text:
    McIlvain versus The Mutual Assurance Company.
    _1. A mortgagee may release part or the whole of the mortgaged premises without inquiring whether a junior encumbrancer has intervened. It is the duty of the latter, if he intends to claim an equity through the prior encum brance, to give the holder notice, so that he may act with his own understand" ingly; and if he fails to do so, the consequences of his neglect must be visited on himself.
    2. The possession of one lot of a piece of ground for the erection of a building, when the whole piece is covered by a prior mortgage, and the fact that a builder is actually at work constructing said building, are not notice to the holder of said mortgage that the builder has a lien and does not impose on the holder the duty of inquiry as to the existence of the lien, or give the builder an equitable right to insist upon a reduction of the mortgage debt proportionate to the value of another lot or lots released from the mortgage.
    January 28th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trtjnkey, and Sterrett, JJ. Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1878, No. 248.
    Scire facias sur mortgage by the Mutual Assurance Company, assignee of the Pennsylvania Company for Insurance of Lives and Granting Annuities against John Power, owner, and John Palmer, terre-tenant. The pleas were payment with leave, &c., and specially that the amount claimed was not a just proportion of what ought to be levied of the premises. The replication to the first pleas was non solvit and issue, and to the special plea a common traverse. J. G. Mcllvain, assignee for the benefit of creditors of John A. Palmer, was subsequently substituted as defendant.
    The mortgage upon which the scire facias issued, was given on the_15th of July 1874 by Power to the Pennsylvania Company, to secure the sum of $10,000, with interest, &c., upon premises southwest comer of Thirty-ninth and Locust streets, one hundred feet front on Thirty-ninth street, by one hundred-and twenty feet in depth.
    In the spring of 1875, the said Palmer entered into a written contract with Power, to erect a stone dwelling upon the lot thirty feet front on Thirty-ninth street by one hundred and twenty fee in depth. Palmer made inquiry, and found the above-mentioned mortgage of §10,000 upon the lot in the name of the Pennsylvania Company, and was advised by his conveyancer that the mortgage covered the entire one hundred feet front on Thirty-ninth street, and that he was safe. On the 20th of May 1875, Palmer took possession of said thirty feet front on Thirty-ninth street and commenced work under his contract.
    On or about the 10th of November 1875, the Mutual Assurance Company, plaintiffs, sent their representative to examine said premises, who went through the house, which was then in an unfinished condition, only having the rough coat of plaster on, and made his report to said company. The company then agreed to purchase said mortgage and release seventy feet front on said Thirty-ninth street, in two lots of thirty and forty feet respectively.
    The plaintiffs, on the 9th of November 1875, under the above mentioned agreement, took an assignment of said mortgage from the Pennsylvania Company and recorded the same on the 12th of November 1875; and on the same day, released thirty feet front of said large lot by one hundred and twenty feet in depth from the lien of said mortgage.
    Palmer, upon hearing that the Mutual Assurance Company had taken an assignment of said mortgage and released a portion of the mortgaged premises, notified the plaintiffs, in February 1876, of his position and requested them not to release. The fact that such notice was given was denied by the company.
    On the 17th of April 1876, the company, plaintiffs, executed a second release for forty feet front of said lot by one hundred and twenty feet in depth, leaving but thirty feet front of said lot subject to the lien of said mortgage.
    Palmer subsequently filed his lien for building said house as per contract, had the premises sold by the sheriff in July 1876, and for Ms own protection, purchased the property. On the 25th of November 1876, the plaintiffs brought this suit on the mortgage.
    Among the points presented at the trial by the plaintiffs, were the following, all of which the court affirmed:—
    2. That unless Palmer, before the plaintiffs released any portion of the mortgaged premises from the lien of their mortgage, gave them distinct notice of his lien as contractor for the erection of the house at the corner of Thirty-ninth and Locust streets, and cautioned them against such release, he has no defence to this action, and the plaintiffs are entitled to recover the full amount of the mortgage with arrears of interest and collection fee.
    8." That there is no evidence that Palmer gave to tho plaintiffs such notice, prior to their releasing the lot containing thirty feet front on Thirty-ninth street, sold to Walker. If the jury, in weighing the testimony, come to the conclusion that Palmer did, before the release to Power of the forty feet on Thirty-ninth street, dated April 22d 1876, give the plaintiffs notice of his lien and request them not to release, then, in that case, the defendant is entitled to a deduction from the full amount of the mortgage only of the proportionate amount which the said forty feet lot ought to bear of the whole amount of this mortgage ; in other words, the plaintiffs are entitled to recover the full amount of the mortgage debt with interest and collection fees, less the proportionate amount, which the said lot ought to bear.
    4. That the occupation of the lot at the corner of Thirty-ninth and Locust streets by Palmer, as contractor for the erection of the building thereon, and his being employed in such erection, was not such notice as required by law, and the plaintiffs are entitled to recover the full amount of the mortgage with interest and collection fee, notwithstanding such occupation and employment. They did not impose on the plaintiffs the duty of inquiry as to the existence of a lien in favor of Palmer.
    5. That there is no evidence that the plaintiffs, by their action, deprived Palmer of an opportunity to give them further notice than his possession and the erection of a building.
    In the general charge, the court submitted a calculation made by the plaintiffs as to the proportionate amount due, if the jury should find that the plaintiffs had notice not to release the forty foot front lot. This calculation simply deducted the proportionate value to the whole lot of forty feet front on the same from the whole amount of the mortgage debt. And after submitting this calculation, the court charged: “ If you find notice was given, you must find for plaintiffs the amount as per their calculation.”
    The verdict was for the amount as thus ascertained by this calculation, and after judgment thereon, the defendant took this writ and alleged that the court erred in afiirming the plaintiff’s points and in the foregoing portion of the charge.

      Samuel G. Dixon and Edwin S. Dixon, for plaintiff in error.
    Where a mortgagee, with notice of several successive alienations of parts of the mortgaged premises, releases that part primarily liable, he must deduct the value of the part released from the mortgage : Guion v. Knapp, 6 Paige Ch. 35; Hoy v. Bramhall, 19 N. J. Eq. 74, 563: Deuster v. McCamus, 14 Wis. 307; Johnson v. Rice, 8 Me. 157.
    If the mortgagee, with full notice of the equitable rights of the subsequent purchasers or encumbrancers as between themselves, releases a part of the mortgaged premises which in equity is primarily liable for the payment of his debt, he will not be permitted to enforce the lien of his mortgage against other portions of the premises without first deducting the value of that part of the premises which has been released by him: Thomas on Mortgages 135-6; citing Stuvvesant v. Hall, 2 Barb. Ch. 151; Guion v. Knapp, supra,

      Howard Ins. Co. v. Halsey, 4 Sand. 565; affirmed by Sup. Ct., 8 N. Y. 271; Stevens v. Cooper, 1 Johns. Ch. 425; Gibson v. McCormick, 10 Gill & Johns. 65; Morris v. Griffith, 1 Yeates 192; Act of April 2d 1822, 7 Sm. Laws 551; Taylor’s Executors v. Maris, 5 llawle 56; Mevey’s Appeal, 4 Barr 80. The plaintiffs were chargeable with notice, for they examined the building in the course of erection. They could not, therefore, do any act in derogation of the builder’s rights. They had no authority to release any part of the lot on which the building was being constructed : Thomas on Mortgages 138; Trustees of Union College v. Wheeler, 61 N. Y. 88 ; Sailor v. Hertzog, 4 Whart. 266; McCulloch v. Cowher, 5 W. & S. 427; Brightly’s Equity Jurisdiction 115.
    Upon principle and authority the company can only recover the proportion of the said $10,000 mortgage with interest, which the thirty feet front bore to the entire lot or three-tenths of $10,000, with interest and proper allowance for the extra value of the corner lot.

      Peter McCall, for defendant in error.
    It was the duty of the defendant, if he meant to gain an equity, to notify the plaintiffs distinctly of his position, and caution them not to do an act by which his security would be diminished. Distinct notice and caution against releasing are required: Taylor’s Exr’s. v. Maris, supra; Cheesebrough v. Millard, 1 Johns. Ch. 414 ; James v. Brown, 11 Mich. 25.
    The occupation was not under any apparent claim of ownership. It was simply the possession of a builder in the erection of a building and imposed no duty of inquiry on the holder of the mortgage : Ward v. Hague, 25 N. J. Eq. 397.
    The calculation submitted to the jury was correct. It was based upon the principle established by the cases that where the mortgagee, with full notice of the equitable rights of the subsequent encumbrancer, releases a part of the mortgaged premises, and thus deprives the subsequent encumbrancer of his right of contribution from the part released, he cannot recover the whole amount of the mortgage debt, but must deduct the contributory share of it which the junior encumbrancer might have recovered if substituted in the place of the mortgagee, had the release not been given.
   Mr. Justice Sterrett

delivered the opinion of the court, March 1st 1880.

Palmer, the assignor of the plaintiff in error, with actual as well as constructive notice of the mortgage previously given by Power to the Pennsylvania Company, contracted to erect a building on one of the mortgaged lots, and proceeded immediately to fulfil his contract. When the building was up and in process of completion, the mortgage was assigned to the, defendant in error, who three days thereafter recorded the assignment, and released from the lien of the mortgage a lot thirty feet front, adjoining the one on which the new building was erected. This was done without any notice or knowledge of Palmer’s contract or lien thereunder other than what might be inferred from a knowledge of the fact that the work of completing the building was then progressing. It was alleged by Palmer that about three months thereafter on being informed of the release, he gave notice of his lien on the corner lot, and warned the Mutual Assurance Co. not to release any part of the premises. This was denied by the company, but the verdict establishes the fact that the notice was given. Afterwards, in April 1876, the company released another lot, forty, feet front, adjoining the one first released. Palmer completed the building, filed his lien, and under proceedings thereon purchased the property at sheriff’s sale, and as terre-tenant defended against the scire facias in this case.

The principal question is, whether the occupation of the lot by Palmer as contractor for erection of the building, coupled with the fact that he was actually at work completing the same when the mortgage was assigned and the first lot released, was such notice to the company of his lien as gave him an equitable right to insist on a reduction of the mortgage-debt proportionate to the value of the lot so released. The court held that these facts were not notice, and did not impose on the company the duty of inquiring as to the existence of a lien in favor of the contractor. In this there was no error. While such facts would be sufficient to put a purchaser on inquiry, they impose no such duty on a mortgagee. The maxim caveat emptor applies to the former, but not to the latter. The purchaser must satisfy himself that the vendor is seised in his own right of the interest he proposes to convey, for while the legal title may be in him, there may be an equity in another affecting it in his hands. Actual knowledge of its existence is not necessary to charge a purchaser with an outstanding equity. It is enough if he is cognisant of such facts and circumstances, indicating an equity in another, as would prompt a prudent man to inquiry; and if inquiry thus becomes a duty and its performance be neglected, he is properly held to have known such facts as it would have brought to light. But the owner of a mortgage or other real estate security, in assigning or releasing the same, is dealing with his own property, and has a right to do as he pleases, provided he does not violate the maxim, sic wtere tuo ut alieno non Icedas. A mortgagee, for example, may at the request of the mortgagor release part or the whole of the mortgaged premises without inquiring whether a junior encumbrance has intervened. It is the duty of the latter, if he intends to claim an equity through the prior encumbrance, to give the holder notice, so that he may act with his own understandingly; and if he fails to do so the consequences of his neglect must be visited on himself. "While the law makes it the duty of every man to so deal with his own as not to injure another unnecessarily, it imposes on the latter a greater obligation to take care of his own property than it does on a stranger to take care of it for him. To hol'd otherwise, would compel the senior encumbrancer to do for the holder of the junior security what in equity and good conscience he ought to do for himself. The doctrine is one of equity jurisprudence, and not of positive law, and hence to affect the conscience of the former lie should have actual and not merely constructive notice of the equity claimed by the latter: Taylor’s Exr’s v. Maris, 5 Rawle 51; James v. Brown et al., 11 Mich. Rep. 25; Ward’s Exr’s v. Hague, 25 N. J. Eq. 379; and Cheesebrough v. Millard, 1 Johns. Ch. 409. The case first cited decides that the owner of a judgment-lien on lands, a portion of which is covered by a subsequent mortgage, does not, by releasing part of the land, impair his right to be paid out of the remainder, including the portion embraced in the mortgage, unless, prior to the release, the mortgagee has distinctly notified him of his mortgage, and cautioned him against doing any act by which his security might be impaired ; and that the record of the mortgage is not such notice. In that case, Mr. Justice Sergeant said: “It was the duty of the defendant, if she meant to gain an equity, to notify the plaintiff distinctly of her position, and caution him not to do an act by which her security might be diminished.” The same general doctrine is ably maintained in Ward v. Hague, supra, in which it was held that the mere fact of the building being in progress, and so known to the holder of a prior mortgage when he released part of tile promises, was insufficient to entitle the holder of a building-lion to demand a reduction of the mortgage security. The chancellor, in his opinion said : “ Whether the lien claimant in such a case as this would be entitled to the equity hero set up must depend on something more than the mere fact that when the release was made the building was in progress and the releasing creditor know it.” The ground of the equity referred to is so familiar that it is unnecessary to do more than refer to the cases above cited.

It is contended that the company, by releasing the lot contemporaneously with the recording of the assignment, deprived Palmer of the opportunity of giving any other notice than that afforded by the occupancy and unfinished condition of the building. In the absence of actual notice the mortgagee was not bound, as we have seen, to wait and inquire whether there was a junior lien that might be prejudiced by the release. When Palmer contracted to put up the building he had actual as well as constructive notice of the mortgage, and if he intended to affect the mortgagee with an equity in favor of himself it was his duty to notify him not to release. If he had done so the equity thus asserted might perhaps have followed the mortgage in the hands of the assignee.

But, while Palmer acquired no equity by reason of the release of the first lot, the jury has found that it was otherwise as to the second lot; that the assignee of the mortgage had notice of his lien on the corner lot, and was warned not to release to his prejudice. It is contended, in view of the facts so found, that the mortgage-debt should be reduced in the proportion of the value of the forty feet front released to that of the seventy feet then bound by the mortgage, and not to that of the one hundred feet front originally bound thereby ; and that an erroneous basis .of calculation was sanctioned by the court.

The first lot, as we have seen, was released without previous notice of Palmer’s lien. This left the remaining seventy feet front bound by the mortgage, and thus the matter stood when notice •not to release was given by him. So far as the mortgage security was then concerned it was precisely the same, in effect, as if it had been originally taken on the seventy instead of one hundred feet front. The assignee of the mortgage, in disregard of the notice, released forty feet or four-sevenths of the land covered by the mortgage. Assuming the land to be of uniform value per foot front, Palmer acquired an equity to claim a reduction of four-sevenths instead of four-tenths of the mortgage-debt.

There appears to be no error except in the basis of calculation submitted to the jury, and the fifth assignment alone is sustained.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Tholey’s Appeal.
    1. Where the testimony of one of the parties to an alleged contract of marriage shows that there was no contract by words in prcesmti, all other evidence on the subject is of no importance.
    2. An alleged wife testified that decedent had said to her privately, and in the absence of witnesses, •‘ he will claim her as his wife and take care of her and the children.” She admitted, however, both before and after the death of decedent that she had not been married to him. Held, that this was no contract of marriage.
    January 28th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1879, No 162.
    Appeal of Emma Tholey from the decree of the court sustaining the appeal of Mary Geiger from the decision of the register of wills in the matter of the estate of Philip J. Tholey, deceased.
    The decedent died January 7th 1879, and letters of administration were granted by the register two days subsequently unte Mary Geiger, a cousin of decedent. On January 11th 1879, a petition was presented to the register by one Emma Tholey, setting forth that she was the lawful wife of the decedent in his lifetime, and is now his lawful widow, and, as such, entitled by law to administer upon his estate; that letters of administration thereon had been improvidently granted to said Mary Geiger, and therefore prayed that said letters be revoked, and letters of administration granted unto her, the petitioner. After a hearing before the register, the letters granted to said Mary Geiger were revoked, and new letters of administration granted to the alleged widow of the decedent.
    Upon appeal the Orphans’ Court, Hanna, P. J., delivering the opinion, said: “We have carefully examined and considered the testimony taken under the appeal, and from that of the person claiming to be the widow alone, it clearly appears that no marriage contract was ever entered into between herself and the decedent. She admits that no actual marriage ever took place, but rests her claim upon decedent’s declarations made to her privately, and in the absence of witnesses, about three years prior to his death, that ‘ he will claim me as his wife, take care of me and the children.’ The claimant also, before the death of decedent and afterward to a number of witnesses, admitted that she was not his widow, and had never been married to him. That a meretricious relation existed between the parties cannot now be doubted, although it was unknown to the relatives and friends of the decedent, who were under the belief that the claimant was his landlady or housekeeper, and although he at times spoke of and introduced her as his wife, and at other times denied that he was married, and he supported her and her children by a deceased husband, yet in view of the declarations and admissions of the claimant, which were against her interest, and therefore must be taken as true, we can arrive at no other conclusion than that no such marriage as can be recognised by the law existed between decedent and her who now claims as his widow.
    “ The appeal is therefore sustained, the letters of administration granted to said Emma Tholey revoked, and the register is directed to issue new letters to the appellant.”
    From this decree this appeal was taken.

      George W. Wollaston, for appellant.
    The alleged wife is a competent witness to prove the contract of marriage. And it may be shown by the acts, declaration and confession of the parties : Guardians of the Poor v. Nathans, 2 Brewst. 149; Physick’s Estate, 2 Id. 179.

      Herm. B. Van Trouk, for appellee.
   The judgment of the Supreme Court was entered February 24th 1880,

Per Curiam.

In civil cases, reputation and cohabitation are admitted as evidence of an actual marriage, not as constituting themselves a legal marriage. If it were not so, there would be no reason for the recognised distinction between civil and criminal cases. The admissions of the defendant even in a criminal case, are admissible to prove an actual marriage. When, however, we have the testimony of one of the parties as to the terms of the contract, and that shows that there was no contract by words in presentí,, all other evidence on the subject is of no importance. Here the appellant testified, that the decedent had said to her privately, and in the absence of witnesses, “ he will claim me as his wife, take care of me and the children.” This certainly was no contract of marriage. Bicking’s Appeal, 2 Brewst. 202, was a case quite as strong as this of cohabitation, partial report, conduct and admissions of the man, and yet it was not held by this court sufficient to establish a marriage. We are of opinion, that upon the evidence, the decree of the learned court below was right.

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


author: Mr. Justice Trunkey

text:
    Scott versus Porter Brothers.
    A factor who retains money of his principal is not a fiduciary debtor, within the meaning of the Bankrupt Act, and such a debt is discharged under the act.
    January 29th 1880.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1879, No. 14.
    Case by Porter Bros, against William Scott, to recover a sum of money alleged to have been received by the said Scott, for goods sent by the plaintiffs to defendant to be sold on commission.
    The narr., inter alia, alleged : “ And the plaintiffs demanded of the said defendant, the balance of said proceeds, to wit: the sum of $820.77; but the said defendant not regarding his duty as commission agent and consignee aforesaid, but contriving and fraudulently intending, craftily and subtly to deceive, defraud and injure, the said plaintiffs in this behalf, did not and would not pay over to the said plaintiffs the said sum of $820.77, or any part thereof, but refused so to do, and converted the same to his own use, to the damage of the said plaintiffs $5000, and therefore they bring this suit.”

      The defendant, among other pleas, pleaded specially his discharge under the .Bankrupt Act, to which plea the plaintiffs demurred. The court entered judgment on the demurrer for the plaintiffs, when defendant took this writ and assigned this action of the court for error.

      Harry J. Scott and William Henry Peace, for plaintiffs in error.
    A factor is not a fiduciary debtor within the meaning of the Bankrupt Act: Chapman v. Forsyth, 2 How. 202; Hayman v. Pond, 7 Metc. 328. It is true these decisions were under the Act of 1841, but it is contended that the words of the Act of 1867 are still broader.
    The Act of 1841 undoubtedly referred to technical trusts, and the Supreme Court of the United States having defined what a fiduciary character is, Congress in passing the Bankrupt Act of 1867, had the benefit of that judicial interpretation and construction.
    Phrases in a statute which have received a judicial construction before its enactment, are to be understood according to that construction, unless the statute clearly requires a different one: McKee v. McKee, 17 Md. 352; Stockett v. Boid’s Adm’r, 18 Id. 484; Commonwealth v. Hartnett, 3 Gray 450.
    And this principle of interpretation was, in the case of Cronan v. Cotting, 104 Mass. 245, applied to this term “fiduciary.”

      L. C. Cleemann, for defendant in error.
    It would seem that where a commission merchant received the proceeds of goods sold, and when they were demanded of him by the consignor refused to pay them over, and fraudulently converted them to his own use, this would be such a fraud and embezzlement under the act as would prevent the discharge of the claim by bankruptcy. Or if not a debt created by fraud and embezzlement, certainly it is a debt created by the bankrupt while acting in a “ fiduciary character” within the act,- which describes debts contracted by the bankrupt while acting in any fiduciary capacity: In re James W. Seymour, 1 Benedict 352 ; In re John H. Kimball, 2 Id. 558; 6 Blatch. 292 ; Duguid v. Edwards, 50 Barb. 288.
    It has been repeatedly held, that if the factor becomes bankrupt or insolvent, the principal’s right to the proceeds of his property is paramount to that of the general assignee, or assignee in bankruptcy, and he may follow and recover them accordingly : Thompson v. Perkins, 3 Mason 233; Taylor v. Plumer, 3 M. & Selw. 562.
   Mr. Justice Trunkey

delivered the opinion of the court, February 16th 1880.

The first section of the Bankrupt Law of 1841 provided that, all persons “ owing debts which shall not have been created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity,” should be discharged on a compliance with the requisites of the statute. Upon the point, whether a factor, who retains the money of his principal, is a fiduciary debtor within that act, it was thus interpreted: “If the act embrace such a debt, it will be difficult to limit its application. It must include all debts arising from agencies; and indeed all cases where the law implies an obligation from the trust reposed in the debtor. Such ,a construction would have left few debts on which the law could operate. In almost all the commercial transactions of the country, confidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense, a disregard of a trust. But this is not the relation spoken of in the first section of the act. The cases enumerated, ‘ the defalcation of a public officer,’ ‘executor,’ ‘administrator,’ ‘guardian or trustee,’ are not cases of implied but special trusts, and the ‘ other fiduciary capacity’ mentioned, must mean the same class of trusts. The act speaks of technical trusts, and not those which the law implies from the contract. A factor is not, therefore, within the act:" Chapman v. Forsyth, 2 How. 202.

The provision of the Bankrupt Act of 1867 is, that “ no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act.” If the word fiduciary in this act be not construed as it was in the former, it will be as difficult to limit its application as it would have been under the Act of 1841, had it not then been confined to technical trusts. Words and phrases, the meaning of which in a statute has been ascertained, are, when used in a subsequent statute, to be understood in the same sense: Potter’s Dwar. Stat. 274, and cases cited in note; McKee v. McKee, 17 Md. 352; Cronan v. Cotting, 104 Mass. 245. The well-considered opinion in Cronan v. Cotting is persuasive, if not conclusive, that the word is used in the same sense in the Act of 1867, as in the prior statute.' Referring to the reasoning of Judges Blatchford and Nelson of the United States District and Circuit Courts in New York, who decided that the word was used in a different and more extensive sense in the later act, it is said, “ On the contrary, it appears to us that the inference is quite as legitimate that Congress omitted the enumeration of specific trusts for the very reason that the term ‘ fiduciary capacity’ had, by judicial construction, received a fixed definition; and with intent that the phrase should carry that definition into the new act. The specific enumeration was omitted because all were included in the general expression, ‘fiduciary.’ The association of those specific trusts originally was held to be an indication of intent in the general purpose. That intent, having been ascertained, has been affixed to the general term, and become legal construction.”

In Neal v. Clark, 5 Otto 704, the court say, quoting Chapman v. Forsythe, supra, a like process of reasoning may be properly employed in construing the corresponding section of the Act of 1867 ; and conclude “ that the ‘ fraud’ referred to in that section means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, as does embezzlement; and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality.” This accords with the view before taken in Cronan v. Cotting, namely, that if the phrase, “ while acting in any fiduciary character” be referred to that which immediately precedes, it implies something in the nature of defalcation ; and if to the first branch of the section, its association with fraud and embezzlement — fraud involving moral turpitude or intentional wrong, as does embezzlement — carries the implication of a debt arising from breach of a technical trust, and not one which the law implies from the contract. What was said in reference to the interpretation of the word “fraud” may be said of the interpretation of the phrase, “ while acting in any fiduciary character,” by the Supreme Court of Massachusetts, to wit: “ Such a construction of the statute is consonant with equity, and consistent with the object and intention of Congress in enacting a general law by which the honest citizen may be relieved from the burden of hopeless insolvency. A different construction would be inconsistent with the liberal spirit which pervades the entire bankrupt system.”

We repeat the remark in Curtis & Co. v. Waring Brothers & Co., 11 Norris 104, that for reasons given by Wells, J., in Cronan v. Cotting, we conclude, that sect. 5717 Rev. Stat., U. S., was intended to have the same meaning which the Supreme Court of the United States had put upon the similar clause in the Bankrupt Act of 1841.

The declaration sets forth a consignment of goods for sale on commission, that the defendant sold the goods, and after deducting his commissions and other reasonable charges, and a payment to the plaintiffs of $966.20, there remained in his hands a balance of $820.77. And the plaintiffs afterwards demanded the said balance, but the defendant “ contriving and fraudulently intending, craftily and subtly to deceive, defraud and injure the said plaintiffs in this behalf,” refused to pay the same, but converted it to his own use. The form of the charge of fraud is similar as commonly used in a declaration in assumpsit, relates to refusal to pay on demand, and cannot be considered as an averment of fraud in fact, unless a refusal by a factor to pay a balance due on his account be deemed, of itself, positive fraud. It- is unnecessary to determine the effect of a statute of a state declaring certain acts a crime upon a bankrupt’s discharge; for, to warrant a conviction of a consignee or factor, under sect. 1É5 of the Crimes Act of 1860, it must be averred and proved that he disposed of the merchandise “to his own use, in violation of good faith, with intent to defraud the owner of such merchandise;” or, with like fraudulent intent, he applied to his own use the proceeds of such merchandise. An averment to this effect in the declaration, would be of positive fraud, and within the Bankrupt Act. The special cause of demurrer to the plea of discharge as a bankrupt, is, “ that the claim against the defendant of the plaintiffs as in said declaration, set forth, is by law excepted from the operation of a discharge in bankruptcy, having been created by the bankrupt, while acting in a fiduciary character.” The only question is, whether a factor is one acting in a fiduciary character in the intendment of the Bankrupt Law? We think it was error to so hold.

Judgment reversed, and now judgment for the defendant below on demurrer.


author: Mr. Justice Paxson

text:
    Taylor versus Mayer.
    1. The most that can be claimed for the words “ under and subject” in a conveyance of land is, that as between the parties it creates a covenant of indemnity to the grantor on the part of the grantee: Moore’s Appeal, 7 Norris 450 ; Samuel v. Peyton, Id. 465 ; Thomas v. Wiltbank, 6 W. N. C. 477 ; and Merriman w. Moore, 9 Norris 78, followed.
    2. Where the terre-tenant of premises conveyed “ under and subject,” certifies to an assignee of the mortgage, that said terre-tenant is the owner of the mortgaged premises in fee, and has no defence to said mortgage, he is thereby estopped from making a defence to a suit on the mortgage, but does not impose any personal liability upon himself.
    January 29th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Parson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of 'Common Pleas, No. 1, of Philadelphia comity: Of July Term 1878, No. 1.
    Assumpsit by Andrew Mayer against William H. Taylor, to recover $165.64 and interest, being the difference which certain premises realized at a sheriff’s sale of the same under a second mortgage for $500, and the amount of said second mortgage and interest. The ground of the claim was a clause in the deed of conveyance of the said premises by Thomas S. Shoemaker and wife to William H. Taylor, dated December 9th 1875, stating that the said conveyance was made subject to the payment of the said mortgage. The narr. contained the common counts only. In the bill of particulars the claim above stated was set forth. The pleas were non assumpsit, payment and set off, with leave, &c.

      The plaintiff on the trial offered in evidence the mortgage and various assignments of the same, the last being by Lewis Shronk to Andrew Mayer, on May 31st 1876. Also, deed of Shoemaker and wife to Taylor, dated December 9th 1875, for the mortgaged premises. This deed recited that the conveyance was " under and subject” to the mortgage in question.
    The plaintiff also offered a certificate of no set off, signed by William H. Taylor, which set forth that he had notice of the intended assignment to Andrew Mayer, and “ now, therefore, at the request of the said Andrew Mayer, I do hereby certify, acknowledge and declare, that I have no defence, set-off or claim whatever, in law or equity, to make against the said bond or mortgage, so to be assigned as aforesaid, but that the whole of the principal sum thereby secured, with the interest thereof, from the 5th day of February 1876, is justly payable, according to the provisions of the said bond and mortgage, and I do further declare that I am now seised in foe simple of and in the premises described and granted in and by the said indenture of mortgage.”
    Also, the sheriff’s docket, showing the settlement with the sheriff, and the deficiency of $165 claimed.
    The plaintiff’s first point, which the court affirmed, was as follows: “ That if the jury believe that the defendant, Taylor, accepted a conveyance of the premises in question, which expressly stated that it was made under and subject to the mortgage-debt, which was secured by the mortgage in question, and also gave to the plaintiff, Mayer, a certificate in which he declared that he had no defence or set off to make to the bond or mortgage aforesaid, and that he was then seised in fee simple of and in the premises described, and granted in and by the said indenture of mortgage, their verdict must be for the plaintiff.”
    The verdict was for plaintiff, and after judgment the defendant took this writ, and, inter alia, alleged that the court erred in affirming the above point.

      C. H. Gross and T. J. Barger, for plaintiff in error.
    The ruling of the court below is at variance with the recent decisions of this court. This case only differs in the fact that the certificate of no defence was given. If Mayer meant honestly and fairly to ascertain from Taylor whether he had any defence to the personal claim, or this particular defence, why is there not something on the face of the paper to show that the personal claim was in the mind of the parties, just as there is in reference to the claim on the bond and mortgage ?

      B. H. Lowry and A. Mayer, for defendant in error.
    A mortgage is only collateral security; the debt or demand is what an assignee purchases, receiving with it the collateral security also. Judge Hare, in his note to Ryall v. Rowles, 2 Lead. Cas. Eq. 1673, says: “One who is asked to become the purchaser of a demand * * * may apply to the debtor for information, and if the latter states in response to such an inquiry that he has no defence, or that the amount is due, he cannot retract the admission after it has been acted on by the assignee.”
   Mr. Justice Paxson

delivered the opinion of the court, March 1st 1880.

The “ under and subject” question has been fully discussed in recent cases. See Moore’s Appeal, 7 Norris 450; Samuel v Peyton, Id. 465; Thomas v. Wiltbank, 6 W. N. C. 474, 476, 477, and Merriman v. Moore et al., 9 Norris 78. It is sufficient to apply the principles there decided to the facts of this case.

The sixth assignment raises the only questions that need to be considered. The learned judge instructed the jury in his answer to the plaintiff’s first point: “ That if the jury believe that the defendant. Taylor accepted a conveyance of the premises in question which expressly stated that it was made under and subject to the mortgage-debt, which was secured by the mortgage in question, and also gave to the plaintiff Mayer a certificate in which he declared that he had no defence or set-off to make to the bond or mortgage aforesaid, and that he was then seised in fee-simple of and in the premises described, and granted in and by the said indenture of mortgage, their verdict must be for the plaintiff.”

The most that can be claimed for the words “ under and subject” in the conveyance is, that as between the parties it creates a covenant of indemnity to the grantor on the part of the grantee. This is the precise ruling in Merriman v. Moore and the other cases cited. It creates no liability to the mortgagee, and does not authorize a suit in his own name. But it was urged that the certificate of no set-off given by the grantee imposes a personal liability on his part to the mortgagee, and brings the case within that class wherein the mortgagee may sue as upon a promise made for his benefit. We do not so regard it. The certificate of Taylor, the owner of the premises bound by the mortgage,'that he had no defence to said mortgage, falls very far short of imposing a personal liability. The further statement in the certificate that Taylor was seised in fee simple of the mortgaged premises does not help the matter. It was merely saying, I am the owner of the mortgaged premises; I have taken the same under and subject to the mortgage, and I have no defence to make to its payment if you see proper to enforce it. Surely a man so situated may say that as owner of the premises he has no defence to the mortgage without subjecting himself to a personal liability. There is nothing upon the face of the paper to show that any such liability was in the contemplation of the parties. Had there been it should have been expressed in language free from ambiguity.

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


author: Chief Justice Sharswood

text:
    Phillips’s Appeal. Ebbs’s Estate.
    1. The next of kin.of a person is ascertainable at any period which may he named for the vesting of a fund or estate, either during his lifetime or . after his death.
    2. The intention of a deed is as much the governing rule of construction as is that of a will, except that the former still requires formal words of limitation to make an estate of inheritance in conveyances of real estate.
    3. A deed of settlement by E., on the marriage of her daughter F., declared the trust to be for the separate use of F. during her life, then in trust for her children living at the time of her death, and the issue of such as should be deceased, to be conveyed to them as they shall respectively attain twenty-one years of age, “ and in default of such children or issue attaining twenty-one years of age, then in trust for such person or persons as would have been entitled to the said property or securities had E. died possessed thereof, after the death of the said F., without issue her survivingHeld, that the words, 11 attaining twenty-one years of age,” applied to both classes ■ — children living at the death of F., and the issue of deceased children — and when the only child of F., who survived her, died, under twenty-one, the limitation over took effect to the persons who were the next of kin, to E.; Held, further, that there was no violation of the rule against perpetuities, no possibility that the estate could be tied up for a longer period than a life or lives in being and twenty-one years after.
    January 30th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 2, of Philadelphia county : Of January Term 1879, No. 211.
    Case stated for the opinion of the court, in the same manner and to the same effect, as if the facts therein stated were found by the report of an auditor; and thereupon the court shall direct distribution of the assets and securities and money as ought to bo done according to law.
    Elizabeth M. Ebbs, being a widow, with five children, then living, in contemplation of the marriage of her daughter, Florence, executed and delivered a deed, together with the securities therein mentioned, to Richard Cowan and Arthur Ebbs, the trustees therein mentioned, which deed bears date October 7th 1866. The deed is as follows :—
    “ This indenture, made the seventeenth day of October, in the year of our Lord, one thousand eight hundred and sixty-six (1866), between Elizabeth Ebbs, of West Chester, county of Chester, state of Pennsylvania, of the first part, and Richard Cowan, of the city of Pittsburgh, in the state aforesaid, and Arthur Ebbs, of the said borough of West Chester, of the second part: Witnesseth, that the said party of the first part, for and in consideration of natural love and affection to Florence Ebbs, a daughter of the party of the first part, who is about intermarrying with Duncan Clinch Phillips, of the city of Pittsburgh, and of the sum of one dollar paid by the parties of the second part, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, released and confirmed, and by these presents doth grant, bargain, sell, release and confirm unto the said parties of the second part, their executors, administrators and assigns, the sum of fifty thousand dollars; twenty thousand dollars of which is owing and payable by the Connecting Railroad Company, in the county of Philadelphia, and sécured by their bonds for that amount, bearing interest; arid the sum of fifteen thousand dollars is owing and payable by the Junction Raih'oad Company, in the'said county, and secured by their bonds for that amount, bearing interest; and the like sum of fifteen thousand dollars is owing and payable by the Philadelphia & Erie Railroad Company, and secured by their bonds to that amount, bearing interest. All of which bonds are respectively secured by a mortgage on the property of the respective railroad companies. To have and to hold the above-mentioned sum of fifty thousand dollars unto the said parties of the second part, their executors, administrators and assigns for ever, in trust for the sole and separate use of the said Florence Ebbs, and to suffer and permit the said Florence Ebbs to receive the income and annual profit from the said bonds for fifty thousand dollars, or other securities in which the same shall be invested, or, in their discretion, to receive the same and pay over the said income into her proper hands for her sole and separate use during the term of her natural life; and from and after the termination of the said estate of her, the said Florence Ebbs, in trust, to hold the said property and securities in trust for such child or children of her, the said Florence Ebbs, as shall be living at the time of her death, and the issue of such as shall then be deceased bearing issue, such issue taking a parent’s share, to be conveyed to them as they or the survivor, or survivors, of them shall respectively attain twenty-one years of age, in equal shares as tenants in common; and in default of any of such children or issue attaining twenty-one years of age, then in trust for such person or persons as would have been entitled to the said property and securities, had the party of the first part died possessed thereof after the death of the said Florence Ebbs without issue, her surviving.”
    The marriage of Florence Ebbs to Duncan Clinch Phillips immediately followed. Arthur Ebbs, one of said trustees, died in 1873. By deed, duly executed, the Philadelphia Trust, Safe Deposit and Insurance Company was, in 1873, substituted as trustee in the place of the said Richard Cowan, resigned.
    Mrs. Florence Ebbs Phillips died on the 4th day of February 1870. She left surviving her one child, Florence Ebbs Phillips, who died on the 17th day of September 1878, at the age of nine years and upwards. Her father, Duncan Clinch Phillips, survived her, and is still living, and is the next of kin of said child.
    Mrs. Elizabeth M. Ebbs died on the 14th day of August 1878, leaving a will, dated the 2d day of December 1873, disposing of all her estate, and of this will John S. Newbold is the executor.
    If the property mentioned in the account passed by this will, the proper person to receive it is the said executor, in trust for the uses of the will.
    There were three children of Mrs. Elizabeth M. Ebbs, who survived her, viz., two daughters, Alice, intermarried with Joseph B. Dillingham, and Bessie, and a son, Walter, all of full age; and there were no other children, or issue of deceased children, living at her death, other than these three children, and the daughter of Mrs. Phillips, who died September 17th 1878, as above stated.
    The said Elizabeth M. Ebbs also had one other child, named Arthur, who died in the year 1873, of full age, without issue, his widow, Mary, surviving him and still living.
    As to the corpus of the estate, the question is, who of these persons is entitled to the same upon the death of Florence Ebbs Phillips, under the age of twenty one years, intestate, without issue and unmarried ?
    The court made a decree that “the residue of the funds in the hands of the accountants shall be paid or assigned to the three children .of Mrs. Elizabeth M. Ebbs, as her next of kin, and entitled as such under the deed of settlement; that is to say, to Walter Ebbs, Bessie Ebbs and Alice Dillingham, in equal shares.”
    From this decree Phillips took this appeal.

      H. & G. C. Burgwin, for appellant.
    On the death of Florence the elder, an estate in fee was vested in her only surviving child, Florence, and on her death descended, in due course of law, to the appellant, as her next of kin, unless defeated and divested by the contingent limitation over. But the law leans in favor of a regular descent to next of kin (see Rupp v. Eberly, 29 P. F. Smith 141), and in favor of an absolute rather than a defeasible estate: Amelia Smith’s Appeal, 11 Harris 9. Words which create an absolute estate will not, on a doubtful implication from other words, be construed contingent or defeasible: Rewalt v. Ulrich, 11 Harris 388.
    The attaining of twenty-one years is applicable only to the issue of a deceased child of Florence, the mother, and not to the child itself, who might survive her. If her surviving child were required to attain twenty-one years in order to the absolute vesting of the estate, then, had such child married, had issue and died under twenty-one years, such issue would have been wholly disinherited, which could not have been intended.

      The opposite construction violates the law of perpetuity. See our statute against Trusts of Accumulation (18th April 1853, sect. 9; Purd. Dig., p. 1245), restricting them to one life, that of testator or donor, and twenty-one years. And in Hillyard v. Miller, 10 Barr 326, the court, Gibson, C. J., say: “The rules against perpetuities and trusts of accumulation are the same, the mischief being the same.” Piad Mrs. Ebbs survived the child Florence Phillips, the trust till her death would have been one of accumulation, as there would have been no one to take meanwhile. The limitation over was not to take effect till the death of Mrs. Ebbs should determine the ultimate donees; and, as she might have lived till after the death of Florence Ebbs plus twenty-one years, it comes within the decision (Davenport v. Harris, 3 Grant 164), that future estates limited on a life estate and twenty-one years, not sure to take effect within that time, are void. The limitation over was to such persons as would have been entitled had Mrs. Ebbs died possessed thereof after the death of her daughter Florence without surviving issue. This limitation was void for uncertainty as to the persons to take under such deseriptio personarum; and uncertainty of meaning determines the construction in favor of descent by law: Lipman’s Appeal, 6 Casey 184.
    Finally, if it be argued that, in a general way, the intent of the grantor was that on failure of issue of her daughter Florence, the property should revert to those of her own blood, the answer is that this is a deed, not a will, and should be construed most strongly against the grantor; and that the courts will not in a deed, as in a will, force a construction to carry out a supposed but not expressed intention. And, as was said in Morris v. Stephens, 10 Wright 200, a grantor cannot “expect the courts to substitute their certainty .for his uncertainty.”

      R. C. McMurtrie, for appellees.
    The fact that the limitation failed to provide for the issue of a deoeased child of Florence the younger, who might die under age, does not invalidate the limitation. The omission to provide for such issue was possibly a blunder of the conveyancer, and such a reason has never been allowed to control even a will, much less a deed: 1 Jarman on Wills 744; Martin v. Glover, 1 Collyer 272.
    The limitation is not to Mrs. Ebbs’s next of kin, but to the persons who would be next of kin on the hypothesis of Mrs. Ebbs being then dead, and having survived Mrs. Phillips and all her posterity. How is it possible to assert that a limitation to take effect at furthest on the death of a grantee in a deed, is a perpetuity ? The argument seems to rest on the possibility (upon the assumption that Mrs. Ebbs’s actual death is the period for vesting), that there may be an interval between the contingency happening and that event, and that the statute relating to accumulations prohibits this. It prohibits accumulation, but does not affect a limitation.
    If the limitation over is either to Mrs. Ebbs, or to Mrs. Ebbs’s executors, or to her legatees, or to her next of kin, it is quite sufficient for the purpose of this case, as the applicant is not entitled under any construction or in either category. The property is in a trustee, and the court cannot give it to one who under no possible circumstances is entitled because of an uncertainty whether A., B. or C. may be the proper persons. Florence Ebbs Phillips was to be entitled to a conveyance only on attaining twenty-ono. As she died at the age of ten, it is difficult to see how her administrator can be entitled. It is for the persons who may thus be entitled either to litigate, or combine and settle the difficulty among themselves ; and this record shows they have done so by consenting to the decree that has been made.
   Chief Justice Sharswood

delivered the opinion of the court, February 24th 1880.

The question in this cause depends upon the construction of the deed of October 17th 1866, which was a settlement by Mrs. Elizabeth Ebbs on the marriage of her daughter Florence with the appellant. It declares the trust to be for the separate use of Florence during her life, then in trust for her children living at the time of her death, and the issue of such as should be deceased to be conveyed to them as they shall respectively attain twenty-one years of age. The provision which follows has given rise to this controversy : “ And in default of such children or issue attaining twenty-one years of age, then in trust for such person or persons as would have been entitled to the said property or securities had the party of the first part (the said Elizabeth Ebbs, the grantor) died possessed thereof after the death of the said Florence Ebbs without issue her surviving.” There is no uncertainty as is contended in this limitation over. It was not necessary to wait for the death of Mrs. Ebbs to ascertain who would be her next of kin, or who would have been entitled had she died possessed thereof after the death of Florence, without issue her surviving. It is not like a limitation of real estate to the heirs of a person living, where tlie rule nemo est hceres viventis might create a difficulty. The next of kin of a person is ascertainable at any period which may be named for the vesting of a fund or estate. The words “ attaining twenty-one years of age” apply to both classes — children living at the death of Florence and the issue of deceased children. When, therefore, the only child of Florence who survived her died under twenty-one, the limitation over took effect to the persons who were then the next of kin of Mrs. Ebbs. There was no violation of the rule against perpetuities, no possibility that the estate could have been tied up for a longer period than a life or lives in being and twenty-one years after. When tbe deed was executed Florence of course was in full life, and the ultimate limitation could not reach beyond twenty-one years after her death. At that period the absolute estate must vest in the persons at that time the next of kin of Mrs. Ebbs, whether she was then living or dead. The intention is very plain that Mrs. Ebbs did not mean this fund to pass to any who were not of her blood. There was nothing in the provision of the deed which was contrary to law. The intention of a deed is as much the governing rule of construction as in a will, except that the former still requires formal words of limitation to make an estate of inheritance in conveyances of real estate.

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


author: Mr. Justice Gordon

text:
    Barclay’s Appeal.
    1. It is well settled in the equity practice of Pennsylvania that a court cannot by bill bring before it parties having adverse claims to land, and between whom there are no relations of trust or contract, and settle their several titles by decree.
    2. While this might be a convenient and speedy method to settle title the Statute of Limitations interposes, and a claimant cannot be compelled to assert his right or test his claim within a time less than the statutory period.
    3. A bill in equity alleged that the complainant owned premises adjoining those of defendant, and that the latter permitted certain machinery to remain upon complainant’s premises, and when notified to remove the same claimed the right to have the machinery, there, and that complainant was apprehensive that he would be involved in litigation, and, therefore, prayed for a decree for the removal of the machinery. Held, that a court of equity had no jurisdiction.
    January 30th 1880.
    Before Sharswogd, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 126. In Equity.
    Bill in equity filed by Conrad S. Grove against A. Charles Barclay and John K. Barclay.
    Tbe bill in substance avers that defendant A. Charles Barclay and wife, by deed of June 20th 1873, conveyed to plaintiff property No. 136 North Delaware avenue, running through to Water street, and being No. 129 Water street; that at the time of that conveyance there was and still remained in said building a large quantity of heavy and other machinery, belonging to defendants, or one of them; that on December 17th 1873, plaintiff notified defendants to remove the machinery by December 29th, or he would sell it at public sale; that on December 19th 1873, in answer thereto, he received a letter from the attorney for defendant John K. Barclay, alleging that he, plaintiff, knew of certain complications, not therein stated, between the two defendants, and threatening to hold him responsible for John K. Barclay’s interest in the real estate and machinery; that plaintiff is a bona fide purchaser; that said John K. Barclay had. no legal nor equitable title to the real estate; that complainant had reason to fear, from the tenor of the letter, that he might at some future time become involved in litigation in respect to the same, when witnesses should have died; that the defendants continue to permit the machinery to remain on the plaintiff’s premises; that the machinery is very cumbersome and requires spacious room for storage ; that the plaintiff has no certain knowledge of the respective interests of the defendants in the machinery, and it is unjust that it should cumber his property, or that he should be put to the trouble and expense of an action for damages for removing it, and the removal and storage would be expensive; and that by reason of there not being a contract respecting the time the machinery should remain or as to compensation for storage, plaintiff has no adequate remedy at law. The bill prays 1. That defendant John K. Barclay may be decreed to make all his claim against the plaintiff as to the realty in this suit. 2. That it may be decreed that plaintiff has a good and valid title. 3. That defendants shall remove the machinery, and in default thereof, that it may be sold. 4. Reasonable compensation for storage. 5. General relief.
    An “ amendment by way of addition to original hill” was filed. It was in the nature of a bill of revivor, and set forth the proceedings in the cause to that time, averring that the plaintiff died intestate, on September 28th 1874, and substituting as plaintiffs both his administrator and also his heirs at law.
    The defendant A. Charles Barclay allowed the bill to be taken pro confesso.

    Defendant John K. Barclay filed a demurrer and answer, by which he (1) demurred for want of equity in the bill, and (2) not waving the demurrer, admitting the most of the material allegations of fact in the bill, except that plaintiff is a bona fide purchaser, and that defendant was in any respect in default, avers that he is the owner of store 127 North Water street (adjoining the plaintiff’s), containing a large quantity of costly machinery connected with that in No. 129, and dependent on it for its motive power; that the machinery in the two stores was erected while they were both owned by Andrew C. Barclay, father of the two defendants, who at the same time sold No. 129 to A. Charles, and 127 to John K., and the machinery in 129 to the two jointly, for which they gave their joint bond for $1.6,000 ; that a suit in equity had been brought by A. Charles against John K., and was then pending before a master, which would determine the ownership, &c., of the machinery; that Conrad S. Grove, the original plaintiff, was one of the witnesses for A. Charles before his purchase, and bought with full notice and knowledge of the complications, and his rights are no greater than those of A. Charles ; that this suit is brought in the interest of A. Charles, and to embarrass that suit; that defendant has repeatedly offered to buy or sell at prime cost, and now offers to sell, if he has any ownership; and that No. 129 is a complete linseed-oil mill, machinery, smokestack, &c., being very expensive, and the machinery in No. 127 can only be used as an adjunct thereto.
    The master, Simon Gratz, Esq., reported the facts and the following decree, which was adopted by the court:
    1. That the plaintiff, Conrad S. Grove, was a bona fide purchaser for value, of the real estate and premises No. 129 North Water street, described in his (said plaintiff’s) bill, without notice of the existence of any easement, license, or state of facts, by or under which the defendants, John K. Barclay and A. Charles Barclay, or either of them, or any owner of the premises No. 127 North Water street, might or could claim any right or interest in said premises No. 129 North Water street; and that said premises No. 129 North Water street are not subject to any such easement or license.
    2. That the defendants have not, nor has either of them, any right, title or interest, in or to the said real estate and premises No. 129 North Water street.
    3. That the defendants shall, within days from the date of this decree, remove, or cause to be removed, from said premises No. 129 North Water street, the following named items of machinery, now therein, belonging to said defendants, or one of them, viz.: the engine, fly-wheel, boilers, shafting, oil-pipes, heaters, tubes, crushers, presses, iron tanks, rolls and pulleys, hoisting apparatus connected with the elevator, in No. 127 North Water street, and pumps. And that, failing to remove, or to cause the removal of, said items of machinery within said time, the plaintiffs may cause the same to be sold at public auction, and the proceeds of such sale, after deducting all charges and expenses incident thereto, shall be paid over to the defendants, or either of them.
    4. That the defendants shall pay to the plaintiffs, as compensation for the use of said premises for the storage of said machinery the sum of $5666.75. 5. That the said John K. Barclay shall pay the costs of the proceedings.
    The latter then took this appeal alleging that the court erred in making this decree.

      J. Howard Gendell, for appellant.
    There is no valid reason for transferring the jurisdiction over this controversy from a court

      of law to a court of equity. The rights claimed on both sides are purely legal in their nature, and ought to he determined by a court of law. One of the prayers of the bill is for compensation for the use of the plaintiff’s premises by the defendants by the storage of their machinery, &c., therein, and under this prayer a decree has been made for the payment of $5666.75. It seems sufficiently obvious that a hill cannot be maintained for a mere money demand for storage. Equity jurisdiction in this state depends upon express statute: Dohnert’s Appeal, 14 P. F. Smith 311. ’The complainant has shown no statutory authority for this bill. The sole reason of the jurisdiction invoked, is that the plaintiff being in possession, or not entitled to the present possession, has no legal right of action at all; hut cessante ratione c&ssat et ipsa lex. On what theory are the plaintiffs entitled to damages ? Simply that the Barclays, having no right whatever justifying them, persist in leaving machinery, &c., on Grove’s property. A suit at law for these damages will, therefore, directly raise all the questions in dispute.

      John G. Johnson and George W. Thorn, for appellees.
    By the Act of 16th June 1836, Bright. Purd. 591, pi. 5, equitable jurisdiction is extended to “the prevention or restraint of the commission or continuance of acts contrary to law, prejudicial to the interests of the community, or the rights of individuals.” By the same act, Id., pi. 6, it is also extended to “ the affording specific relief when the recovery in damages would be an inadequate remedy.” The continued retention of this machinery in the premises of the appellee was prejudicial to his rights, and specific relief was needed because a recovery in damages was inadequate. The appellant objects to the right of the court to award compensation for the damages to which he subjected the complainant by continuing to maintain his machinery in the premises until the date of the decree. This retention was a permanent, continuing use and occupation of the plaintiff’s premises, which entitled him to relief in equity. The jurisdiction thus obtained, it was competent for the court to administer relief for the damages occasioned by the act complained against: Allison’s Appeal, 27 P. F. Smith 227; Mason’s Appeal, 20 Id. 26; Fessler’s Appeal, 25 Id. 502.
   Mr. Justice Gordon

delivered the opinion of the court, March 1st 1880.

We cannot understand upon what theory, or principle of equity, the learned judge of the court below entertained the bill which we now have before us. Conrad S. Grove, the appellee, purchased lot No. 129 from A. Charles Barclay; the title, for aught that appears to the contrary, seems to he perfectly good, and if it were not so, a decree by a court in equity would not help it. If there is anything certain in the equity practice of Pennsylvania, it is, that a court cannot by bill bring before it parties having adverse claims to land, and between whom there are no relations of trust or contract, and settle their several titles by decree. The bill leaves us in ignorance as to the nature and character of John K. Barclay’s claim, but no matter, it was a claim to or in the realty, if anything, and whether it should assume the form of an easement, or a right in the fee, was of no consequence, as in either case the claim was of an adverse legal right determinable at law and not in equity: North Pennsylvania Coal Co. v. Snowden, 6 Wright 488; Long’s Appeal, 11 Norris 171. If it be said that Grove was in possession, and, therefore, could not bring ejectment in order to test the appellant’s claim, it may be answered, the goods of the partnership were upon the premises before his entry, and if either of the partners- .claimed to have them there of right, there was nothing to prevent the appellee from testing that right by ejectment. But more than this; we know of no power in equity, or elsewhere, by which the owner of an adverse title can be called into court, by the party in possession, to assert and defend that title, on penalty of forfeiture should he refuse so to do. This might be a very convenient and speedy method of settling title, and much might be said in its favor; but as the statute interposes and allows such claimant twenty-one years within which to prosecute his claim, we do not see how he can be compelled to assert his right, or test his claim, within a time less than this statutory period. Of course, a different rule prevails in cases of trust, for there a chancellor has full jurisdiction over the parties, and may compel a trustee not only to surrender a deed to his cestui que trust, but also to execute, if needs be, such an instrument, or he may be restrained from selling the trust property, or from doing anything prejudicial to the estate committed to his charge. In such case the court has the most ample power to settle title, and all things else, for the preservation of the trust estate: O’Neil v. Hamilton, 8 Wright 18. But John K. Barclay was not a trustee for Conrad S. Grove; whatever right he claimed was independent and adverse, hence equity had jurisdiction neither of the persons nor rights of the parties. This part, then, of the plaintiff’s bill fails, and must be dismissed from further consideration. Then, there is the further complaint, that his property was cumbered by the machinery of the defunct firm of Barclay & Barclay. But as to this, what right could a court of equity help the plaintiff to that he did not already possess ? This firm of Barclay & Barclay was the successor of Boyer & Barclay, which latter named firm held under a lease for five years from Andrew C. Barclay, the vendor of John K. and A. Charles Barclay. If, then, these parties were tenants holding over, the remedy of the appellant was ample under the Landlord and Tenant Acts; on the other hand, if they had abandoned the occupancy of the premises, he had hut to remove their goods and charge them with the expenses necessary to effect such removal. And what other or further power could a court of chancery confer on him ? Both law and equity, as far as possible, avoid vain things; they do not attempt to help a man to what he has already got.

The truth of this case seems to he, that the appellee, alarmed by Barclay’s ambiguous threat, has endeavored to interpose the decree of a court between himself and the possible consequences of the exercise of his own right. This, however, he cannot do. A trustee may seek the advice and protection of a court of equity, but such is not the right of an ordinary person. Such an one must take the risk of the assertion of his own rights, or leave them unasserted.

A faint attempt has been made to put this case on the ground of a continuing nuisance or trespass, and so to bring it within the ruling of Stewart’s Appeal, 6 P. F. Smith 413, and kindred cases. This, however, has proved a failure, since there was here no such continuing nuisance as equity would interpose to abate, and that for the sufficient reason, that the nuisance or obstruction was one from which the appellee, by his own act, could have relieved himself. Equity will not, therefore, help him to do that which he might have done of his own motion.

The decree of the court below is now reversed and set side; the plaintiff’s bill is dismissed, tu.d it is ordered that the costs be paid by the appellee.