author: Mr. Justice Gordon

text:
    Campbell versus Braden.
    1. In ejectment plaintiff claimed title by virtue of an Orphans' Court sale of the property in dispute for the payment of the debts of O., and a deed in pursuance thereof from the executors of C. The defendant showed that he had entered into possession in 1854 under an alleged parol gift from 0., who was his father, who was then unembarrassed and had remained in uninterrupted possession for more than twenty-one years from his father’s death. The court directed a verdict for plaintiff on the ground that the evidence of defendant was insufficient to take the case out of the Statute of Frauds: Held, that this was error; that even though the evidence of the parol gift was insufficient to establish a good title, the evidence of adverse possession should have carried the case to the jury. Even as to the gift there was evidence enough to go to the jury exceptas explanatory of how the defendant went into possession.
    2. Per Gordon, J. — The real question is not so much what was intended by the donor, as what the donee’s understanding was, what lie claimed and did. Did he consider the gift absolute, and under that idea did -he hold adversely to his father for the period of twenty-one years.
    November 21st 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey and Green, JJ. Sterrett, J., absent.
    Error to the Court of Common Pleas of Grreene county: Of October and November Term 1879, No. 61.
    Ejectment by Daniel W. Braden against Benjamin E. Campbell to- recover a house and lot in Waynesburg, Greene county, being one-half of lot N0..M6, in the original plan of said town. The defendant pleaded- not guilty. Both parties claimed title under Benjamin Campbell, deceased, the father of defendant. At the trial, before Willson, P. J., the plaintiff showed title by his purchase of the premises in question at an Orphans’ Court sale, for the payment of debts, which was duly confirmed by the court, and'a deed to plaintiff from the executors of decedent in pursuance thereof.
    The defendant set up a parol gift from his father in 1853, by virtue of which defendant had .entered into possession in 1854, and had by himself or through his tenants remained in uninterrupted possession thereafter. The brother of defendant and other witnesses in effect testified that Benjamin Campbell, the father, had purchased the entire lot, No. 146, on the town plan, in 1848, with the intention of giving it to his two sons, both of whom had been recently married, and with a view to building a house for each of them thereon. The house on the lot in dispute was built partly at the expense of the father and partly of defendant. At that time the father was worth about $20,000 or $30,000, but in 1876 became embarrassed, and died in August of that year leaving the indebtedness for which the Orphans’ Court sale was made. "No deed was executed by the father to either of the sons at the time of the gift, and the other brother, R. K. Campbell, testified that the arrangement was that the father would make the deeds when they were wanted, and that witness had subsequently sold his lot and received the purchase-money his father and mother executing a deed to the purchaser. The property was assessed to the father down to 1852, and to defendant after that date. The taxes w-ere generally paid by defendant or by the father and charged to defendant.
    The following point was presented by plaintiff, which the court affirmed. Taking into consideration the whole of the evidence introduced by defendant, and the proper inference deducible from it, the defendant has failed to establish such a gift as takes his case out of the Statute of Frauds and Perjuries.
    Verdict for plaintiff, and after judgment thereon defendant took this writ and alleged that the court erred in affirming the above point.
    Downey, Purman and Black, for plaintiff in error.
    This is not a question as to whether defendant has made out a case that would entitle him to a decree of specific performance, but whether he has shown enough to prevent the disturbance of his possession by the legal title — a possession taken under a parol gift and indisputably held for over twenty-one years. In affirming the plaintiff’s point the court necessarily admitted the competency and credibility of all the testimony on behalf of the defendant.
    It has been uniformly held from Syler v. Eckhart, 1 Binn. 378, to Sower’s Ad’mrs. v. Weaver, 8 Norris 262, that there may be a valid parol gift of real estate from a parent to a child properly executed by possession and improvements notwithstanding the Statute of Frauds and Perjuries. See also, Aitkin v. Young, 2 Jones 15; Reed v. Reed, Id. 117; Hugus v. Walker, Id. 173; Moore v. Small, 7 Harris 468. It may be that the courts have sought to restrain rather than enlarge the application of the rule, yet all agree that in a proper case such equitable title will prevail; and, when such a case is presented, it is just as much the duty of the court to submit the facts to the jury as it would be to withhold them when such facts are manifestly insufficient, and in this case we contend they were amply sufficient to be submitted.

      Buchanan, Wiley & Walton, for defendant in error.
    To establish a title by gift the evidence must be clear and positive not only of the gift but of the acceptance and possession taken thereunder. The evidence of defendant was not of this character. (See preceding case of Ewing v. Ewing, ante, p. 381.—Rep.)
   Mr. Justice Gordon

delivered the opinion of the court, January 5th 1880.

It maybe conceded that the parol gift to Benjamin E. Campbell, the defendant below, by his father, Benjamin Campbell, was neither sufficiently definite in its terms, nor sufficiently executed, to vest in him a good title to the premises in dispute, but it must be remembered that, in this state, twenty-one years adverse and uninterrupted possession does much to cure infirm titles. Such possession is, indeed, without more, title of itself.

If the defendant’s testimony is to be credited, he entered into the possession of the house and lot in dispute some time in the spring or early part of the summer of 1854, claiming the property under a parol gift from his father; he finished the house, partially erected for him by his father, and 'has since that time, without interruption, occupied and claimed the premises as absolute owner, unchallenged by the' donor or any one else. Now Benjamin Campbell died in 1876, something over twenty-one years after he had put his son into the possession of this property, and that he did not interfere in -any manner with his son’s claim of title, and that he did not disturb his possession during all this time, is, of itself, evidence of the- absolute character of his gift. But, as we have before intimated, the gift of itself is of little account, though, even as to that, there was evidence enough to have gone to the jury, except as explanatory of how the defendant went into possession, that his claim was in his own right, and not as a mere tenant at will under his father. Eor the real question is not so much what was intended by the donor, as what the donee’s .understanding was; what he claimed and did. Did he consider the gift absolute, and, under that idea, did he hold adversely to his father for the period of twenty-one years-? . If he did, that is a full answer to, and an end of this question of title. In that event the defendant’s right is good as against any and every claimant whatever.

Judgment reversed, and a venire facías de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Greer versus The Chartiers Railway Company.
    (r. was active in soliciting subscriptions for the building of a railroad. He took a book from the agent of the company, subscribed therein himself and persuaded others to subscribe, and kept the book about six months. Because of some difference with the agent of the company about the payment for his services he cut his name out of the book and returned it to the company. In a suit by the latter for the amount of his subscription, Held, that he had perfected a contract with the company and he was just as much bound as if he had left his name in the book.
    November 20th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas of Washington county: Of October and November Term 1879, No. 88.
    Assumpsit by the Chartiers Railway Company against Wesley Greer, to recover the amount of a subscription of defendant to the stock of the plaintiff company.
    The material facts are stated in the opinion of this court.
    At the trial, before Stowe, P. J. (of Court of Common Pleas, No. 2, of Allegheny county), the defendant submitted the following point, which the court refused. If the jury should find that the defendant subscribed his name for forty shares of the plaintiff’s stock, such subscription was revocable at any time before the defendant permitted the book containing his- subscription to go into the hands of the plaintiff company or its agent, and that if the defendant erased his subscription before he returned the book containing it to the company or its agent, he is not liable, and the verdict should be for the defendant. This refusal constituted the only assignment of error.
    In the general charge, the court, inter alia, said:—
    “ The question in this case is the right of the plaintiff to recover upon the alleged subscription of the defendant, Wesley Greer. As to the main matters upon which the question of law, connected with that part of the case, arises, there is no dispute. There is no controversy as to the fact that J. H. Ewing represents the plaintiff ; no controversy as to the fact that he had this subscription book which is offered in evidence, and from which the name of Wesley Greer has been cut out; that he gave that book to Wesley Greer for the purpose of getting subscribers to it; that Greer not only subscribed himself, but got a number of other subscribers; and that subsequently (whether it had previously been seen or not by the agent of the company, Ewing, is a matter perhaps in dispute), but after a time, at all events, the book was given by the defendant to Ewing, the agent of the plaintiff; and that the name of Wesley Greer was cut from the paper where it had previously been. That is the substance of the testimony, so far as bears necessarily upon this question, by Ewing; and there is no controversy as to the fact set up on the part of Greer. Pie admits all these facts ; he admits that he put his name to the paper, and admits that be cut it out. The first question, and one of very grave importance, and which I am very glad to say my opinion is not to be conclusive upon except as the case stands here, is, does such a state of facts bind the defendant ? Was Greer at liberty to erase or cut out the name as he did, and thereby release himself from any obligation to the plaintiff? If he was, of course the plaintiff would have no claim; if he was not, Greer would be bound to pay just as if his name had been allowed to remain there. As to this question we think the law is with the plaintiff; that Greer is just as much bound to pay, under the testimony in this case, uncontroverted by him, in fact, substantially admitted by him, as regards this question, as though it was upon that book in connection with other people whose names are upon it. That being the case, as a matter of law, the conclusion becomes absolute and imperative that the plaintiff is entitled to recover the amount of that subscription, forty shares, and under the admissions of the defendant in the case with reference to notice, for the penalty of six per cent., which is attached under the Act of Assembly.”
    Verdict for plaintiff for $1871.20, and after judgment thereon, defendant took this writ.

      d. F. Patterson, Boyd Crumrine and Wesley Greer, Jr., for plaintiff in error.
    A subscription for shares of the capital stock of a railroad company is subject to the incidents and governed by the rules which affect ordinary contracts: P. & C. Railroad Co. v. Graham, 12 Casey 77 ; Same v. Byers, 8 Id. 22. Such contract must be in writing: Bucher v. D. & M. Railroad Co., 26 P. F. Smith 306 ; P. & S. Railroad Co. v. Gazzam, 8 Casey 340. Like all writings, it must be delivered by the party to be bound to the party who is to receive the benefit, with a common understanding between them as to its binding effect, before it becomes a completed contract. A writing, before delivery, is simply the work of the writer, and so long as it remains in his custody or control, it may be amended, altered or totally destroyed. So long as the acceptance, signed or unsigned, should remain in the hands or under the control of Greer, the contract would be incomplete, and either party would have the right to withdraw altogether from the negotiation. Greer’s possession of the paper could in no sense be said to be the possession of the company or of Ewing; and the company’s property in the piece of paper would not be so sacred as to deprive Greer of the right to erase or cut off his signature from it, so long as the custody or control of it remained with him. Such is clearly the general rule. Was Greer’s possession of the book in legal effect the possession of Ewing or of the company, in such sense as to take the transaction out of the general rule ? We confidently maintain .that it was not. Nor did Gr.eer’s signature create any such relation between him and the other subscribers ■ on the same book as would restrain or destroy his right to revoke his subscription. Greer made no contract with the other subscribers, nor did they make any contract with him, to pay so much to an organization when formed ; but each subscriber entered into an independent contract with an existing organization.
    Counsel for defendant in error contend that when Greer wrote his acceptance on the offer itself, that made a contract. The authorities cited do not support the position. They are cases arising upon contracts by mail; but not one of them rules that the contract is complete so long as the acceptance remains in the custody and control of the acceptor. It must be put in the mail; it must leave the custody of the party to be bound by it. It need not reach the offerer, because, by constituting the mail his agent to convey the offer, he thereby constituted it his agent to receive the acceptance. We refer to “ Contracts by Letter,” in the American Law Review, April 1873, where the cases are fully reviewed.

      Hampton & Dalzell and A. M. Todd, for defendants in error.—
    There was nothing left to be done but a delivery of the thing sold, and that was not essential to the contract. There was a contract binding the parties from the moment the offer was accepted : Adams et al. v. Lindsell et al., 1 B. & Ald. 681.
    In the case of Duncan v. Topharn, 8 C. B. 225, the contract is said to be closed by mailing the letter of acceptance, although it never reaches its destination. If merely assenting to an offer makes a contract when offer and assent are witnessed by the letters of the respective parties, how much stronger the case in hand ?
    Furthermore, the subscription made was in effect a declaration by Greer to every man to whom he presented the book for signature that he had undertaken to pay so much to the building of the railroad. He is in the exact position of the defendant in Cromford & High Peak Railway v. Lacey, 3 You. & Jer. 80, cited in Graff v. P. & S. Railroad Co., 7 Casey 497. See also Miller v. Hanover Junction & T. Railroad Co., 6 Norris 99. When once subscribed, the consent could not be recalled, nor the signature erased even with Greer’s consent. Were all the signers bound because of Greer’s possession of the book, and he not bound himself?
   Mr. Justice Trunkey

delivered the opinion of the court, January 3d 1881.

A number of persons, including Wesley Greer, proposed to subscribe for capital stock of the Chartiers Valley Railway Company upon certain conditions, which proposition was offered to and refused by the Chartiers Railway Company. Thereupon the Chartiers Railway Company by resolution, reciting that it had received from the Pennsylvania. Railroad Company such assurance of pecuniary aid as would, with proper effort on the part of the people of Allegheny and Washington counties, insure the early completion of its railroad, offered for sale five thousand shares of its capital stock, and appointed J. H. Ewing its agent in Washington county to receive subscriptions. Books containing said recital and resolution and terms of subscription were furnished by said company to said Ewing who procured the assistance of several persons in obtaining subscriptions, among them Wesley Greer. Erom the testimony of Greer it appears that he had been active in soliciting the former subscriptions, the object being to secure the building of the road; that he was active in soliciting these subscriptions; that he took the book, subscribed himself, persuaded others to subscribe, and kept the book about six months; and that he cut out his name before he returned the book, because of a difference respecting payment for his services between himself and Ewing. The single assignment' of error is to the court’s refusal to charge that the defendant’s subscription was revocable at any time before he returned the book to the company or its agent, and that if he returned it with his subscription erased he is not liable. If an agreement was made between the company and Greer there was no error.

“A contract includes a concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such promise.” The company held out the promise, never retracted it, all the time has been ready and willing to perform it, and the only point in dispute is whether Greer actually accepted it. This point is not settled by conceding that Greer, at the time he subscribed, and before he had arisen from his seat or closed the book, could have erased his name and left the proposition as if he had not signed and stipulated the number of shares. He did nothing of the kind; but his subscription remained on the book for months. Until acceptance the party making the offer may withdraw it, after acceptance the obligation is mutual and both parties are bound. This is the governing principle where the contract is made by letter. An offer by letter is a continuing one until the letter be received and for a reasonable time thereafter, during which the party to whom it is addressed may accept the offer, unless he shall have received notice of the withdrawal of the offer. If the offer be-accepted before notice of its withdrawal the bargain is struck — there is an agreement founded on mutual assent. This assent is at the moment the letter of acceptance is put in the mail: Adams v. Lindsell, 1 B. & Ald. 681; 1 Pars. on Con. 484; Chitty on Con. *14. The Ohartiers Railway Company made a continuing offer which became an agreement with each acceptant for the number of shares for which he subscribed. At the time a person signed his name as a continuance of his act he might have erased it, as one who had written an acceptance of an offer by letter, before mailing the same might destroy it. But if the subscriber returned the book to the company’s agent he could not afterwards withdraw his subscription, for he had completed, the agreement. Greer was acting' as agent in soliciting subscriptions, no matter whether for pay or not, and by procuring subscriptions under his owm name he declared his acceptance and admitted his agreement for the stipulated number of shares. The book was not his — he had no right to its possession but for a specific use. In that use he exhibited the evidence of his agreement with the company to every subsequent contracting party. Had the book been accidentally destroyed there was ample evidence of the contents of the written contract, upon which he could have held the company to performance ; or, if it refused, to payment of damages. Clearly the company was bound to him the same as to any other subscriber, and so was he to the company. While he retained the book the written contract was in his hands — its .validity did not depend on the conduct of the depositary — and its unauthorized mutilation did not annul it.

The learned judge of the Common Pleas was of opinion that, upon the facts admitted by the defendant, he had perfected a contract with the plaintiff, and was just as much bound to pay as though he had left his name on the book. We are of same opinion.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Hope, Administrator et al., versus Marshall, Administrator.
    Where the debts of a decedent are not secured by mortgage or judgment in the lifetime of the debtor they continue a lien on his lands in the hands of his widow and heirs only for ten years, unless an action therefor has been commenced against them.
    November 20th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1880, No. 279.
    Scire facias by Joseph R. Marshall, administrator of Robert F. Fuller, deceased, against William H. Hope, administrator of E. G. Roddy, deceased; Lydia J. Roddy, widow of said E. G. Roddy, and Mary E., Ewing B., Josephine S., Lydia G. and Martha G. Roddy, children of E. G. Roddy, deceased.
    Edward G. Roddy died on the 12th of June 1867, leaving surviving him the defendants, widow and children, and indebted to Robert F. Fuller, in about the sum of $500. Letters of administration were granted on his estate on the 15th of June 1867. Puller brought suit on his claim on the 25th of January 1871. On the 15th of May 1871, an award of arbitrators was filed, finding for the plaintiff $503.32. Prom this an appeal was taken. January 30th 1873, the cause was tried by a jury, and a verdict rendered for the sum of $704.36, wdiich, on a motion for a new trial, was reduced to $573.50, and on April 4th 1873, a judgment was entered on the verdict. On the 26th of December 1877, a scire facias issued to bring in the widow and heirs, which was tried on the 9th of March 1880, and a special verdict was rendered as follows: “Now, March 9th 1880, the jury find for the plaintiff the sum of $818.19, and the jury find specially that E. G. Roddy, defendant’s intestate, died on the 12th of June 1867; that an award of arbitrators in the original case was filed May 15th 1871; that judgment was entered on the verdict April 4th Í873, and the sci. fa. in present case was issued on December 26th 1877. „ If the court shall be of opinion that the debt and judgment in this case is no lien as against the interest of the widow and heirs of E. G. Roddy, deceased, in the real estate of the decedent, because more than ten years had elapsed from the death of said E. G. Roddy before the scire facias to bring in the widow and heirs was issued, then the court to enter judgment in favor of the widow and heirs named as defendants, so that the finding will be against the administrator alone, and not against the widow and heirs, notwithstanding the verdict.”
    On this verdict the court, Willson, P. J., subsequently directed judgment to be entered against all the defendants, and filed the following opinion and order :
    “ Under the facts found by the jury, we are of the opinion that the sci. fa. in this case was issued in time to continue the lien of the plaintiff's debt on the real estate of the deceased debtor as against the widow and the heirs. The question reserved in the verdict is not altogether free .from difficulty in view of the apparently different opinions expressed in a number of cases arising under the Acts of 1797 and 1834, relating to-the lien of decedent’s debts. But a careful examination of these cases will show, we think, that the difference in the views expressed are rather apparent than real. While in a number of cases it is explicitly declared that the widow and heirs must be brought into court within ten years from the death of the debtor in order to continue the creditors’ lien against the real estate of the deceased debtor, still, we understand those cases to refer to the lien of debts for which suits have been commenced and judgments obtained within five years after the death of the debtor. But we are not aware of any case like the present in which it has been decided that where the suit is commenced within five years, but judgment not obtained until after the expiration of that period, the lien of said judgment was to be counted from the expiration of the period of five years after the death of the debtor instead of from the date of its entry, as is done in cases of judgment inter vivos. On the contrary, in several cases, it has been held that the lien of the judgment would begin to run from the date of its entry, although in none of these cases does it appear that the question now before the court was involved in the decision rendered, and, therefore, we must regard what was said in reference to it, rather as the views of the judge who delivered the opinion, than as a decision of the Supreme Court. In Duncan v. Clark, 7 Watts 217, Justice Kennedy, in speaking of the Act of 1797, says: ‘ This lien will continue seven years without suit or judgment from the death of the debtor; and if judgment be had for it, at any time within that period, then the lien, by means thereof, will be extended five 'years beyond the seven years; making twelve in the whole; but, in order to continue the lien beyond this period it is requisite that a scire facias should be sued out for this purpose before t'he expiration thereof, otherwise the lien of the debt upon the real estate will cease at the end of the twelve years from the death of the debtor. When, however, the suit is commenced within the seven years, but judgment cannot be had in it until afterwards, the pending of the suit would seem to be sufficient to keep the lien alive ; and the first term of five years would not commence until the rendition of the judgment; so that a revival of the judgment within five years after its date, would preserve and continue the original lien of the debt for another period of five years.’ So, in Bredin v. Agnew, 8 Barr 233, it is said by Judge Bell, that, ‘under the equitable application of a rule borrowed from the Act of 1798, a scire facias must be sued out within five years from the expiration of the statutory period, or, when this is overrun before judgment recovered within five years from its rendition.’' In Benner v. Phillips, 9 W. & S. 13, Judge Rogers says: ‘As has been already decided, commencing suit against the administrator without naming the heirs, and obtaining judgment, does not release the lien. It is competent for the creditor, notwithstanding, afterwards to proceed against the heirs ; and when this is done within five years from the rendition of judgment against the administrator, we think, in analogy to the twenty-fourth section of the Act of 1834, the lien remains.’ See also, Moore v. Skelton, 2 Harris 359.
    “ We have been referred by counsel for the widow and heirs to McMurray’s Admr’s v. Hopper, 7 Wright 468; Soles v.. Hickman, 5 Casey 342, and Corrigan’s Estate, 1 Norris 495, as authorities, showing that the widow and heirs must be brought into court within ten years after the debtor’s death, or otherwise they will take the lands unencumbered by debts not of record. It is true, that expressions may be found in these cases rather sustaining the position taken by defendant’s counsel, but in none of them was the question now before us involved and passed upon. In McMurray’s Admr’s v. Hopper, supra, a restricted judgment had been obtained against the debtor in his lifetime, and the question decided by the Supreme Court was in reference to the effect of a revival of that judgment against the administrator aloné, on land of the decedent, not bound by the original judgment. In Soles v. Hickman, supra, the question was whether the alienee of a devisee was entitled to notice before his land could be held liable for the decedent’s debt. And in Corrigan’s Estate, supra, suit was commenced and a judgment obtained within five years after the expiration of that period, a scire facias was issued to bring in the widow and heirs, but before judgment was obtained upon the scire facias the decedent’s lands were sold by order of the Orphans’ Court, and it was held by the Supreme Court, that the judgment-creditor was entitled to have his judgment paid out of the proceeds of that sale.
    “ We have also examined the case of Maus v. Hummel et al., 1 Jones 228, and the cases therein referred to by counsel, and also some cited in the opinion of the court. In speaking of the Act of 1797, Judge Coulter says : ‘ The construction given to the words ‘duly prosecuted,’ is, that no matter at what-time within the seven years the suit was brought, it continued the lien for five years after the termination of the seven, although judgment was not obtained within the seven. The lien, therefore, of the debt in this case extended twelve years from the time of Jackson’s death, and no longer; and the land in dispute, not having been brought into execution, within that period, was beyond its power, and the estate had vested in the heir absolutely at the expiration of the twelve years.’ It seems difficult to reconcile the language of Judge Coulter with the opinions expressed in Duncan v. Clark, supra, and the other cases to which we have before referred, and also with Paine v. Craft, 7 W. & S. 458, where the death took place in 1813, and the sale of the real estate in 1833.
    “ On the whole we are of the opinion under the facts ascertained by the jury, that the scire facias to bring in the widow and heirs, was sued out in time to continue the lien of plaintiff’s debt against the decedent’s real estate, and that, therefore, the plaintiff is entitled to have judgment entered on. the verdict against all of the defendants.
    “ In the view that we have taken of the law governing cases like the present, we are sustained by Price on Liens and Limitations 272, and by Scott on Intestate Law 194.
    “ The question involved is presented in a very plain shape for review, and we think it is very important that all doubts in regard to it should be removed by obtaining thereon a decision of the Supreme Court.
    “ And now, August 31st 1880, plaintiff’s motion for judgment granted, and it is ordered and directed that judgment on the verdict be entered against all the defendants on payment of jury fee.” ■'

      The defendants took this writ and alleged that the court erred in directing judgment to be entered against the widow and heirs.
    D. Kaine, for plaintiffs in error.
    Although there would seem to be some conflict in the numerous decisions under the Act of February 24th 1834, Purd. Dig. 422, pi. 88, and its predecessor,' the Act of April 4th 1797, 3 Sm. Laws 297, yet we think they agree, under a careful reading, that the lien of the debts of a decedent is gone as to his widow and heirs unless suit be brought against them within ten years from the time of his death. The later cases-run in the same line, only that in cases where the death has taken place since the Act of 1834 went into effect — the first period is five years instead of seven, and the entire period ten instead of twelve years, and the widow and heirs or devisees must be made parties : Maus v. Hummel, 1 Jones 228; Corrigan’s Estate, 1 Norris 495 ; Swartz’s Estate, 2 Harris 42 ; Kittera’s Estate, 5 Id. 416 ; Sanders v. Wagonseller, 7 Id. 248.

      E. Campbell, for defendant in error.
   Mr. Justice Mercur

delivered the opinion of the court, January 3d 1881.

This contention is as to the length of time after the decease of a debtor his debts shall continue a lien on his lands in the hands of his widow and heirs,, without an action therefor having been commenced against them,when the debts were not secured by mortgage or judgment in the lifetime of the debtor.

Under the Act of 4th April 1797 they continued a lien for seven years after the decease of the debtor, although no action was commenced therefor nor any copy of the claim filed in the office of the prothonotary of the-county where the land was situated. If within the seven years judgment was obtained or suit commenced, and duly prosecuted to judgment, the lien by virtue thereof was extended five years beyond the seven, making twelve years in all from the death of the decedent, without any notice to the widow and heirs: Duncan v. Clark, 7 Watts 217. It mattered not at what period in the seven years the judgment was obtained that time continued to run for the full seven years. At its expiration the lien, by virtue of the judgment, went into effect, and so continued for five years. The longest period of time that the lien could continue after the death of the decedent, without proceedings against the widow and heirs was twelve years: Steel v. Henry, 9 Watts 523 ; Payne v. Craft, 7 W. & S. 458. The only change made by the Act of 24th February 1834, Purd. Dig. 422, is to reduce the first period of seven years to five years, thus making the whole period ten years when it was twelve before: Corrigan’s Estate, 1 Norris 495. This special verdict finds that Edward G. Roddy died on the 12th of June 1867; an award was obtained against his administrators on the 15th May 1871. On an appeal therefrom judgment on the verdict was entered the 4th April 1873. The scire facias thereon against the administrators, widow and heirs, which gives rise to the present contention, issued on the 26th December 1877. This was the first proceeding instituted against the widow and heirs with a view of charging a lien on the lands which they had acquired from the decedent. It issued more than ten years after the death of the'decedent debtor, and the lien of the debt as against their lands was barred- by the lapse of time. The learned judge therefore erred in entering judgment against all the plaintiffs in error. It should have been entered against Hope, the administrator, only ; therefore

Judgment reversed as to the widow and heirs of Edward G. Roddy, deceased, and affirmed as to William H. Hope, administrator of said decedent.


author: Mr. Justice Green

text:
    Supervisors of Sadsbury Twp. versus Dennis et al.
    An Act of Assembty cannot impose upon a county a liability which had no previous existence, but it can provide a remedy lor the enforcement of a pre-existing liability.
    November 22d 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Stbrrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 107.
    Assumpsit by William Dennis and others against the supervisors of Sadsbury township to recover certain moneys alleged to have been paid out on account of the township as bounties to volunteers.
    The material facts will be found stated in the opinion of this court.
    G. W. Hecker and J. B. Brawley, for plaintiffs in error.
    There was ho evidence of any liability on the part of Sadsbury township to pay the plaintiffs anything for money paid or borrowed by them for bounty purposes, except that which was imposed upon the township by the Act of April 9th 1872. This is not an Act of Assembly providing a remedy where there is a right or obligation. It, in truth, provides no additional-or new remedy, but simply imposes a liability in direct terms, and then provides that ordinary suits may be brought to enforce the liability thus imposed. It is not an Act of Assembly authorizing township authorities to pay, but it is an act requiring them to pay where no legal debt or duty existed. It is an attempt cm the part of the legislature to exercise judicial power by decreeing the rights and duties of private parties and is therefore unconstitutional and void: Tyson et al. v. School Directors of Halifax Township, 1 P. F. Smith 16 ; Sharpless v. Mayor of Philadelphia, 9 Harris 168; Grim v. Weissenberg School District, 7 P. F. Smith 437; Menges v. Dentler, 9 Casey 495. This law also imposes an unlimited liability, while by’the original act the liability of the township could not exceed three hundred dollars bounty per man. When the act was passed the right of action was also barred by limitation. It also imposed upon the township the payment of a rate of interest in excess of the legal rate.
    The proceedings for the settlement of the supervisors’ accounts were a final adjudication of the rights of the plaintiffs to recover anything from the defendants for money advanced for them for bounty purposes, and a bar to the recovery in this case.

      Richmond & Sons, for defendants in error.
    The Act of 1872 impairs the right of no man — imposes no new obligation. It simply recognises an existing liability or duty on the part of the township to repay to our clients the moneys they had advanced for the benefit of its citizens, in the hour of their great emergency, and seeks to facilitate the remedy for enforcing it.
    As to the Statute of Limitations, the question does not arise here, as the township, through its proper authorities, have issued duplicates and collected bounty tax, in liquidation of its indebtedness to our clients each year, up to, and including 1871. Suit was brought to recover the balance unpaid to January Term 1873.
    Under the Act of April 11th 1866, Pamph. L. 778, the supervisors were cited in the summer of 1867 to appear before the auditors for settlement of their bounty money account. They appeared, and the auditors allowed only for seventeen men, thus showing a balance against the supervisors of several thousand dollars. From this finding, the supervisors took an appeal. The court, January 23d 1869, appointed a commissioner “to examine accounts, take testimony, report the facts, and strike a balance between the parties in the matter of appeal by the supervisors from the report of the auditors of Sadsbury township.” The parties, on notice, appeared with their papers and witnesses before the commissioner, who, after careful examination, madé his report, which was filed October 8th 1869, and confirmed by the court April 28th 1870. The commissioner reported the facts, as he could gather them from the testimony produced before him, but struck no balance between the parties.
   Mr. Justice Green

delivered the opinion of the court, January 3d 1881.

By the sixth section of the Act of March 25th 1864 the commissioners of every county in the Commonwealth were “authorized to borrow such sum or sums of money as may be sufficient to pay to each non-commissioned officer and private soldier who volunteered from such county,” and entered the military service of the United States after October 17th 1863, or who might, after the passage of the act, enter said service, a sum not exceeding $300. By a proviso to said section it was enacted that in case the commissioners neglected or refused to raise the necessary bounties in townships, wards or boroughs the “ said township, ward or borough by their authorities aforesaid shall have power to proceed and raise bounties as fully and as effectually as if done by the county authorities.” By the seventh section of the act the county commissioners, or supervisors of any township, were authorized for the purpose of carrying out the provisions of the act, to borrow money and issue bonds or certificates of indebtedness in the name of the county or township, and to levy and assess taxes for the payment of the same.

By this act an undoubted legal liability was imposed upon the county, borough or township, whose proper officers borrowed money to pay bounties, to repay the sums thus borrowed, the limit of the liability being $300 for each volunteer. Some doubts having arisen as to the authority of township, borough and ward authorities to make or contract loans for payment of bounties to volunteers or to levy and collect taxes for the payment of such loans, under the Act of March 25th 1864, the legislature, on August 25th 1864, passed a supplemental act, declaring and defining more precisely the powers and authorities of those officers. The first section provides that in all cases where the county commissioners neglected or refused to raise the money to pay the bounties, “ the respective cities, townships, wards and boroughs of such county, by their authorities or board of election officers in said' act named, shall have full power to contract loans, to pay bounties to volunteers, and to levy taxes for the repayment of such loans, as fully to all intents and purposes as the said county commissioners might or could have done under the provisions of said act.” The same section made legal and valid “all proceedings taken or had by any township officers or authorities, or board of election officers as in said act named, for the purpose of contracting loans and all loans contracted by them, to pay bounties to volunteers, and all taxes levied by them to-repay such loans.”

The authority conferred by these acts was very broad. It was, to “borrow money,” to “contract loans,” not in any particular mode, but in any mode, for the purpose of paying bounties, and further, to levy and assess taxes “ to repay such loans.” It is true that a power was given to issue bonds for the payment of the money thus borrowed, but there was no prohibition against raising money without the issue of bonds. It is quite clear that while the issue of bonds was a lawful mode of raising the money authorized by the act to be borrowed, the creation of an indebtedness in any other form was equally within the spirit and the letter of the acts. In either event the liability of the county, city, borough or township to repay the money borrowed was established in unmistakable language.

In the present case, the supervisors of the township of Sadsbury undertook tó raise $12,000 with which to pay $800 each to forty men. They tried to sell township bonds,.but could not do it. Nobody would buy them. They then borrowed the money, as it was required, from certain banks. It was borrowed and it was used to pay bounties to volunteers. It was not borrowed for any purpose of their own. But in order to induce the banks to lend the money, they were obliged to pledge their personal credit. They gave their own notes to the banks for the money. This was a mode of borrowing, but it was a borrowing for the township, and the township was debtor for the money. Moreover, the township fully recog-* -nised and affirmed its liability by actually assessing and levying taxes'to pay off the moneys- borrowed. This was done during several successive years. In the meanwhile, the notes originally given by the supervisors were reduced and then consolidated into one, which was in turn reduced by payments from taxes levied until the amount of the last nóte given was but $502.25. This was on May 17th 1871. It is true this was a note given by the plaintiffs, who were the supervisors who had become liable personally for the debt, but it was the debt of the township created in pursuance of lawful authority. The township having refused to pay this small balance, the liability of the makers of the last note became fixed. In this condition of things an act ivas passed on April 9th 1872, which provided that where any township or district officers or authorities in the county of Crawford heretofore advanced money to secure the quota of soldiers for the township or district during the late civil war, or borrowed money for said purpose, for the payment of which they are in any wise personally responsible, the township or district shall be liable therefor to the full extent of the money advanced or borrowed, and the interest agreed to be paid therefor; and -if the same is not paid within ninety days after the passage of this act, suit may be brought by bill or otherwise in the name of any and all persons so advancing or borrowing money, or their legal representatives, against such township,” &c. This act creates a liability and gives a remedy. So far as it creates a liability which had no previous existence, we should regard it as inoperative under decisions heretofore made. But so far as it merely provides a remedy for the enforcement of a pre-existing liability, we do not consider it in conflict with any prohibitions of the Constitution. Prior to its enactment, the appropriate remedy would probably have been a petition for a mandamus to compel the township authorities to levy a tax to pay to the bank or person to whom the debt was owing, the amount of principal and interest of,said debt. Since the passage of the act, a remedy is given by an action in the name of the persons or their legal representatives, who originally borrowed the money. The debt to be paid is the same in either case, and it is a debt for which the township was clearly liable without the aid of the Act of 1872.

We are of opinion that the learned judge of the court below was correct in the view which he took of the subject, and we do not perceive any error in the rulings of the court upon the other questions which arose on the trial. The various matters of fact involved were fairly left to the jury, and were found by them in favor of the plaintiffs. The proceedings for the settlement of the supervisor’s accounts do not even purport to be a determination of the matter in controversy here. They resulted in a commissioner’s report in 1869 upon the question of the number of men actually raised, and the amount to which they were entitled ; and the commissioner further reported as -to the amount raised by taxation and the amount borrowed from the banks. He did not affirmatively decide that only 39 men were raised. He reported that there was evidence that 40 men were raised, and other evidence that there were but 39 — that if there were but 39 the sum paid for them would amount at $300 per man to $11,700, which would account for all the money raised but $761.46, which could easily be accounted for as expended in defraying various charges. He struck no balance between the parties, and did not pretend to determine how much, if any, of the money borrowed to pay the bounties was still due and unpaid, for which the plaintiffs remained liable. It is obvious that the mere accumulating interest on a sum so large as $12,000, which was only paid off in annual payments, would, in the course of a few years, constitute a considerable item. Of all this the commissioner made no inquiry and no adjudication. Yet the liability remained, and would necessarily remain until it was entirely extinguished. In point of fact the township continued to raise money by taxation to pay off the money owing in the banks long after the proceeding to settle the accounts of the supervisors had been commenced. Eor the purposes of this case it is sufficient to know that the matter in controversy in the present action was neither heard nor determined by the commissioner, to whom the accounts were referred, and, therefore, his report is no bar to this action. If it is alleged that in point of fact these plaintiffs did receive money enough to extinguish the township’s debt for which they were liable, evidence to that effect should have been given on the trial of this case, and it would have been entitled to, and doubtless would have received, full consideration. ' Indeed, this very subject-matter was committed by the court to the jury thus: “ The case is brought down to this : Did these plaintiffs in obedience to the Act of Assembly of 1864, officially provide for the procuration of bounties to be paid to volunteers ? How much have they received ? How much have they become indebted for ? How much have they paid out ? If they have paid out more than they received from the township by public taxation, they are entitled to recover in this suit.” We see no error in this nor in the other comments of the court upon the questions at issue or the testimony relating to them. The jury have found by their verdict that the plaintiffs did pay out for the township a greater amount than they received, and that finding is conclusive.

Judgment affirmed.


author: Per Curiam.

text:
    Sampson versus Graham.
    1. An article which would otherwise be deemed a fixture may by severance and the understanding of the parties become a chattel.
    2. When a stove pattern used in a foundry is not a fixture.
    November 18th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to * the Court of Common Pleas of Washington county: Of October and November Term 1880, No. 300.
    Feigned issue, wherein E. T. Graham was plaintiff and James Sampson, in trust for the Peoples’ Savings Bank, was defendant, to try the title to a stove pattern 'seized by the sheriff as the property of A. Y. Graham.
    At the trial, before Hart, P. J., it appeared that in 1873, George A. Keller, who owned a foundry property and dwelling attached in Monongahela city, sold the same to A. V. Graham, who was the father of the plaintiff. A. Y. Graham carried on business in the foundry until the fall of 1877, when he took his son and Henry Rohrer into partnership with him. That partnership continued until the following October 1878, when the firm was dissolved by E. T. Graham buying out the interests of his father and ..Henry Rohrer in the concern. The stock, fixtures, &c., in the foundry were then valued by the parties at about $1100, making the interest of each party about $369.
    At this time, there were two liens against this real estate: 1. A mortgage for $1000, being a balance of the purchase-money and a judgment for $2000. Both of these liens were held by the Peoples’ Savings Bank of Monongahela city, the defendant. About the time of the dissolution of the partnership and purchase by the son, or shortly after, E. T. Graham purchased from his father certain property about the foundry, which belonged to the father and not to the firm. The purpose of this arrangement, as testified by the father and the son, and by one Alexander, was to Secure Alexander & Co.’s debt of that amount, which the father owed them, the son binding himself to assume and pay said debt in consideration of the transfer of these goods to him by the father. The bill of sale to E. T. Graham was in evidence, and was dated the 14th of November 1878. According to the testimony of the father and son, this arrangement was brought about by the suggestion of Alexander in the first instance, made about the time of the dissolution of the firm. It was agreed upon at that time, and a bill of sale was drawn up and executed, transferring this property, the pattern in dispute and individual property of the father about the foundry, and certain furniture to the son, E. T. Graham.
    At the time that the son purchased the interests of his father and Rohrer in the partnership, he rented from his father the foundry building, and went into possession, and in about a month after-wards he resumed business in his own name, retaining his father as a hired hand, the latter being a practical moulder by trade. The. father, when he was managing man of the firm, occupied the office, but after the son commenced running the business, he took his place as a moulder in the foundry proper. In the meantime, the pattern in suit had been deposited with Henry Rohrer as security for the note which E. T. Graham had given for the three hundred and sixty-nine dollars and some cents, which was Rohrer’s interest in the foundry, and was removed at that time by Rohrer to his own residence, about a mile distant from the foundry.
    The next spring, E. T. Graham, the plaintiff, testified that after the purchases of the real estate by the bank, he having become the tenant of the bank, and paying rent to it, he borrowed this pattern from Rohrer for a short time to make a few stoves. After he had used it for that purpose, he testified he returned it to Rohrer, and it remained in Rohrer’s possession until after E. T. Graham had put up a new foundry, when he got the pattern again, and it was in this new foundry at the time the sheriff made the levy upon it, on the 28th of December 1878, when the bank issued an execution upon its $2000 judgment. On that execution the real estate was sold by the sheriff on the 13th of January 1879.
    On “the -28th of December 1878, the personal property, then being in the house and in the foundry, were levied upon under the same writ. That did not include this pattern, for it was not then in the foundry. E. T. Graham then gave notice to the sheriff that the furniture, and what had been the individual property of his father in the foundry, belonged to him by virtue of this purchase from his father under the arrangement with Alexander. An issue was raised upon that claim, and was tried and disposed of. After this the. sheriff seized, as the property of A. Y. Graham, the pattern of the stove which went by the name “ Try Me, No. 8,” and which is the subject of this controversy. He was notified by E. T. Graham, the plaintiff, that he claimed to be the owner of the pattern. A rule was obtained by the sheriff from the Court of Common Pleas upon E. T. Graham and the execution-creditor, the bank, to maintain or relinquish their respective claims, and under that rule this issue was framed to determine the right.
    In their charge, the court, inter alia, said:
    “Now, what is the question for the jury to determine? It is simply whether at the date of the sheriff’s levy the property or ownership of the pattern was in E. T. Graham or not. It is contended by the counsel for the defendant that this pattern was a fixture, and that as such it was part of the real estate of the foundry, and was covered by the liens against the real estate, and, therefore, that the severance and sale of it by the father was a nullity, and, moreover, it constituted what is called a fraud in law. [I cannot, however, adopt this view of the law. Patterns, fallow-boards, flasks, and such things in a foundry, in my judgment, are mere furniture and,not fixtures, and the jury is now instructed, as matter of law, that this stove pattern was not a fixture but a mere chattel.] The question then for you to determine, is whether there was any fraud in fact; whether the sale of the property in the foundry to the son by the father was intended to protect or cover up the goods from levy and sale by the creditors of the father ? If so, it was a fraud against the creditors.”
    Yerdiet for plaintiff, and after judgment defendant took this writ and alleged that the court erred in the foregoing portion of the charge included in brackets.

      G. A. Hoffmann, Jr. and Aiken & Duncan, for plaintiff in error.
    —The set of stove patterns embraced in this controversy placed in the foundry in the year 1875, if fixtures, were covered by the purchase-money mortgage of 1st April 1873 : Roberts v. The Dauphin County Bank, 7 Harris 71; and by the lien of the judgment for $2000 recovered in 1878 : Witmer’s Appeal, 9 Wright 463; and the title thereto passed with the real estate to the plaintiff in error under the sheriff’s sale in January 1879; and the severance and sale in November 1878, by the then owner of the realty, when the purchaser, at the time, had actual and constructive notice of the liens, would therefore be a nullity, and the property could be levied upon and sold by the sheriff under an execution against A. V. Graham, in favor of the purchaser of the real estate: Hoskin v. Woodward, 9 Wright 42.
    In Gray v. Holdship, 17 S. & R. 413, the principle was established that “ everything put into, and forming part of a building, or machinery for manufacturing purposes, and essential to the manufactory is part of the freehold.” “Whether fast or loose, therefore, all the machinery of a manufactory which is necessary to constitute it, and without it would not be a manufactory at all, must pass for a part of the freehold Voorhis v. Freeman, 2 W. & S. 116 : Heaton v. Findlay, 2 Jones 304 ; Harlan v. Harlan, 3 Harris 607 ; Overton v. Williston, 7 Casey 158 ; Hoskin v. Woodward, 9 Wright 42 ; Witmer’s Appeal, Id. 462; Ege v. Kille, 3 Norris 340; Morris’s Appeal, 7 Id. 368. The set of patterns in dispute was a part of the machinery essential to the foundry and necessary for carrying on the business in it.

      Thomas S. Baird, for defendant in error.
    No decision in the state can be found which, in the absence of a special contract of the parties, holds as a fixture any object or thing which in its nature and purpose is not susceptible of actual physical annexation or connection with the freehold. The keys of a house, the deed of land, the doors, shutters, &c., of a building, the rolls in a rolling-mill, the burr stones in a grist-mill, the dogs in a saw-mill, the rails along a fence row, the manure on a farm, &c., all are instances where something actually adapted and intended for an appropriate place on the land or in the building, was held to be a fixture, although temporarily loose.
    In the case of these patterns there is no annexation to or connection with the realty alleged or claimed; nor is there any special adaptation to the uses of the freehold. It is true, patterns are intended for use of foundries, but they are articles made for, and sold in the market; and their presence or absence could only affect the value of an establishment to the amount of their market value. The adaptation required by the rule must be some special fitness and preparation as to purpose and place which would involve injury or loss to the freehold or the chattel by a severance. Another condition required, is the intention of the party making the annexation, to make the article a permanent accession to the freehold. Such intention may be shown in various ways. As in numerous instances, the mortgage or other instrument by its very terms may convert the lightest and most trifling chattel into real estate. But in the case in hand, the mortgage is in the ordinary form and has nothing exceptional about it.
   The judgment of the Supreme Court was entered November 26th 1880,

Per Curiam.

It is true physical annexation to realty is not necessary to convert a chattel into a fixture. If the article, whether fast or loose, be indispensable in carrying on the specific business, it becomes a part of the realty: Morris’s Appeal, 7 Norris 368 and cases there cited. An article which would otherwise be deemed a fixture may, by severance and the understanding of the parties, become a chattel. The stove pattern in contention had for a long time been treated as a chattel. It had been taken from the foundry and removed about a mile therefrom to the residence of one to whom it was pledged as security for a debt. This particular pattern was not essentially necessary for carrying on the foundry business. A pattern used to-day may be superseded by an improved pattern to-morrow, and be thrown aside as useless. The plaintiff in error had treated other patterns in the foundry as chattels, and levied on and sold them as such. This very issue assumes the property in question to be personalty. If it were realty the sheriff’s hands would not have staid for the trial of this issue. If the pattern was a fixture and illegally severed this was not the proper action to try the ownership. Whether the learned judge was correct in declaring all the articles which he named were not fixtures we do not now decide, as it is not necessary in the determination of this case. Under all the evidence he was entirely right in holding this pattern was not a fixture.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Cooper versus Wilson.
    1. After the acknowledgment of a sheriff’s deed the sheriff’s sale will not be set aside for mere inadequacy of price.
    2. There must he a point of time when irregularities are cured and the law fixes the acknowledgment of the sheriff’s deed as that time. Were this rule to be relaxed titles might be imperiled.
    November 22d 1882.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    .Error to the Court of Common Pleas of Crawford county: Of October and November-Term, 1879, No. 199.
    In the court below this was the petition of Francis E. Wilson of the city of Meadville, which in substanee set forth: That.on the 17th of May 1855, Theodore S. Minniss was the owner in fee of a lot of ground in the city of Meadville; that on the said 17th of May 1855, the said Minniss executed a mortgage on said lot to H. H. Thompson, conditioned for the payment of $400 on the 17th of May 1863; that on the 24th of March 1857, the said Minniss and wife conveyed the south half of said lot to Silas Taylor, Sr., by deed of general warranty; that on the 16th of November 1864 said Taylor conveyed the south half of said lot to your petitioner by deed, since which time your petitioner has been living on said lot; that a sci: fa. on said mortgage was issued to August term 1875, and returned July 2d 1875, served personally on defendant, Clara S. Minniss, administratrix of the estate of Theodore S. Minniss, deceased, on which sci. fa. the said administratrix appeared January 11th 1877, and confessed judgment for $410; that a writ of levari facias on said judgment was issued to February term 1879, on which the whole of said lot was sold February 8th 1879, to Ezra Cooper, for the sum of $756, and a sheriff’s deed therefor acknowledged to him February 13th 1879. The petitioner further represents that he never knew of the existence of said mortgage; that no writ or process of any kind was ever served on him with reference thereto, and that he had no knowledge that his property had been sold until Friday February 21st 1879; that the title to the north half of said lot remained until said sheriff’s sale in the estate' of the said Theodore S. Minniss, and that said north half of said lot is worth more than said Cooper gave for the whole lot. The .petitioner is informed and believes that said purchase was made by said Cooper in the interest of the estate of said Theodore S. Minniss, and with intent to' procure title to the property of the petitioner. The petitioner therefore prays the court to strike off the confirmation of said sheriff's deed, and to set aside said sheriff’s sale for the purpose of enabling the petitioner to protect the title to his property ; and to the end that no rights may be prejudiced the petitioner offers, in case said sale is set aside, an irrevocable bid of $900 for the north half of said lot of ground, when an order of court directs that that part of the mortgaged premises be first sold.
    The court, Church, P. J., filed the following opinion and order:
    “ On the 17th of May 1855, Theodore S. Minniss was the owner of lot No. 308, being 50 feet by 200 feet, situate on the southwest corner of Liberty and Arch streets, in the city of Mead-ville. On that day he mortgaged these premises to these plaintiffs. On the 24th of March 1857 he conveyed the south half of the premises aforesaid to one Silas Taylor. On the 16th of November 1864 they conveyed the same to Francis E. Wilson, the petitioner in this case. Wilson went into possession at once, built a house thereon, and has remained in possession from then to the present.
    “ On the above mentioned mortgage proceedings began in 1875 to foreclose the same, and in 1877 judgment was confessed thereon by this defendant, and on the 13th February, of the present year, the whole mortgaged premises were sold by virtue of levari facias issued thereon, and purchased by one Ezra Cooper, who was not the plaintiff in the writ, but who was the friend of and became the purchaser for the benefit of the defendant in the writ. The deed was acknowledged by the sheriff, and after registry was sent by the prothonotary to Cooper by mail. This sale included the premises sold by the mortgagor twenty-two years ago under which Wilson claims. Two days after acknowledgment of the sheriff’s deed Wilson applied to the court to set the sale aside, and also the acknowledgment of the sheriff’s deed. This was done at the same term, or as soon as Wilson heard the facts, and after the deed had been sent by the prothonotary to Cooper, but before the lapse of time which usually occurs in this county between the acknowledgment of a sheriff’s deed and its final delivery to the purchaser.
    We are asked to set this sale aside on account of gross inadequacy of price; that the confession of judgment by the widow of the mortgagor without notice to the terre-tenant, twenty years after the mortgagor had parted with his title, was a gross fraud on the rights of the terre-tenant, and because no proper notice was given of the sale, and because of fraud, accident and mistake in the fact of every one connected with the transaction.
    “It appears in evidence, and the court so find, that the whole property was worth from $3000 to $3500, and that it sold for $766. The north half still is there, belonging to the defendant m the mortgage proceeding, is worth $1000, and this applicant offers an irrevocable bid of $900 for that share.
    “ While mere inadequacy of price is not ordinarily sufficient to set aside a sale after the acknowledgment of plaintiff’s deed it should be considered in connection with other circumstances in the case. Among these other circumstances is the fact, as appears from the evidence taken,' that the sheriff did not advertise the sale properly. No handbills were put up on the south half. It was separate and distinct from the other, made so since the giving of ' the mortgage by the act of -the parties in such purchase and improvement of this south half. It was as much separate and distinct as any other property requiring it, and the notice required by law should have been- given, if it was intended that the property of the terre-tenant should be -sold. But in truth and in fact it was not intended to be sold. Mrs. Minniss, the defendant, testifies that she did not' know the whole lot, that is the terre-tenants’ half, was being sold, and that Cooper, the purchaser, did not know the whole was being sold. Mr. Cooper testifies to the same thing; that the property was advertised as a house and lot, and he supposed he was himself buying Mrs. Minniss’s house and lot, and the house and lot of no one else. The sheriff did not know it, nor did the plaintiff know it. The sheriff took his description from the old mortgage, and of course did not describe two lots and two houses, as seem to have been in fact sold.
    “ To say nothing of fraud (and there does not seem to have been any fraud contemplated until the sheriff had acknowledged his deed, and the subsequent events do nevertheless smack strongly of it), the whole transaction presents as clear a case of accident and mistake as is often brought to the attention of a court of justice.
    “ It would be most unconscionable to permit this sale to stand. If it is claimed the courts are powerless to remedy the evil complained of, the judges may as well retire from the bench and close the doors of the court.
    “ It is possible that no authority can be found deciding directly and positively on the power of a court to set aside the acknowledgment of a sheriff’s deed after it has been delivered; but the reasoning to be found in Jackson v. Morter, 1 Norris 294, and cases therein cited, would seem to fully justify not only the right but the power of the court to set aside a sheriff’s deed after acknowledgment and after delivery on the ground of fraud actual or equitable. Courts of equity have the power to set aside, cancel, annul or reform a private indenture on the ground of fraud, accident or' mistake. Why even in a greater degree have they not the power to set aside or reform the deed of one of their own officers ? There is nothing so sacred about a sheriff’s deed as to prevent the same principles of light and equity being invoked as in the case of private writings executed with all the solemnity required by our laws. In applications of this kind to avoid a sheriff’s sale much must depend on whether the sale or acknowledgment was made through fraud, and with what promptness the application is made. In this case the application was made at the same term, and the moment the applicant could obtain a hearing in court, and before ordinary routine would put the purchaser in possession of the deed. What induced the haste in the purchaser to get possession of the deed does not appear in evidence, but is left to conjecture. • Indeed, from the evidence, I question very much whether the deed was ever effectually and properly delivered. A sheriff’s deed ought to be delivered by the sheriff and not by the prothonotary, as was done in this case.
    “.Upon the ground, then, of insufficiency of notice of sale, inadequacy of price for which the property sold, fraud (unwitting fraud if you please, but none the less fraud) practised on the terretenant, accident, it might be, on the part of the sheriff, plaintiff, defendant and purchaser in the including of the purpart of the terre-tenant in the deed, we set aside the acknowledgment of the sheriff’s deed in this case to Ezra Cooper, and set aside the sale thereof, and cancel and annul and direct that he deliver up the deed to the sheriff to be cancelled; and dp further direct that when the north half of the property is again offered for sale it be put up at the bid of E. E. Wilson of $900; that the sheriff be ordered to amend the return to his writ accordingly; that on second sale of the said property he bring the money into court for distribution for the purpose of returning the amount of the present bid to the present purchaser.
    “ The prothonotary is directed to note an abstract of this order on the margin of the page wherein is recorded or registered this deed in question. The costs of this proceeding to be paid by F. E. Wilson, the petitioner.”
    The order of the court was assigned for error by Cooper, who took this writ.

      William R. Bole, for plaintiff in error.
    After the acknowledgmeat of the sheriff’s deed in open court, the title of the sheriff’s vendee cannot be affected by mere irregularities however gross. Nothing but fraud in the sale or want of authority to sell can defeat his title: McFee v. Harris, 1 Casey 102; Crowell v. McClosky, 5 Barr 168; Gibson et al. v. Winslow, 2 Wright 49; Stewart v. Freeman, 10 Harris 120; Slater’s Appeal, 4 Casey 169. The purchaser was not bound to look beyond the description contained in the mortgage: Gibson v. Winslow, supra ; Magaw v. Garrett, 1 Casey 322. When a sheriff’s deed is
    acknowledged is the proper time for persons interested in the sale to take advantage of irregularities: Shields v. Miltenberger, .2 Harris 76;. Spragg v. Shriver, 1 Casey 282. The court will not attempt to disturb the title of a purchaser at sheriff’s sale for any formal defect in the proceedings after acknowledgment and delivery of the sheriff’s deed.

      John J. Henderson, for defendant in error.
    The court clearly has the power to set aside the sale on such a state of facts as here shown. In Jackson v. Morter, 1 Norris 294, Justice Mercur, says on this subject: “ That it'may exercise a like power after acknowledgment, but at the same term appears to be conceded by the authorities.” In that case two terms had intervened before the application was made to set the sale aside, and the sheriff’s deed was in the hands of the purchaser. Even if the deed had been legally delivered,in this case the opinion of the court, in the case referred to, would justify the action of the court below. Whether a sheriff’s sale could be set aside after the term at which the deed was acknowledged, and after the delivery of the deed to the purchaser was not determined in that case, although the opinion of the court would seem to indicate that it might even then if the application- was made promptly and it was meritorious.
    The cases cited by the counsel for plaintiff in error wére actions of ejectment where effort was made to attack sheriff’s sales collaterally. None of them relate to the question of the power of the court to set aside a sheriff’s sale.
   Mr. Justice Paxson

delivered the opinion of the court, January 24th 1881.

This is an admittedly hard case. The court below found as a fact that the property was worth from $3000 to $3500, and that it was sold -by the sheriff for $766. Upon the petition of the terretenant the court set aside the sheriff’s sale after the deed had been acknowledged and delivered to the purchaser, and the purchase-money paid. The order further directed the purchaser to deliver up his deed to the sheriff to be cancelled, without any direction for the return of the purchase-money until after a re-sale of the premises.

We must be careful that in order to -remedy a case of hardship we do not strain the law. Such cases always make bad precedents, and in the end do more harm than the particular mischief sought to be redressed.

It is a familiar principle that a sheriff s sale will not be set aside for mere inadequacy of price: Weitzell v. Fry, 4 Dallas 218; Carson’s Sale, 6 Watts 140; Swires v. Brotherline, 5 Wright 135. It is true in a clear case of inadequacy of price the court will seize hold of a slight irregularity to set aside" the sale. But mere irregularities are cured by the acknowledgment of the sheriff’s deed: Crowell v. Maconkey, 5 Barr 168; Spragg v. Shriver, 1 Casey 282; Shields v. Miltenberger, 2 Harris 76.

It is perhaps a subject of regret that the same rule does not prevail in regard to sheriff’s sales as has long existed in the Orphans’ Court, w'here inadequacy of price is recognised as a sufficient reason for setting aside a sale. But we must take the law as we find it.

We have looked through this record in vain to find something upon which we could sustain the action of the court below. The property was sold under a valid judgment, and upon legal process. The sale was duly advertised and a bill posted upon the premises. It is true no bill was posted upon the half -of the lot owned by Cooper, the terre-tenant. The writ followed the mortgage and described it as one property. We have no doubt that relief might have been granted for the -misdescription, had an application been made in proper time. But it was too late after acknowledgment and delivery of the deed and payment of the purchase-money. There must be a point of time when such irregularities are cured. The law fixes the acknowledgment of the sheriff’s deed as that time. Were we to relax this rule we might imperil titles.

There was no fraud on the part of the purchaser. The court below concedes that he contemplated no fraud until after the sheriff’s sale. If this be so, and there is nothing in the' case to gainsay it, the mere fact that the purchaser was disposed to hold on to an unexpectedly good bargain does not make out a case of such fraud as the law can recognise. It is a matter that he must settle with his conscience.

Nor can fraud be inferred from the confession of judgment upon the scire facias without the knowledge of the terre-tenant. The latter took the property subject to the mortgage. It was upon record and was a lien on his property. That he did not know of its existence is not to the purpose. He had record notice and that is sufficient. His ignorance upon this point was the result of his own negligence, and is the source of all his trouble. Had he examined his title when he acquired it he would have discovered the mortgage. This would have been notice that his property was liable to a sale by the sheriff at any time. While the law protects the rights of every citizen when arrested at the proper time and in the proper way, it cannot undertake to correct all the evils which are the result of supine negligence.

I have already adverted to the fact that while the order of court directs the purchaser to deliver up his deed for cancellation, there is no provision for a return of the purchase-money until after a resale of the property. In the meantime he is kept out of it as a species of forced loan. There is no authority for this, and yet it is manifest the court below could not have coupled the order for cancelling the deed with an order for the return of the purchase-money, for the reason that the money had been paid to the plaintiff in the writ. Having received it lawfully, and been guilty of no fraud it was beyond the power of the court below to order him to restore it. The effect of the receipt of the money by the plaintiff was to satisfy the writ as well as the judgment upon which it was issued. Both the writ and the judgment were dead, and in this state of the record it is difficult to see how they could be galvanized into life for the purpose of re-selling the property.

The record does, not show that notice of the application to set aside the sale was given to any one but the purchaser. Yet all the parties were entitled to notice. The order of court directs the sheriff to amend his return to the writ, upon a rule to which he was not a party, and of which he had no notice. For the truth of his return the sheriff is responsible upon his official bond. The sheriff may amend his return by leave of court, but I have never known him ordered to do so. We do not reverse, however, by reason of these irregularities; our object is to call attention to them that -they may be avoided in the future.

The order of June 27th 1879, setting aside the sheriff’s sale, is reversed at the costs of the petitioner.


author: Mr. Justice Sterkett

text:
    Clark versus Fletcher.
    1. F., who was a member of an association doing a banking business in the name of the Titusville Savings Bank, and who was advertised as a director thereof, transferred his interest to another person and withdrew from the association. No notice was given to the public of his withdrawal other than merely dropping his name from the published list of directors. Afterwards, C., who knew that F. was a director and had seen his name advertised as such, but who had no notice of his withdrawal, made deposits in the bank, which failed. He brought suit against F. to recover his deposit: Held, that he was liable.
    2. In the absence of notice, express or implied, to the plaintiff, defendant was liable.
    3. The defendant having been published to the community as an active partner, and having been known as such to the plaintiff before he commenced dealing with the bank, it was incumbent on the defendant to give more satisfactory evidence of notice of withdrawal than the mere dropping of his name from the published list of directors.
    4. Per Sterrett, J. — When a partnership is formed and an artificial name, such as usually employed to designate a corporation is adopted, it must be regarded as an invitation to give credit, not to the empty name but to the individuals who compose the association thus designated, and hence none of the partners can properly claim to be dormant partners.
    November 22d 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Suarswood, C. J., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 232.
    Assumpsit by John R. Clark against Ruel D. Fletcher, surviving partner of William T. Neill, copartners, lately doing business as the Titusville Savings Bank.
    In the fall of 1868 several persons formed a partnership by agreement in writing to carry on the business of banking at Titus-ville, under the firm name and style of “ Titusville Savings Bank.” Th'e association continued to transact a general banking business until September 1873, when it failed. The defendant was a member of the partnership until some time in 1870, and was advertised as a director of the bank in.the“ Titusville Herald,” until the 5th of September 1870. The plaintiff knew that the defendant was a member of the firm, had seen his name advertised as one of its directors, and had received no notice of his withdrawal therefrom. The plaintiff deposited various sums of money in the bank between the 7th of January 1871, and the 1st of July 1872. This action was brought to recover a deposit. Another action was brought against other members of the firm but no money was collected. The plaintiff offered to prove the amount of money deposited by'him in the bank, which offer the court rejected.
    Tn the general charge the court, Church, P. J., said :
    “We have rejected the evidence of the debt of the Titusville Savings Bank to John Clark. We have forbidden the plaintiff to prove the allegation that the savings bank owed a debt to John Clark, because Clark did not begin doing business with the bank Until January 1871, and Fletcher actually went out of the co-partnership in February 1870, according to the plaintiff’s own evidence.
    [“ So far as the public, who had never done business with the bank, were concerned, by the dropping of his name as an advertised director and stockholder in this bank, he ceased to be such director and stockholder as to such public, provided, of course, he actually ceased to be interested in the bank. ]
    [“ Inasmuch as plaintiff’s offer was to prove that the inception of the bank’s indebtedness to the plaintiff was in January 1871, and he does not offer to prove that the defendant actually was a stockholder at ’that time, or that he, the plaintiff, ever therefore heard that such was the case, the plaintiff never was actually deceived, and cannot, under the law of partnership, hold the defendant for this debt.]
    “ Your verdict will therefore be for the defendant.”
    Verdict for defendant, when plaintiff took this writ alleging that the court erred (first assignment) in rejecting the plaintiff’s offer, and (third and fourth assignments) in the portions of the charge in brackets.

      John J. Henderson and Thomas A. Morrison, for plaintiff in error.
    The defendant was a partner in a firm doing business in the name of the “ Titusville Savings Bank,” and as such was individually liable for the debts of the firm. He was not a “secret” partner, and is, therefore, to be treated as generally liable: Sham-burg v. Buggies, 2 Norris 148. The business of the firm was carried on in the same name during the whole time of its existence; the plaintiff knew that the defendant was a member of the firm and 'had no notice of his retirement therefrom. The plaintiff should have been allowed to prove his claim, therefore, without reference to the question whether the debt was contracted before or after the defendant’s withdrawal. In order to avoid liability for debts contracted after dissolution of the firm, or after his retirement therefrom, it was necessary for the defendant to give notice of that fact; personal notice to those who had previously dealt with the firm, and notice by advertisement to all others. In default of such notice he will be considered as still a member of such firm: Watkinson v. Bank of Pennsylvania, 4 Whart. 482; Brown v. Clark, 2 Harris 476; Deford v. Reynolds, 12 Casey 325; Shamburg v. Ruggles, 2 Norris 148 ; Goddard v. Pratt, 16 Pick. 432; Pitcher v. Barrows, 17 Pick. 361; 3 Kent’s Com. *68; Davis v. Allen, 3 N. Y. 168; Martin v. Searls, 28 Conn. 43; Simmonds v. Strong, 24 Vt. 642.

      Guthrie & Byles, for defendants in error.
    The publication of Fletcher’s name as a director could at best create but a presumption that he was a stockholder, and the same means that gave plaintiff that information also gave him information that he ceased to be published as a director long before plaintiff commenced business with -the bank, and it would be but fair to presume then that he was neither stockholder nor director. The one presumption rebuts the other. Plaintiff says he was taking the “ Herald” at the time this case was tried, and had taken it from the time it was first published. If notice to the plaintiff was necessary, he had it, but we contend that it was not necessary. Fletcher was but a secret, silent partner. The name of the bank did not disclose his name nor a name with his appended, and when he sold his stock, February 7th 1870, and withdrew from the'bank, no notice was necessary to relievo him from future liability, and particularly to parties' who had not previously dealt with the bank. It is well settled that a silent partner may retire, and no notice is necessary to relieve him from liability to subsequent creditors of the firm. Some of the cases cited by plaintiff, and many others, hold this doctrine.
   Mr. Justice Sterkett

delivered the opinion of the court, January 3d 1881.

It may be regarded as well settled that when an ostensible or known member of a co-partnership retires therefrom, and wishes to shield himself from liability for future debts of the firm, it is necessary that personal notice of his withdrawal be given to all who have had dealings with the firm, and that notice be given, by publication or otherwise, to all others. The general principle, as broadly stated, in Watkinson et al. v. The Bank of Pennsylvania, 4 Whart. 482, is that publication of the dissolution in one or more newspapers printed in the city or county where the partnership business is carried on is, per se, notice to all persons who have not had previous dealings with the partnership; but, as to those who had such dealings, it is not sufficient. Partners who are strictly dormant, and unknown to those who transact business with the firm, and who therefore lend no credit to the partnership, form an exception to the general rule. While they are of course responsible for liabilities of the firm incurred during their connection with it, they are not liable for debts contracted after they have withdrawn from the partnership, although notice of such dissolution may not have been given to the public or those with whom the firm has had previous dealings: Deford & Co. v. Reynolds, 12 Casey 325; Shamburg v. Ruggles, 2 Norris 148. In the first of these cases, Mr. Justice Strong says: “ The rule doubtless is that an unknown dormant partner may retire from the firm without giving notice of his retirement, and thenceforth be no longer liable for debts which the firm may incur. Having ceased to be a partner in fact, he is not a party to the contract which creates the debt; and, being unknown, he has not encouraged the creditor to rely upon his responsibility.” The distinction between a dormant or silent partner, as he is sometimes called, and-an ostensible or known partner, and the reason why notice of the withdrawal of the latter and not of the former is essential in order to shield the retiring member from liability for future debts of the firm are clearly pointed out and explained in the two cases last cited. When a co-partnership is formed and an artificial name, such as is usually employed to designate a corporation, is adopted, it must be regarded as an invitation to give credit, not to the empty name, but to’ the individuals who compose the. association thus designated, and hence none of the partners can properly claim to be dormant. They are all, presumptively at least, known partners and liable as such. But, in the present case, it is unnecessary to invoke this principle, for the reason that during several months prior to the transfer of his stock, and bis alleged withdrawal from the firm, the defendant was not only an ostensible but an active member of the partnership. His name was published as a director of the Titusville Savings Bank — the name by which the partnership was designated — and this fact -was known to the plaintiff before he commenced depositing in the bank. Being then a shareholder and partner in the bank, actively participating as a director in its management, and these facts being not only published to the community, but personally known at the time to the plaintiff, how can the defendant, upon any recognised principle, expect to escape liability for debts of the partnership contracted after his withdrawal therefrom, w-ithout showing that due notice thereof was given ? It is not pretended, that express notice of his withdrawal was given, but it is claimed that it might be inferred from the fact that his name was dropped from the published list of directors. This, however, was insufficient, for while the dropping of his name from the board of directors might justify the inference that he had ceased to take an active part in the management of the partnership business, it would by no means follow that he had ceased to be a shareholder and partner. Having been- published to the community as an active partner, and having been known as such to the plaintiff before he commenced dealing with the bank, it was incumbent on the -defendant to produce more satisfactory evidence of notice than the mere dropping of his name from the published list of directors. In Brown v. Clark, 2 Harris 469, Mr. Justice Bell says: “ To visit the community at large with the consequences of a dissolution by assent of the parties the evidence of it should be clear, distinct and unambiguous. It is not to be left to mere conjecture or the hazard of possible inferences. The nature of the notice required to charge strangers with knowledge shows this. It must be shown that notice was communicated in some way or other. To reach those who have before dealt with the firm, direct and express notice of the fact is essential. To those before unconnected with the association, it may be communicated by publication in the proper newspapers. The 'latter species of notice is only tolerated from necessity, but yet like the other it is bottomed upon an open avowal, by the parties themselves, of their agreement to dissolve.”

It follows from what has been said that the learned judge erred in excluding the plaintiff’s offer to prove the amount of money deposited by him in the bank, and in charging the jury as complained of in the third and fourth specifications of error.

Judgment reversed and a venire facias de novo awarded.


author: Chief Justice Sharswood

text:
    Appeal of Martha Snodgrass et al.
    j. ¿eoree 0f the Orphans’ Court making an order of sale of the real estate-of a decedent for the payment of debts is not a definitive decree, and an appeal does not lie therefrom.
    Ness’s Appeal, 1 Watts 255, overruled, and Gesell’s Appeal, 3 Norris 238; followed.
    October 11th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Westmoreland county: Sur motion to quash appeal.
    H. P. Laird and W. B. Snodgrass, who were the executors of John Snodgrass, deceased, obtained an order of the Orphans’ Court of Westmoreland county for the sale of his real estate for the payment of his debts, although there was a provision in the decedent’s will directing the sale of some portion of his estate. It was contended in the Orphans’ Court that the court had no power to order a sale until the executors had first sold the lands which the testator had directed to be sold. There were mortgages on some of them which embarrassed the power of sale under the will, and the executors went into the Orphans’ Court and obtained an order to sell to avoid this embarrassment. It was contended that the testator had ousted the jurisdiction of the Orphans’ Court in so far as he himself had directed a sale. An appeal was taken from the order to sell by the widow of the testator. In the Supreme Court a motion was made to quash this appeal on the ground that the order of sale was not a final judgment from which there could be an appeal, and on the further ground that the Orphans’ Court, where, a testator was indebted, had the power to order and direct the sale of his real estate for the payment of his debts unrestricted by any direction the testator may himself have given.

      H. P. Laird, for motion to quash.

      B. Smith, contra.
   Chief Justice Sharswood

delivered the opinion of the court, November 8th 1880.

The appellees have made a motion to quash this appeal from the decree of the Orphans’ Court making an order of sale for the payment of debts, on the ground that such an order is not a definitive decree. In Ness’s Appeal, 1 Watts 255, it was decided that it was definitive — that it was a parol-judgment, commanding the property to be sold — divesting the title of the owner. But we think the reason was not a good one ; for this effect only takes place when the sale is confirmed: Ferree v. The Commonwealth, 8 S. & R. 312. Undoubtedly, upon the return of the sale, it would be the duty of the court to refuse confirmation if it appeared for any good reason that the order ought not to have been made, as well as if it had not been properly carried out by the executor or administrator. Why should the proceeding be brought here by piece-meal when the whole may be revieived on an appeal from the final confirmation ? There might have heen a good reason for the decision when the limitation of such appeals was three years, but now under the Act of 1874, unless an appeal is taken in twenty days and security given, the appeal does not operate as a supersedeas. The court, in every case of confirmation, will take care to provide that no deed shall be executed to the purchaser until the twenty days have expired. Robinson’s Appeal, 12 P. F. Smith 213, and Robinson v. Glancy, 19 Id. 89, were cases in which there had been an order of sale — affirmed on appeal in this court — and it was decided that an order of the court to carry the affirmed decree into execution was interlocutory. The opinions in the two cases are not consistent, and there was some mistake in the last case. Chief Justice Thompson appears to have thought that the previous case had settled that a decree of sale for the payment of debts or in partition, as that case was, was not definitive. The conclusion we have arrived at harmonizes entirely with Gesell’s Appeal, 3 Norris 238, in which it was held that an order of the Orphans’ Court awarding an inquest of partition is not a definitive decree, and no appeal lies therefrom. There, as here, there was no divestiture of title, the decree was only a step towards it, and like a judgment by default, without an assessment of damages, was in no sense final. It might have hung unexecuted for years without harm to the heirs, who would have been entitled to the rents and profits in the meantime.

Appeal quashed.