author: Chief Justice Sharswood

text:
    Reading et al. versus Hopson.
    At the time a mortgage was recorded, there was no prior lien against the-premises ; subsequently, however, a mechanic’s claim was filed, and it was alleged that the building was commenced prior to the mortgage and that the lien of the claim antedated the mortgage by reason thereof. The purchaser of the premises at sheriff’s sale offered parol evidence of this fact, so as to show that the lien of the mortgage was divested. Held, that the court properly rejected this evidence; that as the bidder at the sheriff’s sale is not bound to look beyond the record, neither has he any right to affect his relation to others by any such evidence, and that the date of the filing of the lien was conclusive as to all parties.
    June 5th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 163.
    Ejectment by George Hopson against Benjamin L. Foster, Symmes H. Reading, James H. Gulick and James H. Gulick, Jr., for a factory and lot of ground in the city of Williamsport.
    The Williamsport Fork Factory was sold by the sheriff of Lycoming county, December 1st 1870, by virtue of sundry writs of vend. ex. The property was encumbered by the lien of a mortgage, held by George Hopson for $8000, which was entered of record on the 27th day of January 1868, and, so far as shown by the record, it was the first lien upon the premises. On the 28th of February 1868, a mechanic’s lien was entered by Potter & Co. The claim filed was for certain work and materials, such as is usually done at a machine shop, which were alleged to have been done and furnished within six months “last past,” for and about the erection and construction of said fork factory building. Upon this claim a judgment was entered, for want of an affidavit of defence, on September 7th 1870, for $562.33.
    When the sheriff was offering the property for sale, on sundry writs of vend, ex., which had been issued upon judgments entered after the mortgage, the question arose whether the sheriff’s salé would divest the lien thereof.. There was nothing upon the record to show that the mechanic’s lien related hack to a period prior tq the date of the judgment obtained thereon. The bill of particulars alleged that the work was done from the 17th of May to the 4th of September 1867; but it nowhere appeared when the building was commenced. The mortgage of Hopson was entered of record. prior to the entry of any other lien, and unless the claim filed by Potter & Cp. related back to a time earlier than January 27th 1868, the lien of the mortgage at the time of the sheriff’s sale was “ prior to all other liens,” and was not divested by the sale.
    Whilst the counsel of Hopson were of opinion that the sheriff’s sale would not divest the lien of the mortgage, yet, for greater caution, it was thought advisable to have the sale made, with the concurrence of all parties in interest, expressly subject to the mortgage. A notice to that effect was prepared and read by the sheriff.
    . The property was knocked down to Benjamin L. Foster, for $7001. Thé plaintiff alleged that Foster fully understood that there was an arrangement between all the parties in interest that the property was to be sold subject to the Hopson mortgage; and that Foster bought on this condition.
    There was no recital in the sheriff’s deed to Foster which showed the property was sold subject to the mortgage. Within a week after the sale Foster sold to- Symmes H. Reading. The sheriff made return to the court that he had sold the property, subject to the mortgage, “ as per notice hereto attached by H. C. Parsons, attorney for George Hopson.” The proceeds of the sale were paid into court, and an auditor appointed to make distribution thereof.
    There was no evidence produced before the auditor touching the mechanic’s lien of Potter & Co., except what appeared of record; nothing to show when the building was commenced, .nof any other evidence showing that their lien antedated the judgment, unless the mere filing of the claim gave them a lien from the time when it was filed, viz., the 28th of February 1868, more than one month after the mortgage was recorded.
    The auditor distributed the fund to the liens entered subsequently to the mortgage, and reported that the mortgage was not entitled to any of the money. The auditor’s report when filed was excepted to by Symmes H. Reading, in whom the title to the fork factory was then vested by deed from Benjamin L. Foster and wife.
    The exceptions were overruled and the report confirmed.
    Judgment having been recovered upon Mr. Hopson’s mortgage, a writ of levari facias was issued thereon, and the property offered for sale by the sheriff. Notice having been given by James H. Gulick, Jr., to whom the property had been conveyed by Reading, of his claim to the property under the previous sheriff’s sale, Hopson bid in the property on his own writ, and the sheriff made a deed to him on the 30th of August 1871. On the 15th of November 1871 he brought this suit.
    The plaintiff gave in evidence the mortgage, and the judgment and sale thereon, and after showing the writ rested.
    The defendants then gave in evidence the several judgments. under which the first sheriff’s sale was made, and the proceedings thereon, resulting in a condemnation and sale of the property. All of these judgments were subsequent to the mortgage of the plaintiff. The return made upon each of the writs of vend. ex. contained the statement that the sale was made subject to the mortgage. This part of the return was read under protest. After showing the sheriff’s deed and subsequent conveyances, they gave in evidence a list of liens against the company. The only lien alleged to be prior to the mortgage was that of Potter & Co. The claim was filed more than a month after the mortgage was recorded, but it was urged that the lien related to the date of the first item of the bill.
    The defendants offered to prove that the items of materials furnished to the fork manufacturing building, contained in the bill of particulars annexed to the mechanics’ lien of Potter & Co., entered February 28th 1868, in mechanics’ lien docket to No. 8, April Term 1868, were furnished for the erection and construction of said building at the times contained in said bill of particulars, to wit: commencing May 18'th 1867, and continuing from time to time, as designated in said bill of particulars, to the 4th. of September 1867, and that said items of work and materials were used in the construction of said building. 'This. offered in connection with the evidence already given for the purpose of showing the date of lien of said claim for materials.
    The plaintiff objected that the money raised by the sheriff’s sale having been distributed, it is incompetent to affect the plaintiff now by the evidence offered for the purpose for which it was offered. That it is incompetent in this proceeding and in the present state of the evidence for the defendants to prove what they propose to show by this evidence to affect the plaintiff, or prevent his recovery in this case. And, generally, that the offer is incompetent to affect the plaintiff, and irrelevant to the issue.
    The court (Gamble, P. J.,) sustained -the objection, and rejected the evidence, saying: “I think that the mechanics’ lien having been adjudicated and the record completed, you cannot affect it by parol testimony. You cannot change it now, add to it, or diminish it. I think it is not evidence at all. I think it is not proper to admit the character of this lien to be changed by parol testimony.”
    The verdict was for plaintiff. The defendants took this writ and, inter alia, alleged that the court erred in rejecting the above testimony.

      J. O. Parker, J. Hutermarks, R. P. Allen and J. W. Maynard, for plaintiffs in error.
    The mechanics’ lien was such a prior lien as would divest the lien of the mortgage.

      Henry O. Parsons and Samuel Linn, for defendant in error.—
    In the distribution of the proceeds of a sheriff’s sale, a judgment in a scire facias on a mechanics’ lien is not even prima facie evidence that it was filed within six months after the completion of the work, so as to give it relation back to the commencement of the building, in a contest with other lien-creditors. As a judgment it ranks merely from its date: Norris’s Appeal, 6 Casey 122; McCay’s Appeal, 1 Wright 128; Hahn’s Appeal, 3 Id. 412.
    June 23d 1879.
   Chief Justice Sharswood

delivered the opinion of the court,

Several questions have been raised upon this record which we deem it unnecessary xo consider. There is one point which in our opinion disposes pf the case. At the time the mortgage of Hopson was recorded there was no prior lien of record against the premises. Subsequently, however, a mechanics’ claim was filed, and the allegation is, and the offer was to prove that the building was commenced prior to the mortgage, and that the lien of the claim antedated the mortgage by reason thereof. It did not appear on the face of the claim when the building was commenced. The question then is whether the purchaser at the sheriff’s sale can give parol evidence of this fact so as to show that the lien of the mortgage was divested. As between the. claimant and the mortgagee this undoubtedly might have been done, for the reason that if the fact were so the mortgagee was bound to take notice of it. He is affected by the actual state of things on the ground. If when he takes his mortgage a building has been commenced, he knows or ought to know that the liens of mechanics and material men for work done or materials furnished subsequently, will relate back to the commencement of the building. But an entirely different case is presented when the question arises between the mortgagee and the purchaser at sheriff’s sale. As the bidder at sheriff’s sale is not bound to look beyond the record in determining what he shall bid, and it cannot be shown as against him that a prior lien has been. paid or is not subsisting, so neither can he take advantage of any fact dehors the record to discharge the land from the lien of the mortgage. It is very important that all parties at a sheriff’s sale should have a plain simple rule to go by. This principle is very clearly stated-in the opinion of the District Court of Philadelphia in Goepp v. Gartiser, 11 Casey 131, which was the case of a mechanics’ claim, and was affirmed in this court: u The effect of the lien on a subsequent mortgage must be determined by what appears on its face, irrespectively of what might be shown if the lien were brought before a court and jury for adjudication.” At the sheriff’s sale the same rule must apply equally to all the bidders, the mortgagee as well as others, without regard to what their private information may be of facts dehors the record. This puts them all upon an equal footing, as the bidder is not bound to look beyond the record, neither has he any right to affect his relation to others by any such evidence. The date of the filing of the lien was therefore conclusive as to all parties. Bidders at the sale were not bound to inquire and look up parol evidence outside of it, to determine whether it had relation to a period anterior to the mortgage. The dates in the claims filed were not necessarily the time when the articles were actually furnished to the building, nor evidence that it had then been commenced on the ground. We think, therefore, that the result reached in the court below was right.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    The Select and Common Councils of the City of Williamsport versus The Commonwealth ex rel. Bair and Shenk.
    1. A peremptory mandamus may issue to a city treasurer, to compel him to pay the overdue interest on the city bonds, although the money in his hands may have been appropriated by city councils to other uses; provided the amount thus withdrawn from the city treasury is not absolutely needed for the ordinary expenses of the city.
    2. The city treasurer cannot require those who present coupons for payment to give the numbers of the bonds from which they were cut, and a history of their claim of title thereto.
    3. Nor can a city treasurer, as a defence to an attachment for a refusal to obey a mandamus, set up that the amount of the coupons thus presented, was largely in excess of the moneys in his hands, and that therefore he could not discriminate between them and must decline to pay them all.
    4. Mandamus is a civil proceeding, within the meaning of the Act of March 30th 1875, providing, “that changes of venue shall be made.-in any civil cause in law or equity depending in any of the courts of this Commonwealth,” in the particular cases specified in said act.
    June 9th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicet, and Sterrett, JJ.. Woodward, J., absent.
    Error and certiorari to the Court of Common Pleas of Columbia county: Of May Term 1879, Nos. 151 and 152.
    The venue in this case was changed from Lycoming to Columbia county, under the. provisions of the Act of March 30th 1875, Pamph. L. 35.
    The writ of error was taken to review the action of the court in making an order upon Daniel Longsdorf, treasurer of the city of Williamsport, directing him to pay the overdue interest on certain bonds of said city, and the certiorari to the action of the court in granting an attachment against said treasurer for refusing to obey said order.
    The facts, in substance, were these: In the case of City of Williamsport v. Commonwealth ex rel. Bair and Shenk, 3 Norris 487, the Supreme Court made a decree, wherein the treasurer of the city of Williamsport was ordered to apply any money in the treasury of said city, not otherwise appropriated, to the payment of the accrued interest, or, overdue coupons, on certain bonds of said city known as “series A.”
    On November 3d 1877, a peremptory mandamus was issued by the Court of Common Pleas of Columbia county, directed to the councils of the city of Williamsport and the treasurer thereof, in pursuance of said decree. This writ was returnable December 3d 1877, and on that date was returned duly served.
    On December 3d 1877, the court issued an order to restrain said treasurer from paying out any money in his hands. On December 12th 1877, the court rescinded so much of this order as would leave the treasurer free to pay out moneys for the necessary current expenses of the city. On January 4th 1878, the court again granted a rule on the treasurer to show cause why he should not be restrained from paying out moneys. On March 13th 1878, the court discharged this rule on the ground that from the testimony taken, it appeared that the money in the treasury was not more than sufficient to meet the current expenses of the city, and because the city officials had testified that councils were proceeding to levy and collect the tax required by the mandamus.
    In May 1878, the city councils did levy a tax, but made no provision whatever therein, for the payment of the overdue interest, or even for the payment of interest on the city bonds, which was falling due in 1878, but proceeded to appropriate the' whole of this tax to general city purposes. No proceeding was had to obey the mandamus until September 1878, Avhen an ordinance was passed under the provisions of the Act of March 22d 1870, Pamph. L. 535, to levy a special tax to pay the overdue interest. No duplicates, however, were placed in. the treasurer’s hands for collection, and no effort made to collect this tax; when, on February 11th 1879, a rule was granted on councils and the treasurer, to show cause .why the latter should not apply the amount in his hands to payment of the overdue interest on the bonds in question. The city councils and treasurer both filed answers, and it appeared from the evidence .of the treasurer and city controller, that the current expenses for the year would not exhaust the whole fund in the city treasury. Upon these facts the court below made an order, March 10th 1879, that the treasurer pay out of the moneys in his hands, the sum of $8000 on the overdue interest, on the ground, first, that it was raised by a tax levied long after the peremptory mandamus was issued, and was not appropriated till May or June 1878, and therefore should be paid on this judgment; and, second, that it would still leave sufficient funds in his hands to pay the running expenses of the city to the end of the fiscal year, April 1st 1879.
    To this order the defendants took this writ. They also alleged that the court erred in making said order, because of want of jurisdiction, the Act of March 30th 1875, providing for change of venue, having no reference to proceedings by mandamus.
    The city treasurer did not comply with the order of the court, but filed an answer, which, inter alia, set forth that respondent was entitled to a hearing and an opportunity to cross-examine witnesses, and to rebut the evidence offered in support of the ap]ffication; that respondent has no interest in the payment of the interest, other than as city treasurer, and that under the advice of the city solicitor, respondent had required relators, as well as other parties holding coupons, to give the number of the bonds, the names of the owners, and from whom the title to the same was derived, with the view of presenting the same to councils to see if there was any specific defence to the same, as respondent was notified by the authorities of the city of Williamsport, that there was such defence to the payment of a large number of these bonds marked ‘‘series A;” that respondent has paid judgments recovered on said coupons maturing prior to November 3d 1877, amounting to $2999.29, under the advice of the city solicitor, and that the balance of the $8000 he has in his hands subject to the order of the court. On the 29th March 1879, the court ordered an attachment to issue against the treasurer for contempt of court, unless on or before the 3d day of April following, he should pay $5000 upon those coupons maturing prior to November 3d 1877, which should first be presented for payment under the order of March 10th 1879.
    The certiorari in this case was then taken to review the action of the court in awarding this attachment. The $5000 remained in the hands of the treasurer to await the judgment of the supreme court.

      H O. Mb Connie Je, for plaintiff in writ of error.
    The court below had authority to appropriate for the payment of overdue interest on bonds only the money not assigned for current expenses even if not specially appropriated. The current expenses must be first paid; what remains over could be applied-to the bonds. A creditor of a corporation cannot stop the functions of government by an order such as made by the court below: Commonwealth v. Commissioners of Philadelphia, 1 Whart. 1; Same v. Same, 2 Id. 286; Commonwealth v. Floyd, 2 Pittsburgh 345. The treasurer had the right to make an inquiry as to the title to the coupons, for the amount thereof was largely in excess of the $8000. He could not discriminate between them, and therefore could not pay any of them.
    This case was begun in Lycoming county, and under the Act of June 14th 1836, Pamph. L. 626, should have been carried on to execution in said county: Whitemarsh Township v. Railroad Co., 8 W. & S. 365; Wolf v. Commonwealth, 14 P. F. Smith 252. The Act of March 30th 1875, provides only for a change of venue “in any civil cause in law or equity.” Mandamus is not'a civil cause in law or equity within the meaning of the act: Commonwealth ex rel. Witmer v. Commissioners of Lancaster Co., 6 Binn. 5.

      B. S. Bentley, for defendant in error.
    The $8000 had not been specially appropriated, and it was therefore apparent was not needed for current expenses. A mandamus has all the qualities and attributes of a civil action: High on Extraordinary Legal Bemedies, sect. 8, p. 10; Commonwealth ex rel. v. Commissioners of Allegheny Co., 8 Casey 221. The Act of June 14th 1836, restricts the power of the Courts of Common Pleas in the issuing of writs of mandamus to the limits of their respective counties, but the Act of March 30th 1875, sect. 4, provides that the court into which a cause is removed “ shall proceed to trial in the same manner and give judgment and award execution with like effect as though the cause had not been removed.” The latter act does not repeal the former, but only gives jurisdiction to another Court of Common Pleas in certain cases. Besides, the mandamus was issued by the Court of Common Pleas of Lycoming county on the 7th day of July 1876, and it was only upon the return to the writ, made by defendants raising an issue of fact, that the court awarded a change of venue and the peremptory mandamus of November 3d 1877, and all orders subsequent thereto were simply the execution process of the court after final decree and judgment, as provided for in the Act of 1875. After execution and decree in the Supreme Court, no exception can be taken to want of jurisdiction.

      K. W. Watson, for plaintiff in writ of certiorari.
    The treasurer had no opportunity .afforded him of a hearing, the rule being granted upon affidavits made by counsel for holders of coupons. He put in an answer which was judged insufficient by the court, and the attachment ordered to issue by the 3d day of April 1879. A rule should have been granted, a full hearing and an opportunity for cross-examination: Commonwealth v. Snowden, 1 Brewst. 218. In this case there was no hearing, as required by law. The defendant had ho opportunity offered him of cross-examining the persons who made the affidavits. His answer expressly denies any intention of being guilty of any contempt of court, and demands a full hearing; and we respectfully submit that the court erred in awarding the attachment. If the city cannot make any inquiry as to the coupons presented for payment, then the decision of this court when they say, “ In affirming this judgment,- we do not mean to deprive the city of any special defence to any particular bond or bonds in ‘series A,’ and not embraced in this suit,” is without meaning and utterly valueless to the city.

      J. O. Parker (with. Mm J. A. Beeber,) contra.

    The attachment was allowed after a full hearing had on the rule granted to show cause on the 11th of February 1879, and a decree made. It was issued for disobedience to this decree. An affidavit was filed, notice was given of the application for the attachment, and the treasurer filed an answer. This was in strict pursuance of the practice in granting attachments. There was nothing on which testimony could be taken. The treasurer was governed by the city solicitor and we cannot reach him. It would be impossible to give the claim of title to the bond itself, much moro of the coupon cut therefrom. The coupons are as much negotiable securities as bank notes, and pass by delivery. Counsel presenting coupons were entirely willing to give the names of the owners, but that was not sufficient.
    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

The proceeding, out of which the orders complained of grew, was a writ of peremptory mandamus issued at the relation of certain creditors of the city of Williamsport, to compel the councils of said city to make provision for, and pay the arrears of interest due upon its bonds, and to provide for the accruing interest. The question of the validity of these bonds was before this court and settled, in City of Williamsport v. The Commonwealth ex rel. Bair and Shenk, 3 Norris 487. In affirming the judgment in that case we said: “We do not mean to deprive the city of any special defence to any particular bond or bonds in “series A,” and not embraced in this suit.” This was intended, as the language implies, out of abundance of caution, to save the right of the city to make any special defence, not set up in that suit, to any special bond or bonds not embraced therein. It was not intended’, nor can we allow it to be used as a pretext for not paying the interest on all bonds whatever. It was a part of our judgment, “ that the treasurer of the city of Williamsport do forthwith apply any money now in the treasury of said city, and not otherwise appropriated, to the payment of the accrued interest or coupons now overdue on said bonds, known as “ series A.” The record now before us discloses the fact, that since our judgment was entered, October 4th 1877, the court below has been constantly engaged in an attempt to enforce our decree. It issued a peremptory mandamus on November 3d 1877, and the docket entries since that time and up to the month of April 1879, when the present writ of error and certiorari were filed, show an unusual degree of activity, with results not encouraging to holders of municipal bonds. Passing by those matters which are not material, we come to those orders of the court below of which complaint is now made, and which are assigned for error. First, we have the order of March 10th 1879, by -which the treasurer of the city of Williamsport was directed to pay the sum of $8000 on overdue interest, on bonds known as “ series A.” This order was made upon a rule granted February 11th 1879, on Daniel Longsdorf, treasurer of said city, to show cause why he should not apply the amount in his hands, as treasurer, in payment of overdue interest on the said bonds, which was due and payable prior to the third day of November 1877. To this particular order a writ of error was taken, and we are called upon to pass upon its propriety.

Somewhat similar rules to show cause had previously been discharged by the court below, upon the ground that a mandamus or statutory execution ought not to be enforced to the extent of withdrawing from the city treasury, the funds absolutely needed for the ordinary expenses of the city. A previous order to pay had been vacated ex parte, upon the city coming in and showing that all the money in the treasury would be required to defray expenses, up to September 1st 1878. Says the learned judge: “It was also contended that there was no occasion for the order; and it was testified by officials of the city, that the councils were proceeding to levy and collect the tax required by the mandamus in this case as early as practicable. In view of these facts, we discharged the rule. If what was then stated would he the case, had been actually carried out, there would have been no occasion for this rule. It is now one year since that hearing was had; the interest has not been paid, and the facts presented in answer to this rule are nearly identical with those testified before us at that time.” The learned judge, after ascertaining that the withdrawal of the sum of $8000 from the treasury would not embarrass, much less stop the wheels of the municipality for the fiscal year, ending April 1st 1879; made the order which is the subject of this contention. In doing so he was clearly right. In his own words it was giving “ to the creditors referred to in the rule, a small portion of what under the decree of the Supreme Court they were entitled to months since.”

We now come to the subsequent order of March 29th 1879. The city treasurer having neglected and refused to comply with the order of March 10th, to pay over the money referred to, he was duly notified that an application would he made to the Court of Common Pleas on the 29th of March 1879, for an attachment against him for contempt in disobeying the said order. The treasurer appeared on the said day, and filed an answer under oath, disavowing generally any intention of committing a contempt, and setting forth specifically as reasons for not having complied with the order of the court, inter alia, the following: 1. That the city solicitor had advised him to require all persons holding coupons for interest maturing prior to November 3d 1877, to give him the numbers of the bonds, the names of the owners, and from whom the title to the same was derived, in .order that he, the said treasurer, might report the same to councils with a view to ascertain whether or not there was any specific defence to the payment of any of the coupons so presented. 2. That the said treasurer had paid out of said sum judgments recovered on coupons amounting to $2999.29. There were a number of other matters set up in the answer which we do not consider it important to notice. The court below recognised the payment of $2999.29 as proper; but the remaining reasons were possibly regarded as frivolous, as on the same day the rule for attachment for contempt was made absolute, and the attachment directed to issue against Daniel Longsdorf, treasurer, unless he shall, on or before the third day of April next, pay the sum of $5000, now in his hands, upon those coupons maturing prior to November 3d 1877, which wore first presented to said treasurer for payment, under said order of March 10th 1879.” The treasurer did not pay, and before the 3d of April arrived, removed the record and proceedings to this court upon a writ of certiorari.

There was nothing in the answer of the treasurer to cause the court below to hesitate, much less to require discussion here. That it is the duty of the holder of a coupon, a thing that passes. by delivery like a bank note, to give a history of such coupon, with the chain of title at the counter where he demands payment, is a proposition that need not be seriously considered. A coupon is always numbered with the number of the bond from which it was cut. This enables the owners of stolen bonds to stop the payment of the coupons. But it was never supposed that by stopping the payment of the coupon, you could thereby ascertain if the bond were stolen.' If the city of Williamsport has a just defence to one or more bonds, the fact must certainly be known to the authorities, with the date and number of the bond, and the name of the person to whom issued, and a proper notice from them to the treasurer would enable him to decline payment for such reason when such coupons are presented. But payment ought not to be declined for frivolous reasons. In the absence of any notice from the city authorities not to pay particular coupons by reason of a defence to the bonds to which they belonged, the city treasurer incurred no responsibility by payment. The order of the • court would be a full protection to him: Monaghan v. The City, 4 Casey 207; In re Sedgley Avenue, 8 Norris 509. Equally untenable was the position, that because the amount of coupons presented was largely in excess of the amount of money on hand, $8000, he could not discriminate between them, and must therefore decline to pay any'of them.

■ A further objection was made to the orders of March 10th and March 29th, that the Act of Assembly of March 30th 1875, does not authorize a change of venue in proceedings by mandamus, and consequently the Court of Common Pleas of Columbia county, to which the cause had been removed, had no jurisdiction. It was certainly late to make this objection, after a- final decree in this court. We will, however, consider it as if the point had been made at an earlier stage in the proceedings.

The Act of 80th March 1875, Pamph. L. 85, provides, “That change of venue shall be made in any civil cause in law or equity depending in any courts of this Commonwealth,” in the particular cases specified in said act. It was not denied that the cause was removed for one of the reasons enumerated in the act, but it was alleged that a mandamus was not “a civil cause in law or equity,” and the case of Commonwealth v. The Commissioners of Lancaster County, 6 Binn. 5, was cited in support of this view. A careful examination of that case, however, will show that it is not authority for any such principle. It was a rule for a mandamus, issued out of this court, upon the commissioners. The jurisdiction was denied for the reason that the Act of 24th February 1806, declares that “the Supreme Court shall have no jurisdiction in civil cases.” The court sustained its jurisdiction upon the ground that it was manifestly the intent of the legislature by the act in question not to take' away the mandamus jurisdiction from the Supreme Court, for the reason that at that time the Common Pleas had no power to issue such writs. Says Tilghman, C. J.: “At the time the law was passed the Supreme Court were overwhelmed with business arising from civil actions commenced in the city and county of Philadelphia. Before the year 1786, no such actions were commenced in this court, and it was judged proper to place its jurisdiction on the same footing that it formerly stood.” The court in placing a construction upon the language of the Act of 1806, very properly looked to the mischief to be remedied. Therefore, whilst it was admitted that the term “civil cases” in its broadest sense might include the case of a mandamus, yet in its application to the mischief, it must be held to mean “ civil actions, which in common parlance do not comprehend writs of mandamus, certiorari, habeas corpus,” &c, Turning now to the Act of 1875, it is plain to us that a mandamus is as much within the mischief sought to be remedied as any other- cause. Without going over the details of the act in which the causes for which a change of venue may be had, we will refer only to two of the reasons assigned: “Whenever the judge, who by law is required to try or hear the same, shall be personally interested in the event of such cause, or in the question to be determined thereby;” and 2, “Whenever any near relative of such judge shall be a party to any such cause, or interested in the event thereof.” These reasons for a change of venue apply with as much force to a mandamus as to any other form of proceeding. The act in question is remedial and must have a liberal interpretation. The tendency of recent legislation has been liberal in the matter of change of venue. This is noticeable in the Act of 18th March 1875, Pamph. L. 80, in regard to the change of venue in criminal cases. Whilst a mandamus is not in common parlance a civil cause, it is so in its broad sense, being really in tins case but a proceeding for the collection of money.

It is said in High on Legal Remedies, p. 10, sect. 8 : “ While in this country the writ (mandamus) has been regulated by constitutional and statutory enactments, it has lost but few of its ancient remedial incidents, and is still governed by common-law rules,' where such rules have not been abrogated. Though in form and name the proceedings partake somewhat of a criminal nature, yet the remedy is in substance a civil one, having all the qualities and attributes of a civil action. And since the proceeding has all the elements of an ordinary action at law, including parties, pleadings, mesne and final process, it is regarded as an original proceeding or suit, rather than tlje more final process of a suit, or a mode of obtaining execution on a judgment.” And in the case of Commonwealth ex rel. v. Commissioners of Allegheny County, 8 Casey 221, it was said by Mr. Justice Woodward, that “a mandamus under our statute assumes the form of an' ordinary action at law, and all questions properly arising are to be tried in the same manner as was formerly done at common law in the action for a false return.” We are of opinion that the case came within the Act of 30th March 1875, and that the cause was properly removed to Columbia county. It follows that the court had jurisdiction.

We regret to see a disposition, only too apparent upon the face of this record, to evade our decree of October 4th 1877. Perhaps too much importance has been attached to the fact that there was a difference of opinion between some of the members of the court as to the principles which should govern the case. Be that as it may, it is only proper to say that the court is á unit in the enforcement of our decree. No man or corporation in Pennsylvania is strong enough to successfully evade, much less resist the decree of this court. It has been attempted in the past, with what success is a matter of history. From the date of our decree to the present time, the city of Williamsport, has not, to our knowledge, voluntarily paid a dollar of interest to its bondholders. It is sincerely hoped that wiser counsels will ultimately prevail, and that we may see that obedience to law manifested which the Commonwealth has' a right to demand from every citizen and municipality within her borders.

This record is entirely barren of error, and the proceedings are affirmed upon each writ. It will be the duty of the court below to compel prompt obedience to its order.


author: Mr. Justice Trunkey

text:
    Lahr’s Appeal.
    .1. An unrecorded mortgage can take nothing as against judgments in point of law, nor is it entitled to any preference in equity. If it is it must be by bringing home to the owners of the judgments actual notice of the existence of the unrecorded mortgage, not only before their respective liens attached, but before the debts on which they are founded were contracted.
    2. An honest judgment voluntarily given by a husband to secure a debt owing to his wife, is just in law. For the prevention of fraud, clear and satisfactory proof of a wife’s claim against her husband is exacted in a degree not required of others ; but when established she is entitled as another would be.
    3. In the distribution of the proceeds of á sheriff’s sale of real estate, a judgment ought not to be prejudiced by costs accrued on a posterior lien, which was unnecessary to sale. Costs on writs set aside for cause or consent where a creditor is not in fault or consenting, cannot be paid out of money belonging to said creditor.
    4. The rights and disabilities of married women^and the respective rights of property of husband and wife, discussed by Trünkey, J.
    June 10th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket and Sterrett, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas of Northumberland county: Of May Term 1879, No. 112.
    Appeal of Elias Lahr, trustee of Harriet Burns, from the decree of the court confirming the report of the auditor to distribute the fund arising from the sheriff’s sale of certain real estate, sold as the property of Andrew Burns.
    On the 18th of February 1871, Andrew Burns purchased a lot of ground from S. L. Murray. The deed was acknowledged on the same day. On the 23d of February 1871, Burns and Harriet his wife, by assignment on the back of this deed, duly acknowledged, assigned all their interest to the lot of ground described in the deed to “ The Mutual Building and Saving Fund Association of Milton.” The deed and assignment were duly recorded on the 25th of February 1871. . On the 23d of February 1871, being the day the assignment was made, the said association executed through their president and secretary, under the seal of the association, a separate defeasance declaring that the lot of ground mentioned in the deed, was held as collateral security for a loan of $800 to said Andrew Burns, and that upon the repayment of that sum the association agreed to reconvey to said Burns. The defeasance was not recorded. On the same day the assignment of the deed was made to the association, Burns executed a note with warrant of attorney to enter judgment. Judgment was entered thereon the 18th of October 1876.
    This judgment was in favor of Elias Lahr, as trustee for Harriet Burns for'$498. Prior to this judgment, three others for small amounts had been entered against Burns, and subsequent thereto, these were there others, including that of the -building association.

      The association issued a fi. fa. on their judgment October 9th 1876, in the praecipe for which the sheriff was directed to levy upon the house and lot belonging to Burns. The sheriff did levy upon the house and lot of ground, and advertised and sold the same to the association for $50. This sale was set aside, because there was no waiver of inquisition.
    On the 17th of November 1876, an alias fi. fa. was issued to January Term 1877, by the association on their judgment. The sheriff made a levy on the same property again. An inquisition was held, and the real estate levied upon condemned. These proceedings were also set aside, on the ground that the judgment upon which the writ issued was a conditional one, and that there was not a suggestion filed by the plaintiffs, or their attorney, that default had been made by the defendant, &ic. On the 22d of January 1877, a pluries writ of fi. fa. was issued by said association. The same lot of ground was again levied upon and condemned. On the 8th of May 1877, a venditioni exponas was issued on the association judgment, and the property sold to the association for $750. The association refused to comply with the conditions of sale, and the sheriff returned the property unsold.
    On the 10th of July 1877, an alias writ of venditioni exponas issued on the judgment .of the association. At this’ sale, Elias Lahr became the purchaser, at the price or sum of $650. He was the owner, at the time of the sale, of all the judgments entered prior to that in which he was trustee for Mrs. Burns. The 'sheriff made a special return at the instance of Elias Lahr, the purchaser. From that return it appeared that the sheriff retained the following costs: Attorney $4.25; crier, 15c.; piothonotary, $8.65, and $21.45 costs of sale, and $10 on account of former sheriff’s costs, amounting, in aggregate, to the sum of $44.50. That sum was pajd to the sheriff by the purchaser. The balance of the purchase-money was claimed by the purchaser ás the first lien-creditor on the judgments he had purchased which preceded the Lahr judgment. The fund was referred to an auditor for distribution.
    The association contended that the judgment of Lahr, trustee of Harriet Burns, was not entitled to participate in the distribution, on the ground that Mrs. Burns was a party to the assignment of the deed to said association. That position was maintained by the auditor, and the judgment disallowed.
    The association also contended that they were entitled to all the costs on the writ. The purchaser denied that, and argued that, inasmuch as the judgment upon which the sale was made was not reached by the distribution, the plaintiff could not collect any of the costs made upon prior fruitless efforts to bring about the sale, that none but the actual costs to effect the sale could be paid. The auditor ruled this proposition against the purchaser.

      Exceptions were filed to this report, which the court dismissed, and confirmed the report. Lahr took this appeal, and alleged, inter alia, that the court erred in ruling that the auditor was right in postponing the judgment of Elias Lahr, trustee, to the mortgage of the association, and in allowing costs other than the actual costs to effect the sale.

      S. B. Boyer, for appellant.
    The auditor found that the consideration for the judgment-note in trust for hlrs. Burns, was for money loaned by her to her husband some ten or eleven years theretofore. This claim of Mrs. Burns, antedated by two or three years any business transaction between the association and Burns. The auditor ruled the case upon the authority of Britton’s Appeal, 9 Wright 172, and Bank v. Bank, 7 W. & S. 335. In these cases the debt was posterior to the unrecorded mortgage, and the judgment-creditors had actual notice of the true state of the case before the debt was contracted, whilst in the case under consideration, the debt of Mrs. Burns was at least three years anterior to the date of the unrecorded mortgage. The appellants contend that the plaintiff in a judgment, not reached in a distribution of the proceeds of real estate, is not entitled to any costs, excepting the actual costs to effect the sale; that the costs incurred upon prior fruitless efforts to bring about this sale cannot be allowed to affect a lien-creditor: Fry’s Appeal, 26 P. F. Smith 82.

      John McGleery, for appellee.
    The mortgage was put upon record as a deed. Six years afterwards, Mrs. Bums obtained from her husband a confession of judgment, which she recorded. This might be of advantage to one who had no notice, whereas, she had full notice of this unrecorded mortgage. By joining her husband in the deed, she occupied the position of mortgagor, and was not protected. The allowance- as to the costs was correct.
    June 23d 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

Speaking of the judgments against Andrew Bums, the auditor says: “ They are the first and only liens of record, and in point of law are entitled to the proceeds of sale. The unrécorded mortgage of the building association can take nothing as against these liens in point of law. Nor is it entitled to any preference in equity. If it is, it must be by bringing home to these several plaintiffs actual notice of the existence of this unrecorded mortgage, not only before their respective liens attached, but before the debts upon which they are founded were contracted by Burns.” .This principle, -governing-the distribution, has been uniformly held by the courts, from Semple v. Burd, 7 S. & R. 286, to Corpman v. Baccastow, 3 Norris 363.

In Britton’s Appeal, 9 Wright 127, it was decided that a mortgage, executed before, but not recorded until after, judgments had been entered against the mortgagor, is entitled to priority over them in the distribution, when the judgment-creditors had actual knowledge of the mortgage before the debts were contracted for which their judgments were obtained. The fact of such knowledge was emphasized by Justice Strong. His reasoning places him who gives credit and takes judgment after notice of the mortgage on the footing of a purchaser with notice, and does not apply to one- who gave credit without notice or knowledge. As respects the latter, the ruling of the auditor is a reflex of the professional understanding, as expressed in the phrase, “such mortgage is good against a judgment-creditor with notice before his debt was contracted,” repeated as late as McLaughlin v. Ihmsen, 4 Norris 364. No equitable principle demands postponement where the credit was given prior to the mortgage or the creditor’s knowledge thereof. Then he stands as clear of wrong as an innocent purchaser, and his judgment, though entered after knowledge of the mortgage, will take as the first lien. The reason for postponement where credit is given with notice or knowledge, is the same as applies to a purchaser under like circumstances, namely, that if he seeks to defeat the estate of the mortgagee he is guilty of fraud, but when the credit is given before, the element of fraud in contracting the debt is wanting. It matters not that the creditor was present at the execution of the mortgage and was silent. That will not preclude his use of lawful remedies, nor give the -mortgagee a superior equity. Creditors are equal in merit and the law favors the vigilant. Where a debtor gives one a.mortgage, and another, whose contract was prior, a judgment-mote, the latter, if first entered of record, is the prior equitable as well as legal lien.

Burns’s wife joined in the mortgage and undoubtedly knew the contents of both its parts and of the accompanying bond. About five years thereafter, 'he gave a judgment note to Elias Lahr for her use. The auditor finds the consideration of that note was money she got from her father’s estate, ten or eleven years ago, which she loaned to her husband, taking no security for it until this judgment was given. Hence, at the date of the mortgage, this debt had run a little over three years. To characterize it as a “stale debt,” “barred by the Statute of Limitations before the unrecorded mortgage was executed,” ill accords with the fact found, or the law. The Statute of Limitations does not begin to run against a married woman, on a loan to her husband, till his death: Towers v. Hagner, 3 Whart. 48; Kutz’s Appeal, 4 Wright 90.

Over thirty years ago it was enacted that “ all property, of whatever name or kind, which shall accrue to any married woman during coverture, by will, descent, deed of conveyance or otherwise, shall be owned, used and enjoyed by such married woman as her own separate property.” The husband is sometimes slow to comprehend the full extent of this innovation on rights he formerly enjoyed, and so are his creditors. The statute does not disturb the relation of husband and wife — a union of two persons — but to some extent upsets the theory that her legal existence is suspended during coverture. Their unity, his headship, his power and influence over her, are facts as distinctly recognised in the statutes as in the common law. Therefore, she cannot convey or encumber her property, save as authorized by statute ; and very rarely, if at all, will her silence or acts in presence of her husband operate as an estoppel. Nothing can be more natural than that she will lend her money to her husband, and that he will give her a security for it whenever he sees financial embarrassment approaching. Such loans and securities are sanctioned by numerous decisions. She has the same right to loan to him as to a stranger; it is as lawful for him to secure that loan as any other. Strangers may sue him and obtain judgment adversely — his wife cannot. The law permits an insolvent debtor to give judgments to his creditors as he prefers. An honest judgment, voluntarily given by a husband to secure a debt owing to his wife, is just in law, and he who denounces the act as wrong in morals, must take a singular view of the promptings of affection and interest. Who could be more worthy his preference than she ? And for whom could he feel greater concern? Until the legislature changes the law, these loans will be made and securities given. Her property vests in her as her separate estate; and the husband’s is his separate estate. In view Of their respective rights of property, why should her judgment be postponed to one who loaned him money, though he used it to improve his land. Were a stranger holding a judgment in the place where Mrs. Burns’s stands, he would take the money. Hers is equally meritorious. For prevention of fraud, clear and satisfactory proof of a wife’s claim against her husband is exacted in a degree not required of others, but when established she is entitled as another would be.

The association claims the money raised by sale of Burns’s land in virtue of the mortgage given to secure money he borrowed. It cannot tend to defeat the judgment of Harriet Burns to give a detailed description of the parts of the mortgage — one, in form, an absolute conveyance, the other a defeasance — when, if it be not a mere mortgage, for that reason, it cannot take a dollar of the fund. The rights and disabilities of married women, except as secured or removed by statutes, remain as at common law. We fail to discover, in the facts found by the auditor, an act of Harriet Burns which estops her from demanding and receiving the money due on her judgment. To hold that anything she did is an equitable estoppel, as between her and the mortgagee, would be to assert a principle most dangerous to the rights of married women, unsupported by-reason or precedent.

As distribution was made, the question of costs did not affect the appellant. Her judgment ought not to be prejudiced by costs accrued on a posterior lien which were unnecessary to affect the sale: Fry’s Appeal, 26 P. F. Smith 82. Costs on writs, set aside for cause or by consent, she not being in fault or a party consenting, cannot be paid out of money belonging to her. Allowance of $44,50 is said to be conceded, which sum seems to include a portion for which she is not liable.

Decree reversed, and it is now considered and decreed, that $44.50 be paid on costs of suit, as per auditor’s statement; that the costs of audit and respective amounts due on the three judgments, anterior to judgment No. 516, of March Term 1876, Elias Uffhr for use of Harriet Burns, be paid as per auditor’s report; and that the balance, of the fund, $271.32, be appropriated to said judgment, in favor of Elias Lahr for use of Harriet Burns. Costs of this appeal to be paid by the appellees.


author: Mr. Justice Woodward

text:
    McSparran, Admr., versus Neeley.
    1. The endorsee of a negotiable note, who took it before maturity, bona fide, for value, without notice, is entitled to recover from the maker, though a fraud was practised on the maker in obtaining his signature to the note.
    2. The defence of drunkenness in the maker cannot be set up against innocent holder of a negotiable note.
    3. The fact that a negotiable note which was obtained by fraud was taken by the holder under circumstances which ought to have excited suspicion, will not defeat a recovery; it must be shown that it was taken mala fide.

    4. The date of a note is not essential to its validity, and where the purposes of justice require it the real date may be inquired into and effect given to the instrument.
    5. State Bank v. McCoy, 19 P. F. Smith 204, and Phelan v. Moss, 17 Id. 59, followed. Green v. North Buffalo Twp., 6 P. F. Smith 110; Schuylkill County v. Copley, 17 Id. 386 ; Unger v. Boas, 1 Harris 601, and Bowman v. Cecil Bank, 3 Grant 33, distinguished.
    May 31st 1878.
    Before Agnew, C. J., Gordon, Woodward and'Trunkey, JJ. Sharswood, Mercur and Paxson, JJ., absent.
    Error to the Court of Common Pleas of York county: Of May-Term 1878, No. 78.
    Assumpsit upon a promissory note by William McSparran, administrator of John G. Williamson, deceased, against Thomas Neeley. The declaration filed January 19th 1875, set forth'the plaintiff’s cause of action as founded on a promissory note drawn by said John G. Williamson, deceased, on the 24th of January, 1872, bearing date by mistake, January 24th 1871, for $737.37, to J. L. Lawrence, or order, in ninety days after date, which said note the said deceased, in his lifetime, delivered to said Lawrence who before the maturity of said note, endorsed and delivered the same to plaintiff for value. The declaration also contained the usual common counts in assumpsit.
    The defendant, on February 12th 1876, filed an affidavit of defence, alleging “that the deponent was a brother-in-law of deceased and attended to most of his business, in his lifetime, and denying that deceased was ever indebted to said Lawrence in the sum of money mentioned in said promissory note, and alleging that said note was procured by fraudulent means; that at the time it is pretended by plaintiff that said note should have been dated, to wit, January 24th 1872, instead of the day it bears date, in the year 1871, the said Williamson was incapacitated from doing business, by reason of intemperance, and was partially blind and unable to read, and otherwise unfit to transact business; that shortly before that time, the said Lawrence and Williamson had squared accounts between them, and that the indebtedness of Williamson to Lawrence, at that time, was but a small amount; that Williamson died shortly after that time, and between that time and the time of his decease viz.: February 22d 1872, could not have contracted the amount of indebtedness mentioned in the said promissory note, or made any contract from which such liability could arise; that plaintiff took said note from the payee, after it became due, according to the date of the same, and which was, on its face, overdue, about nine months; that the said promissory note bearing date a certain day was notice to the plaintiff thereof, and that he cannot now set up another date, whether by mistake or otherwise; that this should have put plaintiff upon inquiry as to the execution of the note from the maker of the same as well as the payee, and by that means have ascertained the truth as to the genuineness of said note.”
    The case by the agreement of the parties was referred to a referee, under the provisions of the Act of Assembly, entitled “An act in relation to pleading and judgment, voluntary arbitration and additional return days for writs, in the Courts of Common Pleas in the Nineteenth Judicial District of Pennsylvania, and the practice of the said courts therein,” approved April 9th 1868.
    From the evidence the referee found the following facts:
    John Grier Williamson, on the 24th of January 1872, executed and delivered to one J. L. Lawrence a promissory note, of which the following is a copy :
    York, Pa., Jan. 24th 1871.
    Ninety days after date I promise to pay to J. L. Lawrence, or order, seven' hundred and thirty-seven dollars and thirty-seven cents, for value received.
    J. G. Williamson

      Before the maturity of this note, Lawrence, the payee, endorsed and delivered the same to Thomas Neeley, who gave to Lawrence for said note $500 in currency. John G. Williamson, before he acquired habits of intempeance, was a man of intelligence and vigorr ous intellect. During the latter period of his life, his vision became, by reason of gross intemperance, impaired, his body partially paralyzed, and his mental powers weakened. When, however, he was sober, he was capable of transacting his business affairs in a proper manner, until within a short time previous to his decease. Within two or three months from the time of his decease he transacted business, in a methodical way, with a number of different parties, and within six or seven weeks prior -to his death, he directed a person to whom he was indebted ■ to write an order for the payment of money, which he signed, but before signing required the spelling of a word in the order to be corrected.
    On the morning of January 24tli 1872, Lawrence came to the house of Williamson and had with him a number of gallons of liquor. Williamson was sober early in the morning when Lawrence was there. Williamson, Lawrence and another drank together. Williamson was pretty drunk. Lawrence wanted his note. Williamson said he could not see to write. Lawrence drew the note himself. Williamson said he would sign the note mechanically. The note was read by Lawrence. The note called for thirty-seven dollars and some odd cents. Williamson asked to hear it read. By the time Lawrence went away, Williamson was very tight— drunker than he was before. It does not appear that the plaintiff, when he purchased the note from Lawrence, had any notice of the facts and circumstances attending the making and execution thereof. Williamson died on February 22d 1872, and letters of administration on his estate were granted to William MeSparran, the defendant.
    Exceptions were filed to the report of the referee, which the court dismissed and confirmed the report.
    The following assignments of error will show what these exceptions were and how the various questions were raised:
    1. The referee erred in finding as a fact in the case that before the maturity of the note Lawrence, the payee, endorsed and delivered the same to Thomas Neeley, who gave to Lawrence for said note $500 in currency.
    2. In finding that the plaintiff is a bona fide holder for value, without notice of the fraud.
    8. In stating the questions of law involved in the case to be, whether the note, according to its face being overdue, was sufficient to excite suspicion and put plaintiff upon inquiry, and also whether the date of the note may be proved a mistake; and ruling said questions separately in favor of the.plaintiff, whereas the question of law involved is, whether the face of the note showing it to be upwards, of nine months overdue does not prevent him from being a bona fide holder for value in the usual course of business, and therefore whether it was not the duty of the plaintiff to make inquiry and ascertain the facts of the case, namely, that the note was obtained from a person incapacitated from doing business and partially blind from habitual drunkenness, by means of a false representation of the amount of the note, which ,was in effect a forgery.
    4. In rejecting the testimony of Robert Torbert, to prove that he was living on the farm of Williamson in January 1872, and was frequently in his house; that he saw Lawrence come there on January 25th 1872; that he had with him a five gallon keg and a two gallon jug of whiskey; that he was in the room when Williamson and Lawrence were together that day, and that he was asked to hear the reading of a note; that Williamson was very drunk at the time and said he could not see to read it and that Lawrence read it to him, thirty-seven dollars and some odd cents, and witness saw Williamson sign the note and Lawrence left while witness was there; that nothing was said between them about money matters except this note of thirty-seven dollars and some cents, and no other amount was mentioned, and that witness was well acquainted with Williamson and his habits.
    5. The referee erred in affirming the plaintiff’s first point, as follows:
    “ The evidence proves that the plaintiff purchased the note in suit within about one month after it was, in point of fact, made and issued by the defendants intestate to Lawrence, the payee therein,, and-the plaintiff’s rights, as endorsee of the note before maturity, for value, are to be judged of and determined as of the time when he, in point of fact, purchased the note from Lawrence and parted with his money therefor; and the mistake of the year in the date of the note in nowise affects his right to recover, if otherwise entitled to recover.”
    6. In affirming the plaintiff’s second point, as follows:
    “When a wrong date has, by mistake or inadvertence, been placed to a note, the actual time of the making, issuing or transfer of the same may be shown; and parol evidence is admissible for that purpose.
    7. In affirming the plaintiff’s third point, as follows:
    “ The defendant having failed to bring home to the plaintiff any knowledge of any defence or alleged defence to the note in suit .which existed or might be alleged to exist, as between the original parties to the note, before the purchase of the same by the said plaintiff, cannot now set up such defence against the plaintiff in this suit, he being an innocent purchaser of the same before maturity for value, without notice of any defence.”

      8. In negativing the defendant’s first point, as follows:
    “ That the date of the note in suit, as appears on its face, namely, January 24th 1871, was sufficient notice to Thomas Neeley, the alleged endorsee for value of the same, to put him upon inquiry as to the origin of the note, plaintiff having proved that the same was endorsed to Thomas Neeley one year after said datp.”
    9. In negativing the defendant’s second point, as follows:
    “ That the date of said note, upon its face, was such as to make it appear overdue, and it was, therefore, not transferred in the usual course of business as a note not yet due, so as to constitute the holder a bona fide holder for value without notice, with the benefit of such.”
    10; In negativing the defendant’s third point, which point and answer are as follows:
    “That if the referee believes that Williamson, the plaintiff’s intestate, was mentally incapacitated by reason of habitual drunkenness, and had fraudulently imposed upon him for his signature, a note for $737, the said note was void, and as in the case of a forged note the payee could pass no title to the endorsee of the same.”
    Ans. “The referee says, this point is correct if the mental incapacity of Williamson amounted to perfect imbecility. But if the incapacity was not permanent, and he was able, when sober, to transact business in a proper manner, then the note was not void in the hands of an innocent holder, although it was signed by Williamson, when he was drunk and unfit to transact business.”
    11. The referee erred in his answer to the defendant’s fourth point, which point and answer are as follows:
    “ That if the referee believes that the said note was.read by said Lawrence to Williamson, as a note for $37.37, instead of $787.37, and that the said Williamson was at the time unable to see so as to read, or was incapable of transacting business in consequence of the effects of excessive and long continued use of strong drink, the said note was void in the hands of the payee] and he could pass no good title to the same.”
    Ans. This point of law is correct, if the inability to see and incapacity to transact business in consequence of excessive drink, were such as to render Williamson permanently blind and imbecile. But if the inability to see and incapacity to transact business were only temporary, then the note was not void in the hands of an innocent endorsee.”
    12. The referee erred in his conclusions, that the matters proposed to be set up as a defence to the payment of the note in suit, do not constitute a legal defence against the plaintiff.

      H. L. Fisher and John Gibson, for plaintiff in error.
    We submit that the referee erred in deciding, under the facts of the case, as a naked point of law, that the defence of drunkenness in the maker cannot be set up against the innocent holder of a negotiable note. The general mental and physical condition of the maker, superinduced by dipsomania, together with the fraud practised upon him, constitute something more than the mere defence of voluntary drunkenness at the time, with this additional feature of the maker not being able to see and read the note for himself, which was falsely read to him. There are impositions which a man, drunk or sober, cannot guard against. The decedent requested the note to be read, and said he must sign it “mechanically.”
    The vision of the signer of the note was so impaired that he could not do otherwise. He was in the position of a layman, or illiterate person, as in Thoroughgood’s Case, 2 Rep. 96, the resolutions of which are quoted by his Honor Judge Agnew, in Schuylkill Co. v. Copley, 17 P. F. Smith 389. Under the circumstances of this case the note w'as not the deed of Williamson, and was a forgery: Schuylkill Co. v. Copley, supra; Green v. North Buffalo Township, 6 P. F. Smith 110; Worrall v. Gheen, 3 Wright 396; Michener v. Carman, 2 Id. 337. Void notes continue so in the hands of an innocent purchaser: Unger v. Boas, 1 Harris 601; Bowman v. The Cecil Bank, 3 Grant 33. It was error to allow proof of a mistake in the date of the note: Losee v. Bissell, 26 P. F. Smith 459. The character of the note should have put the holder on inquiry.

      W. C. Chapman and H. W. McCall, for defendant in error.—
    In the cases cited by plaintiff in error, the instruments sued on were bonds and not negotiable paper, and the suits were between the original parties, or where the notes were made void by statute. This case is ruled by Phelan v. Moss, 17 P. F. Smith 59, which has been followed by Garrard v. Haddan, Id. 82; Zimmerman v. Rote, 25 Id. 188; Brown v. Reed, 29 Id. 370; Hirst v. Hart, 23 Id. 286; Moorhead v. Gilmore, 27 Id. 118; Reese v. Waubaugh, 2 W. N. C. 145; Battles & Webster v. Laudenslager, 3 Norris 446. Where justice requires it, the real date of a note may be inquired into and effect given to the instrument: ¿Story on Promissory Notes, sects. 45, 48; Passmore v. North, 13 East 517; Drake v. Rogers, 32 Maine 524.
    June 9th 1879.
   Mr. Justice Woodward

delivered the opinion of the court,

As between the maker and the payee of the note in controversy, it is not to be doubted that the facts found by the referee would have been amply sufficient to sustain the defence to the plaintiff’s claim. Williamson, the maker, at the time when the note was signed, was in a state of extreme physical and mental weakness, brought on by habits of intemperance. His sight had become impaired and his body had been partially paralyzed. The note was written by J. L. Lawrence, in whose favor it was made, and purported on its face to be for the sum of $737.37. The amount really due from Williamson was $37.37. After the note was written, he asked that it should be read to him, as he was not able to read it himself. Lawrence read it as purporting to be a promise to pay $37.37, the sum for which it was intended to be given. Williamson signed it, in his own phrase, “ mechanically.” He was under the influence of liquor, at the time. Robert Torbert, who was present, testified, according to the printed notes of evidence, that he “was partly drunk.” The statement as quoted in the report was, that he “was pretty drunk.” Testimony was given before the referee, tending to show that Neeley, the plaintiff below, had knowledge of the fraudulent character of the note before he bought it. Asa Jones swore that Neeley and Lawrence, about the year 1872, pressed him to buy a note for what he regarded as a large amount, although he could not recollect what the amount was. He said he “ would call five or six hundred dollars a good deal under the circumstances,” but whether the note equalled or exceeded that sum he could not state. The witness could not recall the maker’s name. There was testimony also that Neeley, about the time of Williamson’s death, had a conversation in relation to this note, with L. W. Finley, in which Neeley said, that in case he collected it, there might be something in it for Finley, who was a creditor of Williamson. Although it was drawn and signed on the 24th of January 1872, the date as written was the 24th of January 1871. It was left unstamped when made, and it was not until the 9th of November 1872, that the proper stamps were affixed, at the request of Neeley, by whom the statutory penalty was paid.

Under these general features of the cause, the ground was taken, on behalf- of the' defendant in the argument here, in the first instance, that the referee erred in finding that the fact of knowledge by the plaintiff, of the fraud perpetrated by Lawrence, had not been established. The defendant’s counsel insisted also, that it was the duty of the referee to find that Williamson had been in a condition of such utter imbecility, superinduced by gross and long-continued intemperance, as, under the rule adopted in Sentance v. Pool, 3 C. & P. 1, to avoid, even in the hands of an innocent endorsee, “ the note which he had been induced to sign by fraud and imposition.” And it was further urged that in the circumstances of the case — in the mistake in the date, making the note apparently overdue, and in the absence of a stamp — there was enough to put the plaintiff upon an inquiry, which would have disclosed to him the true nature of the transaction; and that, failing to inquire, he was chargeable with all the consequences of actual and complete knowledge.

But with all the evidence before him, the referee reported that the plaintiff obtained the note for a valuable consideration, bona fide, and without notice that any fraud or imposition had been practised upon the maker. This question was one of fact, and whatever opinion this court might form upon the evidence, if they were required to pass upon it, in the first instance, it is clear that no such palpable mistake .has been made as to justify them in overruling the decision of the referee. His report, under the express terms of the Act of the 9th of April 1868, had “the effect of the verdict of a jury,” and could be set aside only for eauses that would require the setting aside of such a verdict.

Did the facts reported establish such a condition of mental imbecility so complete, as to avoid this note in the hands of an innocent endorsee? The finding was in the following words: “John G. Williamson, before he acquired habits of intemperance, was a man of intelligence and vigorous intellect. During the latter period of his life, his vision became, by reason of gross intemperance, impaired, his body, partially paralyzed, and his mental powers, weakened. ■ When, however, he was sober, he was capable of transacting his business affairs in a proper manner, until within a short time previous to his decease.” The testimony of Torbert was recited as explanatory of the circumstances under which the note was signed. The witness had said: “ On the morning of January 24th 1872, J. L. Lawrence came to the house of John G. Williamson, and had with him a number of gallons of liquor. Williamson was sober early in the morning when Lawrence was there. Williamson, Lawrence and another drank together. Williamson was pretty [partly] drunk. Lawrence wanted his note. _ Williamson said he could not see to write. Lawrence drew the note himself. Williamson said he would sign it mechanically. It was read by Mr. Lawrence. 1% called for thirty-seven dollars and some odd cents. Williamson asked me to hear it read. By the time Lawrence went away, Williamson was very tight — drunker than he was before.” The evidence certainly did not make out the existence of insanity or a state of absolute incapacity. Nor did it make out a case beyond the operation of the rule by which The State Bank v. McCoy, 19 P. F. Smith 204, was decided. There, fraud on the part of the payee of a note was set up by the maker, in a suit by the endorsee, and it was alleged, that when he signed the note, the defendant was so intoxicated as to be unconscious of the act. In delivering the opinion of the court, Judge Williams said: “If a man voluntarily deprives himself of the use of his reason by strong drink, why should he not be responsible to an innocent party for the acts which he performs when in that condition? It seems to me that he ought, on the principle, that where a loss must be borne by one ■of two innocent persons, it shall be borne by him who has occasioned it. * * * But there is another and controlling reason for holding the maker liable to the endorsee in such case, founded on principles of public policy and the necessities of commerce. The exigencies of trade require that there should be no unnecessary impediments to the ready circulation and currency of negotiable paper, but that it should be left free to pass from hand to hand like bank notes, and perform the functions of money, untrammelled by any equities or defences between the original parties. If, then, it should be held that the drunkenness of the maker avoids the note in the hands of the endorsee, it is obvious that such a rule would greatly clo¿ and embarrass the circulation of commercial paper, for no man could safely take it without ascertaining the condition of the maker or drawer when it was given, although there might be nothing suspicious in its appearance or unusual in .the character of the signature.” Nothing need be added to these well-considered views.

Upon the broad question of the effect of Lawrence’s fraud on the note in the hands of the endorsee, the authorities collected and the principles stated in Phelan v. Moss, 17 P. F. Smith 59, are conclusive. That case expressly recognised the ruling in Miller v. Race, 1 Burr. 452, that bank notes, though stolen, become the property of the person to whom they are delivered bona fide and without knowledge of the larceny, and the ruling in Lawson v. Weston, 4 Esp. 56, that if a bill has been lost, and the loser has advertised it in the newspapers, and it is discounted for the person who found i-t, and so came fraudulently by it, this entitles the person discounting it to recover the amount, if done bona fide and without notice of the way in which the holder became possessed of it. The defendant relied on the authority of Green v. North Buffalo Township, 6 P. F. Smith 110, and Schuylkill County v. Copley, 17 Id. 386. Both cases were actions on specialties, and both between the parties to the instruments. And in both it was held that where a .misrepresentation of the contents of a specialty is made to an illiterate person who executes it, it is not his deed, and he may avoid it. In Unger v. Boas, 1 Harris 601, the action was on a note for a gambling debt; and in Bowman v. The Cecil Bank, 3 Grant 33, the bill sued upon had been discounted by the agents of a bank in Maryland, doing business outside this state. In each instance, the contract was in defiance of a prohibitory statute, and each was ruled in accordance with the principle recognised in Peacock v. Rhodes, Doug. 636, excepting such a case from the operation of the law relating to negotiable securities. None of these precedents, in circumstances or in principles, are applicable in this inquiry. In Worrall v. Gheen, 3 Wright 388, the holder sued the accommodation endorser of a forged note. It had been drawn for $50, and after endorsement by the defendant, the maker had so altered it as to make it read as if drawn for $150. To the extent of the sum covered by the forgery, the defence was sustained. But here the instrument itself was not tampered with. It passed to the plaintiff in the precise form in which it left the maker’s hands. Phelan v. Moss has been uniformly followed, since it was decided. In Garrard v. Haddan, 17 P. F. Smith 82, it was held that if one by his acts, silence or negligence, misleads another, or effects a transaction whereby an innocent party suffers, the blamable party must bear the loss ; and it was said in Zimmerman v. Rote, 25 P. F. Smith 188, that the maker of a note must guard the public against frauds and alterations by refusing to sign negotiable paper in such form as to admit of fraudulent practices with ease and without ready detection. The wrong done to Mr. Williamson was flagrant, but the plaintiff is not therefore to be denied the rights of an innocent holder of commercial paper to which he is entitled under a long-established and firmly-settled legal system.

As a final ground of defence, the irregularities appearing on the face of the note have been urged as sufficient to defeat the plaintiff’s claim. By mistake it was ante-dated, and it was not stamped until after it was negotiated. It was conceded that the validity of an instrument is not affected by an error in the date, even if it is not dated at all; the time will be computed from the day when it was issued or made, or, if thr' 1— ' ' 1 Promissory Notes, sect. 45. No dated. In both cases they will be valid in point of law, unless some statute exists to the contrary; and where the purposes of justice require it, the real date may be inquired into, and’.effect given to the instrument: Id. sect. 48. But while this has been conceded, it has been argued that the error should have created suspicion and led to inquiry. In Beltzhoover v. Blackstock, 3 Watts 20, Judge Sergeant concurred in the position taken in Gill v. Cubit, 3 B. & C. 466, that if an endorsee takes a note heedlessly, and under circumstances which ought to have excited the^suspicions of a prudent and careful man, the maker or endorser may be let into a defence.. In Phelan v. Moss, however, it was expressly declared that Gill v. Cubit was not law in Pennsylvania, and it was decided that the existence of suspicious circumstances alone will not defeat an endorser’s right to recover, but that in order to defeat his title mala fides on his part must be proved. So in The State Bank v. McCoy, supra, Judge Williams held, that even “ if the evidence had made out a case of gross carelessness on the part of the bank that alone would not have been sufficient to defeat, his title to the note. There must have been proof that the bank took it maid fide or with notice of the fraud.” And it was said in Moorehead v. Gilmore, 27 P. F. Smith 118, that “the latest decisions, both in England and this country, have set strongly in favor of the principle that nothing but clear evidence of knowledge or notice, from the day when its existence fraud or malafdes can impeach the prima facie title of the holder of negotiable paper taken before maturity.” The facts found here show neither knowledge by the endorsee, notice to him, nor fraud or bad faith on his part, and the apparent defects in the note cannot stand in the place of requisite affirmative proof

Judgment affirmed.


text:
    Wall et al. versus Staley.
    The declarations of a debtor, that his wife owned land, sold on a judgment against the debtor, are not evidence to impeach the title of the vendee at the sheriff’s sale.
    May 5th 1879;
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett JJ.
    Error to the Court of Common Pleas of Lancaster county; Of May Term 1879, No. 33.
    Ejectment by John Staley against George Wall and William Wisner, for a lot of ground in the city of Lancaster.
    The defendants claimed the lot by virtue of a sheriff’s deed, in pui’suance of a sale 'upon a judgment obtained by them against Cyrus Staley. The plaintiff claimed that he had bought said lot and received a deed therefor from his mother, the wife of said Cyrus Staley, and that she had purchased said lot with her own money from one George Miller. The deed from Miller to Mrs. Staley it was alleged was lost, and evidence was given of its contents. At the trial before Livingston, P. J., the plaintiff offered to prove by one Herr, that witness went to Cyrus Staley to purchase the property, and that Staley declined to consider the offer, on the ground that his wife owned it. The court, under objection, admitted the evidence.
    The defendants submitted the following point, to which is appended the answer of the court: “ That as the plaintiff has shown no title out of either the Commonwealth or Proprietaries of Pennsylvania, he cannot recover.”
    Ans. “ Both parties having, by the evidence, traced the ownership and title of this property in dispute back to Drepperd and George Miller, and both claiming under and through them (plaintiff claiming that Miller sold and conveyed the property to Mrs. Staley, and defendant claiming that Miller sold and conveyed it to Cyrus Staley, as whose property they purchased it at sheriff’s sale), the plaintiff was not bound to go beyond that, or trace the title further back. If there be adverse title in the Commonwealth, or in a third person, it is incumbent on the defendants to show its existence to enable them to take advantage of it.”

      The verdict was for plaintiff, and after judgment, defendants took this writ and assigned for error the answer to the above point, and the admission of the foreging evidence.

      George Nauman and Philip D. Baker, for plaintiffs in error.—
    The court erred in the answer to the point. The defendants bought the lot as Cyrus Staley’s : he said it was his, his wife said it was his, and the son alleged that he bought it for wages earned in minority, knowing it was levied on as his father’s. It would hardly seem possible that the declarations of an insolvent husband, about to be sold out, that his property belongs to his wife, are admissible in evidence as declarations against interest, and this court, in Baker v. Miller, 1 Yeates 305, decided that the declarations of a debtor that he had sold his land, could not be given in evidence against the sheriff’s vendee to overreach a judgment obtained against him and a consequent sale.

      Wm. Aug. Atlee and Benjamin F. Davis, for defendant in error.
    Where both plaintiff and defendant claim under the same right, the plaintiff is not bound to trace back his title beyond the person holding that right: Riddle v. Murphy, 7 S. & R. 230; Patton v. Goldsborough, 9 Id. 47; Turner v. Reynolds, 11 Harris 199; Clark v. Trindle, 2 P. F. Smith 492. The testimony of Herr was not offered to rebut any of the testimony offered by the defendants, or to establish the truthfulness of Cyrus Staley. It was offered as a self-disserving declaration of defendants’ alleged privity in estate, and could not be given until after the defendants claimed title through him. As such it was clearly evidence, and properly admitted by the court.
    October 6th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

On May 6th 1835 the lot was conveyed by Drepperd to George Miller. The evidence was ample to satisfy a jury that Miller took and held actual possession till June 13th 1866, when he conveyed the lot to Cyrus Staley, or his wife; and, had the question been submitted, doubtless the jury would have found that he had a good title under the Statute of Limitations. ' Without attempting to rebut the plaintiff’s evidence of Miller’s title,- or to show that he had transferred it to Staley, the defendants rested upon their sheriff’s deed as sufficient for their possession against anyone who failed to show title in himself. To rebut the plaintiff’s testimony that Miller made a deed to Ann Staley, they proved the declarations of both Staley and his wife, that the title was in him. These declarations do not set forth the contents of a deed, but it may well be inferred therefrom that Staley held title derived from Miller. It is manifest that the defendants did not purpose to prove what title Staley had, and they neither claimed nor asserted that Miller had conveyed to him. The record fails to show, by admission or otherwise, that they claimed the property in dispute under and through Drepperd and Miller; nor did they give written evidence of title back of Staley; nor did they assent, but excepted, to the instruction that they claimed under and traced their title back to Miller. At most the court could have submitted the oral testimony to the jury. In view of the evidence it was clearly right to refuse the defendants’ point; for the jury would likely have found that the plaintiff had a good title; perhaps, also, would have found that defendants held by title derived from Miller, had these questions been submitted with proper instructions. Indeed the proofs are so strong that it is not surprising, in the haste of a trial, the court answered as they did. We cannot but regard the first assignment as merely technical; nevertheless it is the defendants’ right to insist upon it.

The plaintiff was permitted to prove that in 1875 Cyrus Staley declined to consider an offer to purchase the lot, on the ground that his wife owned it. A general rule is, that admissions of a grantor, prejudicial to himself, while in possession, are competent evidence against those who claim under him: Alden v. Grove, 6 Harris 377. If it be conceded that Staley was in possession in 1875, and stands as the grantor of defendants, yet he was then a debtor, owing the defendants, who have since purchased the lot in collecting the debt. The rule has its exceptions. “ On principles of general convenience, it would be. highly dangerous to admit evidence of this kind to impeach the titles of vendees under sheriff’s sales. If declarations of the debtor, that he had sold the land to another, could be brought forward in this way to overreach a judgment against him, no one would ever purchase at a sheriff’s sale, and every creditor would be at the justice, if not mercy of his debtor:” Baker v. Miller, 1 Yeates 305. This language has stronger emphasis when applied to a debtor’s declarations that his wife owned the land. Now that husband and wife can be witnesses for each other, and parties for themselves, the principle held in a ease where the debtor declared he'had assigned to a stranger, should be applied with greater strictness where it is proposed to prove that the debtor said the land he occupied belonged to his wife. Where the wife claims the property against her husband’s creditors, she must establish her title by other proof than his declarations of her ownership, made at a time when the debts w§re threatening. •

Judgment reversed, and venire facias de novo awarded.