text:
    May Term, 1881,
    No. 144.
    May 3d, 1881.
    Stone et al. versus McMullen.
    1. A testator who died in 1793 devised as follows: “ I Give and devise to my Two Sons, Hugh McMullen & George McMullen, the plantation that 1 now live on to be Equally divided between them, to them their Heirs & Assigns forever, Subject to the payment of thirty Shillings Yearly to my daughter Elizabeth during her natural Life, & one-third of the Clear Rent yearly to Mye dearly beloved Wife during her Natural Life. It is also my Will that if Either of my two Sons Hugh or George should die without Legitimate Issue that the Survivor Shall Inherit the Whole of the deceased’s part of the land afsd..... Further it is my will that my said two Sons Shall neither Rent Bargin nor Sell the land afsd nor Enter into Agreements, Indentures or bargins of Importance before they Arive to the Age of twenty-one Years but by the Approbation and Consent of my Executors.” Held, that the words “ if either of my two sons, Hugh or George, should die without legitimate issue,” must be taken to mean an indefinite failure of issue, and that the devisees took an estate tail and not a fee simple.
    2. The words “the survivor shall inherit” do not import a definite failure of issue so as to constitute an exception to the general rule of construction.
    3. Nor does the clause with respect to renting, bargaining, and selling have such effect.
    4. The case of Johnson v. Currin, 10 Barr, 498, is contrary to the general current of authority, both in England and Pennsylvania.
    Error to the Court of Common Pleas of York County.

    Ejectment by George McMullen against Thomas II. Stone and Jacob Wall.
    Case stated between the parties for the opinion of the Court of Common Pleas in the nature of a special verdict with leave to either party to sue out a writ of error.
    Hugh McMullen, of Monaghan township, York County, died in 1798, having made a last will dated November 29 th, 1792, in which he devised, inter alia, as follows:
    “ I Give and devise to my Two Sons Hugh McMullen & George McMullen, the plantation that I now live on to be Equally divided between them, to them their Heirs & Assigns forever, Subject to the payment of thirty Shillings Yearly to my daughter Elizabeth during her natural Life, & one-third of the Clear Rent yearly to Mye dearly beloved Wife during her Natural Life. It is also my Will that if Either of my two Sons Hugh or George should die without Legitimate Issue that the Survivor Shall Inherit the Whole of the deceased's part of the land afs’d. I also Give and bequeath to my said two Sons Hugh or George all my Horses & Mares and all the farming utensils that Shall be in my possession at the time of my decease Together with two-thirds of all the Residue of my personal Estate at the appraisment after their Mother my beloved Wife maketh her Choise of the first third part thereof. Further it is my Will that my said two Sons Shall neither Rent Bargin nor Sell the laud afs’d nor Enter into Agreements, Indentures or bargins of Importance before they Arive to the Age of twenty-one Years but by the Approbation and' Consent of my Executors.”
    After the death of the testator, and after his sons and devisees, Hugh and George McMullen, had become of age, they divided the land devised between them. George McMullen, by deed dated March 31st, 1819, sold his part, containing 92 acres and 142 perches, to George Sealer, who, March 29th, 1828, conveyed it to Jacob Coehlin, Jr. George McMullen died December 10th, 1850, leaving five children, one of whom, Hugh, who died July 21st, 1877, was the father of the plaintiff.
    Hugh McMullen, son of the testator, June 14th, 1828, after the division with his brother, conveyed to the said Jacob Coehlin, Jr., 2.7 acres and 60 perches of his part of the land. Coehlin on the same day conveyed to Hugh McMullen, son of the testator, 37 acres and 30 perches of the land bought from Sealer.
    Hugh McMullen, son of the testator, died March 22d, 1864, having made a last will, in which he devised all his property, real and personal, to his daughters Elizabeth and Mary Ann, who were his only living issue. Mary Ann McMullen died February 24th, 1879, intestate, and without issue. Elizabeth McMullen married David Newcomer, who died November 24th, 1874. Elizabeth Newcomer, widow, by deed dated February 28th, 1879, conveyed to Thomas Stone, one of the defendants, about 100 acres of the land which had belouged to her father, and by deed of same date she conveyed 28 acres and some perches of the said land to Jacob Wall, the other defendant. She died October 27th, 1879, without issue.
    It was admitted that Hugh McMullen, son of the testator, and his brother George McMullen, remained in possession of the said tract until it was divided between them, and each of them afterwards of their respective parts until the sale by George McMullen to Sealer in 1819; that Sealer and his grantee, Coehlin, and those claiming under them, had adverse possession of the 92 acres and 142 perches of land conveyed to Sealer March 31st, 1819, from that date until the bringing of this suit, March 1st, 1880, and used the same as their own property, the land being assessed to them respectively, they paying the taxes assessed thereon, and no person having ever claimed or demanded the same, or any part thereof, or interest therein or thereto until a month or two before suit was brought, and that Hugh McMullen, son of the testator, and those claiming under him, had been in the same quiet and peaceable possession of his part' of said tract of land since the division between him and his brother until the first day of March, 1880. If, under the facts as stated, the plaintiff is entitled to recover any of the land in the possession of the defendants, or any fractional part, judgment to be entered for such part as he may be entitled to recover, otherwise judgment to be entered for the defendants.
    The Court below, Wickbs, J., filed, April 11th, 1881, the following opinion:
    “ George sold and conveyed, during his lifetime, his part of the real estate devised to him by his father, and it is sought to recover in this action not only that portion of the land devised to Hugh, but that also which George sold during his life, and which by various conveyances has also passed into possession of these defendants. But it is the admitted fact of the case that the purchasers from George, and those who hold under them, have been in continued and adverse possession of this part of the land since its conveyance, in 1819, and as the right of action accrued on the death of George, in 1850., it was conceded by the plaintiff’s counsel that no recovery can be had, because of the bar of the statute, of so much of the land as George took under his father’s will. We therefore dismiss this branch of the case.
    “ The important question before us grows out of the construction we are asked to give the clause of the will devising to Hugh and George the real estate in controversy, for it is not pretended that any other obstacle is presented to a recovery by the plaintiff of so much of the land as was devised to Hugh, except to determine the character of the estate taken by him under his father’s will. Without attempting to wade through the great multitude of authorities relating to this subject, but relying confidently upon the correctness of the principles asserted in Eichelberger v. Barnitz, 9 Watts, 447, and Langley v. Heald, 7 W. & S., 96, which Mr. Justice Bell said in Eby v. Eby, 5 Barr, 468, ‘settle the law in Pennsylvania,’ we desire to advert as briefly as possible to those and a few of the subsequent cases, for their name is legion, to ascertain the fundamental principles which underlie this inquiry, and must determine the result. In Eichelberger v. Barnitz the general rule was asserted to be that the words ‘if he die without issue,’ or ‘ on failure of issue,’ or ‘ for want of issue,’ or ‘ without leaving issue,’ then over, following a devise in fee, that the estate of the first taker is a fee tail, because the technical meaning of the words import an indefinite failure of issue, and that while the limitation over would be good as a remainder, it could not stand as an executory devise, because too remote.
    “ But Langley v. Heald furnishes us an illustration of an exception to the general rule laid down in Eichelberger v. Barnitz, which is, that where there are expressions in the will clearly restricting the ‘ dying without issue/ etc., to a failure of issue at the time of the death of the first taker, or to some other time or event which must occur, if at all, within the time allowed for the happening of a contingency on which an executory devise may be limited, there the first devisee takes an estate in fee simple, and the limitation over is void as a contingent remainder, but good by way of executory devise.
    “Such is also the doctrine of Williams v. Coward, 1 Gr., 21; of Lapsley®. Lapsley, 9 Barr, 130; of George®. Morgan, 4 Harris, 107, and a multitude of other cases to which I need scarcely refer.
    “ Indeed, the difficulty does not seem to be with the abstract principles of law, but rather their application to this particular case. It is asserted, in the first place, that the testator meant a failure of issue either at his own death or at that of the first taker, and the word ‘ survivor ’ is said to indicate that intention.
    “ When we remember that the devisees were only twelve and sixteen years of age respectively at the testator’s death, it is difficult to conceive that such a thought could have entered his mind as a failure of issue at that time. I did not, however, understand this view of the case to be seriously pressed. But it was earnestly insisted that the death of the first taker was the period fixed by the testator when the failure of issue was to happen, if at all. There is absolutely nothing on the face of the will to indicate such an intention except the limitation over to the survivor.
    “ The case most relied upon, and which, it was said, nearly resembled the one at bar, was Anderson v. Jackson, 16 John, 382. There the devise was in fee to the two sons, and in a subsequent part of the will the testator directs that ‘ if either of the said sons should depart this life without lawful issue, hi3 share or part shall go to the survivor.’ And this was held to create a defeasible fee in the first taker, with a limitation over by way of executory devise. But it is impossible to rise from a careful consideration of that case without the conviction that it was decided in the face of English authorities, and only because under the New York statute, regulating descents, a current of decision existed, commencing with Fosdick v. Cornell, which could not be disturbed without unsettling the titles to real property. Chancellor Kent delivered a dissenting opinion, in which he reviews the cases at great length, commencing with the earliest reported case, following the statute de donis, and he asserts, as the sum and substance of his elaborate examination and reasoning, ‘ that no point of law was ever more completely established and better fortified by all that is venerable in authority on each side of the Atlantic’ than that the words of the devise mean an indefinite and not a definite failure of issue.
    “ And he further says, that the contrary doctrine was mistakenly, and upon a very imperfect examination of the subject, declared in the Supreme Court in Fosdick v. Cornell, so that the case is rather an authority against the position of the defendant. In Caskey v. Brewer, 17 S. & R., 443, a case involving the same question, Mr. Justice Huston took occasion to say, after affirming the English rule as our own, ‘tfyat New York seems to form, for the last twenty years, an exception.’
    “ The rule that the subsequent limitation over to the survivor or survivors of a class of persons in esse when the will is made, takes effect as an executory devise and not as a remainder limited upon an indefinite failure of issue, has never prevailed in this State, except in bequests of personal property, where the courts lay hold on any word or circumstance in the will, however slight, that may seem to afford a ground for such a construction.
    “ Our cases are full to the point, and they but echo the English authorities on this subject.
    “ In Hope v. Taylor, 1 Burr, 268, there was a disposition of the whole of the testator's real and personal estate to several with a limitation over to the survivors, if either should die without issue lawfully begotten, and it was adjudged to be an estate tail in the real property, and the limitation over of the personal estate void. In Amelia Smith’s Appeal, 11 Harris, 9, there was also a devise of real and personal property to testator’s children in equal shares, with a provision that in case of the death of any of them without issue, his or her share should be equally divided among the survivors. It was held to pass an estate tail in the land to the first taker, wnth vested remainders over in fee, and the absolute title to the personal property ; and in Snyder’s Appeal, 9 W. IS. 0., 213, the latest reported case on this subject, where the authorities are collected and reviewed, the same distinction is taken, and the same doctrine prevails.
    “ These cases serve to illustrate the subtle distinctions taken in support of limitations of personal property, but they serve also to show that the rule does not apply when the devise over is of real estate.
    “ Nor does there seem to he any reason, in the case of real property, -why the survivor should be living at the happening of the event on which the limitation over is made to depend. If the language of the will is such as to create an estate tail in the first taker, and a remainder in fee to the survivor, the remainder would vest immediately on the death of the testator, and pass on the failure of issue to the survivor in his own person, if alive, and if dead, to his heirs, who would be capable of taking at whatever period of time the failure of issue might happen: Wilmot v. Wilmot, 8 Ves., 10; Davidson v. Dallas, 14 Ves., 576 ; Caskey v. Brewer, 17 S. & R., 441; Amelong v. Dorneyer, 16 S. & R., 325 ; Lapsley v. Lapsley, 9 Barr, 130 ; Braden v. Cannon, 1 Grant, 65; Haines v. Witmer, 2 Yeates, 400; 5 Randolph’s Reports, 273 and 308.
    “ I have found but a single instance since Eichelberger v. Barnitz, in our own reports, at variance with the principles declared, and the cases cited to sustain them.
    “ In Johnson v. Currin, 10 Barr, 498, a decision which stands so severely alone in our reports that it serves rather to warn us of the error it contains, than to furnish an authority we may safely follow, the Court gave to the ‘survivor ’ the effect which we are asked to give it here, but it has been doubted, until, as we have said, it is no longer authority: Criley v. Chamberlain, 6 Casey, 165; Curran v. McMeen, 5 P. F. Smith, 490.
    “ I am therefore of the opinion that the word ‘ survivor,’ in a devise of real estate, does not by force of any settled legal construction import a definite failure of issue, or confine the limitation over to a person in esse at the death of the testator.
    “But, it is argued, there is a power of sale contained in this will, and that even admitting the technical words of the devise would otherwise create an estate tail, that such an estate would be wholly inconsistent with'the power conferred.
    “ The language is, ‘ further it is my will that my said two sons shall neither rent bargain or sell the land aforesaid nor enter into agreements indentures or bargains of importance before they arrive to the age of twenty-one years but by the approbation and consent of my executors.’
    “ It is to be observed that this direction of the testator deprived the two minors of no right the law had not already deprived them of. It would, therefore, seem to have been written in ignorance of the legal disabilities already imposed upon them. The clause is not punctuated, and it is not easy to say precisely what, it means. It is not, however, pretended that it confers an absolute power to sell, but it is said to give a conditional power.
    “ It is certain the power was never exercised. It is well settled that although a particular power, if executed, might make a fee in the appointee, yet if not executed the estate limited in default of appointment is vested.
    “Said the late Judge George W. Woodward,in Barnet v. Deturk, 7 Wr., 95: ‘It may be, though this point is not considered, that if no attempt to exercise the authority had been made, .... the provision would have been unimportant-,’ And, said Judge Strong, in Physick’s Appeal, 14 Wr., 136, ‘ if no appointment was made, the will is to be read as if it contained no power of appointment.’
    “In Dodson ¶. Ball, 10 P. F. S., 492, it was held that a power to appoint, if not exercised, will not operate to enlarge a life-estate into a fee. And again, it is said by Tilghman, C. J., in Clark v. Baker, 3 S. & R., 479, ‘this power (viz., a power to sell) is said by the defendants to be inconsistent with an estate tail. Not at all. It is collateral to the estate tail, but not inconsistent. The testator had a rigjit to give an estate tail subject to be defeated by this power'.’
    “I cannot, however, regard the will as giving, even by implication, a power to sell. It seems to have been a mere afterthought of the testator, by which he desired to prevent them from selling at all, or even renting without the approbation of his executors. If, as is contended, he intended to give a fee simple to his sons, certainly we are not at liberty to suppose that he further intended to impose restrictions ' upon the alienation of the property devised, for that he could not do. But if it was his intention, as the words of the devise clearly indicate, to create an estate tail in each of his sons, with cross-remainders in fee, then a doubtful power, never exercised, ought not to be permitted to defeat the clear purpose of the testator. We have not commented upon the words, ‘die without legitimate issue,’ as no question was suggested as to their effect if standing alone: 24 P. F. Smith, 418 ; 6 Norris, 362; 7 Norris, 127.....
    “ Without, however, pursuing this subject further, for the reasons given, we enter, judgment for the plaintiff, . . . for the undivided one-tenth of the land which Hugh McMullen took under the will of his father and died seized of, with costs of suit.”
    The defendants took a writ of error, assigning for error the entering of judgment for the plaintiff, and not entering judgment for the defendants.

      V. K. Keesey and R. L. Muench for plaintiffs in error.
    By “ failure of issue,” testator meant a definite failure at the death of the first taker. He says the survivor, not the survivor, his heirs, etc., thereby meaning that if either Hugh or George should die without child or children, then the survivor, Hugh or George, should inherit the whole: 2 Jar. on Wills, 268, 372 ; Hill v. Hill, 24 P. F. Smith ; Taylor v. Taylor, 13 P. F. Smith, 481. The word inherit clearly means inherit from the testator: Ingersoll’s Appeal, 5 Norris, 240.
    The word that preceding the words, “ the survivor shall inherit the whole, etc.,” can, without violence to testator’s intention, be read then, and the whole will carry out the intention of the testator: Eby v. Eby, 5 Barr, 461 ; Vaughan v. Dicks, 8 H., 514 ; Langley v. Heald, 7 W. & S., 96 ; Caldwell v. Skilton, 1 Harris, 152 ; Fahrney v. Holsinger, 15 P. F. Smith, 349 ; Leightner v. Leightner, 6 Norris, 147 ; Rapp v. Rapp, 6 Barr, 45 ; Johnson v. Currin, 10 Barr, 498.
    In Doe v. Sparrow, 13 East, 359, death without leaving issue, was referred to death in the lifetime of testator. The context aided in the construction as it does here: Caldwell v. Skilton, 1 H., 152 ; Waugh’s Appeal, 28 P. F. Smith, 436.
    The restriction of sale that his two sons shall not bargain or sell the land, manifestly indicates the thought in testator’s mind that this power had been given to them by previous clauses in the will.
    A limitation over by will to survivors or persons in being, after the death of the first taker without issue, raises a strong presumption that a testator did not contemplate an indefinite failure of issue: Deihl v. King, 6 S. & R., 32 ; Eichelberger v. Barnetz, 17 S. & R., 295 ; Johnson v. Currin, 10 Barr, 498 ; Mifflin v. Neal, 6 S. & R., 460 ; Rapp v. Rapp, 6 Barr, 45 ; Anderson v. Jackson, 16 John, 382 ; Moffat v. Strong, 10 John, 16 ; Taylor v. Taylor, 13 P. F. Smith, 483 ; Hill v. Hill, 24 P. F. Smith, 173 ; Ingersoll’s Appeal, 5 Norris, 240.
    In this case we have, in addition, the two persons, Hugh and George named, the word survivor in the singular number, the survivor to inherit the whole of the deceased’s part, a restriction of sale for a period, and the words heirs and assigns forever used in the devising clause omitted after the word survivor.

      W. C. Chapman for defendant in error.
    The devise to Hugh and George, “ their heirs and assigns forever,” would make a fee simple; but the subsequent clause which provides that if either of the two sons “ should die without legitimate issue,” the fee simple is cut down to a fee tail: Smith’s Executory Interest, p. 285 ; Middleswarth’s Administrator v. Blackmore, 24 P. F. Smith, 414 ; Haldeman v. Haldeman, 4 Wr., 29.

      Issue means heirs of the body : Angle v. Brosius, 7 Wr., 187 ; Kleppner v. Laverty, 20 P. F. Smith, 70 ; Taylor v. Taylor, 13 P. F. Smith, 481 ; Clark v. Baker, 3 S. & R., 470.
    As a general rule the language, “ die without leaving any legitimate issue,” means issue indefinitely: Clark v. Baker, supra ; Eichelberger v. Barnitz, 9 W., 447 ; Criley v. Chamberlain, 6 Casey, 161 ; Taylor v. Taylor, supra.

    This construction will give way where there are other expressions on the face of the will, showing that the words were intended to have a different meaning, but these expressions must be clear, unequivocal, and leave no doubt: Guthrie’s Appeal, 1 Wr., 9 ; Physick’s Appeal, 14 Wr., 128.
    The same principles have been applied in James’s claim: 1 D., 47 ; Haines v. Witmer, 2 Yeates, 400 ; Clark v. Baker, 3 S. & R., 470 ; Heffner v. Kneppner, 6 W., 18 ; Gause v. Wiley, 4 S. &. R., 509 ; Rancell v. Cresswell, 6 Casey, 158 ; Braden v. Cannon, 12 Harris, 168 ; Hansell v. Hubbell, idem, 244 ; Potts’s Appeal, 6 Casey, 168 ; Vaughan v. Dickes, 8 Harris, 509 ; Amelia Smith’s Appeal, 11 Harris, 9; Kay v. Scates, 1 Wr., 31 ; Allen v. Markle, 12 Casey, 117 ; Wynn v. Story, 2 Wr., 166 ; Criley v. Chamberlain, 6 Casey, 161 ; Lapsley v. Lapsley, 9 Barr, 130 ; Guthrie’s Appeal, 1 Wr., 14 ; Angle v. Brosius, 7 Wr , 487 ; Matlack v. Roberts, 4 Smith, 148 ; Gast v. Baer, 12 Smith, 35 ; Greenawalt v. Greenawalt, 21 Smith, 483 ; Hope v. Rusha, 7 Norris, 127.
    The. word survivor does not indicate a definite failure of issue: Wilson v. Dyson, Raymond’s Rep., 426 ; Chadock v. Cowly, Cro. Jac., 695 ; Roe v. Scott, 2 Fearne, 287, and the Pennsylvania cases cited, supra.

    Nor is the settled construction at all affected by the subsequent clause of the will. It is argued that it gives an implied power of sale, but that depends on the punctuation. In the original will, there is no punctuation of the sentence at all. Nor would an implied power affect the construction, since in a number of cases express powers to sell were held not to affect the quantum of the estate. The sentence punctuated to get at the true meaning of the testator, reads: “ It is further my will that my said two sons shall neither rent, bargain nor sell the land aforesaid; nor enter into agreement, indentures, or bargains of importance before they arrive to the age of twenty-one years, but by the approbation and consent of my executors.”
   The opinion of the Court was read October 3d, 1881, by

Sterrett, J.

The wall of'Hugh McMullen, the elder, admitted to probate in March, 1793, contains the following provisions, upon the construction of which the present contention hinges, viz.: “ I give and devise to my two sons, Hugh and George McMullen, the plantation that I now live on, to be equally divided between them, to them, their heirs, and assigns forever. Subject to the payment of thirty shillings yearly to my daughter, Elizabeth, during her natural life, and one-third of the clear yearly rent to my beloved wife, during her natural life. It is also my will that if either of mv two sons, Hugh or George, should die without legitimate issue, that the survivor shall inherit the whole of the deceased’s part of the land aforesaid.....Further, it is my will that my said two sons shall neither rent, bargain, nor sell the land aforesaid, nor enter into agreements, indentures, or bargains of importance, before they arrive at the age of twenty-one years, but by the approbation and consent of my executors.” These are the only clauses in the will that can have any bearing on the question presented for our consideration. The testator left six children, of whom Hugh and George, then respectively sixteen and twelve years of age, were the youngest. They took possession of the farm devised to them by their father, and shortly afterwards divided the same between them. Hugh died intestate in ] 856, leaving two daughters, Elizabeth and Mary Ann, to whom he devised his portion of the land. In February, 1879, Mary Ann died intestate and without issue. A few days thereafter, Elizabeth, who had survived her husband, conveyed part of the land to Stone, one of the defendants below, and another part to Wall, the other defendant, and in October of the same year she died without issue. The issue of Hugh thus became extinct. George, the other devisee, died in December, 1850, leaving five children, all of whom have died since, leaving children, of whom the plaintiff below is one. During his lifetime, in 1819, G-eorge sold his part of the real estate, and the plaintiff sought to recover in this action not only that portion of the land devised to Hugh, but also that which George sold during his lifetime, and which by sundry conveyances had, in the meantime, passed to the defendants below. Inasmuch, however, as the purchasers from George and those claiming under them have been in continuous adverse possession since 1819, and as the right of action accrued in 1850, it was properly conceded that there could be no recovery as to that part of the land. ' But the statute of limitations has no application to Hugh’s portion, and the only question that arises in regard to it is: What estate did he take under his father’s will, an estate in fee simple or fee tail? This depends solely on whether the devise over was upon a definite or indefinite failure of issue. If it was the latter, the devisee clearly took only an estate tail, as the Court held, and in that event the judgment is right. In the first clause above quoted from the will, the testator devised his plantation to his two sons, “ their heirs and assigns forever.” Standing alone, the language thus employed would undoubtedly give them a fee simple; but it is well settled that a testator may restrain the generality of a devise by subsequent expressions, and convert that which otherwise would have been a fee simple into an inferior interest; and in this mode, more frequently than in any other, is a particular estate given: Middleswarth’s Administrator v. Blackmore, 24 P. F. Smith, 414. The generality of the devise was so restricted in this case. In its legal signification, the word “issue” very nearly resembles the technical phrase “heirs of the body,” and it is well settled that when real estate is devised by one or more limitations in the same will, to a person and his issue, the word “ issue ” will be construed as a word of limitation, so as to give the ancestor an estate tail, unless there are expressions in the will unequivocally indicative of a contrary intent. Such expressions as “ if he die without issue,” “ on failure of issue,” for want of issue,” “ without leaving issue,” and the like, have frequently been considered ; and, when standing alone in a will, the law defines them and gives them a precise and certain signification. They import an indefinite failure of issue, and thus create an estate tail in the first taker. The technical meaning given to such phrases has long since become a settled rule of property from wdiich it would be unsafe to depart, except in cases that come clearly within a recognized exception to the rule. The following are a few of the many cases in which the subject has been considered: Clark v. Baker, 3 S. & R., 470 ; Eichelberger v. Barnitz, 9 Watts, 447 ; Langley v. Heald, 7 W. & S., 96 ; Eby v. Eby, 5 Barr, 463 ; Angle v. Brosius, 7 Wright, 187 ; Kleppner v. Laverty, 20 P. F. Smith, 70. According to these and other authorities that might be cited, the language employed by the testator, “ if either of my two sons, Hugh or George, should die without legitimate issue,” must be taken to mean an indefinite failure of issue ; from, which it follows that the devisee took an estate tail.

But while the rule of law which thus fixes the meaning of certain forms of expression is, in a certain sense, an unbending one, it is not without some exceptions. It is conceded, as already intimated, that the construction referred to will give way when the will contains other expressions which clearly indicate that the technical words were intended to have a different meaning. The cases, however, show that the intent, not to use the words in their legal sense, must be unequivocal, and so plain that no one can misundei'stand it: Angle v. Brosius, supra ; Guthrie’s Appeal, 1 Wright, 9; Physick’s Appeal, 14 Wright, 128. In an early English case we have an instance in which the legal sense was controlled by plain and unequivocal words. The testator died leaving issue three sons, William, Thomas, and Richard. He devised land to Thomas subject to the payment of twenty pounds to Richard at the age of twenty-one years, and then provided that if Thomas died “ without issue, living William, his brother,” the latter should have the lands in fee. The question was whether Thomas took an estate in fee or fee tail, and it was held that the clause “ without issue, living William,” did not mean an indefinite failure of issue, but a dying, in the lifetime of William, without issue.

It is claimed by the plaintiffs in error that the death of whichever of the two sons might happen to die first was the period fixed by the testator when the failure of issue was to occur, and that this definite failure of issue is indicated by the concluding words of the devising clause, “ the survivor shall inherit,” etc. In support of this view, Anderson v. Jackson, 16 John, 882, -is cited. In that case there was a devise in fee to two sons, with a- subsequent direction that “ if either of the said sous should depart this life without lawfful issue, his share or part should go to the survivor;” and it was held that the words of the devise created a defeasable fee in the first taker, with a limitation over by way of executory devise. But that case is contrary to the general current of authority both in England and here; and the same may be said of Johnson v. Currin, 10 Barr, 498, and other cases that are supposed to recognize the same doctrine. All the cases in which the question has been considered, with very few exceptions, are opposed to giving any such effect to the word “ survivor ” as is claimed for it by the plaintiff in error: Wilson v. Dyson, Raym., 426 ; Chadock v Cowly, Cro. Jac., 495 ; Roe v. Scott et al., 2 Fearne, 287 ; Haines v. Witmer, 2 Yeates, 400 ; Clark v. Baker, 3 S. & R., 470 ; Heffner v. Knepper, 6 Watts, 18 ; Lapsley v. Lapsley, 9 Barr, 130; Smith’s Appeal, 11 Harris, 9 ; Rancel v. Cresswell, 6 Casey, 158 ; Hope v. Rusha, 7 Norris, 127. In one of the English cases, Roe v. Scott et al., supra, the words were “ if either of my three sons shall depart this life without issue of his or their bodies, then the estate or estates of such sons shall go to the survivors or survivor;” and they were held to create an estate tail. The devise in Smith’s Appeal was of real and personal property to the testator’s children, with a provision that in ease of the death of any of them without issue, his or her share should be equally divided among the survivors, and, as to the land, it was held to pass an estate tail to the first taker.

The subsequent clause in regard to renting or selling the land can have no effect on the construction of the will, so far, at least, as the present question is concerned. All the questions arising in the case are so well discussed, and the authorities so fully cited in the opinion of the learned judge of the Common Pleas, that it is unnecessary to add anything to what is there so well said.

Judgment affirmed.


source: Caselaw Access Project

author: Paxson, J.

license: Public Domain

text:
    May Term, 1881,
    No. 186.
    June 17th, 1881.
    Appeal of Philip Miller, Executor of the Last Will and Testament of Eve Achey, dec’d, et al.

    1. Certain officers, directors, and other stockholders of an insurance company subscribed for a quantity of the stock, giving their notes to the company for fifty per cent, of the subscription price, with the understanding that they were not to be called upon to pay these notes, which were given as a loan to enable the company to undergo the inspection by the insurance commissioner, and were to be surrendered to the makers when the emergency was over. The notes were deposited in bank, subject to the order of the board of directors. An official statement was published, including these notes among the assets of the company. A dividend was declared in which this stock participated. Subsequently, in pursuance of a resolution of the board of directors, the certificates for this stock were transferred to the company, and the notes were cancelled and returned to the makers. The company having become embarrassed, and judgments having been obtained against it, went into the hands of a receiver, who filed a bill in equity against these stockholders designated as “note stockholders,” and the other stockholders of the company, who having paid up fifty per cent, of their subscriptions were designated as “ cash stockholders,” to compel such an assessment upon the unpaid instalments of the stock as was necessary to meet the liabilities of the company. Held, that though the transaction was intended for the benefit of the company, and was done in entire good faith, the “note stockholders” were primarily liable until they had paid an amount equal to that paid by the “cash stockholders,” and afterward both classes were liable pro rata.

    2. The transaction was a fraud upon creditors.
    3. The “ note stockholders ” had no such equity as entitled them to throw the burden of the call upon the shoulders of the “ cash stockholders” without the consent of the latter.
    4. While the action of the board of directors in the line of their duty, and to the extent of their power, binds the corporation, the stockholders are not affected with notice of acts of commission or omission which are ultra vires.

    Appear of Philip Miller, executor of the last will and testament of Eve Achey, deceased; J. A. Beeber, George Babb, E. B. Campbell, Thomas Dougherty, Jacob P. Einley, First National Bank of Williamsport, Gottlieb Fulmer, John Gibson, Robert R. Gibson, William H. Gibson, J. Walker Hays, for the firm of Hays & Phillips, Frederick II. Keller, Frederick Mankey, D. R. Mahafley, Philip Miller, Jacob L. Mussina, Joseph W. Mussina, John F. Nice, John W. Richardson, Charles A. Rubright, Aaron G. Shifiler, George Slate, William II. Sloan, B. H. Taylor, B. S. Bentley, assignee of II. E. Taylor, Garrett Tinsman, Daniel Updegraff, William Weaver, William R. Young, Frederick Zimmerman, Mary II. Toner, John E. Jones, Samuel Jones, and Henry ITlman, from the decree of the Court of Common Pleas of Lycoming County, decreeing that certain stockholders, designated as “ cash stockholders,” of the Williamsport Fire Insurance Company, an insolvent corporation, are first liable, upon their subscriptions, to the extent of unpaid instalments due upon their stock, for the payment of the debts and liabilities of the company, before certain other stockholders, designated as “ note stockholders,” are liable for the unpaid subscriptions upon their note stock.
    The Williamsport Fire Insurance Company was incorporated with a capital of $100,000, with the privilege of increasing it to $300,000, by an act of Assembly, approved March 12th, 1869, and, by the terms of the said act, was to be organized and managed, according to the provisions of the act, to provide for the incorporation of insurance companies, approved April 2d, 1856. The book for subscription to stock was opened April 22d, 1869, closed June 11th, 1869, and letters patent were issued to the corporation June 12th, 1869. Twelve directors were elected June 28th, 1869. All of the two thousand shares of stock were originally subscribed for, but some of the subscriptions being upon condition, were, after notice, forfeited by the board of directors. Hpon the 8th of January, 1870, there were thirteen hundred and six shares of stock, upon which the first and second instalments, amounting to $25 per share, had been paid, called “ cash stock,” and six hundred and ninety-four shares which had been finally forfeited. At a meeting of the board of directors, January 10th, 1870, the secretary stated that an insurance commissioner had been appointed, who might at any time call for a statement that would be detrimental to the company in consequence of the non-payment of so many subscriptions, that the company was prosperous and making money, that a large number of risks and policies had been taken, and that unless something was at once done to meet the emergency the company might be compelled to wind up-disastrously. He proposed, therefore, that the directors, should subscribe for the forfeited stock so as to make up the deficiency, and give their notes for it. This was objected. to by the directors present on the ground that they had all the stock they wanted. The secretary replied, and was supported by the vice-president therein, that this was merely a temporary arrangement for the purpose of carrying the company over the emergency, when the notes would be surrendered to the makers; that he thought there would be no difficulty in the meantime in placing the whole amount of the stock so subscribed, and that in any event they would never be called on to pay these notes, as they were merely given as a loan for the benefit of the whole company. At a later meeting it was agreed that the stock should be subscribed for as proposed and the notes given, and that these notes should not be used, but placed in the hands of the president, to be deposited by him in the West Branch Bank for safe •keeping. The following subscription paper was executed:

      “Subscribed to fill deficiency, “ Gottfried Hess, White, Lentz & White, . C. E. Gibson, John B. Hall, Benjamin S. Bentley, Charles Hebard, James H. Perkins, . John White, .... Benjamin W. Thompson, Holden, Lentz & Sallade, John B. Beck, M. Eder, .... Ayres & Lundy, A. Updegraff, Philip Miller, “ Jandaby 1st, 1870. per resolution of the board: . 20 shares, §1000 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 26 “ 1300 . 26 “ 1300 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 52 “ 2600 . 20 “ 1000.”
    This made a total of six hundred and sixty-four shares subscribed for out of the six hundred and ninety-four forfeited shares.
    At the same meeting, “ on motion, it was resolved that the notes in the hands of the treasurer, taken on account of ■stock subscriptions, be given into the custody of John White, president, who shall make a special deposit of them in the West Branch Bank, subject only to the order of the board of directors.”
    Notes amounting in all to $16,100, were given in the following form, mutatis mutandis:

    [stamp.] “Williamsport, Pa., January 1st, 1870.
    “ On demand, I promise to pay to the Williamsport Eire Insurance Company $1800, for value received.
    “ John B. Hall.”

      These subscribers, with some changes caused by transfers, constituted what are designated as the “ note stockholders.” A statement was then prepared by the secretary and treasurer, and published in a daily paper of Williamsport, showing the liabilities and assets of the company, and including among the assets “bills receivable, being loans on stocks collateral, $16,900,” which item was partly made up of the said notes. On the 2d of July, 1870, the board of directors declared a semi-annual dividend upon the whole amount of the capital stock of 7 per cent., to be credited or paid in stock to the stockholders; provided, that in all cases where the company held the obligations of stockholders, interest upon said obligations at the rate of 6 per cent, per annum be deducted from the dividend going to such stockholders.
    At a meeting of the board of directors, May 3d, 1873, it was resolved:
    “ That within ten days the makers of the notes given for stock, and now in the hands of the president of the company, be called upon to pay up said notes, with interest from their date, or at their option to return to the company the certificates of stock issued to them for said notes, with their indorsement of transfer to the company; then their said notes shall be cancelled and returned to them by the treasurer of the company.”
    On motion it was ordered that the notes given for stock be withdrawn from the West Branch Bank, and placed in the hands of the treasurer for compliance with the above action of the board.
    In pursuance of this resolution the notes referred to were withdrawn from the bank and placed in the hands of the treasurer, by whom they were cancelled and returned to the makers between May 3d and June 10th, 1873, on the transfer by them to the company of the certificates of stock supposed to have been issued to them for the notes. It appeared that none of the certificates had actually been taken by the makers of the notes so returned.
    The report of the secretary at the meeting of August 2d, 1873, showed an impairment of the capital stock to the extent of over $22 per share by reason of recent severe losses. On the 30th of August, of the same year, it was determined to write no more policies and assume no more risks. Soon after creditors brought suits against the company, and recovered judgments, and on tie 18th of March, 1878, the Court decreed a dissolution of the corporation and a distribution of its effects, and the same day appointed a receiver. At this time there were assets remaining amounting to $1877.40, and unpaid judgments and bills amounting to $9012.68.
    The receiver filed a bill against both classes of stockholders, asking the Court to make a decree specifying whether the cash stockholders were alone liable for such proportion of the balance of the instalments due upon the stock held by them, as might be necessary to pay off the debts and liabilities of the company, or whether the note stockholders were first liable for $25 per share upon all note stock held by
    them, and asking further that an assessment be decreed.
    Answers were filed and a master appointed.
    The master found the facts to be as above set forth, and that the cash stockholders are first liable upon their subscriptions to the extent of the unpaid instalments due upon their stock for the payment of the debts and liabilities of the company, including the costs and expenses in the case.
    Counsel for certain of the cash stockholders filed exceptions, inter alia-, as to the finding of the master that the cash stockholders were primarily liable in this case to the extent of the unpaid subscriptions.
    The Court below, Cummin, P. J., dismissed the exceptions, confirmed the report of the master, and decreed:
    That the defendants designated in the bill of the plaintiff cash stockholders, were first liable upon their subscriptions to the extent of the unpaid instalments due upon their stock for the payment of the debts and liabilities of the company, including the costs and expenses incurred, together with such further sum as might be necessary to compensate the receiver and his counsel and the master for their services, and in case the unpaid instalments due by the said cash stockholders, or the proportion thereof that the receiver might be able to collect, should prove insufficient to pay the debts and liabilities, with the costs, expenses, and compensation, that then, and in that event, the defendants, designated in said bill note stockholders, were liable to the extent of their unpaid subscriptions upon their note stock for the payment of the balance of the said debts and liabilities, costs, expenses, and compensation then remaining unpaid.
    And it was further ordered, adjudged and decreed that an assessment of 18 per cent, upon the par value of the stock held by them, to wit, the sum of $9 per share, be levied on each and every one of the said cash stockholders, defendants, •except as therein named.
    Certain of the cash stockholders appealed from this decree, assigning as error, inter alia, the refusal of the Court below to sustain the exceptions to the report .of the master, and the making of the above order.

      Samuel Linn, J. A. Beeber, F. P. Guise and H. G. McCormick, for the appellants.
    The learned master and the Court below were undoubtedly right in characterizing the conduct of those of the defendants denominated note stockholders as “ a fraud upon the public,” and that “they are clearly estopped'as to creditors from denying their liability on their subscriptions.” If estopped as creditors, we fail to see upon what principle they are relieved from liability in a proceeding in equity instituted by the receiver as the representative of the creditors, and where the decree prayed for is exclusively for the benefit of the creditors.
    If some of the stockholders have paid for their stock, and others have secured the amount of their stock by stock notes, those who have paid have a right to insist that the receiver shall collect the unpaid stock notes, or so much thereof as is necessary to equalize the losses of all the stockholders ratably : 3 Edw. Ch., 215; Nathan v. Whitlock, 9 Paige, 152 ; Bedford Railway Company v. Bowser, 12 Wr., 29 ; Mann v. Pentz, 2 Sandford Ch., 286; Turnpike Company v. Mc-Conaby, 16 S. & R., 140.
    The allegations of the note stockholders were that they only pretended to subscribe, when they wrote their contract of subscription for the stock absolute on its face, at the request of the secretary, to help the company through an emergency. A party sued for a subscription cannot set up that it was feigned and fraudulent: Graff v. Railroad Company, 7 Casey, 489 ; Caley v. Railroad Company, 80 P. F. Smith, 368 ; Railroad Company v. Bailey, 24 Vermont, 465; Miller v. Railroad Company, 6 Norris, 95; Robinson v. Railroad Company, 8 Casey, 325.
    Nor is it a.ny defence to prove that the subscription was made at the request of the president of the company with the understanding that it was to be cancelled: Gustar v. Gas Company, 13 P. F. Smith, 381; Railroad Company v. Eastman, 34 N. TL, 124; Nippenose Manufacturing Company v. Stadon, 18 P. F. Smith, 259 ; Mann v. Cooke, 20 Conn., 178.
    The note stockholders having held out to the world, creditors, and other stockholders, that their subscriptions were bona fide, are now estopped from denying their liability : 1 Greenleaf, sec. 207; Graff v. Railroad Company, 7 Casey, 497; Bavington v. Railroad Company, 10 Casey, 358; Smith’s Leading Cases, vol. 2, pp. 705, etc.

      R. P. Allen and W. D. Crocker for the receiver.

      H. C. Parsons and W. H. Armstrong for the “ note subscribers,” appellees.

      The whole argument cf the appellants is built upon the assumption that the subscription was absolute, and that the notes were also absolute, and. were the property of the company, and that the surrender of them to the makers was an abstraction of the assets. Nothing can be farther from the truth. The whole arrangement was for a temporary purpose, supposed to be important, and intended for the benefit of the company. All parties disclaim any imputation of fraud in the transaction. Nor can it be shown that the transaction has in any degree injured the company or any stockholder.
   The opinion of the Court was delivered by

Paxson, J.

It is not denied that both classes of stockholders of the Williamsport Eire Insurance Company are liable to creditors of said company. The contention is whether the “cash stockholders,” or the “ note stockholders,” as they are called for convenience, are primarily liable. The company was organized in 1869, with an authorized capital of $100,000, divided into two thousand shares, of $50 each. Of these shares, thirteen hundred and six appear to have been subscribed for, $25 per share paid thereon, and the company commenced business. In the month of January, 1870, the remaining six hundred and ninety-four shares were subscribed for by the officers and directors of the company, who respectively gave their notes for $25 per share. These notes were, by special order of the board, handed to the president of the company, and by him deposited specially in the West Bz’anch Bank, where they remained until some time in 1873, when, in pursuance of a resolution of the boai’d, all of said .notes were returned to the. parties, and the stock retransferred to the company.

At this time the latter had become insolvent. This stock is what has been referred to as the note stock.

The above arrangement was altogether a peculiar one. Its avowed object was to enable the company to undergo an inspection by the insurance commissioner. Its practical effect was to create the impression that the stock was all sold, and 50 per cent, paid up thereon. The notes referred to appear as a part of the assets of the company in its published statemezits. That the transaction was a fraud upon creditors was conceded; indeed, it is too plain a proposition to dignify by an az’gument or the citation of authority. It was contended, however, that it was good between the “nóte stoekholdei’s” and the company ; that, as it was intended for the benefit of the lattez’, and was done in entire good faith, the company cannot questiozi it after having returned the subscribez’s their notes and accepted from them a suzuender of the stock. Conceding all that can be legitimately urged in support of this proposition, it fails to meet the requirements of the case. It is the creditors of the company who are now demanding that the note stockholders shall make good their subscriptions. Have the latter any such equity as entitles them to throw the burden of this call upon the shoulders of the cash stockholders ? It may be if the cash stockholders had assented to the arrangement made by the note stockholders, as between themselves, they might have been bound by it. But no such assent appears upon this record, nor does the master find they had knowledge of it. The facts, from which he impliedly infers such notice, are too weak and inconclusive to affect the cash stockholders. It is true the matter appears upon the minutes of the board, but there is nothing to show that the stockholders ever saw them. This is a matter between the officers and directors and a portion of the stockholders. While the action of the former, in the line of their duty and to the extent of their power, binds the corporation, the stockholders are not aftecled with notice of acts of commission or omission of the board of directors which are ultra vires. This transaction, briefly stated, was an appropriation by the officers and directors of the six hundred and ninety-four shares of stock to themselves. If the company proved successful they would have the benefit of auy advance in the market value of the stock, and could draw the dividends. If, on the other hand, disaster overtook it, they could return the stock, and get back their notes. This is just what was done here.

Whatever may have been the motive, it is too plain for argument that this fast and loose arrangement gave the note stockholders an unfair advantage over the cash stockholders. And we cannot say that it worked no injury. The fact that the stock was apparently all sold may have induced persons to purchase stock in the market who would not otherwise have done so. Then again, the note stockholders participated in the dividend of July, 1870, and by that amount the cash stockholders were injured.

We are of opinion that both classes of stockholders are responsible to the creditors, and that neither has an equity to throw such burden upon the other. The cash stockholders having paid up $25 per share on their stock, the note stockholders are primarily liable until they have, respectively, paid up a like amount; after that, pro rata.

The other questions raised by the assignments of error were not pressed at the argument, and need not be discussed.

The decree is reversed, at the costs of the appellees, and it is ordered that the record be remitted for further proceedings.


author: Sterrett, J.:

text:
    May Term, 1881,
    No. 25.
    June 7th, 1881.
    Levi Conser’s Appeal.
    1. A judgment creditor whose judgment is a lien upon land owned by the debtor, but was obtained subsequent to the sale of other land by the debtor, upon both of which tacts a prior judgment is a lien, is not entitled as against the vendee upon the payment of the prior judgment out of the proceeds of a sheriff's sale of the first mentioned land to be subrogated to the rights of the prior judgment.
    2. Semble that this would be the case though the vendee had agreed to apply the purchase-money to the payment of the prior judgment.
    ,3. There is no privity of contact between the vendee and the subsequent judgment creditor.
    4. The equitable principle that when a creditor has a lien on two funds in the hands of the same debtor, and another creditor has a lien only on one of the funds, the former may be compelled to levy his debt out of the fund to which the latter cannot resort, does not apply except in eases where both funds are in the hands of the common debtor of both creditors.
    5. Ebenhardl’s Appeal, 8 W. & S., 327, followed.
    Appeal of Levi Conser from the decree of the Court of Common Pleas of Clinton County.

    On the 24th of May, 1875, a judgment was entered upon a single bill for $1000 against A. B. Conser in favor of D. E. Heckman.
    On the 30th of June, 1879, Artman, Dillinger & Co., and Smith & Seltzer, presented petitions for a rule upon Levi Conser, to show cause why the petitioners should not be subrogated to the rights of I). E. Heckman in the above judgment. The Court below granted the rule, and from the testimony taken upon it the following facts appeared :
    The above judgment was given as collateral security for the payment of a note drawn by A. B. Conser to tbe order of D. E. Heckman and by him indorsed to J. C. Motz & Co. At the time of the entry of this judgment, A. B. Conser was the owner of two pieces of real estate upon which tbe judgment was a lien. On the 19th of June, 1875, A. B. Conser sold to Levi Conser by articles of agreement one of these pieces of land for tbe consideration of $3400, payable in instalments. By a subsequent agreement, dated June 21st, 1875, it was stipulated between A. B. Conser and Levi Conser that the latter was to apply the instalments of purchase-money as they came due, after the first payment of $400 was made, to the payment of tbe Heckman note, held by J. C. Motz & Co., and after that was paid then to other indebtedness of said A. B. Conser specifically set forth therein.
    On the 21st of December, 1875, John A. Marshall obtained a judgment for $706 against A. B. Conser, which became a lien on the piece of land not sold to Levi Conser. On the 8th of January, 1876, Smith & Seltzer obtained a judgment against A. B. Conser for |211.88, and on the 24th of January, Artman, Dillinger & Co. obtained a judgment against him for $105.02. Both of these last-mentioned judgments were liens on the piece of land not sold to Levi Conser. An execution was issued upon the judgment of John A. Marshall, and the piece of real estate of -the defendant on which that judgment was a lien was levied upon and sold by the sheriff for $890. The auditor in distributing the fund arising from the sale awarded to the judgment of D. K. Heckman, held by J. C. Motz & Co., the unpaid balance of $288.45, to the judgment of John A. Marshall $464.67 in full, and to the judgment of Smith & Seltzer $50.93. The judgment of Artman, Dillinger & Co. received nothing.
    Levi Conser testified as follows:
    “Question. Was the application of the payments as set forth in Exhibit ‘ C’ (the agreement of June 21st, 1875) in any way changed by you and A. B. Conser ?
    “ Answer. It was. At the time I bought the property mentioned in Exhibit ‘B’ there was a judgment on that property in favor of David Schrack, which was not taken into consideration at the time of the purchase of said property ; it was a lien against the property because the consideration of that judgment Dr. Conser should have paid; A. B. Conser moved to Jersey Shore in June, 1875 ; he calculated to get so much money out of Dr. Conser as would satisfy the Schrack judgment; he could not get the judgment of Dr. Conser, and I paid it in 1876 or 1877 to David Schrack, part to him and part to his executors, paid about $260. That deviation was by mutual consent between A. B. Conser and myself. I paid A. B. Conser more than the Schrack judgment. I paid S. B. Snook about $60, paid the last of it last week. There was an understanding that I should pay, or rather I assumed it.....
    “ Q. Is there any balance coming to A. B. Conser of this purchase-money after taking out the payments you have made and those you have agreed in Exhibit C?
    “ A. There is not.”
    Smith & Seltzer and Artman, Dillinger & Co. asked to be subrogated to the rights of D. K. Heckman, in his judgment, to the extent that it was paid out of the sheriff’s sale, upon the ground .that Levi Conser, having obligated himself to pay said judgment out of the purchase money of the piece of real estate sold to him by A. B. Conser, and on which the judgment was a lien when he purchased, is not entitled to have said real estate discharged from the lieu of said judgment by the sale of real estate of A. B. Conser, upon which alone the judgments of the petitioners were liens.

      The Court below made the rule absolute, and subrogated the petitioners to the rights of Heckman to the extent of $288.45. Levi Conser excepted, and assigned this decree as error.

      G. S. McCormick for appellant.
    The entry of the judgments after the conveyance of the land to appellant cannot affect him with record notice of them: Horning’s Appeal,9 Norris, 391.
    Subrogation which works injustice to one who has acquired a right prior to that of the parties who ask to be subrogated, will not be allowed. Unless A. B. Conser has some equity which gives him the right for his own sake to compel payment of the Heckman judgment out of the Levi Conser property, these petitioners have none: Ebenhardt’s Appeal, 8 W. & S., 332 ; Lloyd v. Galbraith, 8 Casey, 108 ; McDevitt v. Hays, 20 P. F. Smith, 376.

      E. P. McCormick and Merrill for appellees.
    Where a creditor has a lien upon two funds belonging to one debtor and another creditor has a subsequent lien upon only one of them, the former is under obligation to exhaust first the fund upon which he has an exclusive lien before he can resort to the other.
    If the paramount creditor resorts to the doubly charged fund or property the junior creditor will be substituted to his rights and will be satisfied out of the other fund to the extent to which his own may have been exhausted: Ramsey’s Appeal, 2 Watts, 228; Delaware & Hudson Canal Company’s Appeal, 2 Wi\, 512.
   The opinion of the Court was delivered, October 3d, 1881, by

Sterrett, J.:

The question is whether the facts in this case were sufficient to justify the Court in making the order of subrogation.

In May, 1875, a judgment was entered against A. B. Conser in favor of D. K. Heckman for $1000, as collateral security for the payment of a note made by the former to the order of the latter, and by him indorsed to the order of J. C. Motz & Co. That judgment became a lien on two parcels of land then owned by the defendant, A. B.' Conser. Within a month thereafter he conveyed one of them to his father, the appellant, for the consideration of $3400, payable in several instalments extending over a period of three years. Shortly after the sale an agreement was entered into between the vendor and vendee, by which the payments were to be applied, first, to tbe note above mentioned, and then to the note held by the Lock Haven National Bank, etc., as therein specified. That agreement was executed on June 21st, 1875, three days after the date of the conveyance from the son to his father. In December following John A. Marshall obtained judgment against the son, A. B. Conser, for §700, and on January 8th and 25th, 1876, Smith and Seltzer, and Artman, Dillinger & Co., the appellees, respectively obtained judgments against him, the former for §211.88, and the latter for $105.02. The three last-mentioned judgments in their order became liens on the remaining piece of land, and, by virtue of an execution issued on the Marshall judgment, the same was sold by the sheriff' for $800, which was distributed as follows, to wit: $288.45,balance in full to the Heckman judgment; $464.67 to the Marshall judgment, debt, interest, and costs; and the residue to the Smith and Seltzer judgment on account, leaving the balance of the lat-t.ér and the whole of the Artman, Dillinger & Co. judgment unsatisfied. These two creditors then petitioned the Court for an order subrogating them respectively to the rights of Heckman in his judgment to the extent that the same was paid out of the proceeds of the sheriff’s sale. In support of the applicationit was urged that it would be inequitable to take'part of the fund, on which alone petitioners had a lien, and apply it to the satisfaction of the balance due on the Heckman judgment, -which Leri Conser, the appellant, had agreed to pay out of .the purchase-money of the lot conveyed to him. On the other hand the application was resisted by appellant on the ground that there was no equity to support the subrogation, and that having paid the whole of the purchase-money of the lot conveyed to him, the lien of the judgment against his lo.t should not be preserved by an order of subrogation. The allegation that the purchase-money was fully paid was disputed; but aside from that.the appellees had no right to enforce the judgment against land which appellant had acquired before they obtained their judgment against his vendor. There was no privity of contract whatever between them and appellant, though there was between him and A. B. Conser. If appellant wms indebted to the latter that indebtedness was the subject of attachment in execution at the suit of A. B. Conser’s creditors. Nor were the appellees in a position to successfully invoke the equitable principle that when a creditor has a lien on two funds in the hands of the same debtor and another creditor has a lien only on one of the funds, the former may be compelled to levy his debt out of the fund to which the latter cannot resort; or, what is tantamount thereto, if the former takes his money out of the fund on which alone the latter has a lien, he may to that extent be subrogated to the rights of the former as against the other fund. This equitable rule does not apply except in cases where both funds are in the hands of the common debtors of both creditors, which is not the case here: Ex parte Kendall, 17 Vez., 520 ; Ebenhardt’s Appeal, 8 W. & S., 327 ; Lloyd v. Galbraith, 8 Casey, 108. In one of these cases the principle applicable to a state of facts similar to the present case is fully discussed. A judgment had been obtained against a debtor who then owned three several tracts of land. He afterwards sold one of them and took a note for part of the purchase-money, coupled with an agreement to pay the same on the judgment. Subsequently other judgments were obtained and became liens on the two remaining tracts, which were then sold on an execution issued on the first judgment, and the proceeds applied to payment of it in full. The junior judgment creditors then obtained an order subrogating them to the rights of the first judgment creditors so far as tp allow them to collect a sum equal to the purchase-money of the tract sold by their debtor, but this Court held, on the principle above stated., that they were not entitled to the order, and it was accordingly reversed : Ebenhardt’s Appeal, supra.

We are of opinion that the appellees did not bring themselves within the equitable rule recognized in the cases above cited.

The order of June 29th, 1880, is reversed and set aside, and the rule to show cause, etc., is discharged.


author: Mercur, J.

text:
    Albert et al. versus Frick.
    1. Plaintiffs may recover upon an entire contract, by showing substantial performance in good faith, notwithstanding there are some unimportant omissions.
    2. More especially is this true where the defendant has received and enjoyed the fruit of the labor performed.
    3. Plaintiffs agreed to furnish a boiler and an upright engine all complete, piping and also one set of ratchet head-blocks, for twenty-one hundred dollars and an old_ engine and boiler. Held, that they might recover for the boiler, engine, and piping, though the head-blocks, worth from eighty to a hundred dollars, had been returned to them as defective, and had not been replaced.
    4. _ It was not error for the Court to charge the jury “ that good faith and fair dealing required that they (the defendants) should have permitted all proper tests of the capacity of the engine, and their refusal to have such test applied is strong evidence that they believed such tests would operate against them,” the fact of such refusal being in dispute, when the facts were left to the jury to determine, and the charge on the whole was clear and correct, and not calculated to mislead.

      Error to the Court of Common Pleas of Northumberland County.

    Assumpsit by George Frick, superintendent; A. H. Stickler, Joseph Price, and John Philips, executive committee; and A. O. Frick, W. II. Snyder, D. Hollinger, Samuel Hoeflich, J. S. Lesher, S. B. Bhinehart, L. W. Wingert, Daniel Hoover, A. H. Strickler, Joseph Price, John Philips, and Daniel Tuttle, members of a company trading and doing business under the firm name of Frick & Co., against Isaac Albert and F. A. Lahr, doing business under the name of Albert & Latir, to recover the price of a steam-engine, etc., sold and delivered. Plea non-assumpsit.
    The defendants in 1874 owned a sáw-mill run by steam-power. On the 27th of March of that year, plaintiffs and defendants entered into a written agreement, by the terms of winch the former agreed as follows :
    “We hereby agree to make for you one return tubular boiler, — sixty-horse boiler, — size as follows: 54" diameter, 16 feet long; dome 30" diameter, 30" high, with eighty W tubes; iron in shell ; heads T7g". All best iron and all long seams double riveted; also smoke chamber and door and smoke pipe connections from boiler to smoke-stack; cast-iron front and grates, safety valves, gauge-cocks, steam-gauge, and glass water-gauge, check valve and blow-off cock, wall bolts for front, all complete ready for setting up, and guarantee all best work and material.
    “ Also one second-hand 14" x 20" upright engine all complete, in first-rate order, with Hunton governor, and one new pump -with heater combined as per photo. Also all piping between engine and boiler and pumps and boiler, and exhaust pipe, all wall bolts, pump and governor belts, all fixtures necessary to complete the job, except masonry, and deliver all the above on cars at Greencastle. We to furnish skilled man to put up the work, you to board him free. Also one set of ratchet head-blocks to fit your mill. All as above described for the sum of twenty-one hundred dollars, and your old engine and boiler with all the fixtures, and delivered on cars at your expense. We guarantee the engine and boiler all to perform satisfactorily, and drive the machinery without strain to engine or boiler, — to be forty-horse power capacity. The boiler to be ready for shipping in four weeks from acceptance of this contract. The engine to be shipped soon as foundation is ready.
    “ Terms as follows: Five hundred dollars on signing this contract ($500). Five hundred dollars when work is up and pei’forms as specified. The balance in two equal payments at three and six months.”

      Upon the trial the following facts appeared: The five hundred dollars were paid and the engine was delivered to the defendants, and started at sawing on the 25th of May, 1874. On the 29th of that month defendants wrote to the plaintiffs that the head blocks were at hand, but that they could not use them; that the figuring was wrong and the levers too short \ that the engine did not work satisfactorily yet, had too little power, and did not run the saw satisfactorily with seventy pounds of steam.
    They returned the head-blocks to the plaintiffs and no others were supplied. These blocks were worth between eighty and a hundred dollars. There was considerable conflict of testimony as to whether or not the engine was of forty-horse power. Plaintiffs’ superintendent sent a postal card to the defendants, June 4th, 1874, saying they would send a man to make the engine and machinery satisfactory. On the 11th of June, 1874, the mill burnt down.
    A. O. Prick, a witness for the plaintiff, testified that he went to look at the engine, and when he got there the mill was burned down and the engine damaged. He was there a while after that again, probably two months afterward; “ the engine was in operation then when I got there. I don’t know who had put it up. They had set it up and started without notifying us, and the engine was not the same in all its parts as when we had furnished it. They had changed the sliding valve. I done nothing with the engine at that time. Albert said if I touched the engine he would kick me off the mill. I proposed to examine the engine and make it all right at the time, and Albert said if I touched the engine he would kick me off the mill. Then I went home.”
    Suit was commenced November 28th, 1874.
    On the 21st of June, 1875, defendants’ attorney wrote to plaintiffs’ attorney “ that the defendants will be ready to stop their mill between the 5th and 10th of July, 1875, to give the plaintiffs the privilege to comply with their contract in the.sale.” In pursuance of the notice plaintiffs sent A. O. Prick and George W. Moore. Frick testified: “ After we tried the engine at the saw-mill, I asked Mr. Albert whether it was satisfactory. No, sir ; he was not satisfied. He had sent to Philadelphia or somewhere, and he had not got the machine as he called it for testing. I told him all right, we would wait until he had that machine there and have it tested. Says I, further than that, if you want it, we’ll get a machine at our own expense and have it tested by a dynometer indicator. No, sir, says he, I won’t have it, we have fooled enough with it. He refused to let me apply that test. In the first place he proposed it, and then when I agreed to it, we would not only allow it to be done, but at our own expense, then he refused to have it done.”
    Moore testified : “ The proposition was to get an indicator dynometer to test it on purpose, and after his proposition was accepted by us to give it the kind of test he wanted, then he refused and wouldn't have it done.”
    Isaac Albert, one of the defendants testified: “In the summer of 1875 Frick and Moore came there to test this engine. What was done toward testing it I don’t know. I didn’t see it done. They said they took out a valve. I didn’t see it. I had to work out in the field. The first time he was there to test it, I told him I wouldn’t have anything done to it until I would see my attorney, then on the next day I told him he should stay off the mill. He got, of course, sassy, and I talked a little sassy. I told him I would just lrick him off the mill. ' He left. Didn’t tell him I shouldn’t have any test, I told him I would see my attorneys first. Then I saw Mr. Packer, and he wrote to them and told them they should come on and test the engine. Then they came — him and this Moore.”
    On cross examination he testified:
    “ Frick didn’t say to me he would have it tested, and prove to me it was a forty-horse power, to my recollection. If he had said so, he would have had a chance to do it. Why didn’t he do it? I didn’t tell him he shouldn’t do itj because he left. They had all the chance to do it. I didn’t say that to Mr. Frick in the presence of Mr. Moore. I am sure of that, because I gave them every chance there. They had all they asked of me. They had the whole mill there for a week.”
    The Court below, Elwell, P. J., charged the j ury, inter alia.

    “ The evidence as to the use of this machine and what it had done before, and what others had done of the same kind, you will take into consideration what it actually did, and any defects in its construction which have been given in evidence. You will take it all into consideration in making up your minds whether it was forty-horse power. If you find it was, and it was put in proper condition to operate, then the plaintiff would be entitled to recover. If you find it was not, and find it was deficient, then another rule would apply, in regard to which I propose to instruct distinctly and definitely. As a general rule, where there is a special contract, which is entire in its character, the plaintiff cannot recover anything without showing the performance of all that was stipulated upon his part to be performed. But there are exceptions to this rule. If a party contract to do work or to furnish machinery or other things to another, acting honestly and with the intention of fulfilling the contract, performs it substantially, but fails in some slight particulars, the person who receives the benefit of what is done cannot hold the property and enjoy the fruits of the labor of ■» the plaintiff without paying a fair compensation according to the contract; receiving, however, credit for what loss or damage he may have sustained by the deviations from the contract. I understand, gentlemen, that that embraces the law applicable to this case. [If you find that these plaintiffs intended to perform their contract, if they did it apparently with the intention of complying with that contract, furnishing everything, although there were defects, although the head-blocks were not such as they should be, if they were sent supposing they were, and the machinery set up and the blocks sent back being part of the machinery, but the balance of the machinery was sot up and used and enjoyed, and is still enjoyed, the fact that a portion of the machinery, the head-blocks, had been returned to the plaintiffs, or that there was a defect in the machinery, would not prevent the plaintiffs from recovering what they ought, under the facts, to recover.] It would not operate in law to prevent their recovering anything, and to give over to the defendants the whole of the property. If the defendants ascertained that the engine was not what was contracted for, they might have rescinded the contract, they might have refused to keep the engine on the ground that it was not according to warranty, and then they might look to the plaintiffs for the damages for not furnishing one according to the contract. But if instead of that they concluded to keep the engine notwithstanding its alleged defects, the plaintiffs may recover, deducting damages for the difference caused by the breach of the warranty. The matters which I have thus charged you upon embrace somewhat my answers to the points which have been presented by the counsel for the respective sides, and in order that I may give their views and my own fully on these subjects, I will read the points and answer them.
    “ The counsel for the plaintiffs request the Court to charge the jury as follows:
    “ First. The refusal of the defendants, for whom the engine was furnished and put up, to permit the persons sent by the plaintiffs to examine and test the engine, for the purpose of ascertaining its actual power and exact condition by the only scientific method known, in order to enable the plaintiffs to testify to the character of the work, is evidence to show that the defendants accepted the engine as completed in a good and workmanlike manner, and as filling the contract.

      [To this point I answer that the refusal of the defendants to permit an examination of the engine is evidence in the case, the effect of which is for the consideration of the jury.
    “ Upon the question of the acceptance of the engine by the defendants, I say to you that good faith and fair dealing required that they should have permitted all proper tests of the capacity of the engine, and their refusal to have such tests applied is strong evidence that they believed sucn tests would operate against them. But it is not conclusive of the fact that the engine was such as the contract called for, nor conclusive of the fact that they accepted it as a compliance with the contract.”]
    “The counsel for the defendants request us to charge you :
    “ First. That the undisputed evidence is that the plaintiffs have not complied with their contract by furnishing all the material and machinery they agreed to furnish in writing, and the contract being an entire one, the plaintiffs cannot recover the contract price until they have shown performance on their part.
    “ [In answering this point we charge you that the plaintiffs cannot recover the whole contract price if they have not fully performed the contract on their part; but if they performed it substantially, furnished the machinery required for the contract, intending to perform it according to the agreement, they may recover, deducting the difference between the value of the machinery as it actually was, and the value of it as it was agreed to be.]
    “ Second. If the Court decline to affirm the first point,, then to charge the jury that if they believe from all the evidence in the cause that the plaintiffs did not furnish or offer to furnish the ratchet head-blocks named in their contract after they had been returned as unsatisfactory, that then the plaintiffs cannot recover in this case, the contract being an entire one.
    “ [I decline to charge you as requested in this point. The. whole contract had relation to the property treated for, which exceeded the sum of $2000. The failure to return the head-blocks after they had been sent back to be repaired or replaced, does not defeat the plaintiffs’ right to recover if the contract was otherwise performed, though defectively ; such failure to return the head-blocks does not prevent the. recovery of the property which the plaintiffs did receive and retain. If the head-blocks were not returned, as a matter of course they came into consideration in the matter of what shall be deducted for damages if not complying with the contract.”]

      Counsel for defendants excepted to the charge.
    November 21st, 1879, verdict for the plaintiffs for $1800, upon which judgment was entered.
    The defendants took a writ of error, assigning for error the portion of the above charge contained within brackets.

      Sol. Malick and S. P. Wolverton for plaintiffs in error.
    The language of the Court in reply to the first point of the plaintiffs was strong and calculated to impress on the minds of the jury that the facts stated were undisputed. There is nothing in the evidence to justify this answer, and the learned judge must, have been misled by a wrong impression of the testimony: Railroad Co. v. Chenewith, 2 P. F. Smith, 382 ; Insurance Co. v. Rosenberger, 3 W. N. C., 16 ; Stall v. Meek, 20 P. F. Smith, 181 ; Gregg Township v. Jamison, 5 P. F. Smith, 468 ; Musselman v. Railroad Co., 2 W. N. C., 105 ; Greber v. Kleckner, 2 Barr, 289 ; Bartley v. Williams, 16 P. F. Smith, 332 ; Riegel v. Wilson, 10 P. F. Smiih, 393 ; Cullum v. Wagstaff, 12 Wr., 300 ; Morrow v. Commonwealth, 12 Wr., 305 ; Wenrich v. Heffner, 2 Wr., 207 ; Gratz v. Beates, 9 Wr., 505.
    The contract was entire, and there could be no recovery without showing full performance. The failure was intentional, as plaintiffs below never offered to furnish the ratchet head-blocks, and made no excuse for not doing it: Shinn v. Bodine, 10 P.F. Smith, 182 ; McClurg v. Price, 9 P. F. Smith, 420 ; Shaw v. Turnpike Co., 2 P. & W., 454 ; Noble v. James, 2 Grant, 278 ; Alexander v. Hoffman, 5 W. & S., 382 ; Harris v. Ligget, 1 W. & S., 301 ; Eckel v. Murphy, 3 H., 488 ; Martin v. Schoenberger, 8 W. & S., 367 ; McManus v. Cassidy, 16 P. F. Smith, 260.

      George W. Welsh and John K. Clement for defendants in error.
    The argument of plaintiffs in error as to the answer of the Court below to the first point of plaintiffs below, is that it is error because not stated hypothetically. In either form it is essentially the same. The answer did not leave the jury under the impression that it was a conceded fact. The facts and their effects were fully left to the jury.
    The evidence discloses a full purpose to perform honest efforts, and actual performance in every particular, unless not returning the head-blocks was a failure. In this the plaintiffs below were hindered by the fire, and by the action ■of defendants below in re-erecting their engine and procuring other blocks without consultation. It was the duty of ■defendants below to have given notice if they did not intend to accept the machinery as an entire performance: Preston v. Finney, 2 W. & S., 53 ; Bridge Co. v. Pomroy, 3 H., 151.
    A contract in form entire, embracing a variety of acta more or less essential to the whole performance, may be so discharged as to sustain an averment of performance, though literal performance cannot be alleged: Chambers v. Jaynes, 4 Barr, 39 ; Wilhelm v. Caul, 2 W. & S., 26.
   The opinion of the Court was delivered by

Mercur, J.

This action was on an entire contract. On such a contract, before a recovery can be had of the consideration-money, the genera] rule is, the plaintiff must prove he has performed or is ready to perform his part of the contract; or that performance thereof was prevented by the defendant: Shaw v. Turnpike Company, 2 P. & W., 454. A substantial performance in good faith, however, is sufficient, notwithstanding some uuimportant omissions, which may be compensated in damages; and more especially is this so, when the other party has received and enjoyed the fruit of the labor performed: Preston v. Finney, 2 W. & S., 53 ; Chambers v. Jaynes, 4 Barr, 39 ; Danville Bridge Company v. Pomroy, 3 Harris, 151 ; Messner v. Lancaster County, 23 Penn. St., 291 ; Snodgrass v. Gavit, 4 Casey, 221 ; Stewart v. McQuaide, 12 Wright, 191.

This machinery in question was placed in the mill of the plaintiffs in error, and put in operative condition. It commenced running on the 25th of May. Some complaint was afterwards made, and communicated to the defendants in error early in June, that the machinery had not the requisite power, and did not work satisfactorily. He promised to send a man with the view of making it satisfactory. Through some cause the skilled machinist did not reach the premises until the 11th of June, and he then ascertained that the mill had previously burned down. ' This necessarily prevented the engine being tested at that time. The mill was rebuilt. The evidence in regard to the power of the engine and the ' working of the machinery was conflicting. There was also some evidence of a refusal by the plaintiffs in error to permit the machinery to be tested by the agent of the manufacturer sent for that purpose after the mill was rebuilt. All these questions, as well as whether there was a substantial performance of the contract, were for the jury, to which they were submitted in a clear and correct charge. We discover no ambiguity or want of perspicuity therein calculated to.mislead the jury. The law was correctly declared. The evidence was not unduly commented upon. We discover no errors covered by the assignments.

Judgment affirmed.


author: Per Curiam:

text:
    May Term, 1881,
    No. 149.
    May 31st, 1881.
    Good versus Calvert.
    1. In a suit against two makers of a promissory note, by the executor of the payee, one of the defendants who has confessed judgment is a competent witness for the other defendant to show that the latter was a surety, was known by the plaintiff to be a surety at the time the note was signed, and that at the maturity of the note, the plaintiff, without the knowledge of the surety, for a good consideration granted the principal further time for payment.
    2. If a surety fails in a defence taken upon grounds entirely personal to himself, he cannot make the principal pay the costs of the contest.
    3. Simpson’s Executors <o. Bovard, 24 P. F. Smith, followed.
    Error to the Court of Common Pleas of Lycoming County.

    Assumpsit by John Good, executor of George Good, deceased, against Thomas L. Harinton and Joseph Calvert, upon a promissory note in the following form:
    “ Williamsport, December 4th, 1872.
    “ Twelve months after date we or either of us promise to pay George Good or order $1100 without defalcation.
    “T. L. Harinton,
    “ Joseph Calvert.”
    On the 13th of May, 1879, after a previous trial, aud the granting of a new trial, the defendant Harinton confessed judgment.
    Upon the trial the jury were sworn to try the issue as to the defendant, Calvert, alone.
    The plaintiff offered in evidence his note and rested.
    The defendant then called T. L. Harinton, and offered to prove by him:
    1st. That Joseph Calvert was surety on the note in suit, and that fact was known to George Good at the time he took the note in suit.
    2d. That the money which constituted the consideration of the note offered in evidence by the plaintiff was obtained some time previous to the giving of the note, and at the time T. L. Harinton obtained the last $1500, which was a part of the consideration of the note; at that time it was agreed that T. L. Harinton should get some one as surety for the money loaned to said T. L. Harinton, but no one was obtained as security for the money loaned until some time after the last $500 was loaned, and that the witness saw the note aud signed it as drawn by George Good before it was signed by Joseph Calvert as surety.
    3d. Defendant proposes to show by the witness on the stand and other witnesses, at the time the note became due, on the 4th of December, 1873, that it was agreed between T. L. Harinton and George Good, that if he would pay the interest on said note in advance, from time to time, as George Good should demand the payment of the same, that the time of payment of said note should be extended for one year from that date, and that said interest as aforesaid was paid according to the terms of the agreement between George Good and T. L. Harinton, which resulted in the extension of the time of payment of the note in suit, George Good said that they would just let it go and say nothing about it to Calvert, the surety on the note.
    4th. That when the note fell due, according to the terms of the extension as specified in paragraph 3d, on the 4th of December, 1874, it was further agreed between George Good and T. L. Harinton that the time of payment of said note should be extended for another year, from the 4th of December, 1874, to the 4th of December, 1875, by said Harinton agreeing to pay George Good the interest in advance, and from time to time in instalments as George Good should call on said Hárinton for its payment; that the said contract was carried out and the interest paid, from time to time, as George Good called on said T. L. Harinton for its payment, the last payment being made on the 17th of July, 1875, and that at that date or when the note fell due, according to the second extension, the said George Good said to Harinton that they would say nothing about this agreement to said Calvert as security ; if they did he would not remain on the note longer.
    5th. Defendant proposes to prove that when the note came due on December 4th, 1873, T. L. Harinton, the maker of the note in suit, was solvent, and the note could have been collected from him, and that he remained solvent and was solvent on the 17th of July, 1875, when the last instalment of interest was paid according to the terms of agreement specified in paragraph 4th, and that the note could have been collected at that date; and that when the note came due on the 4th of December, 1875, according to the terms of extension as agreed upon between Harinton and Good, said T. L. Harinton was insolvent, and that the note could not have been collected from him.
    Counsel for plaintiff objected on the ground, inter alia, that this action being brought by an executor, the witness being a party to the suit as commenced, a joint maker, and George Good, the opposite party and assignor of the thing in controversy dead, the witness is incompetent to testify of matters occurring in the lifetime of the decedent.

      The Court below overruled the objection, and admitted the evidence under exception.
    October 12th, 1880, verdict for the defendant, and subsequently judgment.
    The plaintiff took out a writ of error, assigning as error, inter alia, the ruling of the judge as above set forth.

      Samuel L. Youngman and George W. Youngman for plaintiff’ in error.
    Harinton, the joint promisor and co-defendant of Calvert, the alleged surety in the case, was not a competent witness, both on grounds of interest and policy of law: Simpson’s Executor v. Bovard, 24 P. F. Smith, 360 ; Talmage v. Burlingame, 9 Barr, 21 ; Post v. Avery, 5 W. & S., 509 ; Mevy v. Matthews, 9 Barr, 112 ; Ridgway v. Longaker, 6 Harris, 219 ; Swanzey v. Parker, 14 Wr., 455 ; Wolf v. Finks, 1 Barr, 441 ; Scott v. Lloyd, 12 Peters, 149 ; Schermerhorn v. Schermerhorn, 1 Wendell, 119 ; Parke v. Bird, 3 Barr, 360.
    The proviso of the act of 1869 prevents the operation of that act in actions by or against executors: Karns v. Tanner, 16 P. F. Smith, 297 ; Hanna v. Wray, 27 P. F. Smith, 27 ; Taylor v. Kelly, 30 P. F. Smith, 95 ; Staudbridge v. Catanach, 2 Norris, 368 ; Arthurs v. King, 3 Norris, 525.

      H. T. Ames and Samuel Linn for defendant in error.
    To the general rule that a principal debtor is not a competent witness for a surety in an action against the latter there is a clearly defined exception. When one sets up a defence that the other cannot use or that is personal to himself, the principal is a competent witness: Miller v. Stem, 2 Barr, 286 ; Talmage v. Burlingame, 9 Barr, 21 ; Swanzey v. Parker, 14 Wr., 441 ; Simpson v. Bovard, 24 P. F. Smith, 351.
    The act of April 15th, 1869, did not change the law on this question: Simpson v. Bovard, supra.

   Per Curiam:

It is clear that Harinton was not incompetent on the score of interest. He was no party to the suit on trial. As to him it had been finally ended by his confession of judgment. A verdict for the defendant could not have released him. And though, in general, a verdict against a surety will entitle him to recover besides the debt the costs of suit, it would not be so in the CRse where the surety has taken defence on a ground entirely personal to him. If he had failed in such a defence he could not make the principal pay the costs of his contest: Simpson’s Exrs. v. Bovard, 24 P. F. Smith, 351. The other errors assigned were in effect considered and passed upon when this case was here before.

Judgment affirmed.


author: Per Curiam :

text:
    Commonwealth ex rel. Rohn versus Kryder.
    1. This Court has no jurisdiction to review the decision of a Court of Common Pleas upon a habeas corpus issued by that Court to determine the custody of a child.
    2. No certiorm-i is effectual to bring up anything but the record.
    3. Two associate judges of the Common Pleas may overrule a law judge upon the decision of a habeas corpus. .
    Certiorari to the Common Pleas of Clinton County in the matter of the'Commonwealth of Pennsylvania ex rel. John Rohn against Durell Kryder and Catharine Rohn.
    On the 8thof April, 1880, John Rohn presented a petition' setting forth that Ms daughter, Laura M. Rohn, aged three years and six months, was restrained of her liberty by Durell Kryder and Catharine Rohn; that she was not detained for any criminal or supposed criminal matter, and praying for a writ of habeas corpus.

    The writ was issued the same day.
    On the 9th of April Durell Kryder, one of the respondents, made answer that he had not then, and had not had at any previous time, the control or custody of the child.
    Catharine Rohn, the other respondent, made answer by producing the body of the child in court.
    At the hearing before tbe law judge and two associate judges, it appeared that John Rohn, the relator, and Catharine Rohn, the respondent, were husband and wife, and Laura M. Rohn was their daughter. On the 7th of June, ■1878, articles of agreement were entered into between John Rohn and Catharine Rohn, and Durell Kryder as trustee for Catharine Rohn, by which John and Catharine Rohn agreed to live separate and apart from each other during the remainder of their natural lives, and John agreed to pay for the support of Catharine $1050, and for the support and clothing of Laura M. $3 per week payable quarterly, until she should arrive at the age of three years, March 26th,. 1880, “when the said party of the first part (John Rohn) shall be entitled to the custody and keeping of the said child forever afterwards.” Catharine agreed to relinquish all right to dower. Durell Kryder, the trustee, bound himself for her covenants. On the same day John Rohn paid the $1050. Subsequently he paid the $3 per week for the support of Laura M. until March 26th, i860, after which time he demanded the custody of the child from the respondents, and was refused. He then asked for the writ of habeas corpus.

    The additional law judge, J. II. Oitvis, filed an opinion, ordering “ that the child, Laura M. Rohn, be remanded to the care and custody of the respondent, Catharine Rohn, its mother, until further orders.”
    The associate judges, John W. Smith and Cline Quigley, dissented “from so much of the foregoing opinion as holds that the best interest of the child, Laura M., requires it to be left with the mother, and we therefore order the said child, Laura M„ to.be delivered to the relator, John Rohn, upon the express condition that Catharine Rohn, the mother, shall have the privilege of visiting the said child without molestation at all times she may see proper to do so.”
    The respondents took out a certiorari, and assigned as error that the Court erred in awarding the custody of the child to the relator, and that the associate judges erred in overruling the decision of the law judge. The relator and defendant in error, June 6th, 188L, moved to quash the writ for the reasons that:

      Habeas corpus proceedings are not reviewable by this Court on certiorari; being discretionary they will not be reviewed ; the judges of the Common Pleas having original jurisdiction in habeas corpus with the judges of the Supreme Court, this Court will not review; a certiorari can only lie in eases of this kind as ancillary to a writ of habeas corpus; the adjudication is not final, and the record is not defective or irregular.

      H. T. Harvey for plaintiff in error.
    The writ of habeas corpus and certiorari may be used as ancillary to each other, and when a court has authority to send a certiorari to remove proceedings on a habeas corpus from an inferior court for review, they may go back into the evidence because of their official superiority: Gosline v. Place, 8 Casey, 520 ; Williamson v. Lewis, 3 Wr., 9.
    A certiorari is a writ of error in all but form: Cooke v. Reinhart, 1 Rawle, 317 ; Grubb’s Appeal, 1 Norris, 23 ; Chase v. Miller, 5 Wr., 403.
    Where the associate judges have interfered with the law judge in matters of law it has met with the prompt condemnation of this Court: Oil Co. v. Carothers, 13 P. F. Smith, 379 ; Iron Co. v. Snyder, 3 Norris, 397.

      T. T. Abrams for defendant in error.
    The only way to bring the facts before the Court is by another writ of habeas corpus: Commonwealth v. Keeper, 1 Ashmead, 10.
    On a certiorari the Court will not review the decision on the evidence: Shenango v. Wayne, 34 Penna. State, 184 ; Church Street, 54 Penna. State, 353.
    This Court will not review the discretion of the Court below: North Penna. R. R. Co. v. Davis, 26 Penna. State, 238 ; Duff’s Private Road, 66 Penna State, 459; Fretz’s Appeal, 15 Penna. State, 397 ; Loretto Road, 29 Penna. State, 350 ; Catlin v. Robinson, 2 Watts, 373 ; Renninger v. Thompson, 6 S. & R., 1.
    Where a decision is committed by the law to the discretion of the primary courts, not even the consent of parties can give the Supreme Court jurisdiction : McKee v. Sanford, 1 Casey, 105 ; Rogers v. Whiteley, 2 Wr., 137 ; Commonwealth v. Demott, 64 Penna. State, 307.
    The tenor of all decisions in Pennsylvania is to place the question within the sound legal discretion of the court from which the writ issues, to be exercised with a view mainly to the best interest of the child.
   Per Curiam :

This Court has no jurisdiction to review the decision of a Court of Common Pleas upon a habeas corpus issued by that Court. No certiorari is effectual to bring up anything but the record, and no irregularity or defect of power in the Court below is presented. The associate judges had the undoubted right to overrule the opinion of the president.

Writ of certiorari quashed.