author: Gordon, J.

text:
    Fisher versus Philadelphia.
    1. Possession is title, and he having1 such title can he ousted only by him who shows one superior to it.
    2. A settlement showed against Nicholson in favor of the Commonwealth a balance which was a lien on his lands. An act was passed authorizing commissioners to sell the lands and if they deferred the payment of the purchase-money, to take bonds with sureties and give the purchaser a certificate of his purchase, of having given bond, &c., the bonds to be deposited with the state treasurer; on producing to the secretary of the Commonwealth the certificate with the treasurer’s receipt for the purchase-money, the secretary was to make a deed to the purchaser. Held, that a purchaser acquired no title to the land without complying with these conditions.
    3. A purchaser having given his bond had an executory contract and he might obtain a deed on the payment of the bond, but would' not be entitled to possession before paying and getting his deed.
    4. Myer bid for Nicholson land sold by the commissioners, they reported the sale, &c., and that he had given bond with sureties — naming them ; suit in debt was brought by the state treasurer against one who was named in the report as surety, the sum named being exactly twice the amount of the bid ; there was no evidence that the bidder had paid the bond or done anything required by the .act after giving it. Held, there was no evidence for the jury that the bidder had any title.
    5. Green v, Watson, 10 Casey 332, distinguished.

      March 6th 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuykill county: Of January Term 1873, No. 111.
    This was an action of ejectment by John I). Deibert against the city of Philadelphia. The writ was issued June 5th 1858, for. an undivided thirty-second part of a tract of land, situate in Mahanoy township, Schuykill county, containing- about 400 acres, “ being the same tract which was surveyed in pursuance of warrant dated June 13th 1793, granted to John Barber,” &c. The sheriff returned, “ Served a copy of this writ personally on Franklin B. Kaercher, agent for the city of Philadelphia.”
    On the 2d of May 1870, the death of the plaintiff was suggested, and Daniel B. Fisher, his alienee, was substituted as plaintiff.
    The land in dispute was part of what was known as the Nicholson lands.
    On the 18th of February 1785 (2 Dallas L. 251), an act was passed enacting that on the settlement of any public account by the comptroller-general and the confirmation by the Supreme Executive Council, whereby any balance that should be found due from any person to the Commonwealth, it should be deemed a lien on all the real estate of such persons throughout the state.
    Under the Act of March 31st 1806 (4 Smith’s L. 355), Cadwallader Evans, Joseph Hiester and John Lyon were appointed commissioners to obtain the information therein specified relating to the real estate of John Nicholson, deceased, and ascertain the quality of the estate, its extent in each county and estimate its value.
    By Act of March 19th 1807 (4 Smith’s L. 381), on the approbation of the report of the commissioners appointed under the Act of 1806, the governor was directed to issue process to the commissioners to sell such lands or interest in lands of Nicholson as they should specify in their report, giving notice by advertisement, &c., as directed by the act. In case of sales under the act the purchaser should pay the purchase-money into the state treasury, and the payment of no part of the purchase-money should be deferred longer than four years; when deferred to any time within that period, such deferred payment should carry interest and should be secured by bonds from the purchaser, with surety approved by the commissioners, payable to the treasurer of the Commonwealth and delivered to the commissioners at the time of sale ; on the receipt of the purchase-money or the bonds, the commissioner should deliver to the purchaser a certificate of the property sold, the time and place of sale and the bonds received, and also within two months deliver to the treasurer all bonds received on account of the sales, and within the same time make a particular return into the office of the secretary of the Commonwealth of the quantity of land sold, the situation, price, how paid or secured, and on application of the purchaser, the secretary of the Commonwealth on production of the certificate and the treasurer’s receipt for the consideration, was required to execute a deed to the purchaser for the property sold for such estate as Nicholson had at the time of the commencement of the Commonwealth’s lien against his estate, which deeds or copies of their records of them should be primá facie evidence of the grantee’s title.
    The case was tried, June 5th 1872, before Elwell, P. J., of the Twenty-sixth district.
    The plaintiff gave in evidence the warrant, dated June 13th 1793, to John Barber for 400 acres of land in the county of Northumberland, and survey October 17th 1794 ; patent October 20th 1794 to Robert Morris, reciting deed from warrantee; deed July 8th 1795 Robert Morris to John Nicholson for a number of tracts, including the Bai’ber warrant, recorded November 2d 1797; certified account, December 20th 1796, of comptroller-general against Nicholson, showing a balance of $63,729.89; another certified account of comptroller-general against Nicholson, dated December 22d 1796, showing against him a balance of $51,209.22; April 4th 1807, warrant to Cadwallader Evans and others, commissioners to sell the Nicholson lands; report of the commissioners, dated July 18th 1807, of the sale under the warrant of April 4th 1807, and after due notice, of a number of tracts of land “ on the head waters of Mahanoy and Catawissa creeks in Northumberland county, held under warrants in the names and dates following, viz. : 1793, June 13th, John Barber, 400 ;• sold to Philip Meyer at eight cents per acre,” with twenty-eight others sold to Meyer and four others to Meyer and another, the whole amounting to $2049.50. The commissioners also reported, “ the payment whereof to the state treas-surer the said Philip Meyer has secured by his own bond and that of John Meyer and George Miller.” Also record of suit in the Common Pleas of Berks county, William Findley, state treasurer, against George Miller, surviving obligor, to April Term 1812, debt $4099. “ Evans appears for defendant, craves oyer of the writing obligatory and imparls specially. January 4th 1816, not to be brought forward; November 1816, list; November 11th 1816,-judgment for costs; May 11th 1819, not to be brought forward.” The plaintiff gave evidence by Frank P. Meyer, that his grandfather, Philip Meyer, resided in Hamburg, Schuylkill county, and died in 1811 or 1812; he stated the names of the persons who were the heirs of Philip Meyer in 1857.
    The plaintiff then gave in evidence a deed, dated April 16th 1857, from Franklin Philip Meyer and others (the persons testified by him to have been the heirs of Philip Meyer) to Jeremiah Beidler, the right, title and interest of the grantors in twenty-nine tracts of land in the townships of Mahanoy, Union and Rush, in Schuylkill county, granted by warrants of 13th June 1793, &c., of four hundred acres each, unto “ John Barber” a,nd others named and patented to Robert Morris, being the same premises which Morris on the 8th of July 1795 granted to John Nicholson, and which the commissioners of the Nicholson lands, appointed under Act of March 31st 1806, sold on the 23d of June 1807 to Philip Meyer, “ and which on his death (who died intestate) descended to his heirs at law, to wit, the parties of the first part,” &c.
    .The plaintiff then gave in evidence deed dated July 13th 1857, from Jeremiah Beidler to John D. Deibert for a thirty-second part of twenty-three adjoining tracts, situate partly in Mahanoy and partly in Union township, Schuylkill county, “ surveyed in pursuance of twenty-three warrants of 400 acres each, dated 13th day of June 1793, &c., and granted to John Bai’ber” and others named, containing together 10,000 acres, being part of the same tract which the heirs of Philip Meyer deceased granted to Beidler. Also deed dated March 28th 1861, from Deibert to Daniel B. Fisher, the substituted plaintiff, for the same title he had derived under the Beidler deed in twenty-one of the tracts mentioned in that deed, one of which was the Barber warrant, and the title being described in the same way.
    The foregoing evidence,from the report of sale by the commissioners and including that, was received under objection by the defendant and exception.
    The plaintiff gave other evidence not important to be noticed, and closed.
    On motion of the defendant the court directed judgment of non-suit to be entered.
    The plaintiff removed the record to the Supreme Court and assigned for error, the entering the judgment of nonsuit.

      F. W. Hughes and B. W. Cummings (with whom were Gr. H. Kaercher, Gr. F. Farquhar, 6r. F. Baer, J. W. Ryon and Woodward), for plaintiff in error.
    The secretary of the Commonwealth had no discretion as to executing a deed to the purchaser, he could be compelled to do so by mandamus: Comm’th v. Cochran, 6 Binney 456 ; 1 S. & R. 473. The return of the commissioners vested the title in Philip Meyer: 4 Kent Com. 433-6; Pope v. Cutler, 9 Shep. 105; Booth v. Booth, 7 Conn. 350; Philips v. Parks, 4 Vermont 488; Morse v. Child, 7 N. H. 581.
    The agreement of sale with the commissioners, their certificate, the bond for the purchase-money with the return of these facts, passed an equitable title to Meyer, which under the circumstances was executed by the Statute of Uses: Strimpfler v. Roberts, 6 Harris 297. The secretary’s deed can be made only to the purchaser, and if he should obtain it after a sale by him, he would be a trustee for his alienee : Brown v. McCormick, 6 Watts 60 ; Robertson v. Robertson, 9 Id. 43; McCall v. Coover, 4 W. & S. 151; Wilson’s Estate, 2 Barr 325; Barr v. Gratz, 4 Wheaton 213. No acts of the secretary would be valid unless authorized by law: Frick v. Kitchen, 4 W. & S. 30; Strother v. Lucas, 12 Peters 454; Johnston v. Bingham, 9 W. & S. 56. The acts of public agents with limited power are void if they exceed the power conferred upon them: Hunter v. Howard, 10 S. & R. 243; Jones v. Tatham, 8 Harris 398; Straub v. Drumm, 3 Casey 36; Shields v. Miltenberger, 2 Harris 78; Poster v. Shaw, 7 S. & R. 156, 161; Morton v. Harris, 9 Watts 319; Seechrist v. Baskin, 7 W. 6 S. 403; Riland v. Eckert, 11 Harris 216.
    The commissioner’s sale passed title to Philip Meyer without the secretary’s deed and upon the execution [by him and his sureties of the bond, and acceptance of it by the commissioners: Bellas v. McCarty, 10 Watts 21; Green v. Watson, 10 Casey 332.

      F. B. G-owen, E. O. Parry and Porter (with whom were L. Bartholomew, 0. Little and F. 0. Brewster), for. defendant in error.
    When a special authority is delegated by law to particular persons to take away a man’s property and estate against his will, then it must be so pursued: Wistar v. Kammerer, 2 Yeates 100; Gilbert v. Probst, 1 Id. 300; Huston v. Poster, 1 Watts 478. The sale made by the commissioners to an individual, was an executory contract: Bortz v. Bortz, 12 Wright 385, and cases there cited.
    The purchaser had no right to the possession until the delivery of the deed, and the right remains in the owner of the legal title: Hawk v. Stouch, 5 S. & R. 157; Hall v. Benner, 1 Penna. R. 402 ; Slater’s Appeal, 4 Casey 170. Yet he has by his contract an inceptive interest in the soil, which may be bound by a judgment: Carkhuff v. Anderson, 3 Binney 4; Morrison v. Wurtz, 7 Watts 438; Stephens’s Appeal, 8 W. & S. 188; Slater’s Appeal, 4 Casey 169; Stoever v. Rice, 3 Wharton 25. When a contract has been made for the purchase of land, the purchaser shall not recover possession until he has paid or tendered the purchase-money, and this must be done previously to the commencement of an ejectment: Smith v. Painter, 5 S. & R. 224; Marlin v. Willink, 7 Id. 298 ; Minsker v. Morrison, 2 Yeates 344. A statute derogatory to private property must be construed strictly and not enlarged by intendment: Dwarris on Statutes 750; Marshall v. Ford, 1 Yeates 195; Young v. Martin, 2 Id. 312; Watt v. Gillmore, Id. 330; Blair v. Caldwell, 3 Id. 284; Cromwell v. Mc-Calmont, 1 S. & R. 126; Blair v. Waggoner, 2 Id. 472; Birch v. Fisher, 13 Id. 208 ; Peters v. Heasley, 10 Watts 210; Hoffman v. Bell, 11 P. F. Smith 444.
   The opinion of the court was delivered, May 11th 1874, by

Gordon, J.

In Shumway V. Phillips, 10 Harris 151, the actual possession of land was held sufficient to protect the defendant in error against all but the owner of the legal title. And in Green v. Kellum, 11 Harris 254, it was ruled that one who enters and claims land as his own, improves it and maintains the possession, must he presumed to have entered by color of title, and must be so treated until a superior right is shown against him.

Possession then is title, and the one having such title can be ousted only by him who shows one superior to it.

In the case under consideration the city is found in possession of the disputed premises. The plaintiff has shown no prior possession which the defendant disturbed, hence it cannot be treated as a mere intruder upon the plaintiff’s right. It follows therefore that the plaintiff must show some title better than that arising from the defendant’s possession, or he is in no position to reverse the ruling of the court below.

In order to show such better title he endeavors to connect himself with that of John Nicholson, who held through Robert Morris, from the Commonwealth. For this purpose he exhibits certified copies of accounts of the Commonwealth against John Nicholson, late controller-general, filed December 1796, showing balances which together amount to $115,009.06, which by force of the Act of 1785 became a lien on all his lands throughout the state; the warrant of the governor to Cadwalader Evans, Jr., Joseph Lyon and Joseph Hiester, commanding them to sell all the lands of Nicholson, set forth in the schedule thereto annexed, under and by virtue of the Act of March 19th 1807 ; and also the report of the above-named commissioners, dated July 18th 1807, setting forth inter alia, the sale of thirty-three tracts, including that now in dispute, to Philip Meyer, the ancestor of the plaintiff’s vendors, for the sum of $2849.50, secured by his own bond, and that of John Meyer and George Miller. Whether this showing was sufficient to vest the Nicholson title in Philip Meyer, is the question submitted for our determination.

The act above recited (19th March 1807) required the payment of the purchase-money of the lands sold, into the state treasury, within four years from the date of purchase. Whether such payment should be deferred for any length of time within that period,” was referred to the discretion of the commissioners, who, if they did agree to defer such payments, were directed to secure them by the bonds of the purchasers writh approved sureties. Upon receipt of such bond, they were to deliver to the purchaser a certificate of the property sold to him, setting forth the time and place of sale, and the bonds received. These bonds were to be delivered into the hands of the state treasurer, and then on production of the certificate aforesaid, and the treasurer’s receipt for the consideration of the purchase,” the secretary of the Commonwealth was directed to make deeds to the purchasers for “ such estate, as the said John Nicholson had and held in the same at the time of the commencement of the liens of the Commonwealth against the estate of the said John Nicholson.” By consulting the act, it will be seen that the powers of the commissioners were strictly limited. They had power to make the sales and receive the purchaser’s bonds, but nothing more. They were not authorized to receive purchase-money, make deeds or enforce their contracts of sale. In this, it will be observed, they had much less power than a sheriff or a county treasurer. The purchaser by his bid made but one step towards title. If, following up this first step, he procured the certificate of the commissioners, and paid the purchase-money into the treasury, he became possessed of an equitable title which would secure to him the right of possession, and upon which he might at any time demand his deed. So where, instead of paying the purchase-money, the purchaser gave his bond as provided by the act, he would have an executory contract upon which he might obtain a deed, upon the payment thereof, but in such case he would not be entitled to possession before he obtained his deed or made such payment: Baum v. Dubois, 7 Wright 260.

Now Philip Meyer seems to have accomplished but the one step in the way of title. He bid off the disputed tract at the commissioners’ sales. But, having regard only to the legal evidence in the case, he made no other step. It is true that the return of the commissioners set forth that the bond of Philip Meyer was taken as security for the purchase-money, with that of John Meyer and George Miller. But supposing this return to be evidence for all it sets forth, it does not inform us when, where or how it was executed, or the time it had to run. Such evidence is too indefinite in itself to amount to anything in the way of proof of a lost bond, or to prove the contents of such bond. But it is supplemented by the docket entries of the Common Pleas of Berks county, to April Term 1812; William Findley, Esq., treasurer of the state of Pennsylvania, against George Miller, surviving obligor, in which it appears there was a summons in debt for $4099, that Evans appeared for the defendant, craved oyer of the writing obligatory and imparled specially. Further, that on the 11th of November 1816, there was judgment for costs, but in whose favor is not stated, and on the 11th of May 1819, we find the final entry, “not to be brought forward.” We are now called upon to presume that because George Miller is mentioned in the return of the commissioners, as one of the sureties of Philip Meyer, and because the amount for which suit was brought, was just double the amount of the purchase-money mentioned in that return, therefore the suit was brought on the Philip Meyer bond. An unprejudiced mind must concede that such a presumption would be a violent one. For admitting such entries to be evidence for any purpose, we cannot imagine how they could be evidence of anything more than appears upon their face, but a bond of Philip Meyer to the Commonwealth, for the purchase-money of thirty-three tracts of land does not so appear, neither does it appear in the precipe or writ. We cannot perceive that this supplement helps the matter in the least, and we must conclude that the alleged bond is not proved. But suppose we concede that it is proved, still we have no evidence of payment, and without this, Philip Meyer had but a naked equity, which sixty-seven years of time has so effectually buried among the things of the dead past, that no amount of legal thaumaturgy can avail to resurrect it.

Our attention has been directed to the case of Green v. Watson, 10 Casey 332, as in point for the plaintiff. Let us see if it is so. Judge Baldwin had bid off the land in dispute at the Nicholson sales in July 1807, transferred his purchase to George Bumford in 1835, who, in the same year, obtained a deed from the Commonwealth. Now as this deed, under the terms of the statute, was primfi facie evidence, that all the precedent steps were regular, and that the lien of the Commonwealth had been extinguished by the payment of the purchase-money, it was held sufficient to support a tax sale in 1823. The statement of this case shows it to be far from supporting that of the plaintiff now under consideration. It is urged that Justice Thompson, in the above-cited case, said that the bond taken for the purchase-money was a substitution for the lien of the state against Nicholson, and hence discharged it. Admit this to be correct, how does it help the plaintiff ? If a bond were given by Judge Baldwin, by the primfi facie presumption arising from the deed, it was paid when due. But Fisher exhibits no deed either to himself or Philip Meyer. He has no certificate from the commissioners, he has proved no bond, and he has paid no purchase-money. In no particular but the single one of a bid made at the Nicholson sales, does his case resemble that of Green v. Watson.

The judgment of the court below is affirmed.


source: Caselaw Access Project

author: Mercur, J.

license: Public Domain

text:
    Jermyn versus Moffitt.
    _ 1. When an order is drawn for the whole of a fund it is an equitable assignment of it and binds the fund in the hands of the drawee after notice.
    2. An order drawn for part of a fund is not an assignment unless the drawer accepts the draft or an obligation to accept may be implied from the custom of trade or course of business between the parties.
    3. An assignment which professes to transfer a debt for wages not yet earned against any person who may thereafter employ the assignor, although there be notice of the assignment to the employer is insufficient without his acceptance.
    4. To have an answer applicable to the evidence in the case, it should be so indicated in the point submitted.

      March 10th 1874.
    Before Agknew, C. J. Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error' to the Mayor’s Court of the city of Qarhondale : No. 150, to July Term 1873.
    This case was originally brought by Patrick Moffit against John Jermyn, before a justice of the peace, and removed into the Mayor’s Court by appeal October 24th 1871.
    The plaintiff claimed to recover wages due by defendant to John Leslie, which he had assigned to plaintiff by the following paper :
    “ In consideration of existing indebtedness to Patrick Moffitt, I do hereby assign and set over to the said Moffitt five dollars a month of my earnings, in the employment of the Delaware and Hudson Canal Company, or with whomsoever I may be employed, until the amount due said Moffitt is paid. Amount due $42.98.
    Carbondale, January 22d 1867.
    John Leslie.”
    The plaintiff testified that April 1st 1867, he spoke to defendant about Leslie’s wages, defendant said he would be up again in a few days; about ten days after plaintiff handed defendant a copy of the assignment; Leslie was then at work for defendant, who said he would attend to it. He had other conversations vTith defendant, in .none of which the plaintiff said anything definite until about January 1868, when he refused to pay the money; saying that Leslie was indebted to him.
    The defendant testified that when Leslie came to work for him he was building a house for Leslie, which was to be paid out of Leslie’s wages, after deducting the account for his current supplies for the maintenance of himself and family, which were to be furnished by defendant; at Leslie’s death he was indebted to the defendant, and the debt was unpaid.
    The defendant’s points were:—
    1. An assignment can only be made of moneys due or owing, and not in futuro of moneys to be earned.
    2. A person laboring for another to pay a debt due his employer is not at any time vested with rights that he can assign, as to his wages, there being nothing due until the debt is paid.
    3. In this case, the debt of Jermyn being unpaid at the time of service, and to this time, nothing was due JohnLeslie or to be due until said debt was paid, and which to date having not been done, the plaintiff cannot recover.
    The court answered:—
    “ 1. A party is competent to assign wages to come due if the vested rights of third parties are in nowise prejudiced thereby, and we answer defendant’s first point in the negative.

      “ 2. The second point we say is substantially correct, and therefore we affirm it.
    “ 8. This point is as to the facts of the case which are for the jury to pass upon, and which if they find that the defendant was at no time indebted to John Leslie, from the time when the assignment was first presented to him until Leslie ceased to work for him, then Jermyn, the defendant, is not liable; but if the plaintiff did, about five years ago, hand the defendant a copy of the assignment given in evidence, and the man Leslie continued in his employment thereafter, the defendant would have the right to collect from the laborer any balance due him at the time of notice, and would thereafter be responsible to the plaintiff at the rate of five dollars per month until the assignment was paid.”
    The verdiet was for the plaintiff for $54.52.
    The defendant took a writ of error, and assigned for error the answers of the court to the defendant’s first and third points.

      P. C. Gritman (with whom was A. Sand), for plaintiff in error.
    A bill or order drawn upon a part of a fund only, will not be considered an assignment unless the drawer has assented to it: Mandeville v. Welch, 5 Wheat. 285; Walker v. Russell, 17 Pick. 188; Fairgreaves v. Lehigh Navigation Co., 2 Phila. Rep. 182; Skipper v. Stokes, 42 Ala. 255.
    There was no appearance or paper-book for the defendant in error.
   The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

The first assignment of error is to the answer of the court on an abstract proposition'submitted by the plaintiff' in error. In view of the broad and general terms in which the point was presented, we see no error in the answer. In some cases a valid assignment may be made of moneys thereafter to be made, or of grain thereafter to be grown: Grantham v. Hawley, Hobart 132; Petch v. Tutin, 15 M. & W. 109; or of the future earnings of a railroad: Bittenbender v. S. & E. Railroad Co., 4 Wright 270. If counsel desire an answer applicable to the evidence in the ease being tried, they should so indicate it in their point submitted.

The second assignment involves the sufficiency of the transfer to give a right of action to Moffitt against Jermyn. Leslie assigned to Moffitt five dollars a month of my earnings in the employment of the Delaware & Hudson Canal Co., or with whomsoever I may be employed, until the amount due said Moffitt is paid.” Jermyn’s name is not mentioned in the assignment. It does not appear, that, at the date thereof, Leslie was in his employ, or that any business relations then existed between them.

The court charged substantially, if Moffitt did, within a few months after the assignment was made, hand a copy of it to Jer^ myn, and Leslie continued in his employment thereafter, then Jermin became responsible to Moffitt at the rate of five dollars a month out of wages so earned by Leslie, until the amount due from the latter to Moffitt was paid. The answer wholly excludes from the jury all question in regard to any acceptance by Jermyn, and any express or implied agreement of his, to pay. The court assumes as matter of law, that if Moffitt merely handed a copy of the assignment to Jermyn, and Leslie thereafter continued in his employ, it gave Moffitt aright of action against Jermyn. It is true, where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and after notice to the drawee, it binds the fund in his hands. Where, however, the assignment is of a part only of the fund the law seems to be otherwise. Thus, it was said by Mr. Justice Story, in giving the opinion of the court in Mandeville v. Welch, 5 Wheat. 277, “when tíre order is drawn on a general or a particular fund for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation by an acceptance of the draft; or an obligation .to accept may be fairly implied from the custom of trade or the course of business between the parties, as a part of their contract.” The reasons which he gives are, that a creditor should not be permitted to split up a single cause of action into many actions, without the assent of his debtor, thereby subjecting the latter to embarrassments and responsibilities not contemplated in his original contract. It was held in Gibson v. Clark, 20 Pick. 15, that the assignment of part of a debt will not bind the debtor, either in equity or at law, nor deprive him of the right to pay the whole to the assignor, after notice that a part has been transferred to the assignee. All the decisions relating to this question of assignment are not in entire harmony. We shall not now attempt to reconcile them. We, however, are clearly of the opinion that an assignment like the present one, which professes to transfer a debt to arise for wages not yet earned, against any person by whom the assignor may thereafter be employed, although followed by a subsequent notice of the assignment to such an employer, is insufficient, without acceptance, to make a valid transfer of the debt against the employer. The second assignment of error is sustained.

Judgment reversed, and a venire facias de novo awarded.


author: Asnbw, C. J.

text:
    Jones versus Commonwealth.
    1. The wife of the defendant having improper relations with another, he fell into habits of drunkenness, quarrelled with his wife, took laudanum and remained under its effects ; he continued to drink immoderately and was in a constant state of nervous excitement. Having a pistol he went to the house of his wife’s mother, where his wife was, he having previously threatened to shoot her; the mother picked up a stool and said she would level him; he replied he would level her, pulled out the pistol and shot and killed the mother. Held, under all the circumstances to be murder, but of the second degree.
    2. In the court below the defendant, indicted for murder, pleaded ‘‘ Guilty,” the court heard the testimony and decided that it was of the first degree. On writ of error under the Act of February 15th 1870, the Supreme Court reviewed the law and the evidence and determined the degree of the murder.
    3. Intoxication is not an excuse for crime, but if it deprives the intellect of power to think and weigh the nature of the act, it may prevent a conviction of murder in the first degree.
    4. The intent to take life with a full and conscious knowledge of the purpose to do so is the distinguishing criterion of murder in the first degree; the words “ deliberately and premeditatedly” define this.
    March 10th 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Oyer and Terminer of Luzerne county: To July Term 1873.
    At the September Term 3872 of the Court of Oyer and Terminer of Luzerne county, William S. Jones was indicted for the murder of Frances Hughes. He pleaded “Not guilty,” and was tried at the same term. On the 27th of September 1872 the jury found a verdict of guilty of murder in the first degree.
    The court having awarded a rule to show cause why a new trial should not be granted, afterwards made the rule absolute and granted a new trial.
    On the 23d of January 1873 the prisoner withdrew the plea of “Not guilty” and pleaded “ Guilty.”
    On the 31st of January 1873, the court (Dana, J., and the associates) proceeded by examination of witnesses to determine the degree of the crime: Act of March 31st 1860, sect. 74, Pamph. L. 402, 1 Br. Purd. 338, pi. 120. The substance of the testimony is stated by Chief Justice Agnew, delivering the opinion of the Supreme Court.
    On the conclusion of the hearing, the defendant requested the court to give an opinion upon the following points in writing and file the same with the record of the case, together with the testimony upon which the finding of the court is based:—
    1. Whether the defendant can be adjudged guilty of murder in the first degree unless the evidence clearly and beyond a reasonable doubt establishes that the killing was premeditated, wilful and deliberate, and perpetrated by him when of sound mind, memory and discretion and capable of forming a specific intent to take the life of the deceased.

      2. Whether as matter of law the evidence in the case is sufficient to base a finding of murder in the first degree.
    8. Whether the state of the defendant’s mind and body, as shown by the undisputed testimony, were not such as to preclude the possibility of his having formed a deliberate, wilful, premeditated and specific intent to take the life of the deceased.
    4. Whether an intent and preparation to take the life of his wife, if proved, can be made to relate to the crime with which he is charged.
    5. Whether an entire absence of motive on the part of the prisoner ought not, in the absence of conclusive proof of a premeditated killing, to raise a reasonable doubt in his behalf.
    In his opinion, Judge Dana, after recapitulating the evidence, said: * * * “ Under all the evidence we are brought to the conclusion that the shot was fired with intent to kill the deceased.
    “ In answer to the fourth question presented by counsel for the defence, whether an intention and preparation to take the life of his wife, if proved, can be made to relate to the crime with which he is charged, we reply, that an intention and preparation to take the life of his wife, followed by his killing of the deceased, do not necessarily constitute murder in the first degree. Under the evidence they are connected with, and to that extent relate to, the crime with which he is charged; but our conclusion, reluctantly reached under all the evidence, is that the fatal shot was fired, not with intent to kill the wife, but to kill the deceased, and that such killing was wilful, deliberate and premeditated.
    “ In answer to the fifth inquiry presented by the defence, we reply that the fact of an entire absence of motive for the act on the part of the prisoner, which is assumed in the question, is not warranted under the evidence. The absence of conclusive proof of a premeditated killing, with the absence of a motive for the act, ought certainly to raise a reasonable doubt in the prisoner’s behalf. But in view of his previous threats; of his declaration after the act; the refusal of the deceased, on the morning of that day, to return his clothing upon request; his previous relations with his wife and with her mother, the deceased; the occurrence at three o’clock of that afternoon; the ill feeling renewed in the minds of both the deceased and the accused ; the altercation at and immediately before the act, we cannot say there was entire absence of motive, but that, on the contrary, the whole evidence discloses the existence of a motive inducing to the act.
    “ To the first question put to us by the counsel for the defence, we answer that the prisoner cannot be adjudged guilty of murder of the first degree, unless the evidence, clearly and beyond a reasonable doubt, establishes that the killing was premeditated, wilful and deliberate, and perpetrated by him when of sound mind, memory and discretion and capable of forming a specific intent to take the life of the deceased.

      “We have already expressed our view in the foregoing that the evidence does establish a killing which constitutes murder of the first degree, and we answer the second question in the affirmative, that, in our opinion, ‘ as matter of law, the evidence in the case is sufficient to base a finding of murder in the first degree.’
    “ We have already answered the third question proposed in the negative, and expressed our conclusion upon all the evidence, that the prisoner’s condition of mind and body was ‘ not such as to preclude the possibility of -his having formed a deliberate, wilful, premeditated and specific intent to take the life of the deceased.’ We have reached these conclusions upon careful consideration of all the evidence, with that caution which the irretrievable result is calculated to inspire. Brief notes of the testimony have been taken; we have given a summary of our conclusions and our answers to the several questions submitted to us, to facilitate their revision, if we have fallen into error.
    “ Upon all the evidence and circumstances of the case, elicited by examination of the witnesses, as directed by the Act of Assembly, we determine the degree of 'the crime of which the prisoner is convicted by confession to be that of murder of the first degree.”
    The defendant removed the record to the Supreme Court by writ of error, and under the Act of February 15th 1870, Pamph. L. 15, 1 Br. Purd. 610, pi. 39, assigned for error that—
    “ The court erred in finding the prisoner guilty of murder in the first degree, such a finding being unwarranted by the evidence.”

      H. W. Palmer and Woodward, for plaintiff in error.
    Whoever is convicted of murder in the first degree should be found to have, acted upon as clear and premeditated a motive as he who kills by poison or by lying in wait. A maniac or an idiot cannot commit murder in the first degree, because he is incapable of the premeditation which the statute requires. And such is the rule in regard to drunkenness. While it is no palliative or excuse for crime, because it is itself a crime, yet it may show w7ant of malice and design; and if it be satisfactorily established, it may lower the grade of homicide from murder in the first degree to murder in the second degree: McFall’s Case, Addison 257; Lewis on Crim. Law 405; Wharton’s Am. Crim. Law 93. The rule therefore seems to be, that while drunkenness is no defence or palliation, its existence may be shown to rebut the presumption of malice or to grade the intention: Cases cited in American Criminal Law 83; 1 Archbold’s Criminal Evidence 4; Rex v. Grindley, cited in 1 Russell on Crimes 8; Rex v. Thomas, 7 C. & P. 851; Warren v. Commonwealth, 1 Wright 47; Kelly v. Commonwealth, 1 Grant 492.

      There was no paper-book or appearance for the Commonwealth.
   The opinion of the court was delivered, March 23d 1874, by

Asnbw, C. J.

In this case, if we confine our attention to the weapon, its previous preparation, the threat proved by Mr. Crooks, the time for deliberation, and the circumstances of the killing-of Mrs. Hughes by the prisoner, we might conclude that his crime was murder in the first degree. In this aspect the learned judge of the Oyer and Terminer had sufficient evidence to justify his finding of the degree. But ample time for reflection may exist, and a prisoner may seem to act in his right mind, and from a conscious purpose; and yet causes may affect his intellect, preventing reflection, and hurrying onward his unhinged mind to rash and inconsiderate resolutions, incompatible with the deliberation and premeditation defining murder in the first degree. When the evidence convinces us of the inability of the prisoner to think, reflect and weigh the nature of his act, we must hesitate before we pronounce upon the degree of his offence. That reasonable doubt which intervenes to prevent a fair and honest mind from being satisfied that a deliberate and premeditated purpose to take life existed, should throw its weight into the scale to forbid the sentence of death. Intoxication is no excuse for crime; yet when it so clouds the intellect as to deprive it of the power to think and weigh the nature of-the act committed, it may prevent a conviction of murder in the first degree. The intent to take life, with a full and conscious knowledge of the purpose to do so, is the distinguishing criterion of murder in the first degree; and this consciousness of the purpose of the heart is defined by the words deliberately and premeditatedly. Much has been said upon the meaning of these words, some of which may mislead, if we do not consider well the cases in which it has been uttered. In The Commonwealth v. O’Hara, tried in 1797, Chief'Justice McKean said: “ What is the meaning of the words deliberately and premeditatedly ? The first implies some degree of reflection. The party must have time to frame the design. The time was very short — it cannot be said to be done coolly. The legislature must have put a different construction on the words deliberately and premeditatedly. If he had time to think, then he had time to think he would kill. If you are of opinion he did it deliberately, with intention to kill, it is murder in the first degree. If he had time to think, and did intend to kill, for a minute as well as an hour or a day, it is sufficient.” The correctness of this charge to the jury will not be doubted, if we examine the circumstances, and yet this is essential to understand it properly. O’Hara was a journeyman shoemaker, sitting on his bench at work with Haskins and others. Aitkins, the deceased, his friend, came up stairs, and said to him: “ I have been talking about you below this hour.” “ Yes,” said Haskins, “about the five sheep you stole.” Thereupon O’Hara immediately left his work upon the bench, took up a shoemaker’s knife by his side, went up to Aitkins, and stabbed him in the belly. The act was not thoughtless, for the prisoner had time to lay down his work, take up the knife, rise and walk up to his friend, and to strike him in a vital part with an instrument of death. Upon every principle of human action, we must conclude, under these circumstances, that O’Hara intended to take Aitkins’s life, otherwise the thoughts of men never can be determined from clear and distinct acts evidencing the purpose of the mind. There was irritation, it is true, heightened by the previously existing story about the sheep ; but it was without any just cause of provocation to take life, and, therefore, evidenced a heart malignant, and ready to execute vengeance even upon a friend, in a moment of wicked passion. In such a case, a moment was sufficient to form and deliberate upon the purpose to take life, and premeditate the means of executing it. But these words of the Chief Justice are sometimes wrested from their application and applied to cases where reason has been torn up by the roots, and judgment jostled from her throne.

Another case often quoted and misapplied, is that of Richard Smith, tried before President Rush, in 1816. Smith had become intimate with the wife of Captain Carson, and had a difficulty with him in his own house. He returned with Mrs. Carson, and went with her up into the parlor. Carson came up unarmed, and ordered him to leave. Smith had armed himself, and held one hand under his surtout, and the other in his breast. Carson told Smith he had come to take peaceable possession of his own house, and the latter must go. Smith said to Mrs. Carson, “ Ann, shall I go?” She replied “No.” Smith moved into the corner of the room, Carson following him, and telling him he must go, at the same time letting his arms fall by his side, and saying he had no weapon. Upon this, Smith drew a pistol from under his surtout, and shot Carson through the head, threw down his pistol, and ran down stairs. In this state of the facts, Judge Rush, charging upon the subject of deliberation, said: “ The truth is, in the nature of the thing; no time is fixed by the law, or can be fixed for the deliberation required to constitute the crime of murder.” Speaking, then, of premeditation, he says : “It is equally true, both in fact and from experience, that no time is too short for a wicked man to frame in his mind the scheme of murder, and to contrive the means of accomplishing it.” We cannot doubt the correctness of these remarks in the case in which they were made, but cases often arise where this readiness of intent to take life, when imputed, may do great injustice. Hence it was said in Drum’s case, 8 P. F. Smith 16 : “ This expression (of Judge Rush) must be qualified, lest it mislead. It is true that such is the swiftness of human thought, no time is so short in which a wicked man may not form a design to kill, and frame the means of executing his purpose; yet this suddenness is opposed to premeditation, and a jury must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find the actual intent, that is to say, the fully formed purpose to kill, with so much time for deliberation and premeditation, as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design. If there be time to frame in the mind fully and consciously the intention to kill, and to select the weapon or means of death, and to think and know beforehand, though the time be short, the use to be made of it, then there is time to deliberate and premeditate.” This was said in the case of a sudden affray, where the circum-. stances made it a serious question whether the act was premeditated, or was the result of sudden and rash resentment.

Thus we must perceive, that at the bottom of all that has been said on the-subject'of murder in the first degree, is the frame of mind in which the deadly blow is given — that state of mind which enables the prisoner either to know and be fully conscious of his own purpose and act,' or not to know. Why is insanity a defence to homicide ? Because it is a condition of the mind which renders it incapable of reasoning and judging correctly of its own impulses, and of determining whether the impulse should be followed or resisted. Intelligence is not the only criterion, for it often exists in the madman in a high degree, making him shrewd, watchful and capable of determining his purpose, and selecting the means of its accomplishment. Want of intelligence, therefore, is not the only defect to moderate the degree of offence ; but with intelligence there may be an absence of power to determine properly the true nature and character of the act, its effect upon the subject, and the true responsibility of the actor; a power necessary to control the impulses of the mind, and prevent the execution of the thought which possesses it. In other words, it is the absence of that self-determining power, which in a sane mind renders it conscious of the real nature of its own purposes, and capable of resisting wrong impulses. When this self-governing power is wanting, whether it is caused by insanity, gross intoxication, or other controlling influence, it cannot be said truthfully that the mind is fully conscious of its own purposes, and deliberates or premeditates in the sense of the act describing murder in the first degree. We must, however, distinguish this defective frame of mind from that wickedness of heart which drives the murderer on to the commission of his crime, reckless of consequences. Evil passions do often seem to tear up reason by the root, and urge on to murder with heedless rage. But they are the outpourings of a wicked nature, not of an unsound or disabled mind. It becomes necessary, therefore, to inquire upon the evidence in this case, whether the prisoner was really able to deliberate and premeditate the homicide.

William S. Jones had been upon bad terms with his wife. She had become too intimate with another Jones, called Charley. William S. Jones failing to break off the association got to drinking hard, and, finally after another quarrel with his wife on the 10th of June 1871, attempted suicide by taking a large quantity of laudanum. Dr. Davis found him lying on a lounge partly insensible, eyes nearly closed, pupils contracted, and face discolored by congestion. Energetic remedies were used, and he was so far restored as to be out of danger, but the effects of the laudanum remained. From this time until the night of the 19th of June, when he took the life of Mrs. Hughes, his mother-in-law, he was in a constant state of nervous excitement, continued drinking, and had bottles of laudanum about his person. Many witnesses describe him as without sense, constantly talking nonsense, wild in appearance, and incoherent in speech. Some say he acted like a man drinking hard, was intoxicated, and once fell from a horse. Others described him as looking crazy, talking to himself, his hands going, his head thrown back, walking to and fro, throwing his head about, swinging his arms, and wild, nervous and excited. He would jump upon a chair and begin to preach, and run off upon Charley Jones and his wife; said he was going to build a tavern on the mountain, and a church beside it; claimed all the property about, and was evidently much out of the way. These appearances were particularly noticed on the 19th day of June, the day of the homicide. He was then on very bad terms with his wife, yet seeking her and remonstrating with her, and on the afternoon of that day he had beaten and abused her, chasing her down stairs and into the street, and there striking and kicking her until separated by others. He continued in this condition down into the night of the 19th, when he came to Mrs. Hughes’s house, between nine and ten o’clock. Stepping inside of the door, he asked Mrs. Hughes if the fuss was settled ; said he had come down to settle it. She rose and told him to go away ; told Lizzie to fetch a poker ; said she would strike him, if he did not go away. He stepped back. She picked up a stool, and told him if he did not go away she would level him with it. He said, “I’ll level you now,” pulled out a pistol, stepped forward and shot her. Mrs. Hughes twice exclaimed, “ I am shot,” and went back into the kitchen, while Jones was seized by the persons present, and the pistol wrested from his hand. Between him and Mrs. Hughes there had been a state of good feeling, before he took the laudanum, and she attended him upon the day when he was under its influence. He spoke of her as his best friend. His conduct towards his wife, her daughter, had led Mrs. Hughes to resent it, and some feeling had arisen on the part of Jones, but after his arrest, he said he took the pistol to kill his wife, and the old woman had got it.

Looking then at the state of Jones’s mind from the 10th until the 19th of June, and down to the very moment he fired the pistol, and, also, at the suddenness of his quarrel with Mrs. Hughes, her call for the poker, and lifting the stool, it seems to us a matter of grave doubt whether his frame of mind was such that he was capable either of deliberation or premeditation. It appears to have been rather the sudden impulse of a disordered brain, weakened by potations of laudanum and spirits, and of a distorted mind, led away from reason and judgment by dwelling upon the conduct of his wife, influenced by his continued state of excitement. It presents a ease of the preparation of a weapon, and an undefined purpose of violence to some one, where the time for reflection was ample; but where the frame of mind was wanting, which would enable the prisoner to be fully conscious of his purpose, or to resolve to take the life of the deceased, with deliberation and premeditation. Yet it was clearly murder, done without sufficient provocation and without necessity, and in a frame of mind evincing recklessness and that common-law malice, which distinguishes murder from manslaughter. There' was error, therefore, in ascertaining the degree, and sentencing to death.

The judgment of the Court of Oyer and Terminer of Luzerne county is reversed, and this court proceeding now to determine, upon the same evidence, the degree of the crime whereof the said William S. Jones is convicted by his own confession, now finds and declares that the crime of the said William S. Jones is murder in the second degree, and gives judgment accordingly; and forasmuch as the said William S. Jones is confined in the public jail of Luzerne county, distant herefrom, it is further ordered that the record, together with this finding and judgment, be remitted to the said Court of Oyer and Terminer of' Luzerne county, with a direction to the judges thereof to proceed to pronounce sentence upon • the said William S. Jones, as for murder in the second degree, according to law, and for such term of imprisonment at labor, as they, the said judges, shall adjudge to be a fit and proper punishment for his said offence.


author: Agnew, C. J.

text:
    McClelland versus Pomeroy.
    1. Opening a judgment is discretionary and cannot be reviewed on error, unless the opening is an excess of power.
    2. The refusal to open a judgment is merely to stand still, and is not a transgression of power.
    3. Banning v. Taylor, 12 Harris 289; Knox v. Flack, 10 Id. 337, distinguished.

      March 10th 1874.
    Before Agnew, C. J., Sharswood, Merche and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Bradford county: No. 110, to July Term 1873.
    On the 15th of August 1865, C. C. McClelland executed to E. Pomeroy a note for $2080, with warrant of' attorney to confess judgment. Judgment was entered in the Court of Common Pleas of Bradford county, No. 456 to September Term 1865.
    On the 5th of October 1869 an agreement executed by McClelland was filed'; by this it was agreed that the j udgment should he revived, the prothonotary to ascertain the amount; and thereupon judgment was entered against the defendant for $2599.49.
    The liquidation of the judgment was as follows, viz.:.
    Debt,.......$2,080.00
    Interest from Aug. 15th 1865, to date, - 509.79
    Former costs, - -- -- - 8.70
    $2598.49
    Prot. Stamp, ------- 1.05
    Int. 14th Sept. 1869.
    On the 29th of July 1872, McClelland filed an affidavit that on the 23d of August 1867, he paid Pomeroy $249.69; on the 18th of June 1868, he paid him $94.57 ; on the 17th of September 1868, he paid him $224.72; on the 11th of November 1869, he paid him $243.44; on the 23d of June 1871, he paid him $2.021.53 ; and that beside he in 1866 paid $80; and that there was nothing due on the judgment.
    McClelland afterwards made a supplemental affidavit that the judgment was given for cattle, and four per cent, was added to the price of the cattle as interest beyond six per cent, and was usurious, and that the note “ should have been drawn for so much less than -it was.”
    A rule to show cause why the judgment should not be opened was granted.
    After hearing the rule the court made this order :—
    “ On filing paper by plaintiif remitting $80, and interest on same from date of original judgment, rule is discharged. If plaintiff refuse to remit that amount, the original judgment is opened as to said amount of $80 and' interest thereon, and the defendant let into defence as to that amount, and to that end and for the purpose only of letting said defendant into defence as to that amount, said revival judgment is hereby opened.”
    The defendant took a writ of error, and assigned the following error:—
    The court erred in refusing to open the revived judgment, and let the defendant into a defence for the purpose of applying the usury paid in this case ; in satisfaction of the balance of this judgment.

      H. N. Williams, (with whom was W. IT. Carochan, for plaintiff in error).
    For excess of power the exercise of the discretion of the court below as to opening a judgment may be reviewed by the Supreme Court: Brown v. Simpson, 2 Watts 233; Bailey v. Musgrave, 2 S. & R. 219; Huston v. Mitchell, 14 Id. 310; Knox v. Flack, 10 Harris 337; Philanthropic Building Association v. McKnight, 11 Casey 471; Campbell v. Sloan, 12 P. F. Smith 481.

      W. Peet, for defendant in error.
    A refusal to open a judgment is never a transgression of power: Henry v. Brothers, 12 Wright 70; Riegel v. Wilson, 10 P. F. Smith 388; Breden v. Gilliland, 17 Id. 34; Bunce v. Wightman, 5 Casey 336.
   The opinion of the court was delivered, March 16th 1874, by

Agnew, C. J.

It needs no authority to prove that the opening of a judgment is a matter of discretion, and generally cannot be reviewed on a writ of error, unless where the opening of a judgment, in the particular case, is an excess of power: Catlin v. Robinson, 2 Watts 373. The refusal to open a judgment is simply to do nothing, to stand still, and is not a transgression of power : Henry v. Brothers, 12 Wright 70. Cases such as Knox v. Flack, 10 Harris 337, stand on a different footing, to wit, the want of power to enter the judgment, which become a subject of error, if not relieved by the court below. In that case infancy rendered the confession of judgment voidable, the warrant of attorney being void. It was a case of want of jurisdiction over the person of the party, and consequently could be corrected upon a writ of error. The court of error has power in such a case to determine the fact, or have it determined, to prevent injustice. This doctrine is even more strongly asserted in Banning v. Taylor, 12 Harris 289. But in this case before us there was no want of power to enter the judgment, and no want of jurisdiction over the person of the defendant. The usury complained of did not appear on the face of the judgment, or of the instrument upon which it was entered. It is true it entered into the transaction, and might therefore be ascertained, and would then constitute a ground upon which the court might open the judgment and let the defendant into a -defence as to the usurious portion of the sum contained in the paper and judgment upon it. But it did not vitiate the judgment so as to make it ipso facto a subject of a writ of error. On this principle a writ of error would reach every judgment containing some portion which a defendant might on a trial defend against. The refusal of the court to open this judgment was therefore no ground of error. We must presume that the court acted properly and upon sufficient reason in declining to interfere. Judgment affirmed.


text:
    Hunt versus Wall et al.

    1. Land was sold by parol by a married woman; the purchaser went into possession in 1835; in that year she died. The husband died in 1863; the purchaser and those claiming under him held adverse possession until 1870, when ejectment was brought by the heirs of the wife. Held, that the possession having continued for more than thirty years, the Act of April 23d 1856, sect. 1, was a bar.
    2. Under the Act of 1856, there is no exception for persons under disabilities.
    3. The Acts of March 26th 1785 and April 23d 1856, compared and construed.
    Marcb 11th 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Wyoming county: No. 185, to January Term 1874.
    This was an action of ejectment for 50 acres of land in Falls township, Wyoming county, commenced June 18th 1870, by Dennis Wall and others against Stephen Hunt. The plaintiffs were heirs at law of Celinda Hubbard, formerly Headley, deceased.
    The land in dispute was part of a tract of 329 acres, surveyed to Robert Taylor and patented to- John Ewing. 150 acres of the tract through a tax sale became the property of Samuel Headley, on the 16th of June 1827. February 18th 1831 he devised 50 acres, the land in dispute, to his daughter Celinda Hubbard (above named), then the wife of Sylvester Hubbard. Mrs. Hubbard, her husband being still living, sold 25 acres of the tract to James W. Quince, who entered into possession. She died in 1835. In 1843 a judgment was recovered against Quince; in May 1844(Quince sold his title to L. H. Gulick, subject to the judgment. And it was sold by the sheriff under that judgment in October 1848 to John Sickler. On the 6th of August 1857 Sickler conveyed to Stephen B. Hunt. Sylvester Hubbard, the husband of Celinda Hubbard, died in 1863.
    There was evidence that Quince and those who claimed under him had held adverse possession of the land from the sale to him by Mrs. Hubbard up to the issuing of the writ in this case, when Hunt, the defendant, was in possession. These facts appeared in evidence on the trial of the case, November 25th 1873, before Elwell, P. J.
    The court charged : * * *
    “ It would appear from the testimony on the part of both the plaintiff and the defendant, James Quince went into possession under a purchase by parol from Mrs. Hubbard, then a married woman. This purchase ivas of twenty-five acres — part of the fifty owned by Mrs. Hubbard.
    “ Mrs. Hubbard’s contract not being in writing, nor acknowledged in the manner required by law, gave to James Quince no title nor legal right of possession to any part of the land. The contract, as proved either by the evidence of the plaintiff or that of the defendant, is not a bar to the right of plaintiff to recover.

      “ It appears by the undisputed evidence, that Mrs. Hubbard died in 1835 and that her husband, Sylvester Hubbard, died in 1863, about seven years before the bringing of this suit. When Mrs. Hubbard died her husband became tenant by the curtesy, and had the right of entry and possession during his life. The heirs of Celinda Hubbard, during that period, could not maintain an action for the recovery of the possession, and, therefore, from 1835 to 1863 the Statute of Limitations was suspended and did not operate to bar the rights of the plaintiffs.
    “ The statute of 22d April 1856, in order to have a reasonable construction, must be held to be a bar after thirty years, during which the parties having the title might assert their right of possession. Rut if it is to have the effect of a bar in all cases, whether reversioners or remainder-men have the right of entry or possession or not, the Supreme Court should be the first to give it that construction.
    “ I therefore instruct the jury that, under the undisputed evidence as to the time of the death of Celinda Hubbard and of her husband, the Statute of Limitations is not a defence against the legal title of the plaintiff, if you believe the evidence as to location.”
    The verdict was for the plaintiffs.
    The defendants removed the record to the Supreme Court, and, amongst others, assigned for error, that the court erred in charging that the plaintiffs were not barred by the Statute of Limitations.

      W. M. Piatt, J. U. Piatt and E. W. Smith, for plaintiff in error,
    cited Henry v. Carson, 9 P. F. Smith 301; Act of April 23d 1856, sect. 1, Pamph. L. 532, 2 Br. Purd. 930, pl. 13; Stoolfoos v. Jenkins, 8 S. & R. 175; Pratt v. Eby, 17 P. F. Smith 402.

      I. A. Sittser, W. E. Little and O. A. Little, for defendants in error,
    cited Marple v. Myers, 2 Jones 122; Hall v. Vandegrift, 3 Binn. 374 ; Carlisle v. Stitler, 1 Penna. R. 6 ; Gernet v. Lynn, 7 Casey 94; Crow v. Knightlinger, 1 Id. 343; Henry v. Carson, 9 P. F. Smith 297.
   The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

This was an action of ejectment brought by the heirs of Celinda Hubbard. The land in question was devised to her in 1831; she was then the wife of Sylvester Hubbard, and so continued to the time of her death in 1835. During this interval of time, she sold, by a parol contract to one Quince, twenty-five acres thereof. During her life, Quince took possession of the land so purchased, and perhaps of all the land in controversy. The possession then taken by Quince was continued by him, and by persons claiming under him, without interruption down to the commencement of this suit. It was then held by the plaintiff in error. The summons issued in June 1870. The sale made by Mrs. Hubbard being invalid by reason of her coverture, the Statute of Limitations was interposed as a bar to a recovery by the heirs. It appears that Sylvester Hubbard survived his wife and died in 1863the heirs claim they had ten years after the death of Sylvester in which to bring their suit, and that the adverse possession commenced during the life of their mother, was no bar to their recovery. The court below adopted this view of the law; this construction of the statute is assigned as error, and is the main point in the case.

The 2d section of the Act of 26th of March 1785, Purd. Dig. 927, pi. 3, declares, “ that no action to recover lands, can be maintained by any person, unless brought within twenty-one years after his or her right or title to the same first descended or accrued.” It contains no exception in favor of persons who may be under legal disabilities. Minors and feme coverts are thereby given no longer time than any other persons ; the rights of all are equally barred at the expiration of twenty-one years. The 4th section of said act excepts persons under legal disabilities, from the restricted application of the second section. It provides, “ that if any person or persons having such right or title be or shall be, at the time such right or title first descended or accrued, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, * * * then such person or persons, and the heir or heirs of such person or persons, shall and may notwithstanding the said twenty-one years be expired, bring his or their action, or make his or their entry, as he, she or they might have done before the passing of this act, so as such person or persons, or the heir or heirs of such person or persons, shall within ten years next after attaining full age, disco verture, soundness of mind, enlargement out of prison, * * * take benefit of or sue for the same, and no time after the said ten years. And in case such person or persons shall die within the said term of ten years under any of the disabilities aforesaid, the' heir or heirs of such person or persons, shall have the same benefit that such person or persons could or might have had by living until the disabilities should have ceased or been removed.” It was said in Henry v. Carson, 9 P. F. Smith 297, that the correct interpretation of the phrase die within the said term of ten years” is to read it “inside of not overstepping before the commencement of the said term of ten years.” Thus it will be observed all the exceptions which extend the right of action beyond the twenty-one years, are confined to persons, and the heirs of persons, who were under legal disabilities when the right or title, under which they claimed, first descended or accrued. If the right or title was first acquired by a person while under either of said disabilities, then such person notwithstanding the twenty-one years had thereafter expired, might, within ten years after the disability was removed, maintain his action. If such first acquirer died under any of said disabilities, then.the heir or heirs of the one so dying, was given the same length of time in which to bring suit, as the said acquirer would have had by living until the disability was removed.

As the heirs of Celinda Hubbard had no right to the possession, and could not maintain ejectment, during the life of Sylvester Hubbard, they would have had, under this section, ten years after his death in which to bring suit: Carlisle et al. v. Stitler, 1 P. R. 6 ; Marple et al. v. Myers, 2 Jones 122 ; Henry v. Carson, supra.

Has subsequent legislation so changed the law as to bar their right of action ?

'Two Acts of Assembly restricting the operations of this 4th section have been passed.

The 15th section of the Act of 14th April 1851 (Purd. Dig. 929), pi. 8, declares, “ from henceforth no person or persons Avhatsoever shall make entry into any manors, lands, tenements or hereditaments, after the expiration of forty years next after'his, her or their right or title to the same first descended or accrued; nor shall any person or persons whatsoever have or maintain any writ of right or any other real or personal writ or action for any manors, lands, tenements or hereditaments of the seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, than within forty years next before such writ, action or suit so hereafter to be sued, commenced or brought.” The 7th section of the Act of 4th May 1852, declares that the aforesaid 15th section shall be “ construed to extend to, and apply only to writs of right and other writs pertaining to manorial lands in the city and county of Philadelphia.” The next act, that of 22d April 1856 (Purd. Dig. 930, section 1, pi. 13), declares “no exception in any Act of Assembly respecting the limitation of actions in favor of persons non compotes mentis, imprisoned, femes covert or minors, shall extend so as to permit any person to maintain any action for the recovery of any lands or tenements, after thirty years shall have elapsed since the right of entry thereto accrued to any person within the exceptions aforesaid.” It is entitled “ An Act for the greater certainty of title and more secure enjoyment of real estate.” Under the 4th section of the Act of 26th March 1785, an exclusive and adverse possession of more than fifty years might give an uncertain title. A coverture extending to an advanced age might be followed by ten succeeding years before the holder of a title by adverse possession would be quieted in his estate. The title remained uncertain for an indefinite number of years. The Act of 1856 makes the limitation of time fixed and definite. It declares a lesser number of years shall mark the ultimate limits of time within which the rights of persons under the disabilities named can be asserted by law. The intent is most manifest. The language is clear and explicit. It admits of one construction only. It strikes at all previous laws, which excepted persons under disabilities, from the operation of the' 2d section of said Act of 1785. It does not entirely repeal the 4th section, but modifies it. It designates thirty years as the longest period within which such a person can successfully prosecute his claim. That is the bound beyond which neither feme covert nor minor can pass without loss of title.

. We think therefore the learned judge erred in charging that the Statute of Limitations constituted no defence, and the fourth assignment is sustained. We discover no merit in the other assignments.

Judgment reversed, and a venire facias de novo awarded.


text:
    Jones versus Tracy.
    1. Under an attachment-execution the defendant duly claimed the $800 exemption. The garnishee suffered judgment by default for want of an appearance. Reid, that the defendant could not be affected by garnishee's failure to appear.
    2. A garnishee can. plead to an attachment only what tends to discharge him from the debt due to the defendant in the attachment.
    3. It was not for the defendant to prevent judgment by default against the garnishee.
    4. The judgment against the garnishee ought to have been so framed as to protect the defendant’s exemption.
    5. The judgment against the garnishee was a judgment for the amount of the plaintiff’s claim.
    6. A regular judgment against a garnishee concludes with his discharge of the amount he has to pay under the attachment.
    7. The act relating to attachments has no provision as to the effect of a judgment by default for want of appearance ; this is provided for only on default of answering interrogatories and on a trial and verdict.
    8. The proper form of judgment by default for want of an appearance given in this ease.
    March 11th 1874.
    Before Agnew, C. J., SharSwood, Mercur and Gordon, JJ. Williams’ J., at Nisi Prius.
    Error to the Court of Common Pleas of Bradford county: No. 250, to January Term 1874.
    This was an attachment-execution issued February 17th 1873, by G. P. Tracy against Thomas J. Jones, in which Alexander Solomon was the garnishee. The sheriff returned that he had served the writ on Solomon on the 18th of February, and summoned him as garnishee; and that he had served the writ on the 7th of April on Jones, and that on the 1st of May Jones gave him a notice “ claiming the exemption of §300 from the money attached by virtue of this writ.”

      On the 12th of May 1878, on motion of the plaintiff’s attorney, judgment was entered against Solomon, garnishee, for want of an appearance.
    A fi. fa. was issued on this judgment against Solomon, the garnishee ; the sheriff returned:—
    “Received September 6th 1878, of A. Solomon, by his attorney, James "Wood, seventy-six dollars and ninety-six cents, in full for the within debt, interest and all costs, receipt given.”
    This sum was paid into court and a rule was granted to show cause why the money raised on the fi. fa. against Solomon, the garnishee, should not be paid to Jones, the defendant in the execution.
    The court (Streeter, P. J.) discharged the rule, delivering the following opinion :—
    “When the attachment-execution was served, Jones gave the sheriff notice that he claimed his exemption of three hundred dollars, and the sheriff so returned. No appearance was entered for Solomon, the garnishee, and judgment was taken against-him for the amount of plaintiff’s claim; and execution was issued and the money made. The plaintiff is entitled to take this money out of court — Jones has no claim to it. Whether it was the duty of Solomon, or Jones, to see that judgment was not taken by default we will not now decide. The plaintiff obtained a judgment which he was not entitled to, because no objection was made by either the defendant or the garnishee. If it was the duty of the defendant to see that it was done, he has lost his exemption by his negligence, but if it was not incumbent upon him to see that judgment was not improperly taken, the garnishee may be compelled to pay the money twice. All that is now decided is that Tracy shall receive the money made upon his execution.”
    Jones removed the record by writ of error, assigning the discharge of his rule for error. .

      Watkins & Little, for plaintiff in error.
    The defendant was entitle'd to his exemption: Strouse v. Becker, 2 Wright 100; s. c. 8 Id. 206; Landis v. Lyons, 21 P. F. Smith 473. There is nothing in the Exemption Law nor in its principles to require the defendant to see that an appearance was entered for the garnishee; nor is it required of the garnishee. His failing to appear admits that he has the property attached; — his payment of the judgment is a discharge as to the defendant of the amount of the judgment: Layman v. Beam, 6 Whart. 184. The garnishee could not set up as a defence what interested the defendant only : Fox v. Reed, 3 Grant 81; Reed v. Penrose, 2 Id. 472; Myers v. Baltzell, 1 Wright 491; Sergeant on Foreign Att. 102; Bair v. Steinman, 2 P. F. Smith 423.

      Peck & Streeter, for defendant in error.
    The judgment against the garnishee is conclusive as to parties and privies: Megee v. Beirne, 8 Wright 62. The garnishee was bound to make defence that the defendant claimed the exemption, if he had not sufficient to satisfy the execution beyond the $300: Baldy v. Brady, 3 Harris 108 ; Bank of N. Liberties v. Munford, 3 Grant 233.
   The opinion of the court was delivered, May 11th 1874, by

Agnew, C. J.

The Act of 8th April 1869, supplementary to the Exemption Law of 1849, 1 Bright. 638, gives to a defendant a right to elect to retain his exemption or any part thereof out of any bank-notes, money, stock, judgment or other indebtedness' to such, person.” It is admitted that Thomas S. Jones, the defendant below, duly claimed his exemption out of the effects in the hands of Al’r Solomon, the garnishee. Here, then, there was a clear legal right claimed in time, and yet the court below gave judgment against Jones’s exemption, on the ground that there was a judgment by default against the garnishee, which either he or Jones ought to have prevented. But how could Jones be affected by Solomon’s neglect to appear ? His right was to have his $300 exemption against the plaintiff. Presumptively, as the case stood, Solomon owed a debt to Jones ; and it should he a matter of indifference to him whether the money would go to Jones or to the plaintiff. If the neglect of Solomon to appear can be made to displace the exemption, it would enable the plaintiff and garnishee always, by collusion, to avoid the exemption, and discharge the garnishee to the extent of the plaintiff’s debt. The garnishee can plead to the attachment only that which tends to discharge himself from the debt he owes to the defendant in the attachment, or protect himself against a double recovery. He cannot plead or set up the exemption, this is a personal privilege of the defendant, who must avail himself of it, and here the defendant has done so. It was not the business of the defendant to prevent judgment by default against the garnishee. The real difficulty here is that the judgment by default was erroneously entered. It ought to have followed the facts of the case and to have been so framed as to protect the defendant’s exemption. It was simply a judgment for the amount of the plaintiff’s claim. But every regular judgment in attachment concludes with a discharge of the garnishee to the extent he has to pay under the attachment: Sergeant on Attachment 40; 6 Wharton 181. If, therefore, the garnishee’s debt to the defendant is less than the exemption of $300, an unqualified judgment of discharge would cause the defendant to lose so much of his exemption. But it is very evident that the neglect of the garnishee to appear was his own fault and not that of the defendant, and therefore the garnishee alone should suffer for his omission. Our act relating to attachment has made no provision as to the effect of a judgment by default for want of an appearance, having provided for this effect of judgment in case only of a default to answer interrogatories, and upon trial and verdict. But in Layman v. Beam, 6 Wharton 181, opinion by Sergeant, J., it is held that the legal effect of a judgment by default for non-appearance, is, that the garnishee has assets of the defendant in his hands sufficient to answer the plaintiff’s debt and costs. The garnishee was bound to know that the defendant had a right to elect to retain his exemption out of the debt, and therefore, that his default might leave him liable to the plaintiff beyond the sum allowed to be retained. The effect of the default was an admission by the garnishee that he owed the defendant a sum sufficient to discharge the plaintiff’s debt over and above the exemption of $300. The proper judgment, therefore, would have been that the plaintiff, Gr. P. Tracy, have judgment by default against Al’r Solomon, as garnishee, for want of an appearance, and that the plaintiff have execution of so much of the debt due by the said Al’r Solomon to the said Thomas S. Jones, as will satisfy the judgment of the said Gr. P. Tracy against the said Thomas S. Jones with interest and costs, and if the said Al’r Solomon refuse or neglect, on demand by the sheriff, to pay the same, then to be levied of the proper goods, chattels and lands of the said Al’r Solomon, according to law, as if the same were his proper debt; and that the said Al’r Solomon be thereupon discharged as against the said Thomas S. Jones for the sum so attached and levied of the debt and moneys in his hands to the extent and so far only, as the same sum so attached and levied may exceed the sum of $300; without prejudice to the right of the said Thomas S. Jones to recover from the said Al’r Solomon the said sum of $300 or any less sum due and owing by the said Al’r Solomon to him at the time of, or at any time since, the service of the attachment.

We, ourselves, might so enter the judgment, but as the default of the garnishee may have arisen from a misconception of his duty, which the court below might rectify, if injustice would be done by opening the judgment on terms, we shall reverse the judgment below and order a procedendo.

Judgment reversed and a procedendo awarded.


author: Sharswood, J.

text:
    Brown versus Bennett.
    1. Although a married woman cannot contract for the sale of her real estate, yet after her coverture has ceased she may ratify such contract.
    2. A wife and her husband by agreement, not acknowledged, contracted to sell her land ; the consideration to be paid in instalments ; after her husband’s death she received an instalment, for which she endorsed on the contract a receipt, to apply on the contract. This was a re-delivery in writing of the original agreement, and not a new parol contract void by the Statute of Frauds.

      March 11th 1874.
    Before Agnew, C. J., Sharswood, Merour and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Luzerne county: No. 237, to January Term 1874.
    This was an action of ejectment, brought February 10th 1871, by Margaret D. Brown against Mary A. Bennett, for one-fourth of an acre of land in the borough of Pittston.
    A case was stated for the opinion of the court in substance as follows:—
    “ The plaintiff, a married woman, was the owner of about one-fourth of an acre of land in the borough of Pittston. The deed to her is dated the 29th of July 1867, and is for the consideration of eight hundred dollars. On the 8th of August 1866, by writing under seal, to take effect on the 1st of November 1866, she agreed for the like consideration of eight hundred dollars, to sell and convey the lot to the defendant. The consideration, with interest, was payable $400 on the 1st of November 1866 ; $200 on the 1st of April 1867 ; $100 on the 1st of April 1868, and $100 on the 1st of April 1869. Upon the written agreement, made part of the case stated, are endorsed as paid, August 28th 1866, $400, and 1st pf April 1867, $210, to her agent.
    “Jacob D. Brown, the husband of the plaintiff, died October 14th 1867, and she received upon the contract on the 11th of April 1868, the sum of one hundred and twelve dollars. The receipt for this sum endorsed -upon the contract, signed by Thomas Ford, who also had signed, as her agent, the receipt of the 1st of April 1867, is in these words:—
    “ ‘ Received, Pittston, April 11th 1868, one hundred and twelve dollars from Mrs. Mary A. Bennett, pr. hands of John S. Hinds, to apply on the within contract.’

      “ The defendant, before suit brought, tendered to the plaintiff the balance due and unpaid, after deducting the foregoing payments, and the tender has been kept good.* * *
    “'The question presented is, whether the receipt by Mrs. Brown of a part of the purchase-money after discoverture operates either as an estoppel, or in affirmance of the contract, and validates the same.
    “ If the plaintiff be entitled to recover for the land, or to recover, subject to a portion, and how much, or all of the purchase-money, judgment fo be entered therefor to be of the same as if upon a verdict of a jury. * * * If the court be of opinion that the plaintiff is not entitled to recover, then judgment to be entered for the defendant.”
    The agreement referred to in the case stated was, “between Margaret D. Brown and Jacob' D. Brown her husband in right of said Margaret,” and Mary A. Bennett. After describing the property contracted for and the stipulations as to payments, &c., it concludes:—
    * * * “ And the said Mary A. Bennett hereby confesses judgment to the said Margaret D. Brown for the said sum of eight hundred dollars, with all costs of entry and of suit, and a release of all errors, and waiver of inquisition on real estate, but the entering of this judgment of record, shall not be construed as a bar to ' any other and different process to which said Margaret D. Brown may be otherwise entitled under this instrument.
    “ Witness our hands and seals in duplicate.
    Margaret D. Brown, [seal.]
    Mary A. Bennett. [seal.]”
    The agreement was not acknowledged.
    Dana, J., delivered the opinion of the court below. In concluding, he said:—
    “Whilst the questions involved are not free from difficulty, yet upon the whole case we direct that judgment be entered in favor of the plaintiff for the land described in the writ; to be released, however, upon condition that the defendant within ten days pay to the plaintiff the sum of one hundred and thirty-three dollars and twenty-seven cents, being the balance of purchase-money ascertained as of the 11th of April 1872, the date of trial, with interest upon said sum, together with the costs in the case. The plaintiff to deposit in the prothonotary’s office for the defendant a deed for said land, agreeably tó the terms of the agreement of the 8th of August 1866.”
    The plaintiff took out a writ of error.
    No assignments of error appeared in the paper-books.

      O. L. lamberton (with whom was M. W. MoAlarney), for plaintiff in error.

      0. Pihe (with whom was II B. Payne), for defendant in error.
   The opinion of the court was delivered, March 16th 1874, by

Sharswood, J.

That a married woman has no capacity to contract for the sale of her real estate, or to convey it, except in the precise statutory mode conferring the power, is one of the best settled doctrines of our law. See the cases cited in the opinion of the present Chief Justice in Glidden v. Strupler, 2 P. F. Smith 402. It was held in that case that she could not be affected either by legal or equitable estoppel, so as to preclude her heirs from setting up and recovering upon her title. But it was not decided in that case, or any other, that she could not ratify the contract after the coverture has ceased, and she has thereby become perfectly sm ju/ris.

It is contended that the contract being absolutely void was incapable of ratification without a new contract founded upon a new consideration. It may well be that a naked ratification by the married woman after discoverture would not avail. A mere admission of her liability might not be sufficient. But there is something more in this ease. She received one of the instalments due upon the contract after the death of her husband. The authority of the agent is not denied, and the case stated expressly admits that she received the money. This is a consideration, and sufficient to support the promise to ratify the contract, admitting a consideration to be necessary. It was, in effect, a redelivery by her of the articles, and an acknowledgment that she had duly received the instalments previously paid during the coverture. Such a redelivery of the original agreement in writing is not a new parol contract void by the Statute of Frauds.

The case of Clark v. Thompson, 2 Jones 274, relied on by the plaintiff in error, as almost exactly- parallel with that in hand, was a very peculiar one, and decided on its circumstances. It is true that the married woman after the discoverture had received some of the stipulated returns reserved in the articles. Yet the returns then ceased to be paid, and she was ejected from two acres of land reserved to the grantors. The conditions of the contract had been clearly violated by the vendee. “The defendant,” said Mr. Justice Burnside, “ came in under the title of Clark and wife upon certain conditions which they refuse to fulfil. They deny her right, yet they say they have a grant of that right in fee ; but when that grant comes to be examined, the law in its wisdom replies to them, that when Fanny Clark signed the agreement she was a feme covert; as to her it was void, and the law cast the estate upon her on the death of her husband, when she became a feme sole; it did not bind her, she never acknowledged it as the statute requires. If they had suffered this lone woman to remain in her cabin, and paid her the rent the agreement required, there is no doubt she would have been satisfied.” The stipulation in favor of the woman had not been performed but for two or three years after her husband’s death, which was twenty years before the trial. It is clear that the case was decided on the ground of a breach of condition, and although it was insisted that there ought to have been an entry before suit, no notice was- taken of that objection, and it has been since solemnly held in Scheaffer v. Scheaffer, 1 Wright 525, that an entry by the grantor is not required by the laws of Pennsylvania to complete the forfeiture.

Judgment affirmed.