author: Mr. Justice Sharswood

text:
    Stewart’s Appeal.

      1. A chancellor will not always order an instrument to be delivered up to cancelled when he would refuse specific performance of the contract; he will leave the parties to their legal remedies.
    2. To decree an instrument to be delivered up to be cancelled is a matter in the sound discretion of the court, and the power should not be exercised except in a very clear case.
    3. Whenever an instrument exists, which may be vexatiously or injuriously used against a party, after the evidence to impeach it has been lost, or which may throw a cloud over the title, and he cannot immediately protect his right by any proceedings at law, equity will afford relief by directing the instrument to be delivered up to be cancelled, or such other decree as justice or the rights of the party may require.
    March 9th 1875.
    Before Agnbw, C. J., Skarswood, Williams, G-ordon and Paxson, JJ. Mercur and Woodward, JJ., having been of counsel in the case, did not sit.
    Appeal from .the Court of Common Pleas of Luzerne county: In Equity: Of January Term 1874, No. 818.
    The bill in this case was filed November 2d 1865, by Franklin Stewart and others, against Wilson Ayer, Charles A. Lane, Elisha B. Harvey and others ; it set out:—
    1. Betsey Stewart in her life was seised in fee of a tract of land in Luzerne county, containing about 285 acres, inherited from her father, Lazarus Stewart, deceased, and allotted to her by proceedings in partition of his estate ; and also by inheritance from her sister, Martha Stewart, of the undivided sixth part of another tract of 285 acres, inherited by Martha from her father, the same Lazarus Stewart, and allotted to her by the same proceedings in partition ; Betsey Stewart being so seised, was afterwards married to Alexander Jameson, and about August 20th 1806 died intestate, leaving her husband, Alexander Jameson, to survive her ; he died about the 17th of February 1859. The plaintiffs were the children and grandchildren and heirs-at-law of Jameson and his wife, Betsey.
    2. Recorded in the office for recording deeds, in Luzerne county, there was a paper, purporting to be a lease made by Alexander Jameson to Charles A. Lane, one of the defendants, of a tract of
    'land in Luzerne county, containing 400 acres, part of which was the land above mentioned, belonging to Betsey Stewart; said paper having been recorded on the 12th of January 1864, upon the proof of the execution, by Elisha B. Harvey, one of the defendants, and a subscribing witness to it; the same paper was recorded in the same office on the 22d of September 1856, and in the lifetime of Jameson, upon the acknowledgment of Lane alone, no attempt having ever been made to procure Jameson’s acknowledgment to it.
    3. E. B. Harvey, a defendant, and subscribing witness to the lease, was interested in it.
    3. A number of assignments of the lease to the defendants had been made, the first being from Lane to Ayer, dated May 17th 1855, the consideration being $55,000 — subsequent assignments being for undivided interest; the last was to Edward B. Peat for an undivided fourth. The plaintiffs averred that the considerations mentioned in the assignments were fictitious ; and that each of the assignees of the lease had notice before the respective assignments, that the lessee and his family had declared that his lease was fraudulent and void.
    5. The lease was void by weakness of understanding in the lessee and fraud in obtaining it; the lessee being at the time aged 88 years, and his mind so weakened as to be unable to comprehend the purport of the paper, &c., and Harvey and Lane imposed upon him, and kept him in ignorance of the true effect of the paper.
    6, 7, 8, 9. The lease was void, from want of power in the lessee to make it, he being but tenant by curtesy, and there being no mines opened in his lifetime; also by reason of his death; for want of consideration ; by reason of interlineations ; erasures were made by the parties interested since its execution, the lease having always been in the possession of defendants; and by reason of uncertainty.
    10. The signature of Jameson was obtained after the day of its date; its existence was concealed from his family. Other reasons averring fraud and that the lease was void were set out.
    11. The existence of the lease on the record and in the possession and control of the defendants worked injury to the plaintiffs’ rights, and prevented their making an advantageous sale of the land, &e.
    The prayers were:
    1. That the lease might be declared void.

      2. That it might be decreed to be delivered up to be cancelled.
    3. General relief.
    The lease to Lane was dated December 21st 1852; it authorized mining coal on the land for eighteen years, “ to be reckoned from the talcing of coal from said lot;” the rent was to be 8 cents per ton for the coal mined; Lane was to surrender the premises at the end of eighteen years, with the right to renew the lease for eight years more.
    The plaintiffs are devisees under the will of Alexander Jame-son, dated January 3d 1852, and proved March 8th 1860.
    The answer denied the substantial allegations of the bill as to the invalidity, &c., of the lease, &c.
    Replication being filed, Alexander Earnham, Esq., was appointed examiner and master.
    He took a large amount of evidence as examiner. As master he made an elaborate and exhaustive report on the facts and law of the case, and reported his conclusions, viz:—
    “In conclusion, I report these two propositions to be established by the evidence — the other propositions, as advanced by the plaintiffs and hereinbefore stated, not being established.
    “ 1. That at the time of the execution of the lease in question to Charles A. Lane, Alexander Jameson was a tenant by the curtesy of an undivided portion of the lands embraced in said lease, and no mines being opened thereon, the lease is therefore void; it is void, moreover, by reason of his death.
    “ 2. That at the time of the execution of the said lease, Alexander Jameson was, by reason of weakness of mental understanding, incompetent and unable to make contracts understandingly, and that the lease is therefore void.”
    Exceptions were filed to the report. The questions raised in the case do not require a statement of the finding of the master of the facts, further than appears by the foregoing statement and the opinion of the court as delivered by Elwell, P. J., of the Twenty-sixth District.
    “ The bill of the complainants charges that a mining-lease, made by Alexander Jameson to Charles A. Lane, dated 21st December 1852, is void as a lease, and of no validity as an encumbrance on the land therein described, and prays that it may be delivered up to be cancelled. The complainants are devisees of Alexander Jameson, who died in 1859; they are also heirs, of Betsey Jame-son, wife of Alexander Jameson, who died in 1806. They allege that, although the legal title to the whole tract described in the lease was vested in Alexander Jameson by the certificate of the commissioners appointed under the Acts of 1799 and 1802, he, nevertheless, was trustee of his wife as to two undivided third parts thereof, and as to those parts, at the time of executing the lease in question, he was merely tenant by the curtesy.
    “ It is alleged that the lease is void :—

      “ 1. Because of want of power on the part of the lessor to bind the heirs of his wife by an instrument operating after his death.
    “ 2. Because the lessor was incompetent, by reason of mental weakness, to contract.
    “ 8. Because the lease was procured by fraud and undue influence.
    “ 4. Because of alteration in the lease made since its execution.

      “ 5. Because of uncertainty as to the time when the term commenced; and,
    “ 6. Because there was no consideration to support the contract.
    “ These several allegations are denied in the answers of the defendants, who aver that they are boná. fide purchasers of the interest of the lessee, and, as such, are entitled to hold as against any secret trust of which they had not notice. They also aver that possession was taken under the lease, and the contract, therefore, completely executed.
    “ The able and exhaustive report of the master negatives the chai’ge of fraud in procuring the lease, and also that of alteration since its execution, and concludes, as matter of law, that the contract is not void for uncertainty nor want of consideration. But the two propositions above stated, of want of power and absence of mental capacity are afiirmed by the master.
    “ The case is so plainly stated in the report of the master as to render unnecessary the introduction of the facts into this opinion.”
    After discussing the question as to Alexander Jameson’s holding the title in his own right, the opinion proceeded :—
    “ But there are other matters to be considered in connection with the right of the claimants to a cancellation of the contract. They hold, even according to their own claim, an undivided portion of the land under the will of Alexander Jameson, dated January 8d 1852, before the execution of the lease, and proved in 1860, after the death of the testator. By the terms of the will all of the land embraced in the certificate and in the lease was devised, and has been held accordingly by. the complainants. Whatever interest may have come to them by descent from Betsey Jameson has not been recognised and acted upon as distinct from, or independent of, the title devised under the will of Alexander Jameson.

      “ In the lease the words ‘ to farm let and demise,’ imply a covenant against any title paramount to the lessor: 1 Wash. Real Prop. 427. The effect of w'hich, also, is that he. has a good title, and can give a free, unencumbered lease for the time demised: Id. 428. For the purpose of this part of the case, Alexander Jame-son must be presumed to have known what his title was. He would not have been heard in a court of equity, asserting that he had made a lease for a greater interest than he possessed, and praying for relief by cancellation of his contract. The complainants represent his title, and, therefore, stand upon no higher ground than he did. If the lease is a cloud upon their title, it was created by their testator; and although their acceptance under the will might not prevent their claiming rights descending to them from their maternal ancestor, yet the lease should have . existence to enable the lessee to recover damages for the breach of covenant, if any such breach has occurred. I cannot concur in the conclusion that .the lease is void for want of power on the part of the lessor. The objection to its validity on the ground of uncertainty as to the commencement of the term, is fully answered in the reasons given and authorities cited by the master. It was to begin “ when coal was taken” by the lessee. It is a mistaken construction of this contract to hold that it gave to the lessees an unlimited time in which to commence taking coal. •As no time was specified, the law presumes that the parties intended and agreed that it should be done in a reasonable time : Ellis v. Thompson, 3 M. & W. 445; 2 Pars. Con. 47. * ■* *
    “ But if an instrument is void on its face it carries its own condemnation with it, and is not in any legal sense a cloud upon the title which requires the interference of a court of equity : Hotchkiss v. Etting, 36 Barb. (N. Y.) 45.
    ■ “ The same principle applies to the allegation of want of consideration. Even if it were well founded there would be no occasion for equitable interferences. But the agreement to pay eight cents per ton for all coal mined, is a sufficient consideration to support even an unsealed instrument. Under this lease the lessees were bound, by at least an implied obligation, not only to commence mining coal within a reasonable time, but also to carry on and prosecute mining to a reasonable extent, all of the circumstances considered; and this they were bound to do, under the penalty of either damages or forfeiture, or both. * * *
    “It is evident, from the whole tenor of the evidence, that the intellect of Mr. Jameson was impaired by age ; that his memory had failed to a considerable extent; that in conversing upon matters of the present time he would frequently intermingle transactions long past; that he sometimes forgot in regard to agreements to make purchases ; that he would frequently do the same thing over again, and also ask the same questions repeatedly ; that it had become difficult for him to compute accounts and count money. In addition to this, a number of witnesses gave it as their opinion, that from 1850 to 1853, and afterwards to the- time of his death, he was unfit to do business.
    “ On the other hand, the testimony of the subscribing witness to the lease, a member of the bar, whose character bAs not been attacked, as well as that of the lessee, who was called upon other points by the complainants, proves facts which establish competency to understand and comprehend the contract oh the part of the lessor. It would seem that he was familiar with coal leases, having before executed them to other parties. In addition to the testimony of the persons present at the execution of the lease, it appears that in January 1852, he executed a will under which the complainants divided his estate, and still hold title. * * * I am not satisfied that Alexander Jameson, on the 21st December 1852, was wholly incapacitated to transact business. If the lease had been in law subject to the construction contended for by the complainants, I would have no hesitancy in holding that advantage had been taken of the mental weakness ,of the old man, and would presume fraud. If the lessees might begin to mine when they pleased, at any remote, indefinite period, and thereafter might limit their mining to one ton a year, the contract would be so one-sided and unfair as to justify the interference of equity. But, construed according to the rule before stated, considering the probable amount of money necessary to be expended before profit could be received, the lease was a fair contract, and the consideration not so inadequate as to suggest fraud in obtaining it. * * *
    “ So, in the case under consideration, the circumstances are such as forbid a decree for specific performance. In addition to the old age and mental weakness of the lessor, is the further fact that the lessee, for about four years after the date of the lease, did nothing whatever under it.- In May 1855 he assigned it to Wilson Ager. Ager assigned to Stephen Pierce in July 1856. Sometime in 1856 Ager se'nt a person upon the premises to take possession. This person began to dig, and having made a hole about ten feet square, and perhaps the same depth, he quit work, upon the service of a summons in trespass upon him at the suit of Jameson. No declaration was ever filed in the case, and no further entry upon the premises, or attempt to mine coal, has been made to this day.
    “In 1857 Stephen Pierce re-assigned one-half to Wilson Ager and one-fourth to Abraham Edwards. These three-fourths are now held by B. S. Russell, John K. Grotz, and Alpheus Peet, each one-fourth, as collateral security for indebtedness of their respective assignees.
    “These assignees of Lane stand upon no higher ground than he occupied. First, because the doctrine in regard to the protection of boná fide purchasers does not apply to lessees of land where actual and full possession has not been taken under the lease; and, second, because after the lapse of /owr years from the date of the lease, without the commencement of operations, the original lessee had no rights which he could enforce. His assignees were put upon inquiry by the facts surrounding the case, and must be presumed to have notice both of the delinquencies, and of the reasons which would prevent specific performance.

      “ The bill in equity, instituted by the complainants in 1860, affords the defendants no excuse for the delay in performing the contract. No injunction was at any time served upon them. If they had desired to assert their rights (I speak now of the lessee and early assignees) it was incumbent upon them to show themselves ready, prompt and eager to perform their part of the contract.

      “ And so in regard to the complainants. If they desired the aid of a court of equity they ought to have applied for it and pursued their remedy at an earlier day, instead of waiting thirteen years after the date of the lease, eleven years after they had knowledge of its existence, and six years after the death of the lessor. They abandoned their bill, filed in 1860, and when they filed the present bill in 1865 had no occasion to, ask for protection at the hands of the court. From the time of obtaining the lease to filing of this bill, neither the lessee nor his assigns have made any substantial attempt at performance. The entry that was made in 1856 or 1857 was too late to entitle the lessee to assert rights under the lease. And, besides, the abandonment of possession, because an action of trespass was brought, and the continued omission to commence operations according to the implied requirements of the contract, amounted at the time of the filing of this bill to an abandonment of all claims under it. The complainants, therefore, had no grounds, or at least no occasion to institute these proceedings, and their bill must, therefore, be dismissed. But the facts being such as show that the defendants are now setting up a claim which they cannot sustain, following the precedent of Graham v. Pancoast, supra, we dismiss the bill, but refuse costs to either party.”
    A decree was entered in accordance with the opinion.
    The plaintiffs appealed to the Supreme Court, and assigned for error the decree dismissing their bill.

      A. Ricketts, for appellants.
    If the lease is invalid, it is useless to the defendants, and they should not hold it to the annoyance and vexation of the complainants, and to the depreciation of the value of their property: Hamilton v. Cummings, 1 Johns. 517; Clousten v. Shearer, 99 Mass. 209 ; Williams v. Fitzhugh, 37 N. Y. 444; Tucker v. Kenniston, 47 N. H. 270; Kennedy v. Kennedy, 7 Wright 413, 417; 2 Story’s Eq. Jur., see. 700.

      M. F. Flliott and II. B. Wright (with whom was O. A. Buckalew), for appellees.
    The aid of a court of equity cannot be invoked to remove a cloud on a title where there is an outstanding claim or an encumbrance on it which is barred by lapse of time, and therefore cannot be enforced at law; the question must be determined by a jury: Haines’s Appeal, 23 P. F. Smith 171; Phillips’s Appeal, 18 Id. 130.
   Mr. Justice Sharswood

delivered the opinion of the court, May 10th 1875.

Upon every point on which the mining lease of December 21st 1852, by Alexander Jameson to Charles A. Lane, was .attacked in the bill, the decision of the learned judge below was adverse to the appellants. Want of power in the lessor, incompetency by reason of mental weakness, fraud and undue influence, alteration in the instrument, uncertainty as to the commencement of the term, and want of consideration, are all considered and disposed of, And we think rightly disposed of. There is a clear distinction, well established as a rule in equity, between cases of specific performance and of rescission or cancellation. In many instances, the chancellor will refuse specific performance where he will also refuse to order the instrument to be delivered up to be cancelled, but leave the parties to their legal remedies: Graham ». Pancoast, 6 Casey 89. This case would certainly present itself in a different light, were it a hill by the appellee, praying specific performance and to he put into possession, under the lease. The learned judge below expressed the opinion, not only from the unusual stipulations of the lease, and the great age and mental weakness of the lessor, but also from the lapse of time without any possession taken or operations commenced under the lease, the appellant had no ground to apprehend any successful assertion of the rights of the lessee or his assignees.

It is contended, however, that admitting this to be so, the existence of the lease outstanding in the assignee, was a cloud upon the title of the appellants, preventing their sale of the property, and that a decree should have been made upon that ground of equity. Mr. Justice Strong said, very truly, in Kennedy v. Kennedy, 7 Wright 417, “ there are very many cases analogous to bills of peace in which a chancellor has interfered to quiet the enjoyment of a right, or to establish it by a decree, or to remove a cloud from the title. Indeed, this is one of the well recognised branches of equitable jurisdiction, though its extent is not clearly defined.” It has been maintained, that an instrument wholly void upon its face, would carry its own condemnation with it, and would not be in a proper and legal sense, a cloud upon the title: Hotchkiss v. Etting, 36 Barbour S. C. Rep. 45, and cases there cited. Mr. Justice Story considers it to be now fully established, that in such cases, courts of equity will not interpose their authority to order a cancellation or delivery up of such instruments: 2 Story Eq. Jur. 700. Chancellor Kent, however, in Hamilton v. Cummings, 1 Johns. Ch. Rep. 522, after an exhaustive examination of the English precedents says, I am inclined to think that the weight of authority and the reason of the thing are equally in favor of the jurisdiction of the court, whether the instrument is or is not void at law, and whether it be void from matter appearing on its face or from proof taken in the cause, and that these assumed distinctions are not well founded.” He adds: “ Perhaps the cases may all be reconciled on the general principle, that the exercise of this power is to be regulated by sound discretion, as the circumstances of the individual case may dictate; and that the resort to equity to be sustained, must be expedient, either because the instrument is liable to abuse from its negotiable nature, or because the defence, not arising on its face, may be difficult or uncertain at law or from some other special circumstances peculiar to the case, and rendering a resort here highly proper and clear of all suspicion of any design to promote expense and litigation.” The best expression of the rule, as it seems to me, is to be found in an opinion of the Supreme Court of Massachusetts, in Martin v. Graves, 5 Allen 661, by Merrick, J. “ Whenever a deed or ■other instrument exists, which may be vexatiously or injuriously used against a party, after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceedings at law, a court of equity will afford relief by directing the instrument to be delivered up and cancelled, or by making any other decree which justice or the rights of the parties may require.” It is certainly a matter in the sound discretion of the court, in view of all the circumstances of the case, and the power ought not to be exercised, except in a very clear case.. We think this is not such a case. To exercise it here, would be in effect to overrule the well-settled principle of chancery, which has already been adverted to, an'd say, that whenever a chancellor, on account of the laches of the adverse claimant, or the unreasonableness of the contract, or the mental weakness of the. party, would decline to enforce the contract by a specific performance, he will order it to be delivered up to be cancelled, when it may operate to cloud the title. The lessees or their assignees ought not to be deprived of their legal remedies, and their constitutional right of trial by jury, as they would be by such a decree.

Decree affirmed and appeal dismissed, each party to pay his own costs of this appeal.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Moore versus Kiff et al.

    1. Kiff gave Moore ten notes, one payable each consecutive year without interest; judgment was entered on them ; at the same time ten plain notes were given for the interest, payable yearly. Kiff made payments to Moore from time to time; neither party made any appropriation of these payments to either debt. More than six years after the interest notes were due, in a scire facias on the judgment, the court charged “ as the interest notes are now barred by the statute, these payments must be applied to the debt in controversy.” Held to be error.

      2. Where a debtor owes more than one debt to the same creditor, and a payment is made generally, the law makes the application.
    3. Where money is paid generally on a debt, it is to be applied first to the interest, and then to the extinguishment of the debt.
    4. The interest notes were payable in goods; when payments were made it was agreed that they should be credited on “ the notesthere had been no offer by the debtor to pay in goods : Held to be payment on the debt evidenced by all the notes.
    5. When payment of a debt is to be in goods, failure to pay or offer to pay in goods, according to agreement, fixes the liability of debtor to pay in money.
    March 10th 1875.
    Before Agnew, C. J., Sharsw.ood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Bradford county: No. 54, to January Term 1875.
    This was a scire facias sur judgment, issued January 8th 1868, by Abraham C. Moore against Erastus Kiff, Samuel Kiff and John Kiff.
    The judgment on which this scire facias was issued, was entered to September Term 1846, on a bond with warrant of attorney, to confess judgment, dated June 24th 1846, conditioned for the payment of ten notes of the same date, amounting in the whole to $3150. The notes were executed by the defendants and payable yearly for ten years without interest. At the same time the defendants gave to the plaintiff, ten notes for the interest on the other notes, payable “ in good merchantable sugar or pork, at cash price, to be delivered in Troyboro.’” These notes also were payable yearly, in ten consecutive years.
    The case was tried October 8th 1873, before Streeter, P. J.
    On the trial it appeared by the evidence that the notes had been given for the purchase-money for a farm of 350 acres and the stock on it, sold by plaintiff to defendants. By articles of agreement of November 28th 1849, between the plaintiff and defendants, the land was transferred again to the plaintiff at $5.50 per acre, it being agreed “ to admit as payment of said several notes as much as said land shall amount to,” and “ that all payments heretofore made by said Kiffs, or either of them, upon said notes, shall be allowed by said Moore the same as if these articles had not been made, anything in these articles to the contrary notwithstanding.”
    In addition to the price ($1925) of the farm resold to the plaintiff, he had received on the notes $90.75, and also from a sheriff’s sale of defendants’ property, $245.92. The plaintiff testified that he had bought a farm from the defendants in Columbia, of the purchase-money of which, $570.17 were to be applied on the notes.
    The defendants gave evidencethat the purchase-money of the farm in Columbia was $1000, from which were to be deducted $90, on account of another debt, leaving $910 to be applied to the judgment ; also $200 for sugar delivered to plaintiff.

      They gave evidence also for the purpose of showing that the whole amount of the notes had been paid.
    The parties made no appropriation of the several payments to any particular part of the debts.
    The court charged: * * *
    “ The defendants insist that this credit (for the Columbia farm) should be $910 instead of $570.16; it is for you to determine under the evidence which is the true amount. * * * We understood from the evidence that the price of the 350 acres resold to plaintiff, as well as the amount paid by Samuel Kiff, was to apply upon the .debt in judgment now sought to be revived; but the counsel for the plaintiff insist that these payments must be applied to the interest notes first, and the balance to the judgment. They argue that the agreement of 3d May 1850, shows this to be true. The amount of those interest notes has not been stated, though the notes were to be considered in evidence. No money or sums were ever applied by Moore to either debt, and as the interest notes are now barred by the statute, it seems to us that these payments must be applied to the debt in controversy. You have then 350 acres at $5.50 per acre, making $1925. The amount of endorsements and costs made by sheriff, $336.67. The sum paid by Samuel Kiff, according to Mr. Moore, $570.16; making in all $2831.83. The debt was $3150, and the balance due the plaintiff by this calculation would be $319, and the interest on that sum from the 24th June 1856, the time when the last note became due. But the defendants claim that the amount paid by Samuel Kiff was $910. If you adopt that view of the evidence, it makes the payment $339.84 more, and that would fully pay the judgment. The defendants also claim that they should be allowed for 2000 pounds of sugar at 10 cents per pound, but we have already said all that is necessary upon that item.” * * *
    The verdict was for the defendants.
    The plaintiff took a writ of error. He assigned for error, that the court erred:—
    1. In submitting to the jury the question whether the payment made by Samuel Kiff by a farm in Columbia was $910 or $5?0.16.
    2. In instructing the jury that the payments made by defendants must be applied to the debt in controversy, “ without regard to the interest notes.”
    3. In not instructing the jury that they should ascertain the amount owing by defendants to plaintiff at the date of the re-sale of the farm, viz : November 28th 1849, upon all the notes given at the original purchase, and after deducting the payments thus made, give the plaintiff judgment for the balance, if any, with interest to the date of note.
    4. In instructing the jury that plaintiff was only entitled to interest on any balance owing at the date of re-selling the farm, from the 24th of June 1856, the date when the last principal note became due.

      W. H. Camochan, for plaintiff in error.
    A partial payment is to be applied, first, to interest on the debt, and then to the principal : Speirs v. Hamot, 8 W. & S. 17; Bouv. Inst., sect. 384.

      S). Rockwell (with whom was H. N. Williams), for defendants in error.
   Mr. Justice Paxson

delivered the opinion of the court, March 19th 1875.

We do not see the force of the first assignment of error. It amounts substantially to an allegation, that the court below erred , in submitting a question of fact to the jury. What other disposition the court could have made of it does not appear.

We think the learned judge erred in instructing the jury that the payment made by the defendants, must be applied to the principal of the debt in controversy, to the exclusion of the interest notes. He places this upon the ground, that the latter were barred by the statute, as will be seen from the following extract from his charge : “ No money or sums were ever applied by Moore to either debt, and as the interest notes are now barred by the statute, it seems to us, that these payments must be applied to the debt in controversy.” The error of this reasoning consists in the fact, that at the time of the agreement of November 28th 1849, the interest notes, referred to, were not barred. It is not pretended that any payments have been made since that date.

It does not appear that Moore ever applied the payments made prior to said agreement, or the price át which the land was resold, to either class of notes. Nor was any such application made by the defendants. It remains, therefore, for the law to apply them. Where money is paid generally upon a debt, the obvious rule is, to apply it first, to the interest, if any, in arrears, and then the ex-tinguishment of the principal. Is there any valid reason why such rule should not be applied in this case ? This transaction, as it stood originally, was a sale of a farm, with the stock, for the sum of $3150. Notes were to be given for this sum, with interest, to be secured by a judgment. When the parties came to close it up, for some reason, separate notes were given for the interest, and they were made payable in pork and sugar. By the subsequent agreement of November 28th 1849, Moore was to take the land back at $5.50 per acr , and this price, as well as former payments, was to be credited upon the original indebtedness. In the precise language of the agreement, it was to be admitted as payment of “said several notes.” What notes? The notes for the principal only ? There is not a word in the agreement to indicate this. The parties evidently contemplated the payment of the debt due Moore, not merely the principal of that debt. Nor is the fact that the interest notes were payable in pork and sugar material, unless there had been an offer to show payment in those particular commodities. The defendants had a right to pay in pork and sugar. An offer to do so would have been a sufficient answer to a demand for payment. But a failure to show either payment, or an offer of payment, in these articles, fixes the liability of the defendants to pay in money.

If the plaintiff in error desired the specific instruction referred to in the third assignment, he should have asked for it. No such point was submitted to the court. Under the view which we take of the case, he would have been entitled to its affirmance.

The fourth assignment of error is sustained. The plaintiff was entitled to recover the balance, if any, remaining unpaid of the original debt of $3150, with interest, after deducting any payment or proper credits. '

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Carhart’s Appeal.
    1. A court of equity will execute a trust where there is a valuable consideration ; but if it be voluntary the legal estate must be put out of the settlor; the question as to its validity being whether it was at first perfectly created.
    2. In general, a court of equity will not execute unexecuted voluntary contracts inter vivos, but will leave the parties to their remedies at law.
    3. The simple avowal by a purchaser at sheriff’s sale, whether made at the time of the purchase or afterward, that the purchase was for another, will not support the allegation of a trust.
    4. Power signed a paper stating that if he purchased lands about to be sold by the sheriff, he would hold them on specified trusts for creditors of the defendant in the execution; after his purchase of the land, Held, under the circumstances of the case, not to create a trust in Power.
    February 25th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from Nisi Prius. In Equity: Of January Term 1870, No 35.
    The bill in this case was filed, January 20th 1870, by Lyman B. Carhart, trustee, and Daniel D. Badger, against George F. Power and William H. Marston.
    The plaintiffs brought the bill as judgment-creditors of Caleb Barstow, both on behalf of themselves and all the other creditors of Barstow, who might come in, &c.
    The bill set out:
    1. On the 29th of July 1864, Caleb Barstow and John Egerton became the owners, in equal moieties, of a tract of land in West Philadelphia, subject to two yearly ground-rents, one for §2772.71, payable to the estate of John Hare Powell, deceased, the other for $1380, payable to the estate of Robert Hare, deceased.
    2. Barstow, when he and Egerton became owners of the property, and subsequently, was indebted to the plaintiffs and other persons; and Power, one of defendants, claimed to be a creditor of Barstow.
    3. In 1866, Barstow, by reason of financial embarrassments, &c., and in order to evade the demands of his creditors, arranged with Power, that he should become the purchaser of Barstow’s interest in the West Philadelphia lands at a sheriff’s sale, provided Power would execute a declaration of trust for the benefit of Barstow and his creditors; in pursuance of this arrangement, Power obtained a judgment against him in the District Court of Philadelphia, for $18,166.55, under which, in September 1856, the premises were sold by the sheriff to Power for $1000 ; the interest sold being valued at $100,000, subject to the ground-rents.
    4. “ Previously to the sale, according to its date, but subsequently thereto, and after Power had obtained title to the premises,” he executed a declaration of trust, dated September 17th 1866, which was recorded in Philadelphia, February 2d 1867 (a copy, B, being appended to the hill), and which recited that Power was about to become the purchaser of Barstow’s interest in the West Philadelphia Hand, and declared that the land, if purchased by him, should be-held in trust: (1.) To pay Power’s judgment of $18,166.55. (2.) To pay a judgment against Caleb Barstow in favor of Barstow & Pope for $75,000. (3.) If a balance remained to pay the creditors of Caleb Barstow. (4.) As soon as Egerton’s interest could be controlled, Power was to convey Barstow’s interest to whomsover should be selected as trustee, so that the entire property might be consolidated in one person, and the sale facilitated, yet not .so as to prejudice any claims against the interest.
    In pursuance of the arrangement, on the 22d of September 1866, three days after executing the declaration of trust, the sheriff made a deed to Power of all Barstow’s interest in the land without reciting the trust.
    ■ 5. The judgments mentioned in the declaration of trust were fictitious, used to defraud and deceive the plaintiffs, and general creditors of Barstow.
    6. Egerton’s interest having become vested in Drayton, an ex parte partition of the land was had in the District Court of Philadelphia, by Power, against Drayton, and part of the property (designated as C.) was assigned to Power in severalty.
    ■ 7. Power, intending to defraud Barstow’s creditors, wilfully allowed the two ground-rents to fall in arrear, without notifying the creditors or applying to them for funds to pay the arrears, with the design to vest the title to the premises absolutely in himself ; suits were brought and judgment obtained for the rents; the premises were taken in execution at the instance of Power, and at his request; also, Morrill became the purchaser of both the Bar-stow and Drayton properties, at the nominal sum of $1500, subject to the principal of the two ground-rents, and deeds were made by the sheriff to Morrill, October 10th 1868.
    8. On the 14th of October, Morrill conveyed to Power the part of the lands which had been allotted to Power under the proceedings in partition. Morrill’s deeds recited the proceedings in partition, but not the declaration of trust. .
    9. The consideration for both lots sold by the sheriff was paid by Power, who was reimbursed for one-half of the consideration by the Union Car Company, who were owners of part of the premises.
    10. In pursuance of his fraudulent purpose, Power, on the 16th of October 1868, conveyed part of the premises to W. H. Marston, who purchased at the request of Power, with notice of the trust.
    11. Power refused to acknowledge himself trustee or to render an account.
    The prayers were:—
    1. For discovery.
    2. For an account by Power of all the liabilities of Barstow; for the moneys disbursed by him, Power, on account of the trust estate; and that he be decreed to hold Lot C. in trust for the purposes aforesaid.
    3. For a decree that, the sale and deed by the sheriff to Morrill, the deed from Morrill to Power, and the deed from Power to Marston, were null and void.
    4. That defendants might be restrained from selling, mortgaging or interfering about the premises so held in trust.
    5. For the removal of Power from the trust.
    6. For general relief.
    The declaration of trust (B.) was as follows:
    “Whereas, I, George F. Power, of Brooklyn, in the state of New York, am about to purchase the undivided one-half interest of Caleb Barstow in certain lands situate in West Philadelphia, in the state of Pennsylvania, for sale by the sheriff; said lands being more particularly described by writ issued out of the District Court of Philadelphia, September Term 1866, No. 218: Now, know all men by these presents, that the said lands, if purchased by me at the sale thereof, to be held this day, shall be held in trust for the following named purposes, to wit:—
    “ 1st. The proceeds of sale thereof shall be applied to the payment of the judgment in my favor, amounting to $18,665.55, with interest and costs.

      “ 2d. Any balance of proceeds derived from sale thereof, shall be applied to the payment of a certain judgment against Caleb Barstow, in favor of Barstow & Pope, for about §75,000, together with the interest and costs thereon.
    “ 3d. Should any balance remain after the payment of the above amounts, then to apply the same to the payment of the creditors of said Caleb Barstow.
    “4th. It being understood and agreed, so soon as the undivided one-half interest of E. F. Drayton in said lands can be controlled, I agree to convey to whoever shall be selected as trustee thereof, the Barstow undivided one-half interest, to the end that the entire property may be consolidated in the hands of one person, and the sales thereof facilitated thereby ; such conveyance or transfer, however, not to prejudice any claim against said interest.
    G. F. Power.”
    Philadelphia, September 17th 1866.
    Witnesses, at signing:
    Thos. A. Gummey,
    H. R. Warriner.”
    “ Be it remembered, that on the 2d day of February, A. D. 1867, before me, the subscriber, an alderman of the city of Philadelphia, personally came Thomas A. Gummey, one of the subscribing witnesses to the execution of the within deed-poll or declaration of trust, and being duly sworn according to law, doth say that he did see the within named George F. Power sign the same, and as his act and deed deliver the above-named instrument for the purposes therein mentioned; and that he did also see H. R. Warriner subscribe his name thereto as the other witness of such delivery, and that the name of this deponent thereunto set and subscribed as a witness, is of this deponent’s handwriting,” &c.
    Recorded, February 2d 1867.
    The defendants’ answer was filed May 16th 1870.
    3. They denied any arrangement between Barstow and Pqwer for the purchase of Barstow’s interest in the land ; they averred that the proceedings by Power against Barstow, which resulted in Power’s purchase, at sheriff’s sale, of Barstow’s interest, were adverse, without collusion, &c., with the sole purpose, on the part of Power, of collecting his claims.
    4. They admitted Power made what was understood to be a “memorandum agreement” with William R. Fosdick, “Exhibit B.;” the agreement was not intended'by either party to it, as a declaration of trust, nor was it to be recorded nor acknowledged; but was intended simply as a memorandum, that in case the land owned by Drayton and mortgaged to the St. Nicholas Bank, of New York, for §30,000, should be purchased by Fosdick, the two properties should then be conveyed to one person, in trust for the purposes as averred, to facilitate a sale and raise a fund to discharge Barstow’s liabilities to Power, which was more than the judgment of $18,666.55, mentioned in the agreement; if the interest of Drayton could be thus controlled, the proceeds from both properties were to be applied, first, to pay Power’s judgments and the bank, pro rata, and the balance, if any, to the debts of Bar-stow ; if Drayton’s property could not be controlled, the agreement to be void. They admitted that the agreement was afterwards proved by a subscribing witness and recorded; but this was by mistake, without the knowledge or consent of Power. They averred that the Drayton interest could not be controlled by Fosdick, and therefore the consideration failed and it became void; that no creditor of Barstow, but Power, had anything to do with making the agreement, or any knowledge of it till after it was recorded. Eosdiclc was not then a creditor, nor authorized by any of Barstow’s creditors, to make such agreement. !>

    5. They denied that Power’s judgment was fictitious, or'ever intended as a cover or fraud; they averred that it was for money actually lent by Power to Barstow, and was but a small part of Barstow’s indebtedness to him.
    6. They admitted the proceedings in partition; the final judgment having been entered December 2d 1867.
    7. They denied fraud in the sheriff’s sale of 1868, on the arrears of the ground-rents, and that the purchase was made to Morrill at Power’s request. They averred that it was not Power’s fault that the ground-rents fell in arrear, but this resulted from the neglect of the Union Car and Manufacturing Company, by whom one-half of the arrears was payable — only one-fourth was payable by Power. He was always willing to pay his proportion, but the owners refused to receive a portion of the arrears, and the company refused to pay their share. Power had used his best efforts to save the property from waste or loss, and liability for ground-rents; he had paid for taxes, ground-rents, &c., more than $15,000, no part of which had the,plaintiff, or any other creditor of Barstow, offered to refund; he had made efforts to have the ground-rents apportioned; the owners agreed to an apportionment, and the stockholders, on the 14th of April 1869, by a resolution, authorized the president to execute deeds for the purpose, but the president refused to do so; on the 1st of February 1870, the resolution was rescinded, with the avowed intention of embarrassing the defendants and others as to the property.
    8. They averred that' the alleged declaration of trust was not mentioned in the deeds from Morrill to Power, because it had become void, and was so considered by Fosdick and Power, the only parties to it, and because no claim could be set up, after the sheriff’s sale, for the arrears of the ground-rent.
    9. They denied that the consideration of the sale of the sheriff to Morrill was paid by Power, or that he was reimbursed by the car company.
    10. They denied that the conveyance of Power to Marston was made for any fraudulent purpose, or to avoid responsibility under the alleged declaration of trust; the conveyance was made in good faith for the consideration stated in the deed.
    11. They denied that Power had refused to give all proper information to any one who had a right to ask it.
    A replication was filed, and the cause was referred to William J. M’Elroy, Esq., as examiner and master.
    A very large amount of testimony was taken ; sufficient of it to an understanding of the ease will be found in the extracts in the master’s report and the opinion of the’ Supreme Court.
    The master reported:—
    “ On the 1st of July 1864, John M. Reed was the owner of a tract of land, containing about 32 acres, on the west side of the river Schuylkill, in West Philadelphia, extending westwardly from that river across the Junction Railroad; subject to the ground-rents set out in the first paragraph of the bill. On that day he conveyed the portion of land east of the railroad, containing about 10 acres, to Caleb Barstow and John Egerton. On the 29th of July 1864, Reed conveyed the portion of the tract, west of the railroad, containing about 22 acres, to Barstow and Egerton; they on the 30th of July conveyed the 10 acres, east of the railroad, to the American Car Company. On the 20th of April 1865, Egerton conveyed his moiety of the western portion to Edward F. Drayton, who on the 25th of July 1865, mortgaged it to the St. Nicholas National Bank of New York, to secure the payment of $30,000. Barstow and Egerton, and all the parties in the case resided in New York. Barstow and Egerton erected buildings for manufacturing purposes on the 10-acre lot, but the enterprise proved a failure; the American Car Company, having become embarrassed in November 1864, Barstow and Egerton suspended. Power issued foreign attachments against Barstow and Egerton, out of the District Court of. Philadelphia, under which the interests of Bar-stow and Egerton, respectively, on the 22-acre tract, was attached. Appearances were entered .for Barstow and Egerton, and judgments were entered against them on the attachments, on the 10th of January 1866. Writs of venditioni exponas were issued in due time on these judgments, and the interests of Barstow and Egerton were separately advertised by the sheriff for sale on the 4th of June 1866. All these proceedings were adverse. There was no collusion or fraud between Barstow and Power in reference to any part of these proceedings; but they were instituted and conducted by Power, for the purpose of recovering his debt. H. R. Warriner, Esq., -was of oounsel with Power. On the 20th of May 1865, Barstow executed a bond, with warrant of attorney to confess judgment, conditioned for the payment of $120,000, to the American Car Company; on this bond judgment was entered May 22d 1865, in the District Court of Philadelphia. Thomas A. Gummey, Esq., was of counsel with the company. On the 22d of May 1865, Barstow executed another bond, with warrant, &c., conditioned for the payment of $75,000, to H. W. Barstow, W. P. Barstow, and J. L. Pope, trading as Barstow & Pope. On the same day, judgment was entered on this bond in the same court. W. IT. Rawle, Esq. was of counsel with Barstow & Pope.

      “ On the 27th of May 1865, Barstow & Pope executed an assignment of their bond and judgment to a large number of persons, named in the assignment, in which the respective amounts appropriated to each was particularly set out.
    “ The assignment was prepared in New York and forwarded to Philadelphia to Mr. Rawle; it continued in his possession, but was not filed of record until April 24th 1871. No negotiations took place, in relation to the property between Mr. Power and the parties interested, until the 3d of June 1866, the day before that on which the property was advertised for sheriff’s sale. On that day, a meeting was held at Mr. Rawle’s office, at which were present, Mr. Rawle, representing Caleb Barstow and Barstow & Pope; Caleb Barstow ; Power, with his counsel, Mr. Warriner, and Barrett, secretary of the car company. It was expected that Mr. Gummey, of counsel with the car company, and Eosdick would have been joresent.
    “ It would appear from the parties present, and expected to be present, that the matters discussed had reference not merely to the property advertised for sale, as the Barstow moiety, but also to the Egerton moiety of the same tract which, also, was advertised for sale, and which had been conveyed by Egerton to Drayton, and by him mortgaged to the St. Nicholas National Bank, of which Mr. Eosdick was then president; and probably also to the property of the American Car Company, which was bound by the same ground-rents to which the Barstow and Egerton property ■was* subject. Mr. Power says that the subjects discussed were in relation to the lines of the ground-rents, their apportionment, and the best manner of obtaining a good title to the property in the event of a sale; that no conclusion was arrived at and no definite plan agreed upon, but that it was thought best to sell under the ground-rents, as in that way a title would be obtained to both the Bar.stow and Drayton interests for the ultimate purpose of vesting them in one person, and thus facilitating a sale of the whole; that it was agreed, however, to postpone the sheriff’s sale, as Mr. Eosdick, who was proposed as trustee for the purpose of private sale, was not present, and also in order to settle the manner in which the proceeds of such sales should be distributed. Mr. Rawle depends much for his recollection of the transactions of this meeting on a note written by bim on the same day (and he thinks during the conference) to Mr. Gummey, in which he states that a suggestion had been made that the sheriff’s sale should be postponed, and that Mr. Power and Mr. Fosdick should buy the property at the adjourned sale, and hold it for the benefit of the lien creditors; and, in a postscript, he further says: lW& have worked out the plan of making the title by a sale under the ground-rent, to which -we all incline.’ In this note he mentions a proposed meeting at Mr. Gummey’s office on the next day, at which Mr. Fosdick would be present. There is no evidence to show that this proposed meeting was held.
    “ It is to be regretted that more definite evidence could not be obtained as to the details of this meeting of the 3d of June. No other person present, except those, above named, was examined in reference to it. The lapse of time, and the complicated character of the interests involved, seem to have obscured the recollection of those who have testified. Indeed, Mr. Rawle says that he has no recollection of any precise word or sentence, nor even any exact subject of conversation at that interview, and that he should have utterly forgotten the interview, had not his memory been refreshed by the note written by him to Mr. Gummey.
    “ Upon the evidence given, my conclusion is that the meeting did not result in any definite agreement, except that the sheriff’s sales should be postponed for the present. It resulted, however, in this, that an effort was afterwards made, looking to a consolidation of the two undivided moieties of the twenty-two acres in one person, for the benefit of the parties interested.”
    The executions were stayed. Power then commenced efforts to secure the co-operation of the parties, in order to unite the title of the two moieties in Fosdick, as trustee, to sell and distribute the proceeds. Fosdick’s interest was as president of the St. Nicholas National Bank, mortgagee of the Egerton interest. Power, besides holding the judgment before-mentioned against Barstow, was a creditor to an amount exceeding $100,000. Power’s negotiations were with Caleb Barstow, Barstow & Pope and Fosdick.
    He did not consult with any of the persons- in interest under the $75,000 judgment, except Marston & Power, nor with any other creditor of Barstow. Power was not aided in his efforts, by the counsel of any of the other parties, in Philadelphia. Mr. Rawle recollected several interviews with the counsel and their clients, and other parties interested, but had “ no distinct recollection of any particular interview with any particular person, nor of anything that was said or done at any interview.” He thought that the Hare ground-rent suit was brought at his request, Mr. Outer-bridge, being of counsel, in pursuance of the plan adopted at the meeting of June 3d, but as to any connection of Power with it, it would be mere inference, connecting the plan proposed in the postscript of liis note with the commencement of the suit, ten clays afterwards. Judgment was obtained on the Hare ground-rent, July 9th 1866, and subsequently on the Powell ground-rent.
    Executions were issued on the ground-rent judgments and the property was advertised for sale by the sheriff, on the 17th of September. On the 15th of September, Fosdick purchased the Hare judgment and it was marked to his use; on the day of the sheriff’s sale, the Powell judgment also -was purchased by him and marked to his use. His object was to secure to himself, the control of the sale of the American Car Company’s property.
    “ I do not find from the evidence that anything was done by the counsel or parties, in Philadelphia, up to the last date mentioned, with reference to a consolidation of the Barstow and Egerton interests in this property, for the common benefit of the creditors concerned in it.”
    As the result of Power’s efforts, a written agreement was prepared in New York, between Fosdick, Power, Caleb Barstow, Marston & Power, Barstow & Pope and The St. Nicholas Bank. It “Provided for a sale of the Drayton moiety under a foreclosure of the hank’s mortgage, and for sales under the ground-rents and under the judgment held by Power against the Barstow moiety; that Fosdick should purchase all the property and take the title thereof free from all encumbrances, except the ground-rents, and hold the same in trust, and when the property should he disposed of, the amount realized should be appropriated, 1st, to reimburse him all expenses incurred; 2d, to pay and discharge all ground-rents and claims therefor; 3d, to pay pro rata the hank’s mortgage and the judgments held by Power against Barstow and Egerton ; 4th, to pay the bank all losses arising out of transactions with Barstow and Egerton; 5th, to pay pro rata the parties entitled under the judgment of $75,000, confessed to Barstow & Pope; 6th, to pay the Phoenix Warehousing Company the amount of checks and notes of Caleb Barstow held by that company; 7th, to pay all notes and checks of Caleb Barstow held by George F. Power and Marston & Power for confidential indebtedness; and 8th, to pay the general creditors of Barstow and Egerton.”
    This paper received the approval of Caleb Barstow and Henry W. Barstow on the 2d August 1866, and it was then submitted by Mr. Power to Mr. Fosdick, but the latter, acting under the advice of his counsel, declined to sign it, or to have anything to do with it. Caleb Barstow alleges that, notwithstanding this, both Mr. Fosdick and Mr. Power agreed to it verbally, and that pursuant to this understanding, they proceeded to Philadelphia, where Fosdick bought the property of the American Car Company, and Power bought the ground lying west of the Junction Railroad. As to any verbal agreement of this nature, Barstow is contradicted by both the others, and it is certain the written agreement had no reference to the property of the Oar Company. Mr. Fosdick says that his understanding was, that the paper submitted to him was a proposition made to him by Mr. Power to act in the matter as therein provided, mainly for the benefit of Mr. Power. The evidence does not show that any further attempts to come to an agreement were made in New York.”
    On July 13th 1868, Power was informed of the judgments for the ground-rents, expressed his satisfaction, and said he would see Fosdick, with whom, he said, he acted “ in concert in this matter.” Shortly afterwards, Mr. Warriner issued an execution on the judgments in foreign attachment against Barstow, and informed Power that the sheriff’s sale would be made September 17th. The property of the Car Company was, at the same time, advertised for sale under various writs. Up to the 14th of September, no. definite arrangement had been made as to the disposition of the property.
    The master then gives the conflicting testimony taken, as to any plan adopted on June 3d 1866, in reference to the disposition of the property; that on the part of defendants, tending to show that no arrangement had been made, as was alleged to be contained in the “ declaration of trust,” Mr. Rawle was unable to testify that he had seen Power or his counsel in September 1866, and said: “I have no memory whatever on the subject, except such a professional one as is made up more from inference than direct recollection.” Mr. Rawle said that his recollection on the subject was vague and indefinite, that the interests were numerous and “ more than proportionally complicated, and he cannot discriminate.”
    The giving of “Exhibit B.” was proposed by Power; “it was entirely voluntary on his part; there was no present consideration for it; it was not sealed or acknowledged; it was not to be recorded, but left in the care of Mr. Gummey, to be held by him merely as a memorandum, and its use, as an executed paper, was dependent upon a contingency, namely, that the undivided moiety of Drayton in the property could be purchased or controlled and the interests of Barbtow and Drayton consolidated in one person.”
    The sheriff’s sale took place on the same day (September 17th 1866), after signing the paper, and Power bought Caleb Barstow’s moiety for $1000. At the same sale Fosdick bought the property of the Car Company for $10,000, and afterwards sold it to the Union Car and Manufacturing Company, who owned 'it at the time the bill was filed. Judgment was afterwards obtained for arrears of the Powell ground-rent, which fell due October 1st 1866; the sale was advertised for February 4th 1867 ; on that day the judgment was marked to the use of Fosdick and he stayed the sale. On the 2d of February, Fosdick had instructed his counsel, Mr. Gummey, to have the agreement (Exhibit B.) recorded, and Mr. Gummey, being one of the subscribing witnesses, proved its execution.and had it recorded ,the same day; this was done without the knowledge of Power, and was a violation of the oral agreement made when “ B.” was signed. Eosdick’s purpose was to thwart Power in his efforts to obtain the Drayton interest, and to consolidate the two moieties for the purposes of the agreement of September 17th 1866. Power had not shown any intention to escape from the terms of the agreement, but endeavored to carry it into effect. He commenced proceedings in partition, March 9th 1867, and whilst they were pending, Eosdick issued a scire facias on the St. Nicholas Bank mortgage, and obtained judgment May 26th; a levari facias was issued June 12th; judgment quod partitio fiat was obtained June 16th. The Drayton interest was advertised for sale under the levari on the 1st Monday in July. A writ of partition wras issued returnable on the 1st Monday in August. There were negotiations for arranging matters between Power and Fosdick, without success.. At the sheriff’s sale, Power bid $40,000, but the counsel for the bank, under Eosdick’s instructions, stayed the sale, much to Power’s dissatisfaction. In the partition suit, purpart “ C ” was adjudged to Power. The remainder of the 22-acre tract was allotted to Drayton, and the partition was confirmed December 2d 1867. Under a pluries levari the purpart of the 22 acres allotted to Drayton was sold by the sheriff March 2d 1868, to Peter Borland, for $5000; on May 20th 1868, Borland conveyed to W. H. Marston, who was a partner with Mrs. C. W. Power, wife of the defendant Power, under the firm name of Marston & Power. On the 20th of July a judgment was obtained for the arrears of the Powell ground-rent, and under it the portion of the property No. 1, owned partly by Power and partly by Marston, was sold by the sheriff to Edward W. Morrill for $1600. On August 24th 1868, judgment was obtained for the arrears of the Hare ground-rent, and under it, properties 1 and 2, being' the portion of the 22 acres then owned partly by Power and partly by Marston, were sold by the sheriff, October 6th 1868, to Morrill, who, on the 14th, conveyed to Power, the premises formerly owned by him, and to Marston the premises owned by him, the consideration in each case being $6000, and on the 16th, Power made a mortgage for $66,000 on the part of the premises conveyed to him by Morrill, to the Bank of Eairhaven, Massachusetts, which had previously issued a foreign attachment.
    Barstow and Pope had not been informed of the contents of the agreement of September 17th .1866 (B.), on the 6th of December 1866. About a year later, Spaulding and Richardson for Brett, Son & Co., who were among the assignees of the $75,000 judgment, having written to Mr. Rawle, learned of its existence and of its having been recorded. Upon inquiry by them of Mr. Rawle, at his .request Mr. Grummey drafted an answer, in which he spoke of the paper of September 17th 1866 as a declaration of trust. Mr. Rawle made some modifications in Mr. Gummey’s letter. He added to the letter, that an estimate of $150,000 for Mr. Power’s , moiety was based on a careful management of the property for some years, and that it was doubtful whether at a forced sale it would bring one-sixth of that estimate, that the property had always been unlucky, although it was valuable and directly opposite the heart of the city, near the Schuylkill. None other of the parties interested in the $75,000 judgment, made any inquiries or received any information, &e., as to the paper of September 17th 1866, except the testimony given by Mr. Rawle with regard to his knowledge.
    “ As respects this, he states that he cannot swear that he was present at its execution, or indeed that he ever saw it, but he thinks it very probable; that his recollections and belief are that he either saw the paper itself or knew of its purport at the time of its execution. He thinks he did not first hear of this paper when informed of it by the correspondence with Spaulding & Richardson in December 1867, and he should say that he first knew of its existence on the day of its date, yet it may have been when Mr. Gummey came to him and told him that he had this paper, and that Mr. Warriner and Mr. Power had entirely forgotten it. This was on or after February 2d 1867. Mr. Rawle gives his reason for believing that he either saw, or knew the purport of the paper at the time of its execution, that otherwise he would have done everything to prevent the sheriff’s sale on that day, or, failing in that, would have called on the assignees of the $75,000 judgment, whose lien would be divested by that sale, to come forward and protect themselves. In another part of his testimony, when asked whether it was not in consequence of instructions or requests received from Caleb Barstow rather than from any agreement or understanding with Mr. Power, that he suffered the sheriff’s sale to proceed, he answers by referring to a letter from Barstow of September 14th 1866, and states that this letter will better answer the question than he can do from mere memory. He states further, that at this lapse of time, and in a case in which there were so many complications and alterations of plans, it is with reluctance that he testifies positively as to more than a few salient points. These points, as to which he has a distinct recollection, he gives as follows: ‘ The circumstances attending my first interviews with the Barstows and Mr. Gummey, and the transactions of May 1865, the fact of the interview of June 3d 1866, of which the result was given in my note and postscript of that day ; the fact of Mr. Fosdick and his counsel, Mr. Gummey, professing from beginning to end a warm friendship for Mr. Barstow, and desire to promote his interests; of Mr. Power’s desire to get his money, and subsequently coming in with Mr. Fosdick to help Mr. Barstow; the sheriff's sale of October 1868, being made in furtherance of this end, and the events of the last few weeks in this cause, which have developed in the present turn which it has taken — these are the salient points as to which my memory is quite positive.’ ”
    The master further reported that the charges that the judgments mentioned in the fifth paragraph of the hill were fraudulent and were not sustained.
    “ The main issue, as raised by the pleadings is, whether the trust alleged to exist by virtue of the said agreement, was or was not a trust perfectly created. * * * Looking at the instrument by which the trust is alleged to have been declared in this case, it is evident that no consideration appears by it to have moved to Mr. Power, the person executing it. Nor is there any evidence to show that he received any valuable consideration from any person whatever. The testimony shows that it was proposed by him, and executed voluntarily by him, without Consideration and without request from any one. It appears also not to have been sealed. The subscribing witnesses only attest the signing, not a sealing or delivery. It was not acknowledged for the purpose of recording, and the evidence is, that when Mr. Power left it with Mr. Grummey, it was with the understanding that it should not be recorded. The subsequent proof and recording of the paper by Mr. Grummey, under direction from Mr. Fosdick, was a clear violation of this understanding, and without any authorization from Mr. Power. It is also evident that Mr. Power was not, at the time of its execution, .the owner of the subject-matter of the trust.' It states an intention to purchase certain real estate, which, if purchased by him, is to be held in trust. It was not, therefore, strictly speaking, a perfect trust,' for something was to be done by him to give it effect, namely, the purchase of the property. Further, he does not, in the instrument, specify himself as the trustee. * * * The proper construction of this paper appears to me to be, that Mr. Power did not by it intend to declare a present trust in himself with respect to the property about to be purchased by him, but that the property, if purchased by him, should afterwards, as soon as the Drayton moiety thereof could be controlled, be conveyed to some trustee to be selected, who should hold both interests, being the entire property, in trust for the purposes mentioned in the instrument. * * * It seems to me, therefore, from the paper itself, and from the circumstances attending its execution, the condition of the property and the relation of the parties, that the purpose in view by Mr. Power was not so much the application of the Barstow moiety in the lands in question to the payment of the debts mentioned, as to secure the application of the Drayton moiety also for this purpose, and the consolidation of both moieties in order that the whole property might be made available for the payment of the indebtedness of Barstow. * * * After an attentive consideration of all the evidence on this subject, I have come to the conclusion that Mr. Power did not intend to create a distinct and independent trust in bimself as to the moiety of Caleb Barstow in the land in question, but that the trust proposed by him was one that should embrace both moieties, and was dependent for its existence upon the securing of the title to the Drayton moiety in said land by some one who would bring it within the trust, and agree upon a trustee to whom the entire property could be conveyed. * * *
    “In regard, therefore, to the question of the existence of an express trust in Mr. Power, as respects the property mentioned in the bill, I report that no such trust exists, and that the agreement of September 17th 1866 (Exhibit B.), did not create a trust of the said property, but was a mere voluntary agreement to create a trust of that moiety of the property and the moiety held by Edward F. Drayton, when the Drayton moiety could be controlled and the two interests consolidated in one trustee, and that this event has not occurred. * * *
    “ The question remains to be considered whether Mr. Power, although not a trustee of this property by direct trust, is a trustee thereof, as respects the holders of the $75,000 judgment, by implication or ex maleficio. No charge of this kind is made by the bill, but evidence directed to this point was received without any objection being made by defendants, and it becomes my duty to consider and report upon it. * * * I have considered the evidence in this case very carefully wherever it be as upon the point now in question and my difficulty in respect to it is, that although there is proof of an effort having been made to come to some definite agreement or arrangement with respect to this property for the benefit of creditors interested in it, yet I cannot find evidence that establishes such an agreement between Mr. Power or Mr. Fosdick and any of these creditors as having ever been actually made. Nor do I find that there is satisfactory evidence that either of them made any promise to Mr. Rawle, or any of the creditors secured by the_ judgment, or to Barstow & Pope, or to any other creditor of Caleb Barstow, that he would purchase the property and hold it for the benefit of creditors, and that by reason of any promise of this kind, or any other inducement, any of the creditors was prevented from bidding, or did not bid, at the sale. * * *
    “ I feel, therefore, compelled to report that I do not find it established by the evidence that the defendant, Power, or any one authorized by him, made any promise or agreement with respect to the purchase of this property by him, by which any creditor of Caleb Barstow was led to forbear doing what he contemplated, by bidding at the sheriff's sale or otherwise, with res'pect to the property in question. * * *
    “ I now report that the prayer of this petition should not be granted; and upon a consideration of the whole case, I respectfully submit to the court that a decree should be entered, dismissing the plaintiff’s bill, with costs.”
    After exceptions to the master’s report, it was confirmed, and the bill was dismissed, with costs.
    The plaintiffs appealed to the court in banc.

      J. J. Murphy (with whom were F. Sheppard and H. Wharton), for appellants.

      J). 0. Harrington, for appellees.
   Mr. Justice Woodward

delivered the opinion of the court, May 10th 1875.

It is indispensable to the success of the plaintiffs in this suit, that the instrument executed by George F. Power on the 17th of September 1866, the day of the sheriff’s sale of the property of Caleb Barstow, should be connected with the agreement alleged to-have been made between Power and the other creditors of Barstow, on the 3d of June 1866, at the office of Mr. Rawle. A large mass of details, tending to establish such a connection, was presented to the master. The whole history of the efforts of the creditors to collect their debts, and of the legal proceedings employed for that purpose, from the time of Mr. Barstow’s failure, was disclosed. But the general evidence was of a character to corroborate and strengthen direct testimony of the essential fact, rather than to afford independent proof of its existence. At the last, the disposition of the questions in dispute must depend upon the statement of Mr. Rawle. From the multiplied details that are grouped in the record around the main point of dispute, it is believed that if he had been able to say, from a distinct recollection, that the agreement of the 17th of September was the execution of the agreement of the 3d of June, the duty of the master would have consisted in finding the allegations of the bill sustained. There is, fortunately, no embarrassment in dealing with his testimony. Just what he meant to say was said in unmistakable and distinct terms, and the exact extent of his knowledge, and the precise limits to which his recollection went, were accurately defined.

In his examination in chief, Mr. Rawle said: “If I remember rightly, the projected sheriff’s sale was the result of an arrangement, and was not what is commonly called an adversary proceeding. Besides, the fact that the property was held in common with John Egerton, who was not only supposed to be affected in his mind, but had made a peculiar conveyance to his brother-in-law, there were complications as to the Barstow moiety which it was thought this sale would correct, and all parties were acting'in harmony and for the benefit of the Barstows, for whom much sympathy was felt. All considered that if properly managed and nursed, the property would not only pay its debts, but leave a handsome balance to the Barstows. It was therefore agreed by all, that instead of my bidding up the property so as to protect the $75,000 judgment, after the payment of Mr. Power’s judgment and the arrears of the ground-rent, which I think were due, Mr. Power should become the purchaser at the sheriff’s sale, and should hold the property after its purchase in trust, 1st, to pay his judgment; 2d, to pay my $75,000 judgment; and 3d, to pay the Barstow creditors. Such an agreement was reduced to writing, signed by Mr. Power, and witnessed by Mr. Gummey and Mr. Warriner, on the day of the sale. * * * The paper to which I have referred, as executed by Mr. Power, is Exhibit B. of the bill. I cannot swear that I was present at its execution; or, indeed, that I ever saw it, but I think it very probable. Until the night before last, when, for the first time, I carefully read the answer in this case, and when, for the first time, I saw all the evidence, I had never known that the effect and validity of that instrument depended on any contingency whatsoever, or that it meant anything other than -what was expressed on its face. Had it been so, my course of action would have been very different. * * * I have already said that the averment in the answer that Exhibit B. was not intended by either party as a declaration of trust; that it was not intended to be recorded ; that it was recorded through a mistake; and that it was dependent for its validity upon the purchase of Mr. Eosdick, or any one else, of other property, there or elsewhere, or upon any contingency whatsoever, struck me with the greatest surprise. In all the numerous interviews with all these parties and their counsel, no such suggestion was ever made or intimated. I never heard of it before.”

If the testimony of Mr. Rawle had closed at this point, it would probably, in its connection with the statements he had made of the result of the meeting of creditors in his office, with the terms of the paper in question, and with the voluminous corroborative proofs produced before the master, have been controlling in the decision of the cause. But it is clear from his answers on the cross-examination, that his impressions were derived from his participation in isolated transactions, and that he had not kept himself familiar with the current details of the proceedings in the interval between the meeting in June and the sale in September. In answer to the question whether his interviews and conversations with Mr. Warriner were not confined to the subjects of the American Car Company’s property, and the ground-rents binding this and other property, Mr. Rawle said: “It is impossible for me to say. The interests were very numerous, and more than proportionally complicated, and I cannot discriminate.” He was unable to say positively whether he had ever met Mr. Power before the meeting of the 3d of June 1866; he could not say whether that meeting referred to in his note to Mr. Gummey, was in reference to the Car Company’s property; he could not say who were present on that occasion; and he stated that he should have utterly forgotten that. interview if his memory had not been refreshed by that note. He added: “ The first line of the note is, ‘ we are all sorry,’ &c. Who the ‘ all’ were I cannot now say. Possibly, Mr. Aaron Thompson, who represented a judgment, and probably one of the Barstows. I think it unlikely that there were only Mr. Power and our two selves,” (Mr. Warriner and the witness). In answer to a subsequent question, whether he could now state from recollection that the conversation was on any subject other than the ground-rents, he said: “I cannot answer more particularly than I have already done. I have no recollection of any precise word or sentence, nor even the subject of conversation at that interview. Referring to my note, I see that it says, ‘Mr. Eosdick will be here to-morrow,’ so that, of course, he was not at that interview.” He could not remember when he next saw Mr. Power, nor whether he met him until after the sheriff’s sale in September 1866. He said that to the best of his recollection he saw him on the day when Exhibit B. was executed, but was not certain, and could mention no circumstance other than the general facts he had stated, which induced him to believe he saw Mr. Power that day. He could not remember whether Mr. Power and Mr. Eosdick had called on him together at any time on business, and thought they might have called often, and might never have called at all. In answer to the question, whether he had anything to do with the ground-rent suit brought by Mr. Outerbridge, he said his answer would be a mere matter of inference, connecting the agreement or plan referred to in the postscript of his note with the commencement of the suit ten days afterwards. His recollection, he said, was that of a professional man who remembers results, and sometimes that which led to them, without being able to identify those antecedents. So far as his recollection was distinct, however, he stated that his knowledge of Exhibit B. was not derived purely from hearsay, but from the paper itself. No steps were taken by him to enforce the trust, as he felt that Mr. G-ummey had the matter primarily under his charge. In a later stage of the cross-examination, in answer to the question, “ Can you say that you saw Mr. Power or Mr. Warriner in September 1866, in relation to these matters,” he said, “I can neither affirm nor deny your question, I have no memory whatever on the subject, except a general professional one, which is made up more from inference than direct recollection.”

On the part of the defendants, the whole theory of the plaintiffs 'that the instrument executed on the day of the sheriff’s sale was to be treated as having been made in pursuance of an agreement entered into in the previous June, was contested from the outset. The evidence they gave tended to show that the stipulations the paper contained, were agreed upon at the time of its execution; that Mr. Power and Mr. Fosdick were the only parties to it; that when it was signed no persons were present except Messrs. Power, Fosdick, Grummey and "VVarriner; that the consideration of the agreement for the creation of the contemplated trust was to move from Mr. Fosdick, and that the consideration subsequently failed. If this evidence exhibits the true state of the facts, and the master has found it to be entitled to full credit, it is clear that the plaintiffs cannot hold the defendants liable to account to them by reason of the existence of any such trust as the bill asserts. The plan of action, whatever it may have been, which was settled on the 3d of June, must have been materially modified before the 17th of September 1866. No sales were made on any ground-rent judgments until the autumn of 1868, when the property (embracing both the Barstow and Drayton moieties) was purchased by Mr. Morrill. The sheriff’s sale of 1866 was made on a judgment against Mr. Barstow, which Mr. Power had obtained in the June Term of that year in the District Court.

That Mr. Barstow was active in promoting some arrangements by which, after satisfying his creditors, something could be saved out of this property for himself, and that he hoped, to secure this result through the aid of Mr. Fosdick and Mr. Power, is sufficiently obvious. This appears from the whole tenor of his correspondence, and especially from the terms of his letter to Mr. Rawle, of the 14th of September 1866. But the facts found by the master show that he was not a party to the agreement made on the day of sale, and the evidence indicates that he had no personal knowledge of it. There were obvious reasons why his general creditors in New York would not have been likely to inter: fere. His interest in the property was an undivided moiety, and was encumbered to the extent of'$235,000. Its value, at the time of these proceedings, was purely conjectural. In December 1867, after the partition had been completed, Mr. Rawle wrote to Messrs. Spalding and Richardson, that the whole property had then been recently estimated at $300,000, making the value of the Barstow moiety $150,000. “But,” Mr. Rawle added, “ this estimate is based upon the careful management of the property for probably several years to come. It might be doubtful whether, at a forced sale, it would bring one-sixth of this estimated value. The property has always been unlucky, though it is valuable, and directly opposite the heart of the city, near the Schuylkill.” In this connection, as showing the probable relation of the New York creditors to the transactions by which the title was vested in Mr. Power, a passage in the letter from Messrs. Yose and McDaniel, to Mr. Rawle, dated the 21st of April 1871, is significant. They wrote as follows: “ If this property has really become valuable, and you, after investigation, think money would result from resisting Power and the other people, we might get the parties interested to arouse themselves for a fee.”' The letter from Messrs. Barstow & Pope to Caleb Barstow, written on the 6th of December 1866, affords ground for a legitimate inference that both they and he were in ignorance of the actual arrangement under which the sale had been made in September. It said: “We infer from what you have confidentially communicated to us, that some sort of reciprocal understanding exists between Mr. George E. Power and Mr. W. E. Eosdick. * * * We infer from what you have said as to those two gentlemen being checks on each other, that Mr. Eosdick’s purchase of the American Car Company, was to cover payments he has made, including the satisfying of certain judgments then hanging over the company; also, to pay certain obligations secured by hypothecation of the certificates of the stock of the car company, and then any remaining balance to go towards the payment of the debts of yourself and John Egerton, in such manner as Mr. E. may find advisable. Now, this is probably all very well, but in view of the uncertainties of life, these matters had better be thrown into a safer form. We should, for instance, like to have Mr. Power execute a deed of trust in favor of Mr. Eosdick, as was originally contemplated, declaring the nature of his purchase, and authorizing Mr. Eosdick to act as trustee, and follow out the payment in the order that -was originally contemplated, commencing with Mr. Power’s judgment of $19,000 to $20,000, and so on to the end, and have such writing put on record in Philadelphia, according to law.” It is scarcely credible that such a letter would have been written, if Caleb Barstow, or Barstow & Pope, for whom Mr. Rawle had acted as counsel, had been aware of the existence of the agreement which Mr. Power had executed less than three months before.

No distinct evidence — none that would intelligibly define the rights of any of the parties — was given before the master as to any specific terms agreed upon, or any specific interests to be affected at the meeting on the 8d of June 1866. The view of the plaintiff as to the effect of the agreement then made, could be supported only by affirmative proof that, in pursuance of that agreement, the paper of the 17th of September, was executed by Mr. Power. Such proof has not been made, and the evidence of the defendants, direct and circumstantial, supports the conclusion which the master reached, that the transaction was exclusive of any participation by the general creditors of Mr. Barstow, and independent of any action they had taken.

If the proceedings resulting in the sheriff’s sale were adversary as to all parties except Mr. Eosdick, and the consideration for the agreement which Mr. Power executed emanated solely from him, it is manifest that no duty was created by the agreement towards the general creditors of Mr. Barstow, that can be now enforced. As to them, the instrument was voluntary. It stipulated that, on the happening of certain contingencies, a trust should be declared, and the contingencies did not happen. “ A trust will be executed wherever there is a valuable consideration; but where the settlement is merely voluntary, it is commonly supposed that to attract the jurisdiction of the court, there must be what is called a transmutation of the possession — that is, the legal estate must be put out of the settlor; but, perhaps, upon examination of the authorities, the validity of the trust will be found to resolve itself into the question whether or not the trust was at first perfectly created:” Lewin on Trusts 110. In Ellison v. Ellison, 6 Vesey 662, Lord Eldon said: “ If you want the assistance of the court to constitute you cestui que trust, and the instrument be voluntary, you shall not have that assistance; as, upon a covenant to transfer stock, if it rest in covenant and be purely voluntary, the court will not execute it; but if the party have completely .transferred stock, though it be voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced in this court.” The same rule is applied to imperfect gifts, not testamentary, inter vivos, to imperfect volunteer assignments of debts and other property; to voluntary executory trusts; and to voluntary conveyances: 1 Story’s Eq., sect. 793-6. “Unless the contract has been founded on a valuable or other meritorious consideration, or what is so considered in a court of equity, as the payment of debts, a specific performance will not be decreed. In general, a court of equity will not interfere to carry into effect unexecuted voluntary contracts inter vivos, but will leave the parties to their remedies of law:” Brightly’s Eq., sect. 244; Yard v. Patton, 1 Harris 285; Read v. Robinson, 6 W. & S. 331. An executory contract must have a consideration to support it, without which equity will no more execute it than the law would make the breach of it the subject of compensation: Brightly’s Eq., sect. 244,. citing Kennedy v. Ware, 1 Barr 450; Campbell’s Estate, 7 Barr 100, and Greenlee v. Greenlee, 10 Harris 235.

The remaining question is subsidiary to that which has been discussed. The master has found, as a fact, that no fraud was practised by Mr. Power in the purchase of the property. He made no promise by which any creditor was deceived, misled, or induced either to act or to forbear action. A simple avowal of acquisition for the use of another, whether made cotemporaneously with or subsequently to the fact, will not of itself support an allegation of a trust: Robertson v. Robertson, 9 Watts 32. The later propositions and negotiations between the parties cannot stand in the place of proof of some distinct fact requisite to fix on Mr. Power the responsibilities of a trustee. “An attempt to create and enforce a specific trust,” it was said by Mr. Justice Washington, in Slocum et ux. v. Marshall, 2 Wash. C. C. 397, “from the loose expressions of parties made at different times and on different occasion^, would be inconsistent not only with the spirit and policy of the Statute of Frauds, but with the general rules of evidence.” Owing no duty to Mr. Barstow’s creditors, and, so far as they were concerned, dealing with the property as his own, Mr. Power was subject to no imputation of bad’ faith, and the case before the master was not one requiring that he should be held accountable as a trustee ex maleficio, at the instance and for the benefit of the present plaintiffs.

.The evidence before him justified the master in finding that the conveyances of the Drayton moiety of the land, by Borland and Morrill to Marston, were made in good faith and independently of any ownership, interest or control of Mr. Power; and in finding that the allegation iii the bill that the conveyance from Power to Marston of the 16th of October 1868, was made for fraudulent purposes, was unfounded. Indeed, it is believed that the rulings of the master were essentially accurate throughout his comprehensive and satisfactory report.

Decree affirmed and appeal dismissed, at costs of appellant.


author: Per. Curiam.

text:
    Fordham and Others’ Appeal.
    An owner of ground having erected part of a building, ceased. He sold the ground, all the claims for building having been paid. A judgment was entered against his vendee, who more than six months afterwards commenced again and finished the building. Held, that under the Act of April 28th 1840, sect. 24, the last mechanics’ liens could not be carried back beyond the recommencement of the building.
    March 11th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Susquehanna county: No 151, to January Term 1875.
    In the distribution of the proceeds of the sheriff’s sale of the real estate of H. C. Burgess and Alexander Smith.
    About the 5th of September 1871, George H. Burgess, being the owner of the real estate above mentioned, commenced the erection of a building on it; he dug the cellar, laid the cellar-wall and put on the sills ; this work was done between the above date and the 1st of December; he did nothing more after that time. On the 2d of March 1872, he conveyed the land to H. C. Burgess and A. Smith for $1425; he received $300 of the consideration, and the vendees gave a judgment note to William J. Mulford for $1125, that being the amount due by G. H.' Burgess to Mulford, for labor and materials for the building so far as it had progressed. Judgment was entered on the note the day the deed was delivered; all the claims against the property had been paid at the time of the transactions.
    In October 1872, H. C. Burgess and Smith commenced work on the building, as it had been left by G. H. Burgess, and completed it. Mechanics’ liens were entered against the building for the labor and materials furnished for H. C. Burgess and Smith. The real estate was sold under an execution on Mulford’s judgment, and the proceeds of sale were brought into court for distribution. The mechanics’ lien creditors of II. C. Burgess and Smith claimed that their liens had precedence of Mulford’s judgment, on the ground that the building had been commenced before the judgment was entered.
    The auditor reported that the amount of the mechanics’ liens should be paid out of the fund in court. After exception, the court, Streeter, P. J., set aside the report of the auditor, and awarded the whole fund to Mulford, the judgment-creditor, saying in his opinion:—
    “ Under the Act of 1806 and Act of 1836, this claim of the mechanics could not be resisted. The American Eire Insurance Co. v. Pringle, 2 S. & R. 138; Holdship v. Abercrombie, 9 Watts 52; Pennock v. Hoover, 5 Rawle 291, and other eases, of like import, rule this point. But the law as settled by these cases was changed by the Act of 28th of April 1840, sect. 24, Pamph. L. 474, 1 Br. Purd. 1027, pi. 18. That act is in these words: “ The lien created by the Act entitled an Act relating to the lien of the mechanics and others upon buildings, passed the 16th of June 1836, shall not be construed to extend any greater or other' estate in the ground on which any building may be erected, than that of the person in possession at the time of commencing said building and at whose instance the same is erected.” The draftsman of this act, doubtless contemplated that the person in possession when the building is commenced would be the same person at whose instance the building is erected. But in our case, if we hold, in accordance with Pennock v. Hoover, that the commencement of the building erected by Burgess and Smith goes back to the foundation laid by George II. Burgess, there is some difficulty in construing the act, so as to give force to every part of it.
    “ But we take it, that the Act of 1840 intended to restrict the lien of the mechanics to the estate of the person in possession, at whose instance the building was erected. The Supreme Court have said just this, in the case of Stoner v. Neff, 14 Wright 258. The facts in that case were not precisely like the facts in ornease, and we do not find any case in the books, in which the Act of 1840 has been applied to a case exactly like ours. .Although George H. Burgess laid the foundation of this building it cannot be said that it was erected at his instance. He had ceased to have any interest in the property for ten months before Burgess and Smith commenced work upon the building, against which these claims were filed. The building was erected at the instance of Burgess and Smith, and if we have taken the time idea of the Act of 1840, the mechanics employed by Burgess and Smith acquired a lien, commensurate with the estate held by them.” * * *
    Fordham and other mechanics’ lien creditors appealed to the Supreme Court, and assigned for error the decree awarding the fund in court to Mulford.

      A. 0. Warren and--Little for appellants,
    cited Pennock v. Hoover, 5 Rawle 291; American Fire Ins. Co. v. Pringle, 2 S. & R. 138; Holdship v. Abercrombie, 9 Watts 52; Stevenson v. Stonehill, 5 Wharton 304; Hern v. Hopkins, 13 S. & R. 269.

      W. H. Jessup, for appellee.
    Bickle v. James, 7 Watts 9; O’Conner v. Warner, 4 W. & S. 226 ; Bruner v. Sheik, 9 W. & S. 119; Stoner v. Neff, 14 Wright 258; Jones v. Shawhan, 4 W. & S. 263; Finley’s Appeal, 17 P. F. Smith 453; Church v. Griffith, 9 Barr 117.
   Judgment was entered in the Supreme Court, March 22d 1875,

Per. Curiam.

Burgess, the former owner of the property, commenced a building, but did no more than dig a cellar, lay the foundation, and put on the sills. Here he stopped, and paid off all claims against him for the work done. He then sold and conveyed the property in the following spring to Burgess and Smith, and ceased to have more to do with the property. More than six months afterwards, Burgess and Smith concluded to go on and erect a building on the walls left by the other Burgess, and did so. Under these circumstances, and in view of the operation of the Act of 28th April 1840, the persons engaged in the building thus put up, could not carry back the lien for work and materials beyond the time of the recommencement of the building by Burgess and Smith. There was no identity of parties, estate or contract, and no unity in the subject of the lien, to enable the liens to relate back to the first commencement of the cellar.

Judgment affirmed.