text:
    Coble versus Nonemaker.
    1. As a general rule an attaching creditor can acquire no claim to property in the hands of the garnishee other than the debtor could assert the garnishee.
    2. Eves, by Nonemaker as his agent, gave to Coble a chattel mortgage of store goods to secure a debt to Coble not then due, being part of the purchase-money of the goods ; Eves put Nonemaker into possession of the store ■ to carry it on as his agent before the debt became due ; Nonemaker knowing it was still unpaid, bought the store from Eves for a valuable consideration without intent to defraud creditors, and Eves moved to another state. In foreign attachment against Eves, Coble could recover the goods from None-maker in whose hands they had been attached.
    3. Although Coble had not taken possession of the goods under the mortgage and it was void against innocent purchasers, it was a valid contract between Coble and Eves, and notwithstanding Nonemaker paid a valuable consideration, by his knowledge of Coble’s equities he was not an innocent purchaser.
    4. A legal principle is never so applied as to protect fraud.
    5. The title to the store was held by Eves in trust to the extent of the unpaid purchase-money, and Nonemaker took it subject to the trust.
    6. As to Coble, the contract between Eves and Nonemaker worked no change of title to the goods ; it left them as when the mortgage was made.
    7. The trust for Coble as to the goods existing in Eves, the transfer to Nonemaker created him trustee for the same use.
    8. If an estate in trust be conveyed to a volunteer, he will be bound by the trust, although he had no notice of it.
    9. If the grantee of a trust estate for full value have notice of the trust he is bound just as the grantor. So as to purchasers with notice of any equitable encumbrance.
    10. The right of Coble by his mortgage to take possession of the goods did not confine him to replevin, although that was the most obvious remedy.
    June 5th 1875.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1875, No. 100.
    On the 4th of August 1871, a foreign atttachment in debt was issued at the suit of J. W. Coble against Yetman Eves, in which J. H. Nonemaker was the garnishee. On the 17th of August 1871 the sheriff attached a drug store, fixtures and stock, in the hands of the garnishee, who on the same day entered into bond in the usual form, with surety, and the attachment was dissolved. On the trial of the action a verdict was rendered against Eves in favor of Coble for $2800. The garnishee waived the issuing of a scire facias and pleaded “ nulla bona.”

    Under the 27th section of the judiciary article of the Constitution of 1878, and the Act of April 22d 1874, Pamph. L. 109, the parties dispensed with a jury, and submitted the case to the decision of the Court of Common Pleas.
    The court found the facts to be as follows :—
    Coble, the plaintiff, owning a drug store in Mechanicsburg, on the 10th of March 1868, sold it to Yetman Eves, the defendant, for §4000, for which Eves gave Coble four negotiable notes of §1000 each, payable respectively on the 1st days of April, in the years 1868, 1869, 1870 and 1871. Immediately on the purchase, Eves put Nonemaker, the garnishee, into possession of the store as his agent; Nonemakep as such agent carried on the store. The first note was paid shortly after it became due, and the second was sold by Coble about the same time. In May or June 1868, Coble requested Nonemaker to' procure Eves to give him security for the remaining two notes. Eves declined to give security, but proposed, through Nonemaker, to give Coble, in exchange for the two negotiable notes, two sealed notes for the same amounts, together with a chattel mortgage of the drug store to secure the notes. Coble agreed to this proposition and Nonemaker wrote the new notes and the mortgage, all dated March 10th 1868, to correspond with the date of the original notes ; the mortgage and notes were executed by Eves in presence of Nonemaker, who signed as a witness, and delivered them to Coble in the latter part of July 1868. The mortgage was that Eves, for securing the payment of the two notes, sold to Coble the drug store bought by him from Coble, consisting of drugs, chemicals, all the fixtures, &c., “ and everything in and belonging to said store,” to hold to Coble, and upon the condition that if Eves should pay to Coble the two notes at §1000. each, the mortgage was to be of none effect, but in case of default of payment, Coble might sell the drug store, fixtures, &c., and out of the proceeds pay the two notes and return the surplus, if any, to Eves, who was to retain the possession until default should be made. Nonemaker continued in possession of the drug store as Eves’ agent until December 20 th 1868. On that day Nonemaker, knowing of the mortgage, and that the notes intended to be secured by it were unpaid, bought the drug store thus mortgaged, from Eves for §2100, took possession of it and carried it on in his own name until it was attached in this case. Eves had moved to North Carolina in February or March 1871.
    The court found: “Although the sale by Eves to Nonemaker was with full notice to the latter of the mortgage, yet as between themselves, it was a fair sale for a valuable consideration, and without any intention to defraud the creditors of Eves.”
    In stating the conclusions of law the court, Herman, P. J., said: * * * “In this case Nonemaker stood in the position of a purchaser with notice, and as against the mortgaged chattels in his possession, Coble could have enforced his rights. The mortgage must be considered as a conditional sale by Eves to Coble to be void on the payment of the notes at maturity, and in default, Coble had the right to pursue the mortgaged chattels in the hands of Nonemaker, take possession of them and sell them in satisfaction of his debt. But until such default was made, Eves, by the terms of the mortgage, had the right to retain peaceable possession and free enjoyment of them, and this gave him the right to sell ’all the property he had in the chattels to whomsoever he pleased. Had he sold the store to a boná. fide purchaser without notice, and passed to him the possession of it, a complete title would have passed to the purchaser, and Coble’s rights under his mortgage would have been at an end. But having sold and delivered it to a purchaser, with notice, Coble’s rights were preserved as against the mortgaged property in the hands of such purchaser. * * * Now, is the attachment of the store in the hands of Nonemaker a good attachment, and does it hold anything ? We think not. This is a proceeding in rem, and the issue is whether the garnishee had goods and effects of Eves in his hands. The ultimate object of a proceeding in foreign attachment is to appropriate the debtor’s assets to the payment of his debts. Nonemaker had nothing in his hands belonging to Eves, and hence there was nothing to attach. * * * If Coble claims to recover, because of the conditional sale to him, which became absolute upon default in payment of the two notes by Eves, then he cannot recover in this proceeding against the garnishee, because he can recover only the value of such of the attached property in his hands belonging to Eves, or which had been assigned to him by Eves in fraud of his creditors. To recover goods, or the value of goods, belonging to himself, he must adopt a different form of action.”
    Judgment was entered for the defendant.
    There were a number of exceptions taken to the rulings of the court, during the hearing, on questions of evidence. There were also points submitted, the answers to which, as well as the decisions on the questions of evidence, were assigned for error by the plaintiff, who removed the record to the Supreme Court, by writ of error.
    The assignment of error considered in the Supreme Court was the order of the court entering judgment for the defendant.

      J. Hays, for plaintiff in error.
    A purchaser, with notice, is bound in equity just as the person from whom he purchases: Jacques v. Weeks, 7 Watts 270 Uhler v. Hutchinson, 11 Harris 113 ; La Neve v. La Neve, Ambler 436. A grantee shall not set up his deed to the prejudice of one who had a prior right, of which he had notice: Murphy v. Nathans, 10 Wright 508 ; Sanger v. Eastwood, 19 Wendell 514; Gregory v. Thomas, 20 Id. 17 ; Bennett v. Earl, 21 Id. 117 ; Lewis v. Palmer, 28 N. Y. 271; Spraight v. Hawley, 39 Id. 441. A sale of chattels, although without de- . livery of possession, is binding between the parties : Boyle v. Rankin, 10 Harris 168. Coble could have recovered in replevin. Dennis v. Alexander, 3 Barr 50; Vandyke v. Christ, 7 W. & S. 373. But because he had that remedy in rem he was not excluded from proceedings in personam: Insurance Co. v. Whitney, 20 P. F. Smith 252; Scott v. Fields, 7 Watts 360; Railroad Co. v. Pennock, 1 P. F. Smith 250. In foreign attachment evidence is admissible to show that a prior assignment of the matter attached was fraudulent against the creditors: Moser v. Mayberry, 7 Watts 12; Sinnickson v. Painter, 8 Casey 384; Childs v. Digby, 12 Harris 23 ; Cowden v. Pleasants, 9 Barr 59 ; Cowden v. W. Branch Bank, 7 W. & S. 432; Stewart v. McMinn, 5 Id. 100.

      tS. Hepburn, Jr., and S. Hepburn (with whom was L. A. Grunster), for defendant in error.
    Under a chattel mortgage their must be possession: Keller v. Nutz, 5 S. & R. 252; Fry v. Miller, 9 Wright 443; Bowen v. Burk, 1 Harris 149; Welsh v. Bell, 8 Casey 13. The chattel mortgage transferred the title to the mortgagee on default in the mortgagor: Budick v. McVanner, 2 Denio 170.
   Mr. Justice Woodward

delivered the opinion of the court, October 1875.

Undoubtedly, the most obvious remedy of the plaintiff would have been an action of replevin, in which the question of the right of the defendant to hold the stock of the drug store under his purchase from Eves could have been directly tried. The general rule is settled that an attaching creditor can acquire no claim to property in the hands of a garnishee, other than such as the debtor in a suit against the garnishee could himself assert. The judgment in the court below was entered in pursuance of this general rule. The fact was found by the record that the sale by Eves to None-maker was made for a valuable consideration, without any intention to defraud creditors, and Nonemaker was in possession of the goods in controversy when the attachment was issued against him as garnishee of Eves. Of course, as between the parties to the contract of the 20th of December 1868 the transaction was a final one, and all right of Eves in the property was gone. The inquiry presented here is, whether, by a proper application of the legal rule, the effect of the contract was to extinguish the rights of the plaintiff as well as those of Eves. This is the only subject of discussion, for the exceptions of the defendant on the trial, and urged on the argument, are supported by nothing that appears upon the record.

When Nonemaker bought this stock, he had full knowledge of the mortgage upon it, and of the two accompanying notes, which had been executed in May or June 1868. Indeed, he had drawn up the papers himself. The mortgage was a valid contract, as between the parties to it, although, possession under it not having been taken, it was waste paper as against execution creditors and innocent purchasers. But Nonemaker was not an innocent purchaser. It is true he had paid a valuable consideration, but he had t-he amplest notice of the plaintiff’s equities. The whole transaction was one with which he had been connected from the outset. The drug store had originally belonged to the plaintiff, and had been purchased by Eves for Nonemaker’s benefit. When he bought, therefore, he knew he was paying for property for which his vendor had never paid, and that the former owner was to be left for the recovery of his purchase-money to the hazards of litigation against an absent debtor resident in North Carolina. If the title had remained in Eves until the 1st of April 1871, the property would have been subject to the operation of the plaintiff’s mortgage. Possession could have been taken by him at his discretion, the property sold, and the proceeds applied to the payment of the notes. And this Nonemaker perfectly knew. The original purchase-money had been $4000. Of this sum $2000 had been paid, and the consideration paid to Eves, when the stock was bought, in December 1868, was $2100. This, including interest, was something like the amount the plaintiff had received, and yet it is claimed, on the part of the defence, that the payment of this vested the title to the goods so absolutely in Nonemaker as to destroy every right of the plaintiff to proceed against them as the property of Eves. /

A principle of law is never so applied as to promote or protect a fraud. In the mortgage contract there was nothing illegal, immoral or unfair. As against Eves, all its stipulations could have been enforced. Obtaining a personal judgment on the notes, the plaintiff could have levied on the property. And Eves could, by no voluntary act of his own, relieve it from the lien that rested On it, or evade his personal responsibility for the mortgage-debt. Did the joint act of Eves and Nonemaker shift the lien or destroy the responsibility ? The title was taken by Nonemaker with accurate knowledge of the liabilities to which the goods were subject. That title had been held in trust, to the extent of the unpaid purchase-money, for the plaintiff’s use. When he accepted it, therefore, he took with it the burden the parties had imposed upon it. As to the plaintiff, it was not in the power of Eves to divest himself of such ownership as was requisite to meet the exigencies of the mortgage-contract, and no purchaser could acquire such divested ownership who had not bought in utter ignorance of the mortgage-lien. It follows that the property stood, when this suit was brought, subject to all the equities which bound it before the contract of December 1868 was made. It cannot be questioned that the plaintiff could have maintained this foreign attachment if the effort to transfer the title had not been attempted. He could have waived the right to seize and sell the goods which the mortgage conferred. He could have levied on them under a judgment. It would be a travesty of legal principles to hold'two men competent, by a juggling use of legal forms, to wipe out a third man’s legal rights. In this court these principles have never been so applied. It was held in Moser v. Mayberry, 7 Watts 12, that on the trial of an issue on a scire facias against a garnishee in a foreign attachment, the defendant could not avail himself of the fact that' the goods attached came into his hands by means of a fraudulent arrangement between himself and the debtor. And Sinnickson v. Painter, 8 Casey 884, decided that where a legacy or distributive share is attached in the hands of executors or administrators, evidence is admissible to show that a prior assignment of the legacy or distributive share was fraudulent as against creditors. So far as the plaintiff here was concerned, the contract between the defendant and Eves worked no transmutation of the title to the goods. It left them as they stood when the mortgage was executed — the property of Eves, in the defendant’s hands, subject to the operation of the plaintiff’s lien.

Considered in another aspect, the case seems equally plain. While the title remained in Eves, he held it bound by the trust for the benefit of the plaintiff which the mortgage had created. When the title was passed to the defendant, he, having notice of the plaintiff’s equities, became by operation of law, invested with the character of trustee with precisely the same obligations that the contract expressly imposed on Eves. A trust already in existence, and annexed to the present subject-matter, is created de, novo as against a person who takes by a title derivative from the original trustee: Lewin on Trusts 205. If an estate be passed by trustee to a stranger by conveyance, then the grantee, if he be a volunteer, will be bound by the trust, whether he had notice of it or not; for though he had no actual notice of the equity, yet the court will presume it against him where he paid no consideration: Id. 206; Mansell v. Mansell, 2 P. Wms. 678, 681. But if the grantee bo a purchaser of the estate at its full value, then if he take with notice of the trust, he is bound to the same extent and in the same manner as the person of whom he purchased: Dunbar v. Tredennick, 2 B. & B. 319, for knowing another’s right to the property, he throws away his money voluntarily and of his own free will: Mead v. Lord Orrery, 3 Atk. 328, (236). And the rule applies not only to the case of a trust properly so called, but to purchasers with notice of any equitable encumbrance, as of a covenant or agreement affecting the estate (Daniels v. Davison, 16 Vesey 249), or a lien for purchase-money : Mackreth v. Symmons, 15 Vesey 329. The defendant then held these goods subject to the equities of the plaintiff under the mortgage. The process of foreign attachment was one which could legitimately be employed for the enforcement of those equities. Even if the property had been in the plaintiff’s possession, this remedy could have been applied. A person may attach goods in his own hands belonging to a defendant, or money which he himself owes to a defendant. Sergeant on Attachment, 2 ed. 81, citing 1 Com. Dig. 581; 1 Roll’s Abr. 554; Graighle v. Notnagel, 1 Pet. 245; and Grayson v. Veech, 12 Martin 688. Certainly the fact that the stipulations in the mortgage gave the plaintiff the right to take possession of the property and sell it could not have the effect to confine him to an action of replevin, and debar him from another remedy equally appropriate and equally efficient.

Judgment reversed and procedendo awarded.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Levy et al. versus Levy.
    1. By the New York Code, every action must be prosecuted in the name of the real party in interest; two creditors of defendant assigned in New York their claims to the plaintiff, who himself was a creditor of defendant, he brought one suit in Pennsylvania for all in his own name. Held, that the suit was properly brought.
    2. In Pennsylvania a suit on a chose in action must be brought, in the name of the holder of the legal title.
    3. When by lex loci eontraclús the legal title passes by assignment the holder of such title may sue in his own name in whatever forum he brings suit.
    June 5th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1875, No. 128.
    This was an action brought December 17th 1873, by Abraham Levy and Lewis Levy, trading, &c., as Levy and Brother, against Simon Levy.
    The statement of the plaintiffs’ claim filed in the suit, included a book account of Levy, Brother & Co., for $786, and one of Samter & Ash for $682.24, against the defendant. These claims on the 2d of December 1872 had been assigned to the plaintiffs in the state of New York. The statement filed included also a claim for $358.13 on a book account of their own against the defendant.
    The defendant filed an affidavit of defence, setting out that the debt claimed by plaintiffs in their own right had been fully paid, and that as to the other claims the plaintiffs could not sue in their own names.
    Sect. Ill of the New York Code provides that, “ Every action must be prosecuted in the name of the party in interest, except as is otherwise provided by sect. 131, but this section shall not be. deemed to authorize the assignment of a thing in action not arising out of a contract.”

      A rule was taken by the plaintiffs for judgment for want of a sufficient affidavit of defence.
    After argument, Pearson, P. J., held the affidavit sufficient and discharged the rule for judgment.
    The plaintiffs took a writ of error and assigned the discharging of their rule for error.

      J. W. Simonton, for plaintiffs in error.
    Under sect. Ill of their code, the New York courts hold that the assignee of a chose in action holding the legal title by written assignment valid on its face is the real party in interest though others may have a beneficial interest with him in the proceeds : Allen v. Brown, 44 N. Y. 228 ; Meeker v. Claghorn, Id. 349; Hooker v. Eagle Bank, 30 Id. 87; Byxbie v. Wood, 24 Id. 212. The law of maintenance prohibited the transfer of the legal property in a chose in action so as to enable the assignee to sue in his own name ; but this has been abrogated: Peterson v. Chemical Bank, 32 N. Y. 45. A legal title cannot exist in assignor and assignee both : Pryor v. Wood, 7 Casey 149. By the assignment of the choses in action in this case made in New York under the laws of that state, the legal title passed to the assignees, and the suit here must be in their name: Thompson v. Bell, 3 E. & B. 236; Vanquelin v. Bovard, 15 C. B. N. S. 341; Trimbey v. Vignier, 1 Bing. N. C. 151; Bradlaugh v. DeSin, Law Rep. 3 Com. B. 473 (1868); Story on Conflict of Laws, sects. 242, 316, 353, 354, 358, 359.

      A. II. Weiss and R. A. Lamberton, for defendant in error.—
    The mode of suing is governed by the lex fori: Trimbey v. Vignier, 1 Bing. N. C. 151; De La Vega v. Vianna, 1 B. & Ad. 284; Robinson v. Bland, 4 Burrow 1084; Down v. Lippman, 5 Cl. & Fin. 1; Ferguson v. Fyffe, 8 Id. 121; Wilcox v. Hunt, 13 Pet. 378; Bank United States v. Jones, 8 Id. 361; Andrews v. Herriott, 4 Cowan 408; Pearsall v. Dwight, 2 Mass. 84; Wood v. Watkinson, 17 Conn. 510; Speed v. May, 5 Harris 95; Watson v. Brewster, 1 Barr 381. The inquiry in whose name the suit is brought relates more to form of remedy than to the merits: Story Confl. of Laws, sect. 565; Wharton Confl. of Laws, sect. 735. Under statutes similar to sect. Ill of New York Code, it is held, the law of the forum must govern : Foss v. Nutting, 14 Gray 485 ; 2 Parsons on Notes, &c., 47, note e; MacDonald v. Kneeland, 5 Minn. 365; Fisk v. Bracket, 32 Verm. 801; Harper v. Butler, 2 Pet. 239 ; Warren v. Copelin, 5 Metc. 597. The distinction between a legal and equitable title still exists in New York: Moore v. Metrop. Bank, 55 N. Y. 47; Bush v. Lathrop, 22 Id. 547; Myers v. Davis, Id. 91.
   Mr. Justice Paxson

delivered the opinion of the court, October 11th 1875.

The defence in this action is purely technical. The affidavi' of the defendant does not deny the original indebtedness, but avers that the amount due the plaintiffs in their own right has been paid, and as to the claims assigned to them, they could not sue in their own name. The rule is well settled in this state, that a suit upon a chose in action must be brought in the name of the holder of the legal title. An assignment of bonds, specialties and notes, under the Act of 28th of May 1715, passes the legal title, and the assignee may sue in his own name. This act has no application to debts due upon book account. An assignment of such claims passes merely the equitable title, and the assignee must sue in the name of his assignor. The only exceptions to this rule are those contained in the Act of 23d of April 1829, viz. : Where the assignor shall die before suit brought, and no letters of administration have been taken out upon his estate; or wheré such assignor shall leave the state or cannot be found. It is alleged, however, that this suit can be sustained, for the reason that sect. Ill of the New York Code, under which these claims were assigned, expressly authorizes and directs suits in such cases to be brought in the name of the assignee. The force of this suggestion depends upon the further question, whether, by the New York Code referred to, the legal title passes, or whether the code merely authorizes suits to be brought in the name of the holder of the equitable title. So far as the remedy is concerned, it is to be governed by the lex fori. Whenever, however, by the lex loci contractus, the legal title passes, the holder of such legal title may sue in his own name in whatever forum he may bring his suit. This rule is recognised by Judge Story, in his Conflict of Laws, sections 342, 316, 353-4, 358-9. In discussing the subject of transfers of choses in action, not valid by the law of the place where suit is brought, but valid by the law of the place where made, he says : “ In such case it would seem that the more correct rule would be that the lex loci contractús ought to govern. Under such circumstances, to deny the legal effect of the endorsement, is to construe the obligation, force and effect of a contract made in one place by the law of another. It is not a question as to the form of the remedy, but as to the right section 354. Again, in sections 565-6, he says: “ There does not seem, therefore, any solid ground, upon principle, why a right, confessedly legal in the country where it originated, and passing a direct and positive fixed title in the assignee, should not have the same remedy in every other country which legal fixed titles in the party are there entitled to. It is assuming the very ground, in controversy to assert that it is a mere equitable title, for the local law has adjudged it otherwise, and vested the original title ex directo in the assignee.” To the same point are Thompson v. Bell, 2 E. & B. 236 ; Vanquelin v. Bovard, 13 C. B. N. S. 341; Peterson v. The Chemical Bank, 32 N. Y. 21; Trimbey v. Vignier, 1 Bing. N. C. 151; Lefel v. Tucker, 3 Q. B. 77.

The section of the New York Code referred to (111) is as follows : “ Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 131, but this section shall not be deemed to authorize the assignment of a thing in action not arising out of a contract.”

The phraseology of this section differs from that of our own Act of 1715, relative to the assignment of bonds, specialties and notes, but it would not be a strained construction to hold that it was intended to accomplish similar results. It would seem to legalize the assignment of choses in action. The provision that “this section shall not be deemed to authorize the assignment of a thing in action not arising out of a contract,” is a strong negative pregnant, going to show that such things in action as do arise out of contracts may be assigned. Upon this point, however, we must look for light to the decisions of the courts of the state of New York. Their construction of their own statute, upon such a question as this, is conclusive upon us. In Myers v. Davis, 22 N. Y. 491 and Bush v. Lathrop, Id. 547, it was at least doubted whether the legal title passed by an assignment of a chose in action under the code. But the later cases look the other way. In Cummings v. Morris, 25 N. Y. 625, it was said by Allen, J., referring to this section of the code: “The object of this provision was to abolish the distinction between the former practice of courts of common law and chancery, and to give full effect at law as well as in equity to assignments of rights of actions, by permitting and recognising the assignee to sue in his own name. * * * The assignment gives him the legal title, and makes him the party plaintiff.” In Hooker v. The Eagle Bank of Rochester, 30 N. Y. 87, the court say : “ Under the code, an assignment valid as an equitable assignment is equally valid at law.” In Peterson v. The Chemical Bank, 32 N. Y. 45, it is said: “ Tbe law of maintenance, while it existed, prohibited the transfer of the legal title to a chose in action so as to give the assignee a right of action in his own name. But as this is now abrogated, such a demand as that which is asserted, against the defendant in this suit, may be sold and conveyed so as to vest in the purchaser all the legal as well as the equitable rights of the original creditor.” To the same effect are Allen v. Brown, 44 N. Y. 228, and Meeker v. Claghorn, Id. 349. In the latter case, the court say: “ Within numerous decisions that have been made in this court (Errors and Appeals), and in the Supreme Court, the plaintiff, under the absolute assignment in writing to him, is the legal holder of the claim against the defendant, and the real party in interest.”

The weight of authority in the New York state courts-is very decided that the legal as well as the equitable title passes by an assignment of a chose in action, under their code-. This is decisive of the case. The rule in this state is that the suit must be brought in the name of the holder of the legal title. If the plaintiffs were the holders of the legal title, by the law of the state of New-York, where the assignment was made, they are the holders of it here, and their suit was well brought.

We have not adverted to the effect of our statute of 1829. It is not necessary for the purposes of this case. We rest our decision upon the effect of the assignment under the code of New York.

The order discharging the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, is reversed and set aside ; and it is now ordered that the record be remitted to the court below, with directions to enter judgment against the defendant for such sum as to right and justice may belong.


author: Mr. Justice Woodward

text:
    Owen’s Appeal.
    1. Owen had been appointed by the Orphans’ Court, trustee under a will. The cestui que trust, without notice to him, presented a petition to the same court, alleging that the appointment had been made through misrepresentations, &c., and praying that Owen might be discharged, and directed to pay the fund to the petitioner; immediately upon the presentation of the petition, the court ordered a citation to issue, and directed Owen to pay the petitioner SI50 within thirty days. Held, that this order was a definitive decree from which he might appeal to the Supreme Court.
    - 2. The order having been summarily made, without notice, not being asked for in the petition, and no reason being shown for in the record, was re versed.
    May 18th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Oentre county. Of May Term 1875, No. 11.
    On the 29th of April 1874, William Atherton presented a petition to the Orphans’ Court of Centre county, setting forth as follows :
    “ That a petition, purporting to have been signed by your petitioner, et al, is on record in the Orphans’ Court of said county, by which Albert Owen, administrator, &c., of Richard Atherton, deceased, has obtained possession of a large sum of money belonging to your petitioner, to wit: the sum of one thousand pounds sterling in gold, being the amount received by the aforesaid Richard Atherton, deceased, on behalf of your petitioner under the last will and testament of Eleanora Atherton, deceased, late of Manchester, England, which amount the share of your petitioner of said money the said Albert Owen acknowledges in said petition by placing the same on record and entering bail in the sum of twenty-five thousand dollars, in accordance with the order of your honorable court, to have in his possession and which he holds as the trustee of your petitioner. * * * * And further, the original papers, after diligent search made, cannot be found.
    “ Your petitioner prays your honors to discharge the said Albert Owen as trustee in this case, as he has no recollection of delegating such powers to the said Owen as he has exercised over the moneys and rights of your petitioner, denying him the right to invest any portion of his money in real estate, or the use of any portion of the same beyond the sum of twenty-five dollars per month, but to declare the said petition, as recorded, to be void and of no effect, as your petitioner verily believes that the same was never signed by him, and that he never intended to give the said Owen any power over said money, more than to transfer the same from the Tyrone Bank to the Philipsburg Bank and which power he did give.
    “ Your petitioner, therefore, prays that 'yc>ur honors discharge the said Albert Owen from the trusteeship, and that the said money, to-wit: The sum of one thousand pounds sterling gold, as received by Richard Atherton, deceased, from the executors of Eleanora Atherton, deceased, in December 1870, be paid over to your petitioner in currency, with such premium as the gold was worth at the time it was first paid, and with legal interest on the same, either forthwith or at such days and times as to your honors may seem just and proper, compelling the said trustee to show what investment he made of said fund, and show what interest he received from the same.” * * *
    The court, upon the hearing of the petition, made the following order: — •
    “ And now, April 24th 1874. petition read, and the court, after due consideration, do order and decree that notice of the presentation of this petition be given to Albert Owen to appear at August term next, and answer to a rule of court, to be issued upon him, to show cause, if any he has, why the prayer of the petitioner should not be granted, and the court do order that said Albert Owen pay to the said William Atherton one hundred and fifty dollars within thirty days from date.”
    The record shows the following entry: “May 5th 1874, I accept service and waive issue on the within order and decree. Albert Owen.”
    Owen appealed to the Supreme Court and assigned the order for error.

      A. Hay for appellant.
    Owen was not before the court, and had no notice to appear ; the court had no power to make the summary order complained of: Const. Penna., 1 art., sect. 11; Const. U. S. 5; Ervine’s Appeal, 4 Harris 263; Banning v. Taylor, 12 Id. 292; Menges v. Dentler, 9 Casey 499. There must he a citation. Act of March 29th 1832 : Pamph. L. 207, 2 Br. Purd. 1106, pi. 18; Oketon’s Appeal, 2 Grant 204.

      J. A. Beaver (with whom was J. L. Cuttle), for appellee.—
    This was only an interlocutory decree and cannot be appealed from. The Orphans’ Court being within the limited sphere of its jurisdiction a court of equity had the power to make this order : Brinker v. Brinker, 7 Barr 53; Ake’s Appeal, 24 P. F. Smith 116.
   Mr. Justice Woodward

delivered the opinion of the court, October 13th 1875.

The question involved in this appeal arose upon the presentation to the Orphans’ Court of the county of Centre of the petition of William Atherton, the appellee, setting forth that under proceedings on a previous petition to the same court, purporting to have been signed by him, Albert Owen, the appellant, as administrator of Richard Atherton, deceased, had obtained possession of the sum of one thousand pounds sterling in gold, which had been received by Richard Atherton for the petitioner under the last will and testament of Elenora Atherton, of Manchester, in England; that the petitioner verily believed that the original petition was never signed by him; and that he had never intended to give the respondent any power over the money other than to transfer it from a bank in Tyrone to a bank in Philipsburgh. On these facts the petitioner asked a decree discharging the respondent as trustee, declaring the original petition to be void, directing the payment of the money to the petitioner, with .the premium on gold and interest, and requiring the respondent to show what investment he had made of the fund, and what interest on account of it he had received. The court at once ordered that notice should be given to the respondent to appear at the next term, and show cause why the prayer of the petitioner should not be granted. The decree concluded in these words : “And the court do order that the said Albert Owen pay to the said William Atherton one hundred and fifty dollars within thirty days from date.”

It is this order for the payment of one hundred and fifty dollars of which the appellant complains. No notice of the petition had been given to him, and he was afforded no opportunity to meet its allegations. Issued thus improvidently, as he claims, he asks that the order may be annulled. On behalf of the petitioner, it is objected that the decree was interlocutory only, and that the appeal was prematurely-taken.

By the 59th section of the Act of the 29th of March 1832, any person aggrieved by a definitive sentence or decree of the Orphans’ Court may appeal to the Supreme Court. Under this provision it has been held that an appeal lies from an order appointing a •guardian : Senseman’s Appeal, 9 Harris 331; and from an order of confirmation' of any account of an executor or administrator, whether final or partial: Ehoads’s Appeal, 8 Wright 186. Later authorities have modified those cases, and defined their scope and limited their effect, but the special points which they decided have not been overruled. The 9th section of the Act of 27th of March 1713, which was in force until the passage of the Act of 1832, had given an appeal to any person “ aggrieved with any definitive sentence or judgment of the Orphans’ Court,” and in Hess’s Appeal, 1 Watts 255, it was decided that an appeal from an order of sale of decedent’s real estate could be sustained. In Patterson’s Case, 1 Weekly Notes 454, a judgment on an award of arbitrators had been obtained against a defendant in an action in the Common Pleas of Lancaster. An application was made to open the judgment and set aside the award on the ground that the writ had not been served and the attorney who had accepted service for the defendant had acted without authority. The application was granted, the court directing at the same time, without hearing or notice, that the attorney should pay the costs. Upon a writ of error brought by the attorney, the original action remaining undetermined, the judgment was reversed for the reason, as stated by Gordon, J., that “ we have in Pennsylvania neither statute nor common law to sustain it.” The appellant’s application for redress would seem warranted by the precedents.

On what principle can this decree be held otherwise than definitive ? It was an express, absolute and unconditional order on one man to pay money to another. To the extent of $150 it was a final adjudication of the title to the fund in controversy. It is true the payment was to be made within thirty days. But that was a provision for stay of execution simply, and at the expiration of the stay the respondent would become subject to an attachment, a writ of sequestration, or a writ of execution in the nature of a fieri facias, which a single judge, by the 57th section of the Act of 29th of March 1832, is authorized to allow. Whatever the event of the main dispute, the disposition of this sum of $150 was absolute. The order contained no reservation of the power of the court to restore it to the respondent if his right to it in the end should .be ascertained. It is to be observed that this allowance was not asked for by the petitioner. It was made by the court, without explanation given or ground stated. There may have been reasons for it, hut the case must be treated on the facts it discloses, and those facts show a mode of dealing with the rights of the parties that was too summary to be safe. It is unnecessary even to allude to the general merits of the controversy. The order was an excrescence on the record, and all that can be done with it is to set it utterly aside. The legitimate proceeding can be pursued in the legitimate way.

The order for the payment of $150 by the appellant is reversed, at the costs of appellee.


author: Per, Curiam.

text:
    Kille vereus Ege et al.

    1. Ege in 1815 conveyed unimproved land, known as the “ Cox tract,” in trust for the wife of his son and her heirs, and died soon afterwards; at the time of the conveyance, and before, the son occupied an adjoining iron-works of his father, known as “Mt. Holly Estate;” this was adjudged to him in partition; he coaled, cut timber, &c., on the “ Cox tract” for more than twenty-one years; the “ Mt. Holly Estate” was sold by the sheriff in 1836 as the property of the son; the trust deed was not recorded until June 1848 ; the wife died in December 1848 and the son in 1858; no claim for the “ Cox tract” was made by her heirs till they brought ejectment in 1872 against parties claiming under the sheriff’s sale, and alleging that the “ Cox tract” was part of the “Mt. Holly Estate.” Held, under the circumstances of the case, the heirs could recover.
    2. The record of the deed, showing that it was executed and acknowledged, raised the legal presumption that it had been delivered.
    3. Ege being the owner of the land and having by the deed of trust separated the “ Cox tract” from the “ Mt. Holly Estate,” evidence of possession of the “ Cox tract” by the son, in connection with that estate before the deed, was immaterial to establish adverse holding by him.
    4. In the proceedings in partition the “ Cox tract” was not described as part of “ Mt. Holly Estate.” Held, that neither the son, nor those claiming under him, took any title to it, by the adjudication to him of that estate.
    5. A party alleging error must prove it, and when the error relates to documents, copies must be produced to show their bearing.
    6. The possession of the son during the life of his wife was not adverse, and the statute did not run; the evidence in the case did not show a continuous possession after the sheriff’s sale.
    May 13th 1875.
    Before Agnew, O. J., Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1875,No. 42.

      This was an action of ejectment, brought June 7th 1872, by William Cox and others, legal representatives of William Cox, Sr., deceased, against Edward Noble and others, for a tract of land in Dickinson township, containing 333 acres 36 perches and allowance; known as the “Cox tract.” On the 24th of April 1874, Caroline Ege and others, children and heirs-at-law'of Elizabeth Ege, wife of George Ege, deceased, were admitted as plaintiffs ; on the 12th of October John Kille was admitted to defend as landlord.
    The premises in dispute had been part of the real estate of Michael Ege. He was a very extensive iron-master in the county of Cumberland, owning four iron-works, one of which was called the “ Mount Holly Estate.” After his death, under proceedings in partition, the “Mount Holly Estate” was adjudged to his son George. He having become embarrassed pecuniarily, this property was sold by the sheriff; the defendants claimed under the sale, ¡.lleging that the premises in dispute were part of the “ Mount Holly Estate:” the plaintiffs denied this, alleging that they had been conveyed by Michael Ege in trust for their mother, the wife of George Ege, both being dead, and that the land had passed to them under the terms of the trust. The contest involved the validity of the deed of trust.
    The trial of the case commenced October 12th 1874, before Junkin, P. J.
    The plaintiffs gave in evidence: Warrant to William Cox, dated October 24th 1785, adjoining land of Stephen Eoulk and Lewis Eoulk, for 300 acres; survey, November 12th 1785, of 336 acres 36 perches, returned March 10th 1791. Deed from William Cox to Michael Ege, dated November 10th 1787, for the same land, recorded July 26th 1848. Patent to William Cox, Jr., for same land, dated March 19th 1791.
    Under objection and exception, the plaintiffs gave in evidence the record of a deed dated June 2d 1815, and recorded June 7th 1848, from Michael Ege io John Miller, in trust for Elizabeth Ege, wife of George Ege, “ in consideration of the regard and esteem which he has and bears to his daught'er-in-law, Elizabeth Ege, the wife of his son George Ege, and for the purpose of promoting the interest of the said Elizabeth, separate and apart from that of her said husband, as also” of $10. The deed conveyed seven tracts, one of which was the above tract, warranted and surveyed to William Cox, the premises in dispute; this tract is described in the deed by courses and distances, “ in trust for the said Elizabeth Ege, her heirs and assigns for ever, and for her and their sole and separate use and benefit, with full power in said trustee, together with the said Elizabeth Ege or her heirs consenting and joining with said trustee to sell,” &c., any part of said property, the proceeds to be paid to Mrs. Ege for her sole and separate use, “ to be used and disposed of a's she may think proper, either by will, deed or otherwisein case of the death of Miller, Mrs. Ege to have authority to appoint another trustee with the same powers, &c.
    The deed was executed by Michael Ege in the usual form in presence of “ George D. Foulk, George Patteson” with Michael Ege’s receipt to Miller of same date as the deed for $10, “the consideration money;” with acknowledgment also of the same date before George Patteson, a justice of the peace. Michael Ege, Sr., died August 31st 1815 ; John Miller, the trustee, died in 1832 ; 'Elizabeth Ege, wife of George Ege, died December 6th 1848; George Ege died February 11th 1858. Their children were: Michael M. Ege, born October 13th 1810 ; John M. Ege, born December 13th 1813; Elizabeth Ege, born March 16th 1818, and Caroline Ege, born December 19th 1821. John M. Ege died February 1853; Michael M. Ege died April 18th 1864; both John and Michael left children, who are amongst the admitted plaintiffs in this suit; the writ was served June 7th 1872.
    The plaintiffs rested.
    The defendants gave in evidence an agreement dated December 8th 1785, between Stephen Foulk and William Cox, Jr., by which the parties agreed “ to become co-partners and joint builders in building a saw-mill and a furnace, with improvements for carrying ón,” &c., Foulk to be at two-thirds of the expense in building and carrying on and to receive two-thirds of all the profits, and Cox to be at one-third of the expense and receive one-third of the profits ; it was also agreed that a tract of 563 acres of Foulk and the premises in dispute held by Cox “ shall be in partnership for the use of the aforesaid buildings,” Cox to pay Foulk 94i. for one-third of his tract of land “.to be an undivided right,” Foulk to have the management and Cox: to assist.
    The defendants then offered in evidence a deed dated June 17th 1795, from Stephen Foulk to John W. Kittera and others, for a number of tracts of land surrounding the" premises in dispute; and in connection, deed of same date from same to same for the land in dispute, by courses and distances. The plaintiffs objected to the offer ; it was rejected, and a bill of exceptions sealed. The court in rejecting the offer said: The land in dispute was, by the agreement between Foulk and Cox, brought into partnership. The effect of the offer of both deeds is to convey any interest in Stephen Foulk to the grantors named, and the offer is for the purpose of showing that the Cox survey was thus brought into the “ Mount Holly Estate.” As between Cox and Foulk themselves, the tract was land, and as Cox never joined in either deed, Foulk, at most, could convey but his own land. If the Cox tract became part of the “Mount Holly Estate,” it was not made so by these deeds.

      The defendants offered a deed, dated June 17th 1795, from Foulk to Kittera and others, for a number of tracts .of land, amongst them, three in the name of Thomas Cookson, Lewis Eoulk and John Eoulk, respectively, which surround the land in dispute, and are conveyed by the deed as the “Mount Holly Estate;” also, deed of same date, between the same parties, conveying, by courses and distances, the land in dispute, together with a mortgage of the same date of the same land in both deeds from the grantees to the grantor, by the name of the “ Mount Holly Iron-Works;” sale under the mortgage and conveyance by the sheriff of the same land by the same name to Michael Ege; to be followed by evidence that Ege adopted that name for the land, including the land in dispute, which, with other lands, had, up to the trial, been used and known as the “ Mount Holly Iron-Works,” had been so assessed and taxed, and no part assessed and taxed in any other name, for the purpose of showing that the land in dispute forms part of the “Mount Holly Estate,” and to show the boundaries.
    The court rejected the offer and sealed a bill of exceptions : saying that the sheriff’s sale, not having been made under a judgment against Cox, would not pass his title. As to payment of taxes and other acts of ownership the evidence was admitted.
    The offer was renetved for the purpose of raising the presumption of a conveyance from Cox to Eoulk, because Eoulk treated the land- as his own by conveying, and no claim of the Cox title had been made till this suit.
    The offer was rejected, and a bill of exceptions sealed, the court saying : that the presumption could not arise, as the Cox title was being asserted in this action; such presumption arising only to fill a wanting link.
    The defendants, under objection and exception by the plaintiffs, gave the following evidence: Deed, dated June 1st 1803, from Grayson, sheriff of Cumberland county, to Michael Ege, for “Holly Iron-Works,” containing 3989 acres of land, including that in dispute, sold under a judgment against Kittera and others, being the same formerly belonging to Eoulk, and conveyed by him by two deeds dated June 17th 1795.
    Also, that George Ege lived at the “Mount Holly Works” about 1812 or 1813, and carried them on. He built a good many houses about the works; some were occupied for a time by hands employed by him; were occasionally vacant and again occupied, and finally became untenantable; the lands were called George Ege’s; that George Ege, while carrying' on the Holly Works, coaled on the land in dispute, six or eight months in a season; that timber had been cut from time to time on the land in dispute .by George Ege’s hands whilst he occupied the “ Mount Holly Works.” _ ■ _
    _ _ The defendant offered in evidence a number of leases by George Ege of tbe “Mount Holly Works,” including the land in dispute in 1827 and subsequently, for the purpose of showing acts of ownership and possession by him of this land.
    They gave evidence that in the beginning of 1815 Michael Ege declared to George Ege that he intended to give each of his sons the property on which they respectively lived, “ Mount Holly” being that to be given to George; each to receive to the value of $100,000. The “ Holly Works ” were not of the value of $100,000, and George was therefore to receive something. George and Michael, the son, were about to erect furnaces; after this George carried on the “ Holly Works ” as his own; paid and received the debts of the place, and began early in 1815 to build a furnace; Michael did the same. On the 3d of June 1815 the father met all the sons to have the deeds made to them. Peter, to whom had been assigned the “Cumberland Works,” declined to receive his deed, on account of the amount he would have to pay beyond the value allowed to him; Michael took his deed; the father offered George his deed, saying he could either receive it that day or wait till he could take some land from Peter and add to it; George objected to receiving his deed. In the following August the father made a survey, for the purpose of cutting off a part of Cumberland and adding it to Holly, but died on the 31st of that month, before anything further was done. George occupied the Holly Works up to his father’s death ; the father never settled any of the accounts of either of the establishments, nor did he pay anything toward the buildings which he knew his sons were putting up in the spring of 1815; deeds were never delivered to Peter and George.
    The defendants offered to prove by a witness on the stand that in 1823 he bought some trees of George Ege, who went with him and pointed out the “ Cox tract” as the place to cut them, stating that it belonged to him and that the trees were to be cut there; for the purpose of showing a claim of title to the land which could not be affected by a secret trust after the land had passed into the hands of innocent purchasers and that the deed of trust could not then have been delivered.'
    The offer was rejected, on the ground that the land by the deed of trust had been vested in the wife of George Ege and his declaration could not be received to prejudice her.
    Defendants then made the following offer of evidence :—
    The deed of trust before in evidence conveying seven,tracts on warrants, viz.: February 2d 1767, to Moses Foulk, 283 acres 40 perches; October 24th 1785, William Cox, 333 acres 36 perches ; April 10th 1793, John Doran, 102 acres 92 perches; July 30th 1814, George Ege, 191 acres 130 perches ; October 1st 1792, Michael Ege, 434 acres 40 perches; October 1st 1792, John Arthur, 236 acres 40 perches ; October 1st? 1792, Thomas Thorn-burg, 413 acres 108 perches.
    They proposed to prove that George Ege was one of the administrators of Michael Ege, and left the deed of trust for record at the recorder’s office, on June 7th 1848 ; that he and his wife, the cestui que trust, conveyed the tract of land in the name of Michael Ege to Sarah Miller, as bounded on all sides by land of Stephen Eoulk, now George Ege; that. John Miller, of Carlisle, on July 7th 1815, took out a warrant for 400 acres of land, adjoining land of Michael Ege, on the north, under which the land in dispute was purveyed to him ; that on July 15th 1815, a tract of 219 acres and 124 perches was surveyed on a warrant granted to Samuel White, for 200 acres,'dated 8th September 1814; that the deputy-surveyor returned that a portion of the land so surveyed was claimed by George Ege, by virtue of a warrant granted to Moses Eoulk, dated March 4th 1786, and that part of it was. claimed by Thomas Thornburg, by virtue of a warrant to him, dated October 1st 1792, and that on March 3d 1817, the board of property, after hearing the claimants, decided in favor of the said George Ege and Thomas Thornburg, upon their respective claims as returned by the surveyor; that to the warrant of July 30th 1814, to George Ege, the deputy-surveyor made a return, accepted 2d May 1845, that he surveyed the tract on December 11th and 12th 1844, and that his survey is by the same courses and distances, and for the precise quantity of land by which it is described in said deed of trust; that such a return imports an original survey upon the days mentioned, and that after the lapse of nearly thirty years from the date of the deed of trust, a re-survey in the mountain and in the wooded district would have shown some, variations in the courses and distances; that at a sheriff’s sale of the property of William O. Chambers, prior to 1838, George Ege gave notice to bidders that the tract of land in the name of John Arthur, for 236 acres and 40 perches, under warrant of October 1st 1792, and about to be sold as the property of said Chambers, was the property of the said George Ege, and was a part of the Mount Holly estate; this to be proven by the evidence of George Ege and others in actions brought in this court for the recovery of said land; that in 1843, in this court, George Ege brought an action' against the Farmers’ and Mechanics’ Bank, the purchaser of the Mount Holly estate, by a description which included the land in dispute, claiming that he had withdrawn certain exceptions to the confirmation of the sale of said property by the sheriff, upon the promise that the said purchaser would convey said estate to certain parties, in trust for the family of the said George Ege; all this for the purpose of showing that the said deed of trust of June 2d 1815 was never executed by the said Michael Ege, or, if it was, that- it was never delivered to the trustee named therein. • This was objected to by the plaintiffs.
    The first part of the offer as to who procured the recording of the deed of trust was admitted, the remainder rejected and a bill of exceptions sealed.
    This bill of exceptions was the seventh assignment of error.
    The evidence under this offer was, that administration of the estate of Michael Ege had been granted September 18th 1815 to George Ege and others, and that the deed of trust was left for record with the recorder of deeds in 1848 by George Ege.
    The defendant gave in evidence the assessment of the Mount Holly estate in gross for taxes in the name of George Ege, from 1814 to 1840.
    Also, fi. fa. to August Term 1821, Farmers’ and Mechanics’ Bank against George Ege; debt $8480; real estate levied on. The judgment on which the execution issued was revived from time to time, and on the 23d of December 1836 there was an agreement to set aside the condemnation, and for an amicable condemnation, viz.: of several'bracts of land named, “also the forge and furnace estate called ‘ Mt. Holly Iron-Works,’ composed of several adjoining and contiguous surveys or tracts of land in south Middleton and Dickinson townships, containing about 7689. acres, bounded,” &c. Under a venditioni to August Term 1838 the property above mentioned was sold and conveyed by the sheriff, August 20th 1838, to the Farmers’ and Mechanics’ Bank, for $28,600. This title passed to Kille, the defendant, by different conveyances to him, the last being dated January 2d 1871. In the various deeds it is described as the “ Mt. Holly Estate,” and the land in dispute is included.
    Samuel Given, one of the intermediate owners, testified that he bought the Mt. Holly land in a lump, not knowing any of the lines of the “Cox tract.” He used the whole as one tract; he had known it since 1826 and always saw it so used; there was one large line around the whole of the “ Mt. Holly Estate ;” it was never farmed or used for cultivation except about 50 acres about the furnace; never saw any cabin or cultivation on the “ Cox tract.”
    The defendants closed.
    Plaintiffs gave in evidence the petition of Peter Ege, one of the sons of Michael Ege, deceased, presented to the Orphans’ Court of Cumberland county, November 11th 1815, for partition of the real estate of the decedent. It set out the death of the decedent without leaving a widow, but leaving five children: the petitioner, George, Michael (who had been advanced by the decedent in his lifetime), Mary and Eliza; that the decedent died seised of land in Cumberland and' Adams counties, amongst the rest, twelve tracts partly in South Middleton and partly in Dickinson townships, Cumberland county, known as the lands belonging to “Mt. Holly Iron-Worksthere were also lands belonging to other iron-works, and lands not connected with such works, mentioned in the petition. Several inquests were awarded ; the pluries writ was confirmed July 16th 1816; that part of the petition and inquisition describing the tracts as belonging to the “ Mt. Holly Works” did not include the seven tracts conveyed to Miller in trust for Elizabeth Ege. The “ Mt. Holly tract,” as returned by the inquest, contained 6556 acres and was valued at $60,190; it was adjudged to George Ege. Under objection and exception, the plaintiffs gave in evidence the administration account of George Ege, as one of the administrators, &c., of his father, exhibiting charges for services by him as manager of his father’s iron-works, for the purpose of showing that he occupied the “ Mt. Holly Estate ” as agent for his father, and not as owner or for himself. The services extended from January 1801 to February 1st 1815, and, as allowed by the Orphans’ Court on exceptions to the account, amounted to $5552.
    The plaintiffs then offered the affidavit of George D. Foulk, one of the subscribing witnesses to the deed of trust, made on the deed and taken May 23d 1848, that his name as a subscribing witness was in his handwriting. Offered as corroborating the evidence of the record of the deed, the defendant having alleged that the deed was not genuine.
    The offer was objected to, admitted by the court, as the grantor was dead when the affidavit was taken. A bill of exceptions was sealed for the defendant.
    There was other evidence as to the adverse character of George Ege’s possession, its continuance, &c.; also, as to the boundaries of the “Cox tract,” in relation to the admitted Mt. Holly property and to improvements made on it.
    The following are points of plaintiffs which were affirmed :—
    2. The land which comprised the Mount Holly estate is ascertained and fixed by the proceedings in partition of the real estate of Michael Ege, deceased, and these proceedings being of record in the Orphans’ Court of Cumberland county, and describing accurately the contents of the tract known as Mount Holly estate, by the names of the different warrantees of the lands comprising it, with the number of acres contained in each survey, the purchaser at sheriff’s sale of the Mount Holly estate as the property of George Ege, took it with notice of record that the tract in dispute did not form a part of it.
    4. No such open, notorious, adverse and continued possession of the land in dispute has been shown by thfe defendants, and those under whom they claim, as gives them a title under the Statute of Limitations.

      The following are points of the defendant, and their answers :—
    2. If the jury believe that the deed of trust, purporting to have been made by Michael Ege, Sr., to John Miller, in trust for Elizabeth Ege, on the 2nd June 1815, never was made and delivered by Michael Ege, their verdict should be for the defendants.
    Answer. “ This is correct, if it is found by you that it was not made and delivered. But the presumption is that it was both made and delivered, and we have drawn your attention to the corroborating circumstances, which support the presumption.”
    3. The deed of trust, purporting to have been executed by Michael Ege to John Miller, in trust for Elizabeth Ege, never having been'recorded or made known until long after the death of John Miller, nor until 1848, after George Ege had been sold out by the sheriff; and no trustee was appointed after the death of John Miller; and Elizabeth Ege, not having been shown to have had the deed recorded; and George Ege, who had it recorded, being one of the administrators of Michael Ege, and in possession of all his papers ; and other deeds by Michael Ege, executed for parts of his property at .the same time, which it is shown were never delivered; the recording of said deed of trust is no evidence of delivery. And delivery being essential to its validity as an instrument conveying title, the facts stated are all suspicious circumstances for the consideration of the jury in determining whether the deed of trust ever was delivered.
    Answer. “ The deed being found duly recorded, the law presumes that it was both made and delivered, and the proceedings in partition by the son of grantor in the Orphans’ Court, in which the lands embraced in the trust deed are omitted, strongly support the good faith of the deed, both as to making and delivery. We see nothing in any fact in the cause which tends to repel the legal presumption, but we refer the matter to you. As to the effect of not recording the deed until 1848, as there is no one claiming the land under the grantor, Michael Ege, by purchase of any other way, the failure to record the deed did not impair Elizabeth Ege’s title under it.”
    4. If the deed of trust by Michael Ege to John Miller, in trust for Elizabeth Ege, was executed and delivered, Elizabeth Ege or her trustee had the right to bring suit for the land in 1838, immediately after the sheriff’s sale of the property and possession taken by the purchaser, a3 George Ege had no marital right in the land. And as she lived until December 1848, and never brought suit, and her children and heirs never brought suit until 1874, and all lived within seven miles of the property and in the same county, and in the meantime the property passed to various vendees, who paid their money for it and expended money and labor in improving the property, without any notice of claim of title by Elizabeth Ege, or the present plaintiffs, they are estopped from recovering it now, and the verdict should be for the defendants.
    Answer. “ She was not bound to bring suit at any time, and the heirs have sued in time; and they are not in any manner affected by the improvements made by the purchasers under the sheriff’s sale in 1838 ; none were made on the land in dispute by any person after 1838, and if there had been, such improver could acquire no rights thereby. Improvements made on other tracts used as and called Mount Holly land in no wise gave title to the tract in dispute, and there could be no estoppel thereby. This Cox tract was an exterior tract of Holly, if it ever did belong to Holly, by five of its lines, and there were marks upon the ground, the tract well identified, and Mrs. Ege and her heirs were not bound to give the owners of Holly any notice, because they were not improving her or their tract — they were wrongfully cutting the timber and injuring her, instead of improving.”
    5. If the property was represented in the warrant, survey, and patent as seated land, and was returned hy George Ege for taxation from 1814 to 1838 as his seated land; and a house was built on it by George Ege, which was occupied by his tenants; and the land was improved and cultivated for over twenty-one years by those who held under him, continuously, notoriously, and in hostility to all other titles; and George Ege was a son and heir of Michael Ege, who owned this land in his lifetime, and who died in 1815 intestate; and George Ege used the land from 1812 to 1838 as his land, coaling on it, cutting the wood on it, and it was all this time known as his; this would create in George Ege such a title as would pass the fee simple to an innocent purchaser at the sheriff’s sale, who had no notice or knowledge of the deed of trust.
    Answer. “Refused.”
    6. If the land in dispute belonged to Michael Ege, who put George Ege, his son, into possession of it prior to 1815, under an agreement with him that it should be his as part of Mt. Holly estate, he (George) to pay the debts which had been contracted there; and from that time George held it and used it as his own, as part of Mt. Holly Iron-works; and Michael Ege died in 1815, intestate, leaving George Ege in possession of said tract as his own; and George Ege continued in possession of Mt. Holly estate, and this tract included, until 1838, without objection or claim on the part of his brothers and sisters, or any other person, using and treating all the different tracts as one property, claiming ownership over it all as one property, cutting wood off it for his furnace and forge whenever he desired it, having his tenants living on it for over twenty-one years, having it assessed and taxed in his name, and in 1836 he gave an 'amicable condemnation to the sheriff of all Mt. Holly estate by boundaries which included this tract: and neither Elizabeth Ege nor her trustee ever entered the deed of trust on record, nor had the land returned or taxed in her name, and gave no notice at the sheriff’s sale of her title, the defendants are entitled to the verdict.
    Answer. “ This point is affirmed if you find the fact to be as therein stated. But where is the evidence to support the.facts as recited? Bo you find them in the case? George Ege was at Holly before the death of his father, but his account as administrator, filed in the Orphans’ Court, shows that he was the agent or manager of his father at Holly, because he claimed and received $5000 for his services.”
    7. If the jury believe that the property in dispute belonged to Michael Ege, the father of George Ege, who died in 1815, and that George Ege, before and at the time of his father’s death, and up to 1836, was using this property as his own, and as part of Mt. Holly estate, cutting wood off it for his furnace and forge, having tenants living on it who were in his employ for over thirty years, returning it for taxation as his property during all that time, and paying the taxes, all the other children and heirs, John Miller, the trustee, and Elizabeth Ege, acquiescing in those acts of apparent ownership, and in 1838 George Ege gave an amicable condemnation of Mt. Holly property, which was confirmed to him under proceedings in partition on his father’s estate, to the sheriff, by boundaries which included this land, not mentioned in the proceedings, and it was sold by the-sheriff on a venditioni ex-ponas in 1838, to the Farmers’ and Mechanics’ Bank, who paid for it, and took possession of the whole Mt. Holly estate, including this land; the Farmers’ and Mechanics’ Bank came into possession of it by color of title, and this possession continuing in the bank, and those to whom it sold, until 1874, without interruption or claim by the plaintiffs, the title of the bank, and those to whom they sold, became perfect; and the plaintiffs cannot recover.
    Answer. “ Refused. If the land was his wife’s, nothing done by him, recited in the point, could put her title in him; and if he had none, his amicable levy and condemnation and sheriff’s sale under it gave no title.”
    The court, after stating the chain of the title of Michael Ege to the land in controversy, said: * * *

      “ Thus it is rendered certain and incontestable, that the legal title to the land in dispute was, on the 2d day of June 1815, lawfully 'vested in Michael Ege, the father of George. [Now, then, what did he do with it, because it was undoubtedly his to do with as he saw fit? Well, we find, that on the 2d June 1815, less than three months before he died, he did dispose of this Cox tract among others: that he conveyed it to John Miller, in trust for Elizabeth' Ege, wife of his son George, and her heirs, for her separate use, apart from her husband. Recorded the 7th June 1848. This deed contained six other tracts besides the Cox tract, to wit: * * *. The legal result of all, up to this point, is to put the title to the land now in dispute in Elizabeth Ege, the wife of George Ege, who was one of the three sons of Michael Ege aforesaid; and that title remained in her during her life, and descended upon her death to her children, and to the heirs of the latter, where any have since deceased. Those heirs or their descendants are here in court, asserting their mother’s title against the present claimants of this Cox survey, for with that only have we now to do. It follows, then, that unless something has been done by this mother, Elizabeth Ege, in her lifetime, or some title has been acquired in some way, before or since her death, which defeats the title which was vested in her, these plaintiffs must recover the land in controversy.]
    “We now turn to that inquiry, and will review the defence set up on behalf of the defendants and present claimants of this tract.”
    The court then referred to the evidence adduced to sustain the defence; and proceeded :—
    “ So far, then, as George Ege claimed by sale or gift from his father, it is our duty to say that neither is clearly established by the evidence. That the father placed him there and set him at work is doubtless true, but nothing like an agreement to sell or gift of the property to George is shown ; an intention by the father to do so was expressed, but he never deeded the property by any conveyance that George would accept. [On the contrary, on the death of the father Michael, this Mount Holly property (but not this land in dispute) was valued and appraised, together with the other lands of the father, in due form, in the Orphans’ Court of this county, and accepted by George Ege, at the valuation, and thus he got title to the Mount Holly lands, but the Cox survey was not embraced. It was not, nor were the remaining six tracts, embraced in the trust, included among old Michael Ege’s land, by the inquest, and this tends to support the trust deed; because at his death he did not own the lands embraced therein.]
    “ The next branch of defence, and set up as title in George Ege, is the Statute of Limitations ; that is, title by adverse possession. * * * The husband gets no title by trespassing or living on his wife’s land; so that George Ege acquired no title as against his wife, by any renting, leasing, coaling, cutting or even living upon it, that has been proved to this tract of land. [It is a tract having distinct lines of its own, marked upon the ground, with several of the lines, corners and monuments still standing to this day ; and although cut over by George Ege, Woodburn and Peter Ege, up to 1888, without regard to lines, and was used along with other lines for coaling, its identity was distinct from 1785, when the original survey was made, and is now.]

      “ Then, has any one else other than George Ege acquired title by adverse possession ? Title by adverse possession must be an actual, adverse, visible, notorious, hostile and continued possession for twenty-one years. All these ingredients must be pr-esent, or might as well be absent; if any one be wanting — for instance, that of continued possession — a dereliction in that quarter is fatal. George Ege’s lands, and this tract, as if his, among them, were sold at sheriff’s sale in 1838, and since that, George Ege, the husband, has had nothing to do with the Holly lands or this tract; and since that year, any one who claimed and resided on it by himself or tenants, year by year, so that the owner of the paper title, coming there to look up his land, would have found a person in possession of it, against whom he could have brought suit, if desirable, and instead of suing such occupier, he was permitted to sit there and occupy for twenty-one years, he would acquire title. To constitute such possession, the person so claiming to occupy must live within the lines of the survey, or cultivate a portion of the land within the lines. If such occupier stayed awhile and then left, and the property remained vacant -for a year or more, that would not be continued possession, and no title would be acquired. If a portion was cultivated .only every few years, so that for several years together no cultivation or farming was done, that would not be such use of the land as would give title by adverse possession.' [Now, apply these principles to the facts of this case, and what have we? As to the occupancy of the old house in the forks of the Gettysburg and Laurel Forge roads, about which much testimony has been given, it is rendered.certain by the surveyors called by defendants that it never was within the lines of the Cox survey"; so that its occupancy goes for nothing. Then there was another old log house that was on the Cox tract, situated on the .left-hand side of the Gettysburg road, on what is called the Rocky road, which was used and occupied by the employees of George Ege up to 1835, and possibly up to 1838 or 1839 ; but in that year (1839) Conrad Peffer, called by defendants, swears that he was there personally on the ground, and the house was then gone, dilapidated, unoccupied, and even the garden had been abandoned as early as in 1847, if not before ; for he says when he first saw it in 1839, the house was gone, and that from 1839 to 1847 he never saw anything growing there; so that from 1838 to 1847, conceding it occupied would make no title by the statute, and thus this branch of the defence fails. Cutting timber and coaling over the land gave no title by adverse possession, where the lines as here individuated the tract, it is simply trespass.]
    The only remaining question is, did Michael Ege, Sr., in fact, make and deliver this trust deed of the 2d June 1815 ? Is it his deed, and was it delivered ? [The law presumes both execution and delivery from the recorded deed as it appears. In order to overthrow it, there must be some satisfactory evidence pointing to it as a fraud, or justifying the conclusion that it was never delivered. It was not put upon record until 7th June 1848, which it is contended excites suspicion, and so it does seem singular that it remained so long unrecorded. But the circumstance of the seven tracts 'embraced in the deed being omitted from the Orphans’ Court inquisition on old Michael Ege’s estate, and the amount of the seven tracts reaching over 2000 acres, and that inquest, held only one year after the death of Michael Ege, the father, seem corroborative of the valid existence of this trust deed, that the lands aforesaid were known not to be a portion of his estate, that he parted with them before his death, and hence properly omitted, as being no part of his estate. And if parted with, to whom were they conveyed ? Not to his sons, nor any one of them, for they can show no deed ; whereas the trust deed to Miller, for the wife of Greorge, embraces these very tracts. Peter Ege, a son, seventy-one days after his father’s death, petitioned the Orphans’ Court for the inquisition, and although he specifies and individuates fifty-nine tracts of land, leaves out these seven. Why? He was a son, and heir of this opulent -landowner, and yet he made no claim to the seven tracts, embracing over 2000 acres.] * * *
    A nonsuit was entered against the Cox plaintiffs, and a verdict was found for the other plaintiffs.
    The defendants took a writ of error; they assigned for error:—
    1-9. The rulings of the court on the questions of evidence, the 7th being the rejection of evidence to prove that Greorge Ege and wife conveyed several of the tracts of land mentipned in the deed of trust, &c., as is above set out in the statement of the case.
    10-14. The parts of the charge in brackets.
    15, 16. The answers to the plaintiffs’ points.
    17-22. The answers to the defendants’ points.

      J. Hays (with whom were- A. B. Sharpe and W. H Miller), for plaintiff in error.
    The recording of a deed is not conclusive evidence of its delivery : Chess v. Chess, 1 Penna. R. 32. The court should have told the jury this, and called their attention to the facts, inconsistent with its delivery, as they called their attention to the facts to show its delivery: Nieman v. Ward, 1 W. & S. 82; Parker v. Donaldson, 6 Id. 137; Heilbruner v. Waite, 1 P. F. Smith 259. The confirmation by the Orphans’ Court of an inquisition and assigning lands to a party incapable of taking them under the law, cannot be questioned after the time for an appeal has elapsed: Painter v. Henderson, 7 Barr 48. It is uncertain what lands were embraced in the Mount Holly estate under the inquisition ? Then it was for the jury to say by their verdict whether the land in dispute was included in it or not: Rex v. Rex, 3 S. & R. 540; Collins v. Rush, 7 Id. 152; Hoffman v. Danner, 2 Harris 29; Scott v. Sheakley, 3 Watts 50; Swartz v. Moore, 5 S. & R. 257; Hyskill v. Given, 7 Id. 372. As to the Statute of Limitations, it was forty years after the death of the trustee before any claim was made under the deed of trust; all the children had long attained their majority, and Elizabeth Ege, the wife, had been dead twenty-six years. During all this time George Ege had exercised the acts of an owner over the property. Even if the statute would not in strictness operate, the circumstances in connection with the lapse of time would raise a conclusive presumption against the claim: Strimpfler v. Roberts, 6 Harris 298. Although Mrs. Ege was a married woman, yet under the Act of April 22d 1856, sect. 1, Pamph.- L. 532, 2 Br. Purd. 930, pi. 13, the adverse possession was a bar to her children; nor is there under that act any exception for persons under disability: Hunt v. Wall, 25 P. F. Smith 413 ; Henry v. Carson, 9 Id. 297; Pratt v. Eby, 17 Id. 396 ; Lenhart v. Ream, 24 Id. 59. George Ege had no curtesy in the land: Heck v. Clippenger, 5 Barr 385; and therefore the heirs of Mr. Ege had not ten years after his death in which to bring suit: Cochran v. O’Hern, 4 W. & S. 95; Stokes v. McKibben, 1 Harris 267; Rigler v. Cloud, 2 Id. 361; Yarnall’s Appeal, 20 P. F. Smith 343. The deed of trust having been kept secret for so great a length of time, the plaintiffs are estopped: Woods v. Wilson, 1 Wright 384.; Carr v. Wallace, 7 Watts 394; Robinson v. Justice, 2 Penna. R. 19; Beaupland v. McKeen, 4 Casey 124; Keeler v. Vantwyle, 6 Barr 250; Knouff v. Thompson, 4 Harris 357; Hill v. Epley, 7 Casey 331. Using the land in dispute in connection with his own land, was such possession as would bring the statute into operation : Nearhoff v. Addleman, 7 Casey 279; Hole v. Rittenhouse, 1 Id. 491; Criswell v. Altemus, 7 Watts 580 ; McCall v. Neely, 3 Watts 69; Green v. Kellum, 11 Harris 254; Alden v. Grove, 6 Id. 377. Neglect to keep up possession after title has been acquired under the Statute of Limitations, does not affect such title: Schall v. Williams V. Railroad, 11 Casey 191; Leeds v. Bender, 6 W. & S. 318; Gregg v. Blackmore, 10 Watts 192; Mercer v. Watson, 1 Id. 339; Cooper v. Smith, 9 S. & R. 26 ; Porter v. McGinnis, 1 Barr 413 ; Dikeman v. Parrish, 6 Id. 210 ; Sailor v. Hertzogg, 2 Id. 184; Bunting v. Young, 5 W. & S. 196; Urket v. Coryell, Id. 60; Moore v. Luce, 5 Casey 262; Heckerman v. Hummel, 7 Harris 69. George Ege was not tenant by the curtesy; the estate passed to the children immediately on her death: Stokes v. McKibben, 1 Harris 267; Rigler v. Cloud, 2 Id. 351; Cochran v. O’Hern, 4 W. & S. 95; Hearle v. Greenbank, 3 Atkins 716 ; Morgan v. Morgan, 5 Mad. C. 245; Bennet v. Davis, 2 P. Wms. 316; Hill on Trustees 419-421.

      S. Hepburn, Jr., and 8. Hepburn, for defendants in error.—
    The trust deed was properly acknowledged, and legally recorded, and that made its whole contents legal evidence: Leazure v. Hillegas, 7 S. & R. 317 ; Curry v. Raymond, 4 Casey 144; Wheeler v. Winn, 3 P. F. Smith 131; Lancaster v. Smith, 17 Id. 432; Kelly v. Dunlap, 3 Penna. R. 136. We had the right to prove the execution of the deed, both by the acknowledgment and by the subscribing, witness : Jordan v. Stewart, 11 Harris 247 ; Sigfried v. Levan, 6 S. & R. 311; Greenough v. Greenough, 1 Jones 498 ; Barker v. McFerran, 2 Casey 214 ; Hamsher v. Kline, 7 P. F. Smith 403. When the evidence offered to set aside a deed is not such as would justify a chancellor in decreeing its cancellation, or a common law court in declaring it inoperative, it should not be submitted to the jury: Dean v. Fuller, 4 Wright 474; Delamater’s Estate, 1 Wharton 374; Graham v. Pancoast, 6 Casey 89; Nace v. Boyer, Id. 110. Acknowledging of a deed sealed by the party, is tantamount to a delivery of it, if none had been made before. A delivery may be not only by acts, but by words without any act of delivery: Co. Litt. 36 a, Jamison v. Jamison, 3 Whart. 472. A magistrate’s “certificate is primá, facie evidence of his authority and his signature:” Keichline v. Keichline, 4 P. F. Smith 75; Goddard v. Gloninger, 5 Watts 219; Blight v. Schenck, 10 Barr 289; Garnons v. Knight, 5 B. & C. 671; Penna. Co. for Ins. of Lives v. Dovey, 14 P. F. Smith 260; Boardman v. Dean, 10 Casey 252; Mitchel v. Ryan, 3 Ohio 377; Brown v. Bank of Chambersburg, 3 Barr 201; Long v. Ramsay, 1 S. & R. 72.
    The deed was good without recording, so long as it was not affected by adverse possession under the Statute of Limitations: Keller v. Nutz, 5 S. & R. 246; Morris v. Zeigler, 21 P. F. Smith 450. It was recorded long before the plaintiff in error, or any under whom he claimed, bought, and that was sufficient: Goundie v. Northampton Water Co., 7 Barr 233. The judgment creditor stood only in the shoes of George Ege: Reed’s Appeal, 1 Harris 476.
    As to George Ege’s rights as tenant by the curtesy, they cited Morgan v. Morgan, 5 Maddock’s Chanc. 408; Pitt v. Jackson, 2 Brown’s C. C. 51; Roberts v. Dixwell, 1 Atkins 609 ; Clancy on Marital Rights 192, 193; Crabb on Real Prop., sect. 1108, pp. 55, 77 ; Evans v. Knorr, 4 Rawle 67; Thornton v. Krepps, 1 Wright 391 ; Conner v. Chamberlain, 6 Allen 166; Richardson v. Stodder, 100 Mass. 528 ; Lancaster County Bank v. Stauffer, 10 Barr 398; McMillan’s Appeal, 2 P. F. Smith 434. Abandonment arrests the effect of adverse possession-: Stephens v. Leach, 7 Harris 265 ; Ewing v. Alcorn, 4 Wright 499 ; Olwine v. Holman, 11 Harris 284; Improvement Co. v. McCreary, 8 P. F. Smith 314; Hockenbury v. Snyder, 2 W. & S. 240.
   Judgment was entered in the Supreme Court, May 24th 1875,

Per, Curiam.

This case turns upon the question, whether the tract of land in controversy, surveyed in the name of William Cox, was, at the death of Michael Ege, a part of the forge and furnace éstate called Mount Holly Iron-Works, composed of several adjoining and contiguous surveys or tracts of land, situate in the South Middleton and Dickinson townships. This again hinges upon the question, whether the William Cox tract was any part of the land described in the proceedings for the partition of the estate of Michael Ege, deceased. If it be clearly determined that the William Cox tract was no part of the Mount Holly Forge and Furnace Estate, set apart in the proceedings to Ege, the second son of Michael Ege, in the year of 1816, it follows as clearly that the deed of June 2d 1815, from Michael Ege to William Miller, as trustee of Elizabeth Ege, for the William Cox tract with others, must have been delivered. The execution of this deed is clearly established, and if the William Cox tract was not included in the petition for partition filed November 11th 1815, and subsequent proceedings, it leaves no doubt that the legal presumption of delivery, derived from the acknowledgment by Michael Ege, the possession of the deed by Mrs. Elizabeth Ege’s husband, and recording of it, is true in fact. Michael Ege conveyed on the 20th of June 1815, and died on the 31st day August following, and the proceedings to divide his estate were commenced on November 11th succeeding. The estate was one of great value, the heirs were men and women of mature age, and the proceedings conducted and participated in by the foremost men of that part of the country. The proceedings themselves are minute and particular. The Mount Holly estate is twice described with the utmost precision, first in the petition, and next in the inquisition, as consisting of “ twelve tracts,” and these tracts are designated by name and number of acres. The warrants are all stated severally and by name; and the William Cox warrant and survey are not among them. Thé number of tracts would be thirteen if it had been included, instead of twelve, as stated, and therein particularized. It is very clear, then, that the Mount Holly estate, as accepted by and assigned to George Ege, did not embrace the Cox tract. It is impossible to suppose that these grown men and women, and their .eminent friends and advisers, did not consider and describe well the Mount Holly estate, or that they committed an error in leaving out of so important a proceeding a large portion of the estate of Michael Ege, deceased, for on this point we have to consider, not only the William Cox tract, but the other six tracts embraced in the deed of June 2d 1815. Then, in connection with this, we have the fact of the making of the three deeds of the 3d of June 1815, by Michael Ege to his three sons, Peter, George and Michael; Peter, the petitioner, reciting the advancement of Michael in lands in the lifetime of his father; coinciding with the undisputed fact, that Peter and George refused their deeds, while Michael accepted his. Now, when we consider that the deed to Miller, as trustee of Elizabeth, was made the day before, for seven tracts of land, it is impossible to doubt that the family all knew well of this deed, and, consequently, that none of these seven tracts were embraced in the partition.

The deed of June 2d 1815 being thus established beyond all doubt, the assignments of error to the rejection of evidence, to show that in the lifetime of Michael Ege, Sr., the William Cox tract had been at an early day brought into the Mount Holly estate, are immaterial. For the moment that he, as the owner of the whole estate, separated it from the Mount Holly Foi’ge and Furnace property, and his heirs following his act, left it out of the Mount Holly estate in the partition, it no longer constituted a part of that property: George took no title to it by his acceptance of the.purpart containing the Mount Holly estate, and those claiming his title under that proceeding stand in no better relation.

This view of the case disposes substantially of all the assignments of error, for all bear on the question of the execution and delivery of the deed of June 2d 1815 ; and its establishment strips the defendants of all pretence of title. The only assignment of error bearing on this question having seeming weight, is the seventh, and this intrinsically has but little, for the acts of George Ege, and 'of adverse claimants of some of the tracts contained in the deed of June 2d 1815, can have but little weight in repelling the clear proof in law and fact of the execution and delivery of that deed. The offer affords scarcely more than a scintilla of evidence; and there is a decisive objection to the consideration of this assignment, consisting in the fact that the papers set forth in it' have not been copied and presented for our consideration by the plaintiff in error. A party alleging error must prove it. He must therefore produce the documents by copies to show us what their bearing is. Now, not one of the papers referred to in the seventh assignment is printed and laid before us. The only knowledge we have of them is by the defendant in error, and these, as read, tend to show, that the court committed no error in rejecting the whole offer. This assignment of error out of the way, and nothing is left about which there can be any doubt.

Upon the evidence, the question of the Statute of Limitations is out of the case. In the lifetime and during the ownership of the Mount Holly estate by George Ege, the husband of Elizabeth, the statute did not run, even if the evidence was satisfactory of an actual possession of the whole tract by George Ege. His relation to her forbade the existence of adverse possession. After the estate passed out of his hands by the sheriff’s sale, the evidence shows no continuous actual possession, the premises often being vacant, and the entries at intervals, and but for temporary occupation.

Upon the whole case, we are of'opinion no error was committed by the learned judge. Judgment affirmed.