author: Trunkey, J.

text:
    July Term, 1881,
    No. 16.
    March 10th, 1882.
    Steckel et al. versus Desh.
    1. A receipt indorsed on a deed showed that the consideration was paid by a purchase-money bond and mortgage. The mortgage was not recorded for more than sixty days after its execution, and, before either it or the deed of conveyance was recorded, the vendee sold a portion of the mortgaged premises. Held, that, the deed being in the line of the purchaser’s title, the receipt upon it was notice to him of the mortgage.
    2. There being evidence of admissions by the mortgagee of payment of the mortgage by money and papers, the Court was asked to charge, that, if the jury were satisfied, from all the evidence in the case, that the mortgage was paid, the verdict must be for the defendants, and the Court affirmed the point, if the jury found that the mortgagee “ was actually paid the whole amount of the mortgage money.” Held, that the qualification of the point was not error.
    3. In a sai. fa. by an administrator upon a purchase-money mortgage for $16,500, executed to him for the consideration of lands of the decedent sold by him, the mortgagor S- and tern tenants offered in evidence an agreement between the decedent and S. made in the lifetime of the decedent, in which the latter authorized S. to sell the lands for a sum not less than $20 000, promised to ratify contracts made for the purpose and to convey, and that S. should have one-half of all he obtained in excess of $20,000 as remuneration. They further offered to prove that, upon the death of the decedent, letters of administration were granted to the mortgagee and S. jointly, and that thereafter it was agreed between S. and the widow, heirs, and guardians of the children of the decedent to carry the agreement made by the decedent into effect, and that for this purpose the lands should be sold under proceedings in partition in the Orphans’ Court and conveyed to S.; that thereupon S. was discharged as administrator and a sale made, and the mortgage executed pro forma; and that a written agreement was made between S. and the widow, heirs, and guardians of the children of decedent reciting the prior agreement and other facts, and agreeing that S. should sell the lands for a sum not less than $20,000, and pay over to the representatives of the decedent one-half of the money in excess of that sum, after deducting expenses, and thatthe residue or other real estate taken in exchange should be divided between them in a certain- manner and in certain proportions designated; and that the terms of the agreement were fulfilled by the division of the lands remaining unsold after sundry payments, and the mortgage was thereby satisfied. Held, that, inasmuch as the mortgagee was not a party to the agreement with the heirs, and there was nothing in it relieving him from liability to account, the evidence was properly excluded.
    4. The agreement between the decedent and S. was not evidence for any purpose, and whether or not it vested in S. a power to sell, coupled with an interest, was immaterial.
    5. When a trustee files his account and charges himself with money which he ought to have ready for the person entitled, the debtor cannot avail himself of the charge as an admission of his payment and shut out the accompanying words at the time of filing, or other matter in the account tending to show the cause for accounting for the money, as if it had been received.
    6. If the act of a party or a portion of his words be proved against him he" may show in rebuttal the words accompanying or relating to said act, or the other words uttered in connection with those already proved, when necessary to arrive at a correct understanding of the transaction.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sierrett, and Green, JJ.
    Error to the Court of Common Pleas of Northampton County.

    Alias scire facias sur mortgage by Daniel Desh, administrator of the estate of Henry Y. Iiottel, deceased, against Solomon A. Steckel, mortgagor, and Barnet Eenner, Edward Steyer, and George W. Erankenfield, terre tenants.

    At the trial in the court below, before Dreher, P. J., the plaintiff offered in evidence the mortgage dated September 9th, 1868, recorded January 22d,'1869, given “ to secure the payment of the sum of $16,500, with interest, on demand, the said sum of $16,500 being the entire purchase-money of real estate conveyed this day by the said Daniel Desh, administrator to Solomon A. Steckel, in which is included the widow’s dower.” At the bottom of the deed from Desh to Steckel, following the execution and preceding the certificate of acknowledgment, was the following receipt:
    “ Received, on the day of the date of the above written indenture, the sum of $16,500 by bond and mortgage, bearing even date herewith, in full of the consideration-money within mentioned. Daniel Desh.”
    The plaintiff, by his own testimony and that of the mortgagor, proved that the dower was $3000, and that there remained due on the mortgage $3558.60.
    The defendants offered in evidence articles of agreement between Solomon A. Steckel and the widow and heirs of Henry Y. Hottel, deceased, together with other evidence substantially as contained in the written offer infra.

    The offer was objected to, and the objection sustained under exception.
    The defendants then, by leave of the Court, filed a special plea, setting forth substantially the same facts.
    The plaintiff demurred to the plea, and upon joinder of issue on the demurrer, the Court entered judgment on the demurrer for the plaintiff'.
    Defendants then offered in evidence a deed of Solomon A. Steckel and wife to Barnet Eenner, one of the terre tenants, for a part of the mortgaged premises, dated September 19th’ 1868, and recorded December 15th, 1868. This deed recited the property conveyed by it as “ being a part and parcel of the same premises which Daniel Desh, administrator of the estate of Henry Y. Ilottel, deceased, by his indenture, dated September 9th, 1868, and recorded in the recorder’s office at Easton, conveyed unto Solomon A. Steckel, party hereto, in fee.”
    The defendants then made the following written offer of proof: The defendants offer to prove that,"in the lifetime of Henry Y. Hottel, viz., on November 28th, 1867, the said Henry Y. Hottel entered into an agreement with the said S. A. Steckel by which he authorized and empowered said Steckel to treat with any person or persons whatsoever for selling the lands covered by the mortgage in suit, and to ratify all sales made by the said Steckel, and to give in evidence said agreement. (See ivfra.)

    That the said II. Y. Hottel died in the month of April, A. D. 1868, prior to which said Steckel had sold only a small quantity of said land ; that the said Hottel died intestate, and letters of administration were granted to said Desh and Steckel; that thereafter the widow and heirs and the guardians of the children of said II. Y, Hottel proposed to said Steckel to carry the agreement made with the intestate into effect, and that an agreement of a like character should be made between them; that said Steckel agreed to said proposal, and it was further agreed that in order to enable him to carry into effect the wishes of said widow and heirs, proceedings in partition should be commenced in the Orphans’ Court, the land sold to said Steckel, and a deed executed to him; that pursuant thereto the said Steckel applied to said Court and was discharged as administrator to enable him to appear as the purchaser at said sale, and that thereafter a sale was made and mortgage executed proforma, upon the express understanding that said Steckel was to sell the land in the manner prescribed in the agreement with H. Y. Hottel; that after the execution of the deed an agreement was executed between the widow’ and heirs and said Steckel.
    AGREEMENT.
    Articles of agreement made and entered into between Solomon A. Steckel, of the borough of Bethlehem, in the countv of Northampton and Commonwealth of Pennsylvania, of the one part, and Elizabeth Hottel, widow, William H. Hottel and Franklin Hottel, Sarah Hottel, Matilda Hot-tel, Catharine Nagle, wife of Benjamin Nagle, by their guardian, Charles Bodder, and Oscar Hottel, Elizabeth Hot-tel, Harrison Hottel, and Elemina Hottel, by their guardian, Jacob J. Hoffman, children and heirs of Henry Y. Hottel, late of the township of Bethlehem, county aforesaid, deceased, of the other part, witnesseth. Whereas, articles of agreement in writing and under seal were made and entered into on the twenty-eighth day of November, A. D. 1867, by and between the said Henry Y. Hottel in his lifetime and the said Solomon A. Steekel in the manner and form as follows, to wit:
    “ Articles of agreement made and entered into the twenty-eighth day of November, A. D. one thousand eight hundred and sixty-seven, between Henry Y. Hottel, of Bethlehem township, Northampton County, Pennsylvania, of the first part, and Solomon A. Steekel, of Bethlehem borough, county and State aforesaid, of the other part, as follows, to wit: The said Henry Y. Hottel by these presents authorizes and empowers the said Solomon A. Steekel to treat with any person or persons whatsoever for selling his the said Ilottel’s lands, situate in the township of Bethlehem aforesaid, containing thirty-three acres, more or less, with the houses and all other the improvements thereon erected in lots and parcels to suit purchasers, provided that the said S. A. Steekel shall not sell the said land, houses, and improvements either in whole or in part for a sum less than twenty thousand dollars,
    “ And the said Henry Y. Hottel promises that he will ratify and hold for firm and effectual all and every contract the said S. A. Steekel shall enter into with other parties for the sale of the whole or part of said land, and that he will at the time or times agreed upon between said Steekel and the purchasers by good and lawful deed, well and sufficiently grant, assure, and convey unto the purchaser or purchasers, his or their heirs or assigns in fee simple, clear of all incumbrances, the lots or parcels sold to them by the said Solomon A. Steekel. The said S. A. Steekel shall be at full liberty to sell the said premises at a higher price than the purchase-money aforesaid, and of all that he obtains in excess of or over twenty thousand dollars he shall have the one-half as remuneration for his services, the other half to be to the use of the said Hottel. The surveys of lots and parcels necessary to be made in consequence of the sale of such lots or parcels and also the title papers for the same to be made at the proper costs and expense and charges of the said II. Y. Hottel, but all the advertising and trouble and labor of selling to be done at the expense of the said S. A. Steekel. This agreement, entered into between the parties aforesaid for the purposes aforesaid, shall continue in force for the term of three years from the date of these presents. Nevertheless, if at the end of the said three years so much of the said premises has been sold as to make it evident that the balance still unsold will sell for enough to realize the aforesaid- twenty thousand dollars, then this agreement shall remain in full force and virtue until the whole property has been disposed of, anything to the contrary heretofore said notwithstanding. And for the faithful performance of all the above covenants, both parties bind themselves, their executors, administrators, and assigns firmly by these presents. In witness whereof they have hereunto set their hands and seals the day and year first above written.”
    And whereas, the said Henry Y. Hottel died, on the 17th day of April, A. D. 1868, and before the provisions of said articles of agreement were fully carried into effect; and whereas, the said Solomon A. Steckel, at an Orphans’ Court ’ sale, had by Daniel Desh, administrator of the said Henry Y. Hottel, oh the 15th day of August last past, purchased the said tract of thirty-three acres, more or less, situate in said township of Bethlehem, mentioned and described in the said hereinbefore articles of agreement, at and for the sum of $16,500, subject to the lien of a mortgage of $3500, which sale was by the said Orphans’Court confirmed; and whereas, the said parties to this agreement are desirous of carrying into effect the provisions of the said hereinbefore recited agreement for the division of all moneys that the said Solomon A. Steckel can obtain in the sale of the said premises, in the excess of the sum of $20,000, in the manner and upon the terms and conditions therein set forth: Now, know all men by these presents, that I, Solomon A. Steckel, party hereto, in consideration of the premises, as well as in consideration of the sum of one dollar to me in hand well and truly paid by the said parties to this agreement of the second part, the receipt whereof is hereby acknowledged, do agree to and with the said parties of the second part as follows, to wit: That the said Solomon A. Steckel shall, prior to the 28th day of November, A. D. 1870, sell or otherwise dispose of such portion of said premises as he may deem advisable to sell or otherwise dispose of for a sum not less than twenty thousand dollars, and that he then shall and will pay over to the said parties of the second part (including any posthumous child of said deceased) one-half of said money in excess of the said sum of twenty thousand dollars, after deducting from said one-half part all expenses attending the surveying said premises, and for title-papers, where the same has not been paid by the grantees of said premises, one-third of said one-half, less said deductions, to be for the use. of the widow of said deceased, and the remaining two-thirds for the use of.the remaining parties, including any posthumous child of said deceased, and that the residue of said premises, or other real estate taken by the said Solomon A. Steckel in exchange, or both or either, to be parted and divided by and between the parties hereto in the following manner: The said party of the first part, or his executors or administrators, shall choose one judicious person, the parties of the second part, and the executors and administrators of such as may be dead, shall choose one judicious person, and these two shall choose a third one, all citizens of Northampton County, who shall, under oath or affirmation, within twenty days thereafter make an appraisement and partition of said residue into two purparts of equal value, and in the most advantageous manner; and shall further determine by lot&who shall have the first choice of the said respective purparts. That within ten days thereafter, the said Solomon A. Steckel, or his executors or administrators, shall execute and deliver to the said parties of the second part, including any posthumous child of said deceased, a good and lawful deed for the purpart of the said premises allotted to them as tenants in common, clear of all incumbrances, of which said purpart -the widow of said deceased shall have the undivided one third part thereof.
    "Witness our hands and seals, this 7th day of OcLober, A. D. 1868.
    That, in accordance with the terms of said agreement, said Steckel sold lands amounting to $17,500, that he paid over to said Desh, in money, and securities accepted by Desk as cash, $14,500; that he delivered mortgages securing $3000 as the widow’s dower, in addition thereto, and that the terms of said last-mentioned agreement were then fulfilled by a division of the lands remaining unsold between said Steckel and the widow and heirs, and that the said widow and heirs then received lands of the value of $10,000, and that said mortgage was thereby satisfied and discharged.
    This evidence offered for the purpose of showing that Steckel was not in reality the purchaser of the land, but only acted as the agent of the heirs of Henry Y. Hottel, to efiect a sale of their lands, and to be followed with proof that the terre tenants purchased their lands of Steckel, and received deeds therefor.
    The offer was objected to, except as to all matters showing payment to Desh, for the reasons: (1) The matters are res inter alios acta; (2) they are immaterial; and (3) they have already been rejected.
    The Court sustained the objection under exception.

      In order to prove an admission by Desh that he had received payment in full of the mortgage, defendant offered in evidence his account as administrator of Hottel, filed April 27th, 1872, in which he charged himself, inter alia, as follows:
    “ September 9th, 1868. Deceived from Solomon A. Steckel, purchase-money of farm in Bethlehem Township, sold subject to a mortgage of $3400, $16,600.”
    Defendant further called a number of witnesses, who testified that, at various times, Desh had spoken of the mortgage, and said he had money enough and good papers enough to settle all up.
    The plaintiff,-in rebuttal, offered in evidence the report of the auditor upon his account as admininistrator of the estate of Hottel, for the purpose of showing that on February 13th, 1874, there was a balance due on the mortgage of $3429.25, and interest, $134.31. Objected to as incompetent, that the Court and auditor had no jurisdiction to ascertain the amount due, and as not being rebuttal.
    The evidence was admitted by the Court, not to show the amount due, but as part of the record given in evidence by defendants.
    Counsel for defendants excepted.
    The plaintiff then called O. H. Meyers, who had made out the administrator’s account, and offered to prove by him that, at the time Desh filed his account he staled that he had not, in point of fact, received the sum of $16,600, the amount of the Steckel mortgage, but at that time he had only received, on account, $4065.70, and that the charge of $16,600 was placed in the account for the purpose of showing his own liability to the estate.
    It was objected to as hearsay, as contradicting the record, incompetent, and an attempt by the plaintiff to overcome by his own declarations an admission of record. .
    The Court overruled the objection, and admitted the evidence under exception.
    The witness testified, inter alia :

    “ When we came to charging him with this $16,000, he said he had not received the money. ... I said to him the mortgage was overdue, and in response to this citation, he must charge himself with the full ámount of the mortgage.”
    The plaintiff also gave evidence contradictory and explanatory of the admissions alleged to have been made by him.
    Counsel for the defendant asked the Court to charge the jury, inter alia:

    2. That if the jury are satisfied from all the evidence in the case, that the mortgage in suit was paid, the verdict must be for the defendants.
    The Court affirmed the póint if the jury find that Daniel Desh was actually paid the whole amount of the mortgage-money.
    November 11th, 1880, the jury found a verdict for the plaintiff for $4628.27, and a special verdict as to the terre tenant Fenner, reciting the facts given supra as to the conveyance to him, and that “ the deed from Daniel Desh to Solomon A. Steckel was not recorded at the time Steckel conveyed to Fenner, but that it was recorded on the 16th day of August, 1869. There is no evidence in this case whether Barnet Fenner, when he accepted his deed from Steckel, saw the deed from Daniel Desh, administrator to Steckel, of the 9th of September, 1868, and there is no evidence that he, Barnet Fenner, had or had not actual notice of the mortgage in suit.”
    April 4th, 1881. The Court entered judgment against Fenner as well as against the other defendants.
    The defendant then took out a writ of error, assigning as errors (1), the sustaining of the demurrer to the special plea ; (2), the refusal to admit in evidence the agreement between Steckel and the widow and heirs of Hottel; (3), the refusal of defendant’s offer, (4), the admission of the auditor’s report; (5), the admission of the declarations of Desh to Meyers ; (6), the answer to defendant’s second point; and (7), the entry of judgment against Fenner.

      Edward J. Fox, for plaintiffs in error.
    Under the agreement between Iiottel and Steckel, the latter had a power to sell lands coupled with an interest.
    This power was not revocable by the death of Hottel: Smart v. Sandars, 5 C. B., 895; Cassiday v. M’Kenzie, 4 W. & S., 285.
    Steckel had therefore an interest to the extent of one-half of the excess over $20,000, and the parties in interest decided, in accordance with their interest, that it should not be revoked. The guardians had power to make the subsequent agreement, just as they could have accepted bonds in partition.
    Though Desh could have testified at the trial in court, his declarations to his counsel at another time were not evidence.
    The qualification in the answer to the point was calculated to mislead the jury. It led them to suppose the payment must be in money, and there was evidence that Desh had received securities.

      The auditor’s report was res inter alios acta, and not evidence.
    At the time Fenner bought, the deed to Steckel by Desh had not been recorded, and consequently he had no notice of the mortgage.

      W. F. Foster and B. F. Fackenthall, for defendants in error.
    The verdict determined the question of actual payment and is final.
    The defendants, however, claim payment by estoppel, and rely upon the account filed. The item of charge should be read with the rest of the record and the explanations.
    The evidence of Meyers was not' hearsay, but a part of the res gestee.

    Steckel could not set up the agreements as a defence to the mortgage. It nowhere appears in them that he was not to pay Desh.
    The terre tenants derive title through him. Neither he nor they can claim that the payment of the one-half of the surplus, over the $20,000, would be a discharge of the $16,500 which he was to pay at all events, and which was secured by the mortgage.
    The questions of the revocation of the power by the death of Hottel, and of the authority of the guardians to make the agreement, are immaterial.
    Fenner was affected with notice of facts in the line of his title, and a receipt of payment indorsed on a deed is evidence against a subsequent purchaser: Beidelman v. Foulk, 5 Watts, 808; Ogden v. Porterfield, 84 Penna. State, 191; Lodge' v. Simonton, 2 P. & W., 439; Cresson v. Miller, 2 Watts, 272 ; Jaques v. Weeks, 7 Watts, 261 ; Sellers ¶. Benner, 9 W. N. O., 88 ; Parke v. Neely, 9 W. N. C., 193 ; Kelly v. Dunlap, 3 P. & W., 136; Manufg. Co. v. Neel, 54 Penna. State, 9.
    April 24th, 1882.
   — The opinion of the Court was delivered by

Trunkey, J.

In proceedings for partition of the real estate of Henry Y. Hottel, deceased, Desh was appointed trustee to make the sale. He accepted the trust, executed the order for sale, Steckel purchased, and on September 9th, 1868, a deed for the land and mortgage for the purchase-money were executed. At the foot of Steekel’s deed is the following: “ Received on the day of the date of the above written indenture, the sum of $16,500, by bond and mortgage, bearing even date herewith, in full of the consideration-money within mentioned. Daniel Desh.” The mortgage was recorded on January 22d, 1869. Steckel sold and conveyed part of the mortgaged premises to Fenner, on September 19th, 1868. The learned judge of the Common Pleas rightly ruled that notice to a purchaser, of an unrecorded mortgage, is sufficient to continue its lien on the land, and that the receipt in Steckel’s deed was notice of the mortgage to all who held under him.

The defendant’s second point was, “ That if the jury are satisfied from all the evidence in the case that the mortgage in suit was paid, the verdict must be for the defendants.” And its answer, “ Affirmed, if the jury find that Daniel Desh was actually paid the whole amount of the mortgage-money.” This is the subject of the sixth assignment, but it can hardly be error to affirm and substantially repeat the point. Possibly the counsel had endeavored to persuade the jury that payment to somebody else than the mortgagee would be satisfaction, and if so, it was well for the Court, in affirming the point, to say it meant payment to Desh.

The mortgagee was not a party to the agreement between the heirs and Steckel, and nothing in that agreement relieved him in any degree from liability to account, as trustee, for the proceeds of sale. It was made after the sale and just as if the trustee had already received the purchase-money. The defendants could show that Steckel had satisfied the mortgage, either in money or otherwise, if such was the fact, and that the court allowed; but the agreement was neither a bar nor evidence of satisfaction. Nor was the agreement between TIottel and Steckel evidence for any purpose. It matters not whether it vested in Steckel a power to sell coupled with an interest in the land, for if it did, Steckel purchased the land, sold at Orphans’ Court sale as the property of the deceased, and he has no defence, on the ground that he had an interest in the land acquired from Hot-tel in his lifetime. Clearly, there was no error in the rulings complained of in the first three assignments.

In 1872, Desh filed his account, and among other charges against himself is this: “September 9th, 1868, Received from Solomon A. Steckel, purchase-money of farm in Bethlehem Township, sold subject to a mortgage of $3400, $16,600.”

The defendants offered tjiis account as an admission that the mortgage was paid. To persons of any experience in settling estates, it would probably be very slight evidence of payment, but it was before the jury for the purpose of showing payment. The account was prepared by counsel, and the ■ Court admitted testimony in rebuttal, that at the time, Desh said he had not received the money, and charged himself with it because of advice that he was liable to account for it. And tbe auditor’s report was received in connection with the account, that it might appear how the money and mortgage were treated in the entire proceeding. If the act of a party, or a portion of his words, be proved against him, he may show in rebuttal the words accompanying and relating to said act, or the other words uttered in connection with those already proved, when necessary to arrive at a correct understanding of the transaction. When a trustee files his account and charges himself with money owing to him, which he ought to have ready for the person entitled, the debtor cannot avail himself of the charge as an admission of his payment, and shut out the accompanying words at the time of filing, or other matter in the account, tending to show the real cause for accounting for the money as if it had been received.

Judgment affirmed.


source: Caselaw Access Project

author: — Per Curiam :

license: Public Domain

text:
    NORTHUMBERLAND COUNTY.
    January Term, 1882,
    No. 427.
    April 26th, 1882.
    Clement’s Appeal.
    1. Where it is manifest on the face of a bond that there was a clerical error in inserting the amount of the penalty, equity will reform it as against the surety by substituting the amount intended, without such indubitable proof of mistake as is required in ordinary cases.
    2. The Court ordered an administrator to sell real estate for the payment of the debts of the decedent, and directed a bond to be filed in tbe sum of $800. By mistake of the clerk, a penalty of $8 was inserted instead of $800, and the bond was executed in this form by the administrator and his surety. Upon the confirmation of the administrator’s account, there was a deficit, and the administrator de bonis non of the estate filed a bill in equity against the representatives of the administrator and his surety, asking for a reformation of the bond. There was some conflict of testimony as to the knowledge, on the part of the surety, at the time of the execution of the IJond, of the amount intended to bé inserted. Held, that the bond could be reformed by substituting in the penalty the sum of $800 instead of $8.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal of Ira T. Clement from the decree of the Court of Common Pleas of Northumberland County, confirming the report of a master recommending the reformation of a bond executed by Clement as surety.

      October 19th, 1879, Peter H. Snyder, administrator de bonis non of Catharine Thurston, deceased, filed a bill in equity in the Court below against Ira Shipman, administrator of Abraham Shipman, deceased, setting forth that Catharine Thurston, in May, 1877, was seised of certain real estate, and that letters of administration upon her estate were granted to Abraham Shipman, who presented a petition to the Orphans’ Court asking for an order to sell the said real estate for the payment of debts.; that, January 9 th, 1878, the Orphans’ Court ordered him to sell the said real estate, and directed him to enter into bond in the sum of $800, and approved of Ira T. Clement as surety; that, on J anuary 10th, 1878, the administrator and surety executed a bond to the Commonwealth, but that the scrivener who drew it, by mistake, omitted the word “hundred ” after the word “eight” in the penal sum, so that it purported to be a bond in the penal sum of $8; that the administrator and surety, intending to comply with the order of the Court, by executing a bond in $800, executed the bond as drawn without perceiving the mistake; that, under an order of the Court, of January 18th, 1878, reciting that a bond in $800 had been filed, the administrator sold the real estate, which sale was confirmed, and a deed was made to the purchaser, and $720.19 were received by the administrator; that Abraham Shipman, the administrator, died, and the defendant, Ira Shipman, was appointed his administrator; that Abraham Shipman died insolvent, having in his hands $650.51, proceeds of the sale of the said realty; that the complainant was appointed administrator de bonis non of Catharine Thurston, and had demanded the said sum from Ira Ship-man and Clement. The bill prayed that the bond be reformed so as to read $800 instead of $8, that Clement pay the sum of $650.51, and further relief.
    The answer of Ira T. Clement averred that, “I did not intend to sign with the said Abraham Shipman, as principal, any bond other than such as I did sign and execute as surety for him, to wit, a bond in the sum of $8.”
    In response to specific interrogatories, Clement answered:
    “ I cannot state of my own knowledge, or from information, remembrance, or belief, whether at the time I signed the bond as surety for Abraham Shipman, I knew that I was signing such a bond to enable him, as administrator of Catharine Thurston, to obtain an order of the Orphans’ Court to sell real estate of the said Catharine Thurston, deceased. At the time said bond was signed, Abraham Shipman merely stated ‘that he had a small estate to settle up, that did not amount to anything; that he had a bond to give/ and asked me to go on it as surety, but have no recollection whether any sum was mentioned.”
    Before the examiner appointed to take the testimony, Uriah Bloom testified, inter alia:

    “ This bond was drawn kt the request of Abraham Ship-man, and at the time of drawing it he signed his name to it, and told me that he would leave it in my possession for Mr. Clement to sign, that Mr. Clement was to go on as bail. In the course of several days, it may have been a week, I don’t remember exactly, Mr. Clement came in and told me that Mr. Shipman had requested him to sign a bond in the Thurston estate. At the time he came in, I was working at a desk standing in the corner near the door, and the bond was in a package of papers lying on the table, which was behind the railing. He told me that Mr. Shipman had requested him to sign a bond in the Thurston estate. I told him that the bond was in the package lying on the table ; he walked to the table and took up the package and took out the bond. Whilst he was doing that, he remarked that he believed the bond was to be in the sum of $600. I told him that it was a bond for $800, that the Court had so ordered it. He took the bond to another desk, that was standing in the office against the railing, too, and there signed it without my going over to him or leaving my work. He said, also, at the time that I told him that the bond was to be in $800, that he did not so understand it at the time that Mr. Shipman requested him to sign it; that he, Mr. Shipman, had told him it was only to be for the amount of $600. That is all I can recollect of it. . . .
    “ A. My intention was, and I believe it to have been Mr. Clement’s intention, to sign a bond in the sum of $800.
    ' “ Q. Was or was not the drawing and the executing of the bond in the sum of eight a mistake?
    “ A. It was a mistake.
    “ Q. Lid you or did you not, in drawing the bond, omit the word ‘hundred’ by mistake?
    “ A, I omitted the word ‘hundred’ by mistake in drawing the bond.
    “ Q. Lid you, at the time of drawing the bond and at the execution of the bond, perceive the mistake ?
    “ A. I did not.
    “Q. Lid Mr. Clement?
    “ A. I can’t say that; he did not say anything.”
    Another witness corroborated this testimony to some extent, and a claimant against the estate testified that, after the administrator of Abraham Shipman had filed his account, and it had been confirmed, Clement said to him that he expected he would have to pay the claim, and that he would pay it without further trouble.
    Clement testified that the above conversation concerning the amount of the bond did not occur.
    The Court referred the bill, answer, and testimony to E. W. Greenougb, as master, who reported, inter alia: ,
    “Equity will reform a written instrument only, that it may correspond with and carry out the original intentions of the parties, and it is generally much more difficult to establish the intention of a surety than of a principal obligor; and, moreover, as the surety rarely is the recipient of as great benefit as the principal, it is but just that the greatest care should be exercised in binding him to fulfil the contracts of his principal to show what were his intentions when he signed the instrument in question.
    “ Equity will set up a lost bond against a surety. The reason is, that the surety is not discharged by the loss of the bond, and the Court only relieves against the accident by setting up the evidence of the debt: Brandt on Suretyship and Guaranty, section 118, Kerney’s Administrators v. Kerney’s Heirs, 6 Leigh (Ya ), 478 ; East. India Co. v. Boddam, 9 Yesey, 464 ; also, ‘ where the contract does not express the agreement or intention of the parties to the injury of the obligee, and this is clearly made to appear, equity will reform the instrument against sureties' as principals: ’ Brandt on Suretyship and Guaranty, section 118; Olmstead v. Olmstead, 38 Ct., 809; Besore v. Potter, 12 S. & R., 154; and again, under same section of Brandt on Suretyship and Guaranty, we find as follows: £ A trustee, having in his hands funds arising out of the property sold under decree of Court, became delinquent-, and having wasted the fund died intestate, having before committed breaches of his bond, for which both he and his sureties would have been liable at law if he had lived, a claimant of the fund in the hands of the trustee could not place himself in a position to proceed at law on the bond because of the death of the trustee. Held, equity would afford him relief on the bond against the sureties. There was a clear right against the sureties which could not be enforced at law because of the accident of the death of the principal, and the fact that there was a right, and no remedy at law, was sufficient alone to give equity jurisdiction.’ The law on this subject was well and concisely stated by the Court as follows: A court of equity will do nothing to extend the liability of securities beyond the clear intent and import of their contract. But if to such an extent they cannot at law be held liable by reason of fraud, accident, or mistake, a court of equity, to prevent a failure of justice, will interfere and enforce the execution of their contract according to their obvious meaning and design:’ Brooks v. Brook, 12 Gill & Johns. (Md.), 306. One need go no further for authority for assuming that a surety, under certain conditions, stands on precisely the same footing as his principal, and the only question that can remain is, whether those conditions exist in this case or not. Can a security to an administrator bond be held to the express terms of an order of Court? He is no party to the petition, it is true, but his name is presented to the Court as surety, and if he afterwards sign the bond, it may certainly be presumed, with perfect justice, that he willingly makes himself a party to the whole transaction. In the absence, however, of any authority on this point, if the intention of Ira T. Clement, surety in this case, can be satisfactorily established by parol evidence of what occurred at the execution of the bond, equity will surely be warranted in interfering to enforce the said bond ‘ according to its obvious meaning and intent.’ Parol testimony of what occurred ‘ at or about the time ’ of execution can be offered to correct a mistake in a written instrument: Penshaw v: Gans, 7 Barr, 117...... The master has already found, as a matter of fact, that the weight of the evidence is against Clement, as to whether he was informed at the time of the execution of the bond, what amount the Court had fixed as the condderation in the said bond. Clement does not deny anywhere that he knew he was signing a bond in the Thurston estate. He nowhere states what his intentions were as to the bond than that he ‘ intended to sign no other bond than the one he did sign.’ This is his statement in his answer to complainant’s bill, and again in his answer to complainant’s interrogatories, and also in effect in his testimony before the examiner. These facts being established, it is the opinion of the master, as already previously stated, that Ira T. Clement signed the said bond believing it to be drawn in the sum of $800, and could therefore have intended to sign a bond in no other sum than the sum ordered by the Court. In only one way is it possible to suppose that Clement, being informed of the sum ordered by the Court, intended to sign a bond drawn in any other sum, and that is by supposing that he discovered the sum in which the bond was actually drawn, and concealed the knowledge of it; and even were this so, and proven, it would only change the case from one of mistake to one of fraud. Believing, then, that Ira T. Clement intended to sign a bond drawn in accordance with the order of Court, a court of equity would not ‘ extend his liability ’ by reforming the mistake made by the scrivener, because, had there been no mistake made, he would unquestionably be bound in law for the amount due the Thurston estate; and, if equity does not interfere to correct the mistake, it will be impossible to enforce the bond ‘according to its obvious meaning and intent.’
    “ Your master, therefore, for reasons set forth, respectfully recommends that a decree be made that the bond be reformed against Ira T. Clement, respondent, in such manner as shall afford the relief prayed for by the complainant, Peter II. Snyder, in his bill in equity.”
    The defendant, Clement, excepted to these findings.
    The Court below, Rockefeller, P. J., dismissed the exceptions, confirmed the report, and decreed that the bond be reformed by inserting the word “ hundred ” after the word “ eight ” in the penal sum, filing the following opinion:
    “ The Court ordered a bond to be given in the sum of eight hundred dollars, and approved of Mr. Clement as bail. In .drawing the bond the clerk, by mistake, filled up the blank by inserting ‘eight dollars’ instead of ‘eight hundred dollars.’ It is clear from the evidence, and the master so finds, that the parties intended to execute a bond for eight hundred dollars. The mistake of a scrivener in preparing a writing maybe shown'by parol evidence and the instrument reformed accordingly. Such reformation is an exercise of the equity powers of all our Courts. Equity relieves against mistake as well as against fraud. It is not pretended there was any fraud in this case, but there was a plain mistake.”
    Clement then appealed, assigning that the Court erred in dismissing the exceptions and confirming the report, in reforming the bond, in assuming that the parties intended to execute a bond for $800, and in stating broadly, in a case where the intention of the parties is disputed and the evidence conflicting, that “ the mistake of a scrivener in preparing a writing may be shown by parol evidence, and the instrument reformed accordingly,” and that “ such reformation is an exercise of the equity powers of all our Courts.”

      8. P. Wolverton and T. H. Purely, for the appellant.
    If the conversation had occurred about the amount, it would naturally have led to the discovery of the alleged error.
    If there was a mistake on the part of the deputy who drew the bond, a court of equity could not reform it merely to meet the intention of the Court, nor the intention of the deputy, nor to meet the intention of the principal, but it must be reformed to meet the intention of all the parties who have any liability in it, and if there was no certain and positive agreement of intention which was defeated by the alleged mistake, then the bond cannot be reformed at all.
    The evidence that the surety intended something different from the plain reading of his obligation, must be so clear as to leave no shadow of a doubt, before a Court of equity can reform a bond so as to hold him to a greater liability than the plainly expressed wording of the bond: Moser v. Libenguth, 2 Rawle, 428 ; Stine v. Sherk, 1 W. &S., 195 ; Schettinger v. Hopple, 3 Grant, 54; Insurance Co. v. Union Canal Co., Brightly, 48; Zentmyer v. Mittower, 5 Barr, 403; Kenny v. McClellan, 7 Phila., 655 ; Leggett Humphreys, 21 Howard, 66 ; Cooper v. Insurance Co., 14 Wright, 299 ; Withers v. Livezy, 1 W. & S., 433; Stub y. Stub, 3 Barr, 254; Woods v. Wallace, 10 Harris, 176 ; Kennedy v. Plank Road Co., 1 Casey, 224; Rogers v. Smith, 4 Barr, 93 ; Commonwealth v. Forney, 3 W. & S., 358; Stub v. Deck, 4 Casey, 497; Allison v. Kurtz, 2 Watts, 185; Fulton v. Hood, 10 Casey, 365.
    The law is well settled that equity will not reform an instrument unless the mistake was mutual, and then only to make it what the parties intended it should be. To enlarge the amount of the bond against his understanding of it, and against the plain reading of it, in the absence of ambiguity or fraud, would be to establish a doctrine so dangerous as to render every man unsafe in signing any written obligation.

      George B. Reimensnyder, for the appellee.
    The settled law of Pennsylvania is, that a written instrument may be reformed by parol evidence of what passed between the parties at or about the time of its execution, in cases of fraud, accident, mistake, or trust: Renshaw v. Gans, 7 Barr, 117, 118; Snyder v. May & Klose, 7 Harris, 235; • Rearich v. Swinehart, 1 Jones, 233-238 ; Lauchner v. Rex, 8 Harris, 464; Christ v. Dieffenbach et al, 1 S. & R., 464; Bollinger v. Eckert, 16 S. & R., 422; Gower v. Sterner, 2 Whar., 74; Moliere v. The Penna. Fire Ins. Co., 5 Rawle, 342-346 ; Hamilton v. Asslin, 14 S. & R., 448 ; Chew v. Gillespie, 56 Pa., 309-314 ; Martin & Monroe v. Berens, 67 Pa., 459; Coughenour v. Suhre, 71 Pa., 462 ; Russell’s Appeal, 75 Pa., 269; Church v. Moore, 10 Barr, 280; Gump’s Appeal, 65 Penna. State, 476. •
    Courts of equity will reform written contracts so as to afford relief, where there is no adequate remedy at law, against a surety as well as against the principal: Brandt on Suretyship and Guaranty, sec. 118 ; Olmsted v. Olmsted, 38 Conn., 309 ; Kerney’s Admr. v. Kerney’s Heirs, 6 Leigh (Va.), 478 ; East India Co. v. Boddam, 9 Vesey, 464; Wiser v. Blaehly, 1 Johns. Chau., 607; Berg v. Radcliff, 6 Johns. Ch., 302-807 ; Rawstone v. Parr, 3 Russell,.424; S. C., Id., 539; Crosby v. Middleton, Prec. Chan., 309; Brooks v. Brooke, 12 Gill v. Johns. (Md.), 306; Prior v. Williams, 3 Abb. N. Y. App. Rep., 624; Besore v. Potter, 12 S. & R., 154; Story’s Eq. Jur., vol. L, sec. 164, note 6, sec. 164 a.
    May 8th, 1882.
   — Per Curiam :

That a bond to secure the amount of a sale by order of the Orphans’ Court by an administrator in the penalty of eight dollars was a clerical error was manifest on its face. There was evidence that the appellant was told it was to be eight hundred dollars. In such a case, supported by the prima facies of the mistake, we need hardly demand such indubitable proof of mistake as is required in ordinary cases.

Decree affirmed and appeal dismissed at -the costs of the appellant.


author: — Per Curiam:

text:
    PHILADELPHIA COUNTY.
    July Term, 1881,
    No. 83.
    January 18th, 1882.
    Allegaert versus Smart.
    1. The breach of a covenant by the landlord not to rent other property in the neighborhood belonging to him for the same business as that of the tenant is not a forfeiture of the right to the rent.
    2. The damages for such a breach of covenant cannot be set off in replevin.
    3. The effect of the breach is that there should be a reduction of the amount of the rent proportioned over the whole period of the lease.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas No. 2 for the County of Philadelphia.

    Replevin by Peter Allegaert against John Smart, landlord,, and Thomas W. Sinnote, bailiff, upon a distress for rent.
    The defendants made avowry, to which the plaintiff pleaded Hen en arrere, and a special plea setting up a breach of covenant on the part of the defendant, on which the case was put at issue.
    Upon the trial in the Court below, before Fell, J., the following facts appeared:

      On the 31st day of August, 1875, Smart, through his agent, Samuel T. Fox, leased, under seal, to Allegaert the dwellings and stores Nos. 204, 206, 208, and over No. 208J North Eighth Street, in the city of Philadelphia, for the term of five years, at the rent of $4250 per year, to be paid in monthly portions in advance. Smart was the owner of a number of properties on the west side of Eighth Street, extending from Race Street to Maple Street, and the lease provided, inter alia, “ the said John Smart agrees not to rent any of the remaining stores from Race to Maple streets for the millinery business during the term of this lease.”
    Upon the 1st of October, 1879, a month’s rent of $354.16 became due, and for this sum the defendant distrained. Allegaert did a large millinery business, and took in from $400 to $800 a day.
    About August 20th, 1879, Fox, as agent for Smart, rented to David Hertzman a store on the west side of Eighth Street, adjoining that of Allegaert, and in it Hertzman carried on the millinery business until about October 22d, 1879. At that time Fox gave him $100 to surrender his lease. He did a small business, amounting to from $5 to $30 a day. His door was between Allegaert’s window and his own, and the show-window of Allegaert’s store appeared to belong to the store he occupied.
    Counsel for plaintiff produced as a witness an employe of the plaintiff', and asked:
    “ (J. To what extent was Allegaert’s business interfered with by Ilertzman’s store ?”
    The question was objected to, and the objection sustained under exception.
    Allegaert testified, inter alia:

    “ I would not have made the lease if he had not put that clause into it, not to rent the other stores for the millinery business. I could not answer what the difference in rental value between my store with Hertzman carrying on business next door and without him. I would not rent it at all without that clause.”
    The evidence for the defendant was substantially, that Smart was in ill health ; that his wife attended to his business ; that he did not know this store was rented for a millinery store j that Hertzman’s store was seven or eight feet wide by twelve long; that on learning of the mistake Fox paid Hertzman $100 to get out; and that the rental value of Allegaert’s store was not affected more than five dollars.
    Smart said, inter alia : “ I would not have had that clause against renting the other stores for the millinery business for ten thousand dollars.”

      Counsel for the plaintiff asked the Court to charge:
    “ That if the j ury find that the Hertzman store was rented for the millinery business, and the millinery business was carried on in the store leased by Hertzman at the time of this distress, then the verdict should be for the plaintiff.”
    The Court refused this point, and charged the jury, inter alia:

    “ The lease to Mr. Hertzman was executed by Mr. Eox during the absence of Mr. Smart, and without his knowledge, and without knowledge upon the part of Mr. Eox at the time of the condition in Allegaert’s lease.
    “ Although there was no bad faith on the part of Mr. Fox or Mr. Smart, the leasing of the adjoining store to Mr. Hertz-man was a violation of the agreement previously made with Allegaert.
    “ [This, however, did not release Mr. Allegaert from the payment of rent. He could not remain and. pay nothing, but he may be entitled to a reduction.]
    “ The measure of which reduction is the difference between the rental value of the premises occupied by Allegaert after Hertzman took possession of the store leased by him and the rent reserved by the lease.”
    Counsel for the plaintiff excepted to the charge and the refusal of the point.
    Verdict for the defendant, rent in arrear $300 and value of goods $500, upon which judgment was subsequently entered.
    The plaintiff then.took out a writ of error, assigning as errors that part of the charge which is in brackets, the refusal of the point, and the exclusion of the testimony to which objection was made as above.

      Theodore F. Jenkins, for plaintiff’ in error.
    The violation of the condition cannot be compensated for by damages, and would, on that account, be restrained in equity: Story’s Equity Jurisprudence, see. 722 a.
    At law, the landlord is precluded from recovering his rent because he is a wrong-doer: Vaughan v. Blanchard, 1 Yeates, 175 ; McClurg v. Price, 9 P. F. Smith, 420; Taylor on Landlord and Tenant, sec. 380.
    The interruption of the enjoyment of the privilege constitutes an eviction: Peck v. Hiler, 24 Barb., 178; Etheridge v. Osborn, 12 Wend., 529.
    As to the measure of damages: Bitner v. Brough, 1 Jones, 127; Hoy v. Gronoble, 10 Casey, 9 ; Garsed v. Turner, 21 P. F. Smith, 56.

      William, G. Harinis, for defendant in error.
    This case is governed by Obermyer v. Nichols, 6 Binn., 159 ; Fairman v. Fluck, 5 Watts, 516 ; and Prescott v. Otterstatter, 29 Smith, 462.
    Where no bad faith is charged-and it plainly appears that the breach of covenant was not wilful or intentional, it is analogous to the case of a partial eviction by title paramount, where, when the tenant remains in possession of part of the premises, he must pay a fair rental value of the premises actually occupied by him: Seabrook v. Moyer, 7 Norris, 417; Beed v. Ward, 10 Harris, 144; Linton v. Hart, 1 Casey, 193.
    And even when the landlord is unable to deliver possession of all the premises demised by reason of the wrongful holding over of a former tenant; yet if part be accepted and used and enjoyed, the tenant must pay a fair rental value for the part so used and occupied: Smart v. Allegaert, 8 W. N. C., 217 ; affirmed by the Supreme Court, 10 W. N. C., 29.
    That the Court below was correct as to the measure of damage is abundantly shown by the cases of Sehujdkill Nav. Co. v. Thoburn, 7 S. & B., 411; Fairman v. Fluck, 5 W., 516; Prescott v. Otterstatter, 29 Smith, 462; Smart v. Allegaert, 8 W. N. C., 217.
    January 30th, 1882.
   — Per Curiam:

The charge in the matters .complained of and the rejection of the evidence offered were entirely right. The breach of the covenant by the landlord was certainly no forfeiture of the right to the rent. Nor could the damages be set off in replevin. The only effect, according to Fairman v. Fluck, 5 Watts, 516; Warner v. Caulk, 3 Whart., 193; and Prescott v. Otterstatter, 29 P. F. Smith, 462, was, that there should be a reduction of the amount of the rent, proportioned over the whole period of the lease.

Judgment affirmed.


text:
    January Term, 1882,
    No. 297.
    April 7th, 1882.
    Aull versus Bonnell.
    1. The widow can have but one title of dower in her husband’s estate.
    2. When he conveys real estate without her joining in the deed, the grantee takes subject to the dower; and if the grantee should reconvey to the husband it would be still the same title of dower in the wife.
    3. A husband conveyed certain premises without his wife joining in the deed. In proceedings in partition of the real estate of the grantee, the premises in question were valued subject to the “inchoate right of dower” of the wife, and were awarded to the husband. He subsequently gave a mortgage, under proceedings upon which these premises were taken in execution and sold to a third person. Held, That the dower was barred.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, and Green, JJ.; Sterrett, J., absent.
    Error to tbe Court of Common Pleas, No. 2, for Philadelphia County.

    Dower, by Maria Aull against George B. Bonnell. A case stated was agreed upon which set forth the facts substantially as follows:
    On the 22d day of May, 1858, Alfred Aull granted and conveyed unto Sarah Aull, in fee, a messuage, barn, spring-house, and lot or piece of ground containing nine acres, two roods, and thirty-six perches, in Philadelphia. At the time the convejance was made, the plaintiff was the wife of Alfred Aull, and refusing to join in the deed, it was executed, acknowledged, and delivered by Alfred Aull only.
    Sarah Aull was the mother of Alfred Aull. She died intestate on January 23d, 1868, and proceedings for the partition of her real estate were instituted in the Orphans’ Court of May Term, 1868. In the petition for the appointment of commissioners to value and divide the real estate, the premises in question were said to be “ subject to an inchoate right of dower in Maria Aull, the wife of the said Alfred Aull.” The commissioners made return to the Court that the real estate could be divided without prejudice to or spoiling the whole, and valued and appraised the premises in'question, “subject to the inchoate right of dower mentioned in the petition,” at the sum of $4000. The commissioners then proceeded to divide all the real estate into purparts. “ Purpart No. 1 ” consisted of five separate lots of ground, and included the lot in question in this suit, which was described in the same manner as in the petition, and was the only lot as to which there was any question of dower.
    On the 27th of June, 1868, purpart No 1 was allotted and awarded by the Orphans’ Court to Alfred Aull in severalty.

      On August 31st, 1876, Alfred Aull mortgaged the premises in question to John Crawford to secure the payment of the sum of $6000, with interest. The mortgage was in the usual form, and no reference was made in it to the subject of the dower of the said Maria Aull.
    Alfred Aull died on May 12th, 1877, intestate.
    Under proceedings upon the mortgage, the sheriff sold the premises in question to the defendant, June 7th, 1880, for $4100.
    December 20th, 1881. Judgment for the defendant upon the case stated.
    The plaintiff then took out a writ of error, assigning as error the entry of the above judgment.

      M. Arnold, for the plaintiff in error.
    In this case the dower of the plaintiff became fixed by the deed of conveyance of her husband without her joining in it. "When the real estate was subsequently appraised and allotted, in the proceedings for partition of the real estate of Sarah Aull, the grantee, the allotment back to Alfred Aull was made expressly “ subject to the inchoate right of dower ” of the plaintiff'. All that he acquired was a property subject to an estate in another person, and that person was his wife. He did not acquire the whole estate in his land. His wife’s dower had attached. No one could bar her of it without her consent: Line weaver v. Stoever, 1 W. & S., 164.
    Had any other one of the heirs of Sarah Aull become entitled to this land in the partition suit, the plaintiff’s dower would have remained in the land, and it could not be divested by the act of any one save only herself. What principle of law or what authority deprives her of it when her husband becomes the owner of it a second time ? Her estate was not the subject of the proceedings in partition. Sarah Aull never owned the plaintiff’s estate, and Alfred Aull, the son of Sarah, acquired nothing in the partition suit which belonged to his wife. _
    _ Can it be said that the plaintiff’s dower was merged in the new acquisition of her husband ? Merger is the union of two or more estates, or interests in law, in one and the same person. It never is permitted against the intention or the interest of the parties. It is essential that the several estates should unite in the same person. They did not so unite here. The plaintiff was not a party to the proceedings in partition, and she took nothing thereby. She does not claim two dowers in the same land, but she does claim what Chief Justice Gibson calls “her dower left in the land,” when her husband parted with it “ independently of her concurrence and will.”
    Resides, Alfred Aull’s mortgage, and the purchaser at the sheriff’s sale under it, had express notice of this dower remaining in the land. The record of the allotment to him in partition, shows that it was allotted, in express words, “ subject to the inchoate right of dower ” of the plaintiff: Metzgar’s Appeal, 21 P. E. Smith, 332.

      William W. Porter and Walter D. Alien, for defendant in error.
    In the proceedings in partition, the estate of Alfred Aull was not before the Orphans’ Court; that Court could, therefore, make no order which would fix the dower of his wife, or create or affect any estate or right in her. When the partition proceedings were commenced, it could not be known to whom the property would finally be allotted. The only object of the reference to the dower of Maria Aull was to give notice to purchasers that the land might, in their hands, become subject to her dower, if she outlived her husband and her right were not divested by a judicial sale of the land for the payment of his debts. In the final decree, making the allotment to Alfred Aull, no mention was made of the dower of his wife.
    By the award in partition, the same estate which had been conveyed by Alfred Aull to his mother was again vested in him. So far as any right of his wife was concerned, he was then in the same position with regard to the property as if he had never conveyed it. Being the absolute owner of the property, he conveyed it in mortgage to John Crawford, to secure a bona fide debt, without reserving any right in his wife. Under proceedings on this mortgage against the administrator of Alfred Aull, the property was sold by the sheriff' to the defendant. This sale divested the right of the plaintiff to her dower in the premises, whether the right was inchoate, or had attached to the land on its allotment to her husband, or on his subsequent death.
    Under the law of Pennsylvania the dower of the wife cannot be fixed or ascertained until the death of her husband. She is only then entitled to dower in what remains after the payment of his debts: Scott ®. Crosdale, 2 Dallas, 127; Killinger v. Reidenhauer, 6 S. & R., 534; Directors of the Poor v. Royer, 7 Wright, 146; Mitchell®. Mitchell, 8 Barr, 127; Lazear ¶. Porter, 6 Norris, 517 ; Directors of the Poor v. Royer, 7 Wright, 153.
    April 17th, 1882.
   — Per Curiam:

The widow can have but one title of dower in her husband’s estate. When he conveys without her joining in the deed, the grantee takes subject to the dower, and if he should reconvey to the husband it would still be the same title of dower in the wife. It matters not how the land returns to the husband, by deed or proceedings in partition, the same dower-right still subsists. It matters not that the first conveyance by the husband was expressly subject to the inchoate right of dower. It would have been the same if it had not been so expressed. Expressio eorum quce tacite insunt nihil operatur.

Judgment affirmed.


text:
    July Term, 1881,
    No. 87.
    March 29th, 1882.
    Appeal of Daniel Buck et al.

    A feme covert, owning real estate, united in a mortgage with her husband to secure his bond. He subsequently erected, with her consent, machinery on the premises necessary to carry on his trade. The real estate was subsequently levied upon under the mortgage and sold at sheriff’s sale. He gave no notice at the sale of any claim to the fixtures. Held, that if he could have previously asserted any claim to them, he waived it by thus assenting to the sale.
    Before Mercur, Gordon, Paxson, Trunkey, Sierrett, and Green, JJ. Sharswood, C. J., absent.
    Appeal from the decree of the Court of Common Pleas, No. 2, for Philadelphia County, confirming the report of a master.
    Bill in equity filed by James T. Kirkpatrick, Jr., and Maderwell Kirkpatrick, trustees, against Daniel Buck, James Buck, and William W. Lee, to restrain the defendants from removing certain machinery bought by them at a sheriff’s sale, from an iron foundry, which had been purchased by the complainants upon a sale under a levari facias on a mortgage.
    After answer filed, the case was referred to T. F. Jenkins, as examiner and master, who reported the facts substantially as follows:
    Louisa Weieke was the owner of a three-story brick building and kiln, for burning limestone, and lot of ground, buildings and lot of ground, and also a factory and lot, all on New ’ Market Street, in the city of Philadelphia. She joined with her husband, Edward Weicke, in a mortgage of these premises to the complainants, to secure a bond of $15,000 of even date, given to them by Edward "Weicke. The latter was then in possession, and shortly afterward converted the premises into a boiler manufactory. Machinery necessary for carrying on such a manufactory, consisting of planers, lathes, presses, cutters, etc., were erected by him. The l’elation of landlord and tenant did not exist between them, but Edward Weicke took possession, with the consent of his wife, for the purpose of establishing the factory, and there was no express agreement between them as to whether or not he had a right to remove the tools and machinery. Ther<j was no evidence as to whether or not he intended that these tools and machinery should become and remain attached to the premises as part of the freehold.
    A scire facias was issued on the mortgage, judgment was obtained thereon, and the premises were sold by the sheriff, January 6th, 1879, under a levari facias, to the complainants. At the sheriff’s sale, Edward Weicke gave no notice that he, intended to claim the machinery as his personal property, and that it would not pass to the purchaser. A sheriff’s deed was delivered to the complainants January 25th, 1879. After the sale, two writs of fieri facias were issued upon separate judgments against Edward Weicke, and a levy was made upon the tools and machinery, which were sold thereunder to the defendants, Daniel Buck and James Buck.
    The other defendant, Lee, was the deputy sheriff who conducted the sale. The complainants had no knowledge of the levy under the writs of fieri facias until after the sale. At the time of the filing of the bill the defendants, Daniel and James Buck, were about to remove the tools and machinery from the premises.
    The master found that the articles mentioned were fixtures, which were bound by the mortgage, and passed to the complainants by their purchase of the real estate at the sheriffs sale, and that the preliminary injunction granted in the case should be made perpetual against Daniel Buck and James Buck, and that as to the other defendant, Lee, the bill should be dismissed.
    Counsel for defendants filed numerous exceptions to the finding of the master.'
    June 17th, 1881, it was ordered and decreed that “the bill be dismissed as to W. W. Lee, and that the preliminary injunction, heretofore issued, be made perpetual against Daniel Buck and James Buck,” with costs.
    The defendants then appealed, assigning as errors the decree as above,.and the dismissal of the exceptions.

      B. F. Fisher, for the appellants.
    The judgment on the mortgage was in rem, and bound only the land. The land belonged to the wife. The inchoate tenancy by the curtesy was no such interest as converted into realty machinery brought on the property by Weicke for his separate business: Estate of Benjamin Hinds, 5 Whár., 188.
    It is absolutely established that it was not the intention of either the husband or wife that the machinery should become part of the realty. The intention to annex is the legal criterion: Hill v. Sewald, 3 P. IT. Smith, 271; Seeger v. Pettit, 27 P. F. Smith, 437; Meigs’s Appeal, 12 P. F. Smith, 28; Lemar v. Miles, 4 Watts, 330.
    To hold that because Weicke did not remove the fixtures during the term, he and the purchaser, under the fieri facias, lost the right to remove them, would be a great hardship.
    The owner had, under the law, three full months, after the making of the deed and notice, in which to remove. No notice to quit was ever given. The term- did not end until the right to possession ceased: Smith on Landlord and Tenant, 263; Mackintosh v. Trotter, 3 M. & W., 184; Wee ton v. Woodcock, 7 M. & W., 14 ; Davis v. Moss, 2 Wright, 346; Hill v. Sewald, 3 P. F. Smith, 271.

      John L. Kinsey, for the appellees.
    The machinery formed part of the realty, and passed by the sale under the mortgage: Voorhis v. Freeman, 2 W. & S., 116; Pyle v. Pennock, 2 W. & S., 391; Gray v. Holdship, 17 S. & R., 413; Heaton v. Findlay, 2 Jones, 304; Harlan v. Harlan, 3 Harris, 507; .Roberts v. Bank, 7 Harris, 71; Climie v. Wood, L. R., 3 Exe., 257; Christian v. Dripps, 4 Casey, 271; Ege v. Kille, 3 Norris, 333; Morris’s Appeal, 7 Norris, 368.
    Admitting the tenancy, the tenant was bound to remove the fixtures during the term. The term ended with the sheriff’s sale, caused by his own default: Davis v. Moss, 2-Wright, 346; Overton v. Williston, 7 Casey, 155; White v. Arndt, 1 Whar., 91.
    Fixtures erected by a mortgagor of a less interest than a fee will be bound by the mortgage: Meux v. Jacobs, L. R., 7 H. of L. Cases, 481; Railroad Co. v. Woelpper, 14 P. F. Smith, 372; Ladley v. Creighton, 20 P. F. Smith, 490.
    April 10th, 1882.
   — Per Curiam:

This contention cannot be decided by affirming the right of a tenant to remove, during his term, fixtures which he has erected for the purpose of carrying on his trade.

The facts go much further, and require the application of other principles of law. The fixtures in question were erected by one of the mortgagors. It matters not that the title to the land was in his wife. He joined in the execution of the bond, the payment of which the mortgage was given to secure, and he united with her in the mortgage. Scire facias issued on the mortgage, and judgment thereon was duly recovered. By virtue of execution therefor, the appellees purchased the land with the fixtures then on it, and received the sheriff’s deed. No notice was’ given at the sheriff’s sale of any claim that the fixtures were not bound by the mortgage, or that the purchaser at that sale would not acquire title to them. No rights of the appellants had then attached. Their judgment was obtained afterwards. If Weicke could have previously asserted any claim to the fixtures against the mortgage, he waived all such by thus assenting to the sale.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    January Term, 1882,
    No. 251.
    March 27th, 1882.
    Carey versus Sheldon et al.

    1. An undertaking in the following words, viz.: “ I hold myself responsible to you for the amount of sixty dollars margin for any marble you may furnish to Jacob Kohler, agent,” is an original undertaking and not a guaranty, and the person executing it is primarily liable upon it.
    2. Gilbert v. Henek, 6 Casey, 205, commented upon.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. J, for Philadelphia County.

    Assumpsit by Richard K. Sheldon and Andrew Adams, trading as Sheldon & Adams, against George W. Carey.
    Upon the trial in the Court below, before Briggs, J., the plaintiffs gave evidence of a sale of marble to Jacob Kohler, amounting to sixty dollars, and that they declined to sell to Kohler until he obtained the order in dispute from the defendant. The order was executed and delivered by defendant to the plaintiffs, and was as follows:

      “ Philadelphia, September 18th, 1878.
    “Messrs. Sheldon & Adams.
    “ Gents : I hold myself responsible to you to the amount of sixty dollars margin, for any marble you may furnish to Jacob Kohler, agent. , Geo. Carey.”
    The defendant asked for a nonsuit, on the ground that the order was not an original undertaking.
    The Court overruled this motion, and charged the jury:
    “ This instrument of writing is a positive and original undertaking, and I charge you your verdict should be for the plaintiff.”
    The defendant excepted to the charge.
    October 20th, 1881, verdict for the plaintiff for $69.43, upon which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning the charge of the Court as error.

      George W Arundel, for plaintiff in error.
    Gilbert v. Henck, 6 Casey, 205, decides that a promise to be responsible for the contract of another, is a contingent liability, and becomes absolute only by showing due and unsuccessful diligence to obtain satisfaction from the principal.
    The undertaking here is to become responsible for the debt of another, and is, therefore, ruled by the latter ease.
    The distinction taken in this State between a security and a guarantor is well settled. The latter assumes but a collateral contingent liability. His engagement is to pay in default of solvency in the debtor, provided diligence was used to obtain payment from him: Isett v. Hoge, 2 Watts, 129; Snevily v. Ekel, 1 W. & S., 204; Johnston v. Chapman, 3 Penna. Rep., 18.

      C. H. Krumbhaar, for defendants in error.
    That the contract is one of original undertaking, and therefore of surety, is clearly settled by Ashton v. Bayard, 21 P. F. Smith, 139 ; Woods v. Sherman, 21 id., 100; Hohl ■v. Korn, 2 W. N. O., 277.
    April 10th, 1882.
   — Per Curiam :

This case is ruled, by Marberger v. Pott, 4 Harris, 9, and Allen v. Hubert, 13 Wright, 259, and not by Gilbert v. Henck, 6 Casey, 205, in which the question of the character of the instrument did not arise, and the opinion expressed was clearly extrajudicial, as supposing it to be a guaranty, the Court held the plaintiff was entitled to judgment: Ashton v. Bayard, 21 P. F. Smith, 139.

Judgment affirmed-.


text:
    January Term, 1882,
    No. 167.
    April 3d, 1882.
    Carman’s Appeal.
    1. There is nothing in the language of the statute of wills to prevent a widow who accepts what is given toher under a will, from taking in addition her share of that part of the estate as. to. which the testator died intestate.
    2. The accidental omission of a. residuary clause in a will, though the intention of the testator may be conjectured, cannot be supplied.
    Before Suarswood, C. J.; Mercur, Gordon, Paxson, Trunkey, and Green, JJ. Sterreto;,. J., absent.
    Appeal of Martha Carman from, the decree of the Orphans’ Court of Philadelphia County, adjudicating upon the account of Julianna B. Carman, executrix of the will of Hudson Carman, deceased.
    Hudson Carman died January 24th, 1880, leaving a last will and testament, in which he devised and bequeathed as follows:
    “I hereby give and bequeath to my wife, Julianna B. Carman, all the furniture, and every other article of what kind soever it may be, in any way used or connected with housekeeping, including books, pictures, and engravings, silver and silver-plated ware, and also my wardrobe, watch and chain, and all personal ornaments, and all moneys in the house at the time of my decease.
    “ I also further give and devise to my said wife, Julianna B. Carman, her heirs and assigns forever, the house and lot, with all its privileges and appurtenances, numbered 1127, on the north side of Spruce Street,, in the said city of Philadelphia, wherein I now reside.
    “I also further give and devise tó my wife, the said Julianna B. Carman, her heirs and assigns forever, all that yearly rent or sum of $322, lawful silver money, payable in half-yearly payments on the first days of March and September, in each and every year, issuing out of a certain piece of ground situate at the north-east corner of Broad and Sassafras streets, in the said city of Philadelphia, which said yearly rent- I now hold under a certain deed recorded, etc......
    “I also give, devise, and bequeath to ray wife, the said Julianna B. Carman, my burial lot, No. 175, in Section D, in the Woodland Cemetery, containing 355 square feet, and all the privileges thereto pertaining, the certificate whereof is dated the first day of September, 1860, to hold to her and her assigns as fully as I possessed the same.
    “ I also further give and bequeath to my said wife, Julianna B. Carman, the following loans and stocks, now held by me, that is to say: (The will then describes specifically and in detail certain bonds and stocks.)
    “ And I hereby order and direct that the certificates and vouchers for the loans and stocks before mentioned, shall be transferred to my wife, the said Julianna B. Carman, so soon after my decease as conveniently may be, and that she shall receive, for her own use, the interest and dividends that may fall due and payable thereon from and after my decease, as well as those which may have fallen due and not have been received by me in my lifetime.
    “ And I do hereby constitute and appoint my said wife, Julianna B. Carman, executrix of this my said last will and testament, giving hereby my said executrix full power and' authority, at her discretion, to retain as they now exist all other investments, or to sell the same, or any part thereof, and invest the proceeds of such sale or sales, until the final settlement of my estate, in legal securities.”
    The testator left surviving him a widow and sisters, and the issue of deceased brothers.
    The widow elected to take under the will. ' As executrix she filed an account showing the entire amount of the personalty to be $109,990.19, which included the specific legacies to the widow, amounting to $60,151, and she claimed commissions of three per cent, upon the whole sum, or $3299.70.
    The heirs of the testator objected to the commissions.
    The Court below, Hanna, P. J., filed an adjudication, inter alia, as follows:
    “ In view of these facts, there would seem to be force in the objections made to the amount of the commissions claimed. As is well established, the term ‘ commissions ’ should be understood as signifying the compensation to be allowed for labor, services, and responsibility. There is no fixed rate, and the amount allowed varies according to the circumstances of each ease. In the present instance there was no evidence offered as to the labor and services required of accountant in the settlement of the estate, or of the responsibility incurred by her. It must be presumed, therefore, that none but the ordinary trouble was imposed, and the regular and usual services performed. It is evident that but slight services were necessary to take charge of and transfer the legacies specifically bequeathed, and no responsibility whatever to other parties. So far, then, there is little need of compensation. But still, as to the remainder of the estate, the accountant would be entitled to compensation, and the auditing judge has concluded to allow, not any rate of commissions, but a fixed sum in gross for what appears to have been the trouble, services, and responsibility of accountant in the care of and conversion of the assets of the estate, the custody of its funds, and subsequent distribution. The sum of three thousand dollars is accordingly allowed accountant as compensation for services, etc., to the present time. Should it become necessary to sell and convert the remaining assets of the estate, such other compensation will bo allowed upon the settlement of a further account as seems just and proper.
    “ As, perhaps, has been observed from the references to the will of testator, he makes no disposition of the residue of his estate.
    “Mr. Law, therefore, claimed, on behalf of the widow, that, as her husband must be considered as having died intestate as to the undisposed-of portion or residue of his estate, and having left no issue, she was entitled absolutely to one-half part of the residue.
    “ On the contrary, Mr. Price contended, that the widow, having taken under the will, was barred from any other participation in the estate. And from the generous provision made for her' by testator, his intention is clear that she should not take any further share of the estate. Mr. Price, therefore, claimed that the entire residue should be awarded to the collateral heirs.
    “ The question thus presented, in the opinion of the auditing judge, is free from doubt. The election of the widow only applies to the provisions of the will, and so much of testator’s estate therein included, not to that part which is affected by the law relative to eases of intestacy. There is no election as to that, nor can she be called upon to say what proportion of such an estate she will claim to take. What ever estate the testator omits to dispose of falls within the grasp of the law and its distribution is by it directed. If it be admitted that this testator died intestate as to the undisposed-of balance of his estate, then there is an end to the controversy, and it must be distributed according to the provisions of the intestate law. He died without issue, so that his widow is entitled to one-half of the residue of his personal estate absolutely. Without entering upon an extended review of the Act of Assembly upon the subject of the widow’s interest in her late husband’s estate, or of the cases defining the nature and effect of the election to take under or against the will, it will suffice to refer to the latest case upon the subject: Reed’s Appeal, in 1 Norris, 428, where the right of the widow to take her share under the intestate law, although she had elected to take under the will, is fully recognized and determined.
    “ The accountant, as widow of testator, will therefore be awarded one-half of the balance of the residuary personal estate, and the other half part will be awarded to the collateral heirs.”
    The Court made distribution accordingly.
    Exceptions were filed by the collateral heirs, which the Court, December 3d, 1881, dismissed.
    Martha Carman, one of these heirs, then appealed, assigning as errors the dismissal of the exceptions, that the judge erred in allowing the accountant $3000 for her trouble, etc., and in adjudicating that the widow was entitled to one-half of the residue of the personal estate, and in refusing to award the whole of the residue to the heirs at law.

      J. F. Byrnes and William S. Price, for the appellant.
    It was evidently the intention of the testator to measure and specify in his will what portion of his estate should be enjoyed by his widow, and thus exclude her from the residue. Every provision is for her, and, when more than two-thirds of his estate has been thus disposed of, the testator manifests that all of his intentions in her behalf have been fulfilled by ceasing to bequeath any more to her. Then, as may be deduced from the will, having made this generous provision for his wife in lieu of her statutory rights, the testator leaves the residue for his heirs. Under the Acts o.f April 8th, 1833, and April 11th, 1848, the widow had a right to elect between the provisions made for her in the will and her statutory rights, but she could not take both nor part of one and part of the other. The choice of one is the exclusion of the other.
    It seems to be the law, that, to enable a widow to take personal estate under the Act of 1848, she should elect not to take under the last will and testament of her husband.
    This is a condition precedent: Hinnershits v. Bernhard’s Ex., 1 Harris, 521 ; Anderson’s Appeal, 12 Casey, 476.
    In this case the widow did just the opposite : see Crane v. Crane, 17 Pick., 422 ; Adams v. Adams, 5 Mete., 277 ; Collins v. Carman, 5 Md., 503.

      The allowance of $3000 for compensation was too large, upon the principle stated by the Court in view of the circumstance of the case.

      P. G. McMurtrie, for the appellee.
    If the testator intended to dispose of the residue, he failed to carry out his intentions. What his intentions were is unknown to the Court. As a matter of fact, he did not dispose of that part not specifically devised or bequeathed.
    The claim of the widow to share in the undisposed of residue does not rest on the Act of 1848, but upon the first section of the Act of 1833.
    The rule that gives her the right was enacted in section 11th, of the Act of 1807: Darrah ¶. McNair, 1 Ashmead, 236. _
    _ It is a mere vulgar error that an expressed intention to disinherit the heir will exclude him. A fortiori if the intention is only to be gathered from the fact that a legacy has been given to one who is also a distributee: Redfield on Wills, part II. p. 589; Johnson v. Johnson, 4 Beavan, 318 ; Wilson v. Wilson, 3 Binne]r, 557.
    If her election to take under the will excludes her from taking under the intestate law, who is to take ? If the intestate law is to be obeyed, she is to have one-half.
    This is the first time that any one has suggested, that, because an executor is-a beneficiary under the will, he is not entitled to the same compensation as a stranger: Pusey v. Clemson, 9 S. & R., 204.
    April 17th, 1882.
   — Per Curiam :

If, as is probable, a residuary bequest in the will of Hudson Carman was an accidental omission, it is an omission we cannot supply. We may conjecture that it was intended after the liberal provision made to his widow the residue should go to his next of kin, but it would only be conjecture. We see nothing in the language of the statute of wills to prevent a-widow accepting what is given to her under a will taking her share also of so much of the estate as to which the testator dies intestate.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    January Term, 1882,
    No. 226.
    April 4th, 1882.
    Castor’s Appeal.
    1. The official bond of one appointed receiver of taxes for the Twenty-third Ward of the City of Philadelphia provided, that, if he should faithfully perform the duties of his office “for the official*term for which he was elected as aforesaid, or for any term or terms for which he may thereafter be reelected to said office, so long as he continues in said office during said original or any subsequent term or terms, then this obligation to be void, otherwise to remain in full force and virtue.” At the end of the term for which this bond was given, the principal obligor was appointed to the same office for another term, and entered into a new bond of the same form, with different sureties. During the latter term he made default to an amount greater than that of the bond given for that term. Held, that the sureties on the bond given for the earlier term were liable.
    2. The acceptance by the city of the new bond and sureties could not have the effect of discharging the sureties on the old bond.
    3. Waters’s Appeal, 10 W. N. C., 146, followed.
    Before Sharswood, C. J.; Mercur, Gordon, Trunkey, and Green, JJ. Sterrett, J., absent.
    • Appeal of Peter Castor from the decree of the Court of Common Pleas, No. 4, for Philadelphia County, confirming the report of an auditor appointed to distribute a fund in court, arising from the paymeut into court of the principal of a ground rent owned by the appellant'.
    The fund in court was $1669.34, which was referred to W. Herbert Washington as auditor to distribute. The auditor reported the material facts as follows:
    Benjamin Shallcross was duly appointed receiver of taxes for the Twenty-third Ward of the City of Philadelphia for three successive terms. The first term was from January 27th, 1873, to January 24th, 1875. He gave an official bond with warrant of attorney in the sura of $10,000 for the faithful performance of his duties, with Charles Waters and George 'M. Shallcross as sureties. Judgment was entered, but the lien had expired.
    The second term was from January 25th, 1875, to January 28th, 1877. For this term he gave his bond and warrant of attorney in the sum of $10,000, with Robert W. Shallcross and Peter Castor as sureties. Judgment was entered on it March 10th, 1875, and it became a lien upon the ground rent owned by Castor, the principal of which was in court for distribution.
    The third term was from January 29th, 1877, to January 27th, 1879. For this term he gave his bond with warrant of attorney for $10,000, with Charles Waters and George M. •Shallcross" as sureties. Judgment was entered on it February 23d, 1877.

      The warrant of attorney accompanying each bond, provided, inter alia: “ That if the above bounden Benjamin Shallcross shall and will faithfully perform the duties of the office of receiver of taxes, Twenty-third Ward, to which he was appointed by the receiver of taxes of Philadelphia, on the twenty-third day of January, 187-, as the same are defined by law or the ordinances of councils of Philadelphia, or otherwise, or as the same may be hereafter defined, for the official term for which he was elected as aforesaid, or for any term or terms for which he may thereafter be reelected to said office so long as he continues in said office during said original or any subsequent term or terms, then this obligation to be void, otherwise to remain in full force and virtue.”
    Benjamin Shallcross became a defaulter to the extent of over $30,000, and the first known default occurred February 25th, 1878, during his third term.
    April 23d, 1879, the city issued a fi. fa. on the judgment upon the bond for the last term, and the sureties upon that bond paid to the city $10,000. June 17th, 1879, under a vend. ex. upon an alias fi.fa., real estate of Benjamin Shall-cross was sold for $12,000, and from this amount there was paid to the city upon its judgment of March 10th, 1875, the sum of $9356.90. (See Waters’s Appeal, 10 W. N. C., 146.)
    The Act of May 3d, 1860, § 2 (P. L., 1860, p. 757), under which the bond was given, is as follows:
    “ That said ward receiver shall give bond to the city with good and sufficient securities in the sum of ten thousand dollars for the faithful collecting and paying over to the general receiver of taxes all money so received, accompanied by a list of the parties so paying the amount of valuation, with the amount of city and State taxes so paid opposite to each name, once in every week during the current year for which said tax shall have been levied.”
    The city claimed before the auditor the balance of $643.10, with interest from May 19th, 1879, the date of the filing of the suggestion and proof of default, to the date of the filing of the auditor’s report. This claim was resisted by Charles D. Middleton, a subsequent lien-creditor, and by Castor.
    The auditor reported, inter alia:

    “The questions involved in Waters’s Appeal were fully argued before your auditor, and he was invited to the consideration of numerous authorities pro and con, relative to the proposition that an official bond with sureties, taken under an act, but whose conditions are in excess of the requirements of that act, is, quoad the excess, void.
    “ It was further argued on behalf of Mr. Middleton, that § 2d of the Act of May 3d, 1860, provided for a bond to secure the faithful collecting and paying over of all money received, and that the duty to collect and pay over being founded upon and fixed by the duplicate books furnished to him at the commencement of the first and of the second year of his term, according to sec. 1 of that act, it cannot be assumed that the sureties meant to do more-than to bind themselves for the faithful performance of the duties thus defined; that the assumption of further duties, to wit, the entrance upon a subsequent term, was without their knowledge or consent ; and finally that the taking of a new bond wfith other sureties, discharged them, notwithstanding the condition for a continuing liability.
    “ Mr. Middleton was not a party to Waters’s Appeal, and that case is not therefore res adjudieata as to him. Yet your auditor entertains no doubt that it is his duty to follow that decision, in so far as it may affect the question before him. With this view, he directed his attention to an inquiry as to whether there is any distinction between the status of principals and sureties, so as to induce a difference in their liability on this bond.....
    “ Without quoting at large from these decisions, it may be said to be perfectly well settled by them, that the responsibilities of principals and surety on a bond are not to be distinguished.
    “ Reverting to the facs of this cause, it is to be observed, that the intention of all three of the obligors to assume a liability during continuance of the principal in office in any subsequent term, appears in the most clear and unambiguous language upon the face of the instrument; that the denial of illegality in this condition by the final decree in Waters’s Appeal must affect all parties to it; and that there is not a scintilla of evidence before your auditor to show duress, fraud, or mistake before the execution of the instrument by the sureties, or their discharge thereafter, unless it be the taking of a new bond with new sureties at the commencement of the ensuing term.
    “ But the city took the fund in Waters’s Appeal, not by virtue of a judgment obtained against the principal for money embezzled, but by virtue of the judgment on the official bond whose validity, as to the sureties, is now denied.
    “ If the giving of a new bond for the third term could discharge the sureties on the bond for the second term, why would it not have had the same effect on the principal ? But that the judgment on the bond for the second term was valid, at least as to the principal, was decided in Waters’s Appeal.
    “ No decision has been called to the attention of the auditor, nor has he been able to find any one to sustain the proposition that, on the renewal of office by the principal, the taking of a new bond with new sureties will not discharge his own liability on the old bond, but will discharge that of the old sureties, although the condition be for continuing liability.
    “Your auditor, although reluctantly in view of the facts, docs not feel justified in making such a decision.
    “ Therefore, under the law of principal and surety, as cited and understood by your auditor, and under Waters’s Appeal, he cannot believe that, had the fund in that case been produced by the property of one of the sureties instead of by that of the principal, the final decree would have been otherwise. The opinion that the result would have been the same is in the mind of the auditor the logical deduction from the law quoted; and, however strong the argument that the city could not have intended to take sureties in arithmetical progression for every succeeding term of the same officer, he considers himself bound to sustain the validity of the judgment of March 10th, 1875, as against the surety, Peter Castor.
    “The liability to pay interest on the judgment when such addition to the principal sum found due would produce an excess of the limit of $10,000, defined in the bond, was disputed on the ground that under no circumstances could anything be recoverable exceeding that sum.
    “It is true that the limit of liability is fixed by the bond, but when that liability matures, as it does upon the suggestion of breach and proof of default, the relation of debtor and creditor is at once raised between the surety and obligee. And it becomes his duty to pay the latter, the amount not exceeding the limit found due. The auditor is of the opinion that interest is to be paid by the surety upon this amount from the date of the withholding of it. The obligation to pay interest is founded, not upon the contract, but upon the principle of law, which exacts compensation to a creditor for the unjust delay in paying him after the liability is ascertained.”
    The auditor awarded to the city its claim of $643.10 with interest, and the balance to the Middleton judgment.
    Exceptions were filed to this award. The Court below dismissed the exceptions and confirmed the report of the auditor.
    Castor then appealed, assigning as errors the dismissal of the exceptions and the confirmation of the report.

      John Shalleross, Edward It. Worrell, and E. Carroll Brewster, for the appellant.
    Waters’s Appeal, 10 W. N. C., 146, is not an authority against the appellant.

      The appellant’s equities as a surety are that there was no default during the second term for which he -was a surety ; that the bond which he entered was superseded by the bond for the third term; and that the city did not accept the bond for the second term as a continuing liability of the sureties therein, but required for the third term a new bond.
    It is not pretended that the bond for the third term was eoneurrrent with the bond for the second; it was a new contract with the principal, inconsistent with the former contract, as far as it related to the sureties.
    The city had no right to demand a concurrent security; it could demand what was demanded and given, a new bond for the new term.
    Although the construction of the bond for the second term would import a continuing liability, the liability was not created unless the city accepted the bond for that purpose, and was estopped from asking a further or other bond.
    The city did not accept the nominal undertaking of the sureties on the second bond, but took that bond only as a security against a default in the second term, and sought and received another bond with new sureties, specified to be a security for the third term.
    If the third bond did not supersede the second, if it was not as it is specified, the security for the third term, but was a concurrent security, the legal result would be that the sureties for the third term who have paid the penalty of their bond, can now enforce contribution from the sureties for the preceding term, during which there was no default.
    Sh allcross was not elected for his third term, but was appointed.
    It was the spirit and intendment of the Act of April 21st, 1846, if not its very words, that there shall not be two bonds or double sureties for one official term.
    Where a bond is given for the faithful performance of the duties of an office, the term of which is clearly limited in time, the bond will be limited to the term of the office: Lord Arlington v. Merricke, 2 Saunders, 411; Liverpool W. Co. v. Harpley, 6 East, 507; Commonwealth v. Baynton, 4 Dallas, 282; Moore v. Potter, 12 A. L. B., N. S., 764.
    Where an officer has been reappointed and qualified by giving bond, the new bond supersedes the old one, and all liability on it ceases: United States v. Kirkpatrick, 9 Wharton, 720; United States v. Eckford, 1 Howard, 250; Sparks v. The Bank, 9 A. L. B., N. S., 365; United States v. Ward-well, 5 Mason, 82; United States v. Maurice, 2 Brock., 96.

      Francis A. Osbourne, G. F. Morgan, Jr., and William Nelson West, for the appellee.
    As to the measure of liability upon a bond there is no distinction to be drawn between a principal and a surety ; the rule of construction to be applied to it is the same against both. This rule may be stated thus as to official bonds: Where the bond is voluntary, and the intention to be bound in a manner or for a period in excess of the • statutory requirements is plain and unmistakable, the obligation will be enforced to the full extent of its terms against both principal and surety. Nothing less than a positive statutory prohibition will relieve either of said obligors therefrom. The bond upon which the appellee’s judgment was entered was voluntary, and the intention to be bound for a period in excess of the statutory requirement is clear. It is equally clear that there is no statutory prohibition against the giving or acceptance of such a bond.
    It must, therefore, be enforced according to its terms. See Chelmsford Co. v. Demarest, 7 Gray, 4; Dover v. Twombly, 42 N. Ii., 67; Hoboken v. Harrison, 1 Vroom, 79; Woolwich v. Forrest, Pennington (N. J.), p. 84; Augero v. Keen, 1 Meeson & Welsby, 390; United States v. Hodson, 10 Wallace, 395 ; Commonwealth v. Wolbert, 6 Binney, 292 ; Bank v. Cresson, 12 S. & R., 306; Waters’s Appeal, 10 W. N. C., 146-7.
    The Act of 21st April, 1846, only applies to bonds directed to be given by .statute, and not to an obligation voluntarily given, whereby a liability is incurred in excess of the statutory requirement.
    Under the Act of 1846 the city could not have compelled Shallcross to give a new bond similar to the voluntary obligation which was in excess of the demands of the statute, because of the insolvency of one of the sureties in that originally given.
    The mere acceptance of a new bond by the city did not of itself limit the term of the old bond, or discharge either principal or surety thereon. See Gregory v. Thomas, 20 Wendell, 17 ; Hamilton’s Executors v. Callander’s Executors, 1 Dallas, 443.
    April 17th, 1882.
   — Per Curiam :

When it was decided by this Court, in Waters’s Appeal, 10 Weekly Notes of Cases, 146, that such a condition as the one set'forth in this bond was valid, so as to bind the principal, it necessarily followed that the sureties were also bound. It remained in the custody of the city, and the acceptance of the new bond and sureties could not have the effect of discharging the sureties.

Decree affirmed and appeal dismissed at the cost of the appellants.