text:
    Woods versus White.
    1. A pleajpuis darrein continuance is in substitution of all previous pleas. It is followed by replication, tic., until an issue is formed.
    2. To a scire facias sur mortgage the-terre-tenant pleaded several pleas; and afterwards pleaded, puis darrein continuance, that the same cause of action had been litigated between the same parties in another court, upon distribution of the proceeds of a sheriff’s sale of the mortgaged premises, wherein it was determined that the lien of said mortgage was discharged from the premises. The plea concluded with a verification by the record, and the plaintiff replied nul tiel record. Upon trial of this issue the record showed that the plaintiff had appeared, by counsel, before the auditor only for the purpose of calling his attention to the fact that the question whether the mortgage had been discharged was being litigated in another court, and if it were decided that it was discharged the plaintiff then claimed payment out-of the fund; and he requested the auditor to postpone distribution until said question should be decided. The auditor declined to delay distribution,. and reported that the mortgage was discharged; but he awarded the entire fund to a claim, -which, he held, was a first lien. His report, after notice to the plaintiff, was confirmed, and not appealed from. Held, that such appearance was not a submission of the question of the lien of the mortgage to the jurisdiction of the auditor, and the plaintiff was not affected by his decision. The record, therefore, did not sustain the plea, and judgment should have been entered for the plaintiff.
    3. The fact that a devisee of land, subject to the lien of a legacy, is also executor under the testator’s will does not deprive him of the right to sell the land devised, take a purchase-money mortgage, and upon default' sue it out and sell the premises, whereby the lien of the legacy is discharged.
    February 18th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1881, No. 58.
    Scire facias stir mortgage, by Lydia Ann Woods against Edward White. The mortgage was executed by defendant to plaintiff for $5000, dated April 1st 1876, recorded April 6th 1876. Judgment was entered-for want of an appearance, which was subsequently opened by the court on motion of Jamison Lott, terre-tenant, and the said Lott let into a defence. Lott thereupon pleaded payment with leave, &c-., and a special plea averring the following facts : Prior to the execution of the mortgage in suit by Edward White, the mortgaged premises belonged to Isaac White, father of Edward" White, who by his will, proved November 29th 1865, devised the same to the said Edward White, subject to a legacy of $1000 to one William Powell, a grandson of testator, subject to which charge the mortgage in suit was given. On January 25th 1877, after the date of the mortgage in suit, one Lewis Shallcross obtained a judgment in the Common Pleas, No. 4, of Philadelphia county against Edward White for $700, and under writs of fi. fa and vend. exp. issued thereon, the premises, in question were on January 6th 1879, sold at sheriff’s sale to the said Jamison Lott for $800, and a sheriff’s deed to him therefor was acknowledged • January 11th 1879, and duly recorded. The special plea averred that hy reason thereof the lien of the said mortgage was discharged from the land, and the title of Edward White became vested in the said Lott, free and clear from the lien of said mortgage.
    After replication and issue joined on these pleas, the said Lott filed, by leave of the court, a plea puis darrein continuance averring, in substance, that since the last pleading it was so proceeded in the Common Pleas, No. 4, in the said suit of Shallcross v. Edward White, that the fund produced by the sheriff's sale under that judgment was referred to an auditor to report distribution thereof, before whom the plaintiff, Lydia Ann Woods, appeared by her counsel and “ presented the same identical mortgage above sued upon, and claimed the said fund on account thereof; and thereupon the same identical cause of action now presented by the above pleadings arose and was duly contested between the same parties;” and that afterwards the auditor, after due notice to the plaintiff filed his report, which was duly confirmed by the court; by reason of which proceedings and judgment the lien of the said mortgage was divested from the promises, “ as by the record remaining in the Court of Common Pleas, No. 4, more fully and at large appears, and this the said defendant is ready to verify by the said record, wherefore he prays judgment,” &c.
    The plaintiff replied to said plea puis darrein continuance, “ that there is no such record of a claim by plaintiff of the fund before the auditor for distribution in the said suit of Shallcross v. White on account of the said mortgage, and there is no record that the same identical cause of action now presented by the above pleadings arose and was contested between the same parties and was adjudicated and determined in said suit, as by said defendant pleaded. Wherefore she prays that the said record may be seen and inspected by the court here, and for judgment in her behalf.”
    On the trial of the issue thus raised, before Allison, P. J., the terre-tenant, Jamison Lott, produced in evidence the exemplification of the record in the Common Pleas, No. 4, in the said suit of Shallcross v. White. The report of the auditor ’(part of said record) contained the following :
    “Francis E. Brewster, Esq., represented Mrs. Lydia Ann "Woods, who held a mortgage upon the premises in question, given by the said defendant, dated April 1st 1876, for $5000, and recorded April 6th 1876. Mr. Brewster stated that ho appeared before your auditor for the purpose of calling attention to said mortgage (claiming it to be a first lien against said premises) and to proceedings pending in Court of Common Pleas No. 1, for the county of Philadelphia, of December Term 1878, No. 1470, ’wherein it was claimed that said mortgage had been discharged by the sheriff’s sale in question. He also claimed, in case it shall be decided that said mortgage had been discharged, that the fund before your auditor for distribution should be awarded to his client, and desired your auditor to suspend the distribution of said fund until the said proceedings in Common Pleas Ho. 1, should be determined.”
    The auditor reported, inter alia, the following facts : The testator, Isaac White, devised the premises in question to his son, Edward White, subject to the legacy of $1000 to William Powell, and appointed the said Edward White his executor. Edward White and wife, by indenture dated March 20th 1873, duly recorded, granted and conveyed the premises ■ in question to Rosa Anna Coyne, in fee simple, under and subject to the payment of the said legacy. The said grantee, her husband joining, gave a.purchase-money mortgage of the same premises, of even date with the deed, to Edward White, duly recorded. A scire facias was issued upon this mortgage in Common Pleas, Ho. 2, to December Term 1874, judgment obtained and execution issued, under which the mortgaged premises were sold at sheriff’s sale and purchased by the said Edward White for $150, to "whom a sheriff’s deed was acknowledged February 19th 1876, and duly recorded.
    On April 1st 1876, Edward White executed the mortgage in suit to Lydia Ann Woods. On January 25th 1877, Lewis Shalleross, obtained in Common Pleas Ho. 4, the judgment against Edward White above mentioned, under which the premises were sold at sheriff’s sale to said Lott, and a deed acknowledged January 11th 1879, under ■which sale the fund for distribution was produced.
    The auditor reported as matter of law, 1. That the legacy to William Powell was a charge on the land under the will of Isaac White ; 2. That the sheriff’s sale of the premises by the executor, Edward White, on his own mortgage against Rosa Anna Coyne, did not disturb the lien of said legacy, “ as Edward White could not profit by his own wrong 3. That the legacy was discharged by the sheriff’s sale of the premises under the judgment of Lewis Shallcross against Edward White, and being the first lien upon the real estate so sold, is entitled to the fund in court.
    The auditor, therefore, awarded the fund to the legatee, William Powell. Hotice of the filing of the report was accepted in writing by the several counsel who had appeared before the auditor, including the attorney for Lydia Ann Woods. Ho exception being filed to the report, the same was confirmed. Jamison Lott did not appear before the auditor.
    The court, AllisoH", P. J., after argument, entered the following judgment: “And now, October 12th 1880, this cause coming on for trial, it is considered by the coui-t that the plea puis darrein continuance filed April 13th 1880, by Jamison Lott, terretenant in the above case, is a waiver of all the former pleas on the record filed by said terre-tenant, and the court enters judgment in favor of the said terre-tenant on the whole record upon the plaintiff’s replication of nul tiel record to said plea puis darrein continuance.”

    The plaintiff thereupon took this writ of error, assigning for error the entering of judgment for the terre-tenant.

      Francis E. Brewster (F. Carroll Brewster with him), for the plaintiff in error.
    The only issue was that raised by the terretenant’s plea puis darrein continuance, and the replication of nul tiel record thereto. A plea puis darrein continuance is a waiver of all former pleas filed. The defendant must stand or fall by it. It admits the original merits to be with the plaintiff, and rests the defence on some act or occurrence since the last continuance of the cause: Lyon v. Marclay, 1 Watts 271; Wilson v. Hamilton, 4 S. & R. 239.
    The record, when produced, did not support the allegations of the plea. It showed, not that the plaintiff' claimed the amount of her mortgage out of the fund before the auditor, but, on the contrary, that she disclaimed title to any part of the fund, and claimed that the'mortgage remained a lien on the land. True, she brought to the notice of the auditor, that the question whether the mortgage was discharged by the sale was being litigated in another court i-n a suit on the mortgage itself, and requested the auditor to postpone the distribution until that question should be determined, for the reason that if it should be determined that the mortgage was discharged, she would then claim on the fund. But the auditor went on, and the plaintiff here paid no further attention to the proceedings. The auditor undoubtedly erred in awarding the fund to the legatee, as it cannot be doubted that the legacy was discharged by the prior sheriff’s sale under .Rosa Anna Coyne’s mortgage to Edward White, which was before the date of the plaintiff’s mortgage; but the plaintiff' filed no exceptions to the report, because having no claim on the fund, the mode of its distribution was immaterial to her. Neither the plaintiff nor the terretenant was represented as a party litigant at the audit, and the record therefore did not support the plea, that “ the same cause of action was litigated between the same parties, and duly adjudicated.”

      Lewis Stover, for the defendant in error.
    The last plea filed which has been treated as a plea puis darrein continuance, does not necessarily -waive the former pleas, but confirms them, and shows that what we had before pleaded as a fact had since boon established by a court of competent jurisdiction. The record showed that at the time when the plaintiff' issued her sci. fa. out of Common Pleas No. 1, the fund arising from the sale of tne premises, under the judgment, in Common Pleas No. 4, had been paid into the latter court, which court thereby first acquired jurisdiction to ascertain the existence of all liens and try all issues that could properly be litigated. The question whether the plaintiff’s mortgage had been discharged from the land and cast on the fund was such an issue. The plaintiff could not, after Common Pleas No. 4, had acquired jurisdiction of this question, select another tribunal in which to raise the same question, arid require the auditor, in No. 4, to delay distribution until it should be decided in No. 1. If this rule would hold, every lien-créditor could go into separate courts, and delay distribution indefinitely. The record further showed that the plaintiff’s counsel did appear before the auditor, and “ claimed, in case it shall be decided that said mortgage had been discharged, that the fund before the auditor for distribution should be awarded to his client.” The auditor did decide that the mortgage was discharged, by reason of the legacy being a prior lien, and the contingency having occurred, the plaintiff’s language became absolute that he did claim the fund, and our plea is thus verified by the record. If the plaintiff omitted to press her claim before the auditor, and to file exceptions to the report, that was her own fault. She is concluded by the confirmation of the auditor’s report: Towers v. Tuscarora Academy, 8 Barr 299; Noble v. Cope, 14 Wright 30; Finney’s Appeal, 3 Barr 312; Gratz v. Lancaster Bank, 17 S. & R. 278; Yerkes’s Appeal, 8 W. & S. 224.
   Mr. Justice Gordon

delivered the opinion of the court, February 28th 1881.

The sale of the land in controversy, under the mortgage of Rosa Anna Coyne to Edward White, discharged the lien of the legacy charged upon it by the will of Isaac White. Of this Strauss’s Appeal, 13 Wright 353, is conclusive. The auditor, who was appointed to distribute the money made by the sale of the same property under the judgment of Shallcross against Edward White, came to a different conclusion. He seemed to think that the sale by the devisee .on his own mortgage was a fraud per se upon the legatee, and as a consequence did not discharge the lien of his legacy. But this is a conclusion that cannot be sustained. It is true that Edward White was the executor of his father’s will, and as such required to act in good faith towards his father’s creditors arid legatees, but he was also devisee, and since, as such, he had the undoubted right to sell the land devised to him, so he had the right to secure himself, as to the purchase-money, by judgment or mortgage.

It then follows necessarily that he could compel the payment of such security by execution and sale of the land. All this having been done in good faith, as in the absence of evidence to the contrary we are bound to presume, and the land having been sold on lawful process by act of law, the lien of the legacy was discharged from the land and attached to the money arising from its sale.

Prima facie then, the mortgage in suit was the first lien upon the premises and was not discharged by the sale on the Shallcross judgment. But it is urged that the submission of this mortgage, to the consideration of the auditor, gave that officer jurisdiction over it, and that by reason thereof his decision was final and conclusive.

This question was raised in the court below by the defendant’s plea of puis darrein continuance — a plea which is always pleaded by way of substitution, no proceedings being afterwards had on the previous pleadings. It may be either in bar or abatement, and, like other pleas, is followed by replication, &c., until an issue is regularly formed: Steph. Plead. (Tyler’s ed.) 98; 2 Chit. Plead. 453. In the case in hand, the issue was formed under the replication of nul tiel record. What wc have to do, therefore, is to examine the auditor’s report, in the case of Shallcross v. White, for the purpose of ascertaining whether or not the question now presented was settled in that proceeding.

Whether this was so determined must, we think, depend upon the fact of the voluntary submission of the mortgage now in controversy to the judgment of the auditor, for we cannot for a moment entertain the idea that the lien of a first mortgage could bo discharged by the unauthorized act of an auditor. Prima facie the auditor had nothing to do with it. He was making distribution of moneys raised under a subsequent judgment, and as to this fund tho Woods mortgage had no standing and ought not to have been considered. It may bo, indeed, if it were presented by the mortgagee as a lien on the fund, and was passed upon by the auditor, and by him postponed to what he considered a prior lien, his judgment unappealed from would be conclusive. It is indeed a fact that he did. so pass upon this mortgage, and that, in his judgment, its lien was preceded by the Powell legacy, and was therefore divested by the sheriff’s sale. Under these circumstances, it becomes important to know by what authority the auditor acted, whether or not the mortgagee submitted her mortgage for his judgment. The following is all that is exhibited by the auditor’s report on this subject.

“ Francis E. Brewster, Esq., represented Mrs. Lydia Ann Woods, who held a mortgage upon the premises in question, given by the said defendant, dated April 1st 1876, for $5000, and recorded April 6th 1876, in mortgage-book-D. II. L. No. 2, p. 542. Mr. Brewster stated that he appeared before your auditor for the purpose of calling attention to said mortgage; claiming it to be a first lien against said premises; and to proceedings pending in the Court of Common Pleas No. 1, for the county of Philadelphia, of December Term 1878, No. 1470, wherein it was claimed that said mortgage had been discharged by the sheriff’s sale in question. He also claimed, in case it shall be decided that said mortgage had been discharged, that the fund before your auditor for distribution should be awarded to his client, and desired your auditor to suspend' the distribution of said fund until the said proceedings in Common Pleas No. 1, should be decided.”

This was not a submission of the question in controversy to the auditor, the very converse. The counsel for the mortgagee claimed that the mortgage was a first lien, but gave notice, that should the Court of Common Pleas decide otherwise, he would claim the fund, and asked that the auditor’s judgment be suspended until the pending suit should be determined. In short, he informed the auditor that, at that time, he had no standing before him, but might have, should the decision of the court, in the case then pending, be averse to his position, and asked ex gratia for a continuance.

It is thus obvious that nothing was submitted to the auditor which gave him jurisdiction over the subject-matter now in controversy : he was appealed to for nothing but a continuance, and that he refused to grant. It follows that upon the record exhibited there was nothing which curtailed the power of the court or altered the original status of the parties which were before it, hence it ought to have sustained the plaintiff’s replication, and ordered judgment against the defendant for the whole amount of the mortgage.

Judgment is reversed, and judgment for the plaintiff for the full amount of her mortgage with interest and costs. Judgment to be liquidated by the Prothonotary of the Court of Common Pleas.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Commonwealth, to use, &c., versus Haines.
    1. The certificate of a notary of the acknowledgment of a deed or mortgage, like that of a judge or justice of the peace, is a judicial, not a ministerial, act.
    2. Where an action is brought against a notary for a false certificate of acknowledgment, the presumption is that the defendant, acting in his judicial capacity, did so .on reasonable information, and discharged his full duty.The burden of proof is on the plaintiff to prove a clear and intentional dereliction of duty.
    3. A. forged B.’s name to a mortgage given to 0., and, appearing before a notary, personated B., and acknowledged the instrument. The notary appended the usual certificate of acknowledgment, and C. thereupon paid over to A. the amount for which the pretended mortgage from B. was given. Subsequently, on discovering the fraud, O. sued the notary for having issued a false certificate of acknowledgment. On the trial C. showed that A. had personated B., and then called the defendant, who testified: “ I do not know B. The paper was undoubtedly signed before me. I don’t remember that I did or did not take any precaution to identify the person making the acknowledgment, but I know I must have been satisfied at the time.” Held, that, under those circumstances, a nonsuit was rightly awarded.
    February 21st 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 259.
    Debt on an official bond, by the Commonwealth, to the use of Stephen S. Price, against H. Clay Haines, Josiah Haines and Clayton Haines.
    On the trial, before Mitchell, J., the plaintiff’s evidence showed the following facts: In February 1874, the defendant, H. Clay Haines, was duly appointed and commissioned a notary public of the Commonwealth of Pennsylvania, residing in the city of Philadelphia, for the term of three years. He gave bond to the Commonwealth in the usual form, with the other two defendants as sureties, in the sum of $10,000. The condition of the bond was as follows:
    “Now the condition of the above obligation is such that if the said II. Clay Haines, appointed and commissioned notary public as aforesaid, shall and does well and truly and faithfully in all things execute and perform the duties of said office of notary public according to the several Acts of Assembly relating thereto, and shall well and faithfully account for, and pay over unto the state treasury all public moneys or taxes which he shall become liable to pay to the Commonwealth, or which shall come into his hands from time to time during his continuance in the said office; and also shall, when thereunto lawfully required, deliver up to the register records and other public papers to the said office belonging, whole, safe and undefaced, into the office of the recorder of deeds for the said county of Philadelphia, as required by law, then this obligation to be void, or else to be and remain in full force and virtue.”
    On April 30th 1875, the defendant, H. Clay Haines, acting as notary, gave the following certificate of acknowledgment, endorsed on an indenture of mortgage for $2800, purporting to have been executed by Abram P. Beecher to Thomas Clarke, dated Aoril 30th 1875, of certain premises in the city of Philadelphia:
    “On the 30th day of April, A. D. 1875, before me, the subscriber, a notary public of the Commonwealth of Pennsylvania, residing in the city of Philadelphia, personally appeared the above-named Abraham P. Beecher, and, in due form of law, acknowledged the above indenture of mortgage to be his act and deed, and desired the same might be recorded as such.
    “ Witness my hand and notarial seal the day and year aforesaid.
    [°™®“] “ Henry C. Haines, Notary Public.”

      This mortgage was recorded May 1st 1875, and on May 13th 1875, the same was purchased by Edward S. Harlan, Esq., attorney for Stephen B. Price, the plaintiff, from E. B. Vogel, Esq., attorney for Thomas Clarke, the person named as mortgagee. At the time of said purchase, the bond and mortgage, together with the certificate of no set-off, brief of title, searches, policy of insurance of premises, &c., were presented to Mr. Harlan, who had been authoi’ized by Mr. Price to pay therefor, on being satisfied that the mortgage was a valid second mortgage. He examined them, and without notice or suspicion of any forgery having been committed, found them to be correct. Mr. Harlan ascertained that A. P. Beecher owned the premises, but no inquiry was made of Beecher himself, who lived in Wilmington, Del. On the same day Mr. Harlan paid for said bond and mortgage thus assigned by Clarke to said Price the sum of $2589.
    The plaintiff proved that the signature of Abram P. Beecher to the said mortgage was a forgery; that Mr. Beecher had not appeared before the defendant and acknowledged the said mortgage on April 30th 1875, or at any other time; and that Mr. Beecher had no knowledge of this mortgage until May 1876, a short time prior to the trial of Clarke in the Quarter Sessions for forgery, when he was notified that Clarke had been arrested and that the mortgage in his name was supposed to be a forgery.
    The plaintiff called the defendant for cross-examination, who testified as follows (mortgage shown witness):
    “ The signature and notarial seal to the acknowledgment to this paper are mine. At the time of putting my hand and seal to this acknowledgment I didn’t know Abram P. Beecher. I never remember seeing him before I saw him when the deposition was taken. Before taking this acknowledgment I never had seen or heard of Abram P. Beecher. I do not remember whether I knew -the man who made the acknowledgment. I have no knowledge of this matter, except what appears on the acknowledgment. Very frequently some one whom I know brings in the person and introduces them. I was satisfied at the time I took the acknowledgment that it was all right. I do not remember what took place before me. The paper was undoubtedly signed before me. I don’t remember that'I did or did not take any precaution to identify the person making the acknowledgment, but I know I must have been satisfied at the time.”
    At the close of the plaintiff’s case the Court, on. motion of defendants, granted a non-suit, which the court in banc, after argument, refused to take off. The plaintiff thereupon took this writ of error, assigning for error the said action of the court.

      John G. Johnson, for the plaintiff in error.
    The question of the liability of notaries public and their sureties for damages caused by false certificates of acknowledgment is of public importance. Notarios are invested by the state authority with high privileges, and should be held to correlative duties. A notarial certificate, by law and general usage, is entitled to faith and credit, and it is the notary’s duty to use care corresponding to the import of his certificate. For this service he receives compensation, and if by his gross negligence or absence of due care he certifies to a falsehood, any one relying on it and suffering damage may be indemnified out of the bond. The defendant’s negligence in this case is admitted by his own testimony. It is true he swears that “ ho knows he must have been satisfied at the time that it was all right.” But the question is whether he ought to have been satisfied; and he alleges no fact showing diligence, but admits that he does not remember having taken any precaution to identify the party. A notary is not bound to warrant absolute truth, but where his certificate is shown to be false, he ought to show reasonable skill and diligence. It is not enough to show absence of fraud or guilty knowledge: Whart. on Negligence, 2d ed., sect. 284; Shearman and Redfield on Negligence, ed. 1874, sects. 163-168. There was evidence of negligence, and the case should, therefore, have been submitted to the jury.
    It is said the act of the notary in taking the acknowledgment is a “judicial act.” But where the grantor does not appear before him, he acts without jurisdiction, and like all inferior tribunals acting without jurisdiction, he is not protected- The mere giving of a certificate, without taking testimony, is a ministerial act, and even a judicial officer, in the exorcise of ministerial functions, is not protected by judicial privilege: Shearman and Redfield on Negligence, sect. 161. The notarial bond, unlike the bonds of magistrates or judges, is conditioned for the faithful performance of official duties.

      R. C. McMurtrie (Joseph M. Pile with him), for the defendants in error.
    The argument of the other side, ah inconvenienti, cannot well be exaggerated, but it is a cry to the legislature' — this court cannot legislate to cure the evils under our acknowledging and recording acts, which, it must be admitted, are appalling. Theoretically the acknowledgment of deeds before judges, magistrates, commissioners or notaries public is, or was intended to be, a formal judicial act, as a pre-requisite to recording. In its nature the act is judicial in a high degree, to take, certify and attest under an official seal an ex parte proceeding. The recorder was intended to be a judicial officer to decide whether an instrument was properly recordable to become notice. And a certified copy of the record is made evidence equal to the original. In practice, notaries have been known to certify to acknowledgments of parties who are strangers to them, and the recorder will record anything. Yet, practically, as well as theoretically, the legislature has authorized the copy of a copy to be equal to the original, and the party offering it cannot be called on to substantiate the genuineness of the original, even when the whole question is one of forgery.
    It is well settled that the taking and certifying an acknowledgment by a notary public, as well as by other authorized officers, is a judicial act, for which the officer is not responsible in damages except for fraud, known omission, or intentional wrong. The legal presumption is in favor of honesty and regularity, and as there was no evidence to rebut this presumption, the court was right in entering a nonsuit: Jamison v. Jamison, 3 Whart. 457; Withers v. Baird, 7 Watts 227; Hornbeck v. Building Association, 7 Norris 64; Lloyd v. McGarr, 3 Barr 474; Share v. Anderson, 7 S. & R. 43; Hamsher v. Kline, 7 P. F. Smith 397; Watson v. Bailey, 1 Binn. 470; Barnet v. Barnet, 15 S. &. R. 72.
    As an invester it was Price’s duty to inquire of the mortgagor, and omitting so to do, he is remitted to his remedy against 'those with whom he dealt in the transaction.
   Mr. Justice Mercur

delivered the opinion of the court, May 2d 1881.

_ This action was against a notary public and his sureties on his official bond. The complaint is that he certified to one Abram P. Beecher having personally appeared before him and in due form of law acknowledged a certain indenture of mortgage to be' his act and deed, when in fact the person who appeared before him and made the acknowledgment was not Abram P. Beecher, whereby said plaintiff was injured.

The plaintiff called Abram P. Beecher, who owned the lot described in the mortgage on which the notary made the certificate. He testified that this mortgage was not executed by him, nor by his authority, and that he never made any acknowledgment thereof, or of any mortgage on that property, before the notary, or before any person. The plaintiff testified that, relying on the supposed validity of the mortgage and the record thereof, he bought and paid for the mortgage.

The question to be considered is, What-proof is necessary to make the notary legally liable to one injui’ed by the making of such certificate untrue in fact ?

It is well settled that the certificate of a judge, or a justice of the peace, of the acknowledgment of a deed or mortgage is a judicial act: Withers v. Baird, 7 Watts 227; Jamison v. Jamison, 3 Whart. 457; Heeter v. Glasgow, 29 P. F. Smith 79; Singer Manufacturing Co. v. Rook, 3 Norris 442.

Conceding such to be the effect of a certificate of a judge or justice, yet it was contended on the argument that like effect should not be given to the certificate of a notary. Why not ? He is a public officer commissioned by the governor. He is acting under oath, like other officials in the performance of judicial duties, to “ well and faithfully perform the duties of his office.” The second section of the Act of 10th August 1864, Purd. Dig. 1097, expressly gives power to “ each notary public of this Commonwealth,” inter alia, “ to take and receive the acknowledgment or proof of all deeds, conveyances, mortgages, or other instruments of writing, touching or concerning any lands, tenements or hereditaments situate, lying and being in any part of this state, * * * as fully, to all intents and purposes whatsoever, as any judge of the Supreme Court, or president or associate judge of any of the Courts of Common Pleas, or any alderman or justice of the peace within this Commonwealth.” As, then, a notary is authorized to take the acknowledgment as fully, to all intents and purposes, as a magistrate can do, it follows the same effect should be given to his certificate of acknowledgment. It was so held in Hornbook v. Building Assoc., 7 Norris 64. Whatever officer is authorized to take the acknowledgment, to him is given a judicial duty, and when ho performs it it becomes a judicial act, and has the effect of a record.

This action, then, is to recover damages flowing from the incorrect manner in w'hich the defendant performed an official act. The rule as to the liability of an officer performing a ministerial duty does not apply.

The plaintiff also called and examined the defendant notary. He testified that at the time of putting his hand and seal to the acknowledgment he did not know Abram P. Beecher, did not remember that he had ever seen or heard of him before; had no knowledge of the matter, except what appears on the acknowledgment: frequently some one who-m he knew brought in the person and introduced him; he was satisfied at the time it was all right, but does not remember what took place. Ho added, “ the paper was undoubtedly signed before me. I don’t remember that I did or did not take any precaution to identify the person making the acknowledgment, but I know I must have been satisfied at tbe time.” The substance of his evidence therefore is that while he does not recollect what inquiries or statements were made, yet he knows he must have been satisfied as to the identity of the person, and that it was all right at the time the acknowledgment was taken. No evidence was given conflicting with or impairing this evidence of the defendant. The legal presumption is he acted on reasonable information, and did his full duty. His absence of memory as to the details of what occurred does not destroy that presumption. The burden of proof is on the plaintiff to prove a clear and intentional dereliction of duty. This is neither proved nor averred. A mere mistaken conclusion imposes no legal liability on the defendant. The learned judge was clearly right in ordering a compulsory non-suit and in refusing to take it off. Judgment affirmed.


text:
    Stedman versus Carstairs et al.
    A., being in fair credit but actually insolvent, induced B., who was ignorant of his insolvency, to exchange checks with him. B. on depositing A.’s check found that A. had no funds, and called on him to make his check good. A. then induced O. to exchange checks with him to a like amount, C. being also ignorant of his insolvency, and handed C.’s check to B., receiving back his own check to B.’s order. B. then drew the amount of C.’s check. C. on depositing A.’s check also found that the latter was without funds. In an action by C. against B. to recover the amount drawn by B. on C.’s check, Held, that the plaintiff was not entitled to recover.
    February 21st 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county : Of January Term 1880, No. 92.
    Assumpsit, by Hunter Stedman against James Carstairs and John McCall, trading as Carstairs & McCall.
    On the trial, the evidence developed the following facts: Hunter Stedman, the plaintiff in error, was in business on Chestnut street, Philadelphia. On May 29th 1876, Heilbron, a partner in the firm of Tobias & Heilbron, which firm was then in fair financial credit, came to his counting-house and said to him, that he, Heilbron, had $3500 which he did not want to use, and that he would like to loan it to him. Stedman replied that he was not in want of money and never borrowed. Heilbron then said that he had no use for the money, and had hoped that Stedman would borrow it, but as he would not do this, he would like him to. deposit it in his account for a few days. Stedman at first declined, but on Heilbron stating that it would be an accommodation to him, Stedman said if that was so, he would take it and deposit it for him. Heilbron thereupon handed Stedman the check of his firm, Tobias & Heilbron, to his, Heilbron’s order, for $3500, dated May 29th' 1876, and walked away, but came back in a few moments and said it might be as well, in case of death, that he should hold Stedman’s check for the amount, so that he could draw the money, but that the check should be without date, as he would not want to use it for some days. Stedman, having no suspicion of fraud, gave him his check for the amount without date. Heilbron then asked Stedman when he would make his deposit, stating that he expected to receive $1500 more that day, which he wished to give him also, if he got it in time. Mr. Stedman replied that he made his deposit a little before three o’clock; and having learned this fact, Heilbron went away.
    Mr. Stedman, having no suspicion as to the honesty of the transaction, deposited Heilbron’s check with other funds, and it was returned to him unpaid and protested.
    On investigation Stedman ascertained that Tobias & Heilbron’s account was overdrawn when Ileilbron gave him the check, and had been so for two days, and that for a week previous to that time there had been only $6.02 to their credit; that for some time previous Ileilbron had been obtaining large amounts from others upon exactly similar misrepresentations, and that prior to his interview with Stedman, Heilbron had defrauded Carstairs & McCall, the defendants, in exactly the same way, and to the same amount as he had defrauded Stedman.
    Heilbron, upon procuring Stedman’s check as above related, at once filled in the date, and then gave it to Carstairs & McCall in settlement of the prior fraudulent check which he had passed on them.
    Mr. Carstairs testified: “ Wo were caught in just the same way as Stedman; we took Ileilbron’s chock, and supposing it to be good gave ours; it was a fraud on us. Heilbron told us that he had been disappointed in getting $3500, which a party owed bim, but he expected to get it and would pay us. After that he brought us Stedman’s check for $3500, and asked for his own, which the bookkeeper gave him and took Stedman’s. We drew the money on Stedman’s check.”
    Carstairs & McCall presented Stedman’s check on the day they recoived it, before Stedman had made his deposit, and were told that there were not sufficient funds. They then waited until Stedman had made his deposit, presented it again, and drew Stedman’s $3500 to make good their own loss.
    Stedman gave them notice of the fraud and that he would hold them responsible, but would do what he could to get his money from Ileilbron.
    Stedman arrested Ileilbron for the fraud, and the latter paid over $1750, and the prosecution was not pressed. This suit was then brought against Carstairs & McCall for the balance, on the alleged ground that the defendants had in their hands his money, obtained by fraud, and for which they had given no consideration. There was no conflict of evidence, and the only question in the case was, whether Carstairs & McCall could accept and hold the proceeds of a larceny against or fraud upon Stedman, to make good their loss by a like prior offence against themselves.
    The defendants submitted the following points :
    1. If you believe that defendants, on 29th May 1876, were the owners of a check of Tobias & Heilbron, that said firm was at that time in fair financial standing, that defendants were ignorant that any fraud had been perpetrated upon plaintiff, that in good faith they surrendered tho said check of Tobias & Heilbron, and accepted in lien and payment thereof the check of Hunter Stedman, then however he (Stedman) was defrauded by Heilbron, he cannot recover from defendants.
    2. If you believe that the money was paid by the hank on Stedman’s check to Carstairs & McCall, when there was no money of Stedman’s then on deposit, the money so paid was not money of Stedman’s but of the bank, and plaintiff cannot recover.
    Ans. “ I affirm both of defendants’ points, and if you find the facts as therein raised, you should find a verdict for the defendants.”
    There was no other charge.
    Verdict and judgment for the defendants. The plaintiff took this writ of error, assigning for error (1 and 2) the affirmance of the defendants’ points and (3) the instruction that if the jury find the facts as stated in the said points, their verdict should be for the defendants.

      Richard P. White, for the plaintiff in error.
    Where money or property is obtained by fraud, the owner may follow it, except into the hands of an innocent purchaser, who has parted with a new and valuable consideration therefor: Farmers & Mechanics’ Bank v. King, 7 P. F. Smith 202; Frazier v. Erie Bank, 8 W. & S. 18; Petrie v. Clark, 11 S. & R. 377; Depeau v. Waddington, 6 Whart. 220; Taylor’s Appeal, 9 Wright 83. Carstairs & McCall did not part with any new or valuable consideration. Heilbron’s cheek, which they gave up to him, was not such a consideration, for it was itself fraudulent and worthless. Its surrender and destruction would be no bar to a suit against Heilbron. Moreover, Heilbron’s fraud amounted to larceny or a public misdemeanor. The checks which he obtained from Stedman and from Carstairs & McCall, in exchange for his own worthless checks, were but the key of the owners’ money-box, which Heilbron used to enable him to steal the money. His check was the evidence of the larceny, and the surrender of it by Carstairs & McCall to the wrongdoer in consideration of restitution was equivalent to condonation of a crime. If Heilbron’s acts amounted to larceny, we are entitled to follow our property, and recover it or its proceeds from the defendants.

      John G. Johnson, for the defendants in error.
    There was no pretence that the defendants knew that Heilbron had defrauded Stedman. The contest was between two innocent holders for value who had been defrauded as to the one who must suffer. The defendants had given value for plaintiff’s check, in the surrender of the check of Tobias & Heilbron, a firm in good financial standing. Is it necessary to argue that this was not a “ valuable consideration ?” It is certainly within the idea of a sufficient consideration as announced in Lenheim v. Wilmarding, 5 P. F. Smith 75; Kirkpatrick v. Muirhead, 4 Harris 117; Depeau v. Waddington, 6 Whart. 220; Royer v. Bank, 4 W. N. C. 86; Lord v. Ocean Bank, 8 Harris 384.
   Mr. Justice Mercur

delivered the opinion of the court May 2d 1881.

This contention is between two innocent parties, arising from the fraudulent acts of a third person.

A statement of the facts and the order of events is necessary to” a clear understanding of the case. On the 27th of May 1876, one Heilbron, of the firm of Tobias & Ileilbron, gave to the defendants the check of his firm for $3500, and at the same time the defendants gave to Heilbron their check for the same sum. Two days thereafter, Heilbron also gave to the plaintiff the check of his firm for $3500, and the plaintiff gave his check to Heilbron for the like sum. At the time these checks of Tobias & Heilbron were drawn and transferred the firm was in good credit, but did not have the money in bank to meet either of them. Each transaction was an exchange of checks. The check given to the defendants was returned to them protested. On Heilbron being notified of this fact, he alleged he had been disappointed in getting the money from a person who owed him, but he expected to get it, and would pay them. After that he brought and gave to the defendants the check of the plaintiff for the $3500. He asked for his own check, and the defendants gave it up to him. The defendants then drew the money on the check drawn by plaintiff thus given to them. The check of Tobias & Heilbron, given to the plaintiff, went to protest, and he seeks to recover from the defendants the money they obtained on the check he gave to Heilbron.

The first assignment is to the affirmance of the first point submitted by the 'defendant. It is in these words: “If you believe that defendants, on the 29th of May 1876, were the owners of a check of Tobias & Heilbron; that said firm was at that time in fair financial standing; that defendants were ignorant that any fraud had been perpetrated upon plaintiff; that in good faith they surrendered the said check of Tobias & Heilbron, and accepted in lieu and payment thereof the check of the plaintiff, then, although the latter was defrauded by Heilbron, he cannot recover from the defendants.”

We discover no error in the affirmance of this point. The numerous authorities cited, applicable to the acquisition of commercial paper in bad faith, or when it is taken merely as collateral for a pre-existing debt have no application to the facts stated in this point. The jury has found the defendants were guilty of no fraud, but acted in entire good faith ; they took the check of the plaintiff, not as collateral, but in payment of the check of Tobias & Heilbron. The latter were in fair financial standing. The defendants gave up their check, and released them from all obligation. They thus gave a valuable consideration for the check of the plaintiff. This, under numerous authorities, constituted the defendants holders for value. They therefore took the plaintiff’s check discharged of equities between them and Ileilbron, of which they had no notice.

The point covered by the second assignment appears to have been framed - on the assumption that the defendants did not draw, on the plaintiff’s check, money which belonged to him, but that they drew money which was the property of the bank. If such was the fact, the point was correctly affirmed. The right of the plaintiff to recover cannot be sustained, unless the defendants received his money. On the argument it was said there was no evidence on which to submit that point, yet that it was submitted without evidence is not assigned for error. The assignment is only to alleged error in stating the law. There is no assignment that it was submitted without evidence.

We deem it unnecessary to further discuss the questions. Holding as we do that there was no error in the first or second assignment, it follows there is none in the third.

Judgment affirmed.

Trunkey, J., dissented.


author: Mr. Justice Gordon

text:
    American Underwriter’s Association versus George.
    1. A policy of insurance should not be admitted in evidence without proof of its execution,
    2. Where one desires to avail himself of-the acts of an alleged suh-agent as against the principal, he must prove both the appointment of such suhagent by an agent, and the authority of the agent to appoint the sub-agent.
    3. Where an agent testifies that he has acted for a principal in pursuance of a certain witnessed agreement not under seal, said instrument can only be admitted in evidence upon due proof of its execution, or by admission of the parties executing it.
    4. Where a plaintiff has failed to make out his case, it is error to instruct the jury that they are entitled to take into account in deciding^whether plaintiff’s case is made out, the fact, that the defendant, although in court, has not been called to deny the plaintiff’s allegations.
    5. A policy of insurance, by whose terms the application is made part thereof, is not admissible in evidence without the application. _ But if the plaintiff call upon the company defendant to produce the application after notice, and they refuse to do so, this is all that will be required to make the policy admissible without it. '
    February 21st 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1880, No. 56.
    Assumpsit, by M. A. George against the American Underwriter’s Association of Philadelphia, upon a policy of fire insurance for §1200, upon a certain property described as “situated 22 miles N. W. of the city of Paris, Lamar county, in the state of Texas.” Pleas non assumpsit, payment with leave, &c.
    Upon the trial, before Mitchbll, J., the plaintiff claimed that the policy sued upon had been issued to ‘‘ T. J. Hadley (agent and attorney in fact for Mrs. M. A. George) of Paris Texas,” by one John E. Barry, sub-agent, residing in the town of Paris, appointed by E. II. Angomar, Jr. & Co., of New Orleans, general agents of the company defendant. The plaintiff offered in evidence an agreement between Angomar & Co. and John E. Barry, attested by two subscribing witnesses, authorizing said Barry to perform all the duties of insurance broker for the company defendant under the instructions and supervision of Angomar & Co., with the right to solicit risks, issue policies and collect premiums. Objected to by defendants, as no authority is shown in Angomar & Co. to make the agreement on the part of the defendants, and, further, because the execution of the agreement is not proved. Objections overruled.
    The plaintiff called upon the defendants to produce the application of the assured for the policy, which is referred to in the policy as part thereof and made a warranty thereby. The defendants’ counsel replied that the application had never been received by the defendants from any person; that the policy purported to have been issued by John E. Barry, and the application was probably in his possession.
    The plaintiff then offered in evidence policy of insurance, dated November 18th 1875. Objected to (1.) because the execution of the policy is not proved. (2.) No authority is shown in John E. Barry to execute and deliver the same. (3.) The application referred to in the policy is not produced. Objections overruled.
    The policy contained, inter alia, a stipulation that “ the assured upon sustaining loss shall give immediate notice in writing to the association.” The plaintiff called upon the defendants to produce proofs of loss in this case. The defendants replied, “ they have none, none were ever received.”
    The plaintiff read in evidence the depositions of T. J. Hadley and John E. Barry, taken under a commission to Texas, in which Hadley testified that the property insured was destroyed by fire January 4th 1876 ; cause unknown; loss $2112.45 ; that he very soon afterwards furnished proof of said loss to Barry; and Barry testified that he transmitted said proofs to Angomar & Co. No copy of the proofs of loss was kept by either, and the data from which they were made up were subsequently destroyed by a fire which burnt up Paris.
    The defendants requested the court to charge, substantially, that under the evidence the verdict should be for the defendants. The learned judge refused so to charge, and in his general charge said, inter alia, as follows :

      “ The jury are entitled in estimating the weight of the evidence in the case, to consider the circumstances under which it is given, and in this connection, you may consider not only what is in the case, but what might and ought naturally to be in it, but is not. When therefore the defendants’ counsel asks you to say that there is not enough evidence to satisfy you that this policy was issued by the defendants or with their authority, you may consider in weighing the evidence on this point, the fact that the officers of the defendants, or some of them, have sat here during the trial and have not been called to deny the fact, but have chosen to rest their defence on the weakness of the plaintiff’s proof. That they have a right to do, but you are entitled to consider the fact in this connection.”
    Verdict and judgment for plaintiff for $1416. The defendants took this writ of error, assigning for error the admission of the offers of evidence objected to, the refusal of the defendants’ points and the portion of the charge above quoted.

      David C. Harrington, for the plaintiff in error.
    Under the plea of non assumpsit, the defendants were put upon proof of the execution of the policy and the authority of the agents; and were required to produce or account for the application and proofs of loss. None of these requisites were complied with. The plaintiff having signally failed to make out his case it was not incumbent upon the defendants to prove a negative. A plaintiff who would avail himself of the act of an agent to charge the principal must prove the authority under which the agent acted: Hays v. Lynn, 7 Watts 525. Where the application is made part of the policy it must be produced or proof made of it, before the policy can be read in evidence: Lycoming Ins. Co. v. Sailer, 17 P. F. Smith 108. No recovery can be had if notice and proof of loss is not given as required by the policy, and where notice is required to be given to the company notice to an 'agent is not sufficient: Edwards v. Ins. Co., 25 P. F. Smith 380; Trask v. Ins. Co., 5 Casey 198; Ins. Co. v. Updegraff, 4 Wright. 311; Warner v. Insurance Co., 35 Leg. Int. 293. In a case so bald of proof the defendants were entitled to an affirmance of their point, and the judge clearly erred in that portion of the charge assigned for error.

      David W. Sellers, for the defendant in error, presented no paper oook.
    The president of the company was in court during the trial and did not deny his signature to the policy, nor that it was the company’s policy. This relieved us from the burden of proving formal execution of it, or the authority of the agents through whom it was issued. We proved that the proofs of loss were forwarded in due time to the general agents of the company, and thus made out at least a prima faeie case which, in the absence of evidence by the defendants, was properly submitted to the jury
   Mr. Justice Gordon

delivered the opinion of the court, March 7th 1881.

Several errors occurred in the trial of this case in the court below, and they are of a character so obvious that but little argument is necessary to develop thorn.

1. In the face of the defendants’ objection, it was certainly erroneous to admit the policy in evidence without proof of its execution. About a proposition so very plain as this there can be no doubt, and it needs but to bo stated in order to exhibit its unsoundness.

2. The policy purports to have been issued by John E. Barry, as sub-agent of the defendant for the state of Texas, and who was supposed to have received his appointment from E. II. Angomar & Co., of the city of New Orleans. But of the agency of Angomar & Co. there was no proof whatever. It is, therefore, difficult to understand upon what principio of law the appointment of Barry was supported, for it is certain that ho who would avail himself of the acts of an alleged agent, must, in order to charge the principal, prove the authority under which the supposed agent acted: Hay v. Lynn, 7 Watts 525; Moore’s Ex’rs v. Patterson, 4 Casey 505.

3. The agreement between Angomar & Co. and Barry, appointing the latter broker and agent for the defendant, was not sufficiently proved, or rather, was not proved at all. Barry testifies that he acted under the authority conferred by this paper, but he neither does, nor was he in a position to prove its execution. The writing was attested by subscribing witnesses, and though not under seal, it ought to have been proved by those witnesses, or one of them, or, as was ruled in Williams v. Floyd, 1 Jones 499, by the admission of the parties who executed it.

4. The court erred in instructing the jury as follows: “ The jury are entitled, in estimating the weight of evidence in the case, to consider the circumstances under which it was given, and in this connection, you may consider not only what is in the case, but what might and ought naturally to bo in it, but is not. When, therefore, the defendants’ counsel asks you to say that there is not enough evidence to satisfy you that this policy was issued by the defendants, or with their authority, you may consider, in weighing the evidence on this point, the fact that the officers of the defendants, or some of them, have sat here during the trial, and have not been called to deny the fact, hut have chosen to rest their defence on the weakness of the plaintiff’s proof; that they had a right to do, but you are entitled to consider the fact in this connection.” This was a mistake, and perhaps the one upon which all the others were founded. The plaintiff, if she expected a verdict, was bound to make out her case; until this was done the defendant had nothing to do, and the fact that it did what was entirely proper for it to do, keep silent,' ought not to have been permitted to tell against it. If the plaintiff’s case was not proved, the silence of the defendant did not help it.

5. As the policy, in terms, made the application part thereof, on the authority of the Lycoming Mutual Ins. Co. v. Sailer, 17 P. Smith 108, the policy ought not to have been admitted without the application. As, however, this paper is one which belongs to, and of necessity, is in the possession of the company, the refusal of the company to produce it on notice, would be all that would be required to make the policy admissible without it.

The remaining assignments are dismissed, as containing nothing requiring serious consideration.

The judgment is reversed, and a new venire awarded.


author: Mr. Justice Trunkey

text:
    City of Philadelphia versus Linnard.
    1. Where property is taken for public use, the damage is to be estimated as of the date when the injury was complete and the landowner was entitled to compensation, the property to be valued without reference to the person of the owner or the actual state of his business, the true measure of damages being the difference between the market value of the land as affected by the taking of part for public use and such value as unaffected thereby. Any fact which affects the value of the land at the time of the injury is admissible.
    2. Where the owner of premises on the south side of Chestnut street, Philadelphia, in making alterations, was compelled, by virtue of the provisions of the Act of April 28th 1870, to recede five feet from the former building-line, and was thus forced to rebuild in a recess between two unaltered adjacent buildings extending to said old line: Held, that the fact that said owner voluntarily began his alterations did not preclude him from recovering damages for the amount of land taken for public use. Held, further, that the inconvenience to occupants of the property caused by the recession of the front, and the consequent difficulty of procuring tenants, were both to be estimated as elements of damage. Held, further, that in determining the market value of the property after the recession, the possibility that-the adjoining houses would be set back at some future period was to be considered as an element of the present value.
    3. Newville Road Case, 8 Watts 172, followed. Pitts., V. & C. Railroad Co. v. Rose, 24 P. F. Smith 362; Watson v. P. & C. Railroad Co., 1 Wright 469, distinguished.
    4. The Courts of Common Pleas have no jurisdiction to hear and pass upon exceptions filed to the reports of referees appointed under the Act of May 14th 1874, Pamph. L. 166. Such reports can only be reviewed upon error to the Supreme Court.
    5. The findings of a referee appointed by the parties under the Act of May 14th 1874, on a question of fact, are as conclusive as those of a jury.
    February 21st and 22d 1881.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey Sterrett and Green, JJ. Mercur J., absent.

      Error to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term 1881, No. 14.
    This was, in the court below, an appeal by Emily L. Linnard from the award of a jury of viewers appointed by the Court of Quarter Sessions to view the premises No. 1312 Chestnut street, and to assess the damages occasioned by the widening of Chestnut street opposite the said premises.
    By agreement filed, the case was submitted to the decision of a referee, C. Stuart Patterson, Esq., under the provisions of the Act of May 14th 1874, Purd. Dig. 1940, who found the facts substantially as follows: Prior to April 28th 1870, the south line of Chestnut street, between the rivers Delaware and Schuylkill, was established at the distance of 584 feet southward from the south line of Market street. Mrs. Linnard was the owner of a lot of ground situate on the south side of- Chestnut street at the distance of 111 feet westward from Thirteenth street, containing in front on Chestnut street 18 feet 6 inches, and extending in depth of that width 109 feet to Diamond street. On this lot there was erected a brick building, the first story of which was built out to the old line of Chestnut street.
    By the Act of April 28th 1870, Pamph. L. 1291, entitled “ An act defining the line of Chestnut street, in the city of Philadelphia,” it was enacted “ that the south line of Chestnut street, between the rivers Delaware and Schuylkill, shall be at the distance of five hundred and thirty-nine feet southward of the south side of Market street: Provided that this act shall not interfere with any buildings now erected on the south side of Chestnut street.”
    In July 1875, Mrs. Linnard contracted with a builder to tear down the building on the front of her lot, and rebuild a four-story brick building thereon. The building inspectors and the district surveyor, on application for a permit to rebuild, gave the new line as established by the Act of 1870, and the city solicitor notified the plaintiff that the front wall of the new building must be set back to the now line, five feet in the rear of the old line; whereby the sidewalk in front of the plaintiff’s property was widened five feet.
    The referee reported, inter alia, as follows: “ The city has therefore taken for public uses a strip of the plaintiff’s ground, five feet in depth by the width of the plaintiff’s property in breadth, and has thereby increased by five feet the width of the paved sidewalk in front of the plaintiff’s property. But the buildings on No. 1810, the property adjoining on the east, and on No. 1314, the property adjoining on the west, are still out on the old line. The front of the plaintiff's property is, therefore, in a recess of five feet in depth between those buildings. Neither the plaintiff nor the city can, under existing legislation, compel the owners of those properties to pull down the buildings now on them and to retire to the new line. There is no possible way of determining when they will voluntarily conform to the plaintiff’s line, or when fire or other accident will compel them' to rebuild.
    “ It is true that the plaintiff voluntarily tore down the old front wall, and that knowledge of the provisions of the Act of 28th of April 1870 must be imputed to her. The plaintiff, in rebuilding and substituting a new for an old front wall, was exercising her right as an owner. She was hound to take the consequences of her act. That consequence is that the city has, by force of law, taken some of her property for public use; but it does not follow from that, that she is to be denied just compensation therefor. [The referee here reviewed numerous authorities.] From these cases it results, that the compensation to be awarded to the plaintiff is the pecuniary equivalent of the diminution in value of No. 1812 Chestnut street, directly and necessarily resulting from the appropriation to public uses of the ground taken; also considering as elements of damage the inconvenience to occupants of the property caused by the recession of its front between the adjoining houses, and the consequent difficulty of procuring constant tenants, but not regarding the conjectural appreciation in value by reason of a possible recession of either or both the adjoining buildings at some indefinite time in the future.
    “ It also follows that the diminution in value, thus defined, must be determined in amount by the opinion of competent witnesses, and not by a capitalization of the rental for any given time, for the rent of a property depends upon conditions which necessarily fluctuate from time to time, and which cannot be predicted with even approximate accuracy.” * * *
    “ As a result of a patient and careful consideration of all the testimony in the cause, I assess the plaintiff’s damages at $7500 : and I enter judgment against the defendant for that sum, with interest from 1st July 1875, and costs.”
    The referee’s report was filed April 23d 1880. The defendant filed, inter alia, the following exceptions :
    1. Because the learned referee erred in finding as a fact that the city has taken for public use a strip of the plaintiff’s property, five feet in depth by the width of the lot.
    2. Because the learned referee erred in not finding that the taking of the said five feet of .ground was attributable solely to the action of the plaintiff.
    3. Because the referee erred in finding that the compensation to be awarded to the plaintiff is the pecuniary equivalent of the diminution in value of No. 1312 Chestnut street, directly and necessarily resulting from the appropriation to public uses of the ground taken, [also considering .as elements of damages the inconvenience to occupants of the property caused by the recession of its front, between the adjoining houses, and the consequent difficulty of procuring constant tenants, but not regarding the conjectural appreciation in value by reason of a possible recession of either or both the adjoining buildings at some indefinite time in the future.] (1st assignment of error.)
    4. Because tho learned referee erred in not finding that the sole compensation the plaintiff was entitled to recover was the difference between tho market value of the lot before and after the alleged taking of the said five feet, without any reference to the character of the erection thereon, or of the business carried on therein by the tenant. (2d assignment.)
    When the case was called for argument in the Common Pleas upon the exceptions to the referee’s report, the question was raised by counsel whether, under the Act of May 14th 1874, the Common Pleas had jurisdiction to entertain the exceptions, and whether the decision of the referee, when filed in the Common Pleas, was not, by force of the act, a final judgment to which a writ of error would lie.
    The court thereupon declined to hear the exceptions in this case “for the reason that the Supreme Court having taken jurisdiction in another case upon an appeal from the decision of a referee to the Supreme Court, we hold that such action is binding upon us; and for this reason we decline to entertain the question raised by tho exceptions.”
    The exceptions were afterwards submitted to the referee, who, on September 1st 1880, filed a supplemental report, setting forth that ho did not find anything therein to change the conclusions to which he came in this report. Thereupon the defendant sued out this writ of error, assigning for error the refusal of the court to entertain the exceptions, and tho refusal of the referee to sustain the exceptions to his finding and judgment.

      C. E. Morgan, Jr., Assistant City Solicitor (with him William Nelson West, City Solicitor), for the plaintiff in error.
    1. There is nothing in the Reference Act of May 14th 1874, repugnant to the construction that the Court of Common Pleas has jurisdiction to review the finding of the referee. While there are some expressions, which by implication are capable of a different construction, the tenor of the entire act is against a construction which would oust the jurisdiction and make the referee superior to a judge of the Common Pleas. The object of the act w*as to enable parties to expedite their suit by waiving a jury trial, and agreeing to a submission to a referee in the same manner as to the court under the Act of April 22d 1874, Pamph. L. 109. Under the latter act, the finding of the judge is subject to review, upon exceptions, by the court sitting in banc. By sect. 8 of the act in question, the referee has the powers “that would belong to the court under a like submission.” The decision of the referee “ shall in like manner, and to the same extent, be subject- to exceptions and writ of error or appeal, as in cases submitted in like' manner to the court.” Subsequent sections provides that the court in ivhich the suit is pending may, for certain causes, “ set aside the agreement for submission;” and that the court shall “after due examination” direct the taxation of the referee’s costs; also that the Supreme Court may, “ after the decision or judgment of such referee has been by due course of law brought before them,” review the judgment. The referee cannot “by due course of law” certify the record to-the Supreme Court in response to a writ of error; he cannot award execution or grant a rehearing, because his office is functus officio immediately upon the filing of his decision in the Common Pleas. The judgment then becomes “ a judgment of the court,” and it would be contrary to due course of law to wrest from the court its right to open, rehear and decide upon the merits of its own judgment. A statute giving a new jurisdiction ought to be construed strictly, and the jurisdiction of the superior courts is not to be ousted in favor of an inferior tribunal by mere implication : Dwarris on Statutes 259. The construction for which we contend renders all parts of the act in question consistent, and is supported by the decision of Thayer, P. J., in Collins v. City, 8 W. ÍT. C. 409. The contrary interpretation deprives the suitor of his right to have a rehearing upon the facts and to h.ave the judge's pass upon the questions of law. Such an interpretation would render- the act unconstitutional, because the General Assembly is prohibited from “ creating other courts to exercise the powers vested by this Constitution in the judges of the Courts of Common Pleas:" Constitution, art. v., sects. 26 and 27.
    2. The referee erred in awarding damages, for the following reasons : The injury of which the plaintiff complained was due entirely to her own act. The testimony of all the experts was to the effect that the loss of the five feet is an advantage rather than an injury to the plaintiff’s property. In considering the elements of damage and advantage caused by the recession of the plaintiff’s building, the referee erred in refusing to regard the appreciation in value by reason of the future recession of the adjoining buildings to the new line. As the finding of the referee on the facts has not been reviewed elsewhere, it is necessary to ask this court to look at the evidence.

      Samuel B. Huey, for the defendant in error.
    1. A referee, under the Act of 1874, is invested with the full powers of a court and jury to find the facts, to declare the law and file a decision, which thereupon “shall be considered a judgment of the court.” This being so, it is to the judgment of the referee alone that the writ of error goes, although nominally entitled as of the court in which the record remains; and such writs have been frequently entertained by this court: Smith v. Ins. Co., 7 W. N. C. 365; MacDowell v. Ackley, 8 Id. 464; Lee v. Keys, 7 Norris 175; Hillbron v. McNichol, Jan. T. 1880, 84. In Collins v. City, 8 W. N. C. 409, the Common Pleas No. 4, of Philadelphia county entertained the jurisdiction on exceptions to a referee’s decision under the act in question, but the point was not argued, nor was it assigned for error in the Supreme Court. The construction given to the local Act of April 6th 1869, Pamph. L. 725, and its supplement of January 20th 1870, Pamph, L. 85, which were substantially similar to the act in question, was in accordance with our view: Butterfield v. Lathrop, 21 P. F. Smith 225; Fall Creek Co. v. Smith, Id. 230; Thornton v. Enterprise Ins. Co., Id. 234, 237. The act is not obnoxious to the Constitution, because the submission to a referee is not mandatory, but permissive only, and the parties themselves, by their agreement, created the tribunal.
    2. The principles on which the referee based his decision on the measure of damages are supported by authority: Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 410; Railroad Co. v. Stauffer, 10 P. F. Smith 374; Railroad Co. v. Rose, 24 Id. 362; Watson v. Railroad Co., 1 Wright 469.
   Mr. Justice Trunkey

delivered the opinion of the court, May 2d 1881.

In such case as this the rule for measurement of damages is settled by a uniform current of decisions, taking its rise in Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 410. The damage is to be estimated as of the date when the injury was complete, and the land-owner had a right to receive compensation ; the property to be valued without reference to the owner, or the actual state of his business; the true measure of damages being the difference between the market value of the land as affected by the taking of part for the street, and such value as unaffected. What would Mrs. Linnard’s land have sold for at and immediately before the street was widened at its front ? What would it have then sold for as affected by widening the street? The difference is the sum to which she is entitled. Many things may bo considered as elements of damage, such as inconvenience to occupants of the property caused by recession of the front, and the difficulty of procuring constant tenants. These aid in fixing the value of the property. They are not to be considered with reference to a particular business. Though the property were ruined for its former use, if worth as much or more for another use, the owner suffered no damage for which she can recover. The pivotal inquiry is as to how much the property, as it was when injured, was diminished in value. The lot with its improvements was worth a certain sum; to estimate the loss by referring to more valuable improvements subsequently constructed would be error. For instance, if the new building would rent for more than the old, the new would be a false basis from which to estimate rents or value of the lot as affected by widening the street.

The learned referee appears to have clearly apprehended the rule for measuring damages. Wo do not think he intended to decide that any elements of damage such as inconvenience to occupants, and decrease in rents, should be considered in other light than as bearing on the question of value of the land at the' time of the injury. But he refused to regard “the conjectural appreciation in value by reason of a possible recession of either or both the adjoining buildings at some indefinite time in the future.” For this refusal, he rested on P., V. & C. R. R. Co. v. Rose, 24 P. F. F. Smith 362, and Watson v. P. & C. R. R. Co., 1 Wright 469. In the former case, the company had proposed to make improvements by grading and improving the street, unconnected with the finishing of their railway, and it was ruled that the case should be considered without reference to the proposal. To make such improvement, the company was not bound by law or contract. It was a naked proposition, worthless in itself, and to such as that the decision relates. In the other case, the point was upon an offer of testimony by the plaintiff respecting the value of the land as injured, and as it would be if uninjured. After repeating the rule as to damages, Strong, J., said, “ His attempted mode of proof of the difference between the two values was entirely inadmissible. His offers all had the same fault. They proposed to submit to the jury the conjecture of witnesses as to what the plaintiff’s lands would be worth, or what their market value would be, at some unknown future time, when the railroad shall have been constructed. Such testimony does not rise even to the standard of an opinion. It is a mere guess with no substantial foundation upon which to rest.” A glance reveals that the language applies to an absurd offer of evidence, and does not mean that testimony showing increased value of the land because of the railroad, or advantages arising from it, shall be excluded. The inquiry was as to the effect of the injury upon the value at the time, not how the value might be affected in the future. Any fact which affects the value of the land at the time of the injury is admissible. Thus, in the New-ville Road Case, 8 Watts 172, the court remark : “And the viewers are presumed to have taken into consideration, as it was their duty to do, as well the possibility of the road reverting back to the proprietors by being vacated at some'future time; as the rights left to him under and over the highway in subservience to the public passage.” Upon the vacation, a possible but uncertain event, the road reverts, and this is to be considered in appraising damages. Under the operation of the Act of April 28th 1870, Pamph. L. 1291, it is reasonably certain that between the two rivers all buildings will be removed from the old line of Chestnut street. When this shall be accomplished is uncertain. When done, the very inconveniences and difficulties arising from the recess of Mrs. Linnard’s property will cease. How can the value of the property be determined, or the amount of damages, without considering the fact that all buildings erected subsequent to the Act of 1870, must be as far from Market street as the one on the lot in question ? The first specification of error is sustained.

An act to provide for the submission of civil cases to the decision of the court, and to dispense with trial by jury, was enacted April 22d 1874, Pamph. L. 109. On the 14th of May following (Id. 166), an act was approved to provide for the submission of civil cases, by agreement of the parties, to a referee learned in the law, which can be readily understood by’ reference to the prior Act of 22d April. It enables the parties, by written agreement, to submit any civil case to the decision of a person learned in the law, in like manner as it could be submitted to the decision of the court. The referee derives his authority by said agreement, not by the court’s appointment, and “ so far as relates to the case and the duties he is to perform as referee, shall, after acceptance of his appointment, be subject to the same control by the Supreme Court as the court below would be in regard to a cause submitted to them in like manner.” In all things pertaining to the trial and decision of the case he shall have the powers and perform the duties that would belong to the court under a like submission.

The decision shall be filed of record, “ and in like manner and to the same extent shall be subject to exceptions and writ of error or appeal,” as in cases submitted to the court. The judgment entered upon his decision shall be considered the judgment of the court, and thereafter the referee’s power is ended, unless the case be referred back to him by the Supreme Court. On writ of error or appeal, the Supreme Court may remit the case for further hearing before the referee, or make such other order as may be proper to protect the rights of the parties. For certain causes, the court in which the suit is pending may set aside the agreement of submission ; and said court has power to settle the amount of the referee’s costs and direct its taxation. The respective power's and duties of the referee, of the court where the cause is pending and of the Supreme Court are well defined. No provision is made for the hearing of exceptions or otherwise reviewing or controlling the decision of the referee by the Court of Common Pleas. It is plain that no power is given to that court over the referee or his decision other than is expressed. The power of control and review is expressed to be in the Supreme Court. Moreover, this statute is similar to the prior local Acts of April 6th 1869, Pamph. L. 725, and January 20th 1870, Id. 85, under which it had been decided that the Common Pleas had no power whatever to re-examine and pass upon the report of the referee: Thornton v. Enterprise Ins. Co., 21 P. F. Smith 234; Butterfield v. Lathrop, Id. 225. The meaning of those statutes on the point in question had been judicially ascertained, and therefore the latter statute in similar terms, enacted in view of that adjudication, has the same intendment.»

It is urged that this statute is in conflict with art. V., sects. 26 and 27 of the Constitution. Sect. 26 prohibits the creating of other courts to exercise the powers vested in the judges of the Courts of Common Pleas and Orphans’ Court. A new court is not created. The statute only applies to causes pending in Courts of Common Pleas and Orphans’ Courts, and civil suits cannot be instituted elsewhere- till new courts are created. By agreement, the parties to a pending suit may waive jury trial, and submit the matters at variance between them to a referee; and judgment is entered on his decision. This no more violates the constitutional provision than would an agreement by the parties confessing judgment in vacation. Sect. 27 imposes the duty upon the court, when the parties file an agreement t'o that end, to hear and determine the cause. Prior to the Constitution of 1873, the legislature could authorize the parties to make an agreement of submission to a referee, and to that'is now added the power to compel the courts to hear and determine issues of fact as well as of law, where the parties so elect.

In a writ of error under the Act of May 14th 1874, this court can hear and determine only questions of law involved in the rulings of the referee relating to the evidence or the law of the case. His findings of fact are as conclusive as the verdict of a jury.- If the point were made before him that there was no evidence to warrant the plaintiff’s recovery, or no evidence to warrant the finding of a disputed fact, its disposition could be reviewed the same as when made in a jury trial: Lee v. Keys, 7 Norris 175.

It is claimed that “ the plaintiff below is not entitled to recovery because the injury of which she complains is due entirely to her own action.” This point is well answered *by the referee. By force of law, the instant the old building was torn down the city took part of the land for public use, and is liable to make compensation to the owner, the same as if it had been taken in any other mode.

None of the assignments of error can be sustained except the first. With reference to the second, there was no request for the ruling therein stated. Had it been desired, the point could have been made in like manner as if the trial were before a court and jury. The referee may have acted in accord with the principle, though it is not stated in his opinion.

Judgment reversed, and it is ordered that the record be remitted to the court below for a re-hearing before the referee


author: Mr. Justice Paxson

text:
    Mitchell versus Steinmetz.
    1. A decree for specific performance will never be made by a court of equity in favor of a vendor unless he is able to offer a title marketable beyond a reasonable doubt, nor against a vendee where he is able to show any circumstances which would make it unconscionable to enforce the contract.
    2. In order to make the title to a ground-rent marketable, the title of the land out of which the rent issues must be marketable.
    3. A. exposed for sale at public auction, and sold to B. a ground-rent, but without giving notice of the existence of municipal claims against the property out of which the rent issued. B. subsequently discovered that such claims existed to an amount equal to or greater than the difference between the par value of the ground-rent and the value of the premises out of which it issued. In an action by A. against B., to recover damages for loss sustained by the plaintiff on account of the refusal of B. to fulfil his contract of sale, in which action it was agreed that the court should have as full equitable powers as if a bill in equity had been filed for specific performance: Held, that the case was one in which a court of equity would not have decreed specific performance, and that the defendant was entitled to judgment.
    February 23d 1881.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1881, No. 171.
    The following facts were agreed upon by the parties as a case stated for the opinion of the court, with the same effect as if they had been found by a jury in a special verdict, the court to have authority to draw any inferences from the facts which a jury might draw, and to exercise as full equitable powers as if a bill in equity had been filed for specific performance of a contract of sale.
    On December 2d 1879, the plaintiff, Mary Amanda Mitchell, wife of Joseph Eastburn Mitchell, being the owner in fee of a ground-rent of $100 per annum, reserved by deed dated July 12th 1874, issuing out ®f a lot of ground and dwelling-house thereon erected, situate at the northwest corner of Thirty-third and Hamilton streets, in the city of Philadelphia, acting with the approval of her husband, caused the same to be exposed at public sale and sold on that day, by M. Thomas & Sons, auctioneers, to the defendant, Jacob Steinmetz, for the sum of $1600. The terms of sale wore cash on the execution of the deed, within fifteen days from sale. Within that time a deed in the usual form, duly executed by the plaintiffs, was tendered to the defendant, who refused to accept the same on the ground that there existed at the time of sale, and at the time of the tender of the deed, certain municipal claims against the lot out of which the rent issued, for unpaid taxes, from 1869 to 1879 inclusive, and for paving, and culvert, &c., amounting in the aggregate to $1684.79, together with interest and costs. Judgments had been entered on some of the claims, and a levy had been made for the taxes of 1878. All the said claims duly appeared on and before December 2d 1879, as existing ■and unsatisfied demands against the said real estate upon the locality index established by the Acts of March 31st 1864, and February 16th 1866 (Purd. Dig. 1091, pi. 40, 41), and the' unpaid taxes also appeared upon the records of the tax office, but no notice of any of said claims was given at the sale. The property out of which the rent in question issued was assessed for taxation at $3300, which was then about the value of the land, if unencumbered.
    The defendant did not discover the existence of the said liens until searches had been taken out by his conveyancer after the sale; and he rested his refusal to accept the deed and pay the purchase-money, upon the ground that the title to the ground-rent sold was not marketable at the time of the sale, and the absence of notice of the existence of said liens at the time of the sale. It was admitted that the title to the ground-rent itself was good and marketable in all other respects, and that the deed tendered was in proper form.
    The questions of law to be determined by the court are:—
    1. Is the defendant relieved from his contract to purchase the ground-rent executed by him on the 2d of December 1879, by reason of the existence at the date of the purchase of the aforesaid encumbrances upon the real estate, out of which the ground-rent purchased issues ? If yes, judgment is to be entered for the defendant.
    2. Are the plaintiffs entitled to recover from the defendant the loss sustained by Mrs. Mitchell by reason of the non-fulfilment by the defendant of his agreement to purchase the ground-rent of the 2d of December 1879 ? If yes, judgment is to be entered in favor of the plaintiff for the sum of fifty dollars ($50).
    The court, after argument, entered judgment on the case stated for the defendant. The plaintiff took this writ of error, assigning for error the entry of the judgment.

      A. Sydney Biddle and George W. Biddle, for the plaintiff in error.
    The encumbrances on the land may affect its value as a security for the rent, but do not affect the marketability of the title to the rent, which is a distinct estate from the land. The question arising on a bill for specific performance of a contract of sale of real estate is never as to the value of the title, but as to its goodness and marlcetalility. A court of equity will not appraise the pecuniary value of real estate sold, as an element of the right of a party, to enforce specific performance, because the right would then depend, not upon the question of title, but upon the margin of value, which is speculative. If the land here had been worth $5000, instead of $3300, the defendant’s position would have been absurd, yet bis legal contention would have been equally forcible. Even in this case, the assessed value of the land ($3300) exceeded the amount of the encumbrances and the purchase-money ($1684.79-j-$1600=$3284.79). The question of security must, therefore, have entered into the consideration of the price bid. The small margin is the sole ground of objection. There are no encumbrances against the ground-rent. If there had been, the purchaser might have been compensated by deduction from the purchase-money. Suppose there were liens about to be filed, and actually filed after the purchase, would that he a defence ? Or suppose the land depreciates in value between the date of sale and the delivery of the deed, would that relieve the purchaser ? If the vendee can refuse to pay because the property is worth less than he thinks a safe margin, the vendor should have the right to rescind if the security proves more than safe.
    The liens were all of record, and the purchaser bought with legal notice, and had full opportunity to investigate the value of his security. The vendor guaranteed the title to the rent, which relieved the purchaser from the duty of taking out searches against the rent prior to the sale, but we did not guarantee that the title to the land was unencumbered. We tendered the purchaser a valid deed, conveying what he bought, and he should be compelled to accept the deed and pay the purchase-money. Moreover, if the land is insufficient, the owner of the ground-rent has his remedy against the covenantor.

      J. Sergeant Price, for the defendant in error.
    Specific performance in equity is not of absolute right, but rests in the sound discretion of the court, and will not be enforced against a defendant if he can show any circumstances, either as to matter of law or of fact, which make it inequitable: Dalzell v. Crawford, 1 Pars. Eq. Cas. 37; Nicol v. Carr, 11 Casey 381; Colwell v. Hamilton, 10 Watts 413; Bumberger v. Clippinger, 5 W. & S. 311; Speakman v. Forepaugh, 8 Wright 363; Doebler’s Appeal, 14 P. F. Smith 9; Swayne v. Lyon, 17 Id. 436; 1 Sugden on Vendors *337, *368, *401.
    Although a ground-rent is a separate and distinct estate from the estate in the land, yet for some purposes the two estates are inseparably connected. The title to the rent necessarily depends upon the title to the land. The conveyancer of a purchaser of the rent cannot stop at its reservation, but must see that the title in the land was good, or the ground-rent may bo worthless. The corporeal must exist, or the incorporeal cannot issue out of it. Thus, when land, subject to a ground-rent, is taken for public use under the right of eminent domain, as for a highway, a court of equity will apportion the rent in relief of the tenant, compensating the ground landlord out of the damages awarded for the land taken: Voegtly v. P. & F. W. Railroad Co., 2 Grant 243; Workman v. Mifflin, 6 Casey 362; Cuthbert v. Kuhn, 3 Whart. 357; Noble Street, 1 Ash. 276; Reese v. Addams, 16 S. & R. 40; Powel v. Whitaker, 5 W. N. C. 168. The lien for taxes is, by Acts of Assembly, prior to all other liens or responsibility existing against the land: Act of February 3d 1824, Purd. Dig. 1084, sect. 1. However ingenious may be the argument based on the theory that the ground-rent is a distinct estate, it is fallacious as applied to this case. If the title to the land is worthless by reason of liens which, although within the vendor’s knowledge, were not disclosed by him, it would be illusory and against conscience to compel a purchaser of the rent to pay the full market value for it because the title to the rent, as distinguished from that to the land, is theoretically good.
   Mr. Justice Paxson

delivered the opinion of the court, March 21st 1881.

This proceeding, although in form an action at law, is in substance a bill for specific performance, and must be so treated. The cáse stated expressly provides, that the court shall “ exercise as full equitable powers as if a bill in equity had been filed for specific performance of the contract of sale.”

The case briefly stated is this: The defendant purchased of the plaintiffs, at public auction, a ground-rent of $100 per year (par $1666.66), for the price or sum of $1600. The defendant’s conyeyancer procured searches against the premises out of which the rent issued, and found the same encumbered by municipal claims and taxes to the extent of $1684.79, and for this reason refused to take title to the ground-rent. The rent itself was not encumbered, but defendant alleges that the liens referred to, together with the ground-rent, equal if they do not exceed the value of the land.

A decree for specific performance is of grace, not of right. It will never be made in favor of a vendor, unless he is able to offer a title marketable beyond a reasonable doubt, nor against a vendee where he is able to show any circumstances which would make it unconscionable to do so. We need not review the decisions upon this subject. It is sufficient to refer to Colwell v. Hamilton, 10 Watts 413; Bumberger v. Clippinger, 5 W. & S. 311; Dalzell v. Crawford, 1 Pars. Eq. Cases 37; Nicol v. Carr, 11 Casey 381; Speakman v. Forepaugh, 8 Wright 363; Swain v. Fidelity Ins. Co., 4 P. F. Smith 455; Doebler's Appeal, 14 Id. 9; Swayne v. Lyon, 17 Id. 436.

It was urged, however, that the present contention is not within the cases cited, for the reason that the rule referred to applies only to a marketable title, while the defendant’s objection is not to the title to the ground-rent, bdt to that of the ground out of which the rent issues, in other words, that the objection goes not to the validity of the title to the rent, bnt to its value as a security.

A ground-rent is an estate carved out of the land. The owner of the one has an estate in the rent; the other an estate in the land. Both are real estate, and subject alike to be encumbered by mortgage and judgment. While we have these two separate estates, they are, at the same time, inseparably connected. The rent issues out of the land, and the owner of the latter holds his estate subject to the rent. It needs but this brief statement of the nature of a ground-rent to show that the title thereto is indissolubly connected with the title of the land itself. To make the title to such rent marketable, the title to the land out of which it is reserved must be marketable, otherwise we would have a rent reserved out of nothing.

What are the facts here ? The land is heavily encumbered by municipal claims and taxes, which, by Act of February 3d 1824, Pamph. L. 18, are made prior to all other liens and encumbrances. A judicial sale for the arrears of ground-rent, or upon any other encumbrance, will not discharge the lien of the taxes, unless the property brings enough to pay them. See Act of March 11th 1846, Pamph. L. 114. It is manifest, therefore, that this ground-rent is worthless, or its value greatly impaired by reason of the liens upon the land out of which it issues. These liens affect the title to the land, and whatever impairs the title to the land necessarily impairs the title to a rent issuing out of the land.

If the title to the land fails, the title to the rent falls with it. I presume it will be conceded that if this ground-rent had been subject to a prior mortgage on the land equal to the value of the latter, the title to the rent would have been worthless. In what respect does such case differ from the one in hand ? In either event, the rent is subject to a paramount lien upon the thing out of which it issues, and which necessarily sweeps away the title to both. This, of course, has no reference to liens upon the land which do not affect the rent.

We are of opinion the court below committed no error in entering judgment for the defendant upon the case stated.

Judgment affirmed.