author: -Per Curiam :

text:
    January, 1882.
    No. 356.
    November 20, 1882.
    Borough of Millerstown v. McKee et al.

    1. In an action by a municipal corporation against a tax collector and his sureties to recover for failure to collect the tax, parol testimony that the town council relieved him from the duty, though this action was not entered on their minutes, was properly received.
    2. Qucere. Whether a tax collector is bound to proceed and enforce the collection of a tax illegally assessed.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.”
    Error to the Court of Common Pleas of Butler County.

    Debt by the borough of Millerstown against S. I. McKee, Z. Double, and J. B. Orbison, on a bond conditioned for the collection and payment to the borough treasurer by S. I. McKee, of the taxes assessed for the year 1878.
    The following facts appeared at the trial before Mc-Junkin, P. J.: On June 3, 1878, the council of the borough of Millerstown, Butler county, levied and assessed a tax of $8,160, and appointed S. I. McKee to collect the same. McKee gave a bond for $16,000, with Double and Orbison as sureties, which was conditioned as follows: “Whereas the said S. I. McKee has received from the town council of the borough of Millerstown aforesaid, duplicates and warrant for the collection of bond special and borough taxes issued by said borough, amounting to $8,160. Therefore, if the said S. I. McKee shall well and faithfully collect said taxes, according to the requirements of said warrant, and shall pay the same into the hands of the proper treasurer of said borough on or before the first day of June next, then and in that case this obligation to be void, &c.” The defendant accepted the duty, and collected and paid over a portion of the tax. There was evidence to show that the assessment of $8,160 was in excess of the amount allowed by law, without a submission of the question to the vote of the taxpayers, which had not been done.
    The defendant’s counsel made the following offer: “We propose to prove by S. I. McKee, the collector, that during the progress of the collection, he encountered opposition, and was threatened with law suits, and he became satisfied himself the tax was illegal, and that his warrant and duplicate did not protect him in adverse proceedings; that he made a levy, notwithstanding, upon property by virtue of his warrant, and pending that a meeting of the town council took place ; that he attended, and that he informed the town council verbally of the trouble he was incurring and the risks that he would run, and probably this at various times ; that the town council were then jjresent, and the members were in the presence of each other and acting as a board, and that they told him to cease his efforts to collect, to make no levy and demand no more taxes, but do nothing more until they would give him further orders ; that in pursuance of that he ceased his efforts, and made no levy and collected no other taxes, and that the town council never after-wards directed him to go on ; and this for the purpose of showing that the town council that issued the warrant and gave the duplicate restrained and directed him to cease his efforts to collect the taxes on said duplicate.”
    Plaintiff’s counsel objected because “there is no offer to show that the defendant collector was restrained or hindered from the collection of these taxes by due course of law ; that there is no proper offer to prove any action of the council or borough authorities of Millerstown over the special matter of the taxes, restraining the collection thereof or relieving the collector therefrom ; that there is no offer to prove any resolution or other order of the town council as a board restraining him or relieving him from the collection of the taxes ; that there is no offer to prove that the minutes of the transaction of the town council of the borough of Millerstown contains such action; that there is no offer to prove any legal or lawful action of the town council or borough authorities with regard to the bond in suit, the duplicates, warrant, or taxes mentioned therein; therefore, the offer is incompetent and irrelevant.”
    The objection was overruled under exception

      McKee testified:
    ‘ ‘ I went to the council chamber and told the council that a good many taxpayers objected to paying ■ taxes, and were forming an organization to bring suit against me for collecting the ■ tax, and that I did not feel like going on unless they would indemnify me ; that I did not feel that I was safe. They told me to cease, and that one of them would go to Butler and take counsel on this matter and let me know. ... I never received any word from them.”
    Corroboratory testimony by a member, of the council to the same effect was admitted under exception.

      The plaintiff presented, inter alia, the following points :
    3. That the defendant having taken the duplicates and warrant regular on their face, issued by an authority having lawful power to issue them, cannot defeat the suit brought upon his bond as collector, for the non-performauce of the conditions of his bond as such collector, to wit: The collection of, payment over, and settlement for said taxes contained in said warrant and duplicate, unless he has been enjoined or restrained from the collection of the same by due course of law.

      Answer. — We affirm this point with this addition, or rather condition, we might say to the requirements, that it is not and would not be confined to legal proceedings in due course of law to be restrained. We add to that point, on affirming it, “unless restrained by due course of law or otherwise with that addition and explanation, we affirm this point. What we mean by that is this : The collector may be relieved from the performance of his duty according to the bond, by other means than by due course of law, which would be coming into Court and have Court pass upon the question, the preliminary questions of authority in the town council to make the assessment, or whether or not they exceeded their authority in making the assessment, or whether or not they committed irregularities in their proceedings, or whether they were guilty of other acts of omission or commission, but we affirm this point generally, that unless the collector was relieved by proceedings at law or otherwise, he would not be relieved from the conditions of his bond.
    5. That the remedy for an illegal levy and assessment of taxes is by appeal to the authority corporate or otherwise, laying and assessing the tax, or an appeal to legal authority to restrain the collection of the tax and set levy and assessment aside.

      Answer. — This point is affirmed, but we do not say this would be the only mode or manner of getting relief. That this appeal to legal authority or to the aid of the Court is not the only relief. We say that the corporation constituting and appointing the collector and having control of him, may release him by their own action. With that addition to the point and. explanation of it, we affirm it.
    The Court charged, inter alia, as follows :
    “That from the evidence of S. I. McKee, the defendant, and the witness Pierce, the defendant collector, McKee, ceased from the collection of taxes and in good faith did not afterwards proceed to collect the tax in the Court, we do not see why the defendant could not set up this as a defense to this suit brought for damages for the non-performance of the conditions of the bond, although no resolution may have been passed or other action taken; if in good faith from what was said before the town council, he, the collector, ceased from the collection of the tax and having no instructions to proceed; if in good faith he did not proceed to collect the tax, he can set this up as a defense to the suit; that the president of the town council having said they were going to take counsel, this showed that they, the town council, advised the collector to desist from the collection of the tax, and it might be presumed that they did intend to take counsel and inform the collector whether he should proceed ; if you are satisfied that it was in consequence of this he ceased from the collection of the tax, paid over what he had collected, and this is not, we say, inconsistent with the facts found by the auditors’ report, these facts are submitted to you; if you find these facts to be true, you are justified in finding for the defendants. * * * * * We submitted to you, gentlemen of the jury, as a fact for you to find whether or not the town council did, as a town council, relieve or instruct the collector to cease collection of tax. As to the question of the right to do that, we do not think it necessary to instruct you upon that. We submit to you as a fact, whether from the proofs in the case the town council in meeting with a quorum present did direct the collector to cease, and whether in good faith he did desist, and whether that led to his failure to collect and perform the conditions of his bond, is the question of fact for you to pass upon. That is what we submitted to you. We again submit it to you. I think the jury will certainly understand it. We submit to the jury to find from the proofs in the case whether as a fact the town council directed the collector to cease collecting and whether in good faith he did stop in consequence of this collecting taxes, and whether the balance now found against him is the result of his stopping collection under the direction of the council. Whether the council had a right to do that, and whether there are other questions involved, they are not before the Court and jury.”
    January 22, 1882, verdict for defendant, upon which judgment was afterward entered.
    The plaintiff took this writ of error, assigning for errors the admissions of testimony for defendant as above, the answers to plaintiff’s points, and the portion of the charge above quoted.

      Mitchell, Fleeger, & Feed for plaintiff in error.
    It does not appear that the town council in any legal' manner relieved defendant in error from the collection of the taxes levied and assessed. There was no resolution to that effect passed, and none appears on the minutes. If there is no error in this case, then the finances of a municipal corporation are at the mercy of every declaration of the president of the council tacitly acquiesced in Tby a quorum present.
    Thompson, McCandless, Scott, & McBride for defendant in error.
    The jury show, by their verdict, that they were satisfied that the town council relieved the collector from the performance of his duty. A municipal corporation may contract by parol: Salsbury v. Phila., 8 Wright, 306; Ford ?). Clough, 23 American Decisions, 520.
    December 4, 1882. —
   -Per Curiam :

We think there are ■ no errors in this record of which the plaintiffs have any right to complain. The jury found that the town council had relieved the defendant from the collection of the taxes. The parol evidence to prove this was properly received. If the council did not record their action in the minutes, that ought not to prejudice the defendant. This disposes of the case. We must not be understood as concurring in the ruling of the Court, that the collector was bound to proceed and enforce the collection of a tax illegally assessed.

Judgment affirmed.


source: Caselaw Access Project

author: — Pee Cueiam:

license: Public Domain

text:
    October Term, 1883.
    No. 110.
    October 18, 1883.
    Riddle v. Thompson et al.

    1. Defendants assigned a judgment to the plaintiff and guaranteed “ payment thereof in one year from this date.” Held, that the defendants were sureties, and that on failure of the principal to pay, their obligation became absolute.
    2. The plaintiff, at the time of the assignment, verbally agreed with the principal in the judgment to extend the time of payment, and the extension was afterward, without the knowledge of the sureties, incorporated into an amicable agreement to revive the judgment and was filed of record. Held, that the sureties were discharged.

      Before Merc it r, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Clark, JJ. Green, J., absent.
    Error to Court of Common Pleas of Butler County.

      Assumpsit by Samuel L. Riddle, Sr., against Josiah M. Thompson, Solomon R. Thompson, Allen Wilson, and John C. Martin.
    Upon the trial in the Court below, before Brepin, J., the following facts appeared:
    Col. John M. Thompson, of Butler, Pa., was appointed the committee of Henry Shakley, an habitual drunkard, in proceedings instituted for that purpose in the year 1875, and was required to give bond with security approved by the Court. He gave a judgment in favor of Daniel Fiedler and the defendants, who were the parties whom the Court approved as security on his bond, in the sum of fifteen thousand dollars, for their protection. Subsequently, Dr. Stephen Bredin was appointed the successor of Thompson in the trust. In order to pay the balance due, Thompson obtained from Samuel L. Riddle, through his son and agent, W. H. H. Riddle, Esq., a loan of $15,000.
    As security for this loan, Thompson applied to and received from the defendants an assignment in blank of the judgment confessed in their favor, together with an agreement to pay the same, which set forth: “For value received'we assign this judgment to and
    guarantee payment thereof in one year from this date.”
    Thompson went to Riddle’s office, and in his presence, and in the absence of the defendants, filled up the paper, inserting the date, “January 8, 1878,” and the name of the assignee, “ Samuel L. Riddle, Sr.”
    Biddle took from Thompson his written statement that he had no defense to the judgment, and that it was a lien against- certain real estate. A verbal agreement was at the same time made between Thompson and Riddle, that one half of the sum loaned was to be paid in one year and one half in two years from the date of the Joan, to wit: January 8,1878, and that the judgment should bear interest from the date of the asssignment.
    On April 22, 1879, the following agreement between John M. Thompson and W. H. H. Riddle, attorney for the plaintiff, was filed of record upon the judgment:'
    “It is agreed that the prothonotary of said court enter an amicable scire facias upon the above judgment with the same effect as if a scire facias to revive the same had been regularly issued, served personally on the defendant by the sheriff of said county, and duly so returned, and that a judgment be entered thereon in favor of the plaintiff, and against the defendant, for the sum of $16,160, the one half due January 8, 1879, and the remainder January 8, 1880, amount of debt, interest, and cost now due on the original judgment.
    Dated April 22, 1879.”
    Executions "were issued on the judgment, and all the real estate of Thompson, the defendant therein, sold, and the sum of $7,413 11 realized. Before the sale, notice in writing was served on the defendants in this case of the time and place of sale. This suit was then brought to recover the balance.
    The Court charged the jury, inter alia, as follows :
    “Then the only other question in the case is whether Mr. Riddle, by agreeing to give Thompson time for the payment of this judgment without the consent of these defendants, who assigned him the judgment, has thereby discharged and released the defendants from their liability on this paper. That is a question of law that the Court can reserve to be argued at length, and take time to fully consider it. Therefore, for the time being, not, of course, intimating how it may be decided finally, we merely instruct the jury on it, and afterwards give judgment whichever way we think the authorities and law may lead. We instruct the jury, for the time being, as far as the case is now before them, that the giving of time does not release the defendants, and we reserve that question ; and if we are of opinion hereafter that Riddle, by giving that time, did release the defendants, we can enter judgment in that way without calling a new jury. That is the reason why we want to reserve the question, and then it can be settled without calling a new jury without putting the parties to the expense of a new trial, and it can go to the-Supreme Court at once. That is the only other question in the case.”
    October 16, 1882. Verdict for plaintiff for $10,208 30.
    May 21, 1883. The Court filed an opinion upon the questions reserved, inter alia, as follows:
    “The third defense is that the extension of time released defendants from their liability as guarantors. The facts in regard to the extension were undisputed, and we reserved that question. We have made a careful examination of the authorities, and while, if not ‘ read between the lines,’ some of the decisions may seen irreconcilable and contradictory, we think the principles that govern are well settled, and have no doubt that, by the extension of time, the defendants were released from their liability as guarantors.
    “Though defendants were guarantors, their guaranty was a special one. Their contract was to pay in one year if Thompson did not. Riddle was not found to use ordinary diligence, or, indeed, to make any effort to collect the judgment in the meantime, but could at once at the end of the year sue the defendants.
    “In such a case, ‘a guarantor is a species of surety, and is discharged from his liability if the creditor, by a subsequent valid contract, give time to the principal.’ Campbell v. Baker, 10 Wright, 243.
    “This decision, which has never been overruled but frequently quoted by the Supreme Court and its authority recognized, would seem authority sufficient on this point, but as there seems to be some confusion with other cases, we quote from Talmage v. Burlingame, 9 Barr, 24.
    “ ‘The truth is the contract of the surety, is with the creditor and not with the debtor . . . The most familiar instances are furnished by indorsements of negotiable instruments and guaranty of bonds and other choses in action, assigned or transferred by the guarantors. No one has ever thought of calling the validity of these contracts into question, nor has it ever been doubted that those entering into them are entitled to the advantage of every equity ordinarily attendant upon suretyship.’
    “For all practical purposes, the guarantors, in name the defendants, stand in the position of sureties, and must have the privileges as well as be subject to the burdens of the position they assumed by assigning and guaranteeing the payment of the judgment within a definite time.
    “In the case of Clippinger v. Creps, 2 Watts, 48, Creps accepted a confession of judgment from Cring, the principal debtor, with a stay of execution for one year, which Cring was not entitled to claim without entering security therefor, by reason of his real estate being incumbered by liens, and it was held that Clippinger, the surety of Cring in the note, was discharged, the Supreme Court saying: ‘ If a creditor, by any contract which can be enforced against him at law or In equity, gives time to the debtor, he discharges the sureties ; ’ and again they say the surety stands upon his contract, and is discharged from all obligation if any alteration is made in it without his consent, even where the arrangement so made is for his benefit. In that case, there was no allegation that the creditor received anything, or that the debtor agreed to do or pay anything for the extension granted. Indeed, it seems to have been rather a case of mutual mistake as to debtors’ right to a stay on the judgment. But however that may be, the creditor, as in this case, tied his hands by a valid contract, one he could not recede from, one that could be enforced against him, one in which the law implies a consideration, and to which it holds him, and the result was the same as though a valuable consideration had been paid as agreed on for granting the stay. '
    “ The judgment on the Sci. Fa. in this case is a judgment of the Court. The law makes it the duty of the prothonotary to enter such a judgment with stay of execution as agreed on by the parties; the plaintiff having by his attorney accepted the judgment, could not disregard it or treat the stay or extension of time as though no part of it and of no validity. By this act, he forever deprived himself of the power to restore defendants to the position they occupied in regard to the judgment at the time of their assignment of it to him ; he has interfered with their rights against the debtor and has released them from their engagement' to him as guarantors. When we say that the law implies a consideration in a case such as this, we do not wish to be understood as holding that there was not a consideration in fact. While Riddle had the right to proceed to collect the judgment at once, Thompson had the right to pay the same at any time and stop the running of the interest thereon. Riddle, on the one hand, waived his right to proceed. Thompson, on the other, waived his right to pay. We have no doubt that such mutual promises and waivers make a good consideration in law. The last decade has afforded many instances where money-lenders have been anxious to induce their debtors to make just such contracts, when the legal rate of interest was higher than that obtainable by investment in other good securities. For what is a sufficient consideration to support a contract, see Hind v. Holdship, 2 Watts, 105.
    “In coming to our conclusion that defendants are discharged, we have not noticed the fact that Thompson verbally agreed to pay an attorney’s commission for collection, and base nothing thereon, as the question whether it affected the contract for extension was not submitted to the jury.
    “Nor have we thought it necessary to rest anything on the fact that Riddle, in the revival of the judgment, undertook to decide when interest commenced to run on the judgment, and calculated interest from the delivery of the paper of guaranty, January 9, A. I). 1878.
    “The indemnity judgment did not on its face bear interest. Whether tine default having occurred before its entry, it would carry interest from that date, or only from the time of proceedings to collect, or whether Riddle could claim any interest from the guarantors, their guarantee saying nothing about interest until the expiration of the year, are questions that might be material and important. We can see no good reason why the date of delivery of the guaranty should be taken as the proper date from which interest should be charged on the judgment. An agreement between the assignee and debtor that interest should be paid in the meantime on a judgment not bearing interest, or an agreement by which they changed the date from which interest would lawfully run, might be under the authorities such an alteration of the contract as -would release the sureties. However that may be, we are clear that the agreement to extend the time made when the money was advanced, and afterwards embodied in the judgment on the amicable Scire Facias, on the 22d of April, A. X>. 1879, released and discharged Josiah M. Thompson, Solomon R. Thompson, and John C. Martin, the defendants, served, from their contract as guarantors with Riddle, and that he has no recourse against them. We do therefore enter judgment in favor of the defendants non obstante verdicto, May 21, 1883.”
    Plaintiff then took out a writ of error, and assigned the following errors:
    The Court erred in entering judgment for the plaintiff 11 non obstante ver dicto” on the reserved question of law, viz: Did Riddle by giving Thompson time, or extending the time of payment of the judgment, release the guarantors of the judgment, (the defendants in this case.)
    The Court erred in holding that the assignment of the j udgment by defendants in this case to the plaintiff was not .a guaranty, but created the relation of surety.
    The Court erred in not holding the assignment and guaranty sued on was a guaranty, and binding on defendants, and that the act of the plaintiff in extending the time did no injury to the defendants and that they are still liable.
    The Court erred in entering judgment for the defendants on the reserved questions.

      Charles McOandless and W.II. II. Biddle for plaintiff in error.

      The paper sued on was a guaranty. It was a collateral agreement that the judgment was valid and binding, and that if the defendant did not pay it, the guarantors would.. If the guarantors are not injured by the extension of the time of payment, they are not discharged from liability : Follmer v. Dale, 9 Barr, 83 ; 4 Greenl., 521 ; 8 Conn., 426 ; 46 Barb., 194 ; 45 Penna. St., 186 ; 64 Id., 242 ; 69 Id., 311 ; 77Id., 143 : 79 Id., 436 ; 59 Id., 95.
    The agreement to extend the time was without consideration ; and even if the defendants Avere sureties, they are not released: 35 Penna. St., 492; 36 Id., 519 ; 73 Id., 182 ; 3 Id., 437 ; 59 Id., 351; 40Id., 146 ; Chitty on Confer., 421; 10 Cal., 419 ; 30 Geor., 249 ; 8 Blatchf., 190 ; 6 Ind.. 113, 461; 16 Me., 72; 10 N. EL, 162; 13 Vt., 353; 14 Miss., 24; 5 Id., 684; 8 Mo., 49, 316; 4 Blatchf., 241; 5 Id., 367 ; 13 Ohio, 84 ; 17 Miss., 470 ; 7 B. Mon., (Ky.,) 217; 31 Mo., 459 ; 2 Paige, 497 ; 2 Johns., 554 ; 1 Bland, (Md.,) 528 ; 4 Band, (Va.,) 103 ; 10 Yerger, (Tenn.,) 362 ; 10 Paige, 76 ; 36 Penna., 517 ; 46 Barb., 194. '

      J. D. McJunltin, B. P. Scott, and T. C. Campbell for defendants in error.
    The language of the instrument sued on shows that the responsibility was to be immediate. The defendánts Avere, therefore, sureties : 11 W. N. C., 392 ; 10 Wr., 243 ; 2 P. F. Sm„ 440 ; 29 Id., 468 ; 1 Phila., 70 ; 1 Miles, 276 ; 1 Gr., 261; 1 Jones, 482 ; 13 Wr., 259 ; 21 P. F. Sm., 139 ; 4 Harris, 9 ; 9 Casey, 111.
    By an extension of time without his consent, the contract of the surety is absolutely broken.
    Changing the date of interest from parol to matter of record and fixing the liability absolutely instead of conditionally, constitute a sufficient consideration for extending the time : Clippinger v. Creps, 2 Watts, 48.
    October 29, 1883.
   — Pee Cueiam:

While there is a radical difference betAveen the liability of a surety and one Avho assumes a collateral obligation to guarantee the payment of the debt of another, yet the language of the agreement which shall constitute the one or the other has not always been clearly defined by the authorities. In the present case, we think the language used made the defendants in error sureties. They agreed the judgment should be paid at a time specified. On failure of the principal debtor to pay then, the obligation of the defendants in error to pay became absolute. The assignee could proceed against them at once. He was not required to pursue the original principal debtor to insolvency, nor even to issue execution against him. The plaintiff in error clearly extended the time of the payment. He arranged with the defendant in the judgment whereby the latter confessed a revival of the judgment with the extension of time incorporated therein. The confession of revival was a sufficient consideration for the extension of time therein agreed to be given. Had execution issued before the expiration thereof, it would have been set aside on motion of the defendant in the judgment. The learned judge ruled the case correctly.

Judgment affirmed.


author: GrREEN, J.

text:
    CLEARFIELD COUNTY.
    January Term, 1888,

      No. 275.

    May 1, 1883.
    Barnes v. Berwind et al.

    1. Where a deed conveys the right to all the coal under the soil, a stipulation therein by the grantor to indemnify the grantee from any damage that might arise from the giving way of the surface after the removal of the coal is notice to purchasers of the surface only from the time of record.
    2. Semble that such a stipulation is a mere personal covenant of indemnity of the grantor.
    3. In an action by the purchaser of the surface against the grantee of the mining rights for injuries caused by want of support, evidence of possession by the latter, under an agreement dated prior to the deed to the former, which agreement contained no release of damages, is immaterial, since inquiry would have resulted only in notice of the contents of the agreement.
    4. Support to the surface is part of the estate reserved to the grantor, and is of common right.
    5. As the owner of lands bounded by a street has title to the center of the street, the fact that tire public might be injured by the falling in of the ground over which the streets were laid does not deprive such owner .of the right to recover for the injury sustained by him.
    6. The destruction of a spring, occasioned by the falling in of the surface for want of sufficient support, is remediable in damages, without reference to the question of negligence in the mining operations.

      7. In such a suit evidence to show that other springs on the same hill where the surface did not cave in were also destroyed is immaterial.
    Before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.; Mercur, C. J., absent.
    Error to Court of Common Pleas of Clearfield County.

      Case by William Barnes against Charles F. Berwind and Allison White, surviving partners of Berwind, White & Co.
    Upon the trial in the Court below before Okyis, J., the following facts appeared:
    On May 10, 1873, Jesse Diggins agreed, by contract in writing, to sell and release unto J. A. Gf. White and L. G. Lingle “all the coal in the hill on land owned” by Jesse Biggins in Woodward township, and “ also the timber on said hill under eight inches in diameter, and the privilege of opening the veins at the lowest point or outcrop for drainage.” The agreement was recorded September 30, 1874.
    White and Lingle took possession, cut a water-drain on the surface, and proceeded to mine the coal, which they removed through an opening on an adjoining tract called the Eureka mine.
    In pursuance of the above agreement, Jesse Biggins made a deed, dated Becember 6, 1875, to Allison White, J. A. G. White, and Thomas L. Ogden, the vendees of White & Lingle, for the coal and timber as mentioned in the said agreement. In this deed, which recited that it was made to carry out the agreement of May 10, 1873, Jesse Biggins “agrees to hold the parties of the second part harmless, by reason of any damage which might arise from the surface giving way after the coal is removed, and hereby guarantees to the said parties of the second part, or their assigns, the right to. take out and remove all the coal hereby conveyed.” This deed' was recorded Becember 10, 1875.
    After the agreement of May 10, 1873, Biggins laid out a mining village on the side and at the base of the hill, and sold building lots, two of which, situate at the corner of Allegheny and High streets in this village, called Sterling, were purchased from him by William Barnes, the plaintiff, by agreement in writing, dated September 30, 1873. Barnes cleared the land, made some improvements on the lots, and occupied it with his family. The deed for the same was executed on July 24, 1874, and recorded January 27, 1877, and no reservation or mention of the coal and timber was made therein. It described the lot as bounded by Allegheny and High streets, and Oak and Cedar alleys.
    In September, 1877, defendants having removed the coal under a portion of the streets on two sides of plaintiff’s property and under plaintiff’s property itself for several feet, no pillars or supports being left by defendants, the surface caved in, making a wide hole three or four feet deep on each of these streets. One of these holes extended to within about twelve feet and the other to within about three or four feet of Barnes’ fence. They broke down the fences, destroyed a spring, and rendered the lot unfit for building purposes, and by reason thereof plaintiff was compelled to open an alley for access to his property.
    Defendants offered to prove by Peter Cameron, mining engineer, that other springs upon the hill were destroyed by mining the coal where the surface had not fallen in.
    Plaintiff objected. The objection was sustained, exception allowed, and bill sealed.
    The Court below charged the jury, inter alia, as follows :
    “ Where a man owns the coal or other minerals and the surface is not owned by another party, he has a perfect right to mine and take out all the minerals contained in that land of whatever kind, whether coal, or iron, or other minerals, in any way he chooses, without any regard whatever to the surface; he can operate it just as he pleases and to his own convenience and advantage ; he can take out all the coal and need leave no pillars of coal or artificial support for the surface, and if the surface falls in, as a matter of course, he cannot be held liable for damages, because it is all his own. But it frequently happens in mining districts that one party owns the minerals and another party owns the surface/ Where this is the case, the party owning the minerals has a perfect right to take out all the minerals contained in the land, but he is required to use such care and diligence in mining the coal or whatever minerals they are ; he must mine it in such away as to not injure the property of the other party. He may take out all the minerals, but he must do it in such a manner as not to disturb the surface. While he has got a good and perfect title to the coal and can take it out whenever he sees fit to do so, yet he must take it out in such a way as not to destroy or disturb the property of the man who owns the surface. In mining minerals, the old common law maxim is very appropriate, which is, “that a person must use his own property in such a manner as not to injure that of his neighbor.” In this case one party owned the surface and another owned the coal or minerals in it. [Mr. Barnes owned the surface and Berwind, White & Co. owned the coal, and they had a perfect right to take out every pound of coal that was in or under this one hundred and fifty feet square of surface owned by Mr. Barnes, if they saw fit to do so, but in doing so they were bound to leave the surface in its natural condition, so as not to injure the property of Mr. Barnes, who owned the surface.] If they themselves had owned the surface, as well as the coal, they could have mined it in any way that they pleased without regard to the surface, but when the title to the surface is in another party, as it was in this case, they are required by law to mine the coal in such a manner so as to leave sufficient support for the surface, either by leaving pillars of coal standing sufficient to protect the surface, or they can remove the pillars if they put in artificial supports to keep the surface from falling in. They must mine the coal in such a manner as not to injure the property of the owner of the surface. In consequence of which" mining two streets [High street and Allegheny street — in the village of Sterling, portions of the surface of which fell in in the immediate vicinity of Mr. Barnes’ property — right in front of it and alongside, I believe. This the plaintiff alleges was an injury to the value of his property. By reason of this, the streets were made impassable and the fences surrounding his lots were also destroyed, all of which would have an effect to depreciate the value of his property,] and the plaintiff also further alleges by reason of the taking out of this coal a spring on his property was destroyed after the surface began to give way. There seems to be no dispute on the part of the company mining this coal that the surface did fall in along these two streets, nor they do not pretend to say that they used due diligence in leaving sufficient support there for the purpose of keeping up the surface, but admit that they removed the pillars of coal and did not put in artificial support. [Now, gentlemen of the jury, to whatever extent that injured the value of this property, the plaintiff! is entitled to recover. Although the falling of the surface may not have been on that particular part inclosed by the fence, he would still be entitled to recover whatever damages he sustained.] His title to the property extends to the-center of the street on each side where it was bounded by the streets. He bought his property bounded by the streets; it is described by the streets being boundaries of it, and his title, therefore, goes to the center of the street. The public have a right of passage simply over the street, but the title to it belongs to him. [S.o, then, whatever injury was caused to his property by the falling in of the surface between the center of the street and his fence, although the surface within the inclosure remained intact, he is entitled to recover in this form of action, because it was their duty in taking out the coal to take it out in such a manner as to leave sufficient support there to prevent the surface from falling in, or if they had taken all the coal and removed all the pillars that were left standing to protect lives of the men while mining the coal, and had put in stones to keep up the surface, or other pillars of whatsoever was necessary to have supported the surface, then they would not be liable; but they having failed or neglected to do so, they are bound to make good the actual damages resulting to the property in consequence of the falling of the surface extending to the center of the street spoken of by the witnesses.]
    “These damages must be actual damages that he has suffered. You have no right to award him a fabulous sum for damages, but he has a right to be paid for whatever inconvenience he has been put to, and for what depreciation his property has suffered in value because of this falling in of this surface. But if the property has depreciated from other causes than the mining of this coal; if it has depreciated because the mining of coal there is not carried on as extensively as at the time he purchased his property, or any other cause which might affect the value of the property in the neighborhood, of course they are not liable for that. They can only be held responsible for the depreciation of the value of the property caused by falling in of the surface in consequence of their not having left sufficient support to protect the surface. That applies to both the falling in of the surface as well as the destruction of the spring caused by the falling in of the surface. If, however, the taking out of the coal itself destroyed the spring without the surface having fallen in, then it was only a natural consequence of their right, and the plaintiff would have no remedy for the loss of his spring, and he would not be entitled to recover anything in this action for the destruction of the spring on his premises. If the natural consequence of simply taking out the minerals cut off the supply of water supplying that spring; if by taking out the coal it was necessary to destroy that spring, then it is a loss to the plaintiff for which he has no remedy. They owned the coal prior to the time that he owned the surface, and had a right to take all the coal out that was there ; and any natural consequence resulting from their mining that coal affecting the water in that spring, as a matter of course they cannot be called to respond in damages for it. [But if this spring was destroyed in consequence of the falling in of the surface, and the falling in of the surface was caused by the defendants mining their coal, then they are responsible for such result., and are liable for damages to whatever extent it depreciated the value of plaintiff's property; and the plaintiff in that event would be entitled to a verdict at your hands for such damages.] In ascertaining what the damages would be, you are not to give some fanciful value to the spring, but only such damages as it actually depreciated the value of the property.
    “Now, gentlemen, in disposing of this question of damages, if from all the evidence you are satisíiéd the plaintiff is entitled to recover, you will first ascertain what damages was sustained by the falling in of the surface. If you find that the falling in of the surface was occasioned by the mining of coal by these defendants, and then if the destruction of the spring was caused by the falling of the surface in the manner we have stated, you will ascertain what the loss of the spring was and add it to the damages he sustained by the falling of the surface of the streets adjoining his property, and whatever you find the injury to the property to have been that the plaintiff is entitled to recover, and your verdict should be for that amount with interest from the time it occurred up to the present time.
    “Gfentlemen of the jury, these are all the instructions this case demands. You will take it and consider it.under all the evidence and the rules we have laid down to you. If the plaintiff has satisfied you that he is entitled to recover, you will award him such damages as he is reasonably entitled to — -not any wild or speculative damages. In this case, he is entitled, if at all, only to recover such damage as his property has really sustained, and whatever you find the amount of these injuries to be he is entitled to recover, with interest on it from the time it occurred up to the present time.”
    Counsel for defendants presented, inter alia, the following points of charge, which the Court refused to affirm;
    4. That the contract of defendant with Diggins for the purchase of the coal, dated May 10,1873, and the conveyance in pursuance thereof, dated December 6, 1875, must be taken together as the contract of the parties, and gave to the defendants the right to remove all the coal in the hill without liability to the plaintiff for the falling of the surface by reason thereof.
    6. That if these lanes or alleys adjoining plaintiff’s lots are public highways, then the plaintiff as an individual has no right of action for an injury done to the surface thereof. No special injury or damage is laid in the pleadings in this case as resulting to him or his property from the want of the use of said streets or lanes, and he can not recover for such alleged inj ury to the surface in this action.
    7. If the said lanes or alleys have never been opened and used as public highways, the same not being included within the limits of the boundaries of plaintiff’s lots, he cannot recover in this action for the alleged injury to the surface thereof.
    9. In order to entitle the plaintiff to recover in this case for the loss of the spring, he must satisfy the jury by affirmative evidence that it -was done by the defendants carelessly or negligently conducting the mining operations.
    Defendants’ counsel excepted to the refusal of the Court to admit the testimony above mentioned, to the answers to the points, and to the charge of the Court.
    November 21, 1882, verdict for plaintiff for $301 30, upon which judgment was afterwards entered.
    Defendants thereupon took out a writ of error, assigning as error those portions of the charge included between brackets, the refusal of the Court to affirm the points of charge, and the. overruling of defendants’ offer to prove that other sjjrings were destroyed by mining the coal.

      Franlc Fielding for plaintiffs in error.
    The stipulation in the deed to plaintiffs in error for indemnification against any damage released them from all liability to defendant in error for the falling in of the surface. Jones *. Wagner, 16 P. P. Sm., 435 ; Bainbridge on Mines, 434; Lead. Cas. on Mines, 616; Scranton v. Phillips, 13 Norris, 15; Coleman v. Chadwick, 30 P. P. Sm., 87.
    The destruction of public highways is an injury to the public, and defendant in error could not maintain an action without alleging and proving special damage to his property.
    W e are not liable for the destruction of the spring by mining, and the evidence should have been admitted to show that the mining, and not the subsidence of the surface, destroyed the spring.

      Murray & Gordon for defendant in error.
    The right of the surface owner to support is an absolute right, and the failure of the mineral owner to leave in or put in sufficient support is negligence per se, Jones ®. Wagner, 16 P. F. Sm., 434; Horner ®. Watson, 29 Id., 248; Coleman®. Chadwick, 30 Id., 87; Carlin ®. Chappel, 40 Leg. Int., 59.
    The right to recover for injury by breaking of the surface of the street rests upon the same ground as the right to damages for the same kind of injury within the lines of the lot. Lewis ®. Jones, 1 Barr, 336 ; Cox ®. Freedley, 9 Casey, 124; 2 Tr. & Haly, 4th Ed., 60.
    Plaintiff is entitled to recover for loss of the spring, though occasioned by the ordinary operations of mining. Coleman ®. Chadwick, 30 P. F. Sm., 87.
    The stipulation in the deed could have no effect upon one whose rights attached before its date.
    October 1, 1883,
   the opinion of the Court was delivered by

GrREEN, J.

It might well be questioned whether the stipulation in the deed from Higgins to White and Lingle to hold the latter harmless against damages that might arise from the giving way of the surface after the removal of the coal underneath is anything more than the mere personal covenant of indemnity of the grantor. It is such in terms, and we see no sufficient reason for giving it any larger effect than this, but we do not decide the question because it does not necessarily arise under the evidence. In the deed, this provision is described as something in addition to the original article of agreement for the sale of the coal, and so in fact it is. That agreement provides only for the sale of the coal, and of the timber of less than eight inches’ diameter. Nothing whatever is said as to any release or indemnity for damages to the surface in the removal of the coal. It is dated May 10, 1873, and, being recorded September 30, 1874, would be notice of its contents from that time. The deed from Biggins and wife to Barnes was made July 24,1874. Whether there was such taking of possession by White & Lingle, under the agreement of May 10, 1873, as would put Barnes upon inquiry, and charge him -with notice, is not material, as he would only be chargeable with notice of the contents of the agreement, and according to that paper there was no grant of the right of surface support by the vendor, Big-gins. We have so recently reviewed the subject of the right to surface support, in the case of Carlin & Co. v. Chappel, 40 Leg. Int., 59, that any discussion of it at this time is unnecessary. We said, in Coleman v. Chadwick, 30 P. P. S., 81, that “support is part and parcel of the reserved estate; it is of common right, and hence must pass, if at all, by express grant, and is not to be defeated by mere implication arising from language that does not import such an effect.” The same doctrine was practically affirmed in Jones v. Wagner, 16 P. P. S., 434, and Horner v. Watson, 29 Id., 248. Scranton v. Phillips, 13 Norris, 15, decides that the right of support might be conveyed by the express words of a grant, and in no wise conflicts with the doctrine of the previous cases. But here there was no such conveyance, nor anything indicating that the grantor intended to part with his right to surface support. That right, consequently, remained with him and those claiming under him until, at least, the date of the deed to White & Ogden, December 6,1875. But, in the meantime, Barnes, the plaintiff, had acquired the property sold to him, by deed of July 24, 1874, and was entitled to the full benefit of the rule which protected his right of support. We see no error, therefore, in the charge of the Court below in affirming this right and in holding the defendants liable in damages for injury to that right. Nor do we discover any error in the matters covered by the remaining assignments. The sixth and seventh points of the defendants were properly refused. In Lewis v. Jones, 1 Barr, 336, we held that one who deposited fence rails on a highway commits a trespass against the owner of the soil, and in the opinion, such a trespass was likened to that which would result from the deposit of any offensive material in the highway in front of the owner’s dwelling-house. That the owner of land bounded by the side of a street has title to the center in the absence of express reservation to the contrary, was decided in Cox v. Freedley, 9 Cas., 124, and Paul v. Carver, 2 Cas., 223, and is the undoubted law of this Commonwealth. The fact that the public might be injured by the falling in of the ground over which the streets were laid in no way deprived the plaintiff of the right to recover for the injury sustained by him. The loss of plaintiff’s spring was also remediable in damages, without reference to the question of carelessness or negligence in the mining operations of the -defendants, if it was occasioned by the falling in of the surface for want of sufficient support, which was the only way in which the Court submitted that subject to the jury. We cannot see the materiality of the offer to prove by one of the witnesses that he knew of other wells or springs that were dried up on the same hill. The evidence is not printed, but we are bound to assume, under the charge, that this spring was lost by the falling in of the surface, and, if so, it is of no consequence whether, other springs were dried up or not.

Judgment affirmed.


author: Per Ctjriam :

text:
    January Term, 1883,
    No. 156.
    April 30, 1883.
    Churchman et al., Ex’rs, v. Wright et al., Admr’s.
    A tenant in common of timber land authorized his executors to sell the land whenever they should think it would bring its real value. After his death his executors had the timber cut and sold, and they received the proceeds. Held: That the power of sale worked a conversion of the realty to personalty and gave the executors full authority to dispose of it.

      Held further: That they were liable as executors to the co-tenants of the testator for the proportion of the latter in such proceeds and that the co-tenants were not obliged to look to them as individuals.
    Before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.; Mercur, C. J., absent.
    Error to tbe Common Pleas of Clearfield County.

      Assumpsit by W. V. Wrigbt and William Porter, administrators of the estate of John W. Wright, deceased, against George Churchman and Caleb Churchman, executors of the last will.and testament of George W. Churchman, deceased, to recover one half the value of certain timber cut upon the common property of Wright and Churchman in Clearfield county.
    At the trial before Orvis, A. L. J., November 14,1882, the plaintiff gave evidence of the following facts:
    On December 6, 1866, Thomas Henderson and others Sold to George W. Churchman and A. K. Wright, W. V. Wright, and J. W. Wright about five hundred and fifty acres of timber land in Clearfield county, which they held as tenants in common, Churchman having one-half interterest and the Wrights one-half interest therein. At the time the suit was brought, the Wright interest was vested in W. V. Wright and the heirs of his brother, J. W. Wright. George W. Churchman died before suit was brought, leaving a will of which he appointed George Churchman and Caleb Churchman his executors, and in which, after making disposition of other real estate than the Clearfield land, he devised as follows: “I will all my other real estate and personal property to be sold whenever my executors may think it will bring its real value.”
    Before Churchman’s death, the land was used ‘ ‘ for taking off square timber.” After his death, the executors used the land just as before. In 1874, George and Caleb Churchman rendered an account to the Wrights, showing a balance due to the Wrights of $4,283 95. It was headed “ 0. and G. Churchman, executors,” and was in the handwriting of George Churchman.
    Five rafts were made off this land in the winter of 1874-5. Churchman took possession of this timber and never rendered any account of it. He made an agreement with one Kline to take out the timber for 1875.
    The defendants offered in evidence the will of George W. Churchman, but no further testimony.
    The Court charged the jury as follows :
    “This is an action brought by W. Y. Wright and William Porter, the administrators of J. W. Wright, deceased, against the executors of George W. Churchman, deceased, to recover a balance alleged to be due by that estate to the plaintiffs. [There is no question of fact in dispute in the case. The plaintiffs’ claim is admitted by the defendants to be correct, but the question which arises in the case is a question of law for the Court to decide, which is whether or not the executors of George W. Churchman, deceased, whether the estate of the deceased is liable for this claim, or whether George Churchman and Caleb Churchman are liable individually, and not as executors of George W. Churchman, deceased. That is the real question in this case, and for the purpose of this suit we will instruct you, gentlemen of the jury, to find for the plaintiffs the fact that this land referred to in this suit, having been purchased for lumbering purposes before the death of George W. Churchman, although not operated until after the death of George W. Churchman by his executors, the estate is bound by tneir acts and the Wrights would be entitled to recover the amount you find due under all the evidence in the case, and your verdict should be for the plaintiffs for that amount, with interest from the time it was due.]”
    Yerdict for plaintiffs for $11,771 69, and judgment thereon.
    The defendants thereupon took this writ, assigning for error the portion of the charge in brackets above, and the action of the Court in not submitting to the jury the question of fact as to how much, if anything, was due to the plaintiffs from the defendants upon the evidence in the case.

      Murray^ & Gordon, Hood GiVpin, and Charles Gilpin for plaintiffs in error.
    The will of George W. Churchman gave his executors authority to sell the lands in Clearfield county, but no authority to buy from the Wrights the interest of the Wrights in the timber cut upon the land and delivered by the Wrights to the plaintiffs in error, and charge the estate of George W. Churchman, deceased, with the value of that timber so delivered. The plaintiffs in error, who are two of the heirs of G. W. Churchman, deceased, might act individually or as agents for the Wrights, who are their co-tenants in common, but cannot bind the estáte of George W. Churchman, because there is no power in the will from which such an authority could be implied: Brush v. Ware, 15 Peters, 111; Williams on Executors, 1, 717, 6th Am. Ed.
    Unless the executor is authorized by the will or statute, he can do nothing with regard to testator’s real estate ; nor can he, unless so authorized, do any act in respect to the personal estate to take the same out of the ordinary course of distribution; Chew Chew, 4 Casey, 17; Boss v. Barclay, 6 H., 179; Waters v. Margerum, 10 Sm., 39; Oeslager v. Fisher, 2 Barr, 467.

      Wallace & Krebs for defendants in error.
    When a will contains an absolute direction to executors to sell, it vests the legal estate in them, mrtute officio, and so long as they remain executors, they can deal with it in no other capacity but as executors.
    We contend that under the will the executors had power to deal with the timber as they did, and were liable to account to their co-tenants as executors and not as individuals, because

      First. The will, by its express direction, works conversion of the real estate into personalty.

      Secondly. It was manifestly to the interest of the estate that this timber should be cut and sold.

      Thirdly. This will is equivalent to a devise to the executors of the property, real and personal, for the purpose of sale and conveyance: Shippen’s Heirs v. Clapp, 4 Casey, 265.
    It broke the descent, and vests the legal estate in the executors: Miller v. Meetch, 8 Barr, 425; Allison n. Wilson, 13 S. & B., 332; Morrow v. Brenizer, 2 B., 185; Allison v. Knrtz, 2 Watts, 185 ; Dundas’ Appeal, 14 Sm., 330.

      Gilpin in reply:
    The argument for defendants in error seeks to establish the fact that the power given to the executors of G. W. Churchman worked a conversion of the real estate, and that they could deal with it in no other way than as executors. That there was a conversion does not help the casé of the defendants in error, for it was only Churchman’s interest which was converted, not the Wrights’. To the Wrights, they are accountable as agents; to the Churchman heirs, they are accountable as executors : Seip v. Drach, 2 Harris, 352.
    May 21, 1883.
   Per Ctjriam :

The will of George W. Churchman provided for the sale of the real estate, from which the timber, which forms the subject of the present controversy, was taken, whenever his executors should think it would bring its real value. This direction not only worked a conversion of the realty, but also gave the executors the full power to dispose of it, and this power they were to exercise in such a way as to realize the greatest sum possible from the property committed to their care. Now, as the lands were timbered and unimproved, and as they were held with tenants in common, the executors seemed to think, and in this they were doubtless right, that the largest amount could be realized from them by having the timber manufactured and put into the market. Had this timber, at the time of the testator’s death, been cut down and lying in the woods, I suppose that no one would contend that the executors had not the power to contract with the tenants in (Common, or others, to manufacture and market it. But as the whole property in their hands was, in effect, but personalty, we can see no good reason why they could not so contract to have it taken from the stump, manufactured, and marketed. As to the remaining assignments, we have but to say, that they complain of the Court for not doing just what it did do. The Court did submit the evidence to the jury, and told them that the Wrights would be entitled to recover the amount they might find to be due them, under all the evidence of the case.

The judgment is affirmed.


author: — Per Curiam:

text:
    DAUPHIN COUNTY.
    May Term, 1882,
    No. 65.
    June 1, 1882.
    Appeal of A. Douden.
    1. A mechanic’s lien filed against the estate of a married woman is absolutely void, unless it shows upon its face all that is necessary to give it effect.
    2. A judgment obtained on a scire facias issued upon such void lien is also void as against the mortgagee of the married woman, and an auditor appointed by the Court to distribute a fund should disregard it.
    Before Sharswood, 0. J.; Merctjr, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal of A. Douden from the decree of the Court of Common Pleas of Dauphin County, confirming the report of an auditor and directing the assignee of John P. Woland and wife to pay to the Mifflintown and Patterson Building and Loan Association certain moneys.
    On the 20th of February, A. D. 1878, John P. Woland and Lydia B., his wife, made an assignment for benefit of creditors to John K. McGann. The entire assigned estate consisted of a single lot of ground, situated in Halifax township, Dauphin county, Pa., and on which was erected a frame cottage. On December 7,1878, the assignee, under an order of Court, sold the said property for the sum of six hundred dollars. On the 25th of March, 1881, the assignee filed his account in obedience to a citation issued for that purpose.
    On May 12, 1881, Robert Snodgrass was appointed auditor to pass upon the exceptions filed, and surcharge the accountant, if liable, and to make distributions to and among his creditors.
    The auditor surcharged the assignee with interest, making the balance in the hands of the assignee for distribution to lien creditors the sum of $444 69.
    The lot of ground was conveyed by Adam Lime to Lydia B. Woland December 12, 1873, and the deed for the same was not recorded until January 19, 1880.
    Early in the year 1874, the erection of a frame dwelling was commenced on said lot of ground and completed during that year. A. Douden, a manufacturer of lumber, owning a planing-mill at Millersburg, Pa., furnished all the lumber and wood material in the construction ahd erection of said building, and filed, April 26, 1875, a mechanic’s lien against the said building and curtilage, under the provisions of the act of Assembly providing for such liens, for the sum of $338 31. The lien was entered against John P. Woland and Lydia B. Woland. She was not described either in the lien or bill of particulars as a married woman. A scire facias on this lien was regularly issued to No. 718, April term, 1880, appearance entered by defendant and judgment obtained July 26, 1880, for want of an affidavit of defense for $462 37, with interest and costs.
    It was conceded that the Mifflintown and Patterson Building and Loan Association was entitled to the amount awarded to judgment No. 297, November term, 1877, viz: $221 83, which was a lien at the time Lydia B. Woland acquired title and since revived.
    In addition to the last-mentioned judgment, the building association held a mortgage for $400 upon said real estate, given by. John P. Woland and wife, on July 27, 1874, and recorded December 3, 1874.
    The actual amount in dispute, therefore, was only $222 66, and this sum was claimed by the Building and Loan Association and also by Douden. The claim of the ¡former is founded upon said mortgage.
    The claim of Douden was founded on his mechanic’s lien. The auditor held that he could not inquire into the validity of the judgment on the scire facias, and awarded to the judgment on mechanic’s lien of A. Douden the sum of $222 66, to which exceptions were filed by the Mifflintown and Patterson Building and Loan Association.
    The opinion of the Court below was delivered by Henderson, J., as follows:
    “The Mifflintown and Patterson Loan and Saving Association denies the validity of the mechanic’s lien of A. Douden, and the judgment thereon entered to No. 718, April term, 1880, against John P. Woland and Lydia B. Woland, and contends that the same created no lien against the estate of Mrs. Lydia P. Woland, a married woman.
    “It is earnestly argued and many cases are cited and relied upon to show the defective character of the claim filed, and its insufficiency to charge the lien upon the wife’s separate estate. We cannot say, upon the inspection of the record merely, that this lien is absolutely void. It is entered against J. P. Woland and Lydia B. Woland, owners, or reputed owners, and contractors for lumber furnished and work done by A. Douden. The property out of which, the fund arises for distribution is accurately-described, and the fact is it belonged to Lydia B. Woland, a married woman, and the contract was made and lien entered during coverture. There are no averments that conclude her. This much is perhaps conceded. But a scire facias was issued and judgment entered upon it. What then ? ‘ The auditor had not power to go behind the judgment in the amicable scire facias in the case of Emiline Lutz ■». John Edwards, and declare it void and no lien for want of a stamp, or on any other ground of irregularity’: Edwards’ Appeal, 16 P. F. S., 90. ‘It is only when void that a judgment may be disregarded, because in that case it is incapable of giving or continuing a lien.’ Now turn to Brunner’s Appeal, 11 Wright, 75 : ‘We hold that the judgment given by Magdalena Hoffman to the appellant was void and no lien upon the land sold. Being absolutely void, the auditor’s duty was to disregard it.’ So far as we can judge from the report of this case, the fact of coverture did not appear on the face of this record. The judgment was entered, apparently, against Magdalena Hoffman. But what of this % ‘ Had it been only voidable, application should have been made to the Court to rid the record of it, and that might have been done either by the obligor in the bond or a mortgagee claiming under her.’ ‘But. the rule enunciated in Dyott’s Estate, 2 W. and S., 557, is inapplicable to a judgment void on its face.’
    “ Here, now, this judgment, in the light of the evidence and admitted facts, is absolutely void, and should have been so declared by the auditor. But granting that it is only voidable, the Coui’t may set it aside either upon the application of the defendant or of a mortgagee claiming under her. The wife does not and need not speak during coverture.
    ‘ ‘ To require her to do this, would deny her the protection the law throws around her in the possession and enjoyment of her separate estate, or, perhaps, expose her to unseemly contests with her husband. We must disregard this judgment in the distribution of the fund in controversy. We think, with the facts before us, the auditor erred in finding that the judgment of A. Douden was a valid lien against the property of Mrs. Lydia B. Woland, and awarding any part of the fund to him.
    “We direct that the auditor’s report be corrected, in accordance with this opinion.”
    The auditor afterwards filed his amended report, awarding the said balance of $222 66 to the Mifflin town Building and Loan Association in accordance with the above opinion.
    Counsel for A. Douden filed the following exceptions to the amended report:

      First. The auditor erred in disallowing judgment No. 718. April T., 1880, of A. Douden.

      Second. He erred in passing by and disregarding said judgment of A. Douden, No. 718, April T., 1880, and in distributing amount due thereon to mortgage of Miffiintown Building and Loan Association, which was a lien upon assignor’s real estate of a subsequent date to that of said judgment of A. Douden.

      Third. He erred in not treating said judgment of A. Douden as absolutely valid and a legal and binding lien upon said assignor’s real estate, and as such entitled to participate in said distribution.
    On March 6, 1882, the exceptions were overruled and the report confirmed absolutely.
    The exceptant then took out a certiorari, assigning as error the overruling of the exceptions and the confirmation of the report.

      J. M. Wiestling and S. S. Bowman for appellant.
    A lien defective against the property of a feme covert is not void as to third parties or subsequent creditors: Dearie v. Martin, 28 P. F. Sm., 55; Lloyd v. Hibbs, 31 P. P. Sm., 306; Schriffer v. Saum, Ibid, 385; Shannon v. Shultz, 6 Norris, 481; Kuhns v. Turney, Ibid, 497; Loomis v. Pry, 10 Norris, 396; Brown v. Bennett, 25 P. P. Sm., 420.
    The validity of a mechanics’ lien can only be inquired into on demurrer or motion to strike off: Sholl v. Gterhab, 12 Norris, 346; 5 W & S., 262; 12 Casey, 347; 16 P. P. Sm., 340 ; 25 Ibid, 388; 2 Wr., 471; 25 P. F. Sm., 388.
    The auditor cannot inquire into the validity of the judgment : 4 Watts, 341; 2 W. & S., 557; 6 W. & S., 315; 7 P. F. Sm., 175; 6 W. N. C., 153; 16 P. P. Sm., 90; 1 Nor., 68 ; 5 W. & S„ 473; 8 Barr, 477; 19 P. P. Sm., 16 ; 4 P. P. Sm., 120; 17'P. P. Sm., 459 ; 7 W. R., 279.

      Fall & Jordan for appellee.
    The lien does not set out the requisites to make it valid against a married woman’s property, and is, therefore, void: Steinman v. Henderson, 13 Ñor., 313; Loomis v. Pry, 10 Nor., 396; Shannon v. Shultz, 6 Nor., 481; Schriffer v. Saum, 31 P. P. Sm., 385; Dearie v. Martin, 28 P. P. Sm., 55.

      A judgment on a mechanics’ lien is not even prima facie evidence as against other lien creditors: 1 Tr. & H. Pr. S., 1332; Denkel’s Est., 1 Pears, 213; Smedley v. Conaway, 5 Clark, 417; N orris’ Appeal, 6 Casey, 122; Field n. Oberteuffer, 2 Phila., 271; Knabb’s Appeal, 10 Barr, 186, and may be disregarded or set aside by the auditors: Knabb’s Appeal, 10,Barr, 186; Hauer’s Appeal, 5 W. S., 473 ; Smedley v. Conaway, 5 Clark, 423.
    October 2d, 1882.
   — Per Curiam:

The mechanics’ lien of the appellant being entered against the estate of a married woman was absolutely void. Such a claim must show upon its face all that is necessary to give it effect. This is well settled; but it is contended that judgment having been entered on the scire facias, it became good and available, at least as against other lien creditors. To say that it is void against the married woman, makes it void also against her mortgagee, who stands in her shoes: Dorrance v. Scott, 3 Whart., 309.

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


author: — Per Curiam :

text:
    May Term, 1882,
    No. 72.
    May 31, 1882.
    Wareham v. Hummel.
    A owned a lot of ground subject to a mortgage in favor of C, and sold part of the lot to D, who agreed to pay the mortgage as part of his purchase money. Afterwards A sold the remaining part of the lot to E, who retained $400 of the purchase money to protect himself from said mortgage, and agreed to pay the same to A upon satisfaction thereof. C proceeded to foreclose the said mortgage, and upon the day appointed for sale, E paid the mortgage and costs, being more than $400, to protect his property from sale. O’s attorney, without E’s direction or authority, assigned the judgment and mortgage to E, assignee of A’s husband, for the benefit of creditors. After frequent requests, D paid to E the amount due upon this judgment and mortgage, and they were satisfied of record. The assignment and satisfaction were made without the knowledge of A, who immediately upon learning of them brought suit against E for the $400 retained by him.

      ileld that E was entitled to protect his property by such payment, and that, as he had given no directions that the mortgage and judgment should be assigned instead of satisfied, the payment was a complete defense.
    Before Sitarswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.

      Error to Court of Common Pleas of Dauphin Qounty.

      Assumpsit by Samuel Wareham and Susan Wareham, his wife, in right of the said Susan Wareham against George W. Hummel.
    On the trial in the Court below, before J. W. Simon-ton, P. J., the following facts appeared:
    Mrs. Susan Wareham owned a lot of ground in Harrisburg on Second street, extending back to Penn avenue.This lot was subject to the lien of a mortgage in favor of John Forster’s executors, and assigned to Ellen Forster, now Mrs. Ellen Bent, for $333, with interest from October 3, 1875. J. Wesley Awl bought that part of the lot fronting on Second street from Mr. Kirby, a vendee of Mrs. Wareham, who had agreed to pay this mortgage as part of his purchase money, but had failed to do so. Mr. Awl then agreed to take Mr. Kirby’s bargain, and to pay this mortgage of $333 and interest as part of his purchase money.
    On April 1, 1874, Mrs. Susan Wareham sold the Penn avenue part of this lot, on which were built three houses, to George W. Hummel, the defendant, for $2,400. Hummel paid $2,000 cash and received the deed.’ By agreement with Mrs. Wareham, he retained $400 of the purchase money due her in order to protect himself against the lien of this mortgage, and gave to Mrs. Wareham the following obligation:
    Harrisburg, Pa., April J, 187f

    On satisfaction of a mortgage from Samuel Wareham and Susan Wareham, his wife, to the executors of General John Forster, recorded in Mortgage Book Q, page 266, and assigned to Ellen R. Forster, 1 hereby promise to pay to Susan Wareham the sum of four hundred dollars, it being part of the purchase money for property bought by me from Susan Wareham, covered by this mortgage.
    George W. Hummel.
    At the time of the purchase and the giving of this obligation, Hummel knew that Awl had agreed to pay this mortgage and interest. He preferred to retain the $400 of the purchase money under the terms of the above obligation. Hummel paid Mrs. Wareham $130 on this obligation, on account of principal and interest prior to the time of the trial.
    On November 10, 1876, Mrs. Ellen Bent issued a scire facias on the mortgage, and obtained judgment for $442 04. A levari facias was issued against the houses and lots sold to Mr. Awl and Mr. Hummel, and they were advertised by the sheriff for sale on April 16, 1877. On this day, April 16, 1877, Mr. Irwin, as attorney for Mrs. Bent, Mr. McAlarney, attorney for Wareham and Hummel, and Mr. Hummel, met in the prothonotary’s office, where Mr. Hummel paid to Mr. Irwin the debt, interest, and costs. Mr. Hummel testifies: “I paid the debt, interest, and costs to Mr. Irwin ; I said nothingabout satisfying, nor inquired about satisfying it; I took it for granted that when I paid the debt and costs it would be satisfied as a matter of course. I took it for granted that Mr. Irwin, being the attorney of the person who held the mortgage, if he got the money, he would certainly go and satisfy the mortgage.”
    Instead of satisfying this judgment, Mr. Irwin assigned it to John W. Killinger, and the levari facias was stayed.
    Mr. and Mrs. Wareham were ignorant of this transaction, and knew nothing of the assignment to Killinger. J. W. Awl testified that he knew nothing of this assignment at the time it was made. Afterwards, Mr. Killinger and Mr. McAlarney made frequent applications to him, and requested him to pay them this mortgage and the judgment based on it. On December 22, 1877, Mr. Awl paid this money to Killinger, who satisfied the judgment and the mortgage, which had also been assigned to him.
    Samuel Wareham had made an assignment for the benefit of his creditors, and had appointed John W. Killinger his assignee. Mrs. Wareham’s separate property was in no way involved in the assignment. Killinger had nothing to do with her property, yet he claimed to hold the money received from Mr. Awl because Mr. Wareham was indebted to him on account of this assignment.
    About April 12, 1880, upon an examination of the record of the Forster mortgage, it was learned by Mrs. Wareham for the first time of the assignment to Mr. Killinger, the payment to him by Mr. Awl, and the satisfaction by Killinger.
    After demand being made upon Mr. Hummel for the balance due on his obligation, this suit was brought.
    The Court below charged the jury, inter alia, as follows :
    “ Mr. Hummel testifies that he paid to Mr. Irwin — that he said nothing about satisfying, nor inquired about satisfying it; that he took it for granted that when he paid the debt — the property being levied upon and up for sale — that when he paid the debt and costs, it would be paid and satisfied as a matter of course. [Mr. Irwin did transfer it to Mr. Killinger; there is no doubt about that. Mr. Irwin says he must have had some direction from some person to do that, and he infers from this that the direction came from Mr. Hummel; but he says at the same time that he has no recollection that Mr. Hummel directed him to transfer it;] and Mr. Hummel testifies positively that he did not give such direction, but that he took it for granted it would be satisfied. Mr. Killinger tells us that, while he did not know at the time that it was transferred to him, yet he was assignee for the benefit of creditors of Mr. Wareham, and he had been advancing money for Mr. Wareham, and he supposed that Mr. Wareham had directed it to be transferred to him for his protection, and to keep it alive as against Mr. Awl, who had promised to pay. it, Mr. Awl having purchased some of the property that was bound by this mortgage. But Mr. Killinger tells us that he had no arrangement whatever with Mr. Hummel, that he was not furnished with money by Mr. Hummel, had no arrangement to pay this and he paid back the money by Mr. Hummel, but that he received the money finally from Mr. Awl on this mortgage, and that he has that money still, but that there was no arrangement or agreement to finally account to Mr. Hummel in regard to it. So that, on the one hand, to determine the question of fact, you have Mr. Hummel’s testimony and Mr. Killinger’s testimony that there was no arrangement between them ; and, on the other hand, you have Mr. Irwin’s testimony that Mr. Hummel, he thinks, or Colonel Awl, for Mr. Hummel, must have told him to assign it to Mr. Killinger, or he thinks he would not have done so.”
    [“Now, if you should find that Mr. Hummel did not direct it to be assigned to Mr. Killinger, then there would be nothing whatever in the way of your assuming or finding that Mr. Hummel paid this mortgage off, so far as he was concerned, for the purpose of protecting his property from being sold at the sheriff’s sale; and if you find that, we say to yon that he had a perfect right to do that — that he had a right to prevent that sale — that Mr.- Wareham not having had the mortgage satisfied, and Mrs. Ware-ham not having it done, Mr. Hummel, having waited until he was about being sold for this debt, had a right to pay it off in order to prevent his property being sold. If you believe Mr. Hummel did pay it off, and understood he 'was paying this mortgage off to plaintiff’s attorney to keep it from being sold, then it would be a perfect defense to the plaintiff’s claim. Besides that, it would leave Mr. Hummel some $204 37 out of pocket, instead of this plaintiff having any claim against him.”]
    [“ It is said here by plaintiff that it was Mr. Hummel’s negligence at any rate that allowed it to be transferred to Mr. Killinger. Now, we say that Mr. Hummel was not under any obligations in regard to that. The plaintiffs were negligent in allowing this property to come up for sale. It was their business to pay off this mortgage and not Mr. Hummel’s business, and he paid it off 'when he was forced to do it, according to the testimony, to protect his property from being sold; and he did right to pay that money to the plaintiff’s attorney, and it was not negligence in him, after he did pay, not to see that it was satisfied. It was their business to do that, to see'it was satisfied, because they should have satisfied it before it came to that point.] Mr. Hummel was acting in self-protection, and they cannot complain of him for doing that. It was transferred, as a matter of fact, to Mr. Killinger, and afterwards, as the testimony shows, Mr. Killinger collected the amount of the mortgage from Mr. Awl. Mr. Awl was the person who, according to the arrangement between all the parties, was to have paid, and, therefore, it was not for Mr. Awl to complain. He simply did what he had agreed todo. Mr. Killinger has the money. [It is said here that this is Mrs. Wareham’s money and not Mr. Wareham’s, and that, therefore, Mr. Killinger had no right to get this money, and that Mr. Hummel had no right to do anything that would keep it from Mrs. Wareham. It is said that Mr. Hummel, even if not interested in this transfer, owes this money to Mrs. Ware-ham, and that Mr. Hummel can claim his money from Mr. Killinger. We do not understand this matter in that way. According to the whole testimony in the case, we make it out in this way: That if Mr. Killinger has no right to this money, then he holds it for Mrs. Wareham ; he does not hold it for Mr. Hummel; Mr. Hummel has no claim against Mr. Killinger.] [Mr. Hummel paid his money to protect his property from being sold by the sheriff, and we instruct you, as a matter of law, that if you find that Mr. Hummel did pay this money to Mr. Irwip on the day before' the property was to be sold by the sheriff, Mr. Irwin being the attorney for the plaintiff on that mortgage, and Mr. Hummel gave no directions that this mortgage should be transferred to any one else, but took it for granted that it would be satisfied, we in- ' ri struct you that he did all that he was bound to do. If you find these facts, that would be a complete defense on his part to the claim in this action.] [If Mr. Killinger has no right to the money that he holds as Mrs. Ware-ham’s, she must look to liim for it.] But after alio wing it to go on sale, and within one day from the time they were going to sell this property away from Mr. Hummel he had a right to pay to Mr. Irwin, and they cannot complain because he did so. If Mr. Killinger had no right to the mortgage, Mr. Wareham could have come in then and have had the mortgage satisfied upon the docket, or Mr. Wareham could have come in and insisted upon that. [If he had no right to it, and she has any right to it, she could still insist that the money be paid over to her.] But if you find the facts to be, in regard to Mr. Hummel’s payment, as he states, that is a sufficient payment for him. As to that you have as evidence, and'the only evidence that Mr. Hummel had anything to do with the transfer, the impression of Mr. Irwin; and on the other side you have the evidence of Mr. Hummel himself and the evidence of Mr. Killinger. Mr. Killinger did not claim to hold this by virtue of any arrangement with Mr. Hummel, or in connection with Mr. Hummel. He holds it on an entirely different ground, because, as he testifies, money being due him from Mr. Wareham. It has not been made perfectly clear how this transfer was made to Mr. Killinger, but all we have to ask is, did Mr. Hummel have this transfer made? Bid Mr. Hummel intend to keep this mortgage alive on his own property, or did he intend to end this mortgage and get rid of it- and save his property from being sold ? That is the point of that.”
    “The plaintiff has presented this point and asked us to affirm it.”
    “The Court is asked to charge,
    “That Mr. Hummel, by his conduct and negligence in not satisfying the mortgage when he paid the money to Mr. Irwin, and permitting it to be assigned to Mr. Killinger, and thereby permitting Mr. Killinger to obtain payment of this money from Mr. Awl, is estopped from saying or claiming that the mortgage was paid by him, (Hummel,) and from successfully claiming that he should not pay this obligation.”
    “We decline to so charge. We have explained that matter in the general charge. We have told you that if you believe Mr. Hummel paid to have this mortgage satisfied, with costs, without knowing it was to be assigned to Mr. Killinger — if Mr. Hummel was not acquainted with that — that he did all it was his duty to do.”

      The counsel for plaintiff excepted to those portions of the charge inclosed between brackets, and the answer to the point presented.
    March 14,1882, verdict for defendant, upon which judgment was entered.
    Plaintiff took out a writ of error, assigning as error the rulings of the Court as above.

      Wallace Be Witt for plaintiff in error,
    The right of action upon the debt represented by Hummel’s note was complete, Awl having paid the debt and the mortgage being satisfied.
    When a vendor leaves in the hands of the vendee sufficient purchase money to pay a lien on the property sold, the debt, as between vendor and vendee, becomes the debt of the vendee, and he engages to protect the vendor: Blank v. German, 5 W. & S., 36; Burke v. Gummey, 13 Wr., 518 ; Woodward’s Appeal, 2 Wr., 326.
    By directing or permitting the assignment to Killinger, defendant is estopped from saying that he paid and satisfied the mortgage: Swan v. North British Co., 7 Hurls. & Nor., 632; 2 Hurls. & Colt. 175; Cuttle v. Brockway, 8 Casey, 45; Newman v. Edwards, 10 Casey, 32 ; Dezell n. Odell, 3 Hill, 215; Patterson v. Lytle, 1 Jones, 53; Hill V. Epley, 7 Casey, 334 ; Pickard v. Sears, 6 A. & E., 469 ; Bank v. Hazard, 30 N. Y., 226.

      J. O. MoAlarney for defendant in error presented no paper-book.
    October 2, 1882.
   — Per Curiam :

The law of this case was clearly stated and explained to the jury in a very lucid charge by the learned Judge, and the facts were fairly submitted. It was earnestly contended that there was a duty incumbent on Hummel when he paid the mortgage to see that it was satisfied of record. The jury have found that it was not assigned by Hummel’s direction. We think the charge, as complained of in the fourth assignment, was entirely right and it disposes of the whole case.

Judgment affirmed.