author: Agnew, J. —

text:
    Baum versus Reed.
    1. As a general rule costs do not bear interest.
    2. The exception to rule is where the party has paid the costs.
    3. To bring himself within this exception the party must show that he has paid the costs ; the mode of showing this the court may regulate by its rules.

      4. Practice as to interest on costs stated.
    5. McCausland v. Bell, 9 S. & R. 388 ; Rogers v. Burns, 3 Casey 525, recognised.

      October 23th 1873.
    Before Read, 0. J., Agnew, Sharswood and Mercur, JJ.
    Error to the Court of Common Pleas of Jefferson county: No. 115, to October and November Term 1873.
    On the 20th of December 1851, Andrew F. Baum instituted an action of ejectment against William Reed. On the 13th of May 1853 there was a verdict for the defendant. On the 27th of April 1871, the verdict fee was paid and judgment was entered on the verdict.
    The defendant’s bill of costs at May Term 1853, was $108.64. The correctness of this bill was verified by the defendant’s affidavit and filed May 30th 1853.
    On the 27th of July 1853, the defendant filed an additional bill of costs before arbitrators amounting to $71.37, duly verified by his affidavit. These bills were in addition to the docket costs.
    On the 5th of April 1871 a scire facias was issued by Reed against Baum on the judgment for costs; this writ was returned “ Nihil.” An alias scire facias was issued August — 1871 and returned served on Baum. On the 4th of November 1871, judgment was taken by default for want of an affidavit of defence.
    The statement filed for liquidation was as follows, viz:—
    “Willliam Reed’s bill of costs ... $ 71.50
    “ “ “ “ “ ... 108.64
    180.14
    Or. February 1854.
    By application of money made on fi fa. No. 23,
    Feb. T., 1854, . . $ 46.74
    133.40
    Interest from February 14th 1854, . . 140.74
    274.14
    To jury fee paid by Wm. Reed, . . . 4.00
    Debt, . . $278.14
    Balance of original docket costs brought forward, $21.96.”
    On the 21st of January 1873, a rule was granted to show cause why the judgment should not be opened.
    On the 26th of March 1873, the court (Jenks, P. J.) discharged the rule.
    Baum took out a writ of error and assigned the following errors.
    1. The court erred in allowing interest on the costs, prior to the-payment of the jury fee and judgment, entered on the verdict.
    2. The court erred in allowing interest on defendant’s bill of costs in- the ejectment, the bills never having been taxed.
    3. The court erred in allowing interest on the costs from the 14th of February 1854, there being no evidence on the record that the costs were paid.

      Cf. A. JenJcs, for plaintiff in error.' —
    Judgment cannot be entered until the jury fee is paid: Acts of March 29th 1805, sect. 13, 4 Smith L. 242, 2 Br. Purd. 1168, pi. 29; March 27th 1772, sect. 2, 1 Smith’s L. 300, 1 Br. Purd. 818, pi. 1; Kelsey v. Murphy, 6 Casey 340. There was no obligation to pay the costs till they were taxed: Richardson v. Cassilly, 5 Watts 449. Interest is not chargeable on costs without payment: McCausland v. Bell, 9 S. & R. 388. The allowance of interest on a judgment is on the debt and not on the costs: Rogers v. Burns, 3 Casey 525; Hoare v. Allen, 2 Dallas 105, in note.

      J. Oonard, for defendant in error.
   The opinion of the court was delivered, January 5th 1874, by

Agnew, J. —

It is certainly the settled general rule in this state that costs do not bear interest. The best evidence of this is the universal practice of endorsing executions. On the fi. fa. or other writ the debt is stated, followed by the date from which interest is to be computed, and then come the costs without date of interest. Such is the mode of endorsement, no matter how many years have elapsed from the entry of judgment. Even after a revival of the judgment, the same practice is pursued, the first costs being marked as on the original, and the second as on the scire facias. This rule as to interest has been recognised in McCausland v. Bell, 9 S. & R. 388, and Rogers v. Burns, 3 Casey 525. And see note to 2 Dallas 105. The reason for not charging interest on costs as a rule is that the party recovering the costs rarely pays. them till he collects them on the execution. The exception to the rule is where the party has actually paid the costs himself. It would then be fair to allow him interest, as on money paid and expended. But this being the exception, a party demanding interest must show that he has actually paid the costs. The mode of showing this, the court may regulate by its rules. In this case the judgment was by default, and a liquidation by the prothonotary on the bills of costs filed alone, without proof of payment — not even the affidavit of the party either filed with the bill or filed as a means of liquidating the judgment by default. It is evident the date assumed by the officer for computing the interest on the costs was arbitrary, and not the date of payment. This is the only error worthy of notice, but for it the judgment must be reversed ; and judgment is now ordered to be entered for one hundred and thirty-seven dollars and forty cents, together with the docket costs as taxed.


source: Caselaw Access Project

author: Sharswood, J. —

license: Public Domain

text:
    Selden's Appeal.
    1. Land of Mrs. Perkins, her husband living, was subject to a first mortgage to Metcalf, and a second to Selden. She contracted to sell part: to make title it was agreed between all the parties that the land should be sold under Metcalf's mortgage, purchased by him, he convey to the vendee, receive that purchase-money, and convey the remainder to Mrs. Perkins, the balance of his mortgage to he secured on the remainder and the Selden mortgage to come in next after that. After the sale to Metcalf and before he conveyed to Mrs. Perkins, she and her husband made a mortgage to him, then one to Brecht, both which were recorded ; and then executed the Selden mortgage which was not acknowledged by Mrs. Perkins : the Metcalf mortgage was assigned to Brecht. Afterwards Metcalf conveyed to Mrs. Perkins: the Metcalf and the Brecht mortgage were recorded a second time and the other mortgages were recorded after them on the same day. The land having been sold under the first mortgage : Eelcl, that Brecht nor Selden had any lien on the fund arising from the sale.
    2. Mrs. Perkins had no legal title under the agreement, hut an equitable right grounded upon the agreement at the sheriff's sale to reinstate the mortgages on her part of the land according to their respective priorities.
    3. A chancellor would not order Metcalf to convey to her without requiring her to carry out the agreement.

      í. The second recording of the Brecht mortgage after delivering the deed to Mrs. Perkins did not cure her want of title when she executed it.
    5. In the distribution of the fund, Selden in equity was entitled to priority over Brecht on his individual mortgage.
    October 24th 1873.
    Before Read, 0. J., Agnew, Shabswood and Mercur, JJ.
    Appeal from tbe Court of Common Pleas of Erie o.ounty: Of October and November Term 1873, No. 6.
    In tbe distribution of the proceeds of the sheriff’s sale of the real estate of Mary Ann L. Perkins, wife of Rufus L. Perkins.
    The money being brought into court, A. J. Foster, Esq., was appointed auditor to report distribution. The facts in the case as found by him, are as follows :—
    Mrs. Perkins was the owner of a farm on which there was an old purchase-money mortgage, owned by Prescott Metcalf. Her husband was a partner in the firm of Perkins & Selden, composed of himself and Samuel Selden; this firm was indebted to the firm of George Selden & Son, composed of George and Joseph Selden. To secure the debt, Mr. and 'Mrs. Perkins executed a mortgage on her farm to Selden & Son; Joseph Selden having died, this mortgage was assigned to James Sill, Esq., his administrator. John C. Selden afterwards became the trustee of the heirs of Joseph Selden, the decedent.
    The purchase-money mortgage being the first lien, and the Selden mortgage the second on Mrs. Perkins’s farm, she and her husband contracted for the sale of part of it to E. P. Bailey; but as a clear title could not be made without a release of the Metcalf mortgage, and Metcalf being unwilling to release, it was agreed between Joseph 0. Selden tbe trustee, James Sill the administrator, Rufus Perkins and Metcalf, that the whole should he sold by the sheriff under the purchase-money mortgage, Metcalf bid it in at a nominal sum; then make a deed to Bailey for the part he had contracted for; Metcalf to receive Bailey’s purchase-money and apply it to Metcalf’s purchase-money mortgage; and to convey the remainder of the farm to Mrs. Perkins, and she with her husband to execute a mortgage to Metcalf on the part conveyed to her, to secure whatever might still be due on the purchase-money mortgage. Another mortgage was to be executed to Josejoh C. Selden, trustee of the heirs of Joseph Selden, deceased, for the amount due on the mortgage held for them, “so that the relative position of the two prior mortgages should not be altered.”
    Under this understanding the farm was sold at November Term 1868, Metcalf becoming the purchaser for a small sum. Shortly after the sale, he conveyed to Bailey the part for which he had contracted and received Bailey’s purchase-money. He also executed a deed, which he did not then deliver, to Mrs. Perkins, for the remainder of the farm, and sent a mortgage on this remainder to her, to be executed by herself and her husband, to secure the balance still due on the purchase-money mortgage, notifying them at the same time that a deed had been executed to Mrs. Perkins. Joseph C. Selden also, about that time, prepared a mortgage to secure his wards’ claim, and sent it to Mr. and Mrs. Perkins to be executed. They declined to execute it, alleging that there wras some error in the amount stated in it; but they executed the Metcalf mortgage, and returned it to him. He had it recorded April 5th 1869. On the 12th of April 1869, the Perkinses executed, duly acknowledged, and delivered to John Brecht, a mortgage on that part of the farm to be conveyed to Mrs. Perkins ; this mortgage was recorded the same day.
    On the 18th of March 1871, Mr. and Mrs. Perkins executed-the mortgage to Selden; it was not acknowledged before a magistrate, but its execution was proved by a subscribing witness. On the 20th of March 1871, Metcalf assigned to John Brecht his mortgage from Mr. and Mrs. Perkins, and on the same day had the deed to Mrs. Perkins recorded. Brecht on the same day caused the Metcalf mortgage to be recorded the second time, after which, on the same day, Brecht’s own mortgage was recorded; and after-wards, also on the same day, the mortgage to Joseph 0. Selden was recorded.
    Some weeks before recording the mortgage, Brecht had been informed by both Mr. Metcalf and Mr. Sill, of the understanding between the parties, and that the Selden mortgage was to stand next to the Metcalf mortgage, and be the second lien on Mrs. Perkins’s land.
    The land was sold under the Metcalf mortgage at the suit of Brecht as assignee; the fund in court for distribution arose from this sale.

      In connection with. Brecht’s knowledge of the agreement as to the relative positions in which the several mortgages were to stand, was the following testimony
    P. Metcalf testified: * * * “I had a conversation with Mr. Brecht some two or three weeks before the deed was left at the recorder’s office. I then informed him of the arrangement that was made before I sold the property. He, Brecht, knew of this arrangement when he bought my mortgage. I do not know that Brecht ever had any knowledge of the arrangement about the Selden mortgage before the time mentioned. I never had any talk with him about it till he came to me and we had negotiations about selling the mortgage.” * * *
    James Sill testified; * ‡ * “It was, I believe, in January or February 1871, not far from that time, that John Brecht spoke to me about this matter, and my best recollection is that I spoke in general terms of this arrangement, but I could not give him the amount that was due. I think that I told him that the amount was from eight to twelve hundred dollars, though I am not positive on this.”
    R. L. Perkins testified: “ On the day of the sale, before the sale, I had conversation with John Brecht on the subject of the sale. I said to John Brecht that if he would not bid on the property that his mortgage should be reinstated on the balance of the farm after what was to be sold to F. P. Bailey was set off to him, Bailey. I do not remember that John Brecht made any reply in words, but seemed to assent and did not bid. By reinstating his claim or mortgage I meant to place him in the same position, in relation to other liens upon the property, that he then held. The property was sold for the nominal sum of five hundred dollars. I am confident Brecht knew of the order in which the liens stood against the property, and Brecht knew that his claim or ljen was the last. I am confident Brecht had knowledge of the Selden lien. After the sheriff’s sale to November Term 1868, I reinstated Brecht’s claim. The only reason I did not reinstate the new Selden mortgage was because I did not think the computation was correct. This farm was worth in May 1871, one hundred dollars an acre; there were about 113 acres of it, all improved.”
    John Brecht testified: * * * “Perkins saw me when at court, and said that the land was to be sold; that there would be about §4000_ left due to Metcalf ahead of my claim, and Perkins said that the land would be sold and the claim of the mortgage would go on-it again. He said he would give me a new mortgage on the land, but that Metcalf would have a mortgage ahead of mine. I made no reply whatever. I did not attend the sale. The first knowledge I had of this claim known as John C. Selden’s trust was in the winter of 1870-1871.”
    In deciding, the auditor further reported: * * * “ It is claimed on the part of the heirs of Joseph Selden, deceased, that, under the agreement or understanding had before the sheriff’s sale on the foreclosure of the old purchase-money mortgage, and Brecht being subsequently informed of that agreement or understanding, the Brecht mortgage should be postponed to the Selden mortgage, and that Brecht cannot, and ought not to be allowed to slip his mortgage in ahead so as to defeat the Selden claim. But, unfortunately for them, Brecht Ayas not a party to that arrangement, and his mortgage Ayas executed and recorded nearly two years before the Selden mortgage was reinstated, and it is not claimed, and it does not appear in the evidence, that Brecht knew of the arrangement either before or at the time his mortgage Avas executed, but that he knew of it, at most, only a month or two prior to the second Selden mortgage lien being perfected, if perfected it was, Avhich Avas recorded on the 20th day of March 1871, long after Brecht’s lien was perfected. But even if Brecht knew of the arrangement at the time it was entered into, he not being a party to it, your auditor is of the opinion that it could not possibly affect his rights. * * *
    “ What Avas this but an attempt by parol to keep alive and on foot an expired mortgage? The fact that they, the legal representatives of Joseph Seldeji, deceased, did, at last, succeed in getting a mortgage to reinstate a claim that had been wiped out by the first sheriff’s sale, does not help them in the least, for so long as they suffered the matter to stand as left by the first sheriff’s sale, it was but a parol agreement or understanding to keep alive an extinguished mortgage, which had been suffered to remain in that intangible shape for more than two years. * * * Brecht was not bound to look in the first instance beyond the record of the first sheriff’s sale, and the notice to him, if it had any power or virtue in it when given to him in time, in the opinion of your auditor came entirely too late.”
    He reported therefore that the amount due on the Metcalf mortgage assigned to Brecht should be paid out of the fund in court, and that the balance should be appropriated to Brecht's OAYn mortgage, excluding J. C. Selden, trustee, from any portion of the fund.
    After exceptions, the court confirmed the report of the auditor and decreed that the money in court be paid out according to the report.
    J. 0. Selden, trustee, &c., appealed to the Supreme Court and assigned the decree for error.
    S. IS. Woodruff (with Avhom was J. Sill), for appellant. —
    Brecht was not misled and could not be, for Perkins had no title with which to mislead. He AYas simply the owner of an equitable interest upon performance of a certain act.
    It was the duty of Brecht, in making a purchase or taking a mortgage from Perkins and finding the title to the land in Metcalf, to make inquiry of them as to how it stood: Lodge v. Simonton, 2 Penna. Reports 439; Epley v. Witherow, 7 Watts 163; Jacques v. Weeks, Id. 267; Kaufelt v. Bower, 7 S. & R. 76; Bear v. Whisler, 7 Watts 144; Bayler v. Commonwealth, 4 Wright 37.
    The mortgage from Mrs. Mary Ann L. Perkins to John Brecht was void, as she had no estate in the land before the delivery of the deed to her, all she could be said to have was a mere equity in the land, and such equity she was incapable of encumbering for her husband’s debt, Bayler v. Commonwealth, 4 Wright 44.

      G-. H. Gutter and J. W. Wetmore, for appellee. —
    This is a contest for the right, and each party can insist on what the law awards him, all being innocent: Mode’s Appeal, 6 W. & S. 280.
    The execution of the deed by P. Metcalf to Mrs. Perkins, December 8th 1868, and the execution and acknowledgment of the mortgage by them and delivery to Metcalf, and the recording of it by Metcalf April 5th 1869, involve a delivery of the deed. It would not be revoked by Metcalf’s effort to aid Selden to obtain his mortgage : Blight v. Schenek, 10 Barr 285.
    As to a resulting trust they cited Strimpfler v. Roberts, 6 Harris 283; and as to notice, Kaufelt v. Bower, 7 S. & R. 64.
   The opinion of the court was delivered, November 10th 1873, by

Sharswood, J. —

We think it very clear that neither Selden, the appellant, nor Brecht, the appellee, had any legal lien on the funds in the court below for distribution. Selden’s mortgage was not acknowledged before an officer duly authorized by law to take such acknowledgment, and was therefore utterly ineffectual to convey or encumber the estate of Mrs. Perkins. At the time Brecht’s mortgage was executed Mrs. Perkins had no legal title. The deed from the purchaser to her, though executed, had not been delivered, as the auditor reports. If she had an equitable estate —a right to call upon Metcalf to execute and deliver to her a deed — it was an equity grounded upon the agreement of the parties at the sheriff’s .sale, by which she was bound to reinstate all the mortgages upon the part of the land to which she was entitled, according to their respective priorities. A chancellor would not have decreed a conveyance to her from Metcalf, without at the 9same time providing that she should carry out that agreement. It is hardly necessary to observe that the recording of Brecht’s . mortgage, after the delivery of the deed of Metcalf to Mrs. Perkins, did not cure the want of title in Mrs. Perkins at the time she executed th,e mortgage to him.

How then stood the question of distribution before the auditor ? The eighty-sixth section of the Act of June 16th 1836, Pamph. L. 777, provides that in all cases of sales upon execution as aforesaid, when there shall be disputes concerning the distribution of the money arising therefrom, the court from which the execution shall have issued shall have power, after reasonable notice given, either personally or by advertisement, to hear and determine the same according to law and equity.” At law Mrs. Perkins was entitled to receive the balance of the fund after the payment of the purchase-money to Metcalf, as far as appears no subsequent liens having been presented. Mrs. Perkins did not appear to make any claim. If then Mrs. Perkins was in equity bound by the agreement alleged to reinstate the several mortgages in the order of priority as they stood before the first sheriff’s sale, and a chancellor would have decreed the specific performance of that agreement, then in equity in Pennsylvania whatever a chancellor would decree to be done shall be considered as actually done. The auditor reported that such an agreement was entered into, and on the faith of it Selden allowed the sale to go on and did not bid to secure his interest. It is not perhaps very material whether Brecht was a party to this arrangement or not, but if it be considered important, we think upon the evidence the auditor ought to have reported asa fact that'he was. Perkins testified: “On the day of the sale, at November Term 1868, before the sale, I had a conversation on the subject, of the sale. I said to John Brecht that if he would not bid on the property, that his mortgage should be reinstated on the balance of the farm, after what was to be sold to E. P. Bailey was set off to him, Bailey. I do not remember that John Brecht made any reply in words, but seemed to assent.” John Brecht in his deposition did not deny this, but said he did not know of Selden’s mortgage. But he ought to have known of it. The mortgage was on record, and he had constructive notice of it. His assent was to the arrangement that the sheriff’s sale was not to affect the relative position of those who had liens on the property. It was evidently very much for his interest at the time. A large price was to be obtained for a part of the land, which was to be applied to the reduction of the purchase-money mortgage, thus improving the security of all the parties. We think therefore that the Selden mortgage was entitled in equity to priority of payment over that to Brecht.

Decree reversed, and record remitted that a decree may be entered in the court below conformably to this opinion. The costs of this appeal to be paid by the J appellee.


text:
    Cowan’s Appeal.
    1. A testator devised land to all his children, after tne date of his will another was born, at his death the last and the three others were minors. Held, that under Acts of April 3d 1840, sect. 4, April 10th 1849, sect. 10, the Orphans’ Court had jurisdiction in partition of the real estate devised.
    2. A devise was “ The farm, &c., I leave jointly and equally to my six children and if my wife may think best to have guardians appointed for my children, such guardians will have the last three properties sold and the money arising from such sale placed at interest for the use of my children, my wife joining the guardians or consenting to such sale.” Held, that this was
    . a devise directly to the children, subject to a power of sale conditional on the consent of the widow.
    3. Upon the birth of the last child the devise opened and she took her share under the intestate laws.
    4. A testator gave to his wife the rents and profits of a farm “ during her natural life so long remaining my widow,” he then gave the farm to my son Matthew on the event of his mother's death, if on the happening of such he may be 21 years old; not before her demise and his arriving at 21 years can he claim any control or ownership.” Matthew attained 21, the widow married and he took possession of the land : — he was appointed guardian of a minor child of testator. Partition in the Orphans’ Court was had of all the testator’s real estate including this farm, which was adjudged to him, and other land to the four minors jointly, they afterwards had partition amongst themselves in the Common Pleas. Pour months after the ward came of age, she, with the widow and her husband find all the other children executed a release to Matthew of all their interest in the farm ; there was no fraud in the release. Held, that these proceedings vested the farm in Matthew in severalty.
    5. Under the circumstances the release was carrying out a family arrangement of what had been before done and not a mere release from ward to guardian.
    6. The tract devised to widow during widowhood was also adjudged to Matthew, in the same partition. Held, that he took it discharged from any trust as guardian.
    7. Eberts v. Eberts, 5 P. P. Smith 110; Stanley’s Appeal, 8 Barr 431, distinguished. Johnston v. Purnier, 19 P. P. Smith 449, followed.
    October 27th 1873.
    Before Read, C. J., A&new, Sharswood, Williams and Mercur, JJ.
    Appeal from the Orphans’ Court of Westmoreland county: No. 85, to October and November Term 1872.
    In the guardianship account of Matthew Jack, guardian, &c., of Harriet Jack now Cowan: Mrs. Cowan was a daughter of William Jack, deceased.
    The decedent died February 28th 1852, leaving a widow Harriet Jack, and six children, William, Matthew, Margaret, Elizabeth, Emily and Harriet; and Nancy, who was born after the date of his will, dated August 11th 1848 and proved March 20th 1852; it contained amongst other provisions, the following:—
    To his wife Harriet all his personal property ; also the farm on which he resided during her life, “ also the rents and profits of the farm formerly owned by William Best; * * * also the rents and profits of the land formerly owned by McKee’s heirs, also a small tract of land bought of Eli Coulter, * * * also the profits arising from the place on which Robert McOutcheon resides, together with the rents and profits arising from the farm whereon--Nesler now lives, during her natural life, so long remaining my widow.
    “ The farm west of Greensburg, formerly Arthur-Carr’s; also, the land form'erly owned by Bushfield’s heirs; also, the Bunker Hill property, I leave jointly and equally to my six children, and if my wife may think it best to have guardians appointed for my children, such guardians will have the last three named properties sold and the money arising from such sale placed at interest for the general use of my six children, my wife Harriet joining the guardians or consenting to such sale. My property [lying in the borough of Greensburg, as well that part owned by Matthew Jack, deceased, lying in said borough, to which I may be entitled by his will, I bequeath to my six children, equally share and share alike.
    “ Furthermore, my house and lot in the county and town of Clarion, Pa., I leave to my sons William and Matthew; the tract of land containing about three hundred acres in Snyder township, Jefferson county, Pa., I give and bequeath to my wife Harriet; the two tracts of land in Warsaw township, Jefferson county, Pa., I give and bequeath to my daughters Margaret, Elizabeth, Emily and Harriet, jointly — both tracts containing nearly eight hundred acres.
    “ The lumbering establishment and mills on Redbank, containing, &c., also the lumbering establishment and mill on Clarion river, &c., I authorize my executors to make sale thereof, and the proceeds of both properties to be put at interest or invested in good stock for the use of my six children jointly and equally; the tract of land in Washington township, Jefferson county, containing, &c., my executors will also sell, and the proceeds from such sale will be invested in stock or placed at interest. The interest arising from the sale of the last named three properties, * * * will be payable to my wife Harriot for use of my children, and she is not to account in any manner for its application.
    “ The tiact of land formerly owned by John Eason, &c., I direct said land to remain in possession of Mrs. Eason during her natural life, she receiving the rents or profits of said farm. At the decease of Mrs. Eason, I authorize my executors to offer the same to John and Robert Eason on their paying the purchase-money, with interest to that time. If the said John and Robert refuse to take, on said terms, I authorize my executors to sell to the highest bidders, and the money arising from this tract is for the exclusive use of my son William Jack, Jr. My lots in the borough of Brook-ville, which may remain unsold at the time of my death, I give and bequeath to my four daughters equally.

      “ My claim or property, in Kittanning, Armstrong county, arising from the estate of Samuel Jack, Matthew Jack and Henry Jack, deceased, I authorize my executors to have sold. * * *

      “ That portion of the real estate of said Henry to which I may be entitled, I give and bequeath to my six children jointly, desiring my executors at the death of Wilson Jack to make sales of such interest I may have in the real estate of Henry Jack, the proceeds to be put to interest, and to be equally applied or divided among my six children. The proceeds, both real and personal, arising out of the estate of Henry Jack are under the control of my wife so long as I may live, and my heirs must obtain her consent before they can claim any interest in such principal or interest arising out of Henry Jack’s estate. After the decease of .my wife Harriet, the amount received of the estate of Henry Jack is to be equally divided among my six children.
    “ The tract of land in Unity, Westmoreland county, formerly owned by Abraham Horbach, I direct my executors to make sale • of, the proceeds to be placed at interest, which interest is payable •to my wife Harriet during her natural life; and further, I order that should my wife decease without making a will and devising to my children what personal and real estate she may be possessed of, I order that whatever of the within enumerated moneys or land may remain to be equally divided among my sons and daughters, -share and share alike.
    “ My executors are allowed to apply any part of the foregoing lands or debts due me to enable them to pay any claims that may be just and right exhibited against me.
    “ The woodland lying in Hempfield township, adjoining Hugus’s heirs, also Hugh Y.'Brady and land formerly owned by .Turney’s heirs, I desire to be retained as timber land for the use of the homestead place, both which tracts of land contain about one hundred and fifty acres. Having in the body of this testament or will forgotten to name my executors, T hereby nominate and appoint my beloved wife Harriet, Joseph H. Kuhns, Esq., and Thomas Wilson, of Salem township, my executors, with full power to do all acts enumerated in the foregoing will.
    “ On the decease of my wife Harriet the homestead farm, containing about ninety acres; also, the woodland tract, containing about sixty acres, I devise to my son William Jack, if he may be arrived at twenty-one years of age, and not before he may arrive at such age.

      “ The farm formerly owned by,Wm. Best I give and bequeath to my son Matthew Jack, on the event of his mother’s death, if on the happening of such he may be twenty-one years old; not before her demise and his arriving at twenty-one years can he claim any control or ownership.”

      Letters testamentary were granted to Mrs. Harriet Jack and Joseph H. Kuhns.
    The widow and Joseph H. Kuhns, her co-executor, were married December 26th 1852.
    To November Term 1861, William Jack, eldest son of the decedent, presented his petition setting forth that the decedent died seised of 21 pieces of real estate, describing them severally: No. 1 was the Homestead farm; No. 2 was the “ Best farm No. 5 was Horbach place; No. 6 was the Bunker Hill property; No. 7 was the “ Bushfield propertyNo. 13 to 21 were lots in Greens-burg. The petition further set out that the decedent left a widow, since intermarried with J. H. Kuhns, and seven children, four of whom, viz.: Elizabeth, Emily, Harriet and Nancy were minors, and that Nancy was born in the life of the testator, but after the making of his will: the petition set out also the devises of the Bushfield property; Bunker Hill property; the Greensburg lots; the Homestead farm and the Best farm ; and the grant of letters testamentary to the widow and Kuhns. The prayer was for an inquest to make partition, &c. On the 20th of November 1861, an inquest was awarded and Matthew Jack was appointed guardian ad litem of the minors; personal notice was ordered to be given to all the parties. The inquest returned that the inquisition had been taken after all parties had been warned and that tjae property could not be parted, &c., but they valued the 21 lots separately. On the 18th of February 1862, Matthew Jack was appointed guardian of the person and estate of Harriet. On the 20th of the same month the inquisition was confirmed, and a rule on heirs to accept or refuse or to show cause why the real estate should not be sold granted. On the 18th of August 1862, No. 1 and No. 12 of the real estate were accepted by William Jack, and awarded to him upon his entering into recognisance “ to secure the share of his sister Nancy, being the one-seventh part of said valuation.” The other heirs declining he accepted [and lots No. 11 and No. 15 were adjudged to him, he to enter into recognisance to secure the shares of his brothers and sisters, being one-seventh each. On the same day Matthew Jack accepted for his four wards lot No. 3 at the valuation,; after deducting a proportional part of the expenses, “leaving $7047.63 as the net valuation-money and as devised to them by the will” of the decedent. Also lot No. 13 at the valuation, which after deducting the proportional part of tho expenses left $3158.97, and these lots were adjudged to him in trust for his four wards. On the same day, Matthew Jack, in his own right and as devised to him, accepted No. 2, “ the Best farm,” at the valuation, which after deducting the proportional part of expenses was $14,526.38;” No. 6, the Bunker Hill property, was on the same day adjudged to Margaret Katte, another of the heirs.

      On the ¿tji of April 1863, all the parties — the minors by their guardian Matthew Jack — “ for the purpose of making equal partition and final settlement of the remaining portion of the real estate of the decedent,” agreed to take the same at the appraisement of the inquest, in the manner which they set out in the agreement. Matthew Jack taking in his own right, amongst other tracts, the “Bushfield property,” devised for the use of the testator’s six children; and taking for his four minor sisters as their guardian, two other of the remaining lots.
    The agreement set out also in detail the respective lots with their valuation as taken by the heirs ; also the amount of their respective shares and the amount to be paid and received by them severally, viz.: William to pay $27.60, Matthew to pay $310.84, Mrs. Katte to pay $216.04, and the four minors to receive. $122.36.
    By the same agreement they appointed Joseph H. Kuhns their attorney in fact to appear in the Orphans’ Court and elect for them, “the said several portions of said real estate, according to the aforegoing our act of partition and agreement.” The agreement was under the seals of all the parties, the minors by their guardian Matthew-Jack.
    On the 14th of May 1863, the attorney, Mr. Kuhns, appeared in court and elected to take the several lots according to the agreement, and they were so adjudged by the Orphans’ Court. The agreement as well as the adjudication appears of record in the proceedings in partition in William Jack’s estate of November Term 1861.
    Elizabeth afterwards married James M. Latta. On the 12th of August 1865, an amicable action of partition of three of the lots adjudged jointly to the minor daughters was instituted in the Court of Common Eleas of Westmoreland county. In this action James M. Latta and Elizabeth his wife, in her right, were plaintiffs and Emily C. Jack, Harriet Jack and Nancy W. Jack, by their guardian, Matthew Jack, defendants; the agreement for the action set out that each of the daughters was entitled to a fourth of the land mentioned on it: and judgment quod partitio fiat was entered same day by virtue of authority in the agreement. On the 23d of August the court appointed commissioners to divide or value the real estate the subject of the partition.
    The commissioners reported a division of the property into fifteen parts, with a valuation of each. No. 1- was taken by Mrs. Latta at the valuation; No. 4 was not sold; all the remainder was sold under the judgment in partition; Mrs. Cowan arrived at age November 21st 1867 ; out of the proceeds of this sale she received by different payments up to March 25th 1868, the sum of $420.
    On that day the widow of the decedent, with her husband and the children of the testator, including Nancy, who was still in her minority, executed to Matthew Jack a release of “ all the estate, shares, purparts and dividends, right, title, interest, property-claim and demand” in and to the “ Best farm.”
    Harriet was married to Frank Cowan, the appellant, November 3d 1869 ; between the time of her arrival at age, and that time she had received the sum of $348. After her marriage she received $350, making the whole amount which she received from the proceeds of the land the subject of the partition in the Common Pleas, $1138.
    Matthew Jack, as guardian of Mrs. Cowan, filed his guardianship account, charging himself with the proceeds of sale of “ Brook-ville lots,” and of “lots in partition” amounting to $953.70, and claimed credits amounting to $888.84, showing in his hands a balance of $64.95.
    •It would appear from the exceptions to this account and the report of the auditors as hereafter stated, that Matthew had sold part of the Bushfield property and some of it remained unsold in his possession.
    Mrs. Cowan filed exceptions to the account, — that he should • have charged himself with one-seventh of the rents of the Best farm from the marriage of the mother till the settlement of his account ; and with one-sixth of the profits realized from the “ Bush-field property.”
    On the 14th of November 1870, John Armstrong and James C. Clarke, Esquires, were appointed auditors upon the exceptions.
    They reported as their opinion that the intention of the testator was to give the “ Best farm” to his wife for life or widowhood, with remainder to Matthew, to take effect whenever and by whatever means her estate might be determined.
    They further said as regards the first exception, that should their construction of the devise be wrong, Mrs. Cowan was concluded by her release, there having been no fraud and unfairness in procuring it.
    They further reported:
    “In regard to the ‘Bushfield property,’ the auditors are of opinion that the same having been devised by Judge Jack, in trust, for the use of his daughter Harriet and others, it must retain that impress until the trust or use, for which it was devised, is ended.
    “ Matthew Jack then, by his acceptance of the guardianship of his sister Harriet, became the trustee of her estate, and it was, therefore, his bounden duty to watch her interests with a jealous eye and see that they were properly cared for and protected. Without undertaking to determine the effect of the partition of Judge Jack’s real estate, or whether it was void or not (the auditors not deeming the question important under the view they take of the trust created in the will for the use of Harriet and others), it is enough to say that the guardian was presumed to know the nature of the position he occupied, and that he could not make any profit to himself out of this trust estate, but held the same for the use of the cestui que trust, his ward. The auditors are, therefore, of opinion that Harriet Oowan (late Jack) has an interest in the proceeds of the sales of the £ Bushfield property ’— now lots in the borough of Ludwick — she having elected to follow the proceeds and claim her share of the.trust, instead of resorting to the law — and that she has a right to demand and recover from the estate of her late guardian, Matthew Jack, the sum of $846.16, being the one-seventh of the amount of said sales, and of the estimated value of the six unsold lots with interest, less the amount of her recognisance (which was the one-seventh of the appraised value of the £ Bushfield property ’) paid her.
    “ The account of said guardian is, therefore, surcharged with this sum.
    “ The auditors are of opinion that the birth of Miss Nancy Jack, after the date of her father’s will, was such a revocation of the will as let her in for a share of all, her father’s estate, as well the triists as other portions — in short, that she was entitled to the one-seventh of the whole.”
    They surcharged the accountant with $846.16, Mrs. Cowan’s share of the “Bushfield property,” and after deducting costs, &c., found that there was in the guardian’s hands due her, a balance of $911.11.
    Buring the proceeding Matthew Jack died, and Alice Jack, his wife and executrix was substituted on the record.
    Both parties filed exceptions to the report:
    . By the executrix: That the accountant was surcharged with one-seventh of the “Bushfield property.”
    By Mrs. Cowan: That the auditors had not surcharged the accountant with one-seventh of the rents of the “ Best farmand that they had not surcharged the accountant with one-sixth instead of one-seventh of the “ Bushfield property.”
    The court decided that the release of Mrs. Cowan, being made ■in good faith and for quieting title, barred her from any claim in the “Best farm:” also, that the guardian under the circumstances had the right to take the “ Bushfield" property ” at the appraisement and hold it discharged of the trust; and that if it were otherwise, Mrs. Cowan had by her subsequent conduct ratified his acts.
    The exceptions by Mrs. Cowan were therefore dismissed, and the exception of the executrix to the surcharge sustained. The guardianship account, as originally filed, was finally confirmed.
    Frank Cowan, for self and wife, appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.

      JEI. Oowan, for appellant. —
    The estate to the testator’s widow was but for widowhood: Bennett v. Robinson, 10 Watts 348; Commonwealth v. Stauffer, 10 Barr 350; McCullough’s Appeal, 2 Jones 197. Matthew was not to have it till tier death, and m •.the interval it went to the testator’s heirs: Fearne on Rem. 542; Hopkins v. Hopkins, Cas. temp. Talbot 44; Hayward v. Stillingfleet, 1 Atkins 422; Chambers v. Wilson, 2 Watts 495. The release did not bind the ward: Stanley’s Appeal, 8 Barr 431; Eberts v. Eberts, 5 P. F. Smith 110.

      P. P. Laird and H. L. Poster, for appellee. —
    When the testator’s wife forfeited her estate in the “Best farm,” Matthew’s remainder took effect: Doe v. Hunt, 14 East 601; Roake v. Newel, 1 Jarman 632; Brownfield v. Crowder, Id.; Snow v. Paulder, Id. 634.
   The opinion of the court was delivered, November 10th 1873, by

Agnew, J. —

In view of the general intention of the testator, William Jack, as drawn from his entire will, the least that can be said of the devise to Matthew Jack of the “ Best ” farm, is that it is obscure. In this state of the case the real estate of the testator was brought into partition in the Orphans’ Court, on the petition of William. Jack, the eldest son; the widow and devisees being made parties, and bringing in also Nancy Jack, a daughter, born after the making of the will and before the testator’s death, but not provided for in the will. Three of the devisees and Nancy were minors, Matthew Jack, the accountant, being their guardian. Partition being made, the “ Best ” farm and the “Bushfield ” tract were awarded to Matthew Jack in part, and he, on behalf of his wards, took other lands, which they held together. This was in 1862. There is no complaint that this partition was unequal or unfair. To December Term 1865, an action of partition was brought in the Court of Common Pleas by Elizabeth Latta, one of the three minor devisees (then of age), along with her husband, against the other two and Nancy, in which a valuation was made of the lands Matthew Jack, their guardian, had accepted for them in the former partition. One purpart was taken by Wm. Latta, thirteen parcels were sold, and one remained unsold. Out of the proceeds Harriet received in her lifetime the sum of $1138, in various sums, running from January 7th 1867, until June 30th 1871.

After the consummation of the proceedings in the action of partition, on the 25th of March 1868, the entire family of the testator, including his widow and her second husband, joined in executing a release to Matthew Jack, his heirs and assigns, of all their estate, shares, purparts, dividends, right, title, interest, property, claim and demand, of, in, to or out of the premises called the “Best” farm. No attempt has been made to impeach this release on the ground of unfairness or fraud. Now clearly, if the Orphans’ Court had jurisdiction, of which I shall treat hereafter, these proceeclings, embracing the entire Jack family, vested the estate in -the “Best” farm fully in Matthew Jack, By the decree in the Orphans’ Court, the purpart awarded to Matthew vested in him in severalty, while the portion taken in behalf of his wards vested in them also in severalty, from the other children: Spangler’s Appeal, 12 Harris 424. To say that he must hold his purpart in trust for his wards, whilst they can take to-themselves their portion freed from any trust, title or estate in him, is simply to nullify the decree of the Orphans’ Court as to him and yet maintain it as to them. Nothing short of gross unfairness or fraud added to his relationship as their guardian can so avoid the decree; especially after they have confirmed the proceeding by making partition in the Common Pleas of the portion awarded to them jointly by the Orphans’ Court. The Orphans’ Court is a tribunal specially charged with the care and protection of the estates of minors. The valuation is made by disinterested, sworn appraisers, and must be confirmed by the court before the rights of the parties can be affected. Each party in such a proceeding takes the purpart awarded to him in severalty, and imhis own right, unless when he acts in accepting for another, as a husband for his wife, or a guardian for his ward. The court judges of the propriety and fairness of the proceeding before it, and is bound to see the interests of minors fairly represented and protected.

Then what was the character of the release following these proceedings ? Clearly it was a family arrangement to carry out and reaffirm what had been done before, and not a mere release from a ward just out of leading-strings, such as is condemned in Stanley’s Appeal, 8 Barr 431; Eberts Eberts, 5 P. F. Smith 110, and other cases. Such papers, obtained by a guardian before his influence has been fairly thrown off, are justly condemned. But here the whole family, all bearing similar relations to the subject, united in the release, attesting, by a common concurrence, its fairness and propriety. To say that in such a case the mere relationship of guardian and ward is primá facie presumptive of overreaching on part of the guardian, and will set aside the legal effect of the award in the partition by a common and disinterested tribunal, having jurisdiction of the subject, is to carry the doctrine of Stanley’s.Appeal and similar cases to an unwarranted length. It contradicts also what so frequently has been said of the sacredness of family arrangements: Hume v. Hume, 3 Barr 144; Johnston v. Furnier, 19 P. F. Smith 449. Even a parol partition, when fairly made, i.s binding on infants and married women: Calhoun v. Hays, 8 W. & S. 127. In that case, Judge Kennedy, after referring to authorities with his usual caution and industry, concludes that “ it follows from the established doctrine laid down abovo that if it be done by agreement of the parties without legal process, and be fair and equal, it will be good and binding upon all, whether femes covert or not, if their husbands join; or minors, if with the consent of their guardians.” It is well to .notice also that the reason given for supporting a partition without legal process, if fair and equal, is, that the same thing could be compelled to be done at law, and be binding on infants and married women. The doctrine of Calhoun v. Hays is reaffirmed in McMahan v. McMahan, 1 Harris 376; Darlington’s Appropriation, Id. 430, and Williard v. Williard, 6 P. F. Smith 119.

What we have said in regard to the partition bears equally upon the award of the “Bushfield” farm, taken by Matthew Jack under the same proceeding in the Orphans’ Court. He holds this also in severalty under the partition, unaffected by any trust for his minor wards, unless, as it has been supposed, the Orphans’ Court had no jurisdiction in the premises. But of this jurisdiction we entertain no doubt. This was a case both of testacy and intestacy, four of the parties being minors and children of William Jack, three of whom were devisees and the fourth entitled to one-seventh by legal intestacy. The fourth section of the Act of 13th April 1840 extends the jurisdiction of the Orphans’ Court in partition “to all cases of testacy wherein the parties interested or any of them are minors, or the course of descent is not altered by the provisions of the last will and testament of the decedent, and the same proceedings shall be had thereon as in cases of intestacy, subject, however, to the provisions of the said last will and testament and the true intent and meaning of the testator.” The two clauses in this act are in the disjunctive, and, says Gribson, C. J., “ whether the land descended or passed by the will, the object was to give the Orphans’ Court concurrent jurisdiction whenever one of the parties should be a minor, and to commit the protection of his interest to its peculiar care:” Wain’s Appeal, 4 Barr 502. This was followed by the Act of 10th April 1849, § 10, which extended the jurisdiction “ to all cases of testacy wherein the whole or a part of the real estate of the decedent may be devised to two or more children; and when such real estate is devised to two or more children, to be held and enjoyed in unequal proportions, the said court shall decree such an appropriation of the moneys arising therefrom as will best effectuate the intentions of the testator.” This legislation is clearly sufficient to embrace the case before us, both in its letter and spirit.

Then as to the subject of the devise. The “ Bushfield” farm is not devised to the guardians to be sold and converted into money. The devise carries it directly to the six children, subject only to the exercise of a conditional power of sale, dependent on the joinder or consent of the widow. It does not fall, therefore, within the scope of the decision in Selfridge’s Appeal, 9 W. & S. 55. There was no absolute direction to sell and convert into personalty; the widow never demanded a sale; and besides, the devise was opened by operation- of law, to receive a seventh child under the intestate law. ' - ■

The objection to the jurisdiction of the Orphans’ Court is therefore not sustained, and the partition must stand and have its due operation and legal effect.

These are the only questions we deem it necessary to notice, and we therefore affirm the decree and order the costs of the appeal to be paid by the appellant.


text:
    Karns et al. versus Tanner.
    ' 1. A plaintiff died pending’an ejectment, having devised to his wife, whom he made executrix ; his land was sold by the sheriff; she was the purchaser; her right under the will was gone; and she was properly substituted as sheriff’s alienee.
    2. The wife having recovered in the ejectment as sheriff’s alienee, she sued for mesne profits: Held, that this action was personal to herself and she could recover in it in both capacities, as legatee and sheriff’s vendee.
    : 3. The ejectment brought in the life of the plaintiff enured as to the title to mesne profits, to the benefit of all persons entitled to them from the institution of the action.
    4. The premises were a leasehold, the devise was to the wife for life of all his estate real, personal and mixed and the rents, issues and profits. This embraced the rents, &e., of the leasehold as a chattel real.
    5. The will gave the wife authority to sell, for her support if she thought ;neeessary, and to convey to the purchasers and also as executrix to sell to pay debts. Held, that the latter power did not ipso facto supersede the power to take the rents, &e., or to sell for her support, but was to be exercised only when necessary to sell to pay debts.
    7. Recovering the rents, &e., as legatee implies her assent as executrix, and the defendants as tort-feasors could not set up the rights of creditors against her recovery as legatee.
    8. She could recover mesne profits from the death of the testator.
    October 28th 1873.
    Before Read, C. J., Agnew, Siiarswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Armstrong county: No. 62, of October and November Term 1873.
    This was an action of trespass for mesne profits, brought January 12th 1871, by Frances E. Tanner against S. D. Karns, John Karns and Fullerton Parker; S. D. Karns and Parker only were served.
    On the 17th of March 1869, James P. Tanner brought an action of ejectment against the above defendants and others for a lot of land and mineral privileges in Armstrong county. On the 13th of April 1869, Tanner died, having made a will by which he directed that his minor children should be educated by his wife, Frances E. Tanner, the plaintiff in this suit, out of what he might give her for her own support, and appointed her guardian of his minor children. He then gave to her for life all his property, real and personal,‘‘ together with the rents, issues and profits of the same; ” and after her death he gave the same property to all his children and Charles E. Tillinghast in equal shares in fee.
    “ Should the rents, issues and profits, hereinbefore given and bequeathed unto my beloved wife, Frances E. Tanner, for the term of her natural life, be insufficient to support her in a modest and retiring manner, such as she has been accustomed to, I authorize and empower her to sell such part or parts of my estate (above bequeathed to her for life, and at her death devised and bequeathed to my children and Charles Foster Tillinghast), whether real, personal or mixed, as she may deem necessary for her support, and in the event of such sale by her made, I direct that any purchasers of any such part or parts of my said estate, shall not be responsible for the non-application or the misapplication of the proceeds thereof. I further direct that my said wife shall be the sole judge as to the amount she will need for her support, the manner and time of selling, the amount to be received from such sale or sales, and all things thereunto pertaining; and I do further empower her to give receipts to the purchaser or purchasers of personalty, and to execute deeds in the event of a sale of realty by her, as fully and as freely as if I had hereinbefore given her my whole estate, absolutely and in fee simple; the object of this clause of my will, being to give my wife an absolute interest in all my personalty, and an estate in fee simple in all my realty, in the event of the income of my estate not being sufficient to support her. * * *
    “ I hereby constitute and appoint my beloved wife, Frances E. Tanner, my sole executrix of this my last will and testament, clothing her with full authority to sell such part or parts of my real estate as may be necessary for the payment of my debts, and to execute deeds as fully and as freely as myself if living. It is my desire that she shall enter upon the discharge of her duties, as my sole executrix, without giving security, as I am very sure justice will be done by her with rigid and exact impartiality.”
    Pending the action, the premises in controversy in the ejectment were sold by the sheriff under an execution issued against James P. Tanner in his lifetime, and Mrs. Tanner became the purchaser.
    On the 12th of June 1869, the death of the plaintiff in the ejectment was suggested, and “Frances E. Tanner, executrix,” substituted. On the 8th of March 1870, the record was amended by striking out “executrix,” &c., after Mrs. Tanner’s name, and inserting “ the purchaser of the interest of James P. Tanner at sheriff’s sale.” On the 17th of March 1870, the jury rendered a verdict for the plaintiff, on which judgment was entered on the 19th, and after being removed to the Supreme Court was affirmed January 9th 1871 (16 P. E. Smith 297).
    On the trial of this case, March -30th 1873, before Lowrie, P. J., of the 30th district, the foregoing facts were given in evidence under objection and exception. Evidence was given by the plaintiff for the purpose of showing the value of the mesne profits. Other evidence was offered by each party, which was rejected by the court.
    The defendants submitted these points, which were refused:—
    1. That the plaintiff is not entitled to recover except from the 8th day of March 1870, the time when she was substituted as plaintiff in the ejectment.
    2. That the plaintiff is entitled to recover but from the date of the acknowledgment of the sheriff’s deed to her, June 9th 1869.
    The verdict was for the plaintiff for $19,857.37.
    Upon the removal of the record to the Supreme Court, the defendants assigned the .refusal of their points for error.

      S. J). Foster (with whom was J.'Boggs), for plaintiff in error.—
    By being substituted in the ejectment as alienee of the sheriff, the •plaintiff repudiated her interest under the will, and thus put herself in hostility to legatees and creditors. Her claim should have - been - restricted to the time when she obtained title from the sheriff: Fenn v. Steele, 1 Yeates 154; Duffield v. Stille, 2 Dallas 156; Dillon v. Dougherty, 2 Grant 99; Garrett v. Dewart, 7 Wright 342; Miller v. Clement, 4 Id. 484.

      F. S. G-olden, for plaintiff in error,
    cited Borrell v. Dewart, 1 Wright 137; Johnson v. Smith, 3 Penna. R. 500; Means v. Church, 3 Barr 93; Tyler on Ejectment 840, 15 Viner’s Abr. 11; Bank of Penna. v. Wise, 3 Watts 394. Rent falling due after sheriff’s deed goes to purchaser: Act of June 16 1836, sect. 119, Pamph. L. 783, 1 Br. Purd. 663, pi. 1. This act covers all occupants whether by mere possession or lease: Hayden v. Patterson, 1 P. F. Smith 264; Menough’s Appeal, 5 W. & S. 432; Pott v. Lesher, 1 Yeates 576; Henwood v. Cheesman, 3 S. & R. 500. The alienee of the sheriff has all the remedies and rights of the owner: Scheerer v. Stanley, 2 Rawle 276; Bittinger v. Baker, 5 Casey 66. A change of title pending an ejectment will not affect the suit: Act of April 26th 1850, sect. 4, Pamph. L. 591, 1 Br. Purd. 534, pi. 13.
   The opinion of the court was delivered, November 10th 1873, by

Agnew, J. —

This was an action of trespass for mesne profits, in which the plaintiff was permitted to recover the value of the rents, issues and profits from the time of the death of James P. Tanner. It is insisted that Mrs. Tanner’s recovery, in the ejectment which preceded this action, was as alienee of the sheriff, and that her recovery now must be in the same right only. But in the ejectment she could recover in no other right. She was substituted as executrix before the sheriff’s sale, but when that sale divested the title of James P. Tanner, the plaintiff in the ejectment, her right of recovery under his will was gone. Under the Act of 1850 the purchaser at the sale alone could be substituted. But when she recovered by substitution as the sheriff’s vendee, the ejectment, which had been brought in the lifetime of Tanner, enured, as to the title to the mesne profits, to the benefit of all persons entitled to these profits from the time of the institution of the action. Hence the true question in this action of trespass, is to what portion of the mesne profits Mrs. Tanner is entitled. This action is personal to herself, and is not specifically confined to a single capacity. If, therefore, she rightfully unites in herself two capacities, one as legatee and the other as alienee of the sheriff, there can be no reason to prevent a recovery in both capacities; or to compel her to resort to two actions instead of one.

The will of Mr. Tanner gave to her for life all his property, real, personal and mixed, of whatsoever kind or nature, and wheresoever the same should be at his death, together with the rents, issues and profits of the same. It is clear this embraced the rents, issues and profits of the leasehold as a chattel real. The will then directed that should the rents, issues and profits, thereinbefore given and bequeathed to Mrs. Tanner, be insufficient to support her in a modest and retiring manner, such as she has been accustomed to, she should have power to sell such parts of the estate bequeathed to her for life as she might deem necessary; making her the sole judge of the amount she should need for her support, the manner and time of selling, the amount to be received, and all things pertaining thereto, and to give receipts to the purchasers of the personalty, and execute deeds, and convey to the purchasers of the realty, as fully and freely as if he had therein-before given her his whole estate absolutely and in fee simple. The devises and bequests are all to her personally, and not as executrix. He afterwards clothes her with full authority as executrix, to sell such part of his real estate as may be necessary for the payment of debts and to execute deeds as fully- and freely as himself if living.

This last power does not ipso facto supersede the former power to receive the rents, issues and profits, or to sell for her support, but comes into exercise only when she as executrix finds it necessary to sell for the payment of debts. She is bound as executrix to the creditors, it is true, to protect their interests from herself as legatee; but uniting in herself both capacities of legatee and executrix, there is nothing to prevent her, as against trespassers, from electing to recover the rents, issues and profits from them ; for the very election presumes her assent as executrix to her 'taking these profits $s legatee. It is not in evidence that there were creditors whose demand necessarily required these profits to be recovered for their use; and if there were, it does not lie in the mouths of the defendants as tort-feasors, to set up the rights of the creditors. It is sufficient as to them that the will bequeaths these rents, issues and profits to Mrs. Tanner in her own right; and that her assent as executrix to her recovery as legatee, in "other words, her assent as executrix to the perception of the profits as legatee, is by the election necessarily presumed. If there be creditors, they have their remedy. They are not bound by her assent as executrix to her own perception of the profits as legatee, and can surcharge her account as executrix with the profits she has recovered, or ought to have recovered for their use.- Her 'personal suit, therefore, can be maintained by her in both capacities, as legatee and sheriff’s vendee, and they carry her claim back to the time of James P. Tanner’s death.

Judgment affirmed.


text:
    Treftz versus Pitts et al.

    1. An ejectment on an equitable title is a substitute for a bill in equity, and. the verdict and judgment have the same conclusive effect as the decree of a chancellor.
    2. In a second action of ejectment parol evidence is admissible to show that the recovery in the first ejectment was on an equitable title.
    E. Meyers v. Hill, 10 Wright 9, recognised. Paul v. Oliphant, 2 Harris 242 ; Peterman a. Iluling, 7 Casey 432, remarked on.
    October 28th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Cambria county: Of October and November Term 1873, No. 139.
    This was an action of ejectment-brought April 20th 1870, by John J. Treftz, against James Pitts and others, tenants, and George S. King and John S. Watts, landlords.
    The premises were a tract of about 158 acres.
    The cause was tried June. 9th 1873, before Dean, P. J.
    The plaintiff gave in evidence a patent from Commonwealth, March 22d 1824, to Christian Horner, for the premises in controversy. Deed, April 1st 1846, Horner to John J. Treftz, for the same premises* recorded March 16th 1848, and rested.
    The defendants gave evidence that about February 1846, at the request of King, J. A. Treftz, the father of the- plaintiff, entered mto negotiations with Horner on the behalf of King, for the purchase of the property in dispute, for G. S. King & Co.; that as the result of these negotiations, J. A. Treftz made a contract with Ilorner for the purchase of the land, King gave him a draft for $150, to make the first payment, and took from him the following paper:—
    “ This is to certify, that the purchase of a tract of land about to be made by me from Christian Horner, containing one hundred and fifty-eight acres, above Johnstown, adjoining land of Jacob Levergood and others, is for George S. King & Co., and that I received a draft from them on R. Robinson & Co., for one hundred and fifty dollars to pay on the same.
    Witness my hand and seal this February 9th 1846.”
    J. Adam Treetz. [seal.]
    On which is the following endorsement:—
    “ The within-mentioned draft on R. Robinson & Co. was returned, and I received one hundred and fifty dollars in cash for the same purpose.
    February 11th 1846. J. Adam Treetz.’
    The defendant gave evidence further that J. A. Treftz after-wards induced Horner to make the article to himself; it was dated February 12th 1846, the consideration being $800, and gave it to King. That subsequently King drew an assignment on the article to G. King & Co., and J. F. Treftz declined to sign it. King subsequently tendered the money that at the time was due on the purchase-money, and also notes for the remainder not then due. The tender was declined. The defendants gave other evidence tending to show that the purchase from Horner was for G. S. King & Co., and that the purchase-money was furnished by that firm.
    They gave in evidence also, under objection and exception, the record of an ejectment in the Court of Common Pleas of Cambria county, brought February 21st 1848, by George S. King, Peter Shoenberger, John K. Shryock and William Shryock, trading as George S. King & Co., against J. Adam Treftz, J. John Troftz, Gotleib Treftz, Isadore Bojohn and John Gay. The verdict on the 6th of July 1869, was for the plaintiffs. Same day the plaintiffs deposited in court $822.76, and three notes drawn by them with sureties in favor of J. Adam Treftz, altogether amounting to $350. On the 10th of January 1852, J. A. Treftz received the cash and notes from the prothonotary, and gave his receipt on the' record. On the 4th of December 1855, a rule on the defendants was granted to file in court the title papers in this case, and on J. John Treftz to convey to the plaintiff. This rule was made absolute July 15th 1868. On the 23d of February 1870, a rule was granted on the defendants to show cause wny an attachment , should not issue for failure to comply with the foregoing decree. "On the 10th of May 1870, this rule was discharged.
    The defendants called James Potts, Esq., who testified that he was of counsel with the plaintiffs in the foregoing action of ejectment; that it was an equitable action of ejectment to enforce a trust on the title given in evidence.
    They then ashed the witness to “ state upon what the plaintiffs placed their sole reliance in that action,” for the purpose of showing that the questions between the parties to this issue are the same as those passed on in the former action of ejectment. The plaintiff objected to the offer, because parol testimony is inadmissible to determine matters not appearing on the record in that suit, and because the proposed evidence is immaterial, whether the questions in both suits are the same.
    The offer was admitted and a bill of exceptions sealed.
    The court then ashed the witness: “ Upon what did the plaintiff ground his right to recover in that suit ? The witness said: J. A. Treftz, father of the plaintiff here, bought the land of Horner for Gr. S. King & Co., and paid with their money, he was to execute a deed to them or transfer the article; before that was done the father and son got Horner to execute a deed to J. J. Treftz, the son, and( plaintiffs in this case. The plaintiff and defendants then offered the evidence which they now respectively offer. The defendants thus contended that J. John Treftz, the plaintiff here, was a bond fide purchaser from Horner without notice of the trust in J. Adam Treftz; the plaintiffs then contended that the purchase from Horner was by J. Adam Treftz, that the f 150 was never got by J. J. Treftz, but it was merely a transfer at the request of J. A. Treftz to his son. Judge Taylor on that trial instructed the jury that they might infer from the evidence that J. J. Treftz had knowledge of the transaction between his father, Horner and Gr. S. King & Co. The exact interests of the plaintiffs in that case were vested in the plaintiffs in this case.”
    The plaintiff then in rebuttal offered to prove that the paper of February 9th 1846 from J. A. Treftz was procured by fraud on him: and that he believed he was signing a paper in relation to delivering ore; and had no idea he was signing anything in relation to his contract with Horner; that he repudiated the alleged contract of King as soon as he was informed of it; that J. J. Treftz purchased the legal title without any knowledge of the agreement with King & Co.; that J. J. Treftz took possession of the land -and exercised acts of’ ownership with the knowledge of King & .Co., and without any objection from them ; that the deposit in court was without the knowledge of J. J. Treftz, and the money was taken out of court without his knowledge or consent; and that the verdict in the former case was procured by fraud and misrepresentation.
    The offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed.
    The plaintiff submitted the following points, all which were negatived by the court:—
    1. The plaintiff is a purchaser for full value of the legal title without notice of any equity in the defendants.
    2. The paper put in evidence by the defendants contemplated a future conveyance or agreement which was never completed by the parties, and is not therefore sufficient to found a decree in equity upon.
    3. One verdict and judgment in ejectment between John J. Treftz and the defendants, who were plaintiff in the former case, is not a bar to this action. The parties, plaintiff and defendant, do not in this case stand in the relation of vendor and vendee, or mortgagor or mortgagee.
    4. The rule to show cause in the former case, made absolute in 1868, is inoperative, and insufficient to prevent this case on this trial from going to the jury as a question of fact respecting whether the plaintiff is a purchaser for value without notice.
    5. In an ejectment between the plaintiff who holds the legal title, and the defendants who set up an -equity obtained from J. Adam Treftz, who was not the holder of the legal title, or so far as the plaintiff knew, the holder of an equity, but a stranger to the title, one verdict and judgment are not conclusive.
    Judge Dean, after stating the title of each party, charged : * * *

      “ [But the defendants have in answer to this primá facie case of the plaintiff given in evidence the record of an action of ejectment in this court to No. 26 of April Term 1848, between George S. King and Peter Shoenberger, doing business as ‘ George S. King & Co.,’ plaintiffs, and J. Adam Treftz and John J. Treftz, defendants, for the samé land in which there was a verdict for the plaintiffs. The defendants in this suit, it is not questioned, hold under the successful plaintiffs in the former suit; and John J. Treftz, the plaintiff here, was one of the defendants in the former action, and consequently the judgment on the former verdict is against John J. Treftz. The defendants have followed this by the testimony of Judge Potts, one of the counsel for the plaintiffs in the former action, who testifies that the matters litigated in that action are identical with those raised in this issue.
    “ The first ejectment was in its nature a bill in equity to enforce the execution of a trust, it being there claimed by ‘ George S. King & Co.,’ that the legal title to the land was held by John J. Treftz, in trust for them, the plaintiff. The jury in that case determined on the questions of fact submitted to them, that the averment of the plaintiffs was true; that the legal title was held by Treftz only as a trustee for ‘ George S. King & Co.’

      “ A writ of error was sued out by the defendants on the judgment entered on that verdict, and the rulings of Judge Taylor passed upon by the Supreme Court. One of the questions argued before the Supreme -Court was, whether the facts from which a trust was claimed were sufficient to warrant the jury in so finding.
    “ That court decided 'there was sufficient evidence to go to the jury, and affirmed that judgment. , On the record being remitted to this coúrt, further proceedings were had, and a conveyance of the legal title by John J. Treftz to the plaintiffs, ‘ George S. King & Co.,’ was decreed, which decree remains upon the record as it was entered. If it were irregularly or improvidently made, Treftz should have appealed to the Supreme Court and have it vacated or set aside, but he cannot avoid the effect of it by asserting its irregularity in this action; we must here give it its full force, and treat the defendants in this action as the owners of the legal title under that decree.]
    “ [Further, even if that decree of conveyance had not been made, we are of the opinion that the plaintiff could not recover. This is*a second ejectment for the same land, between substantially the same parties. The receipt by J. Adam Treftz of the money paid into court in that action estops both him and his son John J, Treftz from thereafter claiming- the land. And further, the former suit being substantially a bill in equity to enforce the execution of a trust, the same questions of fact, from the admissions of the counsel, although not on the same evidence, having been raised there, as that raised here, the former judgment is a bar to any recovery in this second action of ejectment between the same parties and their privies.”]
    The court instructed the jury to find a verdict for the defendants. The jury so found.
    The plaintiff took a writ of error and assigned the refusal of his points and the parts of the charge in brackets for error.

      Gr. M. Meade, for plaintiff in error. —
    The defendants’ evidence showed no more than that they were holders of a secret equity and it should not have been decided as a matter of law in their favor against a legal title without notice Clark v. Hackethorn, 3 Yeates 269; Gilday v. Watson, 5 S. & R. 267; Scott v. Gallagher, 14 Id. 333; Bracken v. Miller, 4 W. & S. 102; Juvenal v. Patterson, 10 Barr 282; Wilkin v. Anderson, 1 Jones 399; Meals v. Brandon, 4 Harris 220. As to one verdict concluding the right he cited Mercer v. Watson, 1 Watts 330; Drexel v. Man, 2 Barr 267; Kinter v. Jenks, 7 Wright 445; Murphy v. Nathans, 10 Id. 508; Seitzinger v. Ridgway, 9 Watts 496; Taylor v. Abbott, 5 Wright 352.
    The jmrchase-money being paid, one verdict and judgment are not conclusive: Paull v. Oliphant, 2 Harris 342; Ives v. Leet, 14 S. & R. 301. A summary decision raised by motion is not a bar in a subsequent action on the same question : Wistar v. McManes, 4 P. F. Smith 318. The jury in a second case are not bound by questions of fact which controlled a former jury or by questions of law discussed in the Supreme Court: Dime Saving Ins. v. Allentown Bank, 11 P. F. Smith 391; Young’s Estate, 15 Id. 101.
    J. P. Linton (with whom was JR. L. Johnston), for defendants in error. —
    One verdict and judgment in ejectment on an equitable title is conclusive: Peterman v. Huling, 7 Casey 432; Church v. Ruland, 14 P. F. Smith 441; when the record is general it may be'shown by parol what was in litigation: Meyers v. Hill, 10 Wright 12.
   The opinion of the court was delivered, November 10th 1873, by

Sharswood, J. —

The questions which arise upon this record may be resolved into two: First, Is a party who claims as a purchaser for value without notice concluded by one verdict and judgment in an ejectment against him founded upon an equitable title in the plaintiff? And second, when the verdict in such ejectment is a general one for the plaintiff, is it competent in the second ejectment to prove by parol evidence that the title upon which the recovery was had was an equitable one ?

As to the first of these questions it was admitted in the court below, and has not been controverted here, that upon the parol evidence, if it was competent, it was clearly proved that the action of ejectment of April Term 1848, No. 26, in the court below, King v. Treftz, was founded upon an equitable title. That the plaintiffs claimed that J. Adam Treftz had entered into articles to purchase the land with Christian Horner, the legal owner, as their agent or trustee, and had paid their money for it, which would create a resulting trust for them, and which was, moreover, evidenced in writing by a declaration or receipt signed by J. Adam Treftz, February 9th 1846, and that John J. Treftz, the present plaintiffs, was a defendant in that suit, and claimed that he was a purchaser of the legal title from Christian Horner, bond fide for value and without notice. See Trefts v. King, 6 Harris 157. That verdict and judgment must be taken to have found for the plaintiffs, not only that they were the beneficial holders of the equitable title, but. that John J. Treftz was not a purchaser for value bond fide and without notice. It was settled in Seitzinger v. Ridgway, 9 Watts 496, that in this state an action of ejectment upon an equitable title is a substitute for and equivalent to a bill in equity, and that the verdict and judgment have all the conclusive effect which the decree of a chancellor would have. It was determined in Peterman v. Huling, 7 Casey 432, that this rule includes all equitable titles, and that it stands unaltered by any act of the legislature, the resolution of May 5th 1841 having been repealed by the fifth section of the Act of April 30th 1850. Now, if the first ejectment had been a bill in equity to enforce the trust against J. Adam Treftz, and -John J. Treftz made a party as the holder of the legal title, had put in a plea that he was a purchaser for value bond fide and without notice, or had set up such a defence in his answer, and the determination had been against his plea or defence, he would have been decreed to convey, and it certainly could not be pretended that it would not have been conclusive against him if he had afterwards commenced an action of ejectment upon his legal title. It follows necessarily and logically that it must be equally conclusive when under our system the same determination is made against his title in an equitable ejectment. Indeed it appears that in Seitzinger v. Ridgway, supra, the first action was brought against the assignee of the vendor, who, it was alleged, had notice, at the time they bought, of the contract of purchase. The recovery there was against the vendor, who was held concluded as against the assignee, and surely if one party is bound the other must also be, for estoppels must be mutual. These principles are not affected by either of the cases cited on behalf of the plaintiff in error. Paull v. Oliphant, 2 Harris 342, was decided by this court in 1850, the trial below was in 1848, before the' passage of the Act of April 30th 1850. The determination was therefore under the resolution of May 5th 1841, as modified by the Act of April 21st 1846, which confined the conclusiveness of one verdict and judgment to actions, “to enforce the payment of purchase-money wherever time becomes an essence in the finding of the jury 7 Casey 435. Taylor v. Abbott, 5 Wright 252, decides in effect that a vendee under articles, who has paid the purchase-money in full, has in this state the legal title, no conveyance being necessary because we considér that as actually done which a chancellor would decree to be done. In the very short opinion by Mr. Chief Justice Lowrie, he says: “ In such an action no conditional verdict can be required, and therefore nothing like a decree in equity for a specific performance.” It is enough to say that this is not that case. The ejectment was to establish a trust, and the full purchase-money had not been paid when the action was commenced, though the payment of the balance of the purchase-money into court on the trial rendered a conditional verdict unnecessary.

The second question, whether it was competent to prove by parol evidence that the title upon which the recovery was had- in the first ejectment was an equitable one, has been expressly ruled by this court in Meyers v. Hill, 10 Wright 9. Mr. Justice Strong said: “ Notwithstanding what has been said in some cases, it is well established, in reason and authority, that where a record is general it may be shown by parol what were the matters in litigation. The record may be explained, though it cannot be contra-dieted. The matters in dispute may be identified.” This was applied in that case to the very question now before us, the admission of parol evidence to show that a former recovery in ejectment was upon an equitable title. The dictum of Mr. Justice Bell in Paull v. Oliphant, 2 Harris 351, is not in conflict. That case, as we have seen, was under the Act of 1846, which required a conditional verdict to give conclusive effect to one verdict and judgment. Mr. Justice Bell merely says: “ To ascertain the character of that judgment we must look to the record of it alone. That shows not that it is such a conditional judgment as is contemplated by the statute: and the omission cannot be aided by parol.”

Judgment affirmed.


text:
    Treftz et al. versus King et al.

    1. A.judgment in ejectment for tlie plaintiff on an equitable title was removed to the Supremo Court and affirmed. Subsequently an order was made on the defendant to file the title-papers, &c., in the case and convey to the plaintiff. Held, that this order was reviewable in the Supreme Court.

      % The court below had not power to make such order; the plaintiff was entitled to the title-papers and conveyance of the legal title, but his remedy was in equity.
    3. Hamm u. Beaver, 1 Grant 448, approved.
    October 28th 1873.
    Before Read, 0. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Cambria county : No. 140, to October and November Term 1873.
    On the 21st of February 1848 an action of ejectment was brought, at the suit of George S. King and others, against J. John Treftz and others, on an equitable title. On the 6th of July 1849 the jury found for the plaintiffs, and judgment was entered on the verdict.
    The record was removed to the Supreme Court, and the -iudgment was affirmed October 25th 1851.
    On the 4th of December 1855, a rule was granted on the de fendants “to file in court the title-papers in this case for the plaintiffs, and direct J. John Treftz to convey to the plaintiffs.” On the Í5th of July 1868 this rule was made absolute. On the 24th of July 187'3 the defendants took a writ of error, and assigned for error the granting of the rule of December 4th 1855 and making the same absolute.

      Gr. M. Heade, for plaintiffs in error,
    cited Welch v. Flood, 2 Wilson 23; Wallace v. Elder, 5 S. & R. 143; Geyger v. Geyger, 2 Dall. 332; Beale v. Dougherty, 3 Binn. 432; Adams v. Bush, 5 Watts 289; Burns v. Huntingdon Bank, 1 Penna. R. 395; Moser v. Hoch, 3 Barr 230.

      J. P. Linton and R. L. Johnson, for defendants in error,
    cited Altimus v. Elliott, 2 Barr 62; Church v. Ruland, 14 P. F. Smith 441; 2 Tr. & Haly’s Pract. 303; Peebles v. Reading, 8 S. & R. 484; Moody v. Vandyke, 4 Binn. 41; McCall v. Lennox, 9 S. & R. 302; Hamm v. Beaver, 1 Grant 448; Broom’s Legal Maxims 481.
   The opinion of the court was delivered, November 10th 1873, by

Sharswood, J. —

This writ of error is brought upon a judgment •n an action of ejectment on a general verdict, rendered in the court below October 6th 1849, which was affirmed by this court: 6 Harris 157. The error now assigned, however, is to an order made by the court many years subsequently (July 15th 1868), requiring the defendants to file in court the title-papers for the 'plaintiffs, and directing J. John Trefts, one of the defendants, to convey to the plaintiffs. It may perhaps be inferred from some of the entries that it was an equitable ejectment, though we are without any bill of exceptions to show it — as it appears certainly by the case as reported in 6 Harris to have been. Assuming this to have been so, we are of opinion that it affords no ground for the order or decree made by the court below. Before the Acts of Assembly conferring equitable jurisdiction on the courts, the power of giving relief on equitable titles in this state was through the medium of conditional verdicts in ejectment. Such verdict is necessary to place the grounds of equity on the record and to enable the court to make the proper order. Hamm v. Beaver, 1 Grant 448, cited by the counsel of the defendants in error, shows this. How else can the decree made below he reviewed ? Surely it will not be contended that such a decree as was made in this case is not the subject of review in some form. We think it very clear that the court had no power to make such an order. The plaintiff below, if entitled to possession of the title-papers and to a conveyance of the legal title, is not without remedy. He may file a bill in equity for that purpose.

Order of July 15th 1868 reversed, and record remitted.