text:
    Commonwealth versus Evans. Evans versus Commonwealth.
    1. An Act of Assembly authorized the governor to appoint a special agent to collect “suspended claims against the United States, with a compensation not exceeding,” &c.; the governor, by commission under the great seal, appointed Evans, who did not take the oath required of public officers by the Constitution ; Held, that he was a public officer under Act July 12th 1842.
    2. All persons by authority of law intrusted with the receipt of public money, or through whose hands money due to the public may pass to the treasury, are public officers, whether the service be general or special, transient or permanent.
    3. Neither the governor nor the auditor-general was authorized to make a contract with Evans for compensation outside of the resolution.
    4. A contract to perform the duties of an office is implied by the party accepting.
    5. Evans collected money under the act; Held, that he was within the provision of the Act of March 30th 1811, denying commissions to persons intrusted with public money and neglecting to account.
    6. The governor had not authority to relieve Evans from rendering accounts to the accounting officers of the Commonwealth.
    May 21st 1874.
    Before Read, 0. J., Agnew, Sharswood, Williams and Mercur, JJ:
    Writs of error to the Court of Common Pleas of Dauphin county: No. 71 and 75, to May Term 1873.
    This was an action of assumpsit, brought September 29th 1871, by The Commonwealth of Pennsylvania against Ueorge 0. Evans. The first count of the declaration was, that defendant had collected money for the Commonwealth in his professional employment as attorney in fact and agent for the Commonwealth; the second, for money had and received by him as a public officer; the third on an account stated. Amongst other things, the defendant claimed 10 per cent, commission on claims which had been disallowed by the war department; but had been afterwards allowed through Evans’s agency, no money having been paid tó Evans for the state on account of them, but they had been set off against claims due by the Commonwealth to the United States.
    The case was tried March 3d 1873, before Pearson, P. J.
    The Commonwealth gave evidence, as follows:—
    Joint resolution of the legislature of Pennsylvania passed March 3d 1867, to wit:—
    “ Whereas, There is supposed to be due by the United States to the state of Pennsylvania various amounts for disbursements made during the rebellion, but disallowed by the accounting officers of the general government:

      “And whereas, It is believed that by carefully supplying deficient testimony, many of the amounts may be collected ; therefore,

      “ Be it resolved, That the governor be and is hereby authorized to appoint a special agent to collect the disallowed and suspended claims of the state against the United States, whose compensation for that purpose shall not exceed ten per centum of the amounts thus collected, and shall be paid out of such collections.”
    Commission to defendant by virtue of the resolution, viz:—
    “In the name and by the authority of the Commonwealth of Pennsylvania, John W. Geary, Governor of the said Commonwealth.
    “ Pennsylvania, ss: [seal.]
    “John W. Geary to George 0. Evans, Esq., of the city of Philadelphia, sends greeting :
    “ Whereas, In and by a joint resolution of the General Assembly of this Commonwealth, approved the 22d day .of March, a. d. 1867, the governor is authorized to appoint a special agent to collect the disallowed and suspended claims of the state against the United States:
    “ Wow know you, That having full confidence in your integrity, judgment and ability, I, John W. Geary, governor as aforesaid, have appointed, and by these presents do appoint and commission you, George 0. Evans, to be special agent to collect the disallowed and suspended claims of the state against the United States, in pursuance of and in accordance with the above-cited resolution of General Assembly of this Commonwealth.
    “ To have and to hold this commission, and the appointment hereby granted unto you, together with the rights, powers and privileges thereby conferred, until the same shall be by me, or other lawful authority, suspended or annulled.
    “ Given under my hand and the great seal of the state, at Harrisburg, this twenty-second day of March, in the year of our Lord one thousand eight hundred and sixty-seven, and of the Commonwealth the ninety-first.”
    “Agreement with Defendant.
    “ I, George 0. Evans, Esq., of the city of Philadelphia, having been appointed and commissioned by the governor of Pennsylvania, under joint resolution of the legislature, approved March 22d 1869, to collect sundry claims, in said resolution mentioned, do hereby obligate myself forthwith to pay over to the state treasurer of Pennsylvania, all moneys which I may be able to collect under said authority, less the commission allowed, and to make semi-annual reports to said state treasurer, of the amounts collected, and the sources from which derived; and also to make annual reports to said governor, under oath, including the amounts collected, and a statement of all claims ascertained to be due the state, and from what sources; and further agree, before entering upon the duties of my appointment, to give bond to the Commonwealth, with two sureties, conditioned for the faithful performance of my duties under said joint resolution and this agreement, in the sum of $10,000; said bond to be approved by the governor and filed in the office of the secretary of the Commonwealth.
    “ In testimony whereof, I have hereunto set my hand and seal at Harrisburg, this 23d day of March, a. d. 1867.
    Geo. O. Evans, [l. s.]”
    “Bond of Defendant.

      “jKnow all men by these presents, That we, Geo. O. Evans, Thomas Woods and John E. Graff, are held and firmly bound unto the Commonwealth of Pennsylvania, in the sum of ten thousand dollars, &c., sealed with our seals, dated the twenty-seventh day of March, Anno Domini one thousand eight hundred and sixty-seven.
    “ Whereas, The said George 0. Evans has been appointed by John W. Geary, Governor of Pennsylvania, special agent to collect the disallowed and suspended claims of the state against the United States, in accordance with the provisions of a joint resolution of the General Assembly, approved the twenty-second day of March, one thousand eight hundred and sixty-seven,
    “Now, the condition of the above obligation is such, that if the above bounden George 0. Evans, special agent as aforesaid, shall faithfully perform his official duties under said joint resolution, and under an agreement entered into by him the twenty-third day of March, A. D. 1867, then the above obligation shall be void, &c.
    Geo. 0. Evans, d. s.
    Thoimas Woods, b. si
    John E. Graff, L. Si
    “Executive Chamber,

      “ Harrisburg, Pennsylvania, June 17th 1869.
    “ Hon. J. P. Hartranft,
    “ Auditor-General of Pennsylvania:
    “Sir: — Please deliver to the bearer, G. 0. Evans, Special Agent, the vouchers for military disbursements hy the state from 1861 to 1866, needed by him in preparing claims for re-imbursement from the United States.
    “ You will also oblige me by extending to Mr. Evans the facilities of your office for this purpose.
    Yours, respectfully,
    Jno. W. Geary, Governor.”
    “Executive Chamber,
    “ Harrisburg, Pennsylvania, March 29th 1870.
    “ Hon. J. E. Hartranft,
    “ Auditor-General of Pennsylvania:
    “ Sir: — Under the Act’of Congress, July 27 th 1861, authorizing the governors of states to present claims for expenses incurred in raising volunteers during the late rebellion, I respectfully request that you will allow the hearer, George. 0. Evans (appointed by me special agent of the state, under the joint resolution of the legislature, March 22d 1867), to have duplicate vouchers of expenditures by the state on account of the late war, with the view of collecting, if possible, a class of claims, which, under the rulings of the department officers at Washington, have been technically disallowed and payment therefor refused. By supplying deficient testimony, with proper explanations, and the use of all available precedents, Mr. Evans is confident of obtaining the allowance of a considerable amount equitably due by the United States to Pennsylvania.
    “ Mr. Evans represents to me that pending legislation in Congress may speedily ‘ disallow ’ for ever every claim of this kind, and that prompt, action must be taken in the matter. For this purpose, I will gladly render you any assistance within my power.
    Yours, respectfully,
    Jno. W. Geary, Governor.”
    “Harrisburg, March 30th 1870.
    “ It is hereby agreed, that the compensation payable to Geo. 0. Evans, out of the commission of ten per cent, allowed by joint resolution of the legislature of Pennsylvania, passed March 22d 1867, for the collection of certain claims of the state against the United States (as per Act of Congress, July 27th 1861), shall be such as is deemed equitable and just by J. F. Hartranft, for service rendered in collecting the claims bearing date of settlement by the state officers, from and after December 3d 1862.
    “ It is further agreed, that the necessary expenses incurred by George 0. Evans, for printing, stationery, travelling, and clerical labor, in preparing said claims for settlement by the United States, shall be reimbursed to the said George 0. Evans, in addition to the allowance herein referred to. It is further agreed, that if nothing is collected, nothing is to be paid. J. F. Hartranet.”
    “ Pennsylvania, Executive Chamber, “Harrisburg, Pa., April 13th 1870.
    - “ To the Honorable George S. Boutwell,
    “ Secretary of the Treasury U. S., Greeting:
    “I hereby nominate and appoint George 0. Evans, to act for me, as my duly authorized agent, under the Act of Congress, July 27th 1861 (‘ for reimbursement of expenses properly incurred by the states, respectively, on account of their troops employed in aiding to suppress the present insurrection against the United States’) to present for settlement the claims of the state of Pennsylvania arising under the said act, or any other Act of Congress, for arming, equipping, paying, clothing, subsisting and transporting, &c., the troops of said state, called out for the defence of the United States, and to collect of the United States any money found due
    - from the United States to the state of Pennsylvania.
    “[s. s. great seal Jno. W. Geary, Governor.”
    OE THE STATE.]

      Also: draft of United States dated May 1st 1867, payable at sight to Governor Geary, on endorsement by George 0. Evans, special agent of governor, for $78,516.81, “for payment of state for raising volunteers due Pennsylvania on settlement.”
    Draft of same in same form, dated October 28th 1868, for $105,651.46.
    Draft of same in same form, dated August 27th 1870, for $136,846.09. These drafts were endorsed by the defendant.
    Letter dated August 15th 1871, from auditor-general and state treasurer to defendant, demanding payment by him, of $291,046.91, the money collected from the United States, and in his hands.
    The Commonwealth offered the settlement April 23d 1871, of the accounting officers against defendant, showing a balance of $337,249.12, due by him; it was rejected and a bill of exceptions sealed. The Commonwealth rested.
    The defendant then read: Act of Congress of July 27th 1861, directing the repayment to the several states of the money expended by them in raising volunteers to suppress the rebellion ; Act of Congress imposing a direct tax on the states, fixing the share of Pennsylvania at $1,946,719.33, providing that any state paying its share of the tax into the United States treasury before June 30th 1862, should be entitled to 15 per cent, deduction ; and also that any state might pay its share by release of any liquidated and determined claims of such state against the United States — the abatement of the 15 per cent, to be made on such claims also— also, Act of legislature of Pennsylvania, February 10th 1862, assuming the payment of the tax.
    It was admitted that the claims of Pennsylvania against the United States for which vouchers were filed were as follows:
    March 1st 1862, $1,182,997.37
    June 11th “ 854,337.30
    February 1863, 81,084.91
    $2,118,419.58
    F. G. Pettingill, examining officer in the third auditor’s office of the war claims of the states against the government, testified that these claims were filed as above stated, were examined and reported to the controller November 1st 1865. The third auditor allowed the claims, but the controller reversed his decision and allowed but $112.60, and that amount only passed to the credit of the state: that decision was final.
    There was afterwards a special settlement, and there were allowed to the Commonwealth claims amounting to $1,989,115.82; these claims were allowed on account of the explanation of defendant; he filed the vouchers for the 4th, 5th and 6th instalments;' he began his explanation March 27th 1867 ; all his work as to suspended or disallowed claims, as put in writing, embraced twenty six days ; there were fifteen communications, &c.

      The defendant then offered to prove in substance the agreement as to compensation with Governor Geary and Auditor-General Hartranft; that he undertook the duties at their request, and in consideration of the compensation which they agreed should be paid him.
    The offers were rejected and a bill of exceptions sealed for the defendants.
    The defendant testified at great length as to his claim, giving in detail his labors and the difficulties which he encountered; the irregularity of the vouchers and accounts of the Commonwealth;, his explanations to the department at Washington, &c., &c.
    He gave evidence for the purpose of showing the value of his services, &c.
    He gave in evidence receipts from the state treasury for the following payments, made by him:
    1871 April 25th, .... $137,872.39
    “ May 19th, .... 243,167.57
    “ June 28th, . . . . 298,753.08
    These payments were government warrants, dated respectively April 11th, May 15th and June 23d 1871, endorsed by defendant to Governor Geary and by him passed into the state treasury. Also, receipt of state treasurer, dated July 24th 1871, for1 $29,267,43. He gave in evidence another government warrant to him, dated August 26th 1870, for $136,486.09.
    He gave in evidence the following:
    “ Treasury Department, Third Auditor’s Office,
    August 12th 1871.
    “ Sir: I have the honor to submit the following statement of the condition of the war claims of the state of Pennsylvania, filed in this office under Act of Congress, approved July 27th 1861:—
    First- instalment, filed March 1st 1862, .... $1,182,997.22
    Second instalment, filed June 11th 1862, .... 854,337.29
    Third instalment, filed February 20th 1863, . . . 81,084.91
    Fourth instalment, filed May 4th 1870, .... 257,933.18
    Fifth instalment, filed June 30th 1870, .... 762,129.91
    Sixth instalment, filed May 25th 1871, .... 33,737.77
    $3,172,218.19
    Paid on requisition, No. 5069, September 19th 1861, . . $606,000.00
    Paid on requisition, No. 3124, May 2d 1867 (direct tax), . 1,304,711.43
    Paid on requisition, No. 3125, May 2d 1867, . . . 78,516.89
    Paid on requisition, No. 8511, October 27th 1868, . . 105,651.46
    Paid on requisition, No. 4884, August 26th 1870, . . 136,846.09
    Paid on requisition, No. 6407, April 11th 1871, . . . 137,822.59
    Paid on requisition, No. 6689, May 15th 1871, . . . 242,167.57
    Paid on requisition, No. 7122, June 23d 1871, . . . 298,753.08
    $2,910,469.11

      “ Leaving a balance of suspended claims in this office amounting to $261,749.08.
    “I am, very respectfully,
    “ Allen Rutherford, Auditor.
    “Hon. Geo. S. Boutwell,
    “ Secretary of the Treasury.”
    For the Commonwealth, in rebuttal, Governor Iiartranft testified that, when auditor-general, there were a large lot of vouchers in his office, triplicate vouchers in every instance, and in the proper form for collection; defendant called for them three times, the last time with a letter from-Governor Geary. Governor Hartranft had told defendant that he had intended to collect them himself. Defendant said the Act of Congress required them to be paid to an agent of the governor, and exhibited the act. The auditor-general’s department regarded the claims as in proper form for collection. All the money collected on these claims came through defendant.
    The Commonwealth gave other evidence, not important to be noted. What has been stated, the assignments of error and their answers, with the charge of Judge Pearson and the opinion of the Supreme Court, will sufficiently present the case.
    The following are points of the Commonwealth, with their answers:—
    “ 2. The undisputed evidence in this case establishes that the defendant collected the following moneys, at the following dates, belonging to the Commonwealth, viz.: May 2d 1867, $78,516.89; October 27th 1868, $105,651.46, and August 26th 1870, $136,846.69, in all $321,014.44, which sum was largely in excess of any claim he could have had for compensation at that time, and by retention of such excess he forfeited his right to any compensation.’
    Answer: “ These sums were collected, according to the evidence, and should have been paid over, less the amount due for collection.”
    “ 3. The defendant is not entitled to receive any compensation upon so much of the disallowed and suspended claims of the state against the United States as was credited to the state upon the ■claims of the United States against the state.”
    Answer : “ If the claims referred to were suspended and disallowed, the defendant (if employed so to do) would be entitled to a reasonable compensation for having them allowed and settled.”
    “5. The undisputed evidence shows the moneys so actually collected by said defendant, and under said joint resolution amount to the sum of $184,168.35, upon which sum the defendant is entitled to such compensation, if any, as the jury shall ascertain to be just, not to exceed ten per cent, thereof.”
    Answer: “ We do not understand the facts to be as stated in this point, but that, in addition to the sum named therein, the defendant collected $136,846.09, and we see no reason why compensation should not be allowed for recovering that also at the same rate.” .
    “ 7. The undisputed evidence showing that the defendant received of moneys belonging to the Commonwealth as follows: May 2d 1867, $78,516.89 ; October 22d 1868, $105,651.46, and August 26th 1870, $136,846.09; and only paid thereon to the Commonwealth, July 21st 1871, $29,967.53; the Commonwealth is entitled to a verdict for said three sums, with interest, less amount of said payment, and such compensation as the jury may allow for his services, if any, to be ascertained as hereinbefore directed.”
    Answer: “ The law is as stated, with this addition, that the defendant is to be allowed a reasonable compensation, not exceeding ten per centum on the sums placed in his hands by the auditor-general, and also for attending to and procuring settlement of the suspended claims of the state against the United States, and having the indebtedness of the state discharged 'on the books of the United States treasury.”
    The following are defendant’s points with their answers:—
    1. “ There is no evidence which shows that the money received by the defendant from the United States was received as a public officer, nor is it shown that the defendant acted in a professional capacity; therefore the plaintiff cannot recover on either of the first, two counts in the narr.”

    Answer : “We do not consider that the money was received or collected by the defendant as a public officer, or that he was such, but was merely such agent as was created by the appointment of the governor and auditor-general, but that will not prevent a recovery on the first count of the narr”

    4. “ The defendant has a right to retain out of the money received by him from the United States as much thereof as amounts to a just compensation legally measured.”
    Answer: “ This is so, unless the money collected was fraudulently withheld.” *
    6. “ The percentage so to be allowed was and is to be counted on all the money recovered or allowed through the exertions of the defendant, whether it was satisfied by a warrant on which the money was actually paid, or by a counter warrant wffiich defalked it upon a claim against the state.”
    Answer: “ On all of the moneys collected a percentage is to be allowed upon the defalcation, a fair and equitable allowance is to be made according to the difficulties of the settlement and the magnitude of the claims.”
    Judge Pearson charged: — “ The case under consideration is one of very considerable magnitude both to the Commonwealth and the defendant, as well on account of the money as the principles involved. It is one that has greatly agitated the public mind, and led to not a little newspaper controversy.
    “ You now know more of the facts of the case than any of the numerous public agitators, as your knowledge is derived from legal evidence, and by that alone will you be guided, discarding all that you have heard by rumor, or gathered from the public press.
    “ At the commencement of the late rebellion, the state of Pennsylvania raised very considerable bodies of troops, and expended large .sums of money in aid of the national government. The United States assessed against the various states twenty million of dollars, of which Pennsylvania assumed the payment of $1,946,719.33, and was entitled to a deduction of fifteen per centum for prompt payment. She claimed to have advanced the whole sum in the pay and equipment of the troops, but from the evidence it would seem that the vouchers taken were not so formal as required by the laws of Congress and the rules of the treasury department, and were generally suspended or disallowed. It seems, from the testimony of Col. McMichael, to have been well undei’Stood at the department at Washington that the state had in point of fact paid her quota and was entitled to the fifteen per cent., but no entries were made to that effect on the books of the treasury, or settlements closed by the proper officers. The national government also lent the state $606,000 in the year 1862, either in repayment or to enable her 1¡o equip her troops, raise more, or meet loans. Pennsylvania also claimed to have advanced sums from time to time which were to be repaid by the United States. Col. McMichael says that all was well understood by the then secretary of the treasury, but it would seem that at and after that time some difficulty arose, and it is said that our state was urged to make payment of her arrears, leaving out the suspended or disallowed vouchers. At this time an entirely new set of men filled the treasury department, and the former arrangement seems to have been misunderstood or disregarded. On the 22d day of March 1867, a joint resolution was passed authorizing the appointment of a special agent to collect disallowed or ’suspended claims against the United States, and on the same day G-eo. 0. Evans was appointed such agent. Prior to this time, to wit, on the 27th of July 1861, an Act of Congress had been passed authorizing payments by the secretary of the treasury to the governors of states or their authorized agents, the costs, charges and expenses incurred by the states in enrolling, subsisting, clothing, equipping, &c., troops employed in aiding to suppress the rebellion.
    “ The authority issued from the governor to Mr. Evans in due form, appointing him a special agent to collect the disallowed and suspended claims from the United States, and on the same day Mr. Evans signed an agreement to collect all such money, so far as in his power, and to pay over the same forthwith to the state treasurer, less the commission allowed, and to make annual reports to the state treasurer of the amounts collected, and the sources from which derived; at the same time he gave bond in ten thousand dollars for the faithful performance of his duty. Neither the bond nor agreement were required by law, but were taken by the governor for the greater caution. Under this appointment several collections were made and paid into the treasury of very considerable sums, of which you will have statements, and all of the suspended and disallowed claims were finally settled at the accounting department of the United States, amounting in all to perhaps some two million of dollars. At an after time, to wit, on the 30th of March 1870, on the solicitation and advice of the governor, the auditor-gen eral placed in the hands of Mr. Evans, the vouchers, showing claims by this state against the federal government to a very large amount. These sums will be laid before you. The auditor-general had contemplated settling these claims himself,but on looking into the subject, it became very clear that it must be done by an agent of the governor, and it was believed that there was little time to lose.
    “ [The auditor-general, therefore, gave them over to Mr. Evans, under an agreement that he was to have a compensation of ten per cent, for their collection, such being his construction of the resolution of March 22d 1867. It was further agreed that Evans should be paid travelling expenses, printing, stationery, clerk-hire, &c., for preparing the claims for settlement, and if nothing was realized, no compensation to be allowed.] The governor on the 13th of April addressed a letter to the secretary of the treasury, showing that he had appointed Mr. Evans his duly authorized agent to settle these claims. This was ultimately done by him to the satisfaction of the state department, so far as shown. We have no doubt of the power of the governor to make the appointment of the special agent, under the resolution of the legislature, and we also think that the auditor-general could employ an agent when necessary, and for the interest of the state, by virtue of his office. He most clearly could have done it in the present case with the sanction of the governor, who had full power to do it by himself under the statute. We do not believe, that either the governor or the auditor-general had power to bind the state to make compensation beyond the amount fixed by law, and the actual sum to be paid must be determined by the court and jury. In the course of these various settlements, there came into the hands of the defendant the following sums: On the 1st day of May 1867, $78,516.89; on the 28th October 1868, $105,651.46; and on the 27th of August 1870, $138,846.09, making in all, $321,014.44. Of this, Mr. Evans claimed for percentage $291,046.91, and paid into the treasury $29,967.53, and it is to recover the above-stated balance of $291,046.91, that this suit was brought. The Commonwealth claims that the defendant is not entitled to any percentage whatever, that he has forfeited all title thereto, by failing to pay over the money which came into xhis hands, or to render an account thereof to the proper department. He says, and so testifies, that the governor was made acquainted from time to time with all his doings, and that the same was not made public, lost their course of settlement might be defeated, and the interest of the state jeopardized. He has fully explained to you his reason for that course, and it is for you to judge of their truth and plausibility.
    “ [We state to you, as a rule of law, that if an agent or attorney collects a sum of money and fails to give his principal notice thereof, or to pay it over in a reasonable time, but fraudulently converts the same to his own use, he can recover nothing for his collections. If, in the present case, the defendant fraudulently set up a claim for fees to which he was not entitled, with a view of retaining the money, or for any other purpose, he can recover nothing.] Such we understand to be the rule of Balsbaugh v. Frazer, 7 Harris 99, and of several other cases. If, on the other hand, he honestly and fairly claimed the money in his hands as compensation for collections and settling the accounts between the state and the United States, although you might think that he claimed too much, yet you are not on that account to declare the whole compensation forfeited, but will fix the amount fairly due, allow that, and render your verdict against him for the residue.
    “ The character of this case was well calculated to raise a difficulty as to the compensation. It was doubtful if the agent should be paid his percentage merely for the money collected, or on all claims settled and allowed. Whether on the large expenditures of 1861, the vouchers for which had long been on file, but rejected and disallowed, or merely for what came into his hands in the form of cash, and was paid into the treasury, and whether it should also embrace the vouchers and claims handed over by the auditor-general. If business-men might, on the wording of this resolution, honestly differ as to whether the percentage should be paid on the whole or only a part, it might seem extremely harsh to forfeit the whole compensation. But for intentional fraud practised the forfeiture will be enforced. That is one of the first questions for you to decide. It is contended, however, on the part of the state, that the agent was obliged by law to pay the whole of the money into the treasury, and then look to the accounting department for an allowance of his percentage. Such is not the law in the ordinary case of principal and agent, or attorney and client, and we can see no good reason for a different rule here. The resolution of the legislature contemplates that the agent shall be ‘ paid out of his collection.’ The agreement of Mr. Evans, made contemporaneously with his appointment, binds him to pay into the treasury the money collected, ‘ less the commission allowed,’ which shows what was understood by both parties. Had the money been paid into the treasury, and a large sum be determined by the department to be due the agent for collections, it could not be paid over, but must be reported to the next legislature for a special appropriation. We instruct you that the agent was not bound to pay the percentage due him into the state treasury, but should have paid over all, less that sum. In stating his account, Mr. Evans claimed ten per centum on all of the government claims which passed through his hands, and paid into the treasury $29,967.53, which he admitted to be due. For the defendant it is contended that the law gives ten per cent, on all that was either collected or settled and allowed; that when a sum is named, as here, not' exceeding t$n per cent., the whole can be claimed ; that the party to receive has a right to so construe the words as to give him the whole allowance, and that such has been the uniform usage under laws so worded. There is no proof before us of any custom, although we may well suppose that the receiver' generally got all that was in his power.
    .“We must therefore put a construction upon the words of the statute. If the legislature had intended to give ten per centum for the service, it would have said so. When the words used are, ‘not- exceeding ten per cent.,’ it shows that less may be paid and considered a sufficient allowance. The true sum must first be fixed, ordinarily by the accounting department, and ultimately by a court and jury. You must decide what is a fair allowance, not exceeding ten per cent. You will take into consideration that if nothing was recovered, nothing could be paid, and when men labor on such a contingency they are generally allowed more in case of success than when they are to receive compensation, even if unsuccessful. The testimony is to that effect in the present case. Mr. Evans says he would not have undertaken on that contingency for a less sum, and one other witness fixes the same amount. Taking it for granted that the joint resolution intended to allow a percentage on dll money collected from the federal government and paid into the state treasury on disallowed or suspended claims, does it prove that the same sum is to be retained for merely making a settlement of mutual demands which balance each other, and where little, if anything, is paid by either party ? We do not so construe the resolution. The evidence shows that a large expenditure took place by the state' for the benefit of the nation, and the justice of remuneration was acknowledged. The whole account was most carefully made out and presented at the United States treasury, but the vouchers were so irregular as to lead to their rejection and disallowance. The resolution recites that, by carefully supplying deficient testimony, many of the sums can be collected. The testimony of Mr. Evans shows that no new or additional proof was procured, or new vouchers obtained; but, by taking up the accounts as prepared by Colonel McMichael, and carefully explaining them to the auditor and controller of the treasury, the whole was ultimately allowed and settled.
    “ [Mr. Evans states that he spent some twenty days in completing this arrangement, having the whole sum set off against the claims of the United States, and all finally settled on the books of the department. For this service we do not consider that Mr. Evans is entitled to receive the percentage mentioned in the resolution. His labor is very different from that bestowed on the other claims, and his responsibility falls greatly short of that arising from receiving and paying over large sums of money. The services do not come within the words or intention of the resolution. Yet for this valuable service Mr. Evans is not to go unrequited, although perhaps not entitled to ten per cent, on nearly two millions of dollars, or at least considerably over one million, he should be paid liberally. You can allow him a reasonable percentage or a lumped sum. Pay him well according to his skill, labor and success, but we cannot believe that for such services he is entitled to over one hundred thousand dollars as claimed. His remuneration is a question for you.] Take into consideration the evidence of Col. McMichael that at one time the account of the state was all allowed ; then- that it was found rejected on the books, and payment demanded of the alleged indebtedness of this state, at which the then Governor Curtin expressed great surprise that it was persisted in, and the account never finally settled and closed until effected through the instrumentality of Mr. Evans.
    “ We come next to consider the claims placed in the hands of Mr. Evans by the auditor-general under the solicitation, of the governor, and pursuant to his appointment. The vouchers General Hartranft thinks were reasonably correct in form, but not set forth in any regular account; were filed away in pigeon-holes and received and arranged by Mr. Evans. They amount, according to our estimate, to some $815,589.33. The whole of this claim was settled and allowed. For this service it is pretty clear that the auditor-general expected the agent would be paid not exceeding ten per cent., but as much less as that officer might deem right. The claim did not come before him for allowance, but is now before you in a common-law action. You must fix the amount and can say that it shall be three, five or ten per cent., as you may think just and reasonable. We do not consider that in making this settlement Evans was the agent of the auditor-general alone (for as such he would not have been recognised at Washington) but of the governor also. He makes his settlement in the latter capacity, and claims pay under the resolution of the legislature as a special agent. Allow what you consider right under all of the circumstances. There is one demand for percentage .amounting to over $60,000, the justice of which we are .unable to perceive. It is said to be claimed on account of the $606,000 lent to the state by the United States. That money was not collected for, but was due by Pennsylvania to the United States; as such it was not collected but paid. True, there may have been a set-off against it in the indebtedness due to the state; but if so, that was settled in some of the claims already referred to, either by an offset against the. vouchers from the auditor-general’s office or some of the large expenditures of 1861. Both of these we have already directed you to settle. In the form spoken of, this is indisputable; it may be demanded as making up the sums already recited ; is not claimed in that form and was mentioned incidentally.
    “ The defendant avers that the plaintiff is not entitled to recover, because in the first count of his narr. it sets forth that the defendant collected the money for the Commonwealth in his professional employment, as attorney in fact, and agent of the Commonwealth. In the second count, for so much money had and received by the said defendant as a public officer, and in the third, that he is indebted on an account stated. We are of the opinion that there is no evidence of an account stated between the parties which would support the third count, and that the defendant is not a public officer as averred in the second count. We have heretofore decided, and now instruct you, that the authority issued by the governor to Mr. Evans did not make him a public officer. He was merely a special agent. We had occasion to examine into that subject very carefully some time in the latter part of 1871, and delivered an elaborate opinion, to which we still adhere, but shall not now consume our time or your patience in discussing it again. Your verdict cannot be in favor of the state on either of these counts. The first count we consider substantially supported, so far as relates to the receipt of the money as an agent, but whether in his ‘ professional employment’ or merely as a ‘ special agent’ for the particular service, must be determined by you. The act abolishing imprisonment for debt excludes from relief persons receiving money as ‘ officers, or for any misconduct or neglect in office, or in any professional employment.’ It is contended by the defendant that he was not engaged in any professional employment, and therefore should not be declared against in that capacity, as it would subject him to imprisonment for any sum found against him. The plaintiff’s counsel contend that the money was received by the defendant in his professional employment, as an attorney in fact, and agent of the Commonwealth. That he received it as an agent of the state is very clear. There are certain professions which are undoubtedly covered by the words of the statute — that of attorney at law — neither of the others, designated as learned professions, perhaps come within the statute, as. they have little to do with collecting money for others. We are inclined to think that there may be other ‘ professional employment.’ Aman may be a professional claim agent, having a license for their collection. He may be a professional agent for procuring patents or pensions, follow either as a business, and would probably come within the Act of Assembly. In the present case the defendant states that he never was employed in settling up claims before or since; that he merely acted as a special agent, under the power of attorney issued by the governor, and that it was not his professional employment. Whether he is subject to imprisonment for failing to pay over money received in a.fiduciary capacity is not to be determined at present. If the question had to be decided by the court whether this money was collected by the defendant in his professional employment as an agent, and we came to the conclusion that it was not, we would direct an amendment of the narr., by striking out the averment. We would correct the declaration to correspond with the evidence. But in our opinion it is a question for a jury. You can find the fact specially, and we will put your verdict in form. There is certainly little if any evidence tending to show that the defendant was a professional agent, or followed the general business of acting as an attorney in fact, as is the case with many persons who act as general land agents, and hold themselves out to the world as such. Every question can be fully met by a special verdict.
    “ If you find that a sum of money is due to the state by the defendant, it will bear interest from the time it was received, and should have been paid into the treasury. This, with the answers to the points, will cover the whole case, and the facts- require your careful deliberation.”
    The jury returned this verdict: “ The jury find in favor of Commonwealth of Pennsylvania, on the first count, in the sum of $149,726.53, and that the defendant was not an officer or professional agent, but received the money in trust, as a special agent appointed by the governor of the Commonwealth, pursuant to the provisions of the joint resolution of the legislature, passed the 22d day of March 1867, as per appointment made on the 22d March 1867, and by John E. Hartranft, then auditor-general, on the 30th day of March 1870, pro ut said appointment made part of this verdict, and we find that the second and third counts of the narr. are not supported by any evidence in the case.”
    Judgment was entered on the verdict April 7th 1873.
    Each party took a writ of error.
    The Commonwealth assigned for error:
    That the court erred in the answers to the Commonwealth’s and defendant’s points, as above stated, and the parts of the charge in brackets; also in overruling the offer of the settlement by the accounting officers.
    The defendant assigned for error the rejection of his offers of evidence.

      L. B. Gilbert, Deputy Attorney-Gen eral and -W. Mae Veagh (with whom was Bimmiek, Attorney-General), for the Commonwealth.

      L. W. Mall and Blank (with whom was B. A. Lamberton), for Evans. —
    The defendant was not a public officer. They cited Riddle v. Bedford Co., 7 S. & R. 386; Leigh’s Case, 1 Munf. 475; Commonwealth v. Binns, 17 S. & R. 219; Sheboygan v. Parker, 3 Wallace 93; Ohio v. Kennon, 7 Ohio St. R. 546. Evans was entitled to full compensation: Balsbaugh v. Fraser, 7 Harris 95; Dubois’s Appeal, 2 Wright 234.
   The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

These are writs of error by both parties to a judgment of the Court of Common Pleas of Dauphin county, upon the verdict of a jury rendered in a suit by the Commonwealth against George 0. Evans. The case Avas tried by the learned president of the court with his accustomed ability and impartiality. We have examined carefully all his rulings on the subject of evidence which have been complained of in this court by either party, and find nothing upon which he can be convicted of error. Nor can any of the errors assigned to his answers and charge be sustained, except as to three points, Avhich in different forms appear in several of the specifications by the Commonwealth. It will be unnecessary to consider these several specifications more in detail.

We are of the opinion that the defendant below was a public officer within the purview of the first section of the Act of July 12th 1842,- Pamph. L. 339, which excepts from the provisions of that act, abolishing imprisonment for' debt, proceeding for the recovery of “moneys collected by any public officer.” It may sometimes, indeed, be a difficult matter to distinguish between a public officer and a person employed by the government to perform some special service by contract. It is clear that it is not all public debtors who are within the exception of the Act of 1842, nor all parties, who, under the Act of March 30th 1811, 6 Sm. L. 225, are bound to account to the auditor-general. But we are of the opinion that all persons who, by authority of law,, are intrusted with the receipt of public moneys, through whose hands money due to the public, or belonging to it, passes on its way to the public treasury, must be so considered, by whatever name or title they may be designated in the laAv authorizing their appointment, and Avhether the service be special or general, transient or permanent. It is quite unnecessary to discuss the authorities Avhich have been cited upon this point. None of them bear any resemblance to this case, except, perhaps, The United States v. Maurice, 2 Brock. 96, and that, Ave think, sustains the conclusion at Avhich we have arrived. It Avas there held, that an agent for fortifications, appointed under the army regulations, which had received the sanction of Congress, was a public officer from whom the government had a right to exact an official bond with sureties, and that such bond was therefore a valid obligation. The appointment there as here was for an indefinite period. Nor does it seem to us to distinguish this case from that, that this appointment was to collect a single claim, or rather a set of claims against a particular debtor. No one can doubt that collectors of public taxes are within the letter of the exception of the Act of 1842. Suppose a special tax laid for a temporary purpose, is it susceptible of any more doubt that a person appointed by authority of law to collect such tax — call him special collector or special agent — would be equally within the exception, and moneys collected by him be “moneys collected by a public officer?” Can it make any difference that a person is commissioned by the governor as a general agent to collect all claims of the Commonwealth, or as a special agent to collect only one particular claim? We think not. Mr. Evans was appointed by virtue of a joint resolution of the legislature, approved March 22d 1867, Pamph. L. 1848, by which it was provided that the governor be and is hereby authorized to appoint a special agent to collect the disallowed and suspended claims of the state against the United States. Under this resolution the governor appointed Mr. Evans, and very properly issued and delivered to him a commission under the great seal of the state. This commission is in the usual form of an official commission. In like manner he required of him to give bonds with two sureties. The bond is to the Commonwealth, and is conditioned that “ the above bounden George 0. Evans, special agent as aforesaid, shall faithfully perform his official duties under said joint resolution.” It is an official bond. It is true that it does not appear that he took the oath required of all officers, executive and judicial, by the eighth article of the Constitution, but it does not follow that he was not bound to take such oath in order to render his qualification complete: Riddle v. Bedford County, 7 S. & R. 386. He certainly had official duties under the joint resolution, as his bond acknowledged, which, when he accepted the position, he was bound to perform with fidelity. It is not a case of service rendered to the Commonwealth under a contract. The joint resolution did not empower the governor to make any contract, and as the learned judge rightly decided upon an offer of evidence, he had no authority outside of the resolution to do so. Even if the fact were that Evans did enter into a contract or contracts with the governor and auditor-general, it did not change his character and responsibility as an officer. “ If,” says Mr. Chief Justice Marshall, “it may be converted into a contract, it must be a contract to perform the duties of the office of agent, and such an office must exist with ascertained duties, or there is no standard by which the extent of the condition can be measured.” 2 Brock. 103. A contract to perforin the duties of an office is implied on the part of every person who accepts it: 3 Bl. Com. 165. We think, therefore, that the moneys collected by Evans were moneys collected by a public officer within the exception of the Act of 1842, and the learned judge below ought so to have instructed the jury, and not that the defendant was entitled to a verdict in his favor on the second count of the declaration.

There was a further error in the charge upon the subject of the compensation of Evans for his services in the matter of the claims placed.in his hands for collection by Auditor-General Hartranft. The jury were directed, “you must fix the amount, and can say that it shall be three, five or ten per cent, as you may think just and reasonable.” He had before rightly directed the jury that the defendant could not be allowed more than ten per cent, on the amount actually collected by virtue of his appointment under the joint resolution. He does not in this case limit the commission to the amount actually collected. But' we think it clear from the letters of Governor Geary to Auditor-General Hartranft, dated March 29th 1870, and from the paper signed by the latter, dated March 30th 1870, that the vouchers for these claims were handed over to Evans as the special agent, under the joint resolution requiring the auditor-general to-furnish him with these vouchers. Governor Geary names and describes him as “ special agent of the state under the joint resolution of the legislature of March 22d 1867,” and Auditor-General Hartranft carefully stipulates that his compensation for these services shall be “ out of the commission of ten per cent, allowed by the joint resolution that is, as we think it must be, reasonably construed; the services rendered in the matter of these claims shall be considered in determining the rate of commission to be fixed under the joint resolution, and not in the whole to exceed the maximum of that commission,- since it is to be paid out of it.

One other point remains to be considered upon the subject of the forfeiture by Evans of his right to any commission. The learned judge undoubtedly laid down the rule correctly as between private principal and agent. But that was not the relation between the Commonwealth and Mr. Evans. Admittihg even that he was not a public officer, it cannot be questioned that he was an agent liable to account under Act of March 30th 1811. The first section of that includes, as such, expressly, “ persons intrusted with the receipt, or who now or hereafter may become possessed of public money.” Evans indisputably fell within this category. The fourteenth section of that act provides “that no allowance for commissions shall in any instance be made by the accounting officers, in case of refusal or neglect to furnish accounts.” It cannot, with any show of reason, be maintained that this provision applies only to the accounting officers. It is a rule of forfeiture, applicable in all cases between the state and her agents, who are bound to account, and is to be applied whether the question arises upon an appeal from a settlement or in a common law action, if the Commonwealth chose to resort to that remedy. The legislature has laid down a very simple and just rule — essential to the safety of the state — and which can never work injustice to her honest agents. She ought in no case to be compelled to pay double or treble commissions for the collection of her claims — first to the original agent, and then to the agent or attorney employed to collect of that agent, and so on, as it may be, until the whole claim is exhausted in commissions. The simple rule laid down, and which she has an undoubted right to lay down, is to furnish accounts. She says to her agents, report the amount you have collected — make whatever offsets you may thing yourself entitled to; the accounting officers will then have the means of making a settlement with you, and if you are dissatisfied with their decision you can appeal. Evans was bound, under the Act of 1811, to account promptly— at least within a reasonable time, and besides, it was a part of the condition of his official bond that he would “ make semi-annual reports to the state treasurer of the amounts collected, and of the sources from which derived.” It is not pretended that he made any reports or furnished any accounts within any reasonable time or within the time named in his bond. He received from the United States, May 1st 1867, $78,516.39; October 27th 1868, $105,651.46, and August 20th 1870, $136,846.09. He furnished no accounts whatever until July 21st 1871. He said on his examination as a witness in court: “I reported to the governor how I was succeeding in my collections. I did not report in writing, because it was not considered expedient, and against the interest of the state. The state had a large balance unsettled, and if reported and got into the newspapers would damage our claims. The governor requested that no public report should be made for the good of the state to facilitate the claims.” Governor Geary was not alive at the time of the trial to meet this allegation. It is too clear for argument that the governor had no power to release the agent from one of the plainest of his duties, as well as the condition of his official bond, upon any such notion of expediency. The attention of the learned judge does not appear to have been distinctly called to the provision of the fourteenth section of the Act of 1811, and if this was the only .question in the cause we might hesitate to reverse upon it. It is, however, necessarily involved in the answer to the defendant’s fourth point, which forms the subject of the sixth assignment of error by the Commonwealth.

Judgment reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author: Per, Curiam. —

license: Public Domain

text:
    Coover’s Appeal. Backenstose’s Estate.
    1. A testator gave to his wife all his real and personal estate, provided that so much of the personal estate as she should not wish to use should be sold and the proceeds paid to her, and so much of the income of the realty as should be necessary for her support paid to her, and the remainder put at interest till her death; these bequests to be only during her widowhood, the executors to sell his real estate except his mansion, which was to be occupied by his widow during widowhood, at their discretion, and sell the undisposed personal and real estate within one year after his wife’s death, and divide the whole into ten shares, ‘ one share to be paid to Susanna Davis or to her lawful issue,” and so as to the other shares. ‘‘In case any of the legatees should die before the legacy becomes payable without lawful issue,” the share to go to the other legatees. The widow elected to take against the will and received her interest under the intestate laws. Held, that the legatees were entitled to receive their legacies, although the widow was living.
    2. An estate given to a trustee endures no longer than the thing to be secured by the trust demands. Per Peaesoít, P. J., approved by the Supreme Court.
    3. If the legacies were contingent upon the death of the widow her renunciation was the same as to determining the contingency as her death.

      Id.

    May 21st 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Orphans’ Court of Lebanon county: Of May Term 1873, No. 86.
    The proceedings in this case were for the distribution of the estate of Henry Backenstose, deceased.
    The decedent died on the 1st of February 1864, leaving a widow, Margaret, but no children or other descendants.
    He left a will and codicil, both dated May 15th 1852, and proved December 15th 1864, when letters testamentary were granted to Joseph Ooover and John Uhrich, the executors named in it. The following, amongst others, are provisions of the will:—
    “ Item 2. I give and bequeath unto my dear wife Margaret all and every of my real, personal and mixed estate, be the same in or out of the state of Pennsylvania, the same to be first appraised, and the appraisement thereof be filed in the register’s office at Lebanon: Provided, however, that so much of my personal estate as she may not wish to use, shall be sold at public sale, and the proceeds thereof to be paid unto her; and the proceeds or income of my real estate shall be paid to her annually, during her natural life, by my hereinafter-named executors, who shall be the guardians for letting or leasing such of my real estate as she may not choose to occupy herself: Provided, however, that my hereinafter-named executors shall only pay unto her annually so much of the proceeds of the incomes and rents of said real estate as may be sufficient and necessary for her comfortable support and livelihood, and the balance (if any there should be) to be put at interest until the time of the decease of my said wife Margaret.
    “Item. 3. Provided, all times, that the foregoing bequests by me made unto my wife Margaret shall only be a bequest unto her in case she remains my widow, and so long as she remains my widow and no longer; and be in full of her dower at common law. * * *
    “ Item 5. Provided, in all cases nevertheless howsoever, that my hereinafter-named executors shall sell at public sale, for the best price that can be had for the same, all my real estate situate in the state of Pennsylvania or in the state of Ohio, excepting, however, my present mansion-house and other improvements, situate, &c.; * * * all of which shall be occupied by my said wife as long as she remains my widow, as above directed, and shall not be sold until after the death of my said wife Margaret; Provided, however, that the sales of my real estate, as directed under Item 5, shall be made within and at such time after my decease as may seem most to the interest of my estate, by my hereinafter-named executors.
    “Item 6. That within one year after the decease of my said wife Margaret, my hereinafter-named executors shall expose to public sale all and the whole of my real, personal and mixed estate which may then be undisposed, for the highest and best price that may be had, and the proceeds thereof, together with all such moneys as may remain in their hands from my estate, after deducting such expenses as may legally occur, be divided and apportioned the neat balance into ten equal and alike shares, and one share thereof to be paid unto Susanna Davis, wife of Daniel Davis, or to her lawful issue ; and one share unto Eli Hoffman, or to his lawful issue; and one share unto John Ingham, son of Samuel Ingham, or to his lawful issue; one share to my sister, Sarah Garret, wife of John Garret, or to her lawful issue; one share unto my sister Elizabeth, wife of Christian Uhrich, or to her lawful issue; one share unto my sister Catharine, wife of Isaac Miller, or to her lawful issue; one share unto Henry Backenstose (son of my brother John), or to the brothers and sisters of said Henry Backenstose, in equal shares; one share unto Henry Spangler (son of my sister Magdalena Spangler), or to his mother or her lawful issue; one share unto Henry Backenstose (son of my brother Jacob), or to his lawful issue, and in case he dies without issue, then the same shall be paid to his brothers and sisters, in equal shares; and the one-half or moiety of one share unto Henry Warner, son of Henry Warner, of Bethel township, Lebanon county, Pa., or to his lawful issue, and the other moiety or half of share unto Henry Loose, son of Abraham Loose, now in Cumberland county, Pa., or to his lawful issue.
    “ Provided, all times, that in any case any of the above-named legatees should die before their legacy becomes payable, without lawful issue, where no further provision is made, in such case the share so bequeathed shall be divided in equal shares to and amongst those who are then living and named as legatees in this will. * * *

      “ Provided, under all circumstances, that if I should die with lawful issue, then this will to be void and of no effect, unless my issue should die without issue, then the said will shall be and remain in full force and virtue.”
    Codicil.
    “Provided, in all cases, /that Susanna Davis, wife of Daniel Davis, named as legatee in this my last will and testament, shall not have her legacy before her said husband’s decease, only the interest annually thereof, after the death of my wife and a distribution is made of my estate, unless she should become needful, in case of sickness, &c., then she shall have as much as to help her .out of necessity, providing it is after the death of my wife, and a distribution made. In all eases after the death of her said husband, it shall come to her under the 6th Item of this my last will and testament; if in case she should die before her said husband, it shall fall to her heirs.”
    The widow refused to take the property bequeathed to her under the provisions of the will, but elected to take and took under the provisions of the intestate laws. The whole of the real and personal property of the testator was sold and converted into money by his executors, the widow’s part or share set apart for her and paid over, and the account of the executors confirmed absolutely, the 8th day of January, A. D. 1871, by which it appeared that there was a balance of nineteen thousand nine hundred and fifty dollars in their hands.
    The widow being still living, John Ingham, one of the legateesjor himself and as agent of the othiFlegatees7presented' a petition to. the__Qrphans’. .Court, setting out the will and the other facts as above stated, and prayed for the appointment of an auditor “ to make distribution of said estate to and among the legatees named in said last will,” &c.
    The ex&cntDra,by their answers resisted the application, for the reasons, that the Jegacies did not vest on the death of the testator, but were contingent, and that the will provided that the estate1 should not be divided till one year after the widow’s death.
    ~ATfte'r argument, the court (Pearson, P. J.) delivered the following opinion:—

      “ On the 15th day of May 1852, Henry Backenstose executed his last will, which was admitted to probate on the 3d day of January 1864, he having died shortly before this time. The will is extremely contradictory, and hard to be understood; and what adds to the difficulty, his widow, to whom the estate was bequeathed for life, declined taking under the will, and claimed her distributive share under the intestate laws. The testator, amongst other things, directs that within one year after the death of his widow, all of his land shall be sold by his executors, and the money remaining in their hands, after all expenditures, shall be divided into ten equal shares, which he distributes among ten persons named, one of whom now petitions this court to have distribution made according to the terms of the will. This is resisted by the executors, on the ground that they cannot legally do so, the time therefor not having arrived — the widow being in full life. It is contended that the legacies are not vested, but contingent; and that the contingency on which they were to be paid has not yet happened. This depends on the effect of the widow’s renunciation. Although the devises and bequests for the use of the widow are somewhat contradictory, yet we can readily collect from the whole wording of the instrument that she was the main object of the testator’s care and bounty, and that the division of the estate was postponed solely for her benefit. Such being the case when she declined receiving the gift as intended, what was the effect on the other beneficiarios ? This question is answered in terms by the decision of the Supreme Court in Brown and Sterrett’s Appeal, 8 Casey 62, where it is held that when lands are given to a widow for life, and after her death the executors were directed to sell and divide the estate, as the sale was postponed for her benefit, she had the power to waive this advantage, and did so by electing to take under the intestate laws, whereupon her life estate became extinct, and it was the duty of the executors to make sale immediately. Such was the course pursued here, as the executors proceeded to ■sell that portion of the real estate expressly reserved to the wife, ®n her renunciation under the will. Again, it is held in Styer v. Ereas, 3 Harris 339 (see p. 342), that although it is a general .principle that the power to sell on the happening of a certain event •cannot well be executed before it has transpired, yet there arc exceptions. Where an event turns up which the testator had not •contemplated, a court is compelled to inquire how he would have •provided for it had it been foreseen — in short, to suppose an indention for him when he had none. In that case the sale was sanctioned, although the event had not occurred. The principles of this case are virtually recognised in Styer’s Appeal, 9 Harris 86. And where the power to the executors was to sell on the death of the widow, and she joined in making the sale, it was held good. The intention of the testator is to govern, and the postponement having been introduced for the benefit of the widow, she ■could waive it, and the executors could sell before the contingency happened. No one could complain, as no one was injured thereby. •Hast n. Porter, 1 Harris 533. The judge considers that had it not been for the desire to provide for his wife, he would have ordered the whole estate to be immediately sold for the purpose of. distribution. The same principle has been repeatedly recognised where property was demised to a trustee for the use of a married woman during the lifetime of her husband. It was held in one case, Koenig’s Appeal, 7 P. F. Smith 352, that the trust ceased on the divorce of the wife, as the object of the trust was to protect the property against the husband. It matters not what may be the duration of an estate given to a trustee by will. It continues no longer than the thing sought to be secured by the trust demands: Id. 355; Ilill on Trustees 339 et seq. In the case under consideration the executors-were trustees of this property. The real estate was directed to be sold by them, which is the same in legal effect, under the 13th section of the Act of 24th of February 1834, as if it had been devised to them to be sold. The widow’s renunciation under the will had the same legal effect as her natural death. The éxecutors could at once make sale, and distribution among the devisees under the will would immediately follow; all reason for suspending the same 'having ceased. It was all intended for the benefit of the widow, who waived it by her own act.
    “ Another question of no small moment and of no inconsiderable difficulty arises under the sixth division of this will, whether the legacies therein given are vested or contingent ? According to our understanding of the law of the- case, the question does not arise at present, and possibly never may, as the devisees therein named may have all been living at the time the widow renounced, or even at present. • We have no sufficient statement of the situation of those devisees, either in the petition'dr answers. That all will be made apparent by the report of the auditor appointed to make distribution, and if the point arises in the report, it must be determined.

      “ If these bequests were contingent, to vest on the death of the widow, yet, from what we have already said, her renunciation had the same effect in determining the contingency as her death. It would not be pretended that, had she died when she renounced, any legatee answering the description in the will, then in full life, would not have taken under it. We should know the precise situation of every one claiming "an interest before entering on that subject. It must be borne in mind that this will was made in 1852, nearly twenty years ago, and the situation of the devisees may have been greatly changed since that time. Who died and who survived we do not know. Some may have passed off during the fourteen years that the testator lived, and thus the legacies may have lapsed.

      “ One thing we do know — that John Ingham, the petitioner and one of the legatees, is in full life, and demands distribution, so as to enable Mm to obtain Ms share under the will, and as to him the legacy is vested as fully as if the widow were dead, though he may not be able to obtain his whole share until after that event.” * * *
    The court decreed:—
    “ That the executors must make distribution of the funds in their hands, and J. W. Ebur, Esq., is appointed an auditor to ascertain the situation of each legatee at the time of the testator’s death; also at the time the widow renounced under the will, and at the present time; also the amount of money in the hands of the executors for distribution under the will; the sum held by each, how received, and whether they are jointly liable for the whole or each for his aliquot part ? The auditor will report all of the facts, and also a scheme of distribution among the legatees, and report at his earliest convenience.”
    The auditor, on the 17th of March 1873, reported a scheme of distribution, and found that all the legacies were vested.
    The executors filed the following exceptions:—
    “ 1. The auditor erred in finding said legacies vested.
    “2. The auditor erred in making distribution of said fund among legatees or distributees, because, by the express terms of the will, the estate is not to be divided until within one year after the decease of his wife Margaret, Avho is not yet deceased.”
    The court confirmed the report, and the executors appealed to the Supreme Court, where they assigned for error the overruling' of their exceptions to the auditor’s report.

      J. Funde, for appellants. —
    If the legatees do not survive the widow, they can take nothing, because, previously to her death, nothing is given to them; their title to these legacies, therefore, expressly depends upon the contingency whether they will survive the AvidoAY: Gilleland v. Bredin, 13 P. E. Smith 396; Lamb v. Lamb, 8 Watts 186; Moore v. Smith, 9 Id. 403; Seibert’s Appeal, 1 Harris 501; Cooper v. Scott, 12 P. F. Smith 139; Bowman’s Appeal, 10 Casey 19.

      J. Benson (with whom was A. B. Boughter), for appellees.—
    The widow’s renunciation, and taking under the law on her life-estate, can have no other effect than to extinguish her estate entirely, and merge the lesser estate in the greater, which is vested in the executors: Brown and Sterrett’s Appeal, 3 Casey 62; Styer v. Freas, 3 Harris 339; Styer’s Appeal, 9 Id. 86; Gast v. Porter, 1 Id. 533. It is eAudent, from the AA-ording of the will, that the object for which the trust was created ceased to exist, and the law Avill not continue it longer than the thing sought to be secured by the trust demands: Hill on Trustees 339 et seq.; Koenig’s Appeal, 7 P. F. Smith 352. The legacies Avere vested: Cooper v. Scott, 12 P. F. Smith 139; Kerr v. Bosler, Id. 183; Bowman’s Appeal, 10 Casey 19; Taylor v. Taylor, 13 P. F. Smith 487; McGill’s Appeal, 11 Id. 46; Mengel’s Appeal, Id. 248; Umstead and Reiff’s Appeal, 10 Id. 365; Rife v. Geyer, 9 Id. 393; Sheets’s Estate, 2 Id. 257.
   Judgment was entered in the Supreme Court May 29th 1873.

Per, Curiam. —

Decree affirmed on the opinion of Judge Pearson.


author: Williams, J. —

text:
    Levick et al. versus Brotherline.
    1. Unseated land sold for taxes in a senior warrantee’s name is redeemed by the payment of the taxes, &e., by a junior interfering warrantee ; the redemption enures to the benefit of the true owner.
    2. The party redeeming can not defeat the redemption by withdrawing the money after the time for redemption has passed.
    3. A married woman, her husband not joining, conveyed her land to Levick, who went into possession; she and her husband afterwards conveyed to Brotherline for §500, on the representation that they were perfecting the title of Leviek. Reid, that if they executed the deed relying on the representations, it was void notwithstanding the money consideration.
    4. In an ejectment for the land by Brotherline against Leviek and others, Leviek could set up the fraud in avoidance of the deed.
    5. Shearer v. Woodburn, 10 Barr 511, -followed.
    May 22d 1873.
    Before Read,'C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Blair county: No. 56, to May Term 1873.
    This was an ejectment brought April 18th 1870, by John Brotherline against Carey Murdock, Richard Leviek and George L. Trask, for two tracts of land, one surveyed in the name of Timothy Leitis, and the other in the name of Aaron Bowen, adjoining the Timothy Lewis tract.
    The case was tried November 1st 1872, before Dean, P. J. The plaintiff gave in evidence warrants, February 5th 1793, to Lewis and Bowen respectively, and surveys, August 5th 1793. Patent to John Kunkle for the Lewis tract, January 29th 1795, and for the Bowen tract, February 25th 1795.
    The will of Kunkle proved December 9th 1798, devising these tracts with others to his five children, and divers conveyances passing the title of all the devisees -to Isaac F. Longstreth, August 19th 1816; deed July 22d 1820, Longstreth to Joseph Howell; deed October 18th 1821, Howell to David Wilson; deeds July 24th 1827, Wilson to his children, Elizabeth Wilson, Hannah Wilson and David Wilson, Jr. Sale of the Lewis tract for taxes and treasurer’s deed June 25th 1852, to the plaintiff; deed April 14th 1870, William Cloke, Jr,, and. Hannah his wife, late Hannah Wilson, for her interest (being an undivided half) in the two tracts, for the consideration of $750. The plaintiff here rested.
    The defendant then gave in evidence, warrants March 5th 1794, to David Bell, William Bell and Valentine Bell, and surveys July 28th 1837, in pursuance of the warrants. They gave evidence that these warrants and surveys covered that part of the two tracts which was in Blair county, except a small piece at the east end of the Lewis tract. They gave in evidence the sale of the Bell warrants for taxes, June 10th 1844, to A. P. Wilson, and deeds to him June 17th; deed March 17th 1863, A. P. Wilson and Gilbert L. Lloyd, to Carey Murdock, for the David Bell and William Bell tracts, the deed reciting a conveyance June 9th 1846, by James Ross to Samuel Calvin, and a conveyance June 4th 1847, by Calvin to A. P. Wilson and Lloyd. Deed April 7th 1863, Murdock to A. P. Wilson, for an undivided half of the David and William Bell tracts. Deed March 25th 1864, A. P. Wilson to George L. Trask, defendant, for an undivided half of the same tracts. They then gave evidence that the taxes ou the David and William Bell tracts for 1849, 1850, were paid by Lloyd June 5th 1852; also that the taxes for the same years on the Valentine Bell tract were paid by A. P. Wilson on the same da.y. They gave evidence as folloAVS: Elizabeth Wilson, a daughter, and one of the grantors of David Wilson, married William Henry Smith, and died at the birth of their only child, also named William Henry Smith. The father went away in 1843, and had not since been heard of. David Wilson, Jr., died unmarried and without issue in 1846 ; and David Wilson, the father, had long been dead. Deed August 3d 1864, to Richard Levick, for the Lewis tract, from William H. Smith, the son, and Hannah Puller, formerly Wilson, afterwards Cloke, and one of the grantors of the plaintiff, recorded September 22d 1864.
    S. J. Stevenson testified that he had been the guardian of William H. Smith; that Heylman negotiated for the purchase of the land for Levick in August 1864 from Mrs. Cloke and W. H. Smith; witness was then also agent for Mrs. Cloke; they saw little of Levick, the negotiations wrere through Heylman; witness testified further for the purpose of showing fraud in the conveyance by Mrs. Cloke to Brotherline.
    Hannah Cloke in her deposition testified:—
    “John Heylman, I think in the spring of 1870, called to see my husband several times and went out with him; subsequently he called at the house and asked for my husband. I told him my husband was not fit to talk to any one. He was asleep, and I did not like to call him. He asked me if I thought he would sign his name for him. I told him I didn’t know ; that he wanted more money. He said the parties were not willing to give any more; he thought that was enough for his name. Then he said' they had my name and he might as well sign his, for all he had in it was a life-interest, and at his death there was no more. He said the parties had already given so much that they were unwilling to give any more. He said he wanted to make their deed good and then he was going on to New York. I thought he was speaking of the deed I had make to Mr. Levick and that it was the same thing he (John Heylman) had arranged for the first deed. He in no way intimated that he was asking for a deed to another party. - When I signed my name to the deed that he produced, I thought I was making it all right for the first party, and that it was the same one thing. The deed was not read to me in full by any one; no names or parties were read at all; they read something about the tracts, but no names. The alderman read no part of it to me. He said in a very quick manner, £ Ho you acknowledge that name ?’ He talked very short to me, I thought. I signed the deed here in this room. My husband, when he signed the deed, was not in a fit condition to sign anything. After my husband had signed the deed (Mr. Heylman had not seemed to want my name) he (Mr. Heylman) said, Would you not sign your name to this deed ? It would look better to have both names together. He had told me that they only wanted my husband’s name, that they had my name, and he might as well sign his name, as he only had a life-interest at any rate, and that at his death there would be no more of it. From what Mr. Heylman said to me I thought I was perfecting the title of the first party, Mr. Levick. He paid me $500. I never heard Mr. Brotherline’s name in this transaction ; never knew there was such a man until long after-wards. He (Heylman) never paid anything mofe than this five hundred dollars.”
    W. Cloke, the husband, testified to facts in corroboration of his wife’s evidence) and that he did not.know that the deed was to Brotherline; also to other facts tending to show fraud in procuring the conveyance from Mrs. Cloke and himself.
    Some other evidence having been given by the defendants they rested.
    The plaintiff in rebuttal gave evidence showing that one John Brown, February 21st 1794, became the owner of the David and William Bell warrants, that on his death intestate, letters of administration of his estate were granted, September 4th 1824, to James Ross and Zachariah G.. Brown; the children of Brown gave a power of attorney to Ross.
    Under objection and exception, plaintiff gave evidence as follows:—
    Extract from the sale-book of the treasurer of Huntingdon county (from which Blair county was afterwards created), in relation to the sales of the Bell tracts to Wilson in June 1844: — •

      “ Deed, made out and lifted. Bond given. 1846, June 8th. Redeemed by James Ross, per Samuel Calvin, Esq.,
    and excepted to by A. P. Wilson, $5.71 paid. Sold to _ do. ' _ 1.50 “
    _ _ “ Deed made out and lifted, $4.50. Bond given. 1846, June 8th. Redeemed by James Ross, per
    Samuel Calvin, Esq., ..... 5.62 “ And excepted to by A. P. Wilson.”
    He gave evidence that the amount of these redemptions was charged by the auditors to the county treasurer, Januaiy 5th
    1847. He gave in evidence. from the treasurer’s book these entries:—
    “ Redemption-money lifted and right of redemption for the William Bell tract abandoned by me. Jambs Ross.
    “Per S. Calvin.”
    And a precisely similar entry as to the David Bell tract. Also receipt:—
    “ David Bell, $5.62. Received payment November 12th 1847.
    “ Jambs Ross.
    “Per S. Calvin.”
    He gave evidence also, in answer to the defendant, on the question of fraud in procuring the deed from Mrs. Cloke.
    There were no points submitted by either party.
    The court, after stating the evidence on which each party based his title, charged:— * * * “ Then the plaintiff’s claim, so far as it depends on the treasurer’s deed failing, has he shown a right to the possession of any portion of the land, under the deed of Hannah Cloke of April 14th 1870 ? This deed, if not obtained by fraud, being in proper form, joined in by her husband and duly acknowledged, put in her vendee, whatever title Hannah Cloke, at the date of it, had to the land. What title had she ? The defendants allege that as to the Timothy Lewis tract, or that portion of it to which they take defence, she had none, because this portion, under the names of Valentine, David and William Bell, had been (on the 17th of June 1844) sold to A. P. Wilson, for non-payment of taxes regularly assessed in Huntingdon county. So far as appears from the evidence, the tax for the year 1842 was assessed and unpaid; and this being the fact, the purchaser, A. P. Wilson, took all of the Lewis tract covered by these Bell surveys, subject, however, to the owner’s right of redemption within two years. If within that time there was not such redemption as the law requires, the land became Wilson’s absolutely, and Hannah Cloke had no land, so far as affects this issue, to convey to Brotherline, on the 14th of April 1870. ■
    [“ But the plaintiff claims that the Bell tracts were redeemed within two years, and that redemption inures to the benefit of the owner, and that therefore the deed to Wilson is ineffectual to pass title. The entries on the treasurers sale-book in Huntingdon county are relied on as evidence of the redemption. These have been read to you. So far as concerns the David Bell and William Bell tracts, the redemption-money was paid within the two years. Nothing' done after the expiration of the time for redemption could make the redemption void or give life to Wilson’s deeds, if the payment of the money was within the time, in such amount and by such person as the law requires. The defendants deny that the money was paid by one who had a right to redeem; and they ask us to say to you that the owner-of the land alone can redeem; that James Ross, who paid the redemption-money, was at most only the owner of the Bell warrants, junior warrants, laid on the Aaron Bowen and Timothy Lewis’s forty years after the land had been granted by the Commonwealth to Bowen and Lewis, and therefore, in no view of the evidence in this ease, can he be considered the owner of the land or the one having a right to redeem. We cannot so instruct you. These Bell surveys were made and marked on the ground; were returned into the Land Office and accepted; the land which they purported to cover was assessed and sold in their names. It may be — probably would be — in a contest as to location, between these oldef arid younger warrants, the owner of the Bowen and Lewis would take the land ; but we are, nevertheless, of the opinion that the owner of interfering warrants, located and surveys marked on the ground, the taxes assessed and the land sold in the name of the warrants, has a right to redeem, and that a redemption by him, in effect, makes void the treasurer’s deeds. Then, so far as the David Bell and William Bell tracts are concerned, there was no title in A. P. Wilson to convey, and in this case the deeds for them to him must be treated as if they had riot been made.] As to Valentine Bell, there is no evidence that any money was paid to redeem it, and to the extent that the land in controversy here is covered by the survey on that warrant, Hannah Cloke, at the time she -made the deed to Brotherline, had no title, and therefore the plaintiff has none to that much of the land. You will see from the draft in evidence what portion is covered by the Valentine Bell. As we understand, there is no controversy as to the quantity.
    But, the defendants further claim that Hannah Cloke, at' the time, she made the conveyance to Brotherline, had no title to any portion of the Aaron Bowen and Timothy Lewis, because, before that date, viz : August 3d 1864, she had conveyed all her interest in these tracts to Richard Levick, one of the defendants. The two deeds of August 3d 1864, have been read in evidence, and purport to convey all the interest of Hannah Fuller in these two tracts. It will be observed no husband joins with her in executing the deeds. The plaintiff has read in evidence the deposition of a Mrs. Richardson, who testifies that she was well acquainted with Hannah Fuller about the time and before the execution of the deeds to Levick, and that at that date she was a married woman ; this is not denied by defendants. Assuming it then to be a fact, those deeds are void, and passed no title to Levick so far as Hannah Fuller is concerned. She was the owner of the land after the delivery of those deeds, as before, and must be so treated here. The deed of a married woman, in which her husband does not join, passes no estate. Then, Hannah Cloke having been the owner of the undivided half of these lands in 1844, at the date of the sale to A. P. Wilson, she lost whatever portion of the two tracts is covered by the survey in name of Yalentine Bell, and no more; the David Bell and Wm. Bell having been redeemed, her title to the land covered by them is not affected by that sale; and Hannah Cloke, having been a married woman (a husband, one Fuller, living,) at the date of the two deeds, of 3d August, 1864, to Richard Levick, and this husband not having joined with her in executing these deeds, her title to the land was unaffected by them; and so far as appears from the evidence in this case, on the 14th day of April, 1870, when she and her husband, Wm. Cloke, conveyed to Brotherline, she was the owner of the undivided half of the Aaron Bowen and Timothy Lewis tracts, less that part covered by survey in name of Yalentine Bell.
    “ Up to this point, however much the counsel on each side have differed in the conclusion to be drawn from these facts, and however much we have differed from both in our conclusions, there has been no difference of opinion as to what the facts are, and consequently, there has been no contradictory evidence, or disputed fact for your consideration.
    “ The plaintiff must recover, if he recover at all, the undivided half of the Aaron Bowen and Timothy Lewis tracts, less that part covered by survey in name of Yalentine Bell, under his deed from Hannah Cloke and husband, of 14th April 1870. This deed is properly executed, and, if nothing else appeared, it would carry with it the right of possession to this portion of the land.
    “ But it is urged here by the defendants, and they have adduced evidence tending to prove, that this deed was obtained from Hannah Cloke and her husband by means of false representations made to her by the plaintiff; and defendants claim that, having been procured by fraud, the title to the land which it purports to convey is still in her, and therefore the plaintiff cannot recover. The plaintiff on this point asks us to instruct you :
    “ 1. That there is no evidence of such fraud as will avoid this deed, as between the parties to it.
    “ 2. That, if it was obtained by fraud, the defendants being strangers to the fraud, cannot here set it up as a defence. On this point ive are of the opinion that there is evidence to be submitted for the determination of a jury ; and while, if the defendant here, Richard Levick, Avere an intruder or trespasser, Avithout color of title, he could not set up in defence of his possession, the alleged fraud upon Mrs. Cloke and her husband, Ave cannot regard him as standing in such a relation to the parties here, if the evidence shows what is claimed for it by the defendants.
    “ It appeal’s that Levick, one of the defendants, purchased, for a good consideration, from Mrs. Cloke — then Mrs. Fuller-v-her interest in the land, took possession under his purchase and so remained from August 1864 until the service of the writ in this case.
    “ The defendants claim, from the evidence, that, Brotherline being aware that the instrument by which this purchase was consummated was void, employed one John C. Heylman, who had acted as the agent of Levick in negotiating the sale of August 1864, to obtain from Mrs. Cloke and her husband a second deed for the premises; that Heylman, representing to her husband and inducing her and her husband to believe that this second deed ivas to Levick, merely for the purpose of perfecting the first conveyance, he obtained their signatures to it; that, relying upon these representations, they executed the second deed, which they ivould not otherwise have done. You will consider the evidence, from which it is claimed this is established. [If Heylman, the agent of plaintiff, falsely represented to the Clokes that they were merely making a deed to confirm the possession of the land to Leidck, land ivhich she had before sold to him, and of which he was in possession, and by means of such false representations, and these alone, obtained a deed for Brotherline, it seems to us that it ivould be iniquitous here to permit Brotherline to use that deed to dispossess Levick; and we instruct you that he cannot so use it, and reap the fruits of fraud, even in this action between him and Levick. The proof of this alleged fraud must be clear and satisfactory, and must shoiv, not alone that false representations to the Clokes were made by Heylman, but that he falsely represented the deed they were making was to Levick ; and not this alone, but it must satisfactorily appear that, relying upon these false representations, they made the deed. As we have said, the title was still in Mrs. Cloke ; there ivas nothing to prevent her conveying it to another; if to obtain more money, and not relying on false representations of Heylman, she made the second deed, the plaintiff has a right here to recover upon it.] * * *
    “ The ivhole evidence on the question is for you. If Heylman falsely represented to the Clokes that they were perfecting a deed to Levick, and they believing him, and acting under this belief, and this alone, executed the deed to Brotherline, it was such a fraud as will prevent Brotherline from here using that deed to dispossess Levick. The evidence to show this fraud must be clear and satisfactory, and if it does so show it, your verdict should bo for the defendants.
    “ If the evidence fails to satisfy you of the fraud, then your verdict should be for the plaintiff, for the undivided half of the land described in the writ, to which defendants take defence, less that portion covered by survey in name of Valentine Bell.”
    The jury found “ for the plaintiff the undivided one-half of the land described in the writ, for which defendants take defence, less that portion covered in the survey in name of Valentine Bell.”
    The defendants took a writ of error. They assigned for error the admission of the evidence objected to, and the parts of the charge in brackets.

      8. Galvin and L. W. Hall (with whom was B. J. Neff), for plaintiffs in error. —
    The redemption-money of the land having been received again by Ross, the land was not redeemed: Strauch v. Shoemaker, 1 W. & S. 166; Harper v. McKeehan, 3 Id. 238; McCoy v. Michew, 7 Id. 386. Land sold for taxes can be redeemed only by the true owner or his agent: McBride v. Hoey, 2 Watts 436; Cox v. Sartwell, 9 Harris 481; Orr v. Cunningham, 4 W. & S. 294.

      8. 8. Blair, for defendant in error. —
    Payment of taxes by the owner of a junior interfering avoids a sale for taxes in the name of the senior survey. An agent may redeem: Patterson v. Brindle, 9 Watts 98. An adverse claimant may redeem: Shearer v. Wood-burn, 10 Barr 511.
    Mrs. Cloke’s deed, she being married, was void, and gave Levick no right in law or equity: Rumfelt v. Clemens, 10 Wright 455; Glidden v. Strupler, 2 P. F. Smith 400. Mrs. Cloke only could have been heard to complain of fraud: Hunt v. Crawford, 3 Penna. R. 426; Coxe v. Blanden, 1 Watts 533; Blyholder v. Gilson, 6 Harris 134.
   The opinion of the court was delivered, March 2d 1874, by

Williams, J. —

If Ross was the owner of the Bell warrants, as the jury must have found, then, under the ruling of this court in Shearer v. Woodburn, 10 Barr 511, he had such a title as authorized him to redeem the land sold for the non-payment of the taxes assessed in their name. If his title was invalid as against that acquired under the prior warrants and surveys, his redemption of the lands enured to the true owner ; and it was not in his power to defeat or annul it by withdrawing the money paid the treasurer after the time allowed for redemption had expired. To hold that he might, would open the door to fraud and collusion by which the title of the real owner might be swept away after the land had been .actually redeemed. There was no error, therefore, in admitting the evidence of the redemption of the land by Ross, and in instructing the jury, in effect, that as owner of the junior interfering warrants and surveys he had the right to redeem, and his redemption avoided the treasurer’s deeds.

But there is more ground for the complaint that the jury were misled by the manner in which the question of fraud in obtaining the conveyance from Mrs. Cloke and her husband to the plaintiff was submitted to them. Under the evidence the court should have instructed the jury in clear and explicit terms that if Heylman, the plaintiff’s agent, falsely represented to Mrs. Cloke and her husband that he was procuring the deed for Levick — to whom Mrs. Cloke had previously sold and executed a deed for the land —for the purpose of perfecting his title; and if relying on these representations they executed the deed believing it was to Levick, then the conveyance was void by reason of the false representations by which it was obtained, and vested no title in the plaintiff as against the parties affected by the fraud. But if they were not induced to execute the deed by false-representations of Heylman, if, knowing that it was to the plaintiff, they executed it for the purpose of conveying to him their interest in the land, it was valid and vested in him a good title.

Undoubtedly the money which they received as a consideration for the conveyance was an inducement to its execution. . But if, trusting to the false representations of Heylman, they executed it believing that it was to Levick, and would not have executed it if they had known that it was to the plaintiff, it was just as fraudulently procured as if it had been obtained for a nominal consideration. The fraud consisted in procuring the conveyance to the plaintiff by falsely representing that it was to Levick, and by the offer and payment of the money as an inducement to its execution. _ The payment of the money did not render the transaction honest and valid if it was one of the means used to accomplish the fraud. And in this aspect of the case we think the charge was calculated to mislead the jury. The court said: “If Heylman, the agent of plaintiff, falsely represented to the Clokes that they were merely making a deed to confirm the possession of the land to Levick — land which she had before sold to him and of which he was in possession — and by means of such false representations, and these alone, obtained a deed for Brotherline, it seems to us that it would be iniquitous to permit Brotherline to use that deed to dispossess Levick.” Undoubtedly the deed was void if it was obtained “by means of such false representations;” but it does not follow that if it was not obtained by “ these alone,” it was not fraudulent and void. Can there be a doubt that if Mrs. Cloke and her husband were induced to make the conveyance by the false representations of Heylman that it was to Leviek and by the consideration they were to receive for its execution, that it was fraudulently obtained, if they would not have executed it if they had known that it was to the plaintiff? But if the consideration which they received for the deed was an inducement to its execution, then it was not obtained by means of the false representations alone. And if not, the jury were left to infer that it was not void and that the plaintiff might recover upon it. Under the evidence the jury could not have come to any other conclusion than that Mrs. Cloke and her husband were more or less influenced in making the deed by the pecuniary consideration they were to receive, and that they were not induced to execute it by the false representations of Heylman alone. In this respect the charge was calculated to mislead the jury, and in all probability did mislead them, unless there was some reason for disbelieving the testimony in relation to the fraud not disclosed by the record. And this misleading instruction was substantially repeated at the conclusion of the charge where the jury were told: “If Heylman falsely represented to the Clokes that they were perfecting a deed to Leviek, and they believing him, and acting under this belief, and this alone, executed the deed to Brotherline, it was such a fraud as will prevent Brotherline from here using that deed to dispossess Leviek.”

The court may not have intended to tell the jury that if the deed was obtained by means of the false representations of Heylman, "and these alone, it was void and vested no title in the plaintiff; but if it was obtained by the false representations and the payment of money as an inducement to its execution, it was not void, and the plaintiff might recover upon it. But if the charge was calculated to leave this impression on the minds of the jury, as we have endeavored to show, it was not such a charge as the defendants were entitled to under the evidence. If the testimony is believed, the deed was obtained by gross fraud; and Leviek has a right to complain of it, because he is affected by it. The deed was procured for the purpose and with the intention of using it to dispossess him, as this ejectment shows. Why, then, has he not a right to set up the fraud in avoidance of the deed? He bought the land of Mrs. Cloke — then Mrs. Fuller — and paid her a full consideration for it. It is true that, being a married woman, her deed vested in him no title to the land, because her husband did not join with her in executing it. But he was in possession of the land under his contract of purchase, and but for the fraud of the plaintiff, his possession would not have been interfered with or disturbed. If the deed wa,s made for the purpose of perfecting his title and confirming his possession, what right has the plaintiff to use it to dispossess him ? To permit him so to use it would be iniquitous and a scandal to the administration of justice.

Judgment reversed, and a venire facias de novo awarded.