text:
    Wiser et al. versus Allen et al.
    1. In ejectment the plaintiffs claimed the land in dispute as the heirs of W., who in his lifetime.held title thereto by virtue of a deed from P. The defendants set up a resulting trust, alleging that the land was purchased with the money of the son of W. and the title taken in the name of the father. P., under instructions from W. before his death had the deed corrected and the title made to the son. The original deed from P. to W. was of record. The court held that this was a valid surrender of title by W. to P., and that she had the power and right to execute a deed to the son. Held, that this was error.
    2. The Statute of Frauds does not prevent a declaration of trust from being made by parol and it follows that such trust may also be defeated or rebutted by parol.
    3. The plaintiffs in above ejectment offered evidence that the son agreed to take from his father, and actually did take, a conveyance of other land as a consideration for his equity in the property in controversy and also evidence tending to rebut the presumption of a trust, which the court rejected. Held, that the evidence should have been admitted.
    November 27fch 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrbtt and Green, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 80.
    Ejectment by Herman S. Wiser and others against James Allen and M. S. Collin, for eighteen acres of land in Conneaut township, Crawford county.
    On the 14th of February 1865, Eli B. Wiser purchased of Diadema Potter, now Diadema Perkins, the land in dispute, for his son, Marcus L. Wiser, who was at that time in the army, and who had sent him the money to pay for the land. He first ordered the deed made. to Marcus L., but afterwards had it made to himself, saying his son might not like the land when he returned home, and he might buy it and save the making of a new deed. Eli B. Wiser moved upon the land and resided there until the time of his death, which occurred on or about the last day of November 1865.
    Marcus L. Wiser returned from the army about the 1st of June 1865. Soon after his return, he called Diadema Potter into the house where Eli B. Wiser, who was then an invalid, was, who told her to take the deed back to Esquire Hughes and have the name Marcus L. put in instead of Eli B. They told her the boundaries •were not correct, and to take it and make out a new deed to Marcus L. Wiser. Diadema Potter took the deed to Hughes and directed him to make out a new deed. Hughes said the description was correst. Diadema Potter reported to the Wisers as she came home, and then went back to the justice and told him to make out a deed to Marcus L. Wiser, which he wrote, but which was not acknowledged that day because the justice's commission had not come. The first deed was left with Hughes and also the new deed ready to be acknowledged.
    The matter stood in this way until in November 1865. A few days before the death of Eli B. Wiser, Diadema Potter was at Wiser’s, when he again, in presence of the family and his two brothers, requested her to make the deed to Marcus L. Wiser. In •pursuance of that request, she went to Hughes’s office, signed and acknowledged the deed to Marcus L. Wiser, and directed the justice to deliver it to him. It was delivered to him, and he (Marcus L. Wiser) showed it to Diadema Perkins and her husband, George Perkins.
    The first deed had a government stamp upon it, and it was left with Hughes to transfer the stamp, at his suggestion, to the new deed. Diadema afterwards called upon Hughes for the old deed, which she had left there. Hughes told her she had taken it away. He looked for it, but did not find it. She demanded it at two different times, the last time in the presence of a witness. The old deed was afterwards obtained from Hughes and entered of record on the 11th day of December 1866.
    After the death of Eli B. Wiser, Marcus L. Wiser took possession of the land and farmed it, treated it as his own, though the widow and family continued to occupy the house and live upon the land, and on October 29 th 1866, while so in possession, he sold and conveyed it to Enoch Palmer by deed of that date, recorded February 20th 1867. Palmer took possession of the land, and on March 23d 1869, sold and conveyed the same to Allen, the defendant. At the trial the evidence of Mrs. Diadema Perkins was offered. Plaintiffs objected on the ground that she was the assignor of the thing in action, and E. B. Wiser, the assignee, was dead. Evidence admitted. (First assignment of error.)
    Defendant offered the following testimony of Mrs. Perkins: “They said they saw her coming, and wanted her to come into the house. Wiser tried then to get the deed and fetch it to him. He said the boundaries were not right; for her to take the deed back to Squire Hughes, and have the name of Marcus put in instead of Eli B. Wiser.” Plaintiffs objected, for the reason that this deed places the legal title in Eli B. Wiser, and the defendant cannot prove a surrender by parol. Evidence admitted. (Second assignment.)
    Defendants also offered to pr*ove the contents of the deed made by Mrs. Perkins, and offered in evidence deed of Marcus L. Wiser to Enoch Palmer, dated October 24th 1866.
    Plaintiffs objected'to the contents of the deed going in evidence, for the reason, that the defendant has not made sufficient search for Marcus L. Wiser. Evidence admitted. (Fourth assignment.)
    The court refused to admit the following offers of plaintiffs :
    “ To prove by Lewis and Lyman Clark, that upon the return of Marcus L. Wiser from the army, the legal title to the eighteen acres having been conveyed to Eli B. Wiser and the equitable title being in Marcus L. Wiser, that he agreed to take from Eli B. Wiser, and did take as a consideration for his equitable title in the eighteen acres, twenty acres of land in Pine township, and $200 in judgments of record against S. C. and Morgan Mattocks; that the consideration of the conveyance of the Pine township land,'was the eighteen acres in question; that the legal and equitable title being by that transaction combined or joined in Eli B. Wiser, he had a perfect title to the eighteen acres discharged from the former trust, and that it could be surrendered only by deed. Also to prove this by the declarations of Marcus and Eli B. Wiser, by the justice who acknowledged the deed for the twenty acres, to be followed by the deed of Eli B. Wiser to Marcus L. Wiser, for the twenty acres of land in Pine township.” (Fifth assignment.)
    “'.Also, the declarations of Marcus L. Wiser prior to the conveyance to Enoch Palmer, that an arrangement or agreement had been talked about between him and Eli B. Wiser, the decedent, by which he was to give a bond for the support of Eli B. Wiser and Elizabeth Wiser, the wife of Eli B. Wiser, a foolish sister, Amanda Wiser, and a minor son, William Wiser, until he was twenty-one years of age. That upon giving that bond, he was to receive a deed for the eighteen acres in question. That he declared that he had not given the bond; and that he would not give the bond, and would not support them for three such farms; and further, the declarations of Eli B. Wiser in the presence of Marcus L. Wiser, in relation to this same contract, that were made before the death of Eli B. Wiser; and that Marcus refused to comply with the agreement ; that Eli B. Wiser, in his lifetime, if he gave directions to deliver the deed, did so upon condition of the giving of a bond by Marcus L. Wiser.” (Sixth assignment.)
    In the general charge, the court, inter alia, said:
    “ The next thing we have upon the subject by any of these parties was, that Eli became sick ; and [upon a certain occasion he had the whole family, and had Miss Potter, come into the house, and the deed was got from the clock — I believe she said that was where it was kept — and she was instructed to make a new deed.] She says that Eli said, there was a mistake made in that deed, and to make a new deed for this land to Marcus Wiser; and that he was to give up the deed of Eli B. Wiser to Miss Potter for cancellation, for surrender, and she was to take the deed and have it changed.
    “ If we recollect the testimony of Squire Hughes, who was a justice of the peace of Crawford county in November 1865, some two or three weeks before Eli B. Wiser died, she took the deed to Hughes for the purpose of having a new deed made ; she says they took the stamps off the old deed, and had them put upon the new one. This was done by or in the presence of Hughes. Because Squire Hughes was not commissioned at that time, and it was inconvenient to go to Bishop’s to have the deed acknowledged, she was to wait a few days until Squire Hughes’s commission came on. After his commission came, she did acknowledge the deed. She says she told him to deliver to Marcus the deed, and afterwards she saw the deed in Marcus’s possession; that she saw the stamps on it which were the old stamps; that she recognized them, because they were cancelled by her initials. She afterwards went to Squire Hughes to get the old deed she had got from Eli B. Wiser. He said she had taken it away. She said no. He said she did ; and he looked around among his papers and could not find it, and did not find it. She never saw it until she afterwards saw it in the recorder’s office. Mr. Perkins testifies to about the same thing. We say to you, that transaction, if you believe the testimony of Diadema Potter, [the testimony of Mr. Hughes read by counsel, we now decide, does not contradict in any material point the testimony of Mrs. Potter. Some things he does not recollect positively. Some things he recollects and does not contradict her. Who took the deed, how the deed left Hughes’s office, is not material. We say, that transaction that took place a few weeks prior to the death of Eli B. Wiser, was a surrender of the old deed; a valid surrender by Eli B. Wiser of his title to the equitable owner of the property; and she has a right to and did execute and deliver, or cause to be delivered, this deed to Marcus L. Wiser. And that the present defendant, Allen, who was the purchaser from Palmer, who himself was the purchaser from Marcus L. Wiser, received a good title.
    “ The evidence that has been offered by the plaintiffs’ counsel, which we have ruled out, will be determined in another form, whether we are correct in ruling it out or not. We say it would not be relevant, and was not relevant, to divest the title of Marcus L. Wiser, which he derived about November 1865, from Miss Potter; and these plaintiffs, who are heirs-at-law of Eli B. Wiser, are not entitled to recover ; their ancestor having surrendered the deed he once received as trustee of Marcus L. Wiser, to Miss Potter, for the purpose of having the trust carried into effect.”]
    Verdict for defendants, when plaintiffs took this writ and alleged, that the court erred as set forth in the above assignments, and in the portions of the general charge noted in brackets.

      F. P. Ray, for plaintiffs in error.
    A parol surrender, to be effective, must have the concomitants of a parol sale, and unaccompanied by exclusive possession, confers no title: Blakeslee v. Blakeslee, 10 Harris 237; Washabaugh v. Entriken, 10 Casey 74.
    A complete title cannot be surrendered by parol: Purd. Dig. p. 724, sect. 2; Brown v. Bank of Chambersburg, 3 Barr 187; Goucher v. Martin, 9 Watts 106. The destruction of an executed conveyance does not divest title: Rifener v. Bowman, 3 P. F. Smith 313; Cravener v. Bowser, 4 Barr 259.
    The evidence of the acceptance of other considerations than the eighteen acres by Marcus L. Wiser, ought to have been received.
    The sixth specification of error was in relation to the second deed to Marcus. The testimony included in that offer, in connection with the testimony of Hughes, certainly contradicted the statements of Mrs. Perkins, and the testimony was relevant and ought to have been admitted. The testimony was explanatory of the second deed, or the preferred deed, which the plaintiffs allege was never delivered.

      Wm. JR. Bole, for defendants in error.
    A contract for the purchase and sale of lands executed by delivery of a deed and receipt of bonds for the purchase-money may be rescinded as to the parties themselves by cancellation of the bonds and a delivery of the deed to the parties: Wiley v. Christ, 4 Watts 196; Goucher v. Martin, 9 Id. 106; Boyce v. McCullough, 3 W. & S. 429; Myers v. Myers, 1 Casey 100; Barncord v. Kuhn, 12 Id. 383.
    After Marcus L. Wiser had conveyed away this title to E. Palmer for a good and valuable consideration, neither Eli B. Wiser nor his heirs could be allowed to question the title of Palmer. It was then too late for them to set up any secret equities or collateral agreements among themselves against Palmer and those claiming under him. As against Palmer and those claiming under him, they are estopped from now setting up this deed. The declarations of Marcus L. Wiser were certainly not evidence, nor were general conversations of Eli B. Wiser and his family in relation to family arrangements to affect the defendants in this case. Eli B. Wiser, by causing the deed for the land in question to be executed and delivered to his son, thereby invested the son with the power of disposing of the land, which has been done. If any loss has accrued therefore in this case it must fall upon him who occasioned it, and not upon innocent third parties. The matters alleged in the fifth assignment of error were not competent evidence, because, if true, the plaintiffs were estopped from setting them up.
   Mr. Justice Gordon

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

The plaintiffs claim the land in dispute as heirs of Eli B. Wiser, who, in his lifetime, had title thereto by virtue of a deed from Diadema Perkins, dated February 14th 1865. The defendants, on the other hand, set up a resulting trust in Marcus L. Wiser, under whom they claim, which came about in this wise: Marcus, who was a soldier in the war of the rebellion, sent home money to his father, Eli B. Wiser, with instructions to invest it in land. With this money the said Eli B. bought the land in controversy, but took the deed in his own name. Of course, under these circumstances, the father was but a trustee for the son, and he, the son, might have, by action or entry, enforced this trust at any time within the statutory period. So the defendants, if they entered within that period, could defend on the ground of their possession: Clark v. Trindle, 2 P. F. Smith 492. It follows, if the defendants can stand on this resulting trust, if they are not barred by the Act of April 22d 1856, then the deed of Mrs. Perkins to Marcus L. Wiser is of little or no account, for their equitable title is a sufficient defence. If, however, they have no other dependence than this deed, then truly they are leaning upon a broken staff, for their vendor had no sufficient authority for the execution of such an instrument. She did not profess to act as attorney in fact of Eli B. Wiser, and her deed, previously made to him, had divested her of all title, and she had, therefore, nothing to convey to Marcus. Even had she obtained that deed from Esquire Hughes, as she was instructed to do, and destroyed it, or, for that matter, had Eli destroyed it himself, this would not have reinvested her with the title. As was said by Mr. Justice Coulter, in Cravener v. Bowser, 4 Barr 259, no lawyer would pretend that a legal estate, after it had vested by deed, could be. retransferred to the vendor by a destruction of the deed.

But in this case the deed was not destroyed, but was put on record, so that there is nothing loft for discussion hut the resulting trust. Therefore, the court erred in holding that there was a valid surrender, by Eli B. Wiser, of his title, to Mrs. Perkins, and that she had the power and right to execute a deed to Marcus.

Now as to the resulting trust: It was held as early as Gregory’s Lessee v. Setter, 1 Dal. 193, and afterwards in German v. Gabbald, 3 Binn. 302, that the Statute of Erauds and Perjuries does not, prevent a declaration of trust from being made by parol, and it would necessarily follow that such trust may also be rebutted or defeated by parol: Hays v. Quay, 18 P. F. Smith 263. Such being the case, the court ought to have admitted the offer of evidence covered by the plaintiff’s fifth assignment; for if Marcus agreed to take from his father, and actually did take, a conveyance of other land, or anything else of value, as a consideration for his equity in the property in controversy, that was an end of the alleged trust. So, Avhat was offered to be proved by Herman L. Wiser and others, ought to have been admitted, for the proposed evidence tended to rebut the presumption of a trust.

There was nothing wrong in the admission of the testimony of Mrs. Perkins. She had no interest in -the question being tried, direct or contingent; so the case is not like that of Karns v. Tanner (16 P. F. Smith 297), where the witness offered was not only the lessor of the premises in dispute, but also one of the defendants.

She would have been a witness before the Act of 1869; hence the proviso to that act does not affect her competency. Her deed to Eli B. Wiser was not questioned; both parties claimed under it, and her testimony but tended to prove a collateral agreement between the father and the son, in which she had no more interest than any other disinterested party.

The declarations of the widow of Eli B. Wiser, when in possession of the property, were properly admitted to show how she professed to hold. They were, of course, good for nothing else.

We observe nothing further in the case requiring comment.

The judgment is reversed, and a new venire ordered.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Union Express Co. versus Ohleman et al.
    1. Express companies are common carriers and are generally held to personal delivery, either at the residence or place of business, of the consignee. They should carry goods to their destination within a reasonable time, and deliver them as soon as practicable within business hours.
    2. Goods were sent by A. directed to B. at M. They were delivered to the express company’s agent on Thursday and should have reached their destinar tion the same day. They were sent by a circuitous route and did not arrive at M. until Saturday evening about six o’clock. About two o’clock on Saturday afternoon B. called at the office for the goods, and was informed there were none there. B. lived about one hundred rods from the express office in M., had lived there for a year, and was well known. No effort was made to deliver the goods- to him nor any notice given of their arrival. They remained in .the express office until Tuesday night when they were consumed in a fire. Held, that the company was liable for their loss.
    November 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Qrawford county: Of October and November Term 1879, No. 216.
    Appeal from the judgment of a justice of the peace, wherein Ohleman & Kingsbacher were plaintiffs and the Union Express Company defendants. The suit was to recover for the loss of a package of goods.
    The facts in the case were few and substantially undisputed. On Thursday the 26th of March 1876, Ohleman & Kingsbacher delivered to the Union Express Company at Conneautville the goods in question, consigned to Benjamin McMahon, at Millerstown. The property was valued at $40, and this amount was to be collected on delivery. The goods, according to the testimony of Ohleman, should have reached their destination on the day they were delivered to the company. They did reach Millerstown on the next Saturday at five or six o’clock, according to the testimony of the agent of the express company. On the afternoon of that day McMahon called at the express office for the goods, and was informed that they were not there. Millerstown is a small village and McMahon was well known in the place and had beqn living within a hundred rods of the office of the company for one year previous to the fire. The company made no effort to find the consignee or to deliver the goods, and on Tuesday night or Wednesday morning after the delivery of the goods they were burned in the warehouse of the company.
    At the trial before Taylor, P. J., the defendant offered in evidence a blank receipt, and proposed to prove by its agent that it was the usual form of receipt used by the company before, since and at the time these goods were shipped. The court rejected the offer, but allowed the plaintiff to show what the receipt was which the plaintiffs took.
    The defendant submitted the following points to which are appended the answers of the court.
    1. That at the time the loss of the package occurred, the responsibility of the defendant, as a common carrier, had ceased, and that of a warehouseman attached, and as such it is only liable for gross negligence, of which there is no evidence to submit to the jury, and the verdict must be for the defendant.
    Ans. “We answer this point in the negative. We think their liabilities were not the same as that of a railroad company. We think they were insurers of the goods and bound to deliver the goods.”
    2. That if the jury find from the evidence that at the time the loss occurred, the package had been carried by the defendant from Conneautville to Millerstown in the usual manner, and was deposited in the defendant’s office, awaiting delivery to the consignee, the defendant was not liable for the loss unless its gross negligence occasioned it.
    Ans. “ We answer that in the negative.”
    In the general charge, the court, inter alia, said: “ We instruct you that the express company were common carriers, and were insurers of the property. When they took the property, received it, they insured safe delivery in a reasonable time. The simple question for you is, did they deliver the goods ? If they did not, we instruct you, under the evidence, that the plaintiffs are entitled to recover the value of the goods, with interest thereon from the time the property should have been at Millerstown; with interest from that time when it ought to have been delivered at Millerstown. If we are wrong, we can be set aright. Nothing but an unbending rule of law would compel us to charge you as we do.”
    Verdict for plaintiffs for $50.50. Defendant took this writ and alleged that the court erred in rejecting the above offers of evidence, in the answers to the points, and the foregoing portion of the charge.

      D. 0. MeQoy, for plaintiff in error.
    Where goods have been carried to their place of destination, and there deposited in the carrier’s warehouse to await the convenience of the consignee in taking them away, the carriers are only subject in respect to such goods to the responsibilities of warehousemen, not to that of common carriers: McCarty v. New York & Erie Railroad Company, 6 Casey 247; Ostrander v. Brown, 15 Johns. 39; Hemphill v. Chenil, 6 W. & S. 65; Rothchilds v. Michigan Central Railway Company, 69 Ill. 164.
    The goods arrived on Saturday night, after business hours; the consignee was unknown, had no place of business, or known residence; it was not the usage of the business there to deliver otherwise than at the office. There could be no delivery that night, and the goods were put into the office as other goods of like character were, and on Tuesday night were burned without fault of the defendant.
    It appeared on the trial by the testimony of one of the plaintiffs, who delivered the package to the defendants at Conneautville, that he took a receipt for the same; that the receipt had been given by him to one of his counsel, upon whom notice was served by the defendant to produce it, and that he failed to produce it, saying he had lost it. The receipt contained a contract which protected the defendants from loss.

      Bole Frey, for defendants in error.
    Express companies are common carriers, and are held to personal delivery of goods intrusted to their care. In this case no personal delivery was attempted and no notice was given to the consignee of the arrival of the goods. It certainly was negligence in the company to retain tne goods in their warehouse in an exposed condition for several days, and to make no attempt to deliver the goods or notify the consignee: American Union Express Company v. Robinson, 22 P. F. Smith 274. These companies must deliver their goods at the place of business of the consignee as early as practicable after arrival and within business hours: Marshall’s American Express Company, 7 Wis. 1; Shenk v. Propeller Company, 10 P. F. Smith 109.
    The offer of defendant was to prove the contents of the receipts used by the company at that time — not from the memory of the witness, but from a paper shown him by the defendants below on the trial, and that without any evidence or offer of evidence to show that the receipt given to plaintiffs was of the same kind, or its contents the same.
   Mr. Justice Mercur

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

Express companies are common carriers, and are generally held to personal delivery either at the residence, or place of business, of the consignee. They should carry goods to their destination within a reasonable time, and deliver them as soon as practicable within business hours: Shenk v. Propeller Co., 10 P. F. Smith 109; American Union Express Co. v. Robinson, 22 Id. 274.

These goods were sent by the defendants in error from Connautville, directed to Benjamin McMahon at Millerstown. They were delivered to the express agent on Thursday in time to have reached their destination on the evening of that day if sent by direct route. It appears they were sent by a more circuitous route, which the company was then using, and they did not arrive at Millerstown until from five to six o’clock’on Saturday evening. In anticipation of an earlier arrival McMahon called at the express office about two o’clock on Saturday afternoon, and inquired of the express agent if there was any package for him. The latter replied there was not.

McMahon lived about one hundred rods from the express office, and had lived at the same place for more than a year. Pie was well known in the town. The goods arrived at Millerstown about six o’clock on Saturday evening; but they were never delivered to McMahon nor any notice of their arrival given to him. The company retained them until Tuesday night, at which time they were destroyed by fire. Thus two entire business days intervened between the time of their arrival and the night of the fire. There is no evidence in the case tending to-justify or excuse this omission of the company to either deliver the goods or give notice of their arrival. The main object of sending goods by express is to secure their early and prompt receipt. The case shows a clear disregard of duty imposed on the company.

The remaining question relates to the rejection of evidence. A receipt was given to the defendants in error when they delivered the goods to the company. No notice was proved of demand on them to produce the receipt. The remark made by the counsel of plaintiff in.error was insufficient for that purpose. On the trial the plaintiff in error offered in evidence a blank receipt with proof it was the usual form of receipt used by the company before, since, and at the time, these goods were shipped. The court rejected the paper but allowed the plaintiff to show what the receipt -was which the defendants took. This certainly opened wide the door to prove the contents of the -receipt actually given to the defendants in error. The company did not show nor offer to show that this blank was a copy of the one given to them. The attempt was to get this paper before the jury and induce them to find it to be a copy when no witness so testified. If the witness- was so doubtful that he would not testify that in his opinion, or to the best of his belief, the paper offered was a copy of the receipt delivered, the court was clearly right in not permitting the paper to go to the JU17-

Judgment affirmed.


author: Mr. Justice Paxson

text:
    City of Meadville versus Boush.
    An ordinance of the city of Meadville dedicated and set apart certain grounds and spaces as a city market, and directed that the revenues to be derived therefrom should be disposed of annually to the highest bidder, who should be invested with the office of superintendent and entitled to all the fees derived from the rent of stalls and stands, as well as the fees collected from the vendors of produce, and for the use of the public scales. Plaintiff's bid was accepted and he became superintendent in 1875. At that time there was a cellar under the market-house. There was no evidence that it had ever been used for the storage of meat or vegetables. In the fall of 1874, it was fitted up and used as a place to confine “ tramps.” There was a privy vault in this room, which became offensive the succeeding summer, and the use of the cellar as a “tramp room” was discontinued. The plaintiff alleged that it affected the entire cellar so as to make it unfit for use by the market people for the storage of meat and vegetables, whereby he was prevented from renting some of the stalls, and was deprived of the use of the cellar for 1875, and he brought an action to recover damages therefor. Held, that there was no contract of letting, and that he could not recover.
    November 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Qrawford county: Of October and November Term 1879, No. 196.
    ■ Assumpsit by A. T. Boush against the city of Meadville. Appeal from the judgment of a justice of the peace.
    In 1873, the city of Meadville built a market-house. On the 25th of May 1874, the city council passed an ordinance providing that the revenues to be derived from the market fees and rent of stalls and stands should be sold annually to the highest bidder. The ordinance set apart the square on which the market-house was built, and the streets and alleys adjacent as market spaces. It provided that the person whose bid was accepted should be invested with the office of superintendent of the market, and should be entitled to all the fees to be derived from the rent of the stalls and stands, as well as the fees to be collected' from the vendors of produce and the fees for the use of the public scales. These fees, except the rent of the stalls and stands, were fixed by the ordinance. The ordinance also provided that the superintendent, under direction of the market committee, should have entire supervision over the market; and made it his duty to cause the market-house to be kept neat and clean, &c.

      In the fall of 1874 the city cut a trap-door through the floor of the market-house and put in stairs to the cellar and basement. They also partitioned off one corner of the basement and made an outside entrance to this room, and used it for lodging tramps during the winter of 1874-5. In this tramp room was dug a privy vault, which .in warm weather became offensive, and on complaint of the health officer the use of the tramp room was abandoned. This was about the first of June 1875. The plaintiff below, A. T. Boush, was appointed superintendent of the market in January 1875. There was no contract with him except the market ordinance, and his bond to the city conditioned that he should perform the duties of superintendent of market and pay the amount of his bid into the city treasury.
    The claim of the plaintiff below was for damages for being deprived of the use of the cellar, not as market space, but as a room for storing produce between market days. According to his testimony he could have rented more stalls in the market-house, if, with them, he could have given cellar room for storing meat and vegetables; and that the cellar was rendered unfit for such purpose by the'nuisance maintained by the city, to wit: the tramp room. The claim was not for that part of the cellar used by the city, nor that its use rendered the market-house and market spaces above less valuable, or drove patronage away from the market, but that the city did not give him a proper cellar for use by his patrons as a storage room. The ground-floor of the market-house was on a level with the surface outside, and the cellar was dark, being lighted through iron grating in the walks outside. The cellar was never used for any purpose connected with the market. The defence in the court below was that if the plaintiff was deprived of the use of the cellar by the acts of the city, he did not lose anything to which he was entitled under the ordinance which defined his rights and duties. The suit was originally brought before a justice of the peace, and there the defendant confessed a judgment for ten dollars to cover a few7 items in plaintiff’s claim not disputed, and the Common Pleas having decided that the justice had not jurisdiction of the complaint for nuisance, the judgment was entered without costs accruing after the appeal. This was not complained of.
    At the trial, before Church, P. J., the defendant submitted the following points which the court refused :
    1. That there is no evidence of a letting of the basement of the market-house by', the defendant to the plaintiff, but simply an appointment of the plaintiff as clerk or superintendent of the markets, with a right to the market fees as prescribed by the ordinance, and the right to rent the stalls of the market-house. (First assignment of error.)
    2. That if the plaintiff was deprived of the rent which he might have got for the basement, from private persons for private purposes, or for the storage of produce between market days, he did not thereby lose any rights granted him by the defendant. (Second assignment.)
    3. That there is no evidence that the plaintiff was deprived of any market spaces, which he could have used or leased for market purposes, such as are contemplated by the ordinance, and were sold to the plaintiff by the defendant, and therefore the plaintiff cannot recover. (Third-assignment.)
    The court, inter alia, charged:
    “ The defendant goes to trial upon the point that she is not liable under this complaint, and says, that the cellar did not belong to the plaintiff and was not rented to him. We say, that we believe the cellar was rented to him, and it became a part of his prerogative to rent and take fees for it. It is comprised within the meaning of market-house stands and stalls, and if he was deprived of the use and benefit of that property during the year 1875, the city is liable to respond to him in damages. * * * (Fourth assignment.)
    “ If you find from the evidence, that he was deprived, by reason of the maintenance of a nuisance, of any part of that market-house up-stairs or down-stairs, it was depriving him of the rights and privileges which he was invested with, by the acceptance of and by his appointment as superintendent of markets, &c.” (Fifth assignment.)
    Verdict for plaintiff for $198.91. Defendant took this writ and alleged, that the court erred in the answers to the above points, and the portion of the general charge noted.

      J. W. Smith, for plaintiff in error.

      O. M. Boush, for defendant in error.
   Mr. Justice Paxson

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

The defendant’s first point (1st assignment) raises the important question of this case. It called upon the court to instruct the jury that “ there is no evidence of a letting of the basement of the market-house by the defendant to the plaintiff, but simply of an appointment of the plaintiff as clerk or superintendent of the markets, with a right to the market fees as prescribed by the ordinance, and the right to rent the stalls of the market-houses.” The court negatived this point so far as it conflicted with the general charge as it is in direct conflict with the general charge it must be regarded as refused without qualification.

It is not contended that there was any contract of letting between the parties other than such as may be implied by the appointment of plaintiff as superintendent of the markets. On the 25th of May 182.4, city councils passed an ordinance “ To define and regulate markets in the city of Meadville.” By the terms of said ordinance “ the grounds upon which the market-house is built, alleys adjacent, and Market street between Chestnut and Centre streets are hereby dedicated and set apart as market grounds and spaces, to be known as city market,” &c. Section 3 provided that “from and after the passage of this ordinance the revenues to be derived from the fees of the market, the rent of stalls and stands, shall be disposed of annually to the highest bidder.” The seventh section provided that the person whose bid should he accepted “ shall be invested with the office of superintendent of the market, and shall be entitled to all the fees to be derived from the rent of the stalls and stands, as well as the fees collected from the vendors of produce and so forth, and for the fees for the use of the public scales.” The bid of the plaintiff below was accepted and he was appointed superintendent of the markets in January 1875. At that time there was a cellar under the market-house. There was no evidence that it had ever been used for the storage of meat and vegetables. One of plaintiff’s witnesses says: “ I think there are no stalls in the cellar to rent to persons who sell vegetables. There are no stalls in the cellar. I do not know whether it is used now. It is very dark down there. You cannot see unless you go where the window is.” There was a room partitioned off from this cellar. In the fall of 1872 it was fitted up and used for “tramps,” from some time in November to the month of January. There was a pi'ivy vault in this room described by plaintiff’s witnesses as a “dug out” about two feet deep. This became offensive the succeeding summer and its use as a “tramp room” was discontinued. The plaintiff alleged that it so affected the entire cellar as to make it unfit for use by the market people for the storage of meat and vegetables, whereby he was prevented from renting some of the stalls, and was deprived of the use of the cellar for the year 1875. This action was brought to recover damages for the loss occasioned thereby.

The learned judge assumed; that the cellar was rented to the plaintiffs. He instructed the jury (see 4th assignment), “We say that we believe the cellar was rented to him, and it became a part of his prerogative to rent and take fees for it.” We look in vain through the evidence, for such a letting. The stairway to the cellar could only he reached through a trap-door. One witness says he supposed it was for the use of the markets. The plaintiff testified : “ When I got possession, that trap-door and the stairs were there. It was for the use of the market people.” Conceding all this to be true, it does not help the plaintiff’s case. There was no proof that the cellar was intended, or had ever been used for a purpose that was in any degree interfered with by the existence of the nuisance complained of. If it had been used as a room for the storage of meats and vegetables by the owners of market stalls, such fact could readily have been shown. There is nothing in the ordinance from which an authority to use the cellar for such purposes, can even be implied. On the contrary, we find by the 22d section, that “ Every person occupying a space in said market shall, within one hour after the time of closing said market, as mentioned in section 2, cause his provisions and vehicle, if he or she have one, to be removed from the market grounds; also to remove therefrom all animal and vegetable matter.” This was, perhaps, not intended to apply to the occupiers of market stalls, as such persons, by section 2, are not confined to hours ; but it is reasonable to suppose, if the cellar were adapted to storage purposes, and intended therefor, some provision would appear in the ordinance giving such right, and regulating the manner of its use.

In the absence of any contract of letting, the rights of the plaintiff are defined by the 7th section of the ordinance before referred to. He “ shall be entitled to all the fees to be derived from the rent of the stalls and stands, as well as the fees collected from the vendors of produce and so forth, and from the fees for th*e use of the public scales.” There is nothing here, from which the right of occupiers of market stalls to use the cellars, or the right of the plaintiff to collect fees therefor, may be inferred. As no such use was shown to exist at any time, it is necessary, in order to sustain the plaintiffs’ claim, to write into the ordinance something that city councils have not placed there, or else make an agreement for the parties, which the evidence does not show they have made for themselves.

We are of opinion, that the defendant’s first point ought to have been affirmed. We need not discuss the remaining assignments. They are all carved out of the first.

Judgment reversed.


text:
    McBride versus Daniels.
    1. M. let to D. a farm for the term of two years. The latter agreed “ to take all proper care of said premises, the same as a careful and prudent farmer should of his own property, and return the same at the end of said lease in as’good condition as the same is received, except natural wear and unavoidable accidents.” Also “ to leave as many acres seeded down as there now are.” A clause in the lease also gave M. the privilege of buying the hay and fodder on the premises, at the end of the term, at a discount of twenty-five per cent, below the market price. D., at the end of his term, brought suit to recover the price of the hay and fodder thus taken, and M., under a plea of set-off, offered to prove that D. suffered Canada thistles to grow and go to seed on the land ; that he pastured the meadow in sheep to such an extent as to destroy it; and that he did not leave as many acres in grass as there were when he took possession, with a view to showing a want of good husbandry and damage to the farm. Held, reversing the court below, -that under the pleadings these offers should have been admitted.
    2. Per Mercur, J. — When the court is of opinion that the damages found by a jury are excessive, it may grant a new trial, unless a portion of the damages shall be remitted by the party in whose favor they were found, but there is no authority for the court to impose costs on the party asking for a new trial as a condition for granting it, if the court is satisfied that it committed an error on the trial to his prejudice.
    November 27th 1879.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 210.
    Assumpsit by W. W. Daniels against J. T. McBride. Appeal from the judgment of a justice of the peace. Defendant pleaded “non assumpsit, payment with leave, set-off,'&c.” McBride was the owner of a farm in Crawford county, in the year 1873. On the 27th of November of that year he demised said farm to Daniels, for the term of two years from the 1st of March following. Daniels, by the terms of the lease, agreed and covenanted “ to take all proper care of said premises, the same as a careful and prudent farmer should of his own property, and return the same at the end of said lease in as good condition as the same is received, except natural wear and unavoidable accidents.” In the lease it was also agreed that “ in case he (Daniels) has any hay, straw or fodder at the end of said term which he raised on said premises, said first party (McBride) is to have the privilege of buying the same at twenty-five per cent, discount below the market price, at the end of the term.” Daniels also agreed to leave as many acres of said farm seeded down at the end of the term as there were at the date of said lease, and to work said premises as a careful and prudent farmer.
    This suit was brought by Daniels to recover the value of the hay and straw bought by McBride at the end of the term, under the terms of the lease.

      McBride had certain claims against Daniels, among which was a claim for damages arising from the breach of his contract in the lease. Under his plea of set-off McBride proposed to prove the breach of the covenants in the lease by Daniels and show the damages arising therefrom, and for this purpose made the following offers, both of which the court, Church, P. J., rejected: First, “ To prove that the plaintiff premitted Canada thistles to grow and go to seed upon the farm, and that in consequence the property or the farm of defendant was greatly damaged. Offered as damages under the contract already in evidence.”
    Second. “ To prove that the plaintiff pastured his meadow with sheep, and thereby destroyed said meadow; also, that plaintiff did not leave seeded down the ground which he agreed to seed, under his contract. Offered as damages under th^ contract already in evidence by way of set-off.”
    Verdict for plaintiff for $50. Defendant took this writ and alleged that the court erred in rejecting the above offers.

      J. B. Brawley, for plaintiff in error.
    By the violation of the covenants in the lease the defendant’s farm was extensively and permanently damaged, and these damages were of such a character that the defendant was entitled to set them off against the plaintiff’s claim upon the trial of the cause: Hunt v. Gilmore, 9 P. F. Smith 450; Halfpenny v. Bell, 1 Norris 128; The Domestic Sewing Machine Co. v. Saylor, 5 Norris 287.

      JD. 0. McQoy, for defendant in error.
    A motion for a new trial was made by McBride, which was granted by the court, on payment of the costs by him. These terms the court had a right to impose, and gave a good and substantial reason for doing so: Devinney v. Reeder, 1 P. & W. 399; Welsh v. Dusar, 3 Binn. 329; Ward v. Patterson, 10 Wright 374. Nearly four months elapsed and the costs were not paid. The court then, on motion, fixed a time for their payment within sixty days more. Some days after the expiration of the sixty days, the costs not being paid, judgment was taken on the verdict. This judgment is not erroneous. If any error had been committed, which is denied, it had been corrected by the court, by the party’s own seeking, in conformity with law, and he must accept it.
   Mr. Justice Mercur

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

This contention is between a landlord and a tenant. The plaintiff in error let to the defendant a farm for the term of two years. The latter, inter alia, agreed “ to take all proper care of said premises, the same as a careful and prudent farmer should of his own property, and return the same at the end of said lease in as good condition as the same is received, except natural wear -and unavoidable accidents.” Also at the end of the term “ to leave as many acres seeded down as there now ” are. A clause in the lease gave the landlord the privilege of buying the hay and fodder remaining on the premises at the end of the term, at a discount of twenty-five per cent, below the market price thereof. Under this privilege he bought, and this suit was brought by the defendant in error to recover the price thereof and for labor, repairs and damages. The pleas were non assumpsit, payment with leave, &c., and set-off. The first assignment is to the rejection of evidence offered to prove that the defendant in error permitted Canada thistles to grow and go to seed on the farm, and by reason thereof the farm was greatly damaged. The second assignment is to the rejection of evidence offered to prove that he pastured the meadow with sheep and thereby destroyed it, and substantially that he did not leave seeded down as many acres as required by his contract.

In deciding the motion for a new trial the court rather concedes there may have been error in rejecting the evidence as a set-off, and therefore awarded a new trial on payment of costs by the plaintiff in error. The latter refused it on the terms offered. When the court is of opinion that the damages found by a jury are excessive it may grant a new trial unless a portion of the damages shall be remitted by the party in whose favor they were found, but we know of no authority empowering the court to impose costs on the party asking for a new trial as a condition for granting it, if the court is satisfied it committed an error in the trial to his prejudice. The refusal of the court to grant a new trial cannot be reviewed here. We have referred to this action of the court only because it was cited by the counsel for the defendant in error, as a correction by the court of its own error, which the plaintiff in error refused to accept. It is not entitled to any weight in deciding the questions before us.

It is well known that the growth of any considerable number of Canada thistles on a farm may be very pernicious. Their tendency is to destroy all other vegetation. The offer here was to show that the tenant suffered them to grow and go to seed on the farm to such an extent that it was thereby greatly damaged. If this be so, then it is a question for the jury under the evidence to find whether in so permitting it to go to seed the defendant in error took “the same care of the premises as a careful and prudent farmer should of his own property.” If he did not he is liable in damages. The same rule in principle applies in case he pastured the meadow with sheep to such an extent as to destroy it. He was bound to the exercise of good husbandry. That permitted a reasonable use of the meadow. If he disregarded his agreement to take the same care a careful and prudent farmer should of his own farm, by either causing it to be fed too close or at an unsuitable time so as to substantially injure it, or if he did not leave as many acres in grass as there were when he took possession whereby the plaintiff in error was injured, each of these presents a proper subject for damages. Evidence of all these claims are admissible under the pleadings. The learned judge therefore erred in rejecting the evidence offered.

Judgment reversed, and a venire facías de novo awarded.


text:
    Baughman versus The Shenango and Allegheny Railroad Company.
    In. crossing a railroad track at a crossing the horse which plaintiff was driving caught his foot in the space between the rail and the plank on the crossing and fell down on the track. Plaintiff alighted and endeavored for about two minutes to extricate the foot, when a train came along and broke the horse’s leg. In a suit for damages the court non-suited the plaintiff invoking the rule that he should have “ stopped, looked and listened” before approaching the crossing. Held, that the rule was not applicable to the case, that the true question was whether the company was guilty of negligence in allowing the track at the crossing to be in an insecure condition, and that this question should have been submitted to the jury.
    November 27th 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Mercer county: Of October and November Term 1879, No. 186.
    Case by William Baughman against the Shenango and Allegheny Railroad Company, to recover damages for an injury to a horse and wagon, alleged to have been caused by the negligence of defendants.
    The Shenango and Allegheny Railroad crosses the public highway leading from Mercer to Franklin, about two miles distant from Mercer. During the winter of 1877, the crossing at this point was out of repair. The plank on the inside of the rail had become worn or misplaced, so as to leave an open space four and five-eighth inches wide between it and the rail. This space rendered the crossing unsafe to travellers, as it was wide enough to admit a horse’s foot, and on account of its depth and shape, it so fastened the foot of the horse that stepped into it, as to render it difficult to extricate his foot without assistance. The crossing remained in this condition for several weeks prior to the day in February 1877, upon which the plaintiff sustained the injury complained of, during which time different travellers had encountered difficulty by their horses’ feet becoming fast in the crossing.
    Some time in February 1877, the plaintiff had been at Mercer and was returning home with his wife in a one-horse buggy. When he approached this railroad crossing, he drove very slowly —bringing his horse almost to a halt. The railroad was visible for a long distance in both directions, but there was no train within sight or hearing. Just as the horse stepped upon the railroad, his foot become fast in the space between the rail and the plank, and in his efforts to withdraw it, he threw himself down upon the track. The plaintiff immediately alighted from the buggy and attempted to loosen his horse’s foot by working it back and forth with his hands. He labored in this manner for about two minutes, but with no success. The horse’s foot was fastened in such a way that he could not even arise. The plaintiff then told his wife, who had remained in the buggy, to alight and assist him. She alighted from the buggy and looked down the track where she saw the locomotive of a freight train just coming in sight. She then ran down the railroad waving her handkerchief and calling to the engineer to stop, while the plaintiff was still trying to get his horse’s foot loose. The train was a heavy one and moved slowly up grade and over the crossing, breaking the horse’s leg and otherwise injuring him, and demolishing the buggy and harness. This suit was brought by the plaintiff to recover damages for the loss of the horse, buggy and harness.
    At the trial, before McDermitt, P. J., the plaintiff proposed to prove the value of the buggy which was in the possession of the plaintiff on the day of the collision, and which was destroyed by the collision, for the purpose of showing what damage was sustained by plaintiff, by means of the destruction of said property which was in his possession at the time, as bailee.
    Defendant objected to above offer because:
    1. The evidence in the case shows that the plaintiff was not the owner of the buggy and harness, but was using them that day by the kindness of the owner.
    2. Because the testimony does not show that the buggy and harness were destroyed, but only slightly injured, and if the defendant is responsible in damages it could only be for the amount of the same and not for the worth of the harness and buggy.
    The court. — “ The evidence of the plaintiff and wife thus far shows that the buggy and harness were borrowed from W. H. Reed, and such evidence showing that said Reed is the party w'ho should have instituted suit for the recovery of the damages sustained by such buggy and harness, if any, no evidence will be heard in regard thereto.”
    The plaintiff having closed his evidence, the defendant moved for a nonsuit, which the court granted, for the reason that the plaintiff did not stop his horse to look and listen for trains before attempting to cross the railroad. A motion was subsequently made to take off this nonsuit, which the court refused. This refusal, and the ruling upon the above evidence, were assigned for error by plaintiff, who took this writ.

      S. H. Miller and B. Magoffin, Jr., for plaintiff in error.
    The neglect to stop, look and listen, had no connection with the accident, and could not have contributed to it. The law did not command plaintiff to stop, look and listen, in order to avoid the danger of a defective crossing, and therefore his disobedience could not be declared contributory negligence per se, as it is in cases where the injury results directly from the cause which he was warned to avoid. All the plaintiff seeks to recover is damage for whatever injury he sustained by reason of his horse becoming fast in the crossing. The horse was thrown down, and his shoe pulled off before the engine struck him. This was some injury, and entitled the plaintiff to nominal damages, at least. His right of action was, therefore, complete before he was injured by the train, and it was wrong to nonsuit him. The defendant was liable for all damages which were the direct result of the defect in the crossing, and if such defect was the immediate cause of the injury the plaintiff sustained from the train, he was also entitled to recover. This was a question of fact under the evidence, and ought to have been submitted to the >ry-

      S. Griffith and Stranahan & Mehard, for defendant in error.—
    The rule that a person approaching a railroad crossing must stop, look and listen, is based upon an absolute necessity of stopping as a safeguard to the travelling public, and also a duty to the traveller himself.
    If this rule is not applicable to this case, we could not imagine a case to which it would apply. Here there was a collision, and this fact showed the necessity of stopping; and, as in every case of collision the rule must be an unbending one, the failure of the plaintiff to do so in this case bars his action for damages, on the ground of contributory negligence.
   Mr. Justice Paxson

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

The first assignment of error is not sustained. The evidence offered to show the value of the harness and buggy was properly rejected. The plaintiff had already testified that they belonged to W. H. Reed, who had loaned them to him. It was not error therefore for the learned judge to say, that Reed was the proper person to sue for the alleged injury to said articles. A recovery by the plaintiff would have been no bar to a suit by the owner.

The second and third assignments present a graver question. The court below nonsuited the' plaintiff upon the ground that he did not stop and look and listen before attempting to cross the track. The rule invoked is a valuable one, and sustained by several well considered cases, among which may be mentioned, Railroad Company v. Heileman, 13 Wright 60 ; Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, and Pennsylvania Railroad Co. v. Beale, 23 Id. 504. We do not propose to depart from this principle nor to weaken its force. We are unable to see its applicability to this case, however. The injury, as developed by the plaintiff’s testimony, was not the result of a failure to observe the rule. Had he stopped, looked and listened, it is not probable he would have seen or heard the train, for the reason, that i,t was too far off to have been patent to any of the senses. The trouble, was, that the horse which plaintiff was driving, caught his foot in the space between the rail and the plank at the crossing, and fell down on the track. The plaintiff got out of the buggy and endeavored to get his horse upon its feet again. But this was not an easy task, as one of its feet was fast. After working unsuccessfully in this manner for about two minutes, he told his wife to get out of the buggy. She did so, and shortly thereafter heard the cars coming, upon which she ran up the road to meet them, signaling them at the same time to stop. The warning came too late, and the train passed over one leg of the horse, and damaged the harness and buggy to some extent. There was evidence that the track was out of order at the point where the accident occurred; that the flange way was too wide — one witness says four inches and five-eighths — and that other horses had been caught in the same way before. The true question in the case therefore was, whether the company were guilty of negligence in allowing the track at the crossing' to be in an insecure condition, and this question should have been submitted to the jury.

Judgment reversed, and a venire facias de novo awarded.


author: Mr Justice Mercur

text:
    Mary Holcomb versus Peoples' Savings and Meadville Savings Bank.
    1. The Act of 1848 was designed to protect a married woman in the enjoyment of her property which she acquired after its passage. Her marital relations prevent her enjoying it separate and apart from her husband. While living with him she may not have a possession separate and distinct from his possession. If, however’, it be clearly shown that the original property was hers, then all the product and increase become hers, as long as they can be followed or identified. The fact that her husband acts as her agent in buying and selling and investing her money, does not, against her consent, transfer her right of property to him.
    2. The mere fact that there may be a difficulty in determining which articles are the product of a married woman's property does not justify the court in taking the question from the jury. While the husband is entitled to the reasonable services of his wife, yet if a portion of her time was occupied in the care and management of her separate estate, whereby its productiveness was increased, the product is not thereby made liable for his debts.

      November 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 57.
    Feigned issue, wherein Mary Holcomb was plaintiff, and the Peoples’ Savings Bank and the Meadville Savings Bank defendants.
    The Meadville Savings Bank entered a judgment on the 23d day of October 1878, against C. T. Holcomb and Thomas D. Durant, in the sum of $120.75, and on the same day issued execution to No. 279 of November Term.1878,
    The Peoples’ Savings Bank entered a judgment on the 8th day of October 1877, against Thomas D. Durant and Charles T. Holcomb, in the sum of $1571.62, and on the 2d November 1878, issued execution to No. 297, November Term 1878.
    On these executions the sheriff made levy on the 9th day of November 1878, on “ two horses, double harness, wagon, one erackey, one buggy, one light double harness, lot of hay and oats, lot of corn fodder, two sheep, two pigs, six cows, three calves, mowing-machine, one seed sower, all farming tools, and a general assortment pf household goods,” as of the property of the said Thomas D. Durant and Charles T. Holcomb. None of it in fact was the property of Thomas D. Durant, but was in the possession of Charles T. Holcomb and Mary Holcomb, his wife, on the farm where they resided.
    . Mary Holcomb, the wife of Charles T. Holcomb, claimed the property to be her own as to some of it, and the balance she claimed as belonging to herself and her husband, as being the fruits of the joint ownership of the real estate which was willed to her and her husband by her father, Bailey Fullerton. Upon this claim being made, the feigned issue here was made up.
    At the trial, before Church, P. J., the plaintiff submitted the following points, to which are subjoined the answers of the court:
    1. That if the jury find from the evidence that the property in dispute, and claimed by Mary Holcomb, is the fruits of the joint ownership and occupancy of the real estate which was willed to Mary Holcomb and Charles T. Holcomb by Bailey Fullerton, that the plaintiff holds the property in dispute in entirety, and said property is secured to the plaintiff by the provisions of the Act of April 11th 1848, securing to married women their separate estate, and is not liable for the debts of her husband, Charles T. Holcomb, and their verdict must be for the plaintiff.
    Ans. “ We cannot charge as requested, as the proof is not sufficient to entitle the plaintiff to claim the whole of this property as against the creditors of the husband.”
    2. That if the jury find from the evidence that the property in dispute, or any part thereof, was paid for by or out of the separate estate of the plaintiff which accrued to her during coverture and not through her husband, their verdict must be for the plaintiff for all the property in dispute so paid for by the plaintiff.
    Ans. “Affirmed, but the jury must have the evidence of such property being paid for by the wife, and there is not sufficient evidence of the wife’s ownership of the whole of the property in dispute by purchase as is required by law.”
    3. That the land being owned by the husband and wife jointly, the presumption of law is, that the growth or fruits of the land and the farming implements necessary to the production of such fruits belong to them as entireties and not in two equal or other proportions, and that during the life of the wife, such personal property cannot be sold from her on. execution for the debts of the husband.
    Ans. “Refused.”
    In the general charge, the court, inter alia, said: “ We say to you that to the personal property levied on by the sheriff, such as farming utensils, the plaintiff has not shown sufficient title in herself to recover in this suit. * * * That all the property levied on in this case, or such portion of it as is the fruit or result of the labor, energy or industry of either the plaintiff or her husband is the property of the husband, and liable for the payment of his debts. * * * Apply that rule to the facts in this case and see what we have. Mrs. Holcomb herself is put upon the witness stand. She claimed one horse, so far as the court sees, except through the mouth of her counsel, she only claimed one horse. Cows she claimed — she bought one of those herself. She lays no claim to the mowing-machine, except through the mouth of her counsel. Moreover, if she did, how has she shown what became of the money derived from her sister’s estate, some twenty odd years ago ? Some eight or twelve years ago she had $700. She said it was used in and' about the house and farm, for the purpose of making gain with it, giving it to her husband to use. Mr. Holcomb says the cows were raised from calves; and when he was in the drove business, buying and selling cows, when he would find a good cow in the drove, he would put it into his own stock ; he would take one out of the drove and make an exchange for one in his own dairy. Here the husband was buying and selling and owning all this property. We say to you that there is not sufficient evidence as to her ownership of either the mowing-machine, farming utensils, or this other movable property, horses, wagon, crackey wagon, buggy —as far as the buggy is concerned, Mr. Holcomb says he bought it himself. * * * As to the crops harvested this last year — corn, hay, oats — we find more difficulty in that because of the peculiar manner in which these parties hold under the will of the father-in-law of one and the father of the other. We will charge you that these crops are the property of Charles T. Holcomb, and not of Mary Holcomb ; and we will reserve that point and give the parties an opportunity to be heard upon that question. But, so far as you are concerned, we will instruct you that the growing crops belong to Charles T. Holcomb and not to Mary Holcomb. She has not shown title to them.”
    The verdict was for defendants. Mary Holcomb took this writ and alleged that the court erred in the answers to the above points, and the portions of the charge noted, and in refusing a motion for a new trial, and ordering judgment to be entered for defendants.
    6r. W. Hecher and F. B. BlaeJcmarr, for plaintiff in error.—
    Where an estate is granted in fee to a man and his wife, both are seised of the entirety; neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor; the death of one neither increases nor decreases the interest of the other; the interest of husband and wife is made up of indivisible parts: Stuckey v. Keefe’s Executors, 2 Casey 399. Rush v. Vought, 5 P. F. Smith 437, governs this case. There it was decided that “ when the evidence clearly shows a separate property in the wife, she is entitled to the benefit of its products and avails.” See also McCurdy v. Canning, 14 P. F. Smith 40. Since the Act of 11th April 1848, it has been settled by numerous decisions of this court, that the proceeds of the wife’s separate property cannot be seized for the husband’s debt. If her property be real estate, the fact that her husband’s labor assisted in creating the products derived therefrom does not make them liable for his debt: Silveus’s Executors v. Porter et ux., 24 P. F. Smith 448; Brown v. Pendleton, 10 Id. 419. The object of the statute was to protect the wife’s estate from being taken by the husband’s creditors: Haines v. Ellis, 12 Harris 255. The act does not require her use and possession of the property to be exclusive of her husband : Hoar v. Axe, 10 Harris 384; Manderbach v. Mock, 5 Casey 43.

      H. J. Humes and A. Gr. Ohurch, for defendants in error.
    It is not enough to show that a married woman received money from her father before the passage of the Act of 1848, for that became her husband’s property by virtue of the marriage relation. So far as regards creditors, all the money and personal property of the family are presumed to belong to the husband, until the contrary be shown, and all the earnings of the family, with some exceptions, are conclusively presumed to be the husband’s: Walker v. Reamy, 12 Casey 410; Bradford’s Appeal, 5 Id. 513.
    The joint earnings of a husband and wife belong to the husband and not to the wife: also, the earnings of the wife during coverture, belong to the husband: Hallowell et al. v. Horter, 11 Casey 375; Raybold v. Raybold, 8 Harris 311.
    The husband and wife had here so mingled their funds that they cannot be distinguished, and in that event the law decides they belong to the husband: Earl et al. v. Champion, 15 P. F. Smith 191; Rhoades v. Gordon, 2 Wright 277 ; Aurand v. Schaffer and Wife, 7 Id. 363; Gamber v. Gamber, 6 Harris 366; Keeney v. Good, 9 Id. 349.
    Where the estate is in the husband and wife by entireties the husband has not only an equitable interest, but he has an interest greater than hers cleai'ly defined by law, and has the absolute control over the estate, save the right to oust her concurrent possession.
    The Supreme Court, as yet, only decides that the Act of 1848 protects the wife’s possession of land held by entireties, and surely they cannot go further and say that this act will allow a husband and wife to enter into a partnership in land and of their joint funds, labor and skill acquire a large property and thus shield it from the husband’s creditors. The act in no way refers to property given to a husband and wife, and if it were personal property it would belong to the husband alone. If there is no tenancy by entireties in personal property, the policy and principles of the common law would give it to the husband.
   Mr Justice Mercur

delivered the opinion of the court, January 19th 1880.

This was a feigned issue to try the right to certain personal property claimed by the plaintiff in error, but levied on as the property of her husband. The Act of 11th April 1848, declares “ every species and description of property, whether consisting of real, personal or mixed, which may be owned by or belong to any single woman, shall continue to be the property of such woman, as fully after her marriage as before, and all such property of whatever name or kind, which shall accrue to any married woman during coverture, by will, descent, deed of conveyance, or otherwise, shall be owned, used and enjoyed by such married woman as her own separate property; and the said property, whether owned by her before marriage, or which shall accrue to her afterwards, shall not be subject to levy and execution for the debts or liabilities of her husband.” Property of a married woman acquired after the passage of this act is as clearly exempt as the property of any third person, from execution against her husband. Her property is thereby fully protected. To guard against an Ibuse of this law, and to prevent the ¡moperty of the husband from being held in the name of his wife, to the injury, of his creditors, she must establish her right to the property which she claims by clear and satisfactory proof. If purchased by her, she must show by like proof that it was paid for out of her own separate funds. If her right to it when acquired is thus established, it is not necessary, to protect it from the creditors of her husband, that her possession should be exclusive of him. Owing to the intimate character of the marriage relation, such a rule would deprive the wife of the use and enjoyment of her property which the act contemplates: Hoar v. Axe, 10 Harris 381; Manderbach v. Mock, 5 Casey 43; Barncord v. Kuhn, 12 Id. 383; Walker v. Reamy, Id. 410. When the evidence clearly shows the separate property to be in the wife, she is entitled to the benefits of all its products, increase and avails. The ownership of a farm carries with it the right to its products; the ownership of personal estate draws to it the increase thereof: Rush v. Vought, 5 P. F. Smith 437 ; Silveus’s Ex’rs v. Porter, 24 Id. 448.

The uncontradicted evidence in this case shows that by the will of her father, proved in 1854, the farm on which she and her husband lived was devised to them. They then took by entireties and not by moieties, and the husband could not by his own conveyance, without his wife joining, divest her estate: Doe v. Parratt, 5 Term Rep. 652. They were not as joint tenants, seised of an undivided moiety of the whole, but being husband and wife were seised of the whole. The husband had the entire use, and the wife had the entire use: Plowden 58. Such an estate is not subject to the Statutes of Partition: 4 Kent’s Com. 363. The estate which the wife thereby took was not changed by the Act of 1848 relating to married women, but it was, by its provisions, protected from the dominion and control of her husband. So fully was her estate therein secured to her, that a purchaser at sheriff’s sale, under a judgment against her husband of his interest in the farm, could not recover possession during her life. He could not dispossess her of^my part of the premises, nor could she be compelled to take a stranger into' concurrent possession with her. She has a right to hold it with her husband alone. Her right is not impaired by the Act of 1848, but she is protected in its enjoyment: Diver v. Diver, 6 P. F. Smith 106; McCurdy v. Canning, 14 Id. 40; Gillen’s Executors v. Dixon, 15 Id. 395. Nor would the fact that her husband’s labor assisted in creating the products derived from her estate in the land, make them liable for his debt: Rush v. Vought, supra; Silveus’s Ex’rs v. Porter, supra.

In addition to the estate in the farm the evidence also shows that the plaintiff in error afterwards received divers sums of money; $100 dollars from her mother’s estate, $240 from her sister’s estate, $450 from the proceeds of land at Erie, acquired from her father’s estate, and $7 0O from a sale of part of the farm. Considerable timber grown on the farm was sold. She testified that the sums she received from the several estates were used in buying horses, cows, household goods, and in keeping up the farm. That she made and sold butter and cheese, and they raised and sold grain and stock. The testimony of her husband concurs substantially with hers. They resided on the farm continuously for some eleven years before the property in question was taken in execution. He was engaged in buying and selling stock, and in trading and exchanging hers as well as his own. Her money was mingled to some extent with his, in making purchases, yet there is evidence tending to show that her right to some of the property acquired, and to a part of the increase of the stock was recognised by them.

The Act of 1848 was designed to protect a married woman in the enjoyment of her property which she acquired after its passage. Her marital relations prevent her enjoying it separate and apart from him. While living with him she may not have a possession separate and distinct from his possession. If, however, it be clearly shown that the original property was hers, then all the product and increase become hers, as long as they can be followed or identified. The fact that her husband acts as her agent in buying and selling and in investing her money, does not, against her consent, transfer her right of property to him.

We think there was sufficient evidence tending to show that many items of property levied on, were the product or increase of other property clearly proved to have been the estate of the plaintiff in error, and the question of her ownership should have been submitted to the jury. The mere fact that there may be difficulty in determining which articles are the product of her property did not justify the court in taking the question from the jury.- While the husband is entitled to the reasonable services of his wife, yet if a portion of her time was occupied in the care and management of her separate property whereby its productiveness was increased, the product was not thereby made liable for his debts. We*think the learned judge held the rule too stringently against the rights of the plaintiff in error, and in so far as the answers, and parts of the charge, covered by the assignments, are in conflict with this oninion, the assignments are sustained.

Judgment reversed, and a venire facias de novo awarded.


text:
    Boden versus Irwin et al.
    1. The court in charging the jury said: “ The court would not set aside your verdict even if you compromise between them. * * * You may compromise the verdict.” Meld, to be error.
    2. Per Paxson J. — Juries are prone enough to disregard the evidence and set up their own standard of right between the parties, without a permission to do so from the court.
    November 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 97.
    Replevin by Edward J. Boden against H. A. Irwin and others.
    The plaintiff was a tenant of the defendants. A dispute arose between them whether the tenant was not in default one quarter’s rent; namely, the quarter running from the 1st of October 1877, to January 1st 1878. The parties chose two friends to take papers, receipts, &c., and settle the matter. They met on the leased premises on December 21st 1877. The lease, receipts and parties were all before the referees. The referees found that $1.35 was due on the 1st of January 1878. This amount was then paid by plaintiff and receipted by defendant. This amount and the payment of this small sum settled the question between the parties. The rent was payable by the terms of the lease quarterly, at the expiration of the quarter. In January 1878, about the 26th, the defendant alleging that the referees had made a mistake, issued his landlord’s warrant for the collection of the rent due on the quarter ending on January 1st 1878, $93.75, and distrained plaintiff’s property, who thereupon brought his action of replevin.
    At the trial, the jm-y found for the defendants in the sum of $62 rent in arrears. After judgment thereon, plaintiff took this writ and, inter alia, assigned for error the instructions of the court below, which will be found in the opinion of this court.

      I). M. Farrelley and Thomas Roddy, for plaintiff in error.—
    No authority and no principle can be found excusing a court, for so instructing a jury. A juror’s oath is that he will well and truly try the issue joined between the parties and a true verdict given according to the evidence. This oath presc2-ibes to a juror a plain duty, and when a judge, as in the present case, instructs a jury to compromise between the parties, he in effect is telling the juror to disregard his oath. It is not alleged that such was the meaning of the court; the instruction was very likely inadvertent, but it was wrong and injurious.

      J. N. McCloshey, for defendant in error.
    There was no misdirection; no intimation as to the character of the verdict that should be rendered. Taken in connection with that portion of the charge that precedes these expressions and the confused, conflicting statements of testimony, it was equivalent to telling the jury to reconcile the evidence as favorably as possible; settle their differences by making concessions1; dispose of-the case most satisfactorily to yourselves, and the court will sustain your verdict. It was merely an inadvertent expression of opinion, not intended as a direction binding on the conscience of the jury.
   Mr. Justice Paxson

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

This is a very small case. It belongs to that class in which it is always profitable for the parties to consider the injunction to “agree with thine adversary quickly.” As, however, they prefer our ruling to the authority indicated, we will dispose of the case as though the principle involved were important, and the amount considerable.

We find no substantial error in the first, second and third assignments. The portions of the charge complained of, were not inaccurate as applied to the facts. But in a subsequent portion of it, the learned judge told the jury: “The court would not set aside your verdict even if you compromise between them. * * * You may compromise the verdict.” This was error. Juries are prone enough to disregard the evidence, and set up their own standard of right between the parties without a permission to do so from the court. The instruction complained of, left the jury to do as they pleased without regard to the evidence. The v.erdict was for $62. The extent of the plaintiff’s claim was $93.75. What the verdict would have been without the instruction referred to, we have no means of knowing. As, however, it may have influenced the jury, we must send the case back for another trial.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Power et al., Administrators, versus Thorp.
    1. Where a purchaser in order to control an official sale makes representations to cheapen the property, he cannot after he obtains the property on his own terms and price shelter himself from his own fraud under the technical rules applicable to such sales.
    2. Legal rules and precepts were not intended to furnish skulking places for fraud, and he who buys property, at an official sale, through a trick or misrepresentation, must not expect to hold it through the help of the courts.
    3. Where the representations cheapen the property and the party making them is thereby benefited and other parties interested are thereby thrown off their guard, although the representation was made with no evil intention, nevertheless as the loss must be between two innocent persons it must fall on him who occasioned it.

      November 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkby, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Orawford county: Of October and November Term 1879, No. 50.
    Ejectment by Alexander Power and W. P.' Porter, administrators of Robert Hannah, deceased, against George R. Wilson and William Thorp, terre-tenant, for the undivided one-half of certain real estate, known as the Red Mill property, in the city of Meadville.
    The title to this property was vested in Edward Ellis on the 20th of November 1863. On the 2d of December 1863, Ellis sold this property to George R. Wilson and Henry A. Howe, by articles of agreement, for $8000. On the 15th day of November 1866, Howe reassigned his interest in the property to Edward Ellis, and on the 22d day of November 1866, George R. Wilson sold his interest therein to Robert Hannah, and on or before December 4th 1866, Hannah paid to Edward Ellis $3000, in full of the, balance of purchase-money due from George R. Wilson and H. A. Howe to Ellis.
    On the 21st day of February 1866, J. S. Crane entered judgment, in the Court of Common Pleas of Crawford county, against Fred A. Howe and Edward Ellis, for $5000, which was a first lien upon all the real estate of Edward Ellis, upon which judgment there /was a credit, October 11th 1866, of $2500.
    An alias fi. fa. was issued to No. 104 January Term 1868, upon the aforesaid judgment, and real estate of Edward Ellis was sold, amounting to $5755, which money was receipted to the sheriff by William Thorp, a,nd applied to the payment of judgments against E. Ellis, entered after the Crane judgment. This was done with the consent of Ellis, as shown by a memorandum of agreement, dated April 29th 1868.
    A pluries fi. fa. was issued upon the same judgment to No. 114, June Term 1868, and levy made upon a lot in the city of Mead-ville, and also on the mill property in dispute, as the property of Edward Ellis and F. A. Howe. The first-mentioned property was sold for $4000, and the mill property was sold for $2110 to William Thorp, and the proceeds of the sale, except the costs, were paid to Thorp.
    At this sale, Thorp, by his attorney, gave notice, that the title being sold was the undivided one-half of the property known as the Red Mill property, and that Robert Hannah owned the other half, which is the property in dispute. This notice was repeated by the sheriff, and the bidders proceeded on the supposition that the notice was true; and it was alleged, Thorp thereby got the property at one-half the value of the whole property.
    At the trial, plaintiffs offered “to prove by the testimony of A. B. Richmond, Pearson Church and others, that at this sheriff’s sale William Thorp, by his attorney, Pearson Church, gave notice, that the title being sold was the undivided one-half of the property known as the Red Mill property, and that Robert Hannah owned the other undivided one-half, which is the property in suit; that this notice was repeated by the sheriff; and that the biddings at the sale proceeded on the supposition that the notice was true, and that William Thorp thereby got the property at one-half the value of the whole property. This, offered for the purpose of estopping Thorp from claiming that he obtained by virtue of that sheriff’s sale, more than the undivided one-half of the property; and also for the purpose of showing, that he has no equities derived by or under that sale, available in this case as a defence to the payment of purchase-money in this suit. We propose to follow this by evidence, that the judgment was in fact paid by the sheriff’s sale of the property of Dr. Ellis, made in January 1868, and by other sales made prior to this sale of the Red Mill property.”

      “ Offer overruled as to all, excepting the offer to prove the judgment was satisfied.” (Second assignment of error.)
    The following were among the points of defendants, both of which the court affirmed:
    1. That under and by virtue of the sheriff’s sale of June 8th 1868, under the judgment of Duffield, administrator of Crane v. Howe and Ellis, and the sheriff’s deed made in pursuance» thereof, William Thorp acquired the legal title to the whole of . the premises in dispute, subject to the right of Robert Hannah or his heirs, to the undivided one-half thereof, upon the payment to said Thorp of the balance of the purchase-money due under the articles of agreement between Edward Ellis, and Howe, and Wilson, on the 21st day of February 1866, the date of the entry of the judgment on which said land was sold. (Tenth assignment.)
    4. That under all the evidence in this case, the verdict should be for the defendant. (Eleventh assignment.)
    In the general charge the court, inter alia, said :
    “ Under that judgment the land was sold and purchased by William Thorp, who, so far as the legal effect is concerned, was an innocent purchaser without notice. There is no equitable defence against that judgment. That sale vested in Thorp a good title to the land. Thorp under that sale went into possession.
    “ As to transfers afterwards, we think they have little to do with the case. We think that the holder of a legal or equitable interest by virtue of an outstanding agreement, whatever his equities may be upon that contract, or however much he might enforce them at law in an action upon this contract, cannot maintain an action of ejectment against the holder of a legal title in possession of the land.” (Thirteenth assignment.)

      Verdict for defendants, and after judgment plaintiffs took this writ and alleged, inter alia, that the court erred as set forth in the above assignments of error.

      A. Gr. Church and Bole $ Fry, for plaintiffs in error.
    We contend that Thorp got nothing by the purchase at the sheriff’s sale. The sale was void because the judgment had been previously fully paid by the sale of Edward Ellis’s property in January 1868, and by the sale of the house and lot on Water street on the same day, but before the sale of the mill property, and William Thorp knew of its payment and had himself received the money from the sales by which its lien on the land was divested.
    A purchaser at sheriff’s sale with knowledge that the judgment has been satisfied acquires no title: Vide Hoffman v. Stroheckler, 7 Watts 86; also Gibbs v. Neely, Id. 305.
    The plaintiffs further contend that if the sale was valid Thorp only bought an undivided one-half interest in the property, because, as the plaintiffs offered to prove, he attended the sale, with his attorney, and gave notice that they were selling only an undivided one-half interest, and that Robert Hannah owned the other undivided half interest, which notice was repeated by the sheriff, and the land was sold and stricken off to him with that understanding, for less than the value of the whole, and that he is thereby estopped from claiming more than the undivided one-half interest: Shultze v. Diehl, 2 P. & W. 273; Eshbach v. Zimmerman, 2 Barr 315; Commonwealth v. Moltz, 10 Id. 530.

      J. B. Brawley, for defendant in error.
    A judgment obtained against the vendor of land after the execution óf an article of agreement and before execution of a deed binds the legal estate of the vendor, and on a sale under such judgment the sheriff’s vendee stands precisely in the situation of the original vendor, and is entitled to the unpaid purchase-money, payment of which may be enforced by ejectment against the terre-tenant: McMullen v. Wenner et al., 16 S. & R. 18; Garrard v. Lantz, 2 Jones 193; Vierheller’s Appeal, 12 Harris 107; Mellon’s Appeal, 8 Casey 128. The quantity of land which passes at sheriff’s sale to the purchaser is to be ascertained by the extent of the levy : Hoffman v. Danner, 2 Harris 25; Heartley v. Beaum, 2 Barr 165, 172; Grubb v. Guilford, 4 Watts 223. The only remedy for misrepresentation, not fraudulent, but affecting the rights of either party to a sheriff’s sale, is an application to set aside the sale: Reigle v. Serger, 2 P. & W. 340; Fretz v. Heller, 2 W. & S. 397.
    A sheriff is bound by the statute to sell the debtor’s interest in real estate levied, whatever it may be, without terms or conditions affecting the title: Aulenbaugh v. Umbehauer, 8 Watts 48; Same
      v. Same, 3 W. & S. 259; Wood v. Levis, 2 Harris 9; Randolph’s Appeal, 5 Barr 242. The declarations of the crier when selling lands under an order of the Orphans’ Court are not to be admitted in evidence to contradict the conditions of sale which had been publicly read: Vandever v. Baker, 1 Harris 121.
    • Robert Hannah was in no way injured by the notice, and could not have been. The sale did not affect his rights. That sale could not prevent his heirs bringing suit to enforce the contract between Ellis and Wilson assigned to him.
   Mr. Justice Gordon

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

On the 21st of February 1866, when the Crane judgment was entered, it became a lien on the legal estate of Ellis which he held by virtue of his articles with Howe and Wilson, and upon the equity of Howe. When, therefore, Hannah bought Wilson’s interest in the property he took subject to the Crane judgment to the extent of the purchase-money due from Wilson to Ellis — some $3000. Hannah paid this money to Ellis, and entitled himself to a deed from Ellis, which, however, was never executed, probably because of the encumbrance above mentioned. Then, at the time of the sheriff’s sale, matters stood thus: Ellis, having extinguished Howe’s interest, owned one-half of the property and Hannah owned the other half; both shares being subject to the lien, as above stated. The1 utmost, therefore, that the purchaser could take by virtue of the sheriff’s sale was the fee in one-half of the premises and the legal estate in the other half. By virtue of this legal title he could enforce the payment, or rather repayment of the purchase-money from Hannah, but his right of possession extended only to one-half of the property. Wilson bought Hannah’s interest by articles of agreement dated March 17th 1870, agreeing to pay him, therefore, the sum of $2500 in five payments. Thus, Hannah, in turn, stood as vendor of Wilson and could have enforced payment by ejectment. I suppose it will not be doubted but that had any one but Thorp, in whom was the legal title, bought Wilson’s interest, he would have been liable for the purchase-money due Hannah, and that payment might have been enforced as above stated. But why was Thorp, after his purchase of Wilson’s interest, in a better position ? As owner of the legal title, he was not entitled to the possession of Hannah’s half that he obtained through Wilson, and in order to hold it against Hannah he must pay as Wilson had agreed to pay. The only difficulty in the way of thus enforcing this agreement against Thorp is, if he, by virtue of the sheriff’s sale, was entitled to that interest in the property which was bound by the lien of the Crane judgment, then he had some $3000 of the original agreement between Ellis and Wilson which he might recover against the amount due on the Hannah articles, and as he could thus more than cover that amount, an action against him would be fruitless.

After all then, the main and perhaps the only question of the case is, what did Thorp acquire by the sheriff’s sale ? The answer to this is, if we take the plaintiff’s offer, as we are bound to do, as proved, nothing more than Ellis’s interest, the fee in one-half of the property and the bare legal title at most in the other half. He caused notice to be given at the sheriff’s sale that what was to be sold was the one undivided half part of the Red Mill property, that the other half belonged to Robert Hannah. Under this notice'’ the sale was made, for it was repeated by the sheriff, and under and subject to that notice he bought. By it of course Hannah was thrown out; it left him no interest to protect, and hence he would give no further attention to the sale. Moreover, in this manner Thorp got the property for less than the value of the Hannah equity, and if he holds that equity he gets the other half for nothing. But to permit him now to enjoy the benefit of that equity, would be to permit him to commit a gross fraud upon the rights of Hannah. It is indeed not controverted that the sheriff’s sale would, of itself, have vested in Thorp whatever was covered by the Crane judgment, the limitation or restriction of the effect of that sale arises from Thorp’s own act, and by that act he is bound.

It would not do to allow a purchaser to control an official sale, make what representations he pleased, in order to cheapen the property, and then, after he has obtained the property, on his own terms and at his own price, permit him to shelter himself from his own fraud under the technical rules applicable to such sale. Legal rules and precepts were not intended to furnish skulking places for fraud, and he who buys property, at an official sale, through a trick or misrepresentation, must not expect to hold it through the help of the courts: Buchanan v. Moore, 13 S. & R. 304; Miller v. Miller, 10 P. F. Smith 16; McCaskey v. Graff, 11 Harris 321; Walter v. Gernant, 1 Id. 315.

It is more than probable that Thorp intended nothing wrong when he made, or caused to be made, the representations at the sheriff’s sale; no doubt he thought the levy included only the one-half of the property, and that the sale should be limited to that. But none the less did those representations cheapen the property; none the less was he benefited thereby, and none the less was Hannah thrown off his guard. If then we regard him as innocent of any evil intention,'nevertheless as the question will then be one of a loss between two innocent persons, that loss must fall upon him who occasioned it. Furthermore, Thorp loses nothing, since he got all he bargained for, and however innocent he may have been, when he caused the representations to be made, his effort now to turn them to his own profit, to the detriment of Hannah’s estate is fraudulent: Kelly v. Abers, 16 S. & R. 281.

The foregoing sustains the plaintiff’s second, tenth, eleventh and thirteenth assignments of error. We observe nothing else requiring correction. Of course, if the Crane judgment was satisfied at the time Thorp bought, and he knew of that fact, the sale was worthless and he took nothing thereby; but as we understand the oourt’s ruling, the plaintiffs were permitted to show this if they could; if so, they have nothing of which to complain in this particular. We may further remark that, as this was an ejectment for the purpose of enforcing the payment of purchase-moitey, it was well brought by the administrators.

The judgment is reversed and a new venire ordered.