author: Mr. Justice Paxson

text:
    Peabody Building and Loan Association versus Houseman.
    A. applied to a building association for a loan, and offered as security therefor mortgages on certain properties which he owned. B., the solicitor of the association, on the representation of A., that he could obtain the searches more quickly from the recorder of deeds, allowed A. to procure the searches. A. induced the'clerk of the recorder to issue the searches, omitting one mortgage on each of the properties, assuring the clerk that these mortgages should be satisfied. A sale took place on the omitted mortgages and the association lost its money. Held, that the recorder was liable for the loss. Held, further, that A. was in no sense the agent of the association so as to affect it with his knowledge of tjje encumbrances. Held, further, that the authority given to A. by the solicitor was not within the scope of his powers, and would not bind the association.
    February 27tb 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to tbe Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1877, No. 182.
    Case by “ The George Peabody Building and Loan Association,” against John A. Houseman. The following facts, together with those stated in the opinion of this court, sufficiently illustrate the case. Houseman was recorder of deeds for the county of Philadelphia. Charles M. S. Leslie, a conveyancer, desiring to procure a loan of money from the plaintiff, offered as security therefor mortgages on certain described properties which he owned. The solicitor of the plaintiff, Mr. Stevenson, permitted Leslie to get the searches against the properties in question, Leslie having represented to him that he could procure the searches more readily from the recorder. Three searches were made, and from each of them was omitted a mortgage which was on record against the property. The plaintiff then advanced the money to1 Leslie. Under the omitted mortgages the premises were sold and the money loaned by plaintiff was wholly lost. Leslie, at the time of these transactions and theretofore, was a conveyancer of good standing in the community.
    A clerk in the recorder’s office testified: “ I was the search clerk under defendant; I knew Leslie; I issued these searches; I knew these encumbrances were not on the search; I told Leslie to be sure and have them satisfied ; he said he would; I did not certify the mortgages on record to Alexander Smith, because Mr. Leslie requested me not to, and told me it was all right; that he intended to pay them and have them satisfied out of the money he was to receive from the association.”
    Mr. Tait, who was a clerk in Leslie’s office, was offered on the •part of the defendant to prove that witness did the writing on the searches at request of Leslie, and being aware of the encumbrances not on the search, called Leslie’s attention to the same, and that he replied he meant to pay them out of the money he was about to borrow.”
    This evidence, under objection, was admitted.
    The same witness, upon cross-examination, also testified : “ I knew Mr. Stevenson; I knew he was making the loans to Leslie; I did not mention to him these omitted encumbrances.”
    The defendant submitted the following points, all of which the court, Rriggs, J., affirmed:
    4. If the jury believe that during Leslie’s employment by the plaintiff to procure the searches, he (Leslie) was informed that the premises in question were then subject to mortgages, whose liens were prior to that of the mortgage of the plaintiff at that time under negotiation, then such information having been acquired in the transaction in which Leslie was employed, it affected the plaintiff with notice thereof, and their verdict should be for the defendant.
    6. If the jury believe that Leslie’s attention was called to the fact of the omission of the search to disclose the prior mortgages, and Leslie said he knew of the existence of the prior liens, but intended to satisfy them, and that such conversation took place while Leslie was employed by the plaintiff in said transaction, then the plaintiff was affected, in due time, with notice of the prior mortgages, and the verdict of the jury should be for the defendant.
    6. If the jury believe the defendant’s testimony in connection with the searches, the notice to Leslie of the lien of the prior mortgages must have been given to him during his (Leslie’s) employment by the plaintiff in the said transaction, and such notice affected the plaintiff, and their verdict should be for the defendant.
    ' In the general charge, the court, inter alia, said:
    “ I instruct you, if Mr. Stevenson, the solicitor of the association, employed or permitted Leslie to procure the searches, he thereby made Leslie his agent. And if Leslie’s previous knowledge with reference to these encumbrances was brought home to him in the transaction, or if he had notice in this transaction that these encumbrances were on the properties, such was constructive and legal notice to the association.”
    The verdict was for the defendant.
    Plaintiff took this writ, and assigned for error the admission of the evidence excepted to, the affirmance of the foregoing points, and the portions of the charge noted.

      James H. Stevenson and David W. Sellers, for plaintiff in error.
    —The plaintiff’s conveyancer used the borrower, not to make a search under the official seal of the recorder, but to go and procure it. The court below thought the agency of a messenger was an agency for all purposes; and if an agent to get a search received knowledge, it was in law the same as though the recorder had put it on the official search. The doctrines on which this case should have been decided were authoritatively declared in Houseman v. Building Association, 31 P. F. Smith 256.
    Leslie’s knowledge of prior liens could not possibly be grafted on an agency merely to order searches and not to make them: Keenan v. Insurance Co., 12 Iowa 132; Winchester v. Valetta, 4 Md. 231; Insurance Co. v. Shriver et al., 4 Md. Ch. 388 ; Bank v. Davis, 2 Hill 463.

      A. Sydney Biddle, I. Newton Brown and Gr. W. Biddle, for defendant in error.
    Stevenson delegated to Leslie whatever authority he himself possessed as agent to order and obtain searches, and his right to do so is not questioned. He substituted another agent for himself in all matters relating to the obtaining from the recorder information as to the encumbrances. It cannot be seriously argued that to receive notice of an encumbrance is not within the sphere of duty of one himself a solicitor, who as such and in his own name directs searches. He cannot deny the scope of the agency by declaring that he intended that all the facts required should be on paper. One solicitor employed another solicitor for the purpose in question, and the scope of the agency is determined, not by the intention, but by the mode by which the authority was delegated. The agency is not defined by the intention of the principal, or even by the private instructions given to the agent, but by the authority with which the agent appears to be clothed, when dealing with the other party : Hovey v. Blanchard, 13 N. H. 145.
   Mr. Justice Paxson

delivered the opinion of the court, March 24,th 1879.

In 1872, Charles M. S. Leslie, a conveyancer of good standing in the city of Philadelphia, applied to the plaintiffs for the loan of some money, to be secured by mortgages upon his real estate. The application was favorably considered; the necessary papers were prepared, and mortgage searches obtained from the recorder of deeds. From each of the three searches thus obtained, a mortgage was omitted; the mortgaged premises were sold under the omitted mortgages, and the money loaned by the plaintiffs was wholly lost. This suit was brought against the recorder of deeds to recover the loss.

Upon the trial in the court below, it appeared that the searches were ordered by Mr. Leslie, with the consent of the plaintiffs’ solicitor, James H. Stevenson, Esq. In his testimony, Mr. Stevenson tells how this occurred. He says: “I drew the mortgage for f1600 referred to in this record; Mr. Leslie got this search with my permission; after producing it, and seeing that my mortgage was properly recorded, I paid him the money., Mr. Leslie said he was in a hurry to get his money, and that with my permission he would prepare an order for the search ; he did, and I compared it with the description in the mortgage, and the date occurring in the title. Pie then, with my request, obtained the certificate from the recorder; he said he could obtain it more quickly than I could. I agreed to let him do it, and I paid him the money on the recorder’s certificate.”

It also appeared that the omitted mortgages were purposely left off the searches by the clerk, and that this was done at the request of Mr. Leslie, and upon his assurance that the said mortgages would be paid. Mr. Myers, the search clerk, said in his examination in chief: “I knew Leslie; I issued these searches; I knew these encumbrances were not on the search; I told Leslie to be sure and have them satisfied; he said he would; I did not certify the mortgages on record to Alexander Smith, because Mr. Leslie requested me not to, and told me it was all right, that he intended to pay them and have them satisfied out of the money he was to receive from the association.”

• Out of the foregoing condition of facts the learned counsel for the defendant constructed the somewhat ingenious defence, 1. That Leslie was the agent of the plaintiffs to procure the search; and 2. That having notice or knowledge of the omitted mortgages during the course of his procurement of the searches, his knowledge was the knowledge of the plaintiffs, and they could not recover. This view of the case was substantially sustained by the court below, and forms the subject of the second and third specifications of error.

In Houseman v. The Girard Mutual Building and Loan Association, 31 P. F. Smith 256, the question whether Leslie was the agent of the building association, or merely the servant or clerk of the conveyancer, was left undecided. It was not essential to the ■decision of that case for the reason that granted the agency, there was no proof that the agent acquired his knowledge of the omitted searches in the transaction in which he was employed. “ There ■was not only no evidence of this,” said Justice Sharswood, “but it was plain that it had been gained before, and in an entirely different transaction.” In the case in hand it is equally clear that Leslie’s knowledge of the omitted encumbrances was not acquired in the course of the particular transaction. It is, however, attempted to take the case out of the ruling in Houseman v. The Building Association, supra, for the reason that Mr. Leslie’s attention was called to the omitted mortgages whilst procuring the searches.

We do' not think it important to discuss the question how far ■Leslie’s knowledge would have affected the plaintiffs, had he been their agent. It would be carrying the doctrine of agency beyond ■ any recognised limits, were we to hold that Leslie was the agent of the plaintiffs for any purpose. The most that can be said, is that Mi. Stevenson, the plaintiff’s solicitor, permitted him to procure the searches, in order that he (Leslie) might the sooner obtain the money. If an agent at all, he was the agent of Stevenson, and for the mere purpose of procuring a.search, neither Stevenson nor Leslie had anything to do with making the searches, Stevenson was employed as plaintiff’s conveyancer, for the purpose of prepar ing the papers and ordering the necessary searches. It is not pretended that Stevenson had any authority from the company to employ any one under him. It needs no authority to show that an agent employed for a special purpose, cannot, without express authority, employ one or more agents under him, so as to bind his principal.

The defendant’s search clerk knew when he issued the searches that the plaintiffs were about to loan money upon the faith of them. He omitted the mortgages in question, upon Leslie’s assurance that he would “ have them satisfied out of the money he was to receive from the association.” The recorder has no right to throw the disastrous results of the misplaced confidence of his clerk upon those who loaned their money upon the faith of his official certificate.

The judgment is reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author:
Mr. Justice Woodward
      Mr. Justice Paxson

license: Public Domain

text:
    Craig versus The City of Philadelphia.
    1. The assessment of a tax upon real estate in rural districts, according to the frontage rule of valuation, for the improvement of a public highway, is unconstitutional: Seely v. City of Pittsburgh, 1 Norris 360 ; and Washington Avenue, 19 P. F. Smith 352, followed.
    2. In a scire facias on a municipal claim to recover the amount of an assesment of a tax for a street improvement, the defendant offered to prove that the widening of the street was not called for by any reason, save as a public improvement; but the court rejected the offer. Held, that the evidence should have been admitted.
    3. The Act of April 19th 1843, limiting a defence to a municipal claim to the denial that work had been done or materials furnished, or to proof of value, or of payment, or a release, extends only to incorporated districts of the county of Philadelphia.
    4. Paxson, J., dissenting. It was within the recognised power of the legislature to enact that Market street should be widened and paved, and the cost thereof assessed upon the property owners fronting on said street. Whether the power was exercised wisely, is a matter with which we have no concern ; it is not a judicial question.
    February 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1877, No. 89.

      Scire facias sur municipal claim for paving, filed by the city of Philadelphia to the use of W. W. Dickinson, against Robert Craig, for work done in front of a lot of ground situated in the Twenty-seventh ward of the city of Philadelphia, south side of Market street, and west side of Eorty-ninth street, fronting on Market street three hundred feet, depth two hundred and fourteen feet to Ludlow street.
    The defendant pleaded the general issue and the following special plea:
    That the said plaintiff ought not to have or maintain his aforesaid action against him, because he says that the work done and labor performed under the contract between the said plaintiff, W. W. Dickinson and the commissioner of highways, were charged for according to the frontage rule of assessment; and that the ground in front of which said paving and curbing were done, and against which said claim has been filed, is, and was at the time of doing said work, rural property, and assessed as such, wherefore, &c.
    The property of defendant has only a small dwelling-house upon it, and was used principally as a nursery for plants and flowers, defendant being a florist.
    The property through which Market street runs, from Forty-third to Sixt3r-third streets, is chiefly rural property, used for farm land and, brickyards, suburban residences, cemetery lots and a hospital for the insane. Tbe other material facts will be found stated in the opinion of this court.
    The verdict was* for plaintiff for $2258.48, and defendant took this writ, among the assignments of error being the rejection of his offers of testimony as stated in the opinion of this court.

      John IT. Campbell and Greorge W. Biddle, for plaintiffs in error.
    —The defendant filed a special plea averring that the work done and labor performed under the contract between the plaintiff, W. W. Dickinson, and the commissioner of highways, were charged for according to the frontage rule of assessment; and that the ground in front of which said paving and curbing were done, and against which said claim has been filed, is, and was at the time of doing said work, rural property, and assessed as such. On this plea issue was joined.
    The deposition of Mahlon H. Dickinson, the then commissioner of highways, put in evidence by the plaintiff himself, proved that all the properties were charged according to the frontage or per foot rule of assessment.
    Under this plea, the question whether or not the property in question was rural property was squarely put at issue. The defendant, therefore, had a right under this plea, if it was material, and raised a material question of fact to offer any evidence in support of its averments: Washington Avenue,-19 P. F. Smith 853 ; Seely v. The. City of Pittsburgh, 1 Norris 60 ; Kaiser v. Weise, 4 Norris 366; Bidwell v. The City of Pittsburgh, Id. 412.

      The court erred in refusing to allow the defendant to prove that the widening of Market street was. not called for by any reason save as a public, improvement, and to keep a grand avenue through the city of a uniform width to the Delaware county line : Hammet v. The City of Philadelphia, 15 P. F. Smith 146; In re Market St., 32 Leg. Int. 370.
    It is true that the Act of the 5th of April 1870, under which this improvement was made, does not on its face, show whether the improvement is public or local any more than the Act of the 3d of May, providing for the paving, &c., of Washington avenue and Penn avenue, in the city of Pittsburgh. But in the Pittsburgh cases evidence on the part of the complainants was admitted to show that such was, in reality, its true character. In this case the defendant below offered testimony of precisely the same character, but the court below refused to admit it. This was erroneous, because the defendant certainly had a right to offer testimony to show this, and if the fact were not so, the proper way to meet it would be by countervailing testimony from the plaintiff. The local courts cannot assume to say, in advance, what the character of any improvement is, apart from testimony; and however difficult it may have been for the defendant below to show the fact, he certainly had a right to offer competent evidence to the jury to prove it.
    The Act of the 19th day of April 1843, limiting the character of the defence to a municipal lien, is not operative within the district in which this work was performed (the Twenty-seventh Ward), for although, as was decided in Fell v. The City, 31 P. F. Smith 58, the Act of 1843 is still in force in the then incorporated districts, it is not in force in other parts of the present city; and by reference to the Acts of the 17th of February 1844, Pamph. L. 44; 3d of April 1851, Pamph. L. 302, and the 14th of April 1853, Pamph. L. 422, it will be seen that the1 first incorporation of this portion of the county as the district of Belmont took place in 1844, subsequently, of course, to the passage of the Act of Assembly referred to.

      Joseph R. Rhoads and David W. Sellers, for defendant in error.
    —Whatever may be the fact elsewhere, it is- not the experience of this city that an equal charge on ground fronting on a highway works an injustice. If the lot is too shallow for advantageous building, it is readily sold to the one in the rear, or sufficient depth is attained by purchase. In a city where the distance between streets running east and west is uniform from the river Delaware to the city line, no difficulty arises by reason of the contents of the lot.
    It is the presumable fact, recognised by a series of adjudications, that ground fronting on an established highway is improved in value more than the cost of the first paving, which has always led to the maintenance of the charge: McMasters v. Commonwealth, .3 Watts 292. And although in a particular case the municipal work is wholly needless for the property charged, yet the same was held valid: Lipps v. City, 2 Wright 503.
    The paving in this case was not exceptional. Market street was to be graded and paved .according to the established grade. The owners on it were treated by the act as all other owners on the streets of the city. The legislature has provided a uniform and just system relative to rural property in this city which is entirely consistent with the municipal charges assessed thereon which bring it into the market.
    The property of the defendant, if distinguished in the return of the assessor as rural, secures an abatement of one-third yearly until it ceases to be so distinguished. There is no mode of allowing a jury to sit as a board of appeal and determine that, if not so distinguished, it ought so to be, and when it is in the course of municipal administration so distinguished, it can not claim, if it be on a public highway, that it shall not be subject to the same local charges as are imposed upon all property in this city.
    The second point assigned by the plaintiff in error assumes that although the legislature thought there was reason to widen Market street, it was competent for a jury to hold otherwise. The intent was manifested by the words of the statute, and unless the legislature can not widen a street, there is nothing to argue. In Mayor -v. Randolph, 4 W. & S. 514; Clark v. Bridge Co., 5 Wright 160; Smedley v. Erwin, 1 P. F. Smith 450, it was held taking land for a public highway is taking it for a public use, and the degree of the public necessity is for the legislature not for the courts to determine.
   Mr. Justice Woodward

delivered the opinion of the court, May 7th 1879.

A contract was made between W. W. Dickinson and the City of Philadelphia, on the 26th of November 1872, in which Mr. Dickinson undertook “ to grade, curb and pave Market street, from Forty-third street to the eastern end of the bridge over Cobb’s creek, at Sixty-third street.” The work was done, and after its completion, this proceeding was begun to enforce payment by Robert Craig, the defendant below, of the sum assessed on his property as his proportion of the cost. The claim was filed against a lot of ground on the south side of Market street, having a front on that street of three hundred feet, and extending in depth two hundred and fourteen feet to Ludlow street. The authority to make the contract, and the right to enforce the lien against the defendant’s land, are rested on the provisions of the Act of the 5th of April 1870, by which it was made the duty of the chief commissioner of highways, immediately after the interest of the West Chester Plank-road and Turnpike Company in the road-bed of Market street, should be surrendered to the city of Philadelphia, “ to proceed by giving due notice to property-owners along the line of said Market street,” between Forty-third and Sixty-third streets, “and by all other requisite proceedings, to open the said street between the points named to the full width as laid down on the plan of the city, and to grade said street, and to enter into, a contract with a competent paver to curb and pave the same; said contractor to collect the costs thereof, except the paving of intersections, as by law and ordinance provided.” A verdict was rendered and a judgment entered in the Common Pleas for the full amount of the plaintiff’s claim.

At the trial three offers were made on behalf of the defendant, and were rejected by the court. The first and second were propositions to prove that the defendant’s “ premises, against which this claim was filed, are situated in a rural district in the city of Philadelphia, and that a large part of Market street, from Forty-third to Sixty-third street, passes through rural and farm property, now used for farm purposesand “ that all the property fronting on Market street, from Forty-third to Sixty-third, not exempt from taxation, is assessed as such rural property and farm land.” It was decided in the case of Washington Avenue, 19 P. F. Smith 352, that an Act of Assembly authorizing a local assessment for a general public benefit was unconstitutional, and that, while the assessment of a tax for improving streets in towns, in proportion to the frontage on the street, is a reasonable exercise of the taxing power according to the benefits received, yet such a rule applies only to cities and large towns, whe^e, from the density of the population and the small size of the lots, there is a reasonable certainty of arriving at a true result. In Seely v. The City of Pittsburgh, 1 Norris 360, which was a scire facias on a municipal claim for frontage tax, the facts were disclosed in a case stated. It was agreed that the line of the highway ran in part through the rural or suburban part of the city, and that the defendant’s premises were situated in that rural district. The Act of the 2d of April 1870, which had provided for the improvement and authorized the assessment, was held to be unconstitutional, so far as it applied to lands in such a district. “ The blending of town and country, of city lots and farm lands,” was pronounced by Agnew, C. J., to be “ so plainly, palpably, rankly and ruinously unjust” as to be “ void as against the right of property as protected by the Bill of Eights.” These cases have been followed in Kaiser v. Weise, 4 Norris 366, and recognised in Bidwell v. The City of Pittsburgh, Id. 412. A rule of law settled by this court, in the Western District of the state, must necessarily prevail as a rule of law in the Eastern District. The evidence was legitimate and should have been received.

The third proposition was to prove “that the widening of Market street was not called for by any reason, save as a public imr provement, and to keep a grand avenue through the city of a uniform width to.the Delaware county line.” Perhaps the terms of the offer were vague, but under the rules laid down in the cases that have been referred to, it was admissible. Its object was to show that the improvement was for the benefit of the general public, without producing any local advantage to the owners of lands along its line. “ Local assessments can only be constitutional when imposed to pay for local improvements, clearly conferring special benefits on the properties assessed, and to the extent of those benefits. They cannot be so imposed when the improvement is either expressed or appears to be for general public benefit:” Sharswood, J., in Hammett v. Philadelphia, 15 P. F. Smith 146. It may be added that they cannot be so imposed when it is proved to be for the public benefit without advantage to local properties.

A complete system for the improvement of this particular highway was provided by the Act of the 5th of April 1870. The consent of a majority of the property-owners on the line, the selection by them of a contractor, the passage of an ordinance by the councils, and the advertisements under the ordinance of 1862, were all dispensed with. Previous laws and existing ordinances were to be applied only in the collection of the cost of the work. Nothing appears in the record to show that notice was not given to owners, or that there was neglect to take “ all other requisite proceedings to open the street.”

1 In the argument of the fourth assignment of error, the counsel for the defendant discussed the cause as if in the trial the Act of the 19th of April 1843 had been held applicable to this claim. That act, which limited a defence to a claim to a denial that work had been done or materials furnished, to proof of value, or to proof of payment or a release, extended only to the incorporated districts of the county of Philadelphia. Was this part of Market street ever included in such a district ? It seems certain that it was not in 1843. It could scarcely have been in West Philadelphia, which was chartered as a borough in 1844, and incorporated as a district in 1851. Was it within the district of Belmont, which was incorporated in 1853 ? The boundaries describing that district in the incorporating act indicate that it embraced no territory south of a line protracted westwardly from the western end of the northern boundary of West Philadelphia. It has sometimes been said that the Act of 1843 has been extended to the whole city by an ordinance of councils, under the authority of the proviso to the 44th section of the Consolidation Act of the 2d of February 1874. But no instance is recalled in which such an ordinance has been produced. The question was not raised in the trial, and is unimportant now. But it may become material hereafter.

Substantially, the defendant’s points were answered, and in that, as the case was tried, no mistake or inaccuracy has been discovered.

Judgment reversed, and a venire facias de novo awarded.

Mr. Justice Paxson

filed the following dissenting opinion:

Had this case stopped where Seély v. The City of Pittsburgh ends I would have allowed it to pass with a mere dissent. But as it is another step forward I desire to .place upon record my reasons for such dissent. They are:

1st. The Act of Assembly under which Market street was widened and paved was an exercise of the taxing power of the Commonwealth. This power is lodged by the constitution in the legislative department of the government, subject to the single restriction that “all taxes shall be uniform upon the-same class of subjects within the territorial limits of the authority levying the tax.” Beyond this there is no constitutional restriction upon this power. It is bounded only by the necessities of the state and the will of the people. It was within the recognised powers of the legislature to enact that Market street should be widened and paved, and the cost thereof assessed upon the property-owners fronting on said street. Whether the power was exercised wisely is a matter with which we have no concern. It is not a judicial question.

2d. The legislature having decided that the cost of said improvement shall be assessed in accordance with the foot-front rule, we are bound to assume that such rule is just until the contrary appears. It has been assumed and asserted that such rule is unjust and oppressive as applied to rural property, but it has never been proved. On the contrary the arguments against it have been based upon the assumption that street improvements through rural property are oppressive and therefore unconstitutional. There was no attempt made in the court below to show that the foot-front rule was unjust in its application to the property of the defendant. The offer to show that the property on Market street from Forty-third to Sixty-third street was assessed as rural was irrelevant unless we assume that it is unconstitutional to open streets through rural property. There is nothing in the constitution to warrant such assumption, and to adopt it would be -to put a stop to the future growth of towns and cities. Street improvements of necessity precede building improvements, and rural property can only be converted into urban by opening, grading and paving the highways. Whether a street is ripe for such improvements is a legislative, not a judicial question.

3d. I am unable to see what a jury have to do with questions of power or constitutional law. The law does not confer upon a jury in a common-law7 proceeding the authority to revise the discretion of the legislature, or to decide when streets shall be opened. The evidence rejected amounts to this, if it amounts to anything. This clearly appears from the third specification, which is, “ That the widening of Market street was not called for by any reason, save as a public improvement, and to keep a grand avenue through the city of a uniform width to the Delaware county line.” One jury will decide this question one way, another jury will take the opposite view of it; neither in my judgment has anything to do with it; nor has this court.

4th. If the courts may thus interfere with the taxing power of the Commonwealth, I am unable to see where it is to stop. It is impossible under any system of taxation that perfect equality shall exist. In framing general laws there will always be cases of individual hardship. If a citizen may decline to pay his general tax, or his special tax in the way of assessments (and they rest substantially upon the same principle), until the question of the sufficiency of his benefits may be settled in a common-law proceeding by a jury, we have introduced a principle into bur jurisprudence which in my judgment is subversive of law and good government.

5th. I am opposed to the judiciary absorbing the powers of its co-ordinate deparments of the government.

The foregoing sufficiently indicates my objections to this judgment. I have no desire to elaborate. With profound respect for the views of the majority of the court, I must be allowed to express the opinion that the practical difficulties in the way of this line of decision will hereafter be found to be very serious, if not wholly insurmountable.


author: Per Curiam. — Upon

text:
    Davis’s Appeal.
    Laud was sold for $3000, upon which was a mortgage of $11,000, the deed reciting a consideration of $Í4,000. The deed was accompanied by a separate covenant on the part of the vendor that the mortgage-debt should not be called in for five years if the interest was punctually paid. This agreement also contained a recital that the vendor had conveyed “ for the sum of $3000, a lot of land subject to the payment of a mortgage of $11,000.” The mortgage having been sued out, upon a sale of the property, the whole debt was not realized, and it was sought to recover the balance from the vendee. Held, that the vendee had not personally assumed the payment of the mortgage-debt, and the claim for this balance could not be sustained.
    February 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas, No. 8, of Philadelphia county: Of January Term 1877, No. 186.
    Appeal of Edward M. Davis from the decree of the court dismissing his exceptions to the report of the auditor of the account of the assignee of William II. Lippincott for the benefit of creditors.
    The auditor, Henry Wharton, Esq., found the following facts: ■
    Mr. R. P. White presented the claim of Mr. E. M. Davis for the sum of $2206.50, under the following circumstances: Mr. Davis, in the year 1874, by deed dated the 28th day of March of that year, and recorded in Montgomery county in book No. 217, p. 1, conveyed to tbe assignee a piece of ground at Chelten Hills, in that county, adjoining property on the Old York Hoad, belonging to him, containing about fourteen acres and a half. The consideration expressed in the deed is the sum of $14,000. At the date of this instrument the property was, in point of fact, subject to a mortgage-debt of $11,000 to Edward Hopper, executor of James Mott, deceased. But no mention of any kind of this mortgage-debt is made in the deed. There is to be found no covenant, express or implied, on the face of the latter for its payment or assumption by the grantee.
    The history of the transaction is as follows:
    The lot in question lay between property belonging to Mr. Lippincott and Mr. Davis. Mr. Davis had been anxious to dispose of it to the former, and it seems had once or twice spoken to him upon the subject of a purchase by him. On the 24th. day of February 1874, Mr. Davis addressed to Mr. Lippincott a letter. In this letter in which he sets out his reasons for considering the purchase at the price advantageous to Mr. Lippincott, and says : “I told you I have $11,000 on it that can run for five years from March 1st. Now with this on it, if you will give me $3000 cash on the 1st day of March, I will let you have all the evergreens, all the stone, nearly $300 worth, and the cut wood that belongs to me. It is a rare bargain, and I sell it at this sacrifice because I want money.” There is nothing anywhere to indicate the desire or expectation on the part of Mr. Davis that Mr. Lippincott should assume, or be personally responsible for, the mortgage-debt — it is not even an offer to sell for $14,000, part in mortgage and part in cash. Indeed the statement that the “ $11,000 can run for five years,” so far as it has any significance, points the other way. It is rather the vendor undertaking to indemnify the vendee.
    The letter being satisfactory to Mr. Lippincott, he placed it in the hands of his conveyancer and counsel, Mr. Littleton, with instructions to see Mr. Davis, and if he could do no better to close on that basis. According to his testimony there were no special instructions on either side as to how the deed was to be drawn, nor is there any agreement shown on the subject, parol or otherwise, outside of the letter. This, consequently, is the foundation of the deed. Mr. Littleton, who acted, he said, solely for the vendee, in which Mr. Davis agrees, deliberately omitted any covenant or assumption of the payment of the mortgage-debt in the deed, express or implied, which he did for the very purpose of preventing any personal liability on the part of his client for the principal outside of the property conveyed. After the deed was prepared it was executed by Mr. Davis without objection on account of the absence of any agreement to assume the mortgage. He, however, says that Mr. Littleton told him that it was “ all right,” of which the latter has no recollection, but he says that he has no doubt that if Mr. Davis did ask the question, he so answered him, “ as I thought it was all right in my view.”
    With reference to the question as to what the purchase-money was to be, apart from the terms of the letter, Mr. Lippincott and Mr. Littleton, according to their testimony, both understood that the price was $14,000, but to have regarded that as its arithmetical measure, not as an agreement by Mr. Lippincott to pay or assume the payment of that sum. Mr. Lippincott, who is now practically indifferent in the matter, is positive on this point. He says : “I never agreed to pay that mortgage.” In reply to the question, “ When was it agreed that you were to pay $3000 and retain the $11,000,” he said, “I don’t think it'ever was so agreed.” He had known before that there was a mortgage for $11,000, but had understood that it was to be “ deducted from the purchase-money.” By this the auditor understood having reference to the rest of the witness’s testimony, that the purchase-money was to be so much less, not that the mortgage-debt was to be taken out of it.
    The deed was accompanied by a separate covenant on the part of Mr. Davis, that the mortgage-debt should not be called in for five years, if the interest was punctually paid, a copy of the material part of which is annexed. This agreement appears to sustain Mr. Lippincott’s understanding iu two ways. In the first place it recites that “ Whereas, I, Edward M. Davis, have this day conveyed to William H. Lippincott, for the sum of $3000 (not $14,000), a lot of land in Cheltenham township, &c., subject to the payment of a mortgage-debt of $11,000 to Edward Hopper, &c., and secondly, the taking an express covenant from the vendor, to indemnify the vendee for a limited period, without any corresponding undertaking on the part of the latter, to indemnify the former at the end of the period, is strong to show that this was not intended. The omission of such a covenant from a document where it ought to have been inserted, is more significant than mere silence.
    After Mr. Lippincott’s assignment, the mortgage was sued out by reason of the non-payment of the interest, as was testified to by Mr. Hopper, the mortgagee, which of course abrogated this last-mentioned covenant of guaranty. The property was- sold at Sheriff’s sale on April 19th 1875, of which there can be no doubt that Mr. Davis had notice, and was bought by his son, by whom it was a few weeks after sold and conveyed to a Mr. Dobbins, for $10,000. Mr. Davis, the father, negotiated this last sale, but denied having any interest in the matter. The judgment on the mortgage was for $11,852.50 ; on this, Mr. Hopper received in cash from the sheriff $4646, which, with a mortgage from the purchaser at the sheriff’s sale for $5000, made $9646, leaving a balance on the judgment, of $2206.50, which was paid by Mr. Davis to Mr. Hopper, on 17th June 1875. It was for this balance that Mr. Davis claimed against the assigned estate; he has also brought suit,' therefore, against Mr. Lippincott personally.
    Upon the foregoing facts the auditor disallowed the claim of Mr. Davis, and his exceptions being dismissed he took this appeal.

      It. JP. White, for appellant.
    Of course it is better to have a statement in the deed that the property is conveyed subject to an encumbrance; by doing so the proof is manifested by deed. From this has grown the practice of inserting the words under and subject, &c., in the deed, and consequently they have appeared in nearly every case that has come up before the Supreme Court. But it has never been held that these words are requisite to cast the duty of indemnifying the vendor upon the vendee, and the contrary was ruled in Taylor v. Preston, 29 P. F. Smith 436 ; Buckley’s Appeal, 12 'Wright 491,
    The assumption may be proved by parol and it will be implied from an abatement of the purchase-money: McCracken’s Estate, 5 Casey 428 ; Kostenbader v. Spotts, 30 P. F. Smith 433.
    Wherever the mortgage is counted as part of the purchase-money, the vendee is personally liable and is bound to indemnify the vendor: Thomas v. Pledwell, 7 Vin. Abr. 53, pi. 5 : Kearney v. Tanner, 17 S. & R. 97; McCracken’s Estate, supra; Metzgar’s Appeal, 21 P. F. Smith 330; Hoff’s Appeal, 12 Harris 205; Woodward’s Appeal, 2 Wright 327 ; Blank v. German, 5 W. & S. 42; Lennig’s Estate, 2 P. F. Smith 135; Girard Life Ins. Co. v. Stewart, 5 Norris 89.

      John M. Thomas, for appellee.
    The appellant’s position is in advance of any case decided in this state, and goes to the length that whenever a purchaser buys real estate which is subject to an encumbrance, the law will imply an agreement on his part to pay it, as in arriving at the price to be paid the encumbrance must be deducted from the full value, which is in effect a retention of so much of the purchase-money as will pay the encumbrance. In Kearney v. Tanner, 17 S. & R. 97, the court emphatically denied this to be the law.
    Where the contract of sale has been executed by the acceptance of a deed, there must be an express charge in the deed, or the contemporaneous agreement must show an assumption by the vendee. If he did not, the insertion of the words “ under and subject,” &c., in the deed or in the agreement, did not, per se, render him personally liable. These words are only evidence of,the fact of the assumption, not conclusive of it: Kearney v. Tanner, 17 S. & R. 97; Blank v. German, 5 W. & S. 42; Metzgar’s Appeal, supra; Girard Life Ins. Co. v. Stewart, supra.

       See Moore’s Appeal, 7 Norris 450, and Samuel v. Peyton, Id. 465. — Rep.

   The judgment of the Supreme Court was entered, March 24th 1879,

Per Curiam. — Upon

the evidence before us we see no reason to correct the findings of the learned auditor in the court below, upon the questions of fact, and on the facts as found by him we think the conclusion at which he arrived was right.

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


author: Mr. Justice Mercur

text:
    Carver’s Appeal.
    Where real estate is sold by an assignee for the benefit of creditors, under the provisions of the Act of February 17th 1876, the interest on the liens does not cease until the day of the final confirmation of the sale by the court.
    March 1st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ>
    Appeal from the Court of Common Pleas of Bucks county: Of January Term 1879, No. 79.
    Appeal of Elias Carver, executor and trustee under the will of Thomas Hayes, deceased, from the decree of the court confirming the report of the auditor to distribute the balance in the hands of the assignees of Gibson Johnson.
    On April 2d 1877, Gibson Johnson made an assignment for the benefit of creditors. Under the provisions of the Act of 17th February 1876, Pamph. L. 4, enabling assignees for the benefit of creditors to make sale of the real estate of their assignor discharged of liens, his assignees appealed to the court and had an order made for the sale of the real estate. The order directed that the sale should be made for cash. The property was sold on 6th December 1877, for $3020 upon the following terms: “ Ten per cent, of the purchase-money to be paid in cash, the balance on the first day of April next following.” The report of the sale was presented to the court and confirmed nisi on December 14th 1877. The money was paid by the purchaser, and the deed for the property delivered March 30th 1878. There was nothing to show an absolute confirmation of the sale. The auditor calculated interest on the liens to March 30th 1878, the time the purchase-money was paid and the deed delivered. It wras contended by the general creditor's that it should only have been calculated to the return-day of the order of sale. The allowance of this interest to March 30th was excepted to, but the court overruled the exception and confirmed the report. Carver, one of the general creditors, then took this appeal.

      JE. Carver, p. p., for appellant.
    The sale being a judicial one, the interest should not he calculated beyond the return-day of the order of sale, which in this case being fixed by the court, was the 10th of December, though the order was not returned until the 14th. A sale under the Act of Feb. 17th 1876, is analogous to that ordered by the Orphans’ Court for the payment of debts; and it also resembles a sheriff’s sale of real estate. It is well established law that the interest on liens upon land sold by the sheriff, ceases on the day of sale: Walton v. West, 4 Whart. 221; Bach-dell’s Appeal, 6 P. F. Smith 386. It is also well-settled law that when real estate is sold by order of the Orphans’ Court for payment of debts, interest thereon ceases from the return-day of the order of sale: Ramsey’s Appeal, 4 Wright 71.
    The above authorities clearly show that the confirmation of a sale does not depend upon paying the purchase-money and delivering the deed. That act is the consummation of the sale.
    No appearance nor paper-book, contra.

   Mr. Justice Mercur

delivered the opinion of the court, May 5th 1879.

This is a case of distribution of the proceeds of real estate on a sale made by an assignee for the benefit of creditors. The single question presented is, when the interest on the liens shall cease ?

In case of a sale by the sheriff on execution the rule is well-settled that the interest on all liens discharged by the sale, ceases on the day of sale. In the case of sales made in the Orphans’ Court, a different rule has been recognised. Ramsey’s Appeal, 4 Watts 71, was the case of a sale of real estate made by an administrator in pursuance of an order of court fo.r the payment of debts. The question appears to have been whether the lien-creditors were entitled to interest on their claims until the distribution was made, or until the return of .sale. The court below held that interest ceased “ at the return-day of the order of sale and confirmation.” That case was affirmed by this court. From the opinion of Mr. Justice Rogers, it appears the confirmation was had on the return-day of the order of sale, and he manifestly assumed the purchase-money was paid on that day, and thenceforth was actually in the hands of the administrator. He says, as a general rule, he can see no reason to make a distinction between a sale by the sheriff and a sale by an administrator under an order of court. He further proceeds to say, “ it is but reasonable when the money is made by sale of the property, and in the hands of the officers of the law, that the debt should be considered as paid to the amount of the money raised by the sale. There may be exceptions to this principle; but I see no circumstances in this case which take it out of the general rule.”

In the case of a sheriff’s sale, the law, and not the court, prescribes the terms of sale. It is for cash. It requires no confirmation by the court. A sale by an administrator, or by an assignee for the benefit of creditors, is made by order of court and upon cause shown. The court prescribes whether the sale shall be for cash or on credit, and it is not complete until confirmed by the court. Hence it was held in Jacob’s Appeal, 11 Harris 477, that a purchaser at administrator’s sale who had paid no part of the purchase-money, had no equitable estate in the premises prior to confirmation. It could not therefore be bound by a judgment entered against him after it was struck down, but before confirmation. In this it is unlike the case of a purchase at sheriff’s sale. A judgment against such a purchaser, obtained after the sale and before the acknowledgment of the deed, if the deed be afterwards acquired, attaches as a lien at the date of its recovery: Morrison v. Wurtz, 7 Watts 437; Slater’s Appeal, 4 Casey 169.

A sale by the assignee is substantially subject to the same control of a court as one made by an administrator. The first section of the Act of 17th February 1876, Pamph. L. 4, authorizes the Court of Common Pleas on petition of the assignee of an insolvent, to order a sale of encumbered real estate, which sale “after being confirmed by said court, shall discharge all liens against the. real estate so sold,” excepting first-lien mortgages, .ground-rents and purchase-money due the Commonwealth.

In the present case the order was to sell for cash. The sale was made on the 6th December 1877. The assignee, in fact, sold on different terms, to wit: “ ten per cent, of the purchase-money to be paid in cash, the balance the first day of April next following.” The sale was so returned to the court and confirmed nisi 14th December 1877. The money was paid by the purchaser and the deed delivered to him on the 30th March 1878. The confirmation of the sale as made was a ratification of its terms with like effect as if such had been the original order of the court: Jacobs’s Appeal, supra.

The auditor appointed to distribute the fund reported that the record showed no confirmation absolute. All it did show was the nisi confirmation of 14th December. He therefore found the passing of the title to be tantamount to entry of final confirmation, and adopted that as the time when interest should cease. The court below dismissed all exceptions and-confirmed the report.

It is thus shown that prior to the 30th March 1878, the purchaser was not, by the terms of his purchase, required to pay, and until that time the purchase-money which was to take the place of the land was not “in the hands of an officer of the law.” Still further, the court which is the proper tribunal to determine when the sale was confirmed absolute, has decided that to be the time. Holding as we do, that the day of final confirmation of a sale made by an assignee, is the time for interest on the liens to cease, we see no error.

Decree affirmed, and appeal dismissed at the cost of the appellant.


author: Mr. Justice Mergur

text:
    Markley versus Stevens.
    In an affidavit of defence an averment of set-off must be precise and certain as to time.
    March 1st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunket and Sterrett, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1879, No. 120.
    Covenant by Sadosa S. Stevens against Benjamin II. Markley, to recover arrears of rent upon a lease under seal, dated July 1st 1872. The claim was for $210, the rept alleged to be due from January 15th to May 1st 1877. The defendant filed an affidavit of defence wherein he averred that on the 28th day of June 1872, the said defendant purchased from the plaintiff a certain drug-store; that plaintiff guaranteed that there were in the said store at time of sale at least $8000 worth of drugs, medicines, &c., and induced the defendant to agree to give that much, which defendant agreed to do, upon the special guaranty of the plaintiff that the st#8fck consisted of drugs, medicines, &c., worth $8000 ; that, immediately upon taking possession of said store, defendant had a careful inventory taken of the contents of said store, and found but $4798.78 worth of drugs and medicines (including counter and shelving), instead of $8000 worth, as plaintiff had guaranteed; that defendant, acting upon the special guaranty of the plaintiff, paid him the sum of $8000 — $5000 of which amount was paid before defendant had taken possession of the store; that upon this transaction, plaintiff is indebted to defendant in a sum exceeding $3000, not including interest; that plaintiff is further indebted to defendant in the sum of $5.01 for drugs, &e., furnished by defendant; and, also, in the further sum of $8.30, hill paid by defendant for plaintiff to E. J. Nolan, plumber, &c.
    A rule for judgment for want of a sufficient affidavit of defence was made absolute, Sassaman, J., in an opinion, saying:

      “ The counsel for plaintiff in this case says his party knew nothing of the bill for drugs $5.01, and Nolan’s plumbing bill for $8.30, due by plaintiff to defendant, but that he thinks they may be proper charges, and agrees that they shall be deducted from the amount of the claim, which must accordingly bo done.
    “ The only dispute then is the amount of deficiency claimed by an inventory of the drugs in a certain store, made immediately after obtaining possession of the demised 'premises. The cases cited by the defendant’s counsel in this case are not applicable in this suit, for the reason, that what he now claims to set off against the balance of the claim in suit, is for money voluntarily paid by him, for the most part after he had full knowledge of the alleged facts. Even though there should have been a guaranty, if, after he knew' the failure of the amount guaranteed, he made payment in full 'without defending on that contract, he could not now set up any amount voluntarily and knowingly overpaid in a suit upon this contract for the lease of the premises described in the copy filed for a certain rent, by way of defalcation. The criterion to go by would be, could he maintain a suit for what he offers to defalcate. Money paid and received voluntarily, though not strictly demandable, cannot be recovered back: Morris v. Tarín, 1 Dali. 158;' Kennedy v. Hughey, 8 Watts 265; Keener v. Bank, 2 Barr 237 ; Natcher v. Natcher, 11 Wright 496. Money voluntarily paid cannot be recovered back, on the ground of a mistake of law as to the right of the other party to receive it: Ege v. Koontz, 3 Barr 109. Money voluntarily paid with knowledge or means of knowledge of the facts, and without fraud on the party cannot be recovered back, because paid in ignorance of the law; Real Est. Sav. Inst. v. Linder, 24 P. E. Smith 371. It seems strange to us that a person should pay thousands of dollars voluntarily in satisfaction of one contract, and that the same person should apparently, also voluntarily, pass along for a number of years, paying monthly dues on another contract, and make no defence of defalcation until sued for a comparatively small balance on the last contract. We do not consider the affidavit of defence sufficient.”
    This entry of judgment was assigned for error.

      Frank R. Schell, for plaintiff in error.
    The affidavit of defence disclosed a substantial prima facie case. It was therefore sufficient and should have been supported. It is not necessary that an affidavit should expressly negative every objection or argument which can be raised against it. It is only necessary that the facts constituting the defence should be averred with reasonable precision and distinctness, and with certainty to a common intent: Hugg v. Scott, 6 Whart. 274; Leibersperger v. The Savings Bank, 6 Casey 531; Thompson v. Clark, 6 P. E. Smith 33 ; Eyre v. Yohe, 17 Id. 477; Youngman v. Walter, 23 Id. 134 ; Bronson v. Silverman, 27 Id. 94; Moeck v. Littell, 1 Norris 354..
    The affidavit is to receive a reasonable construction in favor of the defendant, and a reasonable intendment is to be made in his favor: Roberts v. Austin, 5 Whart. 313 ; Twitchell v. McMurtrie, 27 P. P. Smith 383.
    No reasonable construction was put upon the affidavit. The opinion of the court below is based upon a series of assumptions. In no sense can it be said that the $5000 were paid by the defendant with a “full knowledge of the alleged facts.” It is true that it is not stated precisely when the balance of $3000 were paid. The only inference that could be drawn from this omission to state the time precisely would be that it was paid when or after defendant had taken, possession of the store.

      Amos B. Wanner and George B. Baer, for defendant in error.
    —The omission to state the time of the payment of the balance of the purchase-money was fatal. If paid after knowledge of the deficiency in the stock of the store it was voluntary, and can not be recovered back. The affidavit should have stated specifically when the $3000 were paid.
   Mr. Justice Mergur

delivered the opinion of the court, May 7th, 1879.

In this case judgment was entered against the plaintiff in error, for want of a sufficient affidavit of defence. The validity of the debt claimed by the defendant in error was not denied;. but the defence is set-off arising out of a separate transaction.

The question then is, whether the affidavit, with reasonable certainty, avers facts that would establish a valid claim against the defendant in error ? Substantially it avers that the affiant purchased of the defendant in error a drug store, under a guarantee that there was at the time of sale at .least $8000 worth of drugs, medicines, &c, therein. That immediately, on taking possession he had a careful inventory taken of the contents, and found the value of the whole to be $4798.73. That he paid the $8000 — $5000 thereof before he took possession of the store. He therefore claimed the defendant in error was indebted to him in that transaction, in a sum exceeding $3000.

It will thus be observed that there is an entire omission to state the time when the $3000 were paid. The clear inference is, that they were not paid before possession was taken, and it is left to conjecture to determine whether they were paid before or after the taking of the inventory was completed. If paid before, it might constitute a valid claim. If voluntarily paid afterwards and with knowledge of all the facts averred, no fraud being alleged, it could not be recovered back: Keener v. Bank, 2 Barr 237; Age v. Koentz, 3 Id. 109; Natcher v. Natcher, 11 Wright 496; Real Estate Saving Institution v. Linder, 24 P. F. Smith 371.

It is true, an affidavit is sufficient which avers with reasonable precision and distictness, and with certainty to a common intent, facts which will constitute a defence. A reasonable intendment should be given to the language used for the purpose of sustaining the affidavit. It is not, however, sufficient to designedly and unnecessarily use language intended to create the presumption of a fact, which, if it actually existed, would readily and naturally have been expressly averred.

The affidavit in the present case expressly avers that $5000 were paid before possession was taken; but studiously omits to state when the remaining $3000 were paid. It cannot be claimed that this omission occurred through ignorance of the time of its payment. In view of the minuteness with which the other facts are stated, and the known importance of the time when this payment was made, the omission to state that it was before the inventory was taken, or before the facts were fully known to the affiant, creates the presumption that such was not the fact. It is to say the least, evasive, inasmuch as no just cause appears for the absence of an express and distinct statement of the time. The reasonable conclusion, therefore, is that the time of payment was stated as favorably for the affiant as the facts would warrant. As then it was necessary to aver facts, which, if proved, would sustain the claim set up, it is evident that this affidavit failed so to do with reasonable precision and certainty, and the learned judge was right in ordering judgment to be entered.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Wilmington and Reading Railroad Co. versus High.
    A railroad company gave a bond to plaintiff to secure the payment of damages which plaintiff might sustain by reason of the location of the railroad through his farm. On the back of the bond was a stipulation, that if from any cause, the quantity of land and fencing through the property, required by the location of the road as at present located, should be changed or lessened, that a stated deduction should be made from the face of the bond. In debt upon the bond, the company offered to prove that the land actually taken for their road was materially lessened from the quantity named in a draft annexed to the bond. This evidence was rejected by the court below. Held, that it should have been admitted for the purpose of showing defalcation both as to quantity of land and amount of fencing.
    March 3d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson; Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Berks county: of July Term 1878, No. 77.
    Debt by Ezra High, against the Wilmington and Reading Railroad Company, Edward Brooke and Hugh E. Steele.
    This was an action of debt on a joint and several bond for $8000, dated May 8th 1872, and payable April 5th 1873, with interest, executed by the Wilmington and Reading Railroad Company, Edward Brooke and Hugh E. Steele, in favor of Ezra High. It was given to secure Mr. High the payment of the damages which it was agreed he would sustain by reason of the location of the railroad of said company through his premises, and was accompanied by a draft of the proposed route of the road over the same. The following stipulation was written on the bond:
    “ The within bond has been given in payment for lands taken according to the annexed draft; and if from any cause the quantity of land and amount of fencing through the property of Ezra High, required by the location of the Wilmington and Reading Railroad as at present located, shall be changed or lessened, then a deduction of $300 per acre and $1.25 per ten feet'of fence shall be made from the face of the within bond.”
    There was also an endorsement on the bond of the payment of interest as follows:
    “Received June 18th 1873, of the Wilmington and Reading Railroad Company, four hundred and twenty dollars, being the interest on seven thousand dollars for one year to May 8th 1873. $420.00. Ezra High.”
    In 1871, when the branch of the Wilmington & Reading Railroad, extending from Birdsboro’ to Reading, a distance of eight miles, was about to be constructed, the route was located from Birdsboro’ along the right bank of the Schuylkill river, to a point where it crossed to the left bank of the river and entered the land of the plaintiff, through which it passed, first to a point near the Schuylkill, thence north nearly parallel with the river until it approached the Philadelphia & Reading Railroad at the boundary of plaintiff’s land. From this point it was intended to run the track along the said P. & R. Railroad to Reading, without again crossing the Schuylkill. This intention was thwarted by the P. & R. Railroad Company, who resisted the engineers of the Wilmington & Reading Railroad Company and prevented them from making a survey and locating the route along their railroad. The W. & R. Railroad thereupon, to wit, on the 3d of October 1871, instituted proceedings in equity in the Court of Common Pleas of Berks county to compel the P. & R. road to desist from interference with the intended location of their road along the left bank of the Schuylkill from High’s land to the city of Reading. The equity proceedings were pending before a master when the bond in question was executed by the defendants. The report of the master in favor of the P. & R. Railroad was filed shortly after, subsequent to which nothing further appears to have been done in the suit.
    The directors of the Berks County Railroad Company, which had been previously chartered, and, was intended to form, with the Wilmington road, a continuous line of railway from the Lehigh river to the Delaware, were awaitipg the completion of the branch road from Birdsboro’. to Reading, and as under their charter they had authority to construct a railroad from the Wilmington and Reading Railroad, at or near Birdsboro’, to Reading and beyond, they were considering the propriety of building their road southward, to connect with the Wilmington road at some point below the place of resistance by the Reading road; and on the 12th of June 1872, they passed a resolution to extend their road from the city of Reading to a point on the plaintiff’s farm, to connect with the Wilmington branch from Birdsboro’, and subsequently constructed the same to the point of junction of the two roads on plaintiff’s farm, specific authority therefor having been granted them at the next session of the legislature.
    It was while these several proceedings were in progress that the bond in question was executed and the stipulation written thereon; and as the Wilmington road, notwithstanding its route was originally located through the whole length of the plaintiff’s farm, for obvious and apparently justifiable reasons afterwards changed or rather shortened its route on said farm, and thereby lessened both the quantity of land as well as the amount of fencing required, the defendants claimed that under the stipulation on the bond they had a right to a deduction according to its terms.
    At the trial, before Sassaman, J., the defendants offered to prove,
    1. That the quantity of land taken by the Wilmington and Reading Railroad, in the location and construction of their railroad on the plaintiff’s land, was lessened by six and eight-tenth acres from the quantity of land embraced in the original location of said railroad, as shown by the draft of the location attached to the bond offered in evidence.
    2. That within the marked lines of said draft, so far as the Wilmington and Reading Railroad has been actually located and constructed on plaintiff’s land, only six 81-100th acres are taken by said railroad, instead of thirteen ll-100th acres, as embraced in said draft.
    3. That the length of the line of said Wilmington and Reading Railroad, as actually located and constructed on plaintiff’s land, is only 2430 feet instead of 5765 feet, as contained in said draft, thereby lessening the distance 3335 feet.
    This offer was made, under the stipulation endorsed on bond, to show how much the amount of bond was to be diminished, both as to quantity of land and amount of fencing.
    The court rejected the offer, saying:
    “ 1. The court understand the first proposition of the defendants’ offer to contemplate a variation of location from the location of the Wilmington & Reading Railroad, ‘ as at present located,’ in the words of the covenant endorsed on the bond. With this view of the first proposition, we think the offer would prove a variation of the original contract, and not only a change or lessening of ‘ the quantity of land taken and amount of fencing’ required. We think this was not contemplated in the covenant.
    “ 2. By the offer in the second proposition, it seems to us there would be proof of ^ctual location and construction different from that contemplated in the express covenant endorsed on the bond, providing only for the elements of damages had in view of a settlement for occupation and use of a location ‘ as at present located,’ at a settlement resulting in the bond in evidence. To allow other deductions than those specially mentioned would necessarily alter and vary the considerations of the bond.

      “ 3. If what is contained in the third proposition of the offer to prove had been in the present contemplation of the parties, at the making and execution of the bond, in any way, and at the endorsement entered thereon, this would certainly be admissible; but if what is proposed depends on matters and causes arising thereafter, it would produce a new state of things, leading to entirely different relations from those existing at the execution of the bond, as it appears to us from the terms of the offer, as compared with the terms of the covenant, our ruling must be otherwise. The offer is rejected and bill for defendants.”
    The verdict was for plaintiff for $10,469.33, and after judgment, defendants took this writ, and, inter alia, assigned for error the rejection of the above offer.

      Horace A. Fundt and A. G. Green, for plaintiffs in error.
    The court below assumed that defendants had no right to' prove a different location or change of location from- that on the draft, and that if they did it was not contemplated by the parties. How could there be a decrease in the quantity of the land and amount of fencing without a change in the location ? This was the very object of the stipulation. It contemplated any cause resulting from the necessities or convenience of the company. The court virtually decide'd that there could be no defence to the payment of the whole amount of the bond.

      George F. Baer and H. Van Reed, for defendant in error.—
    The reason for this provision no doubt was that the location of the railroad through the land of defendant in error required extensive excavation and embankment, and it was uncertain what quantity of land and fencing would be required. If the parties had contemplated a lessening of the quantity of land by a change of location they would have used apt words to express that intention. The defendants seek to escape the payment of a large part of the damages by setting up an agreement between them and the Berks County Railroad Company, under which their road was only to be completed to an intermediate point on plaintiff’s land. Can they be relieved from the payment of their bond by showing such secret arrangement ? This would leave the plaintiff without a remedy, for the half of the road for the Berks County Railroad Company is built, and that company is insolvent.
   Mr. Justice Trunkey

delivered the opinion of the court, May 5th 1879.

Had the plaintiff in error taken all the land included in the draft annexed to the bond, its value, together with the value of fencing thereof, as fixed in the endorsed condition, would have been less than $5400. Hence over $2600 were included in the bond for injuries other than the value of the land taken and the cost of its fencing. Against this portion there is no provision for defalcation. Nearly one-third of the bond is payable absolutely, though the company should finally occupy little or none of the land then appropriated for their road.

The parties agreed that “ if from any cause the quantity of land and amount of fencing,” required by the location, should be changed or lessened, that a deduction should be made from the face of the bond, at the rate of $300 per acre, and $1.25 per ten feet of fence. It is scarcely possible to express more distinctly, than does the language of their agreement, that they contemplated a future change of location and diminishing the quantity of land. Ingenuity may suggest a doubt, but cannot obscure the natural import of the words. In absence of proof of surroundings at the making of the contract, the large portion of the bond, payable in any event, and the circuitous route, as then located through the farm, call for adherence to the manifest sense of the words in the contract.

The company offered to prove that the land actually taken for their road was lessened six and eight-tenths acres, from the quantity shown on the draft annexed to the bond, and the length of the line shortened thirty-three hundred and thirty-five feet. When this offer was made, the only evidence before the court was the bond, with the contract endorsed thereon, and the draft thereto annexed. The offer was direct and simple, for the purpose of showing defalcation “both as to quantity of land and amount of fencing,” and ought to have been admitted. That it might be successfully answered and overcome by rebutting evidence, the court did not know, and could not, so as to influence its action, from any matter injected into an objection. Its exclusion was to declare that the agreement meant nothing.

Several points were raised in argument, not now in the case, for it comes on the single quéstion, whether the company can defend by reason of a change of location by which the quantity of land was diminished. However, it may not be amiss, in view of what was so earnestly pressed, to remark that the defendant will not be held guilty of a conspiracy, or fraudulent arrangement, with the Berks County Railroad Company, to cheat the plaintiff, without proof. Nor, in absence of evidence thereof, will it be presumed “that the Berks County Railroad was occupying the location of the Wilmington and Reading Railroad under some private arrangement between the two companies.” There is no apparent ground for the expressed fears that High has no remedy for damages done by the location of the Berks County Railroad, because of its insolvency. If it is a trespasser ejectment will lie, and recovery of possession by execution will be stayed only upon legal ascertainment of the damages and payment thereof: McClinton v. Pittsburgh, Fort Wayne & Chicago Railway Co., 16 P. F. Smith 404; Justice et al. v. Railroad Co., 6 Norris 28.

But we forbear; too much, perhaps, has been said in advance of what may be developed on another trial.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Smith versus Farmers’ and Mechanics’ Mutual Fire Ins. Co.
    1. A provision in a nre insurance policy, rendered it void if the property insured should be levied upon or taken into possession or custody under any proceeding in law. Held, that a technical seizure, unaccompanied by any change of possession, or increased risk, would not avoid the policy. Ins. Co. v. O’Maley, 1 Norris 403, followed.
    2. The agent of the company was required to write down the answers of the applicant to certain printed questions, endorsed on the policy; one of these answers was ambiguous. Defence was made to an action on the policy, on the ground that an answer of the applicant was untrue. Held, that the applicant might show by parol that he Had made a truthful reply to the agent who wrote down his answers, and that he signed the application supposing the answer actually given, had been written down.
    3. If an agent, in the scope of his employment, intentionally or negligently misled the applicant, and the latter, believing his answers were correctly written, signed the application in good faith, he should be permitted to prove these facts.
    March 3d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1879, No. 192.
    Covenant upon a policy of fire insurance brought by William B. Smith against the Farmers’ and Mechanics’ Mutual Fire Insurance Company of Millersburg, Pennsylvania.
    The case was submitted to a referee, John B. Dampman. Esq., under the Act of May 14th 1874. The facts as disclosed before the referee were substantially these: The plaintiff owned a building used as a carriage manufactory near Kutztown. On November 9th 1875, upon the solicitation of the agent of the defendant, he applied to the company for an insurance on said' building and its contents. On November 12th 1875, the company issued a policy therefor in the sum of $1800. Embodied in the policy were a number of printed interrogatories, the answers to which were to be regarded as warranties on the part of the assured. The twelfth of these interrogatories was, “ Is the property encumbered ? If so, state the amount, and also the estimated value of the real estate covered by said encumbrance ?” The answer to this on the policy was, “ No morg. judgment.”
    The thirteenth interrogatory was, “ Are all the facts material to the risk made known ?” and the answer, “ Yes.” On the back of the policy were a number of printed questions to be answered by the agent, one of which was, “ Are your answers by the applicant all correct, so far as you can discern ?” to which the answer was, “Yes.” The plaintiff paid in cash for the policy a premium of $27, and gave in addition a premium note for $270, which note was attached to the printed form of application. This note contained this recital: “ The undersigned, applicant for the proposed insurance, hereby covenants and agrees with the company to accept of the policy issued upon this application and survey, if in accordance therewith, and in case of loss, to adjust the same in accordance with the by-laws of said company, and conditions of said policy. But if any untrue answer has been given to the foregoing interrogatories, whereby the said company have been deceived, as to the character of the risk, or if any change be made so as to increase the risk of these premises, without being notified to this company, and endorsed upon their policy, then this insurance to be void and policy of no effect.”
    The policy provided: “ The assured hereby covenants and engages that the representation given in the application for this insurance is a warranty on the part of the assured, and contains a just, full and true exposition of all the facts and circumstances in regard to condition, situation and value of the property insured. And that if any fact or circumstances shall not have been fairly represented; or if the said assured, or his assigns, shall hereafter make any other insurance on the same property, and shall not give immediate notice thereof to the secretary, and have the same endorsed on this instrument, or otherwise acknowledged by him in writing, then this policy shall cease and be of no effect.”
    The fifteenth condition of the policy was as follows: “ The insurance under this policy shall cease at and from the time the property hereby insured shall be levied on or taken into possession or custody under any proceeding in law or equity, and should there, during the life of this policy, an encumbrance fall or be executed upon the property insured sufiicient to reduce the real interest of the insured in the same to a sum only equal to or below the amount insured, and he neglect or fail to obtain the consent of the company thereto, then and in that case the policy shall be void.”
    At the time the policy issued there were nine judgments of record against plaintiff, aggregating $1031.01.
    On the 12th of October 1875 a fi. fa. was issued, and on the 25th of October 1875 the property described in the application was levied upon, and condemned on the 6th of November 1875. .On the 12th of November 1875, a venditioni exponas was issued, and the property advertised for sale. The property was burned on the 4th of December 1875. On the 17th of December 1875 the venditioni exponas was stayed.
    The company refused to pay the loss, on the ground that the answer, “No morg. judgment,” in answer to the printed question, was a warranty that the property was free from encumbrance, and that at the time of the application there had been a levy and condemnation of the real estate under a fi. fa., which they contended avoided the policy.
    Before the referee, when the defendant had closed his testimony, the plaintiff, in rebuttal, proposed to prove that before plaintiff signed the application, the agent of the company asked him “Whether he had a mortgage on his property ?” To which the plaintiff answered, “No, but other debts on it;” and that then the agent said, “ That makes no difference; you will be all right and safe;” and that in consideration of this verbal promise, the plaintiff signed the application.
    This evidence was objected to, and the referee sustained the objection.
    In an opinion the referee said :
    “All the facts necessary to make out a prima facie case for the plaintiff were proven. The defendant offered in evidence copies of the records of the Court of Common Pleas of Berks county, show ing that at the time of the occurrence of the fire the property had been levied upon by the sheriff, with a view of avoiding the policy under the condition thereof; condition 15 providing that the insurance should cease from the time the property was levied upon, under any proceeding in law or equity, &c.
    “The evidence was admitted, but it does not become necessary, in the decision of this case, to pass upon the effect of it.
    “ The defendants also proved that at the time of effecting this insurance, the property insured was encumbered with judgments, while in the application for insurance the plaintiff had said there were no judgments or mortgages; this-for the purpose of showing such false representations by the plaintiff as under the terms of the policy would avoid it.
    “ The plaintiff then offered to prove, in rebuttal, that a truthful answer had been given to the question in the application referring to encumbrances, but that the agent of the company, C. A. Z. Griesemer, who wrote the application, had written the answer incorrectly ; this for the purpose of avoiding'the forfeiture of the policy under the previous evidence. There can be no doubt that under certain circumstances he would have been entitled to show these. But, under the provisions of the policy in question, it could avail him nothing. By the terms of the policy, this representation was covenanted to be a warranty, and being a warranty on the authority of Cooper v. The Farmers’ Mutual Fire Insurance Co., 14 Wright 299, it cannot be shown by parol to have been a mistake; therefore the evidence was excluded. This was the vital point in the case. This evidence having been ruled out, the case of the plaintiff fails, and the decision must be for the defendants.”
    Judgment was entered for defendants with costs, when the plaintiff took this writ, and assigned for error the rejection of the foregoing offer of evidence and the entry of judgment for defendants.

      A. H. Bchmehl and Richmond L. Jones, for plaintiff in error.—
    The answer of the plaintiff was plainly intended to mean that the property was not encumbered by a mortgage, but by judgments. Where the answer is plain and unambiguous, the company is justified in accepting it as a warranty, without further inquiry. But this court -has never gone so far as to permit an insurance company to construe the language of a written application, and then, after taking the hazard of acting upon its interpretation of an ambiguous answer, to bring itself by a technical strain within the rule laid down for the relief of companies acting upon an express warranty, and not guilty of any negligence. Columbia Ins. Co. v. Cooper, 14 Wright 331, governs this case.
    Where an answer to such a question is not categorical, it is the business of the company to make inquiry, or demand a more specific reply, and a failure to do this is a waiver of the question. Any ambiguity or uncertainty in such a case is sufficient to put the company on inquiry, and that amounts in judgment of law to notice of the fact to which such inquiry would lead.
    It was not contemplated that the applicant should write down the answers, but that the agent of the company should take them from the applicant and write them down, so that the agent, and not the applicant, warrants the correctness of the written answers.
    This was a technical seizure, unattended by change of possession or increased risk, and the fifteenth condition of the policy does not apply: Insurance Co. v. O’Maley et ux., 1 Norris 403.

      George B. Baer, for defendant in error.
    Viewed in the light of the question to which it was an answer, it is certain that the answer means no mortgage and no judgment.

    Even if the answer could be construed as claimed by appellant, how will he escape the condition that an omission to make known in said application any fact or feature relating to the risk shall render the policy void ? The applicant, although specifically interrogated, did not make known the amount of judgments, nor the value of the estate encumbered. This was an omission to state the facts material to the risk, although in the very last answer the applicant stated he had made known all facts material to the risk: Brown v. Commercial Ins. Co., 5 Wright 189.
    The application and the policy make all the answers warranties, and an untruthful answer or a failure to answer fully when specifically interrogated, vitiates the policy: Grottsman v. Pennsylvania Ins. Oo., 6 P. F. Smith 210; Cooper v. Fanners’ Mutual Fire Ins. Co., 14 Wright 299. The distinction- between this case and Columbia Ins. Co. v. Cooper, 14 Wright 331, is in the fact that in this case the statement is a warranty, and there it was merely a representation.
   Mr. Justice Sterrett

delivered the opinion of the court, May 5th 1879.

In the court below a clear prima facie case was made out by the plaintiff. To meet this the company interposed the defence that the policy was void under the fifteenth condition thereof, because the property was taken in execution before the fire; that it was void also for the reason that the plaintiff, at the time insurance was effected, had falsely represented, in answer to the twelfth interrogatory, that the property was not encumbered, either by mortgage or judgment. In support of the former ground of defence it was shown that the real estate was levied on before the insurance was effected; that it was subsequently condemned and a venditioni issued to the next term. It did not appear, however, that there was anything more than a technical seizure, unaccompanied by any change of possession, or increased risk. This was not sufiicient to avoid the policy. The condition relied on has no application in the case of a merely technical seizure, such as was shown in this case. This question, arising under a similar condition in an insurance policy, was ruled in The Insurance Company v. O’Maley and wife, 1 Norris 400.

In support of the second ground of defence it was shown that there were judgments against the plaintiff at the time the risk was taken, some of which were liens on the property insured. It was contended that this conclusively established the falsity of the plaintiff’s answer to the twelfth interrogatory and rendered the policy void. The plaintiff then offered to prove in rebuttal that a truthful reply had been given to the question respecting .encumbrances, but that G-riesemer, the agent of the company, who solicited the insurance and filled out the application, had erroneously written the answer; and also, to prove what he .said, at the time, in regard to the subject-matter of the answer. The referee excluded the testimony for the reason that by the terms of the policy the answer, as written, was a warranty by .the- insured, and that parol evidence was not admissible to explain it or prove anything to the contrary. In this we think there was error. The expression, “ no morg. judgment,” which composes the answer, is at least ambiguous. The defendant, of course, interpreted it to mean no mortgage and no judgments, and the referee appears to have adopted that construction. On the other hand, the plaintiff claimed that it meant, no mortgage, but judgments. The testimony, if it had be.en received, might have satisfied the referee that the latter was what was really meant, and if so, it would have comported with the answer the plaintiff alleged he gave. The answers to all the interrogatories are very brief. Nine out of the thirteen consist of but a single word. It is not unreasonable to suppose that the agent did not fully write down all that was said by the insured in answer to the several interrogatories; and the abbreviated form of the particular answer complained of would seem to indicate that it was not the full answer to the question. If a truthful answer was in fact given, and the agent either intentionally or negligently wrote it down erroneously, and the plaintiff, resting in the belief that his answer, as given, was correctly written by the agent, signed the application in good faith, he should have been permitted to prove these facts. Griesemer was the agent of the company in taking and transmitting applications, and, as such agent, was required to answer certain questions attached to the application. One of these was : “ Are your answers by the applicant all correct, so far as you can discern?” This implies that it was his duty to write the answers of the applicant; and if he, while acting within the scope of his employment, intentionally or 'negligently wrote a wrong answer or misled the applicant, the company was not in a position to say that the latter should not be permitted to prove the facts., In Eilenberger v. The Protective Mutual Fire Insurance Company, decided at last January term, post, p. 464, it is said none of the authorities on the subject hold “that the fraud or mistake of a knavish or blundering agent, within the scope of the powers given him by the company, will enable the latter to avoid a policy to the injury of the insured who innocently became a party to the contract.” Much that is said in this case in regard to the relative rights and duties of the insurer and the insured are applicable to the present case.

Judgment reversed, and it is ordered that the record be remitted to the court below for a re-hearing before the referee.


author: Per Curiam.

text:
    Appeal of the Fogelsville Loan and Building Association.
    1. The Acts of Assembly providing for the revival of judgments do not require that when a judgment is revived the amount of principal and interest then due should be liquidated; and a default to do so, therefore, does not deprive such revived judgment of its lien.
    2. The judgment of revival points the subsequent purchaser or encumbrancer directly to the original judgment, and a simple calculation ascertains the interest due upon it.
    March 4th 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Woodward, Trunkey and Sterrett, JJ. Paxson, J., absent.
    Appeal from the Court of Common Pleas of Lehigh county: Of January Term 1879, No. 117.
    Appeal of the Fogelsville Loan and Building Association from the decree of the court confirming the award of the auditor in the distribution of the assigned estate of Granville Gernert and wife.
    On October 13th 1876, Gernert and wife made an assignment for the benefit of creditors. The personal property being insufficient to pay the debts, the assignee petitioned the Court of Common Pleas for an order to sell the real estate, discharged of liens, under the provisions of the Act of February 17th 1876, which order was made November 17th 1876. Sales were made in pursuance thereof, and the fund arising therefrom was referred to an auditor for distribution. The fund was claimed by O. A. Gernert on a revived judgment, and by the appellant upon two mortgages. It was contended, on behalf of the appellant, that the judgment of revival was not regular, inasmuch as it did not appear that there was any assessment of damages entered in the agreement to revive or upon the judgment index. The docket entries were as follows:
    No. 19 Continuance Docket Entry,
    April Term 1870.
    •Charles A. Gernert1 And APJd ,1870] a 24g { note is produced dated Apnl 1st
    Granville Gernert, [ d870’ f e™ted hand and ’
    ’ J and seal oí defendant to plaintiff
    for the payment of fifteen hundred dollars, one day after date with interest from date, release of errors, and containing a clause authorizing the entry of judgment,
    Wherefore judgment,
    Jas. Lackey, Deputy Proth’y. April 8th 1875, revived to January Term 1875, No. 695.

      No. 28 Continuance Docket Entry,
    January Term 1875.
    Charles A. Gernert 1 Amicable action to revive and con-695 v. V tinue the lien for the term of five years
    Granville Gernert, J of judgment No. 243, April T. 1870.
    Now April 8th 1875, it is agreed that the above judgment be revived for another term of five years, as per writing filed.
    Ei. fa. to Janizary T. 1877, No. 17. Eor return see No. 16, January T. 1877. Vend. ex. to April T. 1877, No. 162. Refer to No. 159-|, April T. 177. ■
    Judgment Index Entries.
    Gernert, Granville | Charles A. Gernert, j April T. 3 870, 243 | Note | April 13, 1870. $1500.00 | April 1, 1870 | April 8, 1875 revived to January X., 1875, No. 695*
    Gernert, Granville J Charles A. Gernert, j January T., 1875, 695,
    Rev. of April T. 1870, No. 243 — April 8, 1875 | ¡

      In Court of Common Pleas of Lehigh county.

    Charles A. Garnet 1 Amicable action to revive and continue v. Vthe lien for the term of five years of
    Granville Gernert, J judgment No. 243, April T. 1870.
    It is hereby agreed that the prothonotai'y of Lehigh county, enter an amicable action upon the records of the Courts of Common Pleas of the county aforesaid, as of No. 695 of Januai-y Term of 1875, and that a judgment be forthwith entered herein in favor of the plaintiff above named and against the defendant above named. And that the judgment aforesaid, No. 243 of April T. 1870, be revived according to the Act of Assembly, with costs.
    Granville Gernert, [l. s.]
    One of the mortgages of the building association was recorded July 28th 1874, and the other September 30th 1875. There were no liens between the judgment of Gernert and the mortgages of the association. The fund being insufficient- to satisfy both claimants, the auditor awarded it to the judgment. The association excepted, but the court (Meyers, P. J., of the Third Judicial District), dismissed the exception and confirmed the report in an opinion, inter alia, saying: “The object and purpose of the judgment-dockets are simply notice. It would seem that an entry of revival by am. sci. fa. on the judgment-docket is notice to subsequent purchasers and encumbrancers, whether the amount is liquidated and noted on the docket or not.- ' The only inference that legitimately can be drawn from such an entry of revival without the amount stated (so far as third parties are concerned), based on a written agreement of the defendant, that the judgment, referring to the number and term thereof, shall be revived and continued for another period of five years, is that it is a revival for the entire amount with interest. Between the judgment-creditor and debtor himself, no such inference is necessary as the latter would be at liberty to show at any time that’ the amount of the debt had been reduced. But as against third persons who may become purchasers or encumbrancers such inference seems to be plain and reasonable.”
    From the decree of the court the association took this appeal.

      W. 2). Luckenbaeh and Edward Harvey, for appellant.
    In the agreement of April 8th 1875, and its entry upon the continuance and judgment index-dockets there is no mention of any sum whatever, no liquidation of any amount then due, nor intimation of what was the amount of the original judgment of April 11th 1870, nor any sum upon which an estimate can be made or an intimation received of what was, is, or is intended to become due. In other words there is no judgment at all. Only the reference to judgment No. 243, April Term 1870, five years before, and nothing more.
    This is not a compliance with the Acts of March 26th 1827, Purd. Dig. 820, sect. 5; and of March 29th 1827, Id. 822, sect. 18. A subsequent encumbrancer is not bound to inquire or look elsewhere than to the judgment-docket, and is not to be affected by constructive notice unless the entry in the judgment-docket conforms to the requirements of the law: The York Bank’s Appeal, 12 Casey 461; Ridgway,.Budd & Co.’s Appeal, 3 Harris 181; Fulton’s Estate, 1 P. F. Smith 214.

      Evan Holben, for appellee.
    Any purchaser, or lien-creditor, by looking at the judgment-index, can see at a glance all that is required, and no more notice or information of the existence of a judgment is requisite than is given by the entry of revival in this case. The number and term of the original judgment, the full name of plaintiff and defendant, and the number and term of revival are fully given; any person desiring to ascertain the amount of the original judgment, can do so in a moment.
   The judgment of the Supreme Court was entered, March 24th 1879,

Per Curiam.

There is nothing in any of the Acts of Assembly upon the subject of the revival of judgments which requires that when a judgment is revived, the amount of principal and interest then due should be liquidated. A general judgment upon the scire facias to revive that the judgment be revived for another period of five years is all that is prescribed. Such has been the uniform practice. No doubt it may often be advisable where no interest has been paid on the.debt to ascertain the amount. But the judgment of revival points the subsequent purchaser or encumbrancer directly to the original judgment where the amount is fixed, and a simple calculation ascertains the interest due upon it.

Decree affirmed, and appeal dismissed at the costs of the appellants.