text:
    Campbell’s Executrix versus Patterson.
    1. What is not sufficient evidence to move a chancellor to decree a rescission of a contract on the ground of fraud.
    2. Where the answer to a bill in equity isu’esponsive to the bill and denying all its material averments, the duty is imposed on the plaintiff of sustaining his bill by the evidence of one witness beside himself, or bycircumstances equivalent to a second witness.
    3. Where one, though not nominally a party to a bill in equity, is a party to the contract sought to be avoided thereby and files a deed to take effect on its rescission, he is not a disinterested witness.
    4. Before the passage of the act making parties competent witnesses, the evidence of one disinterested witness was not sufficient to authorize a decree against the answer of a party. The spirit of the rule still remains, requiring proof of the facts charged and denied, to be clear and satisfactory by the undoubted evidence of two witnesses or one witness and the equivalent of a second.
    5. Per Trtjnkey, J. — It would be a dangerous precedent to rule, that upon the sole testimony of the dissatisfied parties to an executed contract, which had not turned out so well as they had expected, they may of right demand its rescission by a chancellor.

      October 14th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 235. In Equity.
    Bill in equity filed by T. H. Baird Patterson against William H. Campbell.
    The following is an abstract of the bill: That on or about July 1st 1872, the defendant, William H. Campbell caused to be subdivided and laid out into a plan of lots a tract of land, in Allegheny county, near Walls Station, on the Pennsylvania Railroad, being part of a larger tract conveyed to defendant, &c., and reciting the title of defendant thereto, and that a copy of the plan so • laid out is attached to the bill. That on or about August 1st 1872, the defendant executed and delivered his deed to plaintiff and one Joseph P. Reed, at that time a minor, for a certain part of said tract of land, describing it by courses and distances, containing five acres and 132 perches, with the right of way over a private road or street 40 feet wide, from the township road along outside the first described four lines of this piece of ground, and being section “ C” in the plan hereto attached, for a price of $3536.87J ; that such plan was not then of record, but by the terms of said deed to be thereafter recorded; that said plan at the time of making said deed was given by defendant to plaintiff, and represented as showing the streets of said plan to which‘the plaintiff would be entitled as appurtenant to said lot; that such representations were inducements to the plaintiff to purchase said lot. That at the time of said purchase the tract sold to plaintiff was shown b.y defendant to plaintiff on said plan, which plan showed certain roads, streets, &c., over, along and adjacent to said tract; that said streets increased the value of said tract, and were inducements to plaintiff to purchase, &c. That notes were given by plaintiff and his co-purchaser for the purchase-money, and a mortgage to secure the same. That the defendant has since, though often requested, refused to put said plan on record ; that he has sold property included in said plan, and adjoining tract sold to' plaintiff, to John H. Hampton et al., upon an entirely different plan, which last-mentioned plan is inconsistent and conflicts with the plan by which the plaintiff bought, and seems to close up and destroy streets laid out on plan given to plaintiff. That the defendant has issued a scire facias on the mortgage given for the purchase-money, and has brought suit on two of the notes given therefor. That plaintiff believes that fraud and deceit were practised upon him in said sale, and has expressed his desire to rescind the contract, and now offers to rescind the same, and tenders a re-conveyance of said property on repayment of the purchase-money.
    He prays : First, that the court may compel the defendant to record the plan by which plaintiff purchased ; second that defendant be restrained from proceeding further in the suits on the .notes and mortgage until said plan is acknowledged and recorded ; third, that if the defendant is unable to complete and place upon record said plan, that the contract be rescinded, &e.
    The defendant’s answer in brief admits the sale of the tract described to the plaintiff and Joseph P. Reed; sets forth that defendant never made any definite plan of lots, but that some time in 1872 defendant made a rough draft of about 80 acres more for his own convenience than any other purpose and to show the location of the land, &c., and said draft showed the outside lines of the 80 acres which he wished to sell in tracts to suit purchasers, and two or three tracts of about five acres each, one of them the tract sold to plaintiff. There was no street marked on said draft, except the right of way afterwards granted by the deed to plaintiff. That some time before the sale to plaintiff, defendant made a copy of about 60 acres of said draft, the only difference between the two being that the latter excluded about 20 acres at. the extreme end of said 80 acres, no part of which was subdivided or sold. That defendant showed plaintiff this sketch of the 60 acres before the sale, explaining to him that he could not make any definite plan of the land, as the tracts sold would not be uniform in size; that the lines of adjoining tracts would have to conform to each sale, as purchasers might want smaller or larger tracts: that when the whole of said 80 acres was sold, defendant would be able and intended to give a letter to each piece sold, and make a general plan of the tracts so sold. That defendant never promised to record any plan except such an one as explained, and in accordance with this understanding the tract sold to plaintiff was not lettered when the deed was delivered, but left blank until further sales should be made ; that it is still his purpose to put such plan on record when the whole of the 80 acres is sold. That shortly afterwards, the panic put a stop to defendant’s sales; defendant never exhibited or gave to plaintiff a plan of lots of which the plan annexed'to the bill is alleged to be a copy ; that he never showed him any plan except the rough draft before mentioned ; that when the deed was delivered plaintiff asked defendant to give him the sketch defendant had shown him, and defendant gave the same to plaintiff. That the exhibit attached to the bill is not a true copy of the sketch shown by defendant to plaintiff; there were no streets or rights of way marked on said sketch, except the right of way to the township road; that all the roads, streets and rights of way on the plan attached to the bill, indicated by black lines, have been put there since said sketch passed out of defendant’s possession, and have been put there without defendant’s knowledge or authority ; that the tract sold to plaintiff was not “ section C” in the plan attached to the bill, but was section C in apian to be hereafter recorded when the whole of the 80 acres had been Bold. .That about six months after the deed was delivered plaintiff asked defendant to give him a letter for his tract as he wished to place his deed upon record, and as the defendant had then sold several tracts of the land he was able to give him, and did give him, the letter C for his tract. Defendant denies that any plan of which the exhibit attached to the bill is alleged to be a copy was to be recorded by the terms of the deed,- or any plan except as heretofore explained; denies that he represented the sketch shown plaintiff, or any plan whatever as showing streets plaintiff would be entitled to : denies that he represented that there would be any streets or rights of way as appurtenant to the lot sold, or by virtue of any plan to be recorded, except the right of way to the township road granted by the deed : denies that plaintiff was induced to make said purchase by any such representations made by defendant; admits sales of adjoining land to Hampton et ah, but denies that they were made by a plan, or that any rights were thereby granted inconsistent with the rights heretofore granted to plaintiff; denies that plaintiff ever expressed any desire to rescind until after he had been sued by defendant on mortgage and notes for purchase-money.
    The court appointed O. Hasbrouck, Esq., as master. The complainant produced before the master the plan under which he claimed the streets and rights of way set forth in his bill. This plan showed that all the streets so claimed were bounded by lead-pencil lines; that no width was given to them, nor were they marked as streets or designated in any manner whatever on said plan; that they had no courses or distances as had the admitted boundary lines made by Campbell; that the ink lines closed up all of the streets except the right of way described in the deed, and the contents of the tracts marked off on said plan ran up to the ink-boundary lines and left no room for streets. It showed further that the lead-pencil lines forming the boundaries of the streets claimed, ran on either side of and followed the ink lines dividing the several tracts on the plan.
    The defendant, William H. Campbell, died before the plaintiff’s evidence had closed. The defence rested on his answer and the written contract of the parties.
    The only testimony that was offered in support of the bill, was that of Patterson, the plaintiff, and Reed, his co-purchaser and co-grantee. The master, while holding that the answer fully balanced the testimony of the plaintiff, treated Reed as a disinterested witness and was of opinion that his evidence was sufficient to sustain the allegations of the bill and to overcome the answer and the deed. Reed was not a party to the bill, but he had filed with the master his deed to Campbell for his (Reed’s) undivided interest in the land, to take effect upon the rescission of the contract under the terms of the bill.
    It appeared by the plaintiff’s testimony that he had paid Reed’s share of the hand-money and Reed’s notes as they fell due, as well as the taxes on the land. Reed himself, being called by the defendant for that purpose, testified that Patterson, the plaintiff, had brought him a paper to sign; that this paper related to the assumption of Reed’s notes by Patterson and had some relation to the land, but the witness did not know whether he had assigned his interest to Patterson or not. Reed signed the paper and testified that Patterson had kept it and that he had never seen it since. Patterson on being ruled by the defendant to produce the paper testified to by Reed, denied under oath that he had ever had such a paper, and denied all knowledge of it.
    The master, being of opinion that the averments of the bill were sustained by the evidence of Reed, a disinterested witness, found the facts in favor of the plaintiff, and recommended a decree rescinding the contract, etc., etc. Exceptions having been filed by the defendant to the master’s findings, upon argument, the Court of Common Pleas, No. 1, overruled the same and confirmed the master’s report. No opinion was filed. Whereupon an appeal was taken by Margaretta Campbell, the executrix of William Campbell, deceased.

      Bruce & Negley and J. M. Acheson, for appellant.
    We submit that the master was wholly wrong, in allowing the testimony of the complainant and his co-purchaser Reed to overcome the defendant’s answer. This answer being responsive to the bill, and denying all its allegations, its effect could only be overcome by evidence other than that of the plaintiff himself. The application of this rule is especially important in this case, where the bill is mainly supported by the plaintiffs own testimony, while death has prevented the defendant from testifying in his own behalf. The effect of the answer being to nullify the plaintiff’s individual testimony (Daniel’s Ch. Pr. 840 and notes), the duty was imposed on him of .sustaining the allegations of his bill by evidence aliunde. The only other evidence that the plaintiff had, was that of his co-purchaser Reed, and we submit that his testimony was not sufficient to overcome the defendant’s answer with its corroborating circumstances, and that the master erred in giving it such effect. The master treated Reed as a disinterested witness, and gave full force to his evidence-as such, allowing it to prevail and bear down the defendant’s answer. Blit why is Reed less interested than the complainant ? He is practically a party to the bill, although not- technically so. He was a co-purchaser with the complainant, gave his individual notes, and joined with the complainant in the mortgage. He defended the suits on his notes, and put in his own defence to the suit on the mortgage.
    It was certainly error to allow the written and executed contract of the parties to be overthown by the parol testimony of the only persons who could be benefited by the avoidance of such contract.

      November 15th 1880.

      W. S. Wilson and John S. Ferguson, for appellees.
    The complainant did not attempt to strike down the deed by a parol agreement. In the deed itself Campbell had declared that the ground which he described and conveyed was “ Section C, in a plan of sub-division of part of said larger tract, to he hereafter recorded.” By a fair interpretation of his language that plan then had an existence and he had undertaken to record it. Our evidence simply identified the plan. It explained the deed. It was admissible upon precisely the same principle that would admit parol evidence to identify the corner at which the description of the land began. It would be impossible to so draft a deed as to make it effective without the aid of such parol evidence.
    When the plan was identified it became a part of the deed, as showing what streets or ways were appurtenant to the land conveyed, as much as if the plan had been inserted in the deed : Borough of Birmingham v. Anderson, 12 Wright 253 ; Trutt v. Spotts, 6 Norris 339. To sustain the plan produced by the complainant we relied not merely upon the testimony of Reed and Patterson, but also upon a number of corroborating circumstances.
    The deed itself corroborated us. It admitted the existence of a plan, and from that admission we were fairly entitled to infer' that that plan had some bearing upon the subject-matter of the grant.
    We were corroborated by the inference resulting from the fact that although Campbell denied that our plan was the one given us by him he claimed by his answer to have a draft, differing in nowise from the one delivered except that it included twenty acres more ground, which he did not attach to his answer, and which never was shown in the case. Besides, Campbell’s whole answer on its face is the answer of a man reasoning up from his alleged intentions to the conclusion that he could have delivered no plan in any way opposed to such intentions. It was more the expression of his belief than the allegation of a fact.
   Mr. Justice Trunkey

delivered the opinion of the court,

By deed acknowledged August 17th 1872, Campbell conveyed the land to Patterson and Reed, “ with the right of way over a private road or street, forty feet wide, from the said township road, along outside of the first described four lines of this piece of ground.” In October following he conveyed the adjoining lands to Hampton, Routh and others, reserving the right of way before granted over said private road. After these conveyances, he wrote in the deed to Patterson and Reed this addition to the description: “And being section C in a plan of subdivision of part of said larger tract to be hereafter recorded,” and gave them the plan. They allege said plan set out divers streets leading from the land conveyed to them through the adjoining lands, subsequently conveyed to Hampton, Routh and others, and said streets were an inducement to their purchase. This the answer positively denies. Upon the issue thus raised the master found for the plaintiff, and was of opinion that the prayer of the bill should be granted.

Reed, one of the grantees, was a minor and became of full age November 5th 1873. Nominally he is not a party, but he and Patterson each filed a deed at same time, for same purpose, to take effect “ upon a rescission of the contract under terms of plaintiff’s bill.” The notes given for purchase-money which became due in 1878, 1874 and 1875 were paid, but those due in 1876 were not paid, and against suits thereon the makers set up defences of fraud and Reed’s minority. From the first Patterson paid for Reed and himself, and also paid the taxes. That they had some arrangement respecting the land and payment of the notes is manifest from the testimony of Reed, rvho had much difficulty in telling about it because of the plaintiff’s objections, some of which were very strange. Patterson was neither a minor nor aged and infirm, but of mature and vigorous mind, so that it is not pretended he could have been easily overreached in a bargain. He cared for Reed’s interest, and shows no renunciation by Reed for nearly three years after he arrived at majority; nor did he himself, during said time, complain of fraud.

Aside from the testimony of the grantees there is no evidence to impeach the deed. Nobody else knows of such streets as they claim, either on the ground or on a plan. Those who purchased the adjoining lands heard nothing of any streets, save those mentioned in the deed to Patterson and Reed. That description of a private way is persuasive that no other was included in the grant. Naming one excludes others. The land for sale was divided into parcels on the plan — each parcel containing a number of acres— but no piece was subdivided by streets and alleys and into lots, as if for a village. Ample facility was given to reach the township road, and no inference can reasonably be drawn that more was intended than expressed. But it is competent to prove the allegations of the bill and overcome the answer, consistent as it is with the deed; and the inquiry is, whether this has been done by testimony that ought to move a court to decree a rescission.

There is a material difference between circumstances which require a chancellor to forbear and those which require him to act. On a question of specific performance he may choose to be silent; and his action, being of grace and not of right, is to be directed by a sound though legal discretion. But circumstances proper for a rescission, involving as they do the control of a legal right, are necessarily of a more positive and definite cast. The consequence of the distinction is, that though equity would refuse to interfere for purposes of execution whenever it would revoke, it may refuse to revoke when it would decline to execute: Delamater’s Estate, 1 Whart. 362. In all cases where the cancellation of a contract is sought on the ground of fraud, courts of equity should maintain the principle that no relief be given unless a distinct case of fraud be clearly proved : Story’s Eq. Jur., sect. 694 a. It is an invariable rule in equity that where the defendant, in express terms, negatives the allegations of the bill, and the evidence is only of one person, affirming as a witness what has been so negatived, the court will simply dismiss the bill: Story’s Eq. Jur. 1528. The rule is well settled that there cannot be a decree upon the facts charged in the bill and denied in the answer upon the deposition of a single witness. There must be two witnesses, or concurring circumstances to supply the place of a second witness, before there can be a decree against the answer: Smith v. Brush, 1 Johns. Ch. 459. The rule was established when a party or interested person could not be a witness. Then one disinterested witness was not sufficient to authorize a decree against the answer of a party. Now parties and interested persons are competent witnesses, and in many cases it would be easy to call two plaintiffs and fill the letter of the rule, and in all a plaintiff and one other, or a plaintiff and corroborative circumstances, constitute the number. The spirit of the rule remains, requiring proof of the facts charged and denied to be clear and satisfactory by undoubted evidence of two witnesses, or one witness and the equivalent of a second. In equity the disputed facts are not settled by a jury, and it is the policy in Pennsylvania, so far as practicable, to conserve the right of trial by jury. The grantees who charge fraud generally have an ample remedy by action at law, or by defence against an action for the purchase-money, if that has not been paid. If there be no proof of fraud, except their own testimony,' it must be an extraordinary case to warrant a court of equity to set aside the deed. We think it would be a dangerous precedent to rule that upon the ’sole testimony of the dissatisfied parties to an executed contract, which had not turned out so well as they had expected, they may of right demand its rescission by a chancellor.

Here the witnesses are the grantees. If there be corroborative evidence it is overbalanced by the express grant of the right of way. Eor considerable time the purchasers were satisfied. They have remedy by action for damages if the unpaid purchase-money is not enough to cover the injury for the alleged fraud. We see nothing in the case to justify a conclusion that rescission in a court of equity is the only adequate relief; but, be that as it may, upon the whole case we are satisfied that the fraud charged is not so proved that a chancellor ought to act.

Decree reversed, and it is now considered and decreed that the bill be dismissed, without prejudice in any action at law, and that the costs, including costs of this appeal, be paid by the appellee.


source: Caselaw Access Project

author: Per. Curiam.

license: Public Domain

text:
    Lightcap’s Appeal.
    1. Where executors unite in an account they are conclusively presumed to be liable for cash balances, shown by said account, but they are not liable for uncollected securities which appear in said account and for which credit is taken therein.
    2. Where securities are taken in the name of executors and afterwards col lected by one of said executors the others are not liable to the legatees therefor, in the absence of proof of culpable negligence.
    3. Whether when a cash balance is shown by a joint account and a decree therefor made against the executor it is a lien against bis real estate, not decided.
    October 15th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1880, No. 177.
    Appeal of Samuel Lightcap and others from the decree of the court upon the exceptions to the final account of Samuel L. Robinson, deceased, one of the executors of Gilson C. Lightcap, Sr., deceased, filed by Maria Dempsey, administratrix of the estate of Samuel L. Robinson, deceased.
    Gilson C. Lightcap, Sr., died on the 28th of January 1865, testate. In his will he ordered and directed, inter alia, that all his. real estate should be sold by his executors, “ and the proceeds arising from the sale of my said real estate, I order and direct to be invested by my said executors, in some safe and good securities at the best rate of interest that can be had therefor;” that the interest be expended by his executors for the support of his wife and two youngest children until they arrive at the age of twenty-one years respectively ; that when the youngest of them arrives at the age of twenty-one years, two-thirds of the principal be lifted by his executors and divided among five of his children, and the remaining one-third be kept at interest for the support of his wife until her death, and at her death, to be lifted and divided among his five children aforesaid. He appointed Gilson C. Lightcap, Jr., Samuel L. Robinson and S. B. W. Gill as his executors.
    On the 15th of February 1865, the said three executors jointly accepted letters testamentary, and proceeded to administer on the estate. In pursuance of the power vested in them by the will, the three executors sold all the real estate.- They executed joint deéds therefor to the purchasers. They received a portion of the purchase-money in cash, and, receipted jointly therefor in the deeds. They took purchase-money mortgages to secure the balance in their joint -names. After they had thus disposed of the whole estate, they filed a joint account at December Term 1866, charging themselves, among other things, with the proceeds of the real estate sold, viz.: $23,790, and crediting themselves, inter alia, with the amount of the mortgages not yet collected, viz.: $14,018.33, their commissions, viz.: $1281.91, and showing a balance in cash in their hands amounting to $4170.37. After nthe filing of this account, it appeared that Robinson and Lightcap, Jr., turned over to Gill all the assets of the estate, and without surrendering the letters granted to them, ceased to pay any attention to the estate, or, in the words of Lightcap, Jr., the other executor, “ Mr. Robinson never officiated unless he was called upon to sign his name to any paper he might be called to sign ; that was the only part he took, when he was called upon to sign his name, and, of course, when we wanted to consult him on other business sometimes.”
    As the mortgages became due, Gill received the money and entered satisfaction on the record in his own name. In this manner he collected before the death of Robinson, in the year 1866, $3475; in 1867, $3753.50; in 1868, $4658.83; and after the death of Robinson in 1876, $1425,- leaving but a portion of one mortgage unpaid. That portion, viz.: $125, was received on December 19th 1877, by Lightcap, Jr., the then sole remaining executor.
    There was no proof that any of this money was ever invested as ordered by the will, or that Robinson ever made any inquiry as to whether it had been collected, or as to what had been done with it, or that any interest (or, if any, how much) was ever paid to the party entitled thereto. Robinson died on August 5th 1870, intestate. His widow, the accountant, became his administratrix. Gill absconded in September 1877, carrying with him all of the cash and other available funds of the estate. By proceedings he was removed from the trust. In May 1878, Samuel Lightcap, the youngest child, arrived at age, and two-thirds of the estate was then distributable according to the will. Upon petition, the Orphans’ Court directed Lightcap, Jr., the sole remaining executor, and Mrs. Maria Dempsey (formerly Robinson), administratrix of Robinson, deceased, to file separate accounts, but this not to affect the joint liability of the executors. Mrs. Dempsey, for her intestate, filed an account, setting forth that nothing had come into her hands, and crediting herself with the expense of filing the account. Upon exceptions filed thereto; after argument, Hawkins, P. J., made a decree surcharging Robinson’s estate with the cash balance shown by account filed at No. 63, Dec. Term 1866, viz. : $4170.37 and interest from Oct. 1st 1876, to Jan. 28th 1880, 833.24
    Total surcharge, • $5003.61
    and limited the foregoing surcharge to the personal estate of Samuel L. Robinson, deceased. The following was the opinion and decree of the court:—
    “No cases have been found'against, and many may be found in favor of, the doctrine that where two or more executors unite in an account, they are conclusively presumed to be jointly liable for the balance which appears in such account: Haage’s Appeal, 5 Harris 190; Ducommon’s Appeal, Id. 268; Hengst’s Appeal, 12 Id. 419. By uniting, they voluntarily hold themselves out as jointly liable, and the decree of confirmation thereon is an adjudication of joint liability. But does the effect of their admission and of the decree as respects joint liability extend beyond the cash balance and include securities which appear on the face of the account as being uncollected assets? Suppose for example one of several joint accountants should die immediately after the decree of confirmation had been entered, is there any principle of equity upon which his estate can be surcharged with uncollected securities in the absence of positive proof, that they have been * culpably and negligently parted with ?’
    “ The manifest purpose of bringing uncollected securities, such as mortgages into accounts, is to exhibit to parties interested, the condition of the estate and the progress of the administration. The accountants thereby admit joint custody of them and assert that administration of them has not been completed. They charge and discharge themselves. No new liability is created or intended to be created ; it remains the same after as before the account was filed. With respect to the cash balance joint liability may or may not have existed prior to filing the account.
    “ What then was the extent of the liability of executors of Gr. C. Lightcap, deceased, prior to filing their account ?

      “ It is an established rule that executors ‘ are liable personally and individually no further than assets have come into their hands, and where they have done some act which the law considers as equivalent to an admission that the assets were in their hands and power, and culpably and negligently parted withHall v. Boyd, 6 Barr 270; Irwin’s Appeal, 11 Casey 294. It has accordingly been held that where a co-trustee who does not receive the money, consents that the others shall misapply it, particularly where he has the power to secure it, he is responsible: Pain v. Downing, 11 S. & R. 71; and that an executor who receives money of the estate and pays it over to a co-executor, who afterwards becomes insolvent, is not chargeable with it in favor of legatees : Verner’s Estate, 6 Watts 253. So, on the same principle, in Jones’s Appeal, 8 W. & S. 141, it was held that where joint guardians in good circumstances and standing, apportion the custody and management of the trust property to suit the peculiar qualifications of each, but without surrendering the right of either to intermeddle with the whole, each is chargeable with no more than he actually received, unless he knowingly permitted or promoted a devastavit of the estate by his colleague.
    “ The evidence does not show that the uncollected mortgages were ‘ culpably and negligently parted with’ by Mr. Robinson. Assuming that Mr. Gill had power to satisfy these mortgages, and that Mr. Robinson knew and authorized the exercise of that power, the circumstances were such as to have induced and justified the latter in reposing confidence. Mr. Gill had been the attorney and trusted adviser of the testator, who had, by appointing him co-trustee with, recommended him to the confidence of Mr. Robinson: Irwin’s Appeal, supra; heW'as believed to have special skill and advantages in making investments; he was in good standing in the community until after he had absconded; he was the acting executor, with the knowledge and without objection on the part of the legatees; and no one appears to have called on Mr. Robinson for the exercise of any of the duties of the trust, from the date of the death of the testator onward. Nothing could have been more natural under the circumstances, than that the exercise of the duties of the trust should have been left to Mr. Gill. In trusting him the assets were surely not ‘ culpably and negligently parted with.’ Any rule which would make his co-trustees jointly liable with him would be harsh and unreasonable: Hall v. Boyd, supra. But the evidence does not show that Mr. Robinson in fact knew and authorized specially the satisfaction of any one of the mortgages. He certainly did not join in the satisfaction of record. Had there even been a general authority to satisfy mortgages, it seems that it would have been insufficient: Bohlen’s Estate, 25 P. E. Smith 304. If the law gave Mr. Gill power to satisfy without and notwithstanding his co-trustees, it is but just that he alone should be made responsible; if he had not the power (Dellaven v. Williams, 30 P. E. Smith 480,) the estate has not lost anything by the act of Mr. Robinson. The assertion of the duty of the executors to unite in the execution of the trust, is a denial of the power of any one of the executors to act alone.
    “ Nor does the evidence show that Mr. Robinson even suspected, much -less permitted or promoted devastavit by Mr. Gill. It was said in Irwin’s Appeal, supra, that to require one trustee ‘ to have dealt with his colleague as.a rogue by calling for securities, would require of him the highest and most exact vigilance — a degree of it that was inconsistent with the relation which the testator had established betwixt them.’
    “ The rule which permits one of several executors to perform the duties of administration, and holds him alone responsible for his acts, does not depend for its validity on the consent of eestuis que trustent, but is an arbitrary rule whose application grows out of the conduct of the executors themselves. Jones’s Appeal, supra, was decided as it was, notwithstanding the eestuis que trustent were minors, and, therefore, incapable of giving consent at the time at which their guardians made the agreement to sever in the management of the estate and divide the assets between them.
    “ Whether the Statute of Limitations is a bar to the claim of the cash balance shown by the joint account filed by the executors against the estate of Mr. Robinson depends upon circumstances. More than five years having elapsed since his death without Suit having been brought or statement filed, the statute is a bar as against the real estate of decedent: Act of February 24th 1834, sect. 24, Pamph. L. 77. But there is no Statute of Limitation which can affect the right of a creditor of decedent to undistributed persona] estate: McClintock’s Appeal, 5 Casey 360. The exceptants then are only entitled to pursue the personal estate of decedent for the balance of cash shown by the joint account filed with interest thereon, from the time when distribution should have been made. If the estate of the decedent has been fully administered the exceptants are, as a matter of course, without remedy.
    <£ And now, to wit: June 2d 1880, this matter came on for hearing and distribution, at this term upon exceptions thereto and testimony taken, and was argued by counsel, and thereupon upon consideration thereof, it is ordered, adjudged and decreed, that the accountant be surcharged with the balance shown by account filed at No. 63, December Term 1866, viz., $4170.37, and with interest from October 1st 1786 to January 28th 1880, $832.24; total surcharge, $5003.61. The foregoing surcharge is limited to the personal estate of Samuel L. Robinson, deceased.”
    From this decree this appeal was taken, the appellant alleging 1st. That the court erred in not surcharging the accountant with the money collected by Gill on the mortgages in addition to the cash balance, and 2d. In limiting the surcharge made to the personal estate of Samuel L. Robinson, deceased.

      Lewis McMullen and J. T. Myler, for appellant.
    It is evident the executors recognised at the beginning the joint obligation cast upon them by the terms of the will, as they acted jointly in the sale of the real estate, making joint deeds therefor, giving joint receipts for the purchase-money, receiving the mortgages, securing the balance of purchase-money in their joint names, and finally by filing a joint account, in which they charged themselves jointly with the balance due the estate in cash and securities, and credit themselves jointly with the sum they charge as a compensation: Weigand’s Appeal, 4 Casey 473 ; Hengst’s Appeal, 12 Harris 417. If for the convenience of themselves, as Gilson C. Lightcap, Jr., testified, they saw proper to trust the whole estate in Gill’s hands, and he wasted it, the loss is theirs, and not the legatee’s: Weigand’s Appeal, supra; Ducommon’s Appeal, 5 Harris 268.
    The second assignment raises the question as to whether or not the claim in this case is barred as against the real estate of Samuel L. Robinson, in the hands of his heirs, by the twenty-fourth section of the Act of February 24th 1834, Pamph. L. 77. We think not, for three reasons : 1. Because the nature of the claim is such that it is not within the meaning of the. word “ debt” as used in the statute. The trust raised by the will of Gilson C. Lightcap, deceased, was a continuing existing trust between the executors and the heirs. 2. When the joint account filed by the executors was confirmed by the court the balance became a debt of record in the nature of a judgment within the meaning of the word “judgment” in the statute. If it is such a debt of record or judgment that the statute would not run against in the lifetime of the decedent, then it is without limitation as against the heirs, or the real estate in their possession, they not being purchasers for value: Fetterman v. Murphy, 4 Watts 424; Brobst v. Bright, 8 Id. 124; Wells v. Baird, 3 Barr 351; Konigmaker v. Brown, 2 Harris 269 ; Aurand’s Appeal, 10 Casey 151. 3. Under the will the claimants had no legal right to any portion of this trust fund until Samuel Lightcap arrived at twenty-one years of age. They had no legal right to demand or receive any part of the estate until May 1878 : Haage’s Appeal, 5 Harris 181; Hengst’s Appeal, supra.

    October 25th 1880,

      George Shiras, Jr., for appellee.
    In ruling that Robinson’s estate was not liable for moneys collected by his co-executor, the court relied upon the rule laid down in the following cases : Hall v. Boyd, 6 Barr 270; Irwin’s Appeal, 11 Casey 294; Verner’s Estate, 6 Watts 250, and Jones’s Appeal, 8 W. & S. 143, thab executors are liable personally and individually no further than assets have come into their hands, and where they have done some act which the law considers as equivalent to an admission that these assets were in their hands and power and culpably and negligently parted with. But even if the decree as to the balance was regarded as a judgment, the twenty-fifth section of the act of 1834 would apply, and, as nearly fourteen years had elapsed from the time of said decree before the institution of the present or any proceedings, the lien as against real estate has long since fallen. The argument that Robinson’s estate is not entitled to the benefit of the Act of 1834, because he was a trustee, is based on. the assumption that he actually received these moneys and retained them, whereas the undisputed evidence is that he neither received nor retained them.
   The judgment of the Supreme Court was entered,

Per. Curiam.

We aifirm this decree upon the opinion of the learned judge of the court below, except as to so much of the opinion and decree as relates to the question whether the amount decreed against the appellee was or was not a lien against the real estate of Robinson. Upon that question we express no opinion, as we do not think it was before the court. When it is asked to make an order to sell the real estate it will then be necessary to consider and decide that question.

Decree affirmed except the last clause, “ The foregoing surcharge is limited to the personal estate of Samuel L. Robinson,” which is reversed, and appeal dismissed at the costs of the appellants.


author: Mr. Justice Gordon

text:
    Wetter, to use, versus Kiley.
    1. A suit upon a promissory note which waived the right to appeal was referred to arbitrators, who found for plaintiff. The defendant appealed and after the entry of the appeal plaintiff's counsel obtained from the counsel of the defendant a plea which was duly filed in the cause. The plaintiff subse-' quently obtained a rule to strike off *the appeal: Held, that the action of plaintiff’s counsel was an unqualified recognition of the defendant’s right to be in court as an appellant, was as effectual as a waiver of a right to quash, and that the rule was properly discharged.
    2. The maker of non-negotiable paper may defeat a recovery upon it in the hands of a third party, to whom it has been transferred for a valuable consideration, by setting up the want of consideration, although the maker may have given it to the payee for the express purpose of enabling him to negotiate it and obtain money thereon for his own accommodation.
    October 18th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1880, No. 74.
    Assumpsit by Henry Wetter, to the use of the First National Bank of Clarion, against J. B. Kiley, upon the following promissory note:—
    $2000. Clarion, Pa., Feb. 5th 1878.
    Ninety days after date I promise to pay to the order of Henry Wetter, two thousand dollars, at the First National Bank of Clarion, Pa., without defalcation for value received. If not paid at maturity waiving exemption, inquisition, appeals, without stay of execution, and with five per cent, attorney’s commission.
    (Signed) J. B. Kiley.
    Endorsed as follows:—
    For value received, I assign the within note to the First National Bank of Clarion, and guarantee the payment of same at maturity. “
    (Signed) H. Wetter.
    After suit brought, the plaintiff entered a rule of reference under the compulsory arbitration law, and on the 12th of October 1878, obtained an award against the defendant for $2153.90, the amount of the note and interest. On' the 24th of October 1878, the defendant appealed from the award. On the 5th of November 1878, the defendant pleaded non-assumpsit, payment with leave, &c. It was admitted by plaintiff’s attorneys, that on the 5th of November 1878, the plea in this case, as it appears of record, was written by them down to the words “non-assumpsit,” and handed to defendant’s attorneys for the purpose of obtaining a plea in the case as it appears upon the record. The defendant’s attorney added all the words after the word “ pleads,” and the same day filed same in the case. On the 14th of November 1878, the plaintiff moved to strike off and quash the appeal, because the right of appeal was waived by defendant, as appeared by the copy of the note filed with the declaration under rule of court, On this motion a rule to show cause was granted, and afterwards, on the 10th of April 1879, discharged.
    At the trial, before Jenks, P. J., it appeared that the note in suit was the renewal of a note given by Kiley to Wetter for the accommodation of the latter,5 with out any consideration whatever, and that Wetter had expressly agreed that he would take care of the note. Kiley stated the transaction in the following language : “ Major Wetter came along and said he had bought the Sligo tract, was using a great deal of morrey, and would like to borrow my note, and I loaned him the note. He said I would not hear of it again, and that when the note came due he would attend to it.”
    The plaintiff’s third point, which the court refused, was as follows :—
    “ That if the defendant, Kiley, executed and delivered to H. Wetter the note on which suit is brought for the express purpose of enabling Wetter to negotiate and obtain the money on it from any one to whom Wetter could negotiate it, and Wetter, in pursuance of such express understanding, negotiated it to the bank for full value, the bank is entitled to recover the amount of the note and interest.”
    The defendant’s fourth point, which the court affirmed, was as follow's:—
    “ Such want of consideration as mentioned in third point would fatally affect the note in the hands of the equitable transferree, the First National Bank of Clarion; and if the said bank, before it expended its money in the purchase of said note, was not induced to take it by the declaration of Kiley that it was a valid instrument and would be paid at maturity, there can be no recovery in this case.”
    In the general charge, the court, inter alia, instructed the jury :
    “ You will remember that the equity lies chiefly in this agreement that Wetter would see that the note was paid or protected. The bank would take the first note subject to that agreement, and the defendant could plead it against Wetter, and could plead it against the bank.”
    Verdict for defendant, and after judgment plaintiff took this writ and alleged that the court erred in discharging the rule to show cause why the appeal should not be quashed, in the answers to the above points, and in the foregoing portion of the charge.

      Wilson & Jenks, for plaintiff in error.
    The mere fact that plaintiff’s counsel requested defendant’s counsel to plead should not prejudice plaintiff’s rights. The waiver should have been enforced and the appeal stricken off: Wynn v. Bellas, 10 Casey 160; Dawson v. Condy, 7 S. & R. 366; Case v. Dunmore, 11 Harris 93; Lauck’s Appeal, 12 Harris 426; Bowman v. Smiley, 7 Casey 225.
    One who lends his promissory note for the accommodation of another, lends his credit without any restriction as to the manner of its use, and a holder for value may recover, though he knew at the time he purchased that it was an accommodation-note and that there was no consideration therefor between the maker and the payee: Moore v. Baird, 6 Casey 138; White v. Hopkins, 3 W. & S. 99-101; Lewis v. Hanchman, 2 Barr 417 ; Walker v. Bank of Montgomery, 12 S. & R. 382; Rogers v. Playford, 2 Jones 181. The same doctrine as applied to a specialty is discussed and recognised in the case of Taylor v. Gitt, 10 Barr 428-431.
    This note, though not negotiable, is governed by the same rule. The credit given to the payee is sufficient consideration to the maker, and the maker having put the note in the power of the payee to raise money thereon, he is estopped from defending against one who has taken it bona fide in pursuance of this original purpose. With an agreement between the original parties inconsistent with the purport or legal effect of the instrument, the assignee has nothing to do: Davis v. Barr, 9 S. & R. 137; Hind v. Holdship, 2 Watts 104; Harris v. Page, 3 Whart. 275; Louden v. Tiffany, 5 W. & S. 367; Diamond v. Lawrence Co., 1 Wright 353; Thomas v. Commissioners, 8 Casey 218.

      Knox & Maffett, for defendant in error.
    One cannot object to an appeal after he has done an act admitting its validity: Heckert’s Appeal, 13 S. & R. 105; Wilson v. Keely, 2 W. N. C. 482; D. & H. Canal Co. v. Loftus, 21 P. F. Smith 420; Brown v. Jones, 7 Watts 433. The note in suit, containing a five per cent, clause, is non-negotiable: Woods v. North et al., 3 Norris 407. The assignee of a chose in action, not negotiable, takes it subject to all the defences to which it was subject in the hands of the assignor: Rider v. Johnson, 8 Harris 190 ; Miller & Reist v. Kreiter, use of Bomberger, 26 P. F. Smith 78 ; 1 Daniel on Negotiable Inst. 553-4-5; Bowers v. Hastings et al., 12 Casey 235; Edgar v. Klein, 6 Barr 327; Weaver v. McCorkle, 14 S. & R. 304; Weaver v. Lynch, 1 Casey 449 ; Ashton’s Appeal, 23 P. E. Smith 153 ; Buchanan v. Wurtz, 5 Watts 151; Keagy et al. v. Commonwealth, 7 Wright 70; Jaques v. Montgomery, 5 Am. R.
    November 8th 1880.
   Mr. Justice Gordon

delivered the opinion of the court,

We cannot say that the court below did wrong in refusing to quash the appeal from the award of arbitrators. It is true, the defendant’s agreement, waiving the right of appeal, might have been enforced had an attempt in that direction been made at the proper time. But it is no less true, that the payee of the note, in which that agreement is found, might waive, by his laches, his right to enforce it. In the case of the Delaware and Hudson Canal Co. v. Loftus, 21 P. F. Smith 418, it was held, that acquiescence in an appeal may be inferred from an appearance by the plaintiff, acceptance of pleas and a delay in moving to quash until the third term. Substantially the same doctrine will be found in Heckert’s Appeal, 13 S. & R. 104. In Steck v. King, 3 Barr 211, a motion to quash an appeal was held to be too late after the plaintiff had filed his narr.; and in Brown v. Jones, 7 Watts 433, it was said, per curiam, that after a plea, the motion to quash is too late.

In the case under consideration, as to time, the plaintiff was sufficiently prompt, but some time before the motion to quash the attorneys of the plaintiff made application to the attorneys of the defendant, and obtained from them a plea, which was duly filed. This was a direct and unqualified recognition of the defendant’s right to be in court as an appellant, and was, certainly, as effectual as a waiver of the right to quash, as any mere delay could have been, and yet, as we have seen, delay of itself will bar such right. A rule such as this may be regarded as over strict and technical, but it has its foundation in the fact that courts are properly jealous of anything which tends to prevent trials by jury, and, hence, will take advantage of even mere technicalities in order to favor that right.

The remaining assignments of error may be discussed together, as they involve a single principle — the right of the maker of nonnegotiable paper to defeat a recovery on it, in the hands of a third party to whom it has been assigned, for a valuable consideration, by setting up the want of consideration or any equitable condition to which it was subject when in the hands of the payee. The note in suit was the third renewal of an original, executed by the defendant to Wetter, the legal plaintiff, on the 19th of May 1877. Admittedly, it was made for the accommodation of the plaintiff— the parties, at the time, no doubt thinking it was negotiable, since it was intended that Wetter should have it discounted for his own purposes. Wetter, at the time he received the note, agreed, which indeed, would follow as of course, that he would, in commercial parlance, take care of this paper.

Under these circumstances the court was asked to say to the jury, that if Kiley executed and delivered this note to Wetter for the express purpose of enabling him to negotiate and obtain money on it, the bank, to which it was passed, could recover. The court refused so to charge, and in this, we think, they did right. In the first place, the note was not negotiable; it could pass only by assignment, and that assignment would convey to the assignee only that which the payee was entitled to receive from the maker after settlement of all accounts and equities between them. Paper of this kind falls into the same class with bonds and other specialties, of which it is said, by Chief Justice Shippen, in a note to the case of Rousset v. The Ins. Co., 1 Binn. 433, if the obligor had, before the assignment, which was made under the terms of the Act of 28th of May 1715, any just demand against the obligee, which he might have set up against him had there been no assignment, he might, in like manner, set it off against the assignee, who takes the bond subject to all the equities existing between the parties before the assignment. This rule, he says, is, however, subject to one exception. “ If the assignee, when he is about to take the assignment, calls upon the obligor to know whether the whole money is due, and the obligor tells him it is a good bond, but is entirely silent as to any claim of his against the bond, he can never after-wards open his mouth against the demand of the assignee.”

So, in Rider v. Johnson, 8 Harris 190, it was held that the assignee of a chose in action, not negotiable, takes it subject to all the defences to which it was subject in the hands of the assignor, including set off of cross demands, legal or equitable. We also find it ruled in Weaver v. Lynch, 1 Casey 449, that in order to estop tho obligor of an assigned bond from setting up a defence, the assignee must show that he was induced to take the bond specially through the declarations of the obligor that he had no defence. Now, without multiplying authorities upon points about which there ought to be no dispute, we are at a loss to see how Kiley estopped himself from setting up a defence which was certainly good against Wetter. No declarations of his to the bank officers induced them to take this paper; on the other hand, if we consult the assignment, it was taken on the guaranty of Wetter that he would pay it when due. Let it be, then, that Kiley gave this note to Wetter for the express purpose of enabling Wetter to raise money upon it. This was, after all, but a private arrangement between the parties which was never communicated to the officers of the bank; they never acted upon any such understanding ; how then can they set up to estop the defendant, a transaction to which their corporation was not a party, and of which they, when they took the assignment, knew nothing. Besides this, the duty of inquiry rested upon them, and had they made that inquiry, they would have discovered just what was found by the jury, that not only was the note drawn to Wetter in order that he might raise, money on it, but that he, at the same time, had agreed to pay it when it fell due. Had the bank known this fact when it took the assignment, no one, we apprehend, will pretend to say that it could, nevertheless, hold Kiley, and yet, on all authority, it was its duty, through inquiry of Kiley, to have known this very fact, and if it did not have this knowledge, the fault was with its own officers and no one else.

Judgment affirmed.

Chief Justice Sharswood and Justice Paxson, dissented.


author: Mr. Justice Mercur

text:
    Walbridge’s Appeal.
    Where one purchases a property at sheriff’s sale under a levari facias ' issued on a judgment obtained on a mechanic’s lien, filed under the provisions of the Act of June 16 th 1836, Pamph. L. 696, he may institute the summary proceedings provided by the Act of June 16th 1836, Pamph. L. 780, and its supplement of May 24th 1878, and thei’eby recover possession of the premises.
    October 18th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Erie county: Of October and November Term 1880, No. 208. In Equity.
    Bill in equity filed by Mary L. Spaulding against C. H. Walbridge.
    The bill, in substance, set forth that the complainant was the owner of a house and lot in the city of Erie; that defendant claimed title to said property by virtue of a sale upon a levari facias on a mechanic’s lien; that defendant had commenced proceedings under the provisions of the Act of June 16th 1836, Pamph. L. 780, and its supplement of May 24th 1878, Pamph. L. 134, before an alderman and a jury of six, to recover possession of said premises ; and that said jury had rendered a verdict awarding possession to the defendant; that complainant is advised that the proceedings were void; that the Act of June 16th 1836, Pamph. L. 696, upon which the proceedings were based, confers no jurisdiction in such a case; that there is no appeal granted to the aggrieved party, and a certiorari will not operate as a supersedeas ; that he threatens and is about to have execution on said verdict, and dispossess complainant, all of which would work her great and irreparable injury. She, therefore, prayed for an injunction to restrain the defendant from having execution.

      The court granted a preliminary injunction as prayed for, and the defendant then filed an answer admitting the facts, but alleging that the defendant had properly proceeded under the provisions of the Act of 1836, and that he was entitled to possession of the premises.
    The court, Galbraith, P. J., heard the case on bill and answer, and granted the injunction, in an opinion, inter alia, saying:
    “ The case presents but a single question, namely, the right of Mr. Walbridge to the proceedings he has taken under the Acts of 1836 and 1878, and this must depend upon the language of the Act of 1836. The section begins in these words : ‘ Whenever any lands or tenements shall be sold by virtue of any execution as aforesaid, the purchaser of such estate may, after the acknowledgment of a deed thereof to him by the sheriff, give notice to the defendant, &c.’ This can, of course, have reference to, and cover only such writs of execution as have been named in the act. The tribunal provided for being unknown to the common law, and the power conferred being in derogation of the cpmmon law, the act cannot be made to cover by mere intendment that which is not plainly mentioned or evidently intended. Now the writ of levari facias or mechanic’s lien judgment is not named in the act. In fact, the law providing for such process was not then in existence. The term ‘ aforesaid,’ therefore, cannot mean such execution as is here in question. It follows that the Act of 1836 and the supplement of 1878, do not apply, and the proceedings had before a justice of the peace and the jury of six were, consequently, wholly irregular and unauthorized by law.”
    This action was assigned for error by defendant who took this appeal.

      Benson & Brainerd and Clark Olds, for appellant.
    The summary proceedings to obtain possession of premises sold by the sheriff by virtue “of any execution,” were first conferred by the Act of March 14th 1814, 6 Sm. Laws, 132. The 105th section of the Act of June 16th 1836, relating to executions, is an amendment to this act, and is the one under consideration in this case. The language is almost identical with the original act, the only important change being the addition or insertion of the words “ as aforesaid,” after the words “any execution,” and the question before us is, how are these words “as aforesaid” to be construed? The court below has construed them to be words of limitation, referring to the executions enumerated in the act relating to executions, and not to the original act of which it is a supplement. This we claim to be error. We contend that the phrase includes a sale on a levari facias sur mechanic’s lien.
    The Act of 1836 is a remedial one, and should be liberally construed : Pentland v. Kelly, 6 W. & S. 483; Oakland Railroad Co. v. Kernan, 6 P. F. Smith 202.

      Souther, E. L. Whittelsey and Frank Gunnison, for appellee.
    The tribunal provided in the act is unknown to the common law, and the power conferred being in derogation thereof, it is incumbent upon the appellant to show clearly the right to the remedy claimed. The act must be construed strictly, and no jurisdiction can be exercised by such a tribunal by mere inference. It must be conferred by the express language of the act creating it, positively, clearly and indubitably: Camp v. Wood, 10 Watts 118; Walker v. Turner, 6 Curtis 178; Griffith v. Frazier, 1 Id. 1; Alberty v. Dawson, 1 Binn. 105; Graver v. Fehr, 8 Norris 460. The right of a purchaser at sheriff’s sale to dispossess the party in possession is not a common-law right. It is a creature of the statute, not unlimited, not of course, but given only to those named in the statute, and who comply strictly with its terms. This act does not mention such an execution as a writ of levari facias upon a judgment obtained in case of a scire facias upon a mechanic’s lien. And the Act of June 16th 1836, ip relation to mechanic’s liens, 2 Purd. Dig. 1025, Pamph. L. 696, giving a remedy by writ of scire facias and levari facias, under which the sale in this case was made, did not take effect until September 1st 1836, as will be seen by reference to said act.
    The mechanic’s- lien law was unknown to the common law, and cannot be extended beyond its express terms: McCoy’s Appeal, 1 Wright 125. The words “as aforesaid” clearly refer to the prior sections of the same act: Oakland Railroad Co. v. Kernan, supra. The language of the 44th section of the act is, “Whenever real estate shall be taken in execution as aforesaid by any sheriff, it shall be his duty to summon an inquest,” &c. And it has been held that a sale without an inquisition and condemnation according to the provisions of the act is absolutely void: Baird v. Lent, 8 Watts 422 ; Gardner v. Sisk, 4 P. F. Smith 506. Yet no inquisition is ever held in any case of a levari facias on a mechanic’s lien, for the reason that there is no authority in the act for so doing: Schmidt v. Stetler, 21 Pitts. L. J. 34. But there is the very same authority for an inquest by a sheriff and a jury to ascertain if the rent, issues and profits of the land would- be sufficient to satisfy the judgment within seven years, &c., as there is for two justices and a jury to deliver possession to a purchaser at sheriff’s sale. An order of sale awarded in an action of partition is not within the 105th section of the Act of June 16th 1876 : Fitzgibbons v. Keller, S. G. January 31st 1852, cited in 1 Bright. Purd. Dig. 660, note d. The 2d section of the Act of April 9th 1849, Pamph. L. 533, in relation to exemption of property from levy and sale upon execution, provides “ That the sheriff or other officer charged with the execution of any warrant issued by competent authority for levying upon and selling the property, either real or personal, of any debtor shall,” &c. Yet it has been held that the defendant, in a writ of levari facias issued on judgment upon a mechanic’s lien, is not entitled to the benefit of it: Lauck’s Appeal, 12 Harris 426 ; Building Association v. O’Conner, 3 Phila. 453. Nor does it apply in case of a sale on a levari facias on a mortgage : Morgan v. Noud, 5 Clark 93 ; Gangwere’s Appeal, 12 Casey 466 ; Craig v. Craig, 1 W. N. C. 613.
    November 15th 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

This case presents the question whether a purchaser under a levari facias on a judgment obtained on a mechanic’s lien may obtain possession in like manner as if he had purchased at a sale made on a venditioni exponas ? The necessity of giving a purchaser at sheriff’s sale some more expeditious method of getting possession than by action of ejectment, was recognised at an early day. Hence, the preamble to the Act of 6th April 1802, 3 Sm. Laws 530, declares, “ Whereas, great inconveniences have been experienced from the unjust detention of lands and tenements sold by sheriffs under executions from the several courts of this Commonwealth, the purchasers whereof have been obliged to bring ejectments and to subject themselves to all the delays and expenses incident to law proceedings, to recover the possession from the person as whose property the same was originally sold, the desperate circumstances of whom usually preclude the possibility of obtaining damages or any other compensation whatever for such unjust detention; for remedy whereof,” it proceeded to enact “ that where any lands or tenements shall hereafter be sold by the sheriff or coroner of any county, by virtue of any execution issued out of any court of recórd of this Commonwealth, it shall be lawful for the purchaser thereof” to give notice to the defendant as whose property the same was sold or to any one in possession under him of said sale, and to require the possession thereof to be delivered to the purchaser within three months after the date of such notice. In case of neglect or refusal so to do, the act proceeded to declare, that complaint might be made to two justices of the peace, who should summon a jury and the case might proceed to judgment and a writ of possession. Thus this act applied to every purchase of real estate made at sheriff’s sale on every execution that might be issued out of any court of record. It made no distinction whether the judgment was on a mortgage, mechanic’s lien or other claim. It wholly disregarded the form of the execution on which the sale might be made.

On the 1st April 1803, an act was passed giving a mechanic’s lien for labor and materials in erecting any building “ within the city of Philadelphia, the district of Southwark and the township of the Northern Liberties.” This was repealed by the Act of 17th March 1806, 4 Sm. Laws 300, which gave a preferred lien for work done and materials furnished in the construction of any building within the city and county of Philadelphia, provided an action for the recovery thereof was brought or claim therefor filed within six months after the same was done or furnished. A purchaser at sheriff’s sale under this act undoubtedly had all the remedies whereby to obtain possession given by the Act of 6th April 1802.

It is alleged that inasmuch as the Act of 16th June 1836, Pamph. L. 695, prescribes that execution on judgments recovered on mechanic’s liens shall be by levari facias, and the act of same date, page 761, relating to executions, does not specifically refer to that form of execution, its language is insufficient to give to one buying at a sale made on a levari facias the remedy given by section 105 of the act. That section declares, Purd. Dig. 660, Pamph. L. 134: “ Whenever any lands or tenements shall be sold by virtue of any execution as aforesaid, the purchaser of such estate may, after the acknowledgment of a deed therefor to him by the sheriff, give notice to the defendant as whose property the same shall have been sold,” requiring him to surrender the possession thereof within three months from the date of such notice. On failure to comply, the act authorizes application to be made to two justices of the peace or aldermen, who shall proceed in the manner therein directed.

It is claimed the language “ any execution as aforesaid ” applies only to a writ of fieri facias or venditioni exponas. It is true, much of the act does relate to executions of those forms, yet it has a much wider scope. The words “ as aforesaid ” appear in many sections where the manifest intention is to apply to sheriff’s sales on all forms of execution. The following may be cited as illustrations : in case of dispute concerning the distribution of the money arising in all cases of sale on execution as aforesaid, the act gives the court power to hear and determine the same; if any fact connected with such distribution be in dispute, the court may direct an issue to try the same, and the judgment thereon is subject to writ of error; any one aggrieved by the decree of the court in case of distribution made without the intervention of a jury, may appeal therefrom to this court; whenever the proceeds of a sale upon execution as aforesaid shall be more than sufficient to satisfy the liens on the property sold, the officer making such sale may pay over the surplus to the debtor; if the officer by whom any real estate shall have been taken in execution shall die, resign, be removed from office or his term of office shall expire before sale thereof, or if, after sale and before any deed shall have been executed and acknowledged by him, the sale may be made and the deed be executed and acknowledged by a succeeding officer; it also prescribes the manner and length of time real estate shall be advertised before a sale thereof; it directs as to the manner in which, and the time when, the deed shall be acknowledged; it further authorizes the purchaser of any real estate at a sheriff’s sale ” to cause the judgment and all the process issued thereon to be fully set forth in the deed to be executed to him therefor.

In regard to all steps covered by these provisions, the act of the same date relating to mechanic’s liens is silent. It proceeds no further than to direct the form of writ on which sale shall be made. No words therein indicate an intention to withhold from a purchaser at sheriff’s sale the summary method of acquiring possession given in case of sale on other judgments. This act is the basis of all existing laws relating to mechanic’s liens. None of the many supplements thereto gives any substitute for the provisions to which we have referred nor takes them away. To ascertain what action shall be taken after execution issued in regard to advertising, executing and acknowledging deeds and the remedy given to a purchaser, we must look elsewhere. Section 105 of the other act of the same date, entitled, “ An act relating to executions,” furnishes the information and gives the remedy. The two acts must be construed together. They so far deal with one general subject as to be in fari materia. Having been passed on the same day, the reason for so considering them is strengthened. What is wanting in one is supplied by the other in so far as they are not in conflict.

No authority is cited which holds, since the Acts of 16th June 1836, that a purchaser at a sale made on a levari facias, whether issued on a judgment recovered on a mechanic’s lien or on judgment obtained on a mortgage, was denied any remedy to obtain possession given to a purchaser on a writ of venditioni exponas. In Pentland v. Kelly, 6 W. & S. 483, it was held that a levari facias on a judgment in case of a mechanic’s lien was a substitute for a fi. fa. inquisition and venditioni, and, therefore, was an execution within the provisions of the 6th section of the Act of 13th October 1840, relating to the appointment of a sequestrator. We think the true intent and just construction of section 105 applies it to a purchaser at sheriff’s sale under a levari facias. This construction is best calculated to effectuate the intention of the legislature and give just symmetry to the acts defining the rights of purchasers at sheriffs’ sales.

The Act of 24th May 1878, gives to one justice of the peace or alderman all the power which the Act of 1836 gave to two. It is not necessary to consider the other question in the case. The learned judge erred in granting and in continuing the injunction.

Decree reversed and bill dismissed at the costs of the appellee.


author: Per Curiam.

text:
    Elsey et al. versus McDaniel.
    1. Where a married woman is deserted by her husband she may, by virtue of the Act of May 4th 1855, execute a deed for her property without the joinder of her husband, and without having previously obtained a decree declaiming her a feme solo trader under the 4th section of said act.
    2. Black v. Tricker, 9 P. B. Smith 13, followed.
    October 18th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson,-Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of JSrie county: Of October and November Term 1880, No. 195.
    Ejectment by the heirs of Orvaline Jane Millar against Daniel J. McDaniel, to recover a lot of ground in the city of Erie.
    At the trial, it appeared that Orvaline Jane Millar. in 1839, when unmarried, became seised of the lot in dispute as part of her distributive share of her father’s estate. In 1840, she married John H. Millar, and in 1852, lie deserted his wife and family without making provision for their support, and was absent ten years. In 1864 Orvaline died, and in 1877 her husband, Millar, died. On December 17th 1855, without the joinder of her husband, Orvaline had sold the lot in question to McDaniel and executed to him a deed therefor.
    The following were the 4th and 5th points of the plaintiffs, with the answers of the court thereto :—
    4. The deed of a married woman in which the husband does not join is void, and conveys no title to the purchaser.
    Ans. “ This point is affirmed as the general rule of law. The Act of 1855, however, provides for an exception to this recognised .general rule, and the question for the decision of the jury in this case is, whether, under the evidence here submitted, the deed here relied upon by defendant conveyed title or not.”
    5. The Act of May 4th 1855, does not make such a deed valid unless the married woman has first been decreed a feme sole trader, under the provisions of the fourth section of said act.
    Ans. “ This point is refused. If, in point of fact the grantor, Orvaline Jane Millar, was, at the time of the making of the deed by her to the defendant, within the terms of the second section of the Act of May 4th 1855; that is to say, if the- jury believe from the evidence that at that time Millar had' neglected or refused to provide for his -wife, or had deserted her, such neglect or refusal to provide for her, or such desertion having continued for some years before the execution of the deed in question, then the decree was not necessary to give such deed validity.”
    In the general charge, the court; Galbraith, P. J., inter alia, said:
    “ Before the passage of the Act of May 4th 1855, the deed of a married woman, without the joinder of the husband, was absolutely void. But by the provisions of that act the wife, deserted by the husband, or whose husband neglects or refuses to provide for her, may sell her land and make a valid conveyance-without the joinder of her husband. By the fourth section of that act it is provided that creditors, purchasers, and others may with certainty and safety transact business with a married woman under, the circumstances aforesaid; she may, on application to the Court of Common Pleas of the proper county be decreed á feme sole trader, and a certificate granted to her of such fact, and such certificate, it was provided, should be ‘conclusive evidence of her authority.’ [This decree, as we construe the act, was not an indispensable preliminary to her acting for herself in the disposition of her property. It merely leaves the burden of proof upon the party desiring under her deed to show affirmatively the existence of the facts necessary to bring her within the terms of the law. In the present case, therefore, it is for the jury to find whether the defendant has established affirmatively, as against the proof given by plaintiff, that at the date of the deed here in question, Mrs. Millar had been and then was deserted by her husband, or that he had neglected or refused, and was at that time still neglecting or refusing to provide for her.”]
    November 1st 1880,
    Verdict'for defendant. Plaintiff took this writ and alleged that the court erred in the answers to the above points and in the portion of the charge embraced in brackets.

      C. B. Curtis and L. S. Norton, for plaintiffs in error.
    A decree under the 4th section of the Act of 1855 is necessary before a married woman can convey her property by a separate deed. Black v. Tricker, 9 P. F. Smith 13, only decides that without such a decree, a married woman, when deserted by her husband, may, with her separate earnings, purchase real estate without liability to her husband’s creditors. This is very different from holding that a decree is necessary in order to make the deed of a married woman good.

      James Sill and S. E. Woodruff, for defendant in error.
    No decree is necessary to enable the wife to have the benefits of the act: Black v. Tricker, supra; Conley and Wife v. Bentley, 6 Norris 40. [See Buchanan v. Hazzard et ux., ante, p. 240.— Rep.]
   The judgment of the Supreme Court'was entered

Per Curiam.

We consider this case as authoritatively ruled by the judgment of this court in Black v. Tricker, 9 P. F. Smith 13. It was held in that case that under the Act of May 5th 1855, it is not necessary that there should be a decree that a wife is to be regarded as a feme sole trader to enable her to hold property under the circumstances mentioned in the act. The decree was provided for in order that creditors, purchasers and others may, with certainty and safety, transact business with a married woman. There was ample evidence-of desertion by the husband to justify the submission of the case to the jury.

Judgment affirmed.


author: Mr. Justice Green

text:
    Watterson versus Reynolds et al.
    It was provided in a lease of land that the lessee “ shall hold the same and enjoy and use all the rights and privileges of real ownership as in fee-simple” as long as he shall carry on a certain iron furnace, the lessee to pay the taxes and also a royalty to the lessor for every ton of iron ore quarried: Held, that under the terms of said lease the lessee had the right to quarry limestone on said premises for use in said furnace, in the manufacture of iron.
    October 18th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1880, No. 241.
    Assumpsit by James Watterson against Alexander Reynolds and John Moorehead, to recover the value of certain limestone quarried and taken away by defendants from a tract of land leased to them by plaintiff with a view to the manufacture of pig iron on said land.
    At the trial the plaintiff gave in evidence the lease referred to above, which contained, in substance, the following terms':

      “ I, James Watterson, * * * for and in consideration of one dollar, to me in hand paid by Thomas McCulloch, and for other valuable consideration hereafter mentioned, do hereby agree and engage for myself, my heirs or assigns, to lease to the said McCulloch, his heirs or assigns, a certain piece of ground situate on (here follows description), containing 46 acres; * * * said- McCulloch to take possession of the above-described tract of land as soon as he commences to build a furnace at the mouth of Redbank creek, and hold the same, and enjoy and use all the rights and privileges of real ownership as in fee simple, so long as said McCulloch, his heirs or assigns, may carry on a furnace at the mouth of Redbank creek, in said township of Madison; except that said McCulloch is to pay the taxes on said tract of land, and to pay me twenty cents per ton for each ton of twenty-two hundred and forty pounds of ore he may dig and haul away from said tract of land. It is understood and agreed by the parties to this lease, that the furnace is to be considered as being carried on until it is finally and formally abandoned as a furnace property, and that any stoppage of the furnace for a time is not to be considered as an abandonment or as not carrying the furnace on. Said McCulloch further agrees to commenee digging the ore on the within-described piece of ground within one year from this date, and to prosecute the digging of the same with due diligence.”
    November 8th 1880.
    Plaintiff also gave in evidence an assignment of said lease to defendants. He then offered to show that the defendants took 50,000 tons of limestone from the leased land, and also to show its value. The defendants objected to this evidence as irrelevant and incompetent, and the court sustained the objection.
    The plaintiff submitted, inter alia, the following points, to which are appended the answers of the court, Jenks, P. J.:
    1. That the words in the contract of June 27th 1869, do not convey an interest in the soil, either by express grant or by implication, and the right to “ use and enjoy,” refers only to the lease and the possession.
    Ans. “¥e think the lease gives the defendants the right to use every part of the realty necessary and convenient for the profitable and efficient use of the furnace. We, therefore, decline to answer this point as requested.”
    3. There is no grant in said instrument to take or carry away any of the soil but the ore ; and not being conveyed away, the right of soil (other than the ore) remains in the lessor, and McCulloch, and those claiming under him, cannot take limestone; and the plaintiff has the right to recover for all the limestone taken off the premises.
    Ans. “ We decline to answer this point as requested. We think the defendants had a right to use the limestone if it was necessary for the profitable and efficient use of the furnace.”
    Verdict for defendants, and after judgment thereon plaintiff took this writ and alleged, inter alia, that the court erred in refusing the above evidence, and in their answers to the above points.

      jKnox Moffett and James Campbell, for plaintiff in error.

      W. L. Corbett and B. J. Reid Son, for defendants in error.
   Mr. Justice Green

delivered the opinion of the court,

We are of opinion that the court below gave a correct construction to the lease between Watterson and McCulloch, and the judgment must therefore be affirmed. The lease is somewhat peculiar both in its character and its phraseology, but we do not think it' difficult of interpretation. In terms, it is a grant of a tract of land, by description, containing forty-six acres, more or less, the grantee to take possession “as soon as he commences to build a furnace at the mouth of Redbank creek, and hold the same, and enjoy and use all the rights and privileges of real ownership as in fee simple so long as said McCulloch, his heirs or assigns, may carry on a furnace at the mouth of Redbank creek, in said township of Madison ; except that said McCulloch is to pay the taxes on said tract of land, and to pay me twenty cents per ton for each ton of twenty-two hundred and forty pounds of ore he may dig and haul away .from said tract of land.” No right to dig or take away either limestone or iron ore is given in express words. The right to take ore is assumed to exist in the remainder of the instrument, but the only language previously used which can suffice to confer that right is equally efficacious to confer also the right to take limestone. The land was manifestly leased for the very purpose of being used for the erection and maintenance of a furnace. The lessee can only take possession when he commences to build a furnace; he can hold it so long as he continues to carry on a furnace, and the same privilege is extended to his heirs and assigns indefinitely, and it is to be terminated when the property is formally abandoned as a furnace property. The consideration to be paid by the lessee, for whatever rights and privileges are conferred by the lease is, the erection and continued maintenance of a furnace on the premises, the payment of the taxes on the land, and the payment of a royalty of twenty cents per ton on every ton of twenty-two hundred and forty pounds of ore dug and hauled away from the tract. These constitute the full equivalent for every right conferred by the lease. There is no obligation to pay for any limestone that may be taken. Does the right to take limestone exist ? If there are proper words giving the right it is no reply to argue against its existence that there is no provision to pay for it since it may be paid for in the other considerations to move from the lessee.

Now, the words are that the lessee is “ to hold the same (that is, the tract of land,) and enjoy and use all the rights and privileges of real ownership as in fee simple,” so long as he may carry on a furnace on the premises. These words are in the lease for some purpose. We have no right to overlook or reject them or to refuse them their plain natural meaning. It is certainly one of the “rights and privileges of real ownership as in fee simple ” to take limestone from land wherever it is found. Moreover, limestone is a necessary article to be used in the manufacture of pig iron, and it may well be intended that the parties who were contracting for the erection and maintenance of a furnace on the demised premises, had it in contemplation that limestone as well as iron ore should be taken and used in carrying on the furnace. We are of opinion that the words of the lease include the right to take limestone from the premises for use in the furnace, and as there was no obligation to pay for it other than in the manner already indicated, there could be no recovery for its value in the manner proposed in this action. The court below were right in excluding the testimony offered and in their answers to the plaintiff’s first and third points.

Judgment affirmed.

Justice Gordon dissented.


author: Mr. Justice Sterrett

text:
    Bowers versus Bowers.
    1. A contract for standing timber on a tract of land, to be taken off at the discretion of the purchaser as to time, is an interest in land, within the meaning of the Statute of Frauds, the transmission of which must be in writing.
    2. To take a case of parol sale out of the statute, the terms of the contract, the land which forms its subject-matter, the nature and extent of the interest to be acquired, the consideration to be paid, &c., must all be fully and satisfactorily shown.
    3. Exclusive possession taken and kept up in pursuance of'the contract is an indispensable ingredient in every case.
    October 18th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1880, No. 33.
    Replevin by Solomon Bowers against Jane Bowers and Henry Bowers, for certain timber cut and removed from a tract of land, &c.
    The facts set forth in the opinion of this court, together with the following points and answers of the court, sufficiently state the case.
    The plaintiff presented the following points which the court affirmed:
    1. That if John and Solomon Bowers as partners owned and used the standing timber on the whole tract, and the whole business of the partnership was the cutting and removing the timber, and in 1859 they dissolved partnership and divided the timber, being the assets of the firm, by a line run on the ground, and Solomon took all the timber north of the line as his share, and the timber replevined wras cut off Solomon’s part of the timber assigned to him on dissolution, the verdict of the jury should be for the plaintiff.
    2. That if the timber north of the line upon dissolution between Solomon and John Bowers, was to be removed by Solomon as fast as John should want to clear the land, the timber would be personal estate, and the Statute of Frauds, as between the parties and their representatives, would not affect any division made between them.
    The defendants submitted the following points, to which are appended the answers of the court:
    1. That timber growing upon land is a part of the freehold, and a parol contract for the sale thereof is subject to the Statute of Frauds and Perjuries.
    Ans. “ We answer this point in the affirmative.”
    2. The plaintiff claiming a right to the timber in this execution by virtue of an alleged parol contract with John Bowers, deceased, over twenty-five years since, is estopped from asserting any right to the same against his widow and heirs, the Statute of Frauds and Perjuries being a bar to the plaintiff’s recovery.

      Ans. “ If the plaintiff does claim timber by parol sale and not otherwise, under the circumstances mentioned in this point the conclusion stated would follow. For further answer we refer to the plaintiff’s first and second points and answers thereto.”
    3. If plaintiff actually made a parol contract with John Bowers, deceased, in his lifetime, for the standing timber, and paid him the full value thereof, the remedy was in the Orphans’ Court for the specific performance of contract. Not taking his legal course to establish his right he cannot do so in this action, and the verdict must be for the defendants.
    Ans. “ If the evidence shows there was no more than a parol sale of timber growing upon land there can be no recovery. For further answer referred to plaintiff’s^ first and second points and answers thereto.”
    4. The court is requested to charge the jury, In order to constitute a partnership it is necessary for plaintiffs to establish the terms of partnership. Loose declarations of a party are not sufficient.
    Ans. “ Mere loose declarations that there was a partnership would not be sufficient. We leave the question to the jury under all the evidence whether there was a partnership or not. Consider the whole testimony.!’
    5. If the jury believe that John Bowers was in possession of the whole lot with the timber previous to an alleged arrangement with Solomon, the arrangement, if true, was for an interest in land and within the Statute of Frauds and Perjuries, and must be in writing.
    Ans. “We cannot, without invading the province of the jury, determine what the arrangement was, whether it was simply a parol sale of the timber, or whether the rights of the plaintiff are founded on an arrangement made at the dissolution of a partnership.”
    Verdict for plaintiff, and after judgment thereon defendants took this writ and alleged that the court erred in the answers to the above points.

      C. L. Corbett, P. W. Jenks and A. L. Gordon, for plaintiffs in error.
    The terms of .the alleged partnership should have been reduced to writing if it was intended to pass any interest in the timber: Pattison’s Appeal, 11 P. F. Smith 294; Yeakle v. Jacobs, 9 Casey 376 ; Story on Partnership, p. 124; Hale v. Henrie, 2 Watts 143; Lancaster Bank v. Myley, 1 Harris 549; Ridgway, Budd & Comly’s Appeal, 3 Harris 181. If the timber is claimed under a parol contract of partnership, the terms thereof must be clearly set forth and proven, and not depend upon loose declarations : Soles v. Hickman, 8 Harris 182; Ferguson et al. v. Stoever, 9 Casey 413 ; Poorman v. Kilgore, 2 Casey 366.

      Jenks & Clark, for defendant in error.
    The facts in the case clearly established a partnership in the timber. If so, it became personalty. “ A share in a partnership, whether its property consists of land or not, must, as between the real and personal representatives of a deceased partner, be deemed to be personal and not real estate Lindley on Partnerships, pp. 566, 567 and 568, where many authorities are collected sustaining the principle. In Erwin’s Appeal, 3 Wright 535, it is ruled that the fact that the title is taken in the name of one of the firm constitutes the holder of the title a trustee for the firm and the title enures to the benefit of the firm, and Abbott’s Appeal, 14 Wright 234, sustains the same view.
    November 1st 1880.
   Mr. Justice Sterrett

delivered the opinion of the court,

It is conceded that the timber replevied by the plaintiff below was cut by the defendants upon part of the tract of land which, on June 5th 1858, was conveyed in fee by A. Caldwell et al. to John Bowers, now deceased, the husband of one of the defendants and the father of the other. It is also alleged and not denied that prior to that, in 1848, he had acquired the equitable title, in pursuance of which he took and continued to hold possession of the land. In the absence, therefore, of competent proof that the title of John Bowers either to the land thus acquired or the standing timber thereon passed out of him in his lifetime or out of his heirs since his decease, the legitimate inference is that it still remains in his widow and heirs. Hence, it was incumbent on the plaintiff below to show that he had acquired title either to the land upon which the timber was cut or to the timber itself. He did not pretend to claim the former or any part thereof, but his contention was that in the lifetime of his brother John, he acquired through and under him the title to the timber growing on that portion of the tract from which the defendants cut and removed the timber in dispute. In support of this he alleged and undertook to prove that from 1853 to 1859, he and his brother John were in partnership in the lumbering business; that by a verbal agreement or understanding between them, John acquired and held in his own name the timber standing on the tract of land above mentioned in trust for the firm and for the purpose of being used in the firm business ; that the timber was so used until 1859, when a dissolution took place and the partnership assets, including the timber that remained, were divided; and by another verbal agreement, the timber south of a certain line was allotted in severalty to John, and that north of the line to Solomon. Thus we have, as the basis of the plaintiff’s title to the timber in controversy, an alleged parol trust in John for the firm, and then a parol partition between the members of the firm; and the question presented by the assignments of error is, whether the testimony was such as to justify its submission to tbe jury or warrant them in finding that the title to the standing timber in question was in the plaintiff below. We are clearly of opinion that it was not, if any regard at all is to be paid to the Statute of Frauds and Perjuries. It is well setttled that a contract for standing timber on a tract of land, to be taken off at the discretion of the purchaser as to time, is an interest in land within the meaning of the Statute of Frauds, the transmission of which must be in writing: Pattison’s Appeal, 11 P. F. Smith 294. In that case, Chief Justice Thompson says, the announcement that the timber growing on a man’s land might be held by a contract in parol while the soil itself can only be legally transmitted by a written instrument, would strike even the unprofessional mind with surprise. The rigid requirements of the statute have, however, been so far relaxed by courts of equity that effect is sometimes given to verbal agreements for an estate or interest in land; but it is only in cases where the contract, in all its essential parts, is established by clear and unequivocal proof, and where it has been so far executed that it would be unjust and inequitable to rescind it, and this is done in order that the statute itself may not become an instrument of fraud: Hazlett v. Hazlett, 6 Watts 464; Woods v. Farmere, 10 Id. 195; Moore v. Small, 7 Harris 461; Hart v. Carroll, 4 Norris 508. These and many other cases that might be cited, sustain the general principle above stated and specify the ingredients that are necessary to take a case of parol sale out of the statute. The terms of the contract, the land which forms its subject-matter, the nature and extent of the interest to be acquired therein, the consideration to be paid, &c., must all be fully and satisfactorily shown. If the terms of the contract are uncertain or ambiguous, or not proved by clear and satisfactory evidence, &c., specific performance will not be enforced. A court of equity will not act upon conjecture or uncertain and inconclusive inferences, nor should a jury be permitted to do so. It is for the judge, sitting as chancellor, to determine in the first place whether the evidence adduced is sufficient to support an equity in the party claiming specific execution of the verbal contract, and then for the jury to say whether the testimony is true or not. The principal object of the statute was to prevent the divestiture of either legal or equitable titles by the introduction of loose and unreliable testimony. The part performance or execution necessary to take a contract thus established out of the statute, may consist in taking and continuing to hold exclusive possession under and in pursuance of the contract, together with payment of the consideration or making such improvements as cannot be compensated in damages. Exclusive possession taken and kept up in pursuance of the contract, is an indispensable ingredient in every case. Hence it is held there cannot be a valid parol sale of land by one tenant in common to his co-tenant in possession: Spencer and Newbold’s Appeal, 30 P. F. Smith 317.

Tested by the general principles thus briefly stated, the testimony before us falls very far short of being sufficient to prove title in the plaintiff below to the standing timber in question. Without referring to it in detail, it is sufficient to say that it is entirely too vague and uncertain to warrant its submission to the jury, or to justify them in finding any of the essential facts upon which the plaintiff below based his claim to the timber. It would be impossible to determine from it with any degree of certainty or satisfaction, what were the terms of the alleged partnership or how the timber was purchased, if purchased at all, for the firm, or that the plaintiff ever paid or agreed to pay anything for his alleged interest in it as a member of the firm. But assuming that it was purchased by John Bowers for the joint benefit of both, and that at the date of the alleged partition they were jointly in possession of the timber, it would be impossible, as we have seen, to base any * valid and exclusive claim to that portion of it north of the alleged line, for the reason that the essential element of exclusive possession taken and held in pursuance of the parol partition, is necessarily wanting: Spencer and Newbold’s Appeal, supra.

Viewing the whole testimony in the most favorable light for the plaintiff below, it was entirely too vague and uncertain to justify’ a recovery, and the learned judge should have so instructed the jury.

Judgment reversed.