source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Pittsburg and Steubenville Railroad Co. versus Allegheny County.
    1. An Act of Assembly authorized a county to subscribe for stock in a railroad company, and to pay for it in the bonds of the county, bearing interest, to be issued for that purpose, the county to make provision for the payment of interest as in other cases of its bonds, and the railroad company to receive bonds at par as cash. Held, that the act contemplated an exchange of the stock as a full equivalent for the bonds, and that the county should occupy no better position than other stockholders.
    2. The county contracted with the company to take stock to be paid for by the bonds, and the directors covenanted that the company should, during the time the bonds had to run, pay interest on the stock to the pérsons who might hold the bonds in discharge of their interest. The act of incorporation did not authorize the company to pay interest on stock. Meld that the contract with the county was ultra vires.

    3. The powers of a corporation must be found in its- charter or arise by necessary implication from it.
    4. The directors in contracting for a bonus to the county on its subscription, were, independently of the Act of Assembly, acting without authority, and the corporation was not bound.
    5. A corporation as well as a natural person may repudiate a contract executed by an agent without authority.
    ■6. Fowler v. Scully, 22 P. F. Smith 456 ; Pittsburg & Connellsville Railroad Co. v. Allegheny, 13 Id. 126, followed.
    October 4th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, and Woodward, JJ.

      Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1869, No. 15.
    This was an action of debt brought December 6th 1864, by the county of.Allegheny against the Pittsburg and Steubenville Railroad Company.
    The claim of the plaintiff was for $344,314.50.-
    The affidavit of claim averred that by contract of July 15th 1853, and June 12th 1854, with the defendant, the plaintiff subscribed for 10,000 shares of the stock of the defendants, and paid for the same in bonds of plaintiff which would become due in thirty-two years, and in consideration thereof the defendant agreed to pay interest at the rate of six per cent, semi-annually on the stock for thirty-two years, at the same place and on the same days as the bond interest would become payable; that the bonds were sold and delivered to different persons; that the company paid the interest as they covenanted to do until January 1856, but after that time failed to pay the interest on the stock; and that in consequence of the failure the county had become liable to pay and had paid large sums of money for interest on the bonds.
    The case was tried May 5th 1865, before Sterrett, P. J., when a special verdict was rendered, finding the following facts:—
    By an Act of March 24th 1849 (Pamph. L. 1850, p. 952), the Pittsburg and Steubenville Railroad Co. was incorporated, subject to the provisions of the General Railroad Law of February 19th 1849: Pamph. L. 62, 2 Br. Purd. 1211 et seq. By the ninth section of the Act of 1849, it is enacted “ that the dividend (of a railroad corporation) shall in no.case exceed the amount of the net profits actually acquired by the company, so that the capital stock shall never be impaired thereby.”
    By the Act of February 24th 1853, Pamph. L. 133, the commissioners of Allegheny county were authorized, on the recommendation of one grand jury, to subscribe for an amount not exceeding 10,000 shares of the stock of the defendants, and to borrow money to pay for the stock and make provision for the principal and interest as in other cases of the loans of that county, the bonds to bear interest at the rate of six per cent., for which coupons were to be issued ; the bonds to be payable and transferable at such times and places as the commissioners might deem expedient, and should be received as cash at par by the company in payment of the subscription to stock, and the county, in lieu of voting for officers of the company, shall be entitled to appoint a director for every 5000 shares of stock.
    By the Act of April 20th 1853, sect. 22, Pamph. L. 315, the defendants were authorized to borrow $500,000 and issue bonds therefor, to be secured by mortgage on their road and property, with authority to the city of Philadelphia to subscribe for stock of the company, &c. By the Act of May 2d 1853, sect. 4, Pamph. L. 652, the defendants were authorized to borrow money not exceeding the amount of their capital stock, and issue bonds, to be secured by mortgage on their property and franchises.
    On the 13th of June 1853, the grand jury of Allegheny county recommended that the county of Allegheny should subscribe for 10,000 shares of' the capital stock of the defendants, agreeably to the Act of February 24th 1853.
    On the 2d day of July 1853, the commissioners of Allegheny county resolved to subscribe for 6000 shares of the stock of the defendants, amounting to $300,000, payable in bonds of the county in thirty-two years, with coupons attached for the interest, payable semi-annually, at the rate of six per cent, per annum, upon the following terms:—
    1. The defendants to accept for the subscriptions the county bonds at par as cash in payment of the 6000 shares of stock.
    2. The defendants to issue certificates to the county for the stock as might be required in sums of not less than $100 each, with interest at the rate of six per cent, per annum, payable semiannually for thirty-two years after the date of the certificate, on the same days and at the same places as the interest on the county bonds are made payable, and to the holders of the coupons thereof.
    3. The defendants to pledge the capital stock of the company, their railroad, all their real and personal property then owned or thereafter to be acquired by the company, to the county, for the payment of the interest on the stock for thirty-two years, and to pay to the county the excess over six per cent, of dividends that might be declared on the stock of the company.
    The directors of the company accepted the proposition, and entered into a contract with the county in accordance with it. On the 13th of July 1853, the 6000 shares of stock were issued and paid for by bonds of the county to the amount of $300,000.
    By Act of March 22d 1854, Pamph. L. 182, the defendants were authorized to issue bonds bearing interest at seven per cent. per annum, and to make any bonds “which it has heretofore been authorized to issue for the construction and equipment of its road, convertible into the stock of its company at par, or on such terms as may be agreed upon.”
    At a meeting of the county commissioners, June 10th 1854, it was resolved to subscribe for 4000 shares more of the stock of the railroad company upon the terms as to payment, &c., of the former contract. The resolution -was submitted to the directors of the company, who accepted the proposition of the county, and a contract in accordance with it was entered into; 4000 additional shares were issued to the county, and in payment -for them the bonds of the county to the amount of $200,000, with interest coupons, were delivered to the company.

      During the years 1854, 1855 and 1856 the company, in accordance with the contracts, paid the interest to the holders of the. bonds, but had failed to make any payment of interest since 1856; before the institution of the suit the county had paid interest cou-1 pons to the amount of $242,458.76.
    In May 1856 the company entered into a lease with J. S. King and A. W. Thompson, by which King & Thompson agreed to finish the railroad and pay to the stockholders four per cent, per annum on $1,500,000 of the stock of the company payable semi-annually for twenty years, the term of the lease ; the agreement was after-wards changed and in lieu of the per centage on the stock, King & Thompson agreed to pay 40 per cent, of the gross earnings during the lease ; the first payment to be made July 1st 1857 ; the contracts with King & Thompson were unanimously agreed to by the board of directors, including two directors chosen by the county commissioners, and were also unanimously agreed to by the stockholders, including the county, at a meeting called for the purpose. King & Thompson never paid the company either money or interest under the contract, and the lease was assigned by King & Thompson, with consent of the defendants, to the Western Transportation Company; that company never paid anything to the defendants under the lease, and was still in possession of the railroad; when the county subscribed there was 6000 or 7000 of stock owned by other persons.
    In a suit in the Circuit Court of the United States, by George L. Ashmead, judgment was obtained on the 4th of December 1860 against the county; the stock of the county in the defendant’s company was levied on under a fi. fa. and 9900 shares were sold at marshal’s sale ; the stock thus sold was not transferred to the purchasers, the secretary of the company under the advice of counsel, refusing to permit the transfers to be made.
    The questions of law submitted by the special verdict were: If the court should be of opinion that the plaintiff was entitled, to recover the whole amount paid for coupons which had matured before the institution of this suit, the jury found for the plaintiff $242,458.74. If of opinion that the plaintiff was entitled to recover only the amount paid for coupons which matured previously to the sale on the execution out of the Circuit Court, &c., the jury found for the plaintiff $153,974.80. If of opinion that plaintiff was not entitled to recover for coupons maturing after the first payment to be made by King & Thompson, the jury found for plaintiff $45,910.90. If of opinion that the plaintiff was not entitled to recover, the jury found for the defendant.
    The court afterwards entered judgment on the verdict for plaintiff for $242,458.74.
    The defendants took a writ of error and assigned for error: that the court erred in entering judgment against the defendants.

      Gf. P. Hamilton (with whom were J. H. Hampton and T. Ouyler, for plaintiff in error.
    The railroad company had no power to make a contract to pay interest on their stock; it was ultra viren, against public policy and a fraud on the non-assenting stockholders : Com. v. Erie & N. E. Railroad Co., 3 Casey 399; McMasters v. Reed, 1 Grant 339 ; Miller v. Pitts. & C. Railroad Co., 4 Wright 237; Pitts. & C. Railroad Co. v. Allegheny, 13 P. F. Smith 136. Want of corporate powers may be taken advantage of by a private party: Fowler v. Scully, 22 P. F. Smith 460.

      G-. SMras, Jr. and J. H. Sewell, for defendant in error.
    A contract to pay interest out of the earnings would be valid; there being nothing to show to the contrary the presumption is that this interest was to be paid in that way : Kilgore v. Buckley, 14 Conn. 362; Nelson v. Eaton, 26 N. Y. 410; Farmers’ L. & T. Co., 3 Id. 470; Roussin v. Ins. Co., 15 Mo. 244; Mutual Ins. Co. v. Davis, 12 N. Y. 569; Toledo v. Cleveland & T. Railroad Co., 6 Ohio St. 489.
   Mr. Justice Gordon

delivered the opinion of the court, November 4th 1875.

The Act of 24th of February 1853, did but authorize the county of Allegheny, through its commissioners, to subscribe to the stock of the Pittsburg & Steubenville Railroad Co. It conferred upon-the county no power to loan money. To pay for this subscription the commissioners were authorized to issue interest-bearing bonds, which the railroad company was required to receive as cash at par. This act, so far from contemplating that the company was to pay the interest upon these bonds, provided that the county commissioners should make provisions therefor as in other cases of bonds of the said county. It is therefore obvious that the legislature contemplated an exchange of the stock of the company ás a full equivalent for the bonds of the county, and that the county should occupy no other or better position than other subscribers to the stock of the road. It certainly did not intend that, as to dividends, the county shares should be preferred. When, therefore, the company contracted to-pay an annual interest of six per cent, on the county stock, for a period of thirty-two years, it certainly exceeded its authority. If such power existed, we have not been informed of it; and we need no more than repeat the rule, so often expressed in our books, that the powers of a corporation must be found in its charter, or arise by necessary implication therefrom.

This company was incorporated by a special Act of Assembly, approved March 29th 1849, subject to the provisions of the Act of February 19th 1849, commonly known as the General Railroad Act. This latter recited act not only does not confer the power contended for by the plaintiff below, but in express terms prohibits the exercise of any such power.

The 9th sect, provides that the “directors shall in no case” (in declaring dividends) “ exceed the net profits actually acquired by the' company, so that the capital stock shall never be impaired thereby.” In case of a violation of the provisions of this section, the directors are made individually liable for the amount of the capital stock so paid out. Now from the special verdict, we find that the company paid the accruing interest upon the county stock for the yeai’s 1854, 1855 and 1856. The road was then unfinished ; for from the same source we discover that in May 1856, the road was leased to King & Thompson for the term of twenty-one years, they agreeing to finish the road and pay to the stockholders thereof four per cent, per annum on $1,500,000; subsequently modified to forty per cent, on gross earnings. King & Thompson afterwards assigned to the Western Transportation Company, but neither of these parties have ever paid anything to the company. It is therefore quite certain that the interest paid on the county stock came out of the capital of the company, and it is equally certain that if we compel a further payment it must be drawn from the same source. The special verdict thus exhibits a contract prohibited by the statute, and it follows that it cannot be enforced: Fowler v. Scully, 22 P. F. Smith 456. And, as is said by Justice Agnew in that case, the argument that the state alone can call in question the legality of the act of the company has no place here.

Leaving, however, the Act of Assembly out of the question, there yet remains the fact that in thus contracting with the county for a bonus on its subscription, the directors of this company were acting without authority. Such being the case, the corporation was not bound. The prime object of the creation of this company was the building of a railroad, an undertaking in which the public was largely interested. It was to be built, if at all, from money subscribed to its stock. If, however, the money so raised must first go to the payment of interest upon these very subscriptions, it is obvious that it would soon be consumed and thus the main object of the organization defeated. Again, if the county of AUe-'i gheny was alone to receive this annual dividend, bonus or interest, as it may happen to be designated, the remaining shareholders might welkcomplaim that the contract is a fraud upon their rights. It is true that those shareholders who assented to the arrangement might be estopped from calling it in question, but as it could not affect such as did not assent to it, or those who subsequently subscribed, an estoppel could not be worked against the company: Bailey v. Gas & Coal Co., 19 P. F. Smith 340 ; 1 Redf. on Railways 617. This court sustained a similar subscription in the case of the Pittsburg & Connellsville Railroad Co. v. The County of Allegheny, 13 P. F. Smith 126, only on the ground of an Act of Assembly authorizing it, and though the contract, like that in controversy, stipulated for the payment of interest for thirty years on the bonds issued by the county in payment of its subscription, yet it was held that such interest was payable only for and not beyond the time specifically fixed by the act; that was until the completion of the road. Thompson, C. J., who delivered the opinion of the court, says : “ Without express authority or beyond the limits of authority conferred, we think the company had no power to bind its stockholders, who constituted the company, to pay the interest to the county of Allegheny for the period of thirty years or any other period.” This authority being full and to the point, we may rest upon it. In addition to this we may notice the fact that the county has no such peculiar equities as would evoke the doctrine of estoppel in its Tavor even were we in a position to apply it. The county received the same compensation for its subscription that others did. It can stand on no higher level and can ask for no greater consideration than its fellow shareholders. All got for their money or bonds just what the law contemplated they should get, viz.; shares of the company’s stock. If it turned out to be worthless as to one, it was worthless as to all, hence there is no reason why the county should be preferred to the individual shareholder. We have been cited to many authorities showing that the misuse or abuse of its corporate powers does not necessarily avoid its contracts made under such abuse of authority. These authorities are neither impugned nor doubted; they simply do not apply to the case under consideration, for it is not to be doubted but that not merely a corporation, but also any natural person, may repudiate a contract executed by an agent without authority. In the case in hand, the directors of the Pittsburg & Steubenville Railroad Company, in executing the contract with the county, acted ultra vires in that they agreed that the county shares of stock should bear interest, and having so acted, the company may well repudiate that contract.

The judgment of the court below is reversed.


author: Per Curiam.

text:
    McLaughlin versus McGee.
    1. A tenant received due notice to quit at the end of his term and proceedings were commenced by the iamdlord before a justice to obtain possession ; the justice dismissed the proceedings on the ground that the landlord had extended the term. In ejectment by the landlord for the same premises, Held that these proceedings, being merely a finding that the complaint was not sustained by sufficient evidence, and not a judgment for the defendant, could not prevent a recovery in a subsequent ejectment on a good title.
    2. Ejectment by a landlord against a tenant to recover possession after the expiration of the term, either by efflux of time, forfeiture or other ground, is not a proceeding in equity, but at law; a prior verdict in ejectment for the tenant is therefore not conclusive; it is persuasive evidence merely.
    October 4th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon and Woodward, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1874, No. 120.
    This was an action of ejectment brought, July 8th 1873, by Peter McGee against Manus McLaughlin and others for a lot of ground in the Fifth Ward, Pittsburg.
    Both parties claimed under Catharine Briclde, who, on the 17th of January 1867, by writing under seal leased the premises to defendant for five years from the first of April then next, at the rent of $500, payable semi-annually in advance, and the defendant covenanted that he would not sublet any of the premises for an eating-house or tavern, nor sell or suffer any liquor to be sold there, “ under a penalty of $500 * * * in the nature of rent in addition to the amount above mentioned.” It was further agreed that if any part of the rent should be unpaid after it became due, the lessor might at her option consider the defendant a tenant at will, and after five days’ notice re-enter, &c., “ using so much force as is necessary to that end.” The lease also authorized the lessor to distrain, &c., and the exemption laws were waived. It was further agreed that if the defendant should continue to occupy the premises after the expiration of the lease, with the consent of the lessor, the terms of this lease were to continue to be binding.
    On the 26th of August 1871, Mrs. Brickie conveyed the premises to the -plaintiff in fee, and on the same day assigned to him the lease to the defendant.
    The defendant alleged in his abstract of title that early in the year 1867 he made a parol agreement with Mrs. Brickie for the purchase of the premises for $10,000, if they were sold at any time during the lease, and that plaintiff knew of this agreement before his purchase; that about October 1869, by a parol agreement, Mrs. Brickie renewed the lease to defendant for five years after the expiration of his first lease; and relying upon that agreement he made valuable improvements, took possession of the premises and held them under it; by proceedings by the plaintiff, under the Landlord and Tenant Act of December 14th 1863, before Alderman Strain, to obtain possession of the premises from the defendant, and on the above stated title of the plaintiff, judgment was rendered for the defendant. The plaintiff commenced an action of ejectment against the defendant in the Court of Common Pleas of Allegheny county for the recovery of the premises on the same title; a verdict was rendered against the plaintiff, and judgment entered on the verdict for the defendant.
    The case was tried, April 13th 1874, before White, J.
    The plaintiff gave evidence of his title as above set out; also notice from plaintiff to defendant to quit, served December 19th 1871. He gave other evidence not important to notice, and rested.
    The defendant then offered in evidence the record of the proceedings before Alderman Strain, as mentioned in his abstract of title, for the purpose of showing that the notice to quit was intended for those proceedings, and to show that the rights of the parties as landlord and tenant had been adjudicated by a competent tribunal, and were unappealed from.
    This was objected to by the defendant, rejected by the court, and bill of exceptions sealed. •
    He then gave in evidence the record of an ejectment, that mentioned in his' abstract of title, commenced May 11th 1872, in the Court of Common Pleas, in which the plaintiff’s title was given in evidence as here, the same defence set up, and a verdict and judgment rendered for the defendant.
    The defendant gave evidence also in support of that part of his case which related to the parol agreements mentioned in his abstract of title; and the plaintiff gave evidence in rebuttal.
    The first point of defendant, which was refused, was:—
    The verdict and judgment in the case between the same parties in the Court of Common Pleas of Allegheny county, in evidence, being for the same land, and upon the same title, is conclusive of the rights of the parties, and their verdict should be for the defendant.
    His second point, which was affirmed, was:—
    If the court decline to charge as requested in the first point, then the court is requested to charge that said judgment and-verdict are persuasive evidence in favor of the defendant to be considered by the jury, and the burden of proof is on the plaintiff to overturn the same.
    The court further instructed the jury:— * * *
    “ I say to you, that the verdict in the former trial ought to have very little influence upon your minds in this trial. [It is your sworn duty, as jurors, to take the law of this case from me, without regard to what a judge may have said or a jury decided in another court. If I err, the parties here have their remedy. If you should disregard my opinion and take the law from some other judge the party, injured would have no remedy. You should decide this ease upon the testimony before you, that is your sworn duty. What the testimony may have been in the former case we do not know, although it has come out here that one great point of defence in the former trial was, that no notice had been given of the termination of the lease. It seems that the notice given in evidence here was not in evidence at the former trial. It appears that that was one ground of defence there, and possibly might have influenced the minds of the jury, and hence determined their verdict. I merely.suggest this as one reason why the former verdict should not be conclusive with you, and in fact should have very little influence upon your minds. The other counsel for the defendant, suggested] the true and only influence that verdict should have upon you, that is, if your minds were equally balanced, and you did not know on which side to give your verdict, based upon the testimony in this case, the verdict of a former jury, if you believe that they had the same questions and the same testimony before them, might have some influence upon you in determining your verdict. That is all.” * * *
    The verdict was for the plaintiff.
    The defendant took a writ of error; he assigned for error:—
    2. The rejection of the record of the alderman’s proceedings.
    4. The refusal of the defendant’s first point.
    8. The above extract from the charge of the court, omitting that part enclosed in brackets.

      J. Barton (with whom was B. Reid), for plaintiff in error.
    The judgment of a court of concurrent jurisdiction directly upon the point is conclusive between the same parties on the same matter directly in question in another court: Marsh v. Pier, 4 Rawle 285; Hibshman v. Dulleban, 4 Watts 191. The only exception to this rule is the judgment in ejectment which arises from the origin of the action. The judgment of a justice of the peace should have the same effect in a case of this nature as in other cases. The whole civil jurisdiction of justices has been conferred on them by statutes: 1 Blackstone 354, Bacon’s Abr. tit. “Justice-of the Peace.” Their judgments unreversed and unappealed from have been held conclusive and final: Lawver v. Walls, 5 Harris 75; Kase v. Best, 3 Id. 101; Gould v. Crawford, 2 Barr 91; Tarbox v. Hays, 6 Watts 398; Kean v. McKinsey, 2 Barr 30; Hazelett v. Ford, 10 Watts 102; Clark v. McComman, 7 W. & S. 470.

      B. Bruce and R. Woods, for defendant in error.
    In proceedings-under the landlord and tenant acts, if the facts necessary to award possession to the landlord are not found, there is no judgment given for the tenant and he cannot avail himself of this in any subsequent proceedings: Galbraith v. Black, 4 S. & R. 211. The landlord is not concluded by the proceedings before the justice: Ayres v. Novinger, 8 Barr 412.
   Judgment was entered in the Supreme Court, October 11th 1875,

Per Curiam.

There.is nothing in the assignment of error upon questions of evidence which needs discussion. The landlord and tenant proceedings before the justice was no bar to the landlord’s recovery in this ejectment. The proceedings of the landlord before the justice resulted in no judgment, but was merely dismissed because it had not been sustained by sufficient evidence. This could not prevent a recovery in a subsequent ejectment where a good title to recover is shown. An ejectment by a landlord against his tenant to recover possession after the expiration of his term, either by efflux of time, forfeiture or other legal ground, is not a proceeding in equity, but one at law. A prior verdict and judgment in ejectment for the tenant is therefore not conclusive. It is only persuasive evidence. The quotation from the charge on this point is not sufficiently full to exhibit its true and fair meaning.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Coursin's Appeal. Gordon’s Appeal.
    1. The plaintiff and others were the owners of the steamboat Bayard. At a meeting of the owners, neither the plaintiff nor other than owners being present, the boat was set up at “ auction” and struck down to Coursin, who paid the purchase-money to the treasurer of the company. That meeting resolved to build a new boat. The plaintiff filed a bill against his fellows for a receiver and an account, and also to restrain them from breaking up the boat; he moved for a preliminary injunction, which was refused. They broke up the Bayard, and put her materials and machinery into a new boat, the Rees. A new company was formed, of which the plaintiff and one of defendants and an owner of the Bayard were not members, and in which there were other members. The Rees was afterwards sold. The plaintiff filed a supplemental bill against same defendants, alleging he was part owner, and the acts of defendants made them his trustees. Held, that the supplemental bill was defective in including as defendant one not a member of the Rees company, and omitting the others, who had become members after filing the original bill.
    2. All the owners of the Bayard but the plaintiff received their shares of the purchase-money. Held, the sale did not divest his ownership in the Bayard; he had a right to object to breaking up the Bayard, to insist on a fair sale under the order of a court of equity and an account of the proceeds and the earnings.
    3. Plaintiff did not become part owner of the Rees because the materials and machinery of the Bayard were used in her construction.
    4. If the' materials of one are united to those of another by the labor of the latter, who furnishes the principal materials, the property in the produce is in the latter by the right of accession.
    5. If one repairs his vessel with another’s materials, the property in the vessel is in the former ; if he builds the vessel from the keel with another’s materials, the whole belongs to the owner of the materials.

      6. The property in a vessel follows the keel.
    7. “Where there is a confidential relation — as principal and agent — the principal may compel the agent to account for profits he has made of his property.
    8. If a partner take the property of the firm and trade with it on his own account, he is answerable to his fellows for the profits.
    9. Part owners óf a vessel are tenants in common, not partners; the interest of each could be sold only by himself or his agent.
    10. If one tenant in common of a chattel sell it, it is an ouster and conversion, and his co-tenant may follow it in the hands of a purchaser, or recover its value from the wrongdoer.
    11. The proceeds of sale of a chattel by one tenant in common cannot be followed by a co-tenant into any business into which the wrongdoer may invest them and hold him to account for the profits.
    October 5th 1876.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, ,TJ.
    Appeals from the Court of Common Pleas of Allegheny county: In equity: Nos. 203 and 237, to October and November Term 1874.
    The bill in this case was filed May 15th 1863 by James Gordon against Benjamin Coursin, Frederick Houghton, James Irwin, Frederick Rhoades, David Rhoades, William Whigham, Samuel Clark, Abner Peebles, John E. Shaffer and Joel C. Peebles. The bill was to restrain the defendants from breaking up and dismantling the steamboat Colonél Bayard, and a motion was made for a preliminary injunction, which was refused.
    On the 26th of October 1863 the answer was filed. On March 16th 1864 a replication was filed and an examiner appointed. On the 23d of January 1869 a supplemental bill was filed, and same day a rule taken to show cause why it should not be stricken from the record. March 29th the rule was discharged, and on the 29th of May 1869 the answer to the supplemental bill was filed.
    The bill and answer did not appear at large on the paper-books. The abstracts as there given are as follows:—
    “ The original bill recites that James Gordon, complainant, together with defendants (except Joel C. Peebles) were owners of the steamboat Col. Bayard; the stock of said boat consisting of one hundred and ten shares — twenty-five of which were owned by complainant, each share worth $100, which was long since paid up in full. Complainant was not indebted to the boat nor any of the owners. Said boat is not in debt. Some time last fall, said boat was laid up at Elizabeth, and has not been used since that time until Tuesday, May 12th 1863, when she was run down to Pitts-burg by said Joel C. Peebles, Frederick Houghton, Abner Peebles and Benjamin Coursin; that she now lies at the Monongahela wharf; that said defendants and others have commenced to dismantle and break up said boat, take out the machinery, &c., against complainant’s will and protestations; and are about placing said machínery,’&c., in a new boat, now building, in which they allege complainant has no interest. Complainant has never sold or transferred in any manner any part of his interest in said boat to anybody. Said boat is worth about $5000. Complainant will suffer greatly, &c., if the same is allowed to be dismantled. There are unpaid claims due said boat. No balance sheet has ever been rendered to complainant by the other owners, although often demanded. The affairs of said boat have never been finally settled. Complainant prays the court to make a decree that the defendants, who are owners, shall state and file an account in full of business of said boat, and pay over to complainant any balance which may be due him ; and that a receiver be appointed to sell said boat and to distribute remaining assets belonging to said owners; and that defendants be restrained from dismantling and breaking up said boat and from taking out said machinery, &c., from placing the same on a new boat.”
    “The answer admits ownership of boat as stated in bill; that it was laid up as stated; that it was run down the river as stated; that defendants did to some extent break up said boat, and did remove the machinery to another boat; but denies that complainant never consented to a salé of said boat; denies that defendants dismantled said boat and removed the machinery without a right to do so ; denies that complainant demanded balance sheet, or that a settlement or payment of any sum whatever was refused; denies that he Avas ever refused any of his rights ; alleges that defendants have always been ready and willing to settle with complainant, and to pay him any sum that may be due him. Defendants know no more of the accounts of said boat than the complainants. The books and accounts are alike accessible to all the owners. Complainant has never asked for an account. He has been paid his dividend regularly along with the other owners. Said boat Avas built in 1852, and was run for ten years, and until she was worn out and worthless as a steamboat, and it was unanimously agreed by all the owners that she should be sold for the benefit of all parties. At a meeting of the owners regularly held, October 23d 1862, a committee was duly appointed to sell said boat; committee Avere unable to obtain any higher bid than $1800, and at another meeting of said owners, held December 13th 1862, it Avas unanimously agreed that said boat should be put up at auction and sold to highest and best bidder, which was done, and the same was sold to Benjamin Coursin for $1800. That by agreement of the owners in their rules for business concerning said boat and under which she was built and navigated, it was agreed that a majority in interest should govern and control the management and business of said boat, and in the resolution for the sale of said boat at auction, said complainant assented to the same; that the dividends, earnings, &c., of said boat have at all times been paid to the parties entitled according to the rules of said owners. Orf May 14th 1863, one day before filing of the bill in this case, said complainant was paid and received his dividends or share in full of moneys collected on account of said boat up to that date. Defendants say that complainant resided at time of sale in Allegheny City; that Said sale was duly advertised in the Pittsburg Gazette, giving time and place of sale, and the same was sold at public auction in accordance with said resolution, at the wharf in Pittsburg, which sale was well known to complainant, and the purchase-money was paid to the treasurer of said owners. Said boat was not broken up nor the machinery removed until some time after said sale, and the purchaser had a right so to do. That a short time before the filing of the bill in this ease complainant applied to Benjamin Coursin, who was concerned in the new boat, and asked for an interest therein, which was refused, and then complainant for the first time made some objection to the sale of the old boat.”
    The supplemental bill set out:—
    1. Since filing of the original bill, the defendants broke up and dismantled the steamboat Colonel Bayard, and placed her machinery and apparel, so far as suitable, with the entire interest of the plaintiff therein, in a new' steamboat, called the James Bees, and ran her in the same trade in which the said steamboat Colonel Bayard had been used.
    2. This was done by resolutions, passed by a majority of the stockholders of the Colonel' Bayard, which majority included the above-named defendants.
    3. By the action of the defendants, the entire interest of the plaintiff remained and was invested in said new steamboat James Bees.

      4. The steamboat James Bees wras run in that trade from August 1863 to the fall of 1867, earning a large amount of money, a proportionate share of which belongs to the said plaintiff; when in the fall of 1867, the defendants sold the James Bees for the sum of $20,000, a proportionate share of which belongs to the plaintiff, in addition to his share of the earnings of said boat.
    5. The defendants, by their acts in using the Colonel Bayard in constructing the new steamboat James Bees, and running her, retaining plaintiff’s money and property therein, became trustees, and bound to account to the plaintiff for the earnings and proceeds of the sale of the James Bees, after deducting expenses and advances made by the defendants, or either of them, if- any were made.
    6. Plaintiff was entitled to 25-110ths of the earnings and proceeds of sale of the steamboat James Bees.
    The prayer was for an account of the earnings and proceeds of sale of that boat, and a decree, for payment, &c.
    Answer to the supplemental bill:—
    1. Bespondents did break up and use the steamer Colonel Bayard, as they had a right to do under their purchase of the same from Benjamin Coursin, who had previously purchased the same from the company owning the Colonel Bayard^ Gordon had no interest o.r ownership in the Bayard when she was dismantled, as the company had long before that sold her to Coursin. A part of the machinery of the Bayard was put into the Rees.
    2. A majority of the stockholders passed a resolution to build a new boat; the Rees was not built under that resolution, nor for the old company, nor were the owners of the Rees the same as in the Bayard; Coursin made the contract for the Rees and sold shares to such persons as were willing to take the stock; several of the owners in the Bayard had no stock in the Rees, and several others that never owned in the Bayard were the original stockholders of the Rees.
    8. Denied that Gordon had any interest in the Rees; but admitted that the Colonel Bayard was sold with full knowledge of Gordon and his agent, Joel Peebles, and Coursin paid the full amount of the purchase-money into treasury of the Steamer Bayard Company, and the treasurer paid the same to stockholders; the share of Gordon, long before the dismantling of said boat, was standing to his credit on the books of the Colonel Bayard company. No part of the earnings of the Rees, or proceeds of her sale, ever belonged to Gordon.
    5. Respondents never retained Gordon’s share in the Bayard, or put the same into the Rees, but Coursin paid for Gordon’s interest in the Bayard in cash.
    6. Respondents believe it to be true that Gordon did not own 25-110 parts in said steamer Bayard, but on the contrary there are but fifteen shares registered in his name; of these shares Joel Peebles, who represented that stock, owned the one-half of that stock in the meetings of the stockholders, and Peebles was present when the steamboat Bayard was finally authorized to be sold, and was present at the sale and bid on her, and helped to dismantle her.

      7. Respondents had no account to render to Gordon, &c.
    In September 1861 the stockholders in the Col. Bayard Company were John B. Shaffer, James Irwin, Abner Peebles, W. Whig-ham, Samuel & Thomas Clark, J. & W. Whigham, Benjamin Coursin, D. Rhodes, F. Rhodes, F. Houghton, J. Irwin and J. Gordon. Thomas Clark and J. Whigham died and the firm interest survived to their partners; except these changes, the ownership continued as above stated until the transactions which gave rise to this controversy. J. C. Peebles was captain of the steamer.
    • The stockholders as registered in the James Rees Company on the 7th of August 1863, wrere A. Peebles, W. Whigham, S. Clark, B. Courson, D. Rhodes, F. Rhodes, F. Houghton, J. Irwin, J. Walker, S. W. Hendrickson, li. Boyd and W. MoBlroy. J. C. Peebles was the captain of the “ James Rees.”

      Thomas McConnell, Esq., was appointed master. The master’s report, in connection with the testimony taken by the examiner, shows the following facts, which are all that are necessary to an understanding of the case as considered in the opinion of the Supreme Court.
    On the 23d of October 1862, a meeting of the Bayard Company was held ; Gordon was not present, but he was represented by J. C. Peebles, who then held a proxy to vote on his stock. At this meeting it was unanimously resolved that the secretary should advertise the steamer Col. Bayard for sale; the minimum price was fixed at $1500; if the bids did not reach that price she was to be bid in and a committee, consisting of J. C. Peebles, F. Houghton and B. Coursin, were to take charge of her and dispose of her as they might think best. The boat was accordingly offered for sale at public auction at the Monongahela wharf in Pittsburg, after public notice, but the minimum price not having been reached she was not sold. Gordon had notice of the time and place of sale; about the time she was to be sold he came down to the wharf, but the steamer not having arrived he left. At a subsequent meeting of the company, December 23d 1862, of which Gordon had no notice and at which he was not present, the committee reported the result of the effort to sell and were discharged.
    On motion of Coursin, “ the secretary was directed to ‘ auction off’ the boat to the highest cash bidder.” The boat was put up at that meeting in the presence of stockholders only, and struck off to B. Coursin for $1800. It was then resolved that the company proceed at once to build a new boat, and Peebles, Houghton and Coursin were appointed a committee to contract for the building, &c. It was also resolved that the company take the boat at Coursin’s bid of $1800. . On the 27th of December a contract was made by the committee with W. Latta for building the hull of a steamboat, and on the same day the contractor was paid by Coursin $1000, “paid on new hull for B. Coursin & Co.” The new hull was to be built for the machinery that was in the Col. Bayard. Shortly after the meeting, December 23d, Gordon was informed “ that they had determined to build a new boat, and that the old company had bought in the old boat at $1800.” Gordon did not object to the arrangement, but directed that whenever money was wanted, to call on him. At a meeting of the company April 18th 1863 it was resolved that the purchase-money for the Col. Bayard be paid to the treasurer and immediately be paid over by him to the stockholders pro rata.

    Of this meeting Gordon had notice, but was not present. The notice sent to Gordon was signed “by order of the e'onstructing committee.” In answer to this notice Gordon acknowledged its receipt as signed “ by the constructing committee,” saying he would be unable to attend, but would hold himself ready to pay to the committee any assessment “you may make at your meeting of stockholders.” On the 18th of April, the day of the meeting, Houghton paid J. E. Shaffer, the treasurer for the boat, the sum of $1800, the amount at which it was struck down on the 23d of December 1862. On the same day the treasurer credited to each stockholder in the Col. Bayard his proportionate share of the $1800; Gordon refused to receive or have anything to do with the amount credited to him. Soon after this the breaking up of the Col. Bayard was commenced, for the purpose of using such parts as would he suitable in constructing the James Rees; the original bill in this case was filed shortly afterwards.
    The master decided that “the sale of the boat under the circumstances in which it was made was simply void, so far as Gordon was concerned,” and that his interest in the' Bayard remained as before the alleged purchase by Coursin, and found that the machinery together with all the material of the old boat that could be used was put into the boat, the hull of which the committee of the Bayard company had contracted with Latta to build.
    After commenting on the testimony somewhat at large he says:—
    “ The intention of all the parties at that time I have no doubt was that the company then existing should build and operate the new boat under the same rules and regulations that the old boat was built and operated under, but that any of the old stockholders who choose might withdraw, and, if deemed advisable, new ones might be admitted, and'that nothing else was thought of until in the spring, when steamboat stock had gone up largely, some of the stockholders took it into their heads to turn out the others, and get the enterprise into their own control. There is no such thing as a new company mentioned in the' resolutions of December 23d 1862. The meeting was held that day by the company that owned the old boat, and, I think, no one can read the minutes of the meeting without coming to the conclusion that it was the same company that resolved to build the new boat and appointed the committee to contract for and construct her. Captain Gordon was a member of that company; he was recognised as a member of it up until the 18th of April 1863, and I am not aware that the other members could drop, him out of it and vest in themselves his interest in the boat without his consent, and without so much as notifying him of it, as they attempted to do, and still claim that they did do.
    “ I conclude that the company that built and owned the James Rees was the same company that owned the Col. Bayard, with only some change in the membership, and perhaps in the name, and that Captain Gordon was a member of that company; that the company owned the Col. Bayard at the time she was broken up, and all of her. that was fit put into the new boat; that Captain Gordon contributed to the building of the James Rees to the full extent of the value of his interest in the Ool. Bayard; that he was entitled to and had a part interest in the James Rees, that bore the same proportion to the whole boat that the amount he contributed to her construction bore to the whole cost of her construction ; and that he is entitled to a like proportionate part of her earnings and of the proceeds of her sale.”
    The master further found that Gordon owned 25-120ths, not 25-110ths, of the Bayard.
    The master then went into a calculation showing the value of the Bayard, the outlay in building the Rees, and the net earnings of the Rees; he found that the plaintiff was entitled to receive from the defendants $2421.16, and reported “in his favor and against the defendants ” for that sum, as due on the 20th of January 1871. Both parties filed exceptions with the master to his report.
    The plaintiff’s exceptions were: that the master erred in not allowing him 25-110ths of the profits and proceeds of the sale of the steamer James Rees.
    The defendants’ exceptions were, that the master erred:—
    1-5. In finding that the plaintiff had an interest in the James Rees and entitled to receive from defendants $2421.16.
    6. In not finding that the project of building a new boat by the Bayard Company fell through, by failure of the stockholders to follow up the resolution of December 23d 1862.
    7. ' In not finding that some of the members of the old company refused to go into the new company, and that this absolved the others from any previous understanding of going into the project of building a new boat.
    8-10. In finding that Gordon had any interest in the Bayard when she was broken up, and in valuing her too high.
    The master overruled the exceptions, and adhered to his report as first made.
    After argument on the exceptions in the Court of Common Pleas the report was confirmed, and the court, June 27th 1874, decreed that the defendants were indebted to the plaintiff in the sum of $2805:73, and that the defendants pay the plaintiff that sum with costs.
    Each party appealed to the Supreme' Court, and assigned for error respectively, the overruling their exceptions and confirming the report of the master. The defendants assigned for error also, that'the court allowed the plaintiff to file his supplemental bill, changing the cause of complaint, and refusing to strike it off.

      M. W. Aeheson, for defendants.
    The title to a ship follows the keel: 2 Kent’s Com. 361, 362. A court of equity will not ordinarily enforce a contract to enter into partnership: Adams Equity 82; Meason v. Kaine, 13 P. F. Smith 335.

      D. T. Watson, for Gordon.
   Mr. Justice Sharswood

delivered the opinion of the court, October 11th 1875.

It will not be necessary to consider whether the supplemental bill filed without leave of the court ought to have been allowed to stand, as we are of opinion that upon the proofs in the cause, the plaintiff, James Gordon, showed no equity to sustain the decree made below in his favor. The supplemental bill wras against the owners of the James Rees, for an account of the profits of that boat, on the ground, either that the plaintiff was a part owner, or that the defendants were trustees for him. In either aspect the bill was defective on the score of the parties. One of the original defendants was John E. Shaffer, who, although a member of the company which owned and ran the Col. Bayard, was not a member of the company which owned and ran the James Rees. He received his share of the proceeds of the Col. Bayard. Whether that be considered as its purchase, or what he agreed to be its value, and he distinctly refused to be interested in the new boat, yet he is decreed along with the other defendants to pay the plaintiff the share of his alleged interest in the profits and proceeds of the James Rees, of which, as far as appears, he never claimed or received a dollar. Four- gentlemen are clearly shown to have subscribed to and become interested in the James Rees, who were not interested in the Col. Bayard, who are not parties to this proceeding, and have not been heard; yet if James Gordon was either a part owner or a cestui que trust of the owners of the James Rees, they must contribute their just proportion of the decree. We may pass these objections as, if the justice of the case require it, the cause might be remitted to the court below to have the proceedings amended in these respects.

Let us come to the consideration of the merits of this cause. Was James Gordon to any extent a part owner of the James Rees, entitled to an account of her earnings and proceeds, and to recover any share of them? We may agree with the learned master that the auction sale of the Colonel Bayard of December 23d 1862 to Coursin did not divest the title of James Gordon. The Colonel Bayard, after, as before, remained the property of the original owners. Those of them who acquiesced in that sale, and accepted their share of the price, thereby transferred their interest to Coursin. This they all did except Gordon. He had a right then to object to the dismantling of the old boat, insist upon a fair sale, under the order of a court of equity, and would have been entitled to a decree for an account of the earnings and proceeds, and to recover his share.. This was the frame and purport of his original bill, under which, upon the evidence, he is entitled to a decree for an account. But upon what principle of law or equity can it be maintained that because Coursin, the alleged purchaser of the Colonel Bayard and the actual purchaser of all the shares except Gordon’s, by wrongfully taking a part of the machinery of the Colonel Bayard, and using it in the construction of the James Rees, Gordon to the extent of his interest thereby became a part owner in the latter ? If a man wrongfully take my lumber, and uses it with his own in the building of his house, does that make me a tenant in common with him ? If I could earmark and identify the property, I could follow and seize it, or recover damages in an action of trespass or trover. “ If the materials of a person,” says Chancellor Kent, “ are united to the materials belonging to another, by the labor of the latter, who furnishes the principal materials, the property in the just produce is in the latter, by the right of accession.” This rule of the Roman and English law was acknowledged in Merritt v. Johnson, 7 Johns. 473; and it has been applied by Molloy to the case of building a vessel. According to the doctrine in the Pandects, if one repairs his vessel with another’s materials, the property of the vessel remains in him; but if he builds the vessel from the very keel with the materials of another, the vessel belongs to the owner of the materials — the property is supposed to follow the keel — “ proprietas totius navis carince causarn sequitur2 Kent Com. 361-2.

Nor do we think that the contention that the defendants were bound to account to the plaintiff, as trustees, for his share of the Colonel Bayard, can avail to sustain the decree below. Undoubtedly, where there is a confidential relation existing, as that of principal and agent, .the principal may compel the agent to account for the profits he has made with his property. Partners are general agents for each other. If one member of a firm, therefore, take the common property and trade with it on his own account, he must answer to his co-partners for all the profits he may make. But part owners of a boat are not partners, but tenants in common. If one tenant in common of a chattel sells it, it is an ouster and conversion, and his co-tenant may follow the chattel in the hands of the purchaser, or may hold the wrongdoer responsible in damages, to the full extent of the value of his interest in the chattel of which he has been deprived. But no one has ever supposed, that I am aware, nor has any authority been cited to show that the proceeds can be followed into any trade or business in which he may invest them, and he be held to account for all his earnings and profits. If there had been such an authority the learned and painstaking master would not have failed to discover it. He has himself cited an authority to show that the owners of the Colonel Bayard were not co-partners as to her ownership, but part owners. The interest of each, therefore, could only be sold by himself or his duly authorized agent: 1 Parsons’ Maritime Law 84.

We thinlc, therefore, that the supplemental bill ought to have been dismissed. But inasmuch as we are of the opinion that upon the original bill the plaintiff was entitled to a decree of account as to the Colonel Bayard, and inasmuch as it may be that there may be other accounts, outstanding credits, as well as claims against that boat, we remit the record to the court below, that such decree may be there made and proceeded with according to the course of equity.

The appeal of James Gordon is dismissed with costs. The decree below is reversed, and the record remitted to the court below for further proceedings: the costs of the appeal of Coursin and others, defendants below, to be paid by the appellee.


author: Mr. Justice Paxson

text:
    Carrier's Appeal.
    1. A trustee’s compensation is not to be fixed by any inflexible rule ; but depends on the circumstances of each case.
    2. For the sale of real estate 2J per cent, has generally been regarded as proper compensation.
    3. Heirs on whom real estate descended were all sui juris and made a contract for its sale. A trustee under his own advice was appointed by the Orphans’ Court, under the Act of April 18th 1853, to make a private sale according to the contract, merely to pass the title. The trustee claimed 5 per cent, commissions on $37,740. The Supreme Court fixed this compensation at $500.
    4. A trustee who vexes the heirs and delays distribution by an exorbitant claim for commissions, is not entitled to the same compensation as one who makes a reasonable claim.
    5. Part of the fund was payable at the death of a widow who was to receive the interest during life. The trustee to sell was appointed by the court below, trustee to hold the fund, upon giving new security. Held, that although under the facts a more judicious selection might have been made, the Supreme Court would not interfere.
    October 5th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mbrcur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1874, No. 247.
    In the account of Isaac Jones, trustee to sell the real estate of A. A. Carrier, late of the city of Pittsburg, deceased. About the 2d of November 1869, A. A. Carrier .died intestate and without issue, but leaving a widow, Elizabeth M. Carrier, also his mother, Electra Carrier; two brothers, Simon S. Carrier and Francis L. Carrier, and a sister, Ariadne Carrier, and seised of a messuage and lot of ground in Pittsburg which was subject to a mortgage for $12,500 to the Connecticut Mutual Life Insurance Company.
    Upon the petition of the above-named widow, mother, sister and brothers, all of whom were sui juris, and also of the mortgagees, the court appointed Isaac Jones trustee to sell the above-mentioned real estate at public or private sale, under the Act of April 18th 1853 (Price Act), Pamph. L. 503, 2 Br. Purd. 1242. Jones entered into bonds with sureties in the sum of $70,000, conditioned for the faithful execution of the trust, and the proper application of the moneys received, according to the decree of the court. The real estate was sold to Hamilton McClintock for $35,000; to be paid, $13,000 in cash and the remainder in two equal annual payments. On the 2d of May 1871, when the cash payment was made, the trustee, by draft, paid the mortgagees $13,043, in full of the amount due on the mortgage. On the 7th of March 1873, the trustee having then received the first two instalments of the purchase-money, on petition of some of the heirs, a citation was issued to him to settle an account of his trust. He answered to the citation that the last instalment would be due on the 2d of the following May, and upon its payment “ he will be able to file his account after adjusting certain claims against the estate.” On hearing the petition and answer the court ordered the trustee to file his account on or before the 19th of April.
    He accordingly filed his account, in which he charged himself with $37,740.19, the whole purchase-money and interest; the last instalment having been received after filing his answer.
    He credited himself with the payment of the mortgage which had been paid before the citation; but not with the payment of any other claim against the estate; also, with attorney’s fees $100 and “five per cent, commission” $1887.01, and with several small items of ordinary expenses. The heirs filed exceptions to the charge for commissions.
    W. Gr. Hawkins, Esq., was appointed auditor “ to report on the exceptions and to report distribution.” He reported that the negotiations preliminary to the sale had been conducted by S. S. Carrier, one of the distributees ; the purchaser was introduced to the trustee after the terms, which were those on which the real estate was sold by the trustees, had been agreed upon, and an agreement ivas entered into between all the parties and the purchaser, Mr. Jones representing the widow, who was his daughter. The deferred payments as paid to the trustees were deposited in a savings bank at interest.
    The heirs also, by writing, directed Mr. Jones to pay two debts of the estate, one to himself and the other to the widow of decedent. Under a power of attorney, dated April 13th 1871, executed by the mother, brothers and sister of the decedent, and recorded, S. 8. Carrier, one of the brothers, residing in Pittsburg, was authorized to receive and receipt for all money payable to them from the estate of the decedent; to appear and act for them in all matters relating to the real estate of the decedent, to execute all necessary writings with their seals, &c. The trustee was' duly notified of this power of attorney. Subsequently to the payment of the second instalment, the attorney-at-law of the heirs frequently called on the trustee for the payment of their portion of the money, informing him that they were in want, and that unless payment were made, legal measures would be resorted to. It wras after his persistent refusals to pay that the citation was issued.
    The auditor further reported that the work done by the trustee embraced some five or six acts, entirely formal in their character and done in his office; that S. S. Carrier took an active part and did much which the trustee would otherwise have had to do. The proceedings for the sale of the land were suggested and insisted upon by the trustee ; they were entirely unnecessary; the parties having been amicably disposed and sui juris, were competent to make a sale without the aid of the court.
    The auditor as to the distribution reported as his opinion, that Mr. Jones was appointed only to make sale; that when that was done the duties of the trust were ended, and the proceeds, of sale were then to be paid over according to the order of the court; the trustee to sell the land was not, as such, entitled to hold the half of the fund of which the widow of the decedent was to receive the interest during life, but that a trustee should be appointed for that specific purpose, and that the other half should be paid to S. S. Carrier, as attorney in fact for the other parties in interest.
    The auditor decided:—
    1. That the commission charged by the trustee should be reduced to the sum of $500, and that the balance shown in his account be increased $1387.01, being the difference between commissions allowed and those credited; which with the accrued interest (interest to July 10th 1873) will make the balance in the hands of Isaac Jones, trustee aforesaid, $27,052.07.
    2. That one-half of the balance, less costs of this audit, in the hands of said trustee, Isaac Jones, should be paid to S. S. Carrier in his own right, and as attorney in fact for Mrs. Electra Carrier, Francis L. Carrier and Ariadne Carrier.
    3. That a trustee should be appointed, who upon giving adequate security, to be approved by the court, should have and hold the remaining one-half of said balance; the income whereof to be paid to said Mrs Elizabeth Carrier during her natural life, and at her death the corpus of said fund be paid to the said S. S. Carrier, Francis L. Carrier and. Ariadne Carrier, or their representatives respectively; and
    4. That the costs of this audit be paid out of the fund in the hands of Isaac Jones, trustee.
    Jones filed exceptions to the report of the auditor:—
    1. That he reduced the compensation of the trustee to $500, whereas he should have allowed him three per cent, on the proceeds of sale.

      2. That he directed one-half of the balance to be paid to S. S. Carrier for himself and as attorney in fact for his mother, brother and sister.
    3. That he directed that a trustee should be appointed to hold the other half of the fund and pay the income to the widow during life, and at her death to pay it to the other heirs.
    The mother and other heirs excepted to the report, that the auditor should not have allowed the trustee any commissions, and should have charged him with the expenses of the audit.
    After hearing the exceptions, the Orphans’ Court decreed:—
    1. That the compensation of the trustee be fixed at $1000, and that the costs, including auditor’s fee of $200, be paid by the trustee out of the fund in his hands.
    2. That one-half of the remaining fund (or so much thereof as has not already been paid), with the accrued interest thereon, be paid to S. S. Carrier, in his own right and as attorney in fact for Mrs. Electra Carrier, Francis L. Carrier and Ariadne Carrier.
    3. That the remaining half of said fund be securely invested by a trustee, to be appointed for that purpose, and the interest arising therefrom be by him paid semi-annually to Mrs. Elizabeth M. Carrier, widow of intestate, during her life, and at her»decease the principal to be paid to those entitled thereto.
    4. That Isaac Jones be and he is hereby appointed trustee to take charge of the said last-mentioned fund, invest the same, and pay the interest thereof semi-annually as aforesaid, during the lifetime of said Elizabeth M. Carrier; and it is ordered that the said trustee give bond in double the amount of the fund to be invested, with security to be approved by the court, conditioned for the faithful disaharge of his duties as such trustee.
    The Carriers appealed to the Supreme Court, and assigned for error : — ,
    1-6. Not sustaining their exceptions.
    7. That part of the decree contained in the fourth clause of the decree.

      W. 8. Purviance, with whom was 8. A. Purviance, for appellants.
    Compensation only, is what is allowed to trustees: Harland’s account, 5 Rawle 330 ; Heckert’s Appeal, 12 Harris 486; Stehman’s Appeal, 5 Barr 417. An unfaithful trustee will not be allowed any compensation: Greenfield’s Estate, 12 Harris 238; Stearly’s Appeal, 2 Wright 530.

      M- W. Acheson (with whom was P. B. Todd), for appellee.
    A trustee should receive a compensation adequate to his care and trouble, besides a liberal allowance for necessary expenses: Scott’s Intestate Law 552. The receipt and disbursement of money are susceptible of a uniform measure which may reasonably be fixed at two and a half per cent.Stevenson’s Appeal, 4 Wharton 104; Wheelen’s Appeal, 20 P. F. Smith 410. As to the rate of compensation, they cited : Pusey v. Clemson, 9 S. & R. 204; Walker’s Estate, Id. 223; Snyder’s Appeal, 4 P. F. Smith 69; Robb’s Appeal, 5 Wright 49; Lukens’ Appeal, 11 Wright 356.
   Mr. Justice Paxson

delivered the opinion of the court, October 12th 1875.

This is a question of commissions. The trustee charges $1187.01, being five per cent, upon the .sale of the real estate. The heirs refused to allow this sum, alleging that it was exorbitant, and the trustee refusing to settle with them upon any other basis, an auditor to make distribution was appointed, who reduced his compensation to $500. To this report exceptions were filed, and the Orphans’ Court sustained the exceptions to the extent of allowing the trustee the sum of $1000; this order of the Orphans’ Court was assigned for error.

In any view of the case the charge of the trustee is excessive. While the question of the compensation of trustees is not to be determined by any inflexible rule, but must depend, to a great extent, upon the circumstances of each particular case, yet two and a half per cent, has generally been regarded as a proper compensation for the sale of real estate. Had this trustee been satisfied with this sum, it is quite possible the heirs would have acquiesced in it, and thus have avoided the delay and expense of this litigation. As the parties have appealed to the law they must take what the law gives them.

The case itself is exceptional. The parties owning the real estate appear to have had full dominion over it, and were all sui juris. They could have made a deed for the property without the aid of a trustee or the court: that they did not do so was in part due to the advice of the trustee himself. In fixing the compensation of the latter, regard must be had to the fact that the application to the court was solely with a view of passing the title; that the duties of the trustee were more formal than real, and that the sale was in reality made by the heirs. It is true he received the money and is charged with its proper distribution, but even this, under the circumstances, involves no considerable amount of trouble. But for this question of commissions the proceeds of sale could have been probably paid over to the parties entitled thereto.

A trustee who vexes the heirs and delays distribution by preferring an exorbitant claim for commissions, is not entitled to the same consideration as one who makes a reasonable claim for his services. In the latter case, if the parties in interest contest his charge, they have no one but themselves to blame for the delay incident thereto. Under all the circumstances of this case, we think the sum allowed by the auditor ($500) as compensation to the trustee was sufficient; the costs were rightly disposed of.

We perceive no error in the seventh specification. Under all the facts a more judicious selection of a trustee might, perhaps, have been made by the Orphans’ Court, but the reasons assigned are not sufficient to justify our interference.

The decree of the Orphans’ Court is reversed and set aside as to the allowance of commissions or compensation to the trustee, and the report of the auditor is confirmed as to the commissions and costs; the costs of this appeal to be paid by the appellee.


author: Mr. Justice Woodward

text:
    Cote’s Appeal.
    1. A testator devised real estate to his wife for life, and after her death to his five children in fee; one of them, a son, married after the death of the testator and died intestate, leaving a widow, hut no children. The widow of the testator afterwards died. Held, that, under the Act of April 8th 1833, the widow of the son had an interest in the real estate, and under the Act of March 29th 1832, had a right to partition. '
    2. The son having 9 vested remainder, after the death of the widow of the testator, it was subject to all the incidents which the statutes have stamped on real estate, as fully as if it had vested in possession in the son before his death.
    3. Shoemaker v. Walker, 2 S. & B. 554, distinguished.
    October 5th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1874, No. 212.
    On the 10th of June 1871, Marcelin Cote and Mary Cote, his wife, in her right, presented a petition to the Orphans’ Court, setting forth that the said Mary had been the widow of Seth Clarke Tiernan, who died intestate and without issue about the 28th day of October 1852. That at the time of his death he owned, under the will of his father, Michael Tiernan, deceased, subject to the life estate of Elizabeth Tiernan, the widow of the testator, the one undivided fifth part of a messuage and lot of ground in the city of Allegheny ; that John M. Tiernan, Margaret Jones, Michael Tiernan and Francis Tiernan, other children of the testator, were the only other persons owning interests in the said property above mentioned; that the widow of the testator died in March 1870.
    The prayer of the petition was that the court would award an inquest to value the share or interest of the said Mary Cote in the the above-described property, to the end that the same might be set apart to her.
    A citation was awarded to John M. Tiernan, Margaret Jones and. her husband, Morris Jones, Michael Tiernan and Francis Tiernan, to show cause why the prayer of the petition should not be granted, returnable July 8th 1871.

      John M. Tiernan, for himself, sister and brothers, answered: that Michael Tiernan died on April 10th 1845, after having made his will, dated March 1st 1845, by which he devised as follows:—
    1. “ I give to my dearly beloved wife, Elizabeth Tiernan, all my household furniture, &c.; also, the house and lot in the city of Allegheny, with the appertenances, where I now live, during the term of her natural life.
    5. “ I direct that all the balance of my estate, of whatever kind, or wheresoever situated, may, and shall be, equally divided between my five children — Margaret Jones, Seth Clarke Tiernan, John Tiernan, Michael Tiernan, and Francis Tiernan, their heirs and assigns, for ever.
    “And at the death of my wife, Elizabeth Tiernan, I also direct that the house and lot in the city of Allegheny, in which I now live, shall be equally divided between my five children above named.”
    He appointed Morris Jones and his son, Seth Clarke Tiernan, executors of his will, granting them power, &c., to sell, in fee simple, or otherwise, his real and personal estate, &c. The real estate of which the said Mary Cote desires partition, is the above mentioned property in which said Michael Tiernan lived. Seth Clarke Tiernan was married to the said Mary Cote in 1852, and died on the 28th day of October 1852. His widow, said Mary, married said Marcelin Cote many years before the death of said Elizabeth Tiernan. ti

    Elizabeth Tiernan was seised of the freehold of said property for her life, and occupied it until her death, 'which took place on the 19th day of March 1870, being many years after the death of said Seth Clarke Tiernan, and a number of years after the marriage of said Mary Cote (widow of said Seth Clarke Tiernan) to said Marcelin Cote.
    “ Thus it will be seen that the said Seth Clarke Tiernan never was seised of the freehold, nor of the inheritance, and that he died long previously to the time when he could have been so seised, and that, therefore, the said Mary Cote can have no claim for dower in said property.”
    January 13th 1872 the court dismissed the petition. This was assigned for error on appeal by the petitioners to the Supreme Court.

      M. Woods (with whom were W. F. Austin and S. Woods), for appellants.
    The Act of April 8th 1833, sect. 1, Pamph. L. 316, 1 Br. Purd. 806, pi. 4, provides that: “Where intestate shall leave a widow and collateral heirs or other kindred, but no issue, the widow shall be entitled to one-half part of the real estate — for the term of her life, and one-half part of the personal estate absolutely.” The law, that casts any of the estate of S. C. Tiernan on his collateral heirs, without a proviso or distinction, gives his widow her interest. The interest of Mrs. Oote, if any she have, would be considered realty: Miller v. Leidig, 3 W. & S, 456, and not dower : Bradford v. Kents, 7 Wright 476.

      JD. W. Bell, for appellees.
    The reporter did not receive the paper-book of appellees.
   Mr. Justice Woodward

delivered the opinion of the court, October 25th 1875.

The will of Michael Tiernan vested the title to his house and lot in the city of Allegheny in his five children, subject to the life estate devised to his widow, Elizabeth Tiernan. Seth Clarke Tiernan was one of these children, and when he died his interest in remainder in this house and lot was part of his estate, for the descent of which provision had been made by the Act of the 8th of April 1833. It is unnecessary to inquire whether, while the tenant for life survived, he could have maintained an application for partition in his lifetime, or whether his representatives could have done so after his death. The life-estate was determined by the death of Mrs. Tiernan, in March 1870. The only question presented is, whether his widow has such an interest as to entitle her to demand a partition of the property.

The rule of the common law is distinct, that a wife is not entitled to dower in land of which her husband was not seised in possession during coverture. A freehold estate outstanding in another, even if created by himself, if before coverture, is fatal to her claim. The present controversy, however, arises upon our own statutes. The Intestate Act of 1833 prescribes the mode by which “ the real and personal estate of a decedent, whether male or female,, remaining after the payment of all just debts and legal charges, which shall not have been disposed of by will, or otherwise limited by marriage settlement, shall be divided and enjoyed.” By the second clause of the first section of the act it is directed that “ where such intestate shall leave a widow and collateral heirs, or other kindred, and no issue, the widow shall be entitled to one-half part of the real estate,'including the mansion-house and buildings appertenant thereto, for the term of her life, and to one-half of the personal estate absolutely.” No case has been found to settle authoritatively the rights of a widow in her deceased husband’s estate in remainder under this provision, or under the Acts of 1794 and 1797. The point was presented in Shoemaker v. Walker, 2 S. & R. 554. The peculiarity there was, that the decedent had aliened in his lifetime the estate with which he was vested in remainder, and the decision that the widow was not entitled to dower was apparently on that ground. But the Act of 1833 was passed to establish a uniform rule for the division and enjoyment of the entire real and personal property belonging to a decedent at the time of bis death. It cannot be doubted that such interest as he had in this house and lot formed part of Seth Clarke Tiernan’s. estate. And if so, the act protects the right of the widow as certainly as it establishes the title under which the collateral heirs must claim the fee. The decedent dying without issue, the property passed to the widow, now Mrs. Mary Cote, one of the appellants, and the next of kin.

The 36th section of the Act of the 29th of March 1832, gives jurisdiction in partition to the Orphans’ Court on the application of the widow or any lineal descendant of a decedent. And by the 46th section of the same act, the same proceedings in every respect may be had on the part of the collateral heirs, when there is no issue, that are authorized on bahalf of lineal descendants.

In either case, the right of the widow to take part in the proceedings is preserved. The title of Seth Clarke Tiernan was a vested remainder. It has become vested in possession, and is subject to all the incidents which statutory enactments have stamped on real estate transmitted by inheritance, as fully as if possession had vested in the decedent before he died. The interest of the widow is defined by the Intestate Act of 1833. Her right to a partition is derived from the express provisions of the Act of 1832. The petition of her present husband and herself for an inquest upon the real estate of her former husband, was improvidently dismissed.

Decree reversed at the cost, of the appellees, and procedendo awarded.


author: Pea Cubiam.

text:
    Haupt et al. versus Davis.
    1. The terms of court in Allegheny commence on the first Mondays of December, March, &e.; the first Monday in each month is also a return-day. A sci. fa. sur mortgage was issued December 3d, returnable to first Monday (7th) of same month. The return was “Nihil.” An alias was. issued January 27th, returnable the 1st Monday (1st) of February. The return was “ Nihil.” Judgment was taken March 2d (Tuesday). Held to be regular.
    2. The monthly return-days apply to all civil process for commencement of actions, including a sci. fa. sur mortgage, which may be returnable on any legal return-day, whether intermediate or not.
    3. An alias sci. fa. sur mortgage may be returnable to an intermediate return-day, and judgment taken by default, as in case of summons, unless specially otherwise provided.
    4. Acts of 1705 and June 16th 1836, sect. 39 (sci. fa. sur mortgage), compared and construed.
    5. Magaw «. Stevenson, 1 Grant 405 ; Stevens v. N. Penna. Coal Co., 11 Casey 365, followed.
    October 6th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

      Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 94.
    This was a scire facias sur mortgage by R. II. Davis to the use, &c., against H. Haupt, with notice to Edwin G. Booth, Welcome White andB. S. Heath, terre-tenants. The writ was issued December 3d 1874, returnable on the 1st Monday (7th) of same December. To this writ the sheriff returned “ Nihil.” On the 27th of January 1875 an alias scire facias was issued returnable to the 1st Monday of February next. To this writ the sheriff returned “ Nihil,” and on the 2d of March 1875, the plaintiff took judgment against the defendants “in default of appearance sec. reg.,” for $5372. March in 1875 commenced on Monday.
    By the Act of June 13th 1836, sect. 32, Pamph. L. 578, 1 Br. Purd. 44, pi. 14, in the courts of Philadelphia and Allegheny all writs used for the commencement of actions may be made returnable on the first day of the next term or on the 1st Monday of any intermediate month at the election of the party suing out the writ.”
    The Act of March 22d 1866, Pamph. L. 297, enacts: “ That the Court of Common Pleas, Oyer and Terminer and General Jail Delivery, Quarter Sessions of the Peace and Orphans’ Court, in the county of Allegheny, shall be held on the 1st Mondays of March, June, September and December of each and every year, and continue from term to term as the business of said courts may require.” This enactment is substantially the same as the provision of the 29th sect, of Act of April 13th 1834, Pamph. L. 345,1 Br. Purd. 224, pi. 44.
    The defendants took a writ of error and assigned for error :—
    1. The judgment is erroneous because entered on two returns of nihil to writs issued and made returnable to the same term.
    2. The judment is erroneous because the second writ was not made returnable to the term return-day.

      L. B. Buff (with whom was J. 'M. Arundel), for plaintiffs in error.
    An original and alias writ must be to different terms: Magaw v. Stevenson, 1 Grant 402; Stevens v. N. Penna. Coal Co., 11 Casey 265.

      J. S. Baldwin, for defendant in error.
   Judgment was entered in the Supreme Court, October 11th 1875,

Pea Cubiam.

Monthly return days for Allegheny county are established for all civil process issued for the commencement of actions. A scire facias sur mortgage is no exception to this rule. The Act of 1705, giving the remedy by scire facias upon a mortgage, prescribes no return-day for the writ, and makes no provision inconsistent with the monthly return-days prescribed in. the 32d sect, of the Act of 1836, for the commencement in actions of Philadelpbia and Allegheny counties. The first scire facias can, therefore, be made returnable on any legal return-day, whether an intermediate monthly return-day or not. There is no reason, therefore, why the second writ after a return of nihil to the first, should not be governed by the same rule. Then the 36th sect, of the Act of June 1836, provides that writs of scire facias may be served and returned in the same manner provided for a summons in a personal action, and judgment by default taken at the same time and in the same manner as in a case of a summons unless it is otherwise specially provided. The Act of 1705 makes no other special provision. Hence there can be no reasonable objection to the return of writs of scire facias sur mortgage on the legal return-days of other civil process. Here the writs were issued to two regular return-days under the Act of 1836, and to different terms, the interval was reasonable, and judgment was not taken until a month after the second return-day. In principle, the case is governed by Magaw v. Stevenson, 1 Grant 405; Stevens v. North Penna. Coal Co., 11 Casey 265.

Judgment affirmed.


text:
    Coon & Neil versus Reed.
    1. Lucas having a suit pending for an unliquidated claim, assigned it to Reed as collateral for a previous debt; he afterwards assigned part of it to Coon in payment of a previous debt. Coon immediately filed his assignment of record with the case. Lucas recovered judgment in the suit, and afterwards, on the same day, Reed filed his assignment of record, and the money was subsequently paid to him by the defendant in Lucas’s suit. In an action by Coon against Reed, to recover the amount assigned by him, Held-, that Reed having received the money in good faith, Coon had no equity superior to his. '
    2. The record of a pending suit is not a place where the assignment of the claim in suit may be recorded.
    3. When a judgment is the evidence of a debt, the record of it is the proper place to give notice of its assignment.
    4. Prior in tempore, potior in jure, is the law of the assignment, if there be no equity otherwise to defeat it.
    October 6th 1875.
    Before Agnew, C. J.,. Sharswood, Williams, Mercur, Gordon and Paxson, JJ.
    Error to the Court of Common Pleas of Allegheny epunty: Of October and November Term 1874, No. 219.
    This was an action of assumpsit, brought August 28th 1872, by Coon & Neil against N. P. Reed. On the 2d of January 1872, a case stated was filed which exhibited the following facts:—
    To April Term 1870, B. E. Lucas & Son, brought suit against W. Braugh and others, in the District Court of Allegheny county, to recover a claim for $3600 which they held against defendants.

      On the 9th of August 1870, B. F. Lucas executed and delivered to N. P. Reed, a bond and mortgage to secure the sum of $2400 owing to Reed ; and on the same day, as collateral security for the bond and mortgage, B. F. Lucas, with the consent of his partner-,assigned to Reed the claim in suit as above stated, and agreed to prosecute it to judgment, “ and when collected, the amount is to be paid to the said Reed until the mortgage is fully paid, if the same be not sooner extinguished.”
    B. F. Lucas, being indebted to the plaintiffs in the sum of $640,' on the 9th of February 1872, in payment of this debt, assigned to them so much of his claim in suit against Braugh and others as would ’ pay it, Coon & Neil having no knowledge of the assignment to Reed. This assignment was filed of record on the 10th of February 1872. -On the 18th of April 1872, Lucas & Son recovered a judgment for $2596 against Braugh, one of the defendants in the suit which they had instituted against him and others. On the same day Reed’s assignment was filed of record; and on the 11th of May he recovered the money due on the judgment against Braugh and satisfied it.
    ’ This suit was brought to recover from the defendant the sum of $640 with interest.
    It was agreed that if the court should be of opinion that the plaintiffs were entitled to recover, judgment was to be entered in their favor for $640 with interest from April 18th 1872; if the coui’t should be of opinion otherwise, judgment to be entered for the defendant.
    The court (Sterrett, P. J.) entered judgment for the defendant.
    This was assigned for error on the removal of the record • to the Supreme Court.

      IT. W.'Weir, for plaintiffs in error,
    cited Fisher v. Knox, 1 Harris 622.

      A. M. Brown, for defendant in error.
    Reed received no money which he might not in good conscience retain, and therefore there was no implied promise to repay it: Addison on Contracts 30; 1 Hillard on Contracts 59, sect. 11; 2 Id. 73, sect. 29 a; Jones v. Carter, 8 Q. B. 134; Stephens v. Badcock, 3 B. & Ad. 354; Morris v. Tarin, 1 Dall. 148; Bogart v. Nevins, 6 S. & R. 369; Irvine v. Hanlin, 10 Id. 219; Espy v. Allison, 9 Watts 462; Mann’s Appeal, 1 Barr 24; Hinkle v. Eichelberger, 2 Id. 484; Edgar v. Shields, 1 Grant 361; During’s Appeal, 1 Harris 224.
   Judgment was entered in the Supreme Court, October 11th 1875,

Per Curiam.

The debts to secure which these assignments were made, were both precedent and the assignments collateral. Neither party has an advantage in this respect. Both assignments were of choses in action before judgments and merger of the claims in the judgment. In this respect neither party has an advantage. The suits, therefore, had not changed the character of claims by a merger, and the creation of a new form of indebtedness havingits proper local existence in the record exhibiting the judgment. I know of no law or judicial decision making the record of an action or suit a place of record, where assignments must be filed of the claim in suit. When a judgment constitutes a proper evidence of the debt, the record of it becomes in equity a proper place to give notice of an assignment. It then has a certain local and established existence. But a bond, note, book account, or other cause of action, has an independent existence, and may, by non-suit, verdict, or otherwise, never merge into a judgment in this particular suit. In the absence of a positive law requiring the assignment to be filed, it would be rather an act of legislation than of the administration of equity, judicially, to say that the prior assignment had lost its validity against the junior transfer by not filing it. In such a case, prior in tempore, potior est in jure, is the maxim which becomes the law of the assignment, if there be no equity otherwise to defeat it. In this case there is no other equity, it is a question only of filing the evidence of transfer, and the moment the claim merged in the judgment the prior assignment of Beed was filed. The money was paid over to Beed, the first assignee, in good faith and was so received by him. Having thus received it upon a rightful claim, as he had every reason to suppose, and on his title, his conscience is not affected by the receipt, and no equity intervenes to cause him to pay it over to Coon & Neil as theirs, ex cequo et bono. Potior est conditio defendentis. None of the cases cited appear to rule this.

Judgment affirmed.