaugh.
    The land in dispute belonged to James Bradford, who by his will dated in 1821, devised it to his widow, Catharine Bradford for life and at her decease to the plaintiff. On the 14th of August 1840, the widow being still alive, the plaintiff and his wife executed a deed in fee to the defendant for the premises, which was recorded the same day. The consideration stated in the deed was $600 “in hand paid” by the defendant to the plaintiff. No money however appeared to have been paid, but the following obligation had been given by the defendant to the plaintiff :—

      “ David Bradford having this day executed' to me a deed for a tract of 'land, now I do hereby bind and obligate myself in consideration thereof, to pay to the said David Bradford the sum of Six Hundred Dollars, Four Hundred. Dollars to be paid in hand, and One Hundred Dollars on the first of April 1842, and the remaining One Hundred Dollars the first of April 1843. The liens that are- now on the Docket against the said David Bradford are to be deducted out of the first payment. Witness my hand and seal the fifteenth day of August 1840.
    “ G. W. Odenbaugh. [seal.]”
    Within a few months after the conveyance a number of liens, amounting to about $400 or more, against the plaintiff, were assigned to' the defendant. The widow of J ames Bradford died in 1841, aged about 62 years. The plaintiff claimed to recover the land, on the ground that the deed of conveyance was a mortgage, and that the defendant had been repaid all he had advanced with interest from the profits of the land.
    The cause was tried June 21st 1870, before Gilmore, P. J.
    The plaintiff testified that in 1840, the-defendant, who was his half brother, came to him where he was mowing, and in the presence of C. Odenbaugh, Jacob Clifford, and others, said to him:—
    “ Dave, I see you have got into trouble; I see your place is advertised for sale.” I said “Yes, I saw that myself.” Says he, “ I come to see you if I could not make some arrangement to save the property for you.” Says I, “ What way will you do it ?” He said, “ I was thinking if you would make me a deed for the place, I would pay off the judgments against the place. I don’t want strangers to get hold of it, if they do you will never get it back; and whenever you pay me back my money and interest, you shall have the land back again.” Christian Odenbaugh spoke up and said, “Now George, if Dave makes you a deed, you will not take any advantage of him, will you ?” “No,” says he, “ I won’t. God forbid that I should.” This was all that was said that day. Before he started home, he said,'“You can study till to-morrow, and I will be back.” He came back the next day into the meadow. He came over the same language the next day as near as I can recollect. Just as we were going to supper, he said, “ Come over to town to-morrow, and bring your wife with you to give me a deed for the security of this money.” Then Christian Odenbaugh spoke up and said, “Now George, if Dave does come over, you will not take any advantage of him ?” “ No,” says George, “I will not.” The next day I came to town and brought my wife. We went to Mr. Cleavenger’s office and got him to write the deed. After the deed was written, “Now,” says Odenbaugh, “we will go down to Esq. Hook’s.” When we got down there, talked a little, but Odenbaugh called my wife out into the entry — I did not hear the conversation between my wife and him. They were not gone long, and then the deed was executed and delivered.”
    Jacob Clifford testified that he heard George Odenbaugh say, “ If I get my money from David Bradford he can have his place back again. I want to make myself safe. I must have a deed or bond from Bradford. I was mowing in Bradford’s meadow.”
    Mary Bradford, wife of plaintiff, testified: “ When I come to Esq. Hook’s I refused to sign and acknowledge the deed. George took me by myself into the entry. He told me I need not be afraid to sign it — it was only to keep strangers from getting it. And he said as quick as Dave paid him the money back again with interest, he was to have the land back again. I then signed and acknowledged the deed.”
    Christian Odenbaugh testified: “ I was in the meadow when George came there. I believe he was there two days in succession. I have forgotten most of the conversation that took place. When George was about leaving he and Dave were talking about a deed. I said, “ George, if Dave makes you a deed, you will not take any advantage of him?” He said, “No.” George said he came there to save the property being sold by the sheriff.
    James Porter testified that he asked Odenbaugh if he thought he had a good title to the property; he said “ he thought he had under the present circumstances, since Bradford was a very worthless man, and he thought he could not raise the money to pay him back.”
    M. Barnes testified that he heard defendant say that he was “ to release the land on condition Bradford would pay back the money, but that Bradford was so worthless he thought he would never do it.”
    Other witnesses testified to similar declarations by the defendant.
    The plaintiff further gave evidence .that there were about 100 acres of cultivable land in the tract. Witnesses testified variously that at the time of the conveyance, the land was worth $15, $16 and $20 per acre, subject to the widow’s life estate; and that it would rent for $75 to $100 and $1 to $1.50 per acre per annum besides taxes and repairs. -
    There was evidence also that the plaintiff with the aid of a friend procured $600 and tendered it to the defendant before bringing this suit; he had the money but a short time.
    The defendant testified in direct contradiction of the plaintiff and his wife, C. Odenbaugh and Clifford; he denied that he had ever stated to any one that he took the land as security for his money. He said he did not enter satisfaction on the liens against the plaintiff which had been assigned to him, until after he got possession, because his attorneys so advised him.
    He gave in evidence the record of an ejectment brought by him against the plaintiff for this land to September Term 1841, and his recovery on the 21st of September 1842 by verdict. He gave evidence of-payments to and for the plaintiff considerably beyond the consideration stated in the deed ; also that the consideration was as much as the land was worth at the time. He testified it was worth $4 or $5 per acre, one of his witnesses testified that it was worth $10 or $11 per acre; also that the land was in a very bad condition at the date of the conveyance. The plaintiff in rebuttal gave evidence by E. M. Sayers, Esq., who was his attorney in th,e trial of the ejectment by Odenbaugh, that the plaintiff (Bradford) then claimed that the deed was a mortgage, and that the defendant (Odenbaugh) recovered under the charge of the court, because Bradford had not tendered the money. ■
    E. W. Downey, Esq., who was present at that trial, testified substantially in the same manner; and alsb that the question whether the deed was a mortgage or not, had not been submitted to the jury.
    The following were points of the plaintiff and the answers:—
    4. “ The testimony of Bradford as to the existence and terms of the arrangement between him- and Odenbaugh is strongly corroborated by the testimony of his wife, if believed, as to what occurred between her and Odenbaugh at the execution of the deed ; it is also corroborated by the testimony, if believed, of William Kent, Elizabeth Kent, James Porter, John Porter, Jesse Hook, Mordecai Barnes, Jacob Clifford and Christian Odenbaugh.”
    Answer: “ If the wife of the plaintiff and the witnesses referred to, are believed, it certainly corroborates the plaintiff, and may be convincing evidence that the deed was a mere mortgage.”
    6. “ If Odenbaugh has been repaid the money advanced for Bradford with interest, from the rents, issues and profits of the land, his rights under the deed have 'ceased, if said deed was a mortgage as contended by the plaintiff.”
    Answer : “ If the defendant has been compensated by the legitimate profits of the land, for the money advanced, his rights under the deed have ceased, and the deed as a mortgage, may be considered as extinguished.”
    7. “ It being admitted that at the trial of the case of Odenbaugh v. Bradford, at September Term 1842, the question whether the deed in controversy was a mortgage, was not submitted to or passed upon by the jury, but their finding under the charge of the court, was on the ground that Bradford had not paid or produced the money in court, the judgment in that case is not even persuasive evidence in this case.”
    Answer: “It was admitted that the ejectment between these parties tried in 1842, forms no bar to this action. We can only say that the result of the verdict and judgment under the proof, can have but small bearing upon this case. But we will not say that it has no bearing.”*
    The defendant’s 4th point and the answer were:—
    “ The testimony of the plaintiff being flatly contradicted by the defendant in all its parts, and the statement of his wife being at variance with the deed, and insufficient, the plaintiff’s case must depend entirely upon other proof; and this consisting of loose declarations made to third parties, before or after the execution of the deed, is insufficient to move a chancellor to decree the deed defeasible, and therefore the plaintiff cannot recover, and the verdict of the jury must be for the defendant.”
    Answer : “ Here we are virtually requested to withdraw this case from your jurisdiction, but we refuse to do so, and leave to you to say, whether on the whole of the evidence in the case, you are clearly and fully convinced that the deed was a mortgage. And we further instruct you that if you so find and believe the defendant (the mortgagee being in possession) has received from the profits sufficient to reimburse him for the money secured by the- mortgage, the plaintiff will be entitled to recover. If you do not find that the deed was a mortgage, or if you do not find that the defendant has been reimbursed from the profits of the place, your verdict will be for the defendant.”
    The verdict was for the plaintiff.
    The defendant took a writ of error, and assigned for error the answers to the points, as given above.

      C. A. Black (with whom were Phelan & Downey, for plaintiff in error.
    The court was to decide whether the defendant’s primá. facie absolute deed was a mortgage: De France v. De France, 10 Casey 385. The judge’s conscience as a chancellor’s must be satisfied that the facts show that the deed is not absolute as it purports to be: Haslett v. Haslett, 6 Watts 464; Brawdy v. Brawdy, 7 Barr 167; Moore v. Small, 7 Harris 468. The proof to change the apparent character of the deed must be clear, express, direct, positive and unambiguous: Bash v. Bash, 9 Barr 260; 3 Am. Lead. Cas. in Eq. 626; Cook v. Gudger, 3 Jones’s Eq. 182. An equity of redemption must be shown: Storch v. Car, 4 Casey 135; and this must be established by facts and circumstances : Streator v. Jones, 3 Hawks 223; McDonald v. McLeod, 1 Iredell’s Eq. 123; Franklin v. Roberts, 2 Id. 260. The claim must be an antecedent debt or contemporaneous loan, and must survive the instrument: Todd v. Campbell, 8 Casey 253.

      E. M. Bayers, for defendant in error,
    cited Rhines v. Baird, 5 Wright 263; Brown v. Wright, 4 Yerger (Tenn.) 57; Random v. Swartz, 1 Yeates 579; Addison on Contracts 302; Russell v. Southard, 12 How. 139.

      January 3d 1871,
   The opinion of the court was delivered,

by Agnew, J.

Upon a thorough examination of this case, a single question is presented, Whether on all the evidence the court was justified in submitting the facts to the jury ? Without laying down any rule, it may be conceded, for the purpose of the argument, that a deed absolute on its face cannot be converted into a mortgage, except upon clear and satisfactory evidence of its character as a security for the repayment of money; that the plaintiff in an ejectment to recover against the deed by converting it into a mortgage stands in the position of plaintiff in a bill in equity to redeem; and that the testimony of himself and the defendant have the same effect as the averments contained in the bill and answer: and, finally, that it is the duty of the judge, as it is that of a chancellor, to determine the sufficiency of the evidence, and, if it be insufficient, to refuse to submit the case to the jury. Carrying these views into the examination, we have not been able to say that the court erred in submitting the evidence to the jury to find the fact whether the deed was absolute or conditional. It is a conceded fact, to. begin with, that in the year 1840 David Bradford, the plaintiff, was largely in debt; that his property was advertised at sheriff’s sale, and that he had been unable to raise means to pay the executions pressing him. According to Bradford’s testimony, George W. Odenbaugh, his half-brother, came to the meadow where he was mowing, and proposed an arrangement to relieve him. He recounts minutely the circumstances, giving time, place, the persons present, the reasons given by Odenbaugh and the proposition, which was, that if Bradford would make him a deed for the place he would pay off the judgments, and whenever Bradford paid him back the money and interest he should have the land back'. Two of the persons present were Christian Odenbaugh, a brother of George, and Jacob Clifford. Bradford states that Christian said to his brother, “ Now, George, if Dave makes you a deed you will not take any advantage of him, will you ?” No,” said George, “ I won’t. God forbid that I should.” David Bradford then details the facts as to going with his wife to town the next day and making the deed to Odenbaugh. On the other, hand, Odenbaugh denies the statement of Bradford in decided terms. He says Betsy Kent (his sister) first spoke to him of relieving Bradford, and he suggested that the Bradfords should do it. She returned and told him Bradford had failed to get the money. Bradford, he says, came the next day, and this was the first time he saw him on the subject. He then states the bargain for the purchase of the land at $600; his consulting Mr. Cleavinger, a lawyer; Bradford’s coming over the following day, and the finishing of .the business. Among other things, he stated that he had ho private conversation with Mrs. Bradford; that she was examined apart by the magistrate; that he never said to any one that the deed was only a security for money — never said so in his life, and he gives as a reason for not entering satisfaction on the judgments paid by him, that he was advised not to do so until he got the possession. Admitting, now, that the denial of Odenbaugh of the leading and material facts testified by Bradford sends us to an examination of the other evidence, how does the case stand? And first we may notice the contradiction of Odenbaugh’s statement by other witnesses. He is positively contradicted by Christian Odenbaugh and Jacob Clifford as to the first meeting with Bradford in relation to the offer of relief. He asserts Bradford came first to see him the day before the conveyance. They corroborate Bradford that Odenbaugh came to the meadow, and had there a conversation about the place and the deed. Christian Odenbaugh repeats in substance his own expression stated by Bradford, to wit, “ George, if Dave makes you a deed, you will not take any advantage of him?” and George’s reply, “No.” Odenbaugh is also contradicted by Mrs. Bradford as to their private interview in the entry, and her separate examination by the justice. He is contradicted in regard to the deed. He says he never said to any one that the deed was only a security. Mordecai Barnes, James Porter and Jesse Hook, distinctly say he did; and in effect the testimony of William Kent and Betsy Kent is the same thing. The reliability of Odenbaugh’s statement is therefore materially weakened by these contradictions. On the other hand, David Bradford’s testimony is corroborated in all its material facts. He is first directly corroborated as to the meeting in the meadow, and the conditional character of the deed to be made, by Christian Odenbaugh and Jacob Clifford, who were present. He is directly corroborated again by his wife as to the nature of the conveyance at the time it was executed and acknowledged. She refused to sign the deed. George took her out into the entry and explained it; said it was only to keep strangers from getting the land; as quick as Dave paid him the money with interest he was to have the land back.

Bradford is further corroborated by. Odenbaugh’s subsequent admissions to others on the very point of the case. Mordecai Barnes heard him say, in 1842 or 1848, that he was to release the land on condition that Bradford would pay back the money; but that Bradford was so worthless he thought he never would do it. James Porter testified that some time after Odenbaugh bought the place, he asked him if he thought he had a good title to the property; and he replied that he thought he had, under the circumstances, since Bradford was a very worthless man, and he thought he could not raise the money to pay him back. He said if Bradford raised the money he should have to give up the land! Jesse Hook says, that about thirty years ago George Odenbaugh told him he had got the farm for a certain sum of money, and Bradford was to have it back when he could return him or pay him back the money. This testimony is again strengthened by the .testimony of John Porter, William.Kent and Betsy Kent; for though these witnesses do not testify on the very point as do the others, the effect of their testimony is the same.

There are facts and circumstances which tend to support the case of the plaintiff. When Odenbaugh paid off the judgments against Bradford, instead of having them satisfied at once as encumbrances against the land purchased, he took assignments and never entered satisfaction thereon until after the result of the ejectment against Bradford in 1842. His explanation is, that he had legal advice not to satisfy them until he got the possession. But if he had an absolute deed, what better off did the assignment of the judgments make him ? They could not give possession, and only clouded his title. But if his. deed was a mortgage only, the ownership of the judgments would enable him to enforce payment, and collect his money. Nor did he need the assignments to show payment on his bond, for by the very terms of his bond he was to have credit on it for payment of the judgments.

The ground on which Bradford failed in the ejectment of 1841, as testified to by two intelligent gentlemen present, and one participating in the trial, is also corroborative. In that' ejectment Odenbaugh, who was plaintiff then, claimed under the deed, and Bradford set up by way of defence that it was a mortgage; but not having tendered the money, the court held that this alone would not prevent a recovery, and the question of mortgage or not was not passed upon by the jury. Now, this is entirely consistent with the claim of a mortgage by the defendant; and the fact that he then set it up within two years, after the date of the deed is evidence that the defence is no recent discovery, while the litigation is a good reason for fixing the character of the transaction in the minds of those who now testify in the cause.

The next fact is the value of the land. According to the testimony on part of the plaintiff, this land was worth in 1840 at the rate of $15 an acre, subject to his mother’s life estate, and its annual rental was worth from $1 to $1.50 per acre. This would make the property, then, worth $2355'. • On the part of the defendant two of the witnesses testify that the land was worth $10 an acre, which would give the sum of $1570. The others testify that the sum paid by Odenbaugh was a fair price. But if fair, the 157 acres at $600 for the whole, would give but $3.82 an acre, exhibiting a great discrepancy in the testimony of the defence. If," again, we take the age of Mrs. Bradford the mother of David when the deed was made as about sixty-one years, her expectancy of life thereafter would, according to the tables, be. about ten years. Then the purchase-money, $600, and its interest for ten years, $360, at six per cent., would be but $960. It is very evident, therefore, that Odenbaugh got the land for less than half -its value, and this is a circumstance favoring the fact of a mortgage.

Upon the whole case the evidence that the deed was a mortgage was so strong it would have been error to take it from the jury. The only countervailing facts are the delay of the plaintiff and the improvements of the defendant, and these have less force than at first they seem to have.

It is to be noticed that the defendant made no point at the trial upon either fact. As to the delay, the suit being brought in 1852, and standing on the record ever since as a notice and warning to the defendant of the continued claim of the plaintiff, it may well be accounted for in the very character the defendant gave of Bradford, as a worthless man and unable to raise the money to repay him. Even the money once tendered was raised out of bank for a few days and returned forthwith. Doubtless it was well known that it would not be accepted by defendant. Then as to the legal effect of the delay, it differs from an executory contract of purchase, which requires the vendee to be ever prompt, eager and ready to perform, in order to obtain the aid of a chancellor to enforce specific performance. If a mortgage, it stamps the deed with a legal effect that cannot be changed except by payment or release. Once a mortgage always a mortgage is the maxim of the law, and payment does not stand on the footing of performance in equity. The character of the deed being fixed by the evidence as conditional, the mortgagor has the same time to make payment that any other debtor has. The only effect that delay can have in such a case is in its bearing on the primary question.of mortgage or no mortgage; and even on that question its effect is weak in this case, for we find the plaintiff setting up the mortgage in the ejectment of 1841, tried in 1842, and after-wards in bringing this ejectment in 1852. Besides, the poverty of Bradford was a reason for delay in order to let the profits of the land repay the debt, Odenbaugh being in the possession by his recovery in 1842 in Pennsylvania, the mortgagee being entitled to recover in ejectment as one of. his remedies for collecting his money. If we add to the debt the claim for improvements, which Bradford’s sense of justice might induce him to suffer to be refunded, the whole delay would not stretch far beyond the period necessary to refund all to Odenbaugh out of the profits of the land. In regard to the improvements the defendant asked no instruction of the court. But if we take the rental as proved he had nothing to demand. This rental was proved at one dollar and a half per acre above the taxes and repairs — a few witnesses said one dollar an acre. Taking the medium, the cleared land alone, 100 acres, at $1.25 an acre, would give the annual sum of $125. Tbe possession of the defendant of twenty-seven years and over would give a total of $3375, a sum amply sufficient to pay for both debt and interest and the improvements. We cannot see, therefore, that any injustice has been done to the defendant. Upon a careful consideration of the whole evidence we are unable to say that the’ court erred in submitting the case to the jury, and

The judgment is therefore affirmed.


source: Caselaw Access Project

author: by Williams, J.

license: Public Domain

text:
    Baird versus Porter.
    1. An avowry in replevin, that the taking of the goods was on premises leased for which rent was in arrear, is good in form although it does not allege that the distress was taken for that rent.
    2. Such avowry would be good in substance when the plaintiff had declared in the detinuit, for the defendant might lawfully distrain the goods on the premises for rent and detain them during the period allowed to replevy them.
    3. The defendant had no right to retain the goods after a replevin, by giving a claim-property bond, unless he had a property in them which entitled him to their possession.
    4. The landlord has neither a special or a general property in goods dis-trained for rent, nor right to their possession after service of the replevin.
    5. It is the landlord’s duty to deliver the goods' under the replevin and look to the replevin bond.
    6. That the landlord took the goods as a distress for rent, is no justification, under a declaration in the detinet.

    November 17th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 120, of October and November Term 1870.
    On the 9th of August 1869 Cephas Porter issued a replevin against Jeremiah Baird for five cattle. The sheriff returned: “ Replevied, &c. — Property bond entered by Jeremiah Baird and property retained by him.” The declaration was filed September 6th, and averred the taking of the cattle "in a “field then in possession of one James Porter.” On the 5th of November the defendant pleaded “Property in himself.” On the 4th of February 1870, after the jury was sworn, the defendant had leave to withdraw his plea and file an avowry, in which he averred “the taking of the said cattle in said declaration mentioned, * * because he says that the said close was and is his freehold, and was at the time of the taking” leased to James Porter from the 1st of April till the 1st of November 1869, at a fixed rent, of which $45 had become due on the 1st' of July, and was at the time of the taking unpaid as aforesaid. ,
    On the same day the plaintiff demurred, and assigned these causes of demurrer :—
    “ That the taking of the said cattle, so avowed by the said defendant, is not alleged to have been done by distress for rent in arrear. And also that the said avowry is in other respects uncertain, informal and insufficient; wherefore he prays the court that the defendant may answer over.” <
    January 3d 1871,
    The court (Gilmore, P. J.) gave judgment for the plaintiff on the demurrer, and ordered the defendant to answer over. The defendant declined to plead further; the court entered judgment see. reg. A writ of inquiry of damages was issued, and the inquest returned June 21st 1870 that they had assessed damages to the plaintiff to the amount of $209.26. Final judgment was entered July 9th 1870.
    The defendant removed the case to the Supreme Court, and assigned for error, giving judgment on the demurrer.

      E. Campbell, for plaintiff in error.
    The demurrer admitted all the facts stated in the avowry: Hill v. Miller, 5 S. & R. 354, and therefore it appeared that the cattle were liable to be dis-trained for the rent: Weidel v. Roseberry, 13 S. & R. 178; Kessler v. McConachy, 1 Rawle 434. Under the Act of March 21st 1772, Purd. 867, pl. 2, the defendant may avow that the talcing was for rent in arrear, and make conusance generally, without setting forth the grant, &c.: 3 Bl. Com. 149. The avowry was m proper form: 2 Chitty’s Pl. 508-512; 3 Id. 529-531.

      W. H. Play ford, for defendant in error,
    cited Act of 1772, supra.

   The opinion of the court was delivered,

by Williams, J.

This was an action of replevin in which the plaintiff in error was defendant in the court below. He gave the sheriff a claim-property bond, and retained the cattle for which the writ was issued. The plaintiff declared in the detinet — and the defendant pleaded property. After the jury was sworn he was allowed to withdraw his plea, and to avow for rent in arrear. The plaintiff demurred specially to the avowry; the court sustained the demurrer, and ordered the defendant to answer over. The defendant refused to plead further, and thereupon the court discharged the jury, and directed judgment to be entered for the plaintiff see. reg. in default of a plea. Afterwards, on notice to the defendant, the court awarded a writ of inquiry of damages, and, upon return thereof with the inquisition annexed, entered judgment in favor of the plaintiff for the damages found by the inquest. The defendant then sued out this writ of error, and has assigned for error the judgment of the court in sustaining the demurrer.

The objection to the avowry, assigned as cause of special demurrer, is that the taking of the cattle, avowed by the defendant, is not alleged to have been done by distress for rent in arrear. The question as to the sufficiency in form of an avowry for rent, in which there was no such averment, was determined by the King’s Bench in Pullen v. Palmer, Carth. Rep. 328, as long ago as the eighth year of William III. There the question arose upon demurrer to the plea in bar of the avowry, and the case is thus reported: — “ Upon demurrer by the defendant, it was argued for the plaintiff that the avowry was ill both in substance and form. As to the form it was objected that the conclusion of the avowry was ill because ’tis said that so much rent was behind, but did not expressly avow the distress to be taken for that rent, but avowed generally, without showing the cause for what; whereas after (bene advocat eaptionem) he ought to have added this clause pro prcedietis 71. 10s. de redditu prced. sic ut prcefertur aretro existen., &c. Sed non allocatur: because ’tis.said and quia such rent was behind he avowed, &c. So that the word quia shows the cause of the distress.” And so the word because (quia) in the avowry here, sufficiently shows the cause of the distress though the taking of the cattle is not expressly avowed as for and in the name of a distress for the rent due and in arrear.

But though the avowry is sufficient in form, if it is not sufficient in substance, advantage may be taken of the objection under the special demurrer: Steph. Pl. 141. Is the avowry then sufficient in substance ? > It would doubtless be a good answer to the declaration if the plaintiff had declared in the detinuit, because the defendant might lawfully distrain the cattle found on the demised premises for the rent in arrear, and detain them during the period allowed by law for the tenant or owner to replevy them. But is it a good and sufficient answer to a declaration in the detinet ? If the defendant had the right to take the cattle as' a distress for the rent due him, and to detain them for the period allowed for their replevin, “after such distress taken and notice thereof,” before proceeding-to appraise and sell them in satisfaction of the rent, his right to retain them, after the issuing and service of the writ of replevin, is not so apparent. Under the Acts of 1705 and the 24th March 1792, and the uniform practice in this state, the plaintiff had the unquestioned right to issue the writ of replevin for the cattle, if they' were taken by the defendant as a distress for rent, and it was the duty of the defendant to deliver them to the sheriff according to the exigency of the writ. He had no right to retain them by giving a claim-property bond unless he had a general or special property in the cattle which entitled him to their possession. But if he took the cattle as a distress for rent, he had neither a general or special property in them, nor any right to their possession after the service of the writ of replevin. It was his duty, under the law regulating the right of distress,, to deliver up the cattle, as required by the writ, and, as his security for the rent, to look to the bond which the sheriff was required to. take before making a deliverance of the distress. If then the defendant had no legal right to detain the cattle as a distress for rent after, the service of the writ of replevin, the fact that he took them as a distress for rent is no justification for such detention; and, consequently, the avowry is no sufficient answer in law to the plaintiff’s declaration. The avowry concludes with a verification and the defendant’s prayer for judgment, &c., that is, the defendant prays judgment and a return of the cattle together with his damages, &c.; and the judgment at common law, in favor of the avowant, is pro retorno habendo. But no such judgment could be entered for the defendant here, if the issue upon a traverse of the avowry should be found in his favor, for both the sheriff’s return and the pleadings show that the defendant, and not the plaintiff, has the cattle in controversy. But we need not discuss the question further. The defendant, by giving the claim-property bond and retaining the cattle, put it out. of his power to set up, as a defence to the replevin, their distraint for rent in arrear; and, therefore, the court below was right in sustaining the demurrer.

Judgment affirmed.


author: by Sharswood, J.

text:
    The Lycoming Mutual Insurance Co. versus Sailer.
    1. A policy referring to an application as part of it, is inadmissible without the application.
    2. Where a policy was admitted without the application, the error was cured by the opposite party giving the application in evidence.
    3. Hay and grain insured were stated in the application as in the “ hay-house in the meadow.” There were two buildings in the meadow in which hay was kept, one usually called a “ hay-house” and the other a “ barn.” Evidence was admissible to show which was intended.
    4. The maxim Anibiguitas verborum lateas verifications suppletur; nam quod ex facto oritur ambiguum verifications facti tollitur, applied.
    5. An ambiguity being raised by parol, may be explained by parol.
    6. Evidence erroneously admitted for the purpose for which it was offered, being found competent for another purpose, the error was cured.
    7. Whenever evidence dehors a writing is resorted to to fix identity and locality, it is a question for the jury.
    8. The facts that one building at the time of the insurance contained property such as that insured, and that the other did not and could not contain such property, was evidence on the question of which building was intended.
    9. The rule of precision and certainty of evidence required to reform a writing, does not apply to evidence to explain a latent ambiguity.
    10. A latent ambiguity is to be determined by the weight of the evidence.
    1J. In a question of reforming a writing, the judge sits as a chancellor and if in his opinion the evidence would justify a decree, he is bound to withdraw it from the jury.
    12. An agent although only to’ receive and transmit applications is an agent to receive and transmit notice, which building, where there are two, was intended.

      November 18th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Butler county: No. 137, to October and November Term 1870.
    This was an action of covenant on a policy of insurance brought February 7th 1868, by Joseph Sailer' against The Lycoming Mutual Insurance Company. The claim of the plaintiff was for indemnity for loss by fire of the articles insured in a policy issued to him by the defendants, and dated October 7th 1867. The principal question was, whether the goods were in the place in which they had been insured.
    The case was tried, March 15th 1870, before McGuffin, P. J.
    On the trial the plaintiff offered the policy in evidence. The defendant objected unless it were accompanied with the application referred to in it. The court admitted the offer and sealed a bill of exceptions.
    The policy was numbered 97,084, and was for insuring $1930 “ on a stock of grain and hay on his farm in Oakland township, Butler county, Pa., in the hay-house, in his. meadow, and in stacks about it . . . . . . . . . $ 400
    Farming implements, wagons, harness and mowing-ma- . chine ......... 1000
    Horses, cattle, sheep and hogs.....530
    1930
    Reference being had to the application of the said Joseph Sailer for a more particular description, and forming part of this policy.”
    Also, “ preliminary proof of loss,” containing the statement that on the 2d of November 1867, the property described as in the policy and claimed to be insured by the policy, consisted of grain, hay, farming utensils, a cow and horses, valued specifically* the whole valuation amounting to $1261. He then gave evidence of fire, by which a barn, house, and stable were destroyed, and that property insured and being in and about them was consumed; he gave evidence also of the amount of loss.
    The plaintiff testified that the place where he kept the hay was about 120 rods from the burned buildings; he had no insurance on the hay-house in the meadow..
    The plaintiff here rested.
    The defendants then gave in evidence the application for insurance referred, to in the policy. It was made in a printed form, and beside a general statement similar to that in the policy, was the following:—
    “ Stock of grain and hay on his farm in Oakland township, Butler county, Pennsylvania, in the hay-house, in his meadow, and in stack about it, value $600, and insured for $400. On farming utensils, wagon, harness, mowing-machine, &c., in and about same, value $1500, and insured for $1000, and horses and cattle, sheep and hogs, 86 sheep, 3 horses, 4 cattle and 20 hogs, value $850, and insured for $530. These things are all about the hay-house, and not in the barn connected with his tavern-dwelling or store-house and barn connected, therewith and this day insured, except the horses sometimes in the stable connected with his tavern-stand and dwelling-house.”
    Defendants here rested.
    The plaintiff in rebuttal then offered to prove by his own testimony “ that the words hay-house in his meadow were not used by the plaintiff nor authorized to be used by him, but that they were inserted by said agent through accident or mistake. To be followed by proof that at the time of making the application the insured personal property was in the barn on the farm of plaintiff and that said agent was so informed. This to prevent fraud and correct the mistake.”
    The offer was objected to by the defendants, admitted, and a bill of exceptions sealed. The plaintiff testified that he told Mr. Robb, the agent of the company, when he went to make the insurance, that he wished his loose property and farming utensils on his “ Martin” farm insured, and mentioned the articles, grain, hay, farming utensils, &c., somewhat in detail, they were put down by the agent “in a lump;” the articles were in a barn on the farm he named and were burned; he told the agent he kept the horses wherever he used them; sometimes left in the stable on the “ Flick” farm; that he kept his cattle wherever he had pasture for them; that they and the hogs went for shelter to the barn; that all the articles were kept in and about the barn except when in use; that the agent said that it was no difference where the property was so long as it was on the farm; he stated to the agent where the barn was, for what it was used and what he had in it; told him he had no stacks about barn but straw stacks, and no other buildings on the Martin farm but a hay-house, and that he did not want any insurance on that; it was a log building at one end of his farm not fit to keep farming utensils or grain in, no place to put sheep or pigs, it was 120 rods from the barn, which was also.in a meadow about the middle of the place which contained about 143 acres; he described to the agent the barn that was burned as the one the articles were in. He testified also -that he did not read the application nor was it read to him before he signed it; he did not tell the agent that he wanted any insurance in or about the hay-house; the-hay and grain were in the barn at the time of making the insurance.
    For the defendants, Mr. Robb testified that he had no power to make insurances ; his testimony in relation to the circumstances at the time of making the insurance differed materially from the plaintiff’s; he testified also that after the fire the plaintiff admitted he had no claim on the company, and that he made no allegation of mistake in the application.
    Two other witnesses connected with insuring for the defendants testified in corroboration of Mr. Robb.
    The plaintiff in eight points asserted that under the evidence it was a question for the jury whether the place where the property was burned, was that where it had been insured.
    The defendants in twenty-one points asserted that the policy and application for insurance formed the contract of the parties ; that its construction was for the court; that the articles burned not being in the place mentioned in the policy and application, there could be no recovery; that the parol evidence relative to what was the contract was so open to doubt, &c., that it could not be submitted to the jury; that the location could not be changed by parol evidence ; that the evidence to show mistake was not sufficient; that Mr. Robb the agent could not bind the defendants, &c. The leading question was, whether the “ hay-house” mentioned in the application referred to the barn, &c., was where the property was destroyed.
    In his general charge, and in answer to the points, the judge submitted this question to the jury.
    The jury found for the plaintiff $1282.53.
    The defendants took out a writ of error. They assigned two errors to the admission of the evidence and eighteen to the instructions of the court.
    These assignments, with the points and answers referred to, will he found in the opinion of the Supreme Court, pronounced by Mr. Justice Sharswood.

      E. M. Bredin and L. Z. Mitchell, for plaintiffs in error.
    The policy referred to the application as part of it, and could not be read without it: Egan v. Albany Mutual Co., 5 Denio 326. As a member of a mutual insurance company, the defendant was charged with knowledge of the application: The Susquehanna Co. v. Perrine, 7 W. & S. 348. The defendants did not know of the mistake; it was therefore not mutual, and the policy could not be reformed: Cooper v. The Farmers’ Mutual Co., 14 Wright 299. Robb was the plaintiffs agent in filing the application: Holmes v. The Charlestown Mutual Co., 10 Metc. 211; Jennings v. The Chenango Mutual Co., 2 Denio 75. The contract is to be taken as the parties made it: Grottsman v. The Penna. Ins. Co., 6 P. F. Smith 213. The statement of the location was a warranty, and parol evidence cannot vary it: Fowler v. Ætna Co., 6 Cowen 673. The evidence was not clear of doubt, &c., and should have been excluded: Stine v. Sherk, 1 W. & S. 195; Edmonds’s Appeal, 9 P. F. Smith 220.

      January 5th 1871,

      J. M. Thompson and C. McCandless, for defendant in error.
    Written instruments may be varied by parol: Chalfant v. Williams, 11 Casey 215.
   The opinion of the court was delivered,

by Sharswood, J.

This case was conducted with marked ability by the counsel of the plaintiffs in error, both in the court below and in this court. Twenty erroi’S have been assigned, many of them indeed depending upon the same principle; but, after careful consideration, I have found it difficult to classify them, and deem it best, though at the expense of some repetition, to discuss each one separately.

1. The 1st error assigned is that the court permitted the plaintiff to read in evidence the policy of insurance declared upon, without reading with it his application referred to and pleaded by the defendants. This application is declared by the policy to be a part of it, and it would therefore seem to have been incumbent on the plaintiff either to have produced it or to have accounted for its non-production. But this error, if it was one, did the defendants- no harm. They afterwards produced and gave in evidence the application, and they have had on the trial all the advantage of that document.

2. In overruling the defendants’ objections to the testimony offered that the words “hay-house in his meadow,” in the application, were not used by him, and were inserted by the person who filled the application through accident or mistake. Eight objections were specified to this offer. It is not necessary to consider each of them separately. The evidence of accident or mistake as offered may have been objectionable under the pleadings ; but the evidence given under this offer was clearly admissible. It went to show that there was a latent ambiguity, both in the policy and application, and to explain it. It appeared that there were two hay-houses in the meadow — one more properly a barn, the other a small log building, which might be called a barrack, used for keeping hay in. Now it was clearly competent for the plaintiff to explain this latent ambiguity by parol evidence of which building was meant by him, and stated to the agent who received the application on behalf of the defendants. The rule of law is well stated by Lord Bacon: Ambiguitas verborum latens verifications supplstur; nam quod ex facto oritur ambiguam, verifications facti tollitur: Bacon’s Max. Reg. 28. “Patens,” he remarks, “is that which appears to he ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity, for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth the ambiguityLaw Tracts 99. The ambiguity being raised by parol, may be explained by parol. The mistake was in the offer, and though the evidence offered was inadmissible for the purpose for which it was offered, yet if, when given, it is found to be entirely competent in the cause for another purpose, the error, if there was one in the admission, was cured. No legal wrong was done to the defendants by the admission of the evidence.

We come now to the errors assigned to the charge and answers of the court.

1. This is in substance that the court erred in submitting to the jury the question whether the building described in the policy declared upon had been burned with the insured property in and around it. When we have settled that there was evidence of a latent ambiguity in the policy — that there were two hay-houses in plaintiff’s meadow — and that the plaintiff meant in his application that one of the buildings which was burned and so stated to the agent of the company authorized to receive the application, — it was certainly the province of the jury to decide the matter. In addition to this, there were other circumstances strongly corroborative of the position that the house which was destroyed by fire, and not the other, was meant. None of the property insured was in or about the small log house — it could not have contained the articles described. Whenever evidence dehors a written instrument is resorted to, as it often must be to fix the identity and locality of the subject, it becomes necessarily a question for the jury. Thus it was held in Richardson v. Stewart, 2 S. & R. 84, that when land is described by reference to matters not contained in the written contract, and resting on parol evidence, the jury are to decide what land was the subject of the contract. “It was uncertain,” said Chief Justice Tilghman, “ on the face of the writing which tract was intended to be sold, so that the court could not decide it without calling in the aid of the jury.” So in Bertsch v. Lehigh Coal and Navigation Co., 4 Rawle 130, where Mr. Justice Kennedy said: “ As often as written agreements fail to describe by metes and bounds the lands contracted for, and to give a precise location to them, the omission is always supplied and the application of the agreements made to the lands by the introduction of parol evidence, which has ever been considered competent; otherwise, in most cases, the agreements could never be carried into effect.” And in Nourse v. Lloyd, 1 Barr 229, it was decided that where there is no patent ambiguity in the description of a boundary, it is the province of the jury to determine how far it is answered by the monuments on the ground, and to judge between discrepancies in the calls. It is clear, then, that under the evidence it was properly submitted to the jury to determine which hay-house was intended by the application and policy.

2. In submitting to the jury the question whether the property insured was destroyed by fire while in the building described in the application and policy. It follows, if the reasoning in regard to the 1st error assigned to the charge be correct, that there was no error in this submission. If the jury found that the barn was the hay-house intended, then it was properly left to them to say that the property insured was destroyed by fire while in the building described in the application and policy; for the barn is thus ascertained to be that building.

3. In authorizing the jury to find that the articles insured were destroyed by fire while in or near by, close to or around or adjoining or within a reasonable distance of the hay-house. It is probable that this assignment is founded upon the idea that there was no sufficient evidence of any mistake in the instrument, and that it was for the court to construe it. But if, as we have seen, the evidence was not of a mistake but to explain a latent ambiguity, then the question here referred to was also properly submitted to the jury. According to the application and policy, the stack of grain and hay was in the hay-house and in stacks about it. The other articles, farming implements, wagons, harness, mowing-machine, horses, cattle, sheep and hogs, were all about the hay-house.

4. In refusing to instruct the jury that there was no evidence that the plaintiff’s grain and hay were in the hay-house or in stack about it. But there was evidence, which was for the jury, that the barn was the hay-house intended, and that the plaintiff’s stack of hay and grain was in it and in stacks about it. It would have been error to have withheld it from the jury.

5. In refusing to instruct the jury that there was no evidence that the plaintiff’s farming implements, or his wagons, or his mowing-machine, or his cattle, or his sheep, or his hogs, were in or about the hay-house. This assignment evidently rests upon the same grounds as the preceding one. There was evidence that all these articles were in and about the barn which was consumed by fire.

6. In refusing to instruct the jury that there was no evidence that the plaintiff’s horses were in or about the hay-house or in the stable connected with his tavern stand or dwelling-house when lost. The application stated specially that the horses insured were sometimes in the stable connected with his tavern stand and dwelling-house. The evidence was that the plaintiff had two horses burned-in the barn.

7. In leaving it to the jury to decide whether the policy declared upon covered by its terms the loss of the plaintiff’s property thereby insured at the place where the fire happened. This is but a repetition in another form of the 2d error assigned to the charge, and needs no further remark.

8. In leaving it to the jury to ascertain where on the farm of tbe plaintiff tbe building described as tbe place of tbe property-insured was located or situate. This also is but a repetition in another form of the error assigned in the 1st specification of error in the charge. It is true that it is based upon the affirmation of the plaintiff’s 1st point that the identity of the building described in the application and policy is a question of fact to be found by the jury. As we have already seen, this answer was entirely correct.

9. In instructing the jury that the descriptive phrase “ hay-house in his meadow,” in the application was but one of the means by which they might find what building was thus named. The evidence given in the cause was to be applied to the description in the instrument to ascertain what building was then meant. This we understand to have been the meaning of the plaintiff’s 2d point and there was no error therefore in affirming it.

10. In submitting to the jury with the description in the policy and application and as evidence of a mistake in that description, the situation, character, use, occupancy and surroundings of the buildings. No doubt in the answer to the plaintiff’s Bd point on which this assignment is based, the original error of regarding the evidence offered and given as evidence of a mistake in the instrument again made its appearance. But considering this evidence in its true light as explanatory of a latent ambiguity, there was certainly no error in this answer. “ The inquiry for the jury,” says the learned judge, “ will be what house was insured — where did it stand upon the premises of the plaintiff when it was insured —what was its character at that time and what were its sursoundings — how occupied if at all.” These were legitimate subjects for consideration as bearing upon the question to be decided by the jury. Surely if it appeared that the one building was suitable and capable and actually did contain in or about it the property insured at the time of the application, which the other did not and could not, these were very important and significant facts.

11. In refusing to withdraw from the jury the parol evidence heard to show that the contract evidenced by the application and policy was not the contract intended by the parties. The reason assigned for the defendants’ 10th point, the answer to which is the ground of this specification, is that the parol- evidence was not clear, precise and indubitable, but is contradictory and open to doubt, and therefore the question should not be submitted to the jury.” The learned judge affirmed the rule of evidence as stated in the point, but declined to withdraw it from the jury. That rule is correctly stated if it had been an attempt to reform a written instrument by evidence of mistake. But there is no such rule as to evidence to explain a latent ambiguity. ■ The latent ambiguity having been shown to exist, it became necessary to give parol evidence to explain it. The contract would otherwise be void on account of uncertainty as in the case of a patent ambiguity, which cannot be so explained. Hence the jury are to decide according to the weight of evidence as in other cases. The defendants certainly had no right to complain of the manner in which the learned judge stated the rule of evidence, and he was clearly right in not withdrawing it from the jury.

12. In leaving it to the jury to decide whether the evidence received to show that the words “ hay-house in his meadow,” were inserted in the application through accident or mistake, and that barn and stable were intended, was, if found true, sufficient — by the law of the reformation of writings — upon parol evidence of mistake to enable the plaintiff to recover. The learned judge in the passages from his charge and answers specified under this assignment again fell into the error of treating the case as one of a reformation of contract on the ground of a mistake, and there are no doubt, in this view, some incongruities and inconsistencies in his instructions to the jury. Indeed, he affirmed the 17th point of the defendants, that there was no such mistake shown as would warrant any reformation or change of the contract, and yet the question was afterwards submitted to the jury. Now, had it been a case of reformation, there would in this have been manifest error. In such a case the judge occupies the place of a chancellor, and the jury are called in to assist his conscience in the determination of controverted facts. If in his opinion the evidence is not sufficient to justify a decree for the reformation of the writing, he is bound to withdraw it from the jury. But it is not so upon parol evidence to explain a latent ambiguity. There, if there is any evidence, the question of its sufficiency is for the jury. The judge may give his opinion upon its sufficiency, but that opinion is not binding upon them. What injury, then, was done to the defendants by the charge and answers to the points in this respect, and of what have they any right to complain ? The question which was the hay-house intended, was left to the jury, under directions and instructions as to the nature and degree of evidence required much more stringent and severe than the case warranted, and with an expressed opinion of the judge upon the evidence in his view adverse to the plaintiff. Surely, if either party had cause to complain of this, it was not the defendants.

13. In submitting to the jury whether a mistake was proved in the written evidence of the contract — the expression of something which neither party intended to express, or the omission of something which both parties intended to insert. The learned judge indeed affirmed the 1st and 5th points of the defendants upon which this assignment is based. Eor that reason, as well as from what has been previously said, it is plain that the defendants were in no way injured by these answers, even though it may be true that in this view of it the ease ought not to have been submitted to the jury.

14. In submitting to the jury whether there was legal evidence of mistake in the written evidence of the contract. The learned judge affirmed the defendants’ 4th point, that without evidence that the plaintiff’s grain and hay was in the house described or in stack about it when lost by fire, the defendants were npt liable to make good such loss or any part of it. He added, however, this qualification, “ unless there is legal evidence of a mistake.” Here the error of considering the case as one of mistake occurs, and if such had been the question this answer no doubt was wrong. But how were the defendants harmed by it ? All the evidence — termed improperly evidence of mistake — was submitted to the jury to enable them to decide the true question in the cause — which of the two hay-houses was the building intended by the description in the contract. Upon that question all that evidence was competent and. relevant, and the question, as we have seen, was entirely for them.

15. In refusing to instruct the jury that there was no evidence that the defendants were informed of any mistake in the plaintiff’s application. This may have been necessary if the question had been of a reformation of the writing, but as we have seen that was not the question, but of the meaning of an ambiguous description in which the intention of both parties was to be gathered from all the circumstances. The defendants intended to insure the property in some hay-house on the plaintiff’s farm, and it evidently mattered not whether they knew that there were two hay-houses or only one. "Without the evidence the contract would have been void, and had the property been burned in the old log building, they might and most properly would, have taken defence that the barn was the hay-house intended. The agent, though it may be only an agent to receive and transmit applications, was an agent to receive and transmit notice of the fact brought to his knowledge that the barn was the hay-house intended.

16. In giving the jury to understand that all that took place or passed between the plaintiff and Mr. Robb at the filing of the application took place or passed between the plaintiff and the defendants. The answer to the plaintiff’s 4th point does not warrant the inference here attempted to be drawn from it. That point might have been directly affirmed that in searching for the building described, the jury are to look at the attending circumstances at the time of making the application. The learned judge did substantially affirm it, and in th^t committed no error. If the plaintiff did communicate to the agent of the defendants that the property insured was then in and about his barn, and that such barn was the building meant, it would affect the defendants with notice if such notice was necessary.

17. In submitting to the jury this question — whether the word “hay-house in his meadow,” was a mutual mistake or a mistake of the defendants as well as of the plaintiff. The answer of the learned judge to the plaintiff’s 8th point was certainly not such as the defendants have any right to find fault with. He directed them that in reforming the instrument so as to change its language the evidence must establish that it is not the mistake of one party as to what he may have intended, but it must be a mutual mistake of the parties to the contract, in this case the plaintiff and the company. Had the question been one of reformation, the instruction would have been correct, and no doubt it would have been error to submit it to the jury. But as applied to the actual case of evidence to explain a latent ambiguity, it was inapplicable, and if injurious to either party, it was so to the plaintiff. It is true, that the jury are to inquire what both parties intended by the ambiguous words, but that is to be gathered from all the evidence — the situation, use, occupancy and surroundings of the property, as well as the declarations of either party at the time.

18. In submitting to the jury this question — whether the words “hay-housein his meadow” were inserted in fraud of the plaintiff ; in the answer to the plaintiff's 8th point, the learned judge said, “ the inquiry will be as I have said, was there a mistake or fraud committed ?” Now it may be that there was no evidence of either mistake or fraud, such as should have been submitted to the jury to ground thereon a reformation of the writing. But, as we have already seen, it was not necessary to the plaintiffs recovery that there should have been either. By this instruction the jury could not have been misled. The true question was submitted to them — which was the hay-house intended — and that was entirely independent of either mistake or fraud. As far as can be discovered, it was the only real question, and the plaintiff’s case was embarrassed and endangered by the mode and qualifications with which that question was submittted, not the defendants’.

Thus have we patiently, painfully and laboriously waded through the twenty errors assigned upon, this record. We have found errors, but not such as ought to avail the plaintiffs in error. The cause was tried and decided below upon its merits. A court of errors ought not to reverse for merely formal mistakes where substantial justice has been done according to law.

Judgment affirmed.


text:
    Hess versus Hess.
    1. 'A devise was (after the death of testators widow), ‘‘my son E. (to) have one-third of all my real and personal property during his single life, if he should marry and have issue then I desire on condition he pay the foregoing legacies, that he shall have one-half of all my real and personal property to he his for ever. My son D. and daughter N. (to) have each one-third of all my real and personal property during the single life of my son E., but if he should marry and have issue, then it is my will that D. and W. have each one-fourth of all my real property, to be enjoyed by them during their lives. I desire that the survivor enjoy the portion of the other during natural life, after which it is my will that their respective portions be the property of my son E. absolutely, provided he have lawful issue, as above stated. There was no gift over.” Held, that E. took a life estate in one-third (subject to the widow’s life estate), and if he should marry and have issue, the whole real estate absolutely, with right to the possession of one-half on his mother’s death, and subject to the life estates of D. and N. and the survivor in the other half.
    2. E. having issue was a condition precedent to the vesting of the estate in fee.
    3. E. married, survived his wife and died without having had issue; the fee descended upon the testator’s heirs at law.
    4. Two of the heirs were legatees whom E. was to pay. They received their legacies from him and released all claim against the estate. Held, that they were not estopped from claiming their shares in the land.
    5. The payment of the legacies "did not enlarge E.’s estate nor change its character, for the contingency upon which his estate was to vest in fee had not occurred.
    November 18th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1870, No. 183.
    This was an action of ejectment brought November 16th 1867, by John Hess and James Hess against David Hess and Nancy Hess for a tract of 95 acres of land. The land had belonged to George Hess deceased, who died October 21st 1868, leaving a widow and six children, Nancy and David (the defendants), John and James (the plaintiffs), Ebenezer and Margaret. The decedent left a will dated December 10th 1856, containing as follows :— * * *
    “ It is my will and desire that my beloved wife Mary have all my real and personal property, to be enjoyed by her during her natural life, after which I desire the following disposition to be made.
    “ It is my will that my son John have one hundred dollars out of my estate, within four years after the death of the survivor of his parents, without interest; * * * to be in addition to what I have heretofore given him.
    “ It is my will that my daughter Margaret, intermarried with Samuel McCormick, have four hundred dollars out of my estate, within four years after the death of survivor of her parents, without interest; * * to be in addition to what I have heretofore given her.
    “ It is my will that my son James have two hundred dollars out of my estate, within four years after the death of the survivor of his parents, without interest; * * * to be in addition to what I have heretofore given him.
    “ It is my will that my grandson George (son of John) have one hundred dollars out of my estate, on the same terms and conditions as in his father’s case above mentioned.
    “ It is my will, after the death of the survivor of his parents, my son Ebenezer have one-third of all my real and personal property during his single life; but if he should marry and have lawful issue, then I desire, on condition that he pay the foregoing legacies as above stated, that he shall have one-half of all my real and personal property, to be his for ever, in addition to what I have heretofore given him.
    “It is my will that, after the death of the survivor of their parents, my son David and my daughter Nancy have each one-third of all my real and personal property during the single life of my son Ebenezer; but if he should marry and have lawful issue, then it is my will and desire that the said David and Nancy have each one-fourth of all my real property, to be enjoyed by them during their and each of their natural lives; and I desire that the survivor of them enjoy the portion of the other during natural life, as before expressed, after which it is my will and •desire that their and each of their (David and Nancy’s) respective portions be the property of my son Ebenezer absolutely, provided he have lawful issue, as above stated.
    “It is my will and desire absolutely, that the above-named David and Nancy may not, nor shall not, dispose of the interest I have herein bequeathed to them by any contract they may make, or any one may make for them, but it shall remain in said farm during their and each of their natural lives.”
    Ebenezer paid the legacies under his father’s will to John and James, and took from them these receipts:—
    “ Received, December 9th 1858, of Ebenezer Hess, the sum of one hundred dollars, in full of legacy bequeathed to me by George Hess, deceased, including the fifty dollars due from my grandfather’s estate; and I hereby release and quit-claim all demands against said estate.
    “ Witness my hand and seal.
    “ John Hess. [l. s.]”
    “Received, December 30th 1858, of Ebenezer Hess, the sum of one hundred and seventy-nine dollars, legacy bequeathed to me by George Hess, deceased (my father), including fifty dollars due from my grandfather’s estate. And I hereby release and quit-claim so much of said estate.
    “ James Hess.”
    At his father’s death Ebenezer was a single man. He married in 1859, and, having survived his wife, died October 21st 1864, without having had any children.
    He made a will, dated October 14th 1864, by which he gave to his sister Nancy and brother David all his real and personal estate, or “ any interest in the same that may be coming to me from my father’s or mother’s will, or from any other source whatsoever.” The widow of George Hess died November 6th 1865.
    On the trial, January 18th 1870, before Gilmore, P. J., the foregoing facts were given in evidence.
    The plaintiff submitted these points, which were affirmed: — •
    1. Under the will of George Hess, deceased, Ebenezer took a life estate in one-third of the real estate, subject to the life estate of the widow, with a contingent estate in fee in one-half, and also in the other half upon the death of David and Nancy, dependent upon a contingency which never occurred (his marrying and having issue). He also took by inheritance from his father one-sixth of the real estate in fee.
    2. David and Nancy each took a life estate in one-third of the real estate under the will; and by inheritance from their father each one-sixth in fee, and under the will of Ebenezer they took the one-sixth which he inherited; thus they own a life estate in two-thirds, and the fee in three-sixths or one-half.
    3. John, Margaret and James each took by inheritance from their father one-sixth of the real estate.
    4. John and James, the plaintiffs, are entitled to the undivided one-third of the real estate in fee.
    The defendants submitted these points, which were refused:—
    2. The devise of the fee to Ebenezer, “ if he have issue,” vested in him at the death of the testator, George Hess, an estate tail in the land in dispute, which, by the Act of 1855, was converted into a fee simple. >'
    3. The marriage of Ebenezer Hess was of itself sufficient to Vest in him the fee in the one-half of the land in dispute.
    4. The acceptance by the plaintiffs from Ebenezer of the legacies which he was to pay to them only upon his being the owner of the fee in one-half the land in dispute, estops them from claiming that he was entitled to or had less than such one-half.
    The verdict was for the plaintiffs “ for the undivided two-sixths of the land, subject to the present possession of the defendants in the undivided five-sixths of said two-sixths.”
    The defendants took a writ of error, and assigned for error the answers to the points.

      January 3d 1871,

      C. E. Boyle and D. Kaine, for plaintiffs in error.
    A will must be so construed as, if possible, to avoid intestacy: 1 Jarman on Wills 767, 768; Bayard v. Atkins, 10 Barr 15. The law prefers a vested to a contingent estate: Womrath v. McCormick, 1 P. F. Smith 504; Mining v. Batdorf, 5 Barr 503; Smith’s Appeal, 11 Harris 9; and the absolute vesting of an estate at the earliest moment, so that it shall be available to the primary object of the testator’s bounty: Burd v. Burd, 4 Wright 182; Rewalt v. Ulrich, 11 Harris 388; Middleswarth v. Collins, 1 Phila. 139. The absence of a devise over affords strong evidence that the testator did not intend the non-vesting of the estate of one who appears to be his ultimate devisee: Hansell v. Hubbell, 12 Harris 246; Shutt v. Rambo, 7 P. F. Smith 151; Sheets’s Estate, 2 Id. 264; Roberts’s Appeal, 9 Id. 72; Steiner v. Kolb, 7 Id. 124. Subsequent events cannot be taken into consideration to aid in arriving at a past intention: Middleswarth v. Collins, 1 Phila. 142. To determine whether Ebenezer took an estate tail, the provision concerning marriage maybe disregarded under the cases of Vaughan v. Dickes, 8 Harris 509; Matlack v. Roberts, 4 P. F. Smith 148; Eichelberger v. Barnitz, 9 Watts 447; Carter v. McMichael, 10 S. & R. 429; Paxson v. Lefferts, 3 Rawle 72; Price v. Taylor, 4 Casey 95; Rancel v. Cresswell, 6 Id. 158; Allen v. Henderson, 13 Wright 345; Haldeman v. Haldeman, 4 Id. 29; Maurer v. Marshall, 4 Harris 379; George v. Morgan, Id. 99; Wynn v. Story, 2 Wright 168; Heffner v. Knepper, 6 Watts 21; Potts’s Appeal, 6 Casey 168; Criley v. Chamberlain, Id. 161; Curtis v. Longstreth, 8 Wright 302; Stehman’s Appeal, 9 Id. 402; Caldwell v. Skilton, 1 Harris, 152; Heilman v. Bouslaugh, Id. 344. Courts change, add or disregard words when necessary to make the will harmonious, and accomplish the main intent of the testator: Holmes v. Holmes, 5 Binn. 252; Scott v. Price, 2 S. & R. 59; Welsh v. Elliott, 13 Id. 205; Shoofstall v. Powell, 1 Grant 20; Beltzhoover v. Costen, 7 Barr 15; 1 Jarman on Wills 495, 446, 450; Mytton v. Boodle, 6 Sim. 457. Receiving their legacies estopped the plaintiffs: Hoover v. Hoover, 5 Barr 354; Ackla v. Ackla, 6 Id. 231; Hagerty v. Albright, 2 P. F. Smith 279.

      A. E. Willson (with whom was J. Collins), for defendants in error,
    cited Stitt v. Spear, 3 Grant 306; Vanhorne v. Dorrance, 2 Dallas 304; Cheeseman v. Wilt, 1 Yeates 411; Hauer v. Sheetz, 2 Binney 532; Lipman’s Appeal, 6 Casey 180; Walker v. Walker, 4 Id. 40; Malone v. Dobbins, 11 Harris 296; Cowles v. Cowles, 3 P. F. Smith 175.
   The opinion of the court was delivered,

by Williams, J.

All the assignments of error, except the last, present but one question, and that is: What estate did Ebenezer Hess take under the will of his father, George Hess, in the land devised to him ? By his will, dated December 10th 1856, the testator gave to his wife all his real and personal property to be enjoyed by her during her natural life ; and, after giving certain specific legacies to his three children, John, Margaret and James, and to his grandson George, devised his real and personal estate as follows: It is my will, after the death of the survivor of his parents, my son Ebenezer have one-third of all my real and personal property during his single life ; but if he should marry and have lawful issue, then I desire, on condition that he pay the foregoing legacies, viz., John, Margaret, James and grandson George, as above stated, that he shall have one-half of all my real property, including one-half of all the buildings on the farm on which I now live to be his for ever, in addition to what I have heretofore given him. It is my will that after the death of the survivor of their parents, my son David and daughter Nancy have each one-third of all my real and personal property during the single life of my son Ebenezer; but if he should marry and have lawful issue, then it is my will and desire that the said David and Nancy have each one-fourth of all my real property on which I now live, including one-fourth of all the buildings, to be enjoyed by them during their and each of their natural lives; and I desire that the survivor of them enjoy the portion of the other, during natural life, as before expressed; after which it is my will and desire that their and each of their (David and Nancy’s) respective portions be the property of my son Ebenezer absolutely, provided he have lawful issue, as above stated. The testator died on the 21st of October 1858. At the date of the will, and at his father’s death, Ebenezer Hess was a single man, but married in the fall of 1859. No children were born to him; his wife died in November 1862; he died October 2'lst 1864, 'and his mother, November 6th 1865. What estate, then, did he take under the will of his father ? Was it an estate tail in the whole land subject to the life estate of his mother therein, and to the life estates of his brother and sister and the survivor of them; or was it an estate for life in the one-third of the land, subject to his mother’s life estate, and an estate in fee in the whole land contingent upon his marriage and having issue, subject to the life estates given to his brother and sister and the survivor of them ? What, then, was the intention of the testator ? for his intention, as gathered from the whole will, must govern in its construction unless it is overruled or set aside by some positive and well-settled rule of law.

It is clear then that, after the life estate given to his wife, he intended that his son Ebenezer should have the one-third of his real éstate so long as he remained single, and that his son David and daughter Nancy should have each the one-third of his estate during the same period, for he has said so in express terms; and it is quite as evident, from the provisions which immediately follow both devises, that he intended that each of the three devisees should have the one-third of the estate so given until his son Ebenezer should marry and have lawful issue; and if these contingencies should occur that then, on condition of his paying the legacies given in the will, he should have the one-half of all his real property, with the right to its immediate possession and enjoyment on the death of his' mother, to be his for ever; and, if said contingencies should happen, that David and Nancy should have each, instead of the one-third, the one-fourth of all his real property during their and each of their natural lives, and that, upon the death of either, the survivor should enjoy the portion of the other during his or her natural life; and on the death of the survivor the said respective portions should be the property of his son Ebenezer absolutely. This is the plain and manifest intention of the testator. There can be no doubt that he intended his son Ebenezer should, in any event, have a life estate in the one-third of his real property, subject to the previous life estate given to his mother; and if he should marry and have lawful issue that then, on condition of his paying the legacies, he should have the whole of his real estate to be his absolutely and for ever, subject to the life estate of his mother, with the right to the immediate possession and enjoyment of the one-half thereof upon her death, and subject to the life estates of his brother and sister, and the survivor of them in the other one-half of said property. Is there then any rule of law which defeats the intention of the testator as expressed in his will ? The plaintiffs in error contend that the devise to Ebenezer comes within the rule in Shelley’s Case, and that under it he took an estate tail in the whole property, which vested in him immediately on the death of his father. Has the testator then made use of such a form of words as proprio vigore creates an estate tail, either in express terms or by necessary implication, contrary to the manifest intention of the testator ? The rule in Shelley’s Case is a rule of property and not a rule of construction, and is never applied to a devise unless the testator has used such words as, in and of themselves, create an estate tail, and no words are found in this will which, either in express terms or by necessary implication, create such an estate. The devise here is wholly unlike those in the cases cited by the counsel of the plaintiffs in error. There is no gift or devise of the property to Ebenezer and his issue; nor is there any gift or devise of it to him for life with a devise over, in default of lawful issue or in the event of his dying without issue. Neither is there any absolute gift of the fee, coupled with such words of limitation as would cut down the devise to an estate tail. A contingent estate only is given by the will, and it could not vest without the happening of the contingencies upon -which the gift was to take effect. Whenever these events should occur the whole estate in fee would, by the express provisions of the will, immediately vest in the devisee, and not before, and no other or less estate than the whole fee could possibly vest. The estate given by the will was only to commence provided the devisee had lawful issue, not to terminate, or go over if he had no issue, or should die without issue. His having issue was a condition precedent to the vesting of the estate and not a condition subsequent by which it was to terminate. Marriage and the birth of issue were essential to the existence of the estate, and not conditions limiting or affecting its quality or duration. When real or personal estate, says Mr. Smith in his work on Executory Interests, is devised or bequeathed to a person, when or as soon as he shall obtain a given age, or when an event shall happen which may never occur at all, or at, or upon, or from and after his obtaining such age, or the happening of such event; and there are no other words indicative of an intent to confer a vested interest; and nothing in the form of the limitation itself to indicate an intent merely to delay the vesting in possession or enjoyment, and no disposition of the intermediate income; in such case, the interest of the devisee or legatee will be contingent until he attains the age specified, or the event described has happened. For, although in this case the person is ascertained, yet the property is only given at a future period which may never arrive; and the gift can no more attach upon him before that period, than it could, if the testator, continuing to live, were to defer making a devise or bequest till such period had actually arrived: Smith on Ex. Int. §§ 285-6. It is clear then that, under the provisions of the will, Ebenezer took only a contingent estate in fee, and that having died without ever having lawful issue, the estate did not vest in him, and as there was no devise over, in the event of his not having lawful issue, the fee descended, upon the death of the testator, to his heirs at law. The plaintiffs are therefore entitled, as his heirs, to the undivided two-sixths of the land in controversy, subject to the life estates of David and Nancy therein. Nor are they estopped from claiming the land by the acceptance of the money paid them by Ebenezer on account of the legacies given to them in the will. They were not paid in performance of the condition upon which he was to have the whole estate in fee, for the contingencies upon which the property could only become his, had not occurred. The payment of the legacies could neither enlarge the estate given to him by the will nor change its character. It could only give a title to the land in the event of the happening of the contingencies upon which the estate was to vest. The plaintiffs might lawfully receive the legacies, and there is nothing in the act of their acceptance under the circumstances to prevent them from claiming title to the land. The court was therefore right in the construction given to the will, and in charging the jury that the plaintiffs below were not estopped from claiming the land by the acceptance of the legacies.

Judgment affirmed.