text:
    Smeich versus The County of York.
    1. County tax was assessed against Foust in 1868, his land was sold by the sheriff and the purchaser went into possession in October 1869. Held, that the purchaser was not liable for the tax.
    2. The tax-laws of April 6th 1802, April 3d 1804, and the 46th section of Act of April 15th 1834, compared and construed.
    3. Henry v. Horstick, 9 Watts 413; McGregor a. Montgomery, 4 Barr 237 ; Caldwell v. Moore, 1 Jones 58, remarked on.
    May 4th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of York county: No.- 25, to May Term 1871.
    This was an amicable action and case stated in which the County of York was plaintiff and Jacob Smeich defendant (August Term 1870).
    The case was as follows;—
    “ In the year 1869, and previously, Joshua E. Foust was the owner of a certain tract of land, situate in Shrewsbury township, York county, and certain county taxes were assessed against him on the said tract of land. In August 1869, the said tract of land was sold at sheriff’s sale, and purchased by Christoff Kolter. Christoff Kolter conveyed said tract of land to Jacob Smeich. The taxes assessed in November 1868 against J. E. Foust are now demanded from the above defendant, who went into possession of said lands on the 1st day of October, 1869. The collector’s warrant is in the form prescribed by law. If Jacob Smeich should pay the said taxes and is legally liable to pay the same, and his goods and chattels on the premises are liable to distress therefor, then judgment to be entered in favor of the plaintiff for $18.27; otherwise to be entered for defendant.”
    The court (Fisher, P. J.) entered judgment for the plaintiff for $18.27 according to the case stated.

      May 15th 1871,
    This was assigned for error by the defendant upon the removal of the record to the Supreme Court.

      W. C. Chapman, for plaintiff in error,
    cited Act of April 15th 1834, § 46, Purd. 943, pi. 84, Pamph. L. 518; Caldwell v. Moore, 1 Jones 58; McGregor v. Montgomery, 4 Barr 237; Parsons v. Allison, 5 Watts 72; Scott v. Whitely, 3 Penna. L. J. 361; Moore v. Marsh, 10 P. F. Smith 46.

      J. Gibson, for defendant in error.
   The opinion of the court was delivered,

by

Agnew, J.

The question presented by the stated case is, whether a purchaser at sheriff’s sale in August 1869 is bound for the payment of taxes assessed against the former owner of the land in November 1868, and his goods on the premises liable to distress therefor. The court below held that he was liable under the decision in Henry v. Horstick, 9 Watts 413. That case is inapplicable to this. It arose before the Act of 1834, and the opinion of Justice Kennedy was founded on a different law. The action there was brought against the administrator of a former owner who had died more. than a year before the assessment of the taxes paid by the plaintiff, and the court held that the estate of the decedent was not liable. The act in force at the time the taxes were assessed and paid was the Act of 3d April 1804, 4 Smith’s Laws 201, the 6th section of which applied only to tenants who occupy or possess lands, and were made liable to pay all taxes which during such occupancy or possession may thereon become due and payable. They were authorized also to recover the sum paid from their landlords or defalcate the amount against their rent. In that act there is no reference to the time of assessment of the taxes, but to the time when they fall due and payable. This section applied to county taxes. The provision for road taxes was continued in the 8th section of the. Act of 6th April 1802, 3 Smith’s Laws 516. It provides: “ That the tenant or tenants or other persons residing on lands owned by persons not residing in the township, his, her or their goods shall be liable to be levied on in manner aforesaid for theipayment of said taxes; and where any tenant or tenants shall have taken or hereafter may take a lease of lands or tenements for one or more years, and of which the tenant shall be in possession at the time of assessing or levying the tax for public roads and highways, and shall pay the rate hereby imposed on the said lands or tenements so leased, in such case it shall be lawful for the tenant or tenants to deduct the, tax out of the rent due or to become due, or to recover the same from the owner or owners by action of debt with costs of suit.” The 46th section of the Act of 15th April 1834 was taken, we are informed by the revisers of the Code, from the 6th section of the Act of 1804 and the 8th section of the Act of 1802. It reads thus: The goods and chattels of any person occupying any real estate shall be liable to distress and sale for the nonpayment of any taxes assessed upon such real estate during Ms possession or occupancy, and remaining unpaid, in like manner as if they were the goods and chattels of the owner of such real estate.”

It is evident the revisers rejected the features of the Acts of 1802 and 1804 which appeared to confine the liability to the goods of tenants only holding by lease, and extended it to the goods of the person occupying any real estate. But as this would comprehend an alienee or other person coming in under a conveyance long after the; taxes were laid, the revisers .adopted the feature of the 8th section of the Act of 1802, which expressly confines the liability to the person in possession at the time of assessing or levying the tax for public roads and highways. Hence the provision in the Act of 1834 is that the goods of the occupier shall be liable for the non-payment of any taxes assessed upon such real estate during Ms possession or occupancy, and remaining unpaid. The section is concisely written and clearly expressed, and has but one meaning. There is no authority for transposing the words of a law so plainly expressed, and made upon a purpose so evident, gathered from former laws. This construction was given to the 46th section of the Act of 1834 by Judge McCalmont in McGregor v. Montgomery, 4 Barr 237, and not criticised by this court in aflirming the judgment. The case of Caldwell v. Moore, 1 Jones 58, is that of a tenant under lease, and Justice Rogers quotes at length the 6th section of the Act of 1804, making no reference to the Act of 1834. The court below erred in following the case of Henry v. Horstick, supra, and giving judgment for the plaintiff below.

The judgment is reversed, and judgment is now entered for the defendant below with costs.


source: Caselaw Access Project

author: by Ag-new, J.

license: Public Domain

text:
    Hartman et al. versus Mount Joy School District.
    1. The bounty laws do not create a municipal liability, or validate loans or advances to procure volunteers, on any authority or understanding of private parties.
    2. Money was appropriated by school directors for bounties and additional funds raised by private subscriptions. The whole was paid to a committee appointed by citizens. The subscriptions not being sufficient, the district was not liable for the expenses of the committee.
    May 4th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.

      Error to the Court of Common Pleas of Adams county: No. 59, to May Term 1871.
    This was an appeal by Moses Hartman and others, school directors of Mount Joy School District, from the report ofythe township auditors upon the settlement of their accounts.
    The appeal was filed April 10th 1867, and by agreement of the parties an issue was directed by the court, in which the district was plaintiff and the directors defendants.
    There were a number of questions distinctly specified in • the issue: 2. Whether the directors were entitled to credit for certain bounties, &c., paid by the directors ?
    8 and 4. 'Whether a payment of $195.68 made to John Rebert, and one of $47.54 to Aaron Sheely, were to be credited to the director's.
    6. Whether $10 counterfeit money in the hands of the treasurer should be credited to the commissioners.
    The directors had authorized the payment of $300 bounty to volunteers under the Acts of 1864 and 1865; volunteers could not be obtained for less than $590; the difference was raised by subscription of the citizens of the township; Rebert and Sheely were appointed a committee by the citizens to attend to procuring recruits, paying out the money, &c.; both the money paid by the directors and that raised by subscription passed into Rébert’s hands, and he incurred the greatest part of expense and labor; he had no authority from the school board as such; he did not keep the two funds separate; the bills of expenses were made up of travelling expenses, lodging, boarding, discount on money, &c. These expenses, together with the other matters specified in the agreement for the issue, the auditors refused to allow. The amount paid by the directors and the subscriptions were not enough to pay the bounties and expenses.
    The following are points of the defendants (the directors), with their answers:—
    4. The legislative grant of power to pay bounties to volunteers and raise money by taxation for that purpose, includes, by implication, power to defray the expenses necessarily incident to the purposes of the grant; and, therefore, if the jury believe that the bill of expenses proved by John Rebert was incurred in filling the quota of Mount Joy township, and was reasonable and proper in amount, and was allowed him out of the township money in his hands, the defendants are entitled to credit in this settlement for the amount.
    Answer: “ We cannot answer this point in the affirmative. We negative it. The expenses mentioned in it cannot be paid out of township funds, if the township had already paid $300 for each man put in.”
    5. If the bounty committee of Mount Joy township were obliged to pay an average of $590 per man to fill this quota, and if the money raised by subscription was not sufficient to pay the difference between $300 per man, which the law allowed the township authorities to pay, and the amount actually paid to each as proved by John Rebert, the school directors had the legal right to pay the expenses necessarily incurred in filling the quota out of the township funds, in addition to the $300 bounty.
    Answer: “ We cannot answer this point in the affirmative. The expenses mentioned in it cannot be paid out of the township funds, admitting the fact to be as stated in it, that each man put in cost $590, exclusive of expenses, and that $300 was paid out of the township funds for each man put in, exclusive of expenses.” •
    6. If Aaron Sheely agreed to contribute to the bounty subscription of Mount Joy township the amount of his expenses as a member of the committee, and if he expended as such $42.54 in filling the quota of said township, and if the bounty subscription of said township was not sufficient to pay the excess of bounty paid by the committee over the amount allowed by law, and if Mr. Sheely did not pay the amount into the subscription fund, but held his said hill of expenses in lieu of such payment, and this deficiency in the subscription was' supplied by township money; the result is the same as if he had paid the $42.54 into the fund and received it again out of the township money; and defendants having thus virtually paid this item, are entitled to credit for it in settlement.
    Answer: “ If the township of Mount Joy paid $300 towards putting in each man, no portion of the township funds could be taken for the purpose mentioned in this point.”
    The jury found for the plaintiff, the School District, as follows:— Expenses for John Rebert, .... $195.68
    “ “ Aaron Sheely, .... 42.54
    Counterfeit money in hands 'of Treasurer, . . 10.00
    $248.22
    The defendants, the directors, appealed and assigned the answers to their points for error.

      JR. Gc. McCreary, for plaintiffs in error,
    cited Acts of March 25th and August 25th 1864, Pamph. L. 85, 986.
    A construction must never be adopted that would defeat the purpose of the statute: Emily v. Caroline, 9 Wheat. 381; 1 Kent’s Com. § 462; People v. Utica Ins. Co., 15 Johnson 380; Dwarris on Statutes 696, 698, 718. Remedial statutes are to receive an equitable interpretation, so as more effectually to meet the beneficial end in view and prevent a failure of the remedy: Dwarris on Statutes, 726, 690, 691; 1 Kent Com. § 465; Allen v. Parrish, 3 Ham. 195.

      May 15th 1871,
    Where a general power is given or duty enjoined, there is given by implication every particular power necessary for the exercise of the one, or the performance of the other: Field v. The People, 2 Scammon Ill. Rep. 79; Hamilton v. Council of Pittsburg, 10 Casey 496; Gordon v. Preston, 1 Watts 385 ; Richard v. Dagget, 4 Mass. 534; Somerset v. Dighton, 12 Id. 383; Jackson v. Collins, 3 Cowen 89; Wilkinson v. Leland, 2 Pet. 662; Minor v. Mechanics’ Bank, 1 Pet. 64.

      McLean Woods, for defendants in error,
    'cited the same Acts of Assembly; Weister v. Hade, 2 P. F. Smith 476 ; Shirk v. Bucher, 3 Id. 95; Keasy v. Bricker et al., 10 Id. 9.
   The opinion of the court was delivered,

by Ag-new, J.

In the numerous cases arising under the bounty laws, it has been invariably held that it was not the intent of the legislature to create a municipal liability, or to validate loans or advances of money to procure volunteers upon any authority or understanding of private parties. The agreement or authority must proceed from the corporate or public officers: Tyson v. Halifax Township, 1 P. F. Smith 9; West Donegal Township v. Oldweiler, 5 Id. 257; Keasy v. Bricker, 10 Id. 9. That principle rules this case. The- money claimed as expenses was paid out of the subscription-money raised by the citizens. Rebert, the person who attended to the business and paid out the money, was appointed by a committee of the citizens who raised the money. His authority came from the township meeting, and not from the school board, as such; and the bill was made up of travelling expenses, lodging, boarding and discount on money. The expenditure was therefore not ;made upon the authority or agreement of the corporate authorities, but was incurred in ease of the citizens themselves by their voluntary act. The authorities cited to justify a liberal construction of the bounty laws, so as to cover expenses, might perhaps apply to the expenses incurred by the school directors themselves in the actual execution of their duties in reference to the payment of bounties, but not to payments or expenses voluntarily incurred by the citizens themselves, or their agents. The expense must savor of official character — something pertaining to the performance of an official function, if allowable at all.

Judgment affirmed.


author: by Sharswood, J.

text:
    Kuhns versus The Gettysburg National Bank.
    1. On proof of the loss or larceny of negotiable paper, the holder must affirmatively show that he took it in the usual course of business for value.
    2. If one obtains a bill from a finder, or a thief, or one who has fraudulently acquired it and obtains the money, he is liable to the real owner for the money, unless he took it for value in the usual course of business.
    3. The fact that the holder is a banker doing a very large business, does not change the rule.
    May 4th 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Adams county: No. 60, to May Term 1861.
    On the 6th of November 1867,' John Kuhns brought this action, which was debt, against The Gettysburg National Bank.
    The claim of the plaintiff was for the amount of the hereafter-mentioned draft, received b.y the defendants, but belonging to him. The draft, with its endorsements, is as follows:—
    “No. 1852. Washington, D. C., Dec. 4, 1865.
    Assistant Treasurer of the U. S., New York:
    Pay to Cashier of Gettysburg National Bank, or order, Four Hundred Ninety-nine & 95-100 Dollars.
    $499.95 (Paid Jan. 4, 1866). J. A. Lawler,
    Paymaster U. S. A.”
    Endorsements:
    “ Pay B. B. Comegys, Esq., Cash., or order,
    T. D. Carson, Cash.
    Pay Merchants’ National Bank, New York, or order.
    B. B. Comegys, Cash.
    J. D. Vermilye, Cash.”
    The case was before tried and the judgment reversed: 12 P. F. Smith 88.
    The plaintiff testified that he was entitled to $500 bounty, and signed a paper directing the paymaster-general to transmit the amount to the Gettysburg National Bank. The paper was as follows:—
    “ Gettysburg, Pa., Sept. 18th 1865. Paymaster-General IT. S. A.
    Is hereby authorized to transfer to the Gettysburg National Bank, Gettysburg, Pa., the amount of local bounty due us, retained by Lieut. Wm. F. Arnold, IT. S. disbursing officer at Harrisburg, Pa., which money has not been paid to us, but has been forwarded to the Department at Washington, D. C.
    David Hartzell,
    John Kuhns.”

      He had never received the money from the bank nor any one else. His captain, T. C. Norris, gave him the paper to sign, after he signed it he gave it to Norris: he never gave Norris authority to draw the money.
    Captain Norris testified that he did not receive Kuhns’s order on the paymaster-general nor did he receive his money; he had no knowledge of its having been received by anybody.
    Major Lawler, the United States paymaster, testified that he had paid" plaintiff’s bounty by a check on the assistant United States treasurer at New York; he gave the date, number, payee, and amount of the check, corresponding with the check as given above.
    Plaintiff proved that the check was on file, in the assistant treasurer’s office, the copy in. evidence being taken from it.
    Hartzell testified that he had received his money from the defendant after having been notified by Captain Norris to come and get it.
    The evidence was that the bank had collected the draft from the assistant treasurer of the United States, and that demand had been duly made by the plaintiff for the money and that he had been told there was no money in the bank belonging to him.
    The court (Fisher, P. J.) charged: “ This .case has been tried before. This court then charged the jury, ‘ If the bank had the check in question sent or presented to them, and was credited with it by the party to whom endorsed, it was their duty to inquire into the ownership; and if they paid it to the holder, if he was not the legal owner of the money, it was a mis-payment and cannot be set up as a defence in this suit.’ Upon that charge the jury found a verdict for the plaintiff. The case was afterwards removed to the Supreme Court. The view taken by this court was held to be erroneous, and the judgment was reversed and the case sent back to be again heard upon the principles laid down by the Supreme Court. * * * From this opinion it will appear that ‘ it was incumbent on the plaintiff to show that the money was received by the bank to his own use, and this he failed to do by merely proving the check or draft, and the receipt of the amount of it by the bank.’ By this decision we are bound, and we therefore instruct you that the evidence given on the present trial does not prove that the money was received by the bank to the plaintiff’s use, and therefore your verdict must be for the defendant.”
    The court then directed the prothonotary to take a verdict for the defendant. The jury hesitating to respond to these instructions, the court then said to them':—
    “ This court is a subordinate court to that of the Supreme Court, and whether they agree with our view of the law or not, it is our duty to instruct you as they direct, and we cheerfully do so. In like manner the jury are bound to obey the instructions of this court, whether they accord with the views of the jury or not, or whether the verdict that we direct you to render is in accordance with your views of justice or not. In the present case, if the jury find otherwise than they are directed by this court, we will set aside their verdict before the ink with which it is recorded becomes dry.”
    May 15th 1871,
    The verdict was for the defendant.
    The plaintiff took out a writ of error, and assigned the charge of the court for error.

      M. Gr. MeOreary, for plaintiff in error.
    Under the facts the defendant should have been required to explain its possession of the draft, and in the absence of other testimony they were chargeable with the money as received for the plaintiff’s use: Bank v. Kuhns, 12 P. F. Smith 88; Patton v. Ash, 7 S. & R. 125; Greatorex v. Gerrish, 4 Esp. 9; Flemming’s Ex’rs. v. McClain, 1 Harris 177. It is not necessary to prove notice before or at the time of payment: Calland v. Loyd, 6 M. & W. 26; Mason v. Waite, 17 Mass. 563; Hall v. Marston, Id. 579; Eagle Bank v. Smith, 5 Conn. 71; Dickson v. Cunningham, Mart. & Yerg. 221; Chitty on Cont. 606. It was a question for the jury: Gill v. Cubitt, 3 B. & C. 466; Egan v. Threlfal, 5 D. & R. 326; Snow v. Peacock, 3 Bing. 406; Strange v. Wigney, 6 Id. 677; Easley v. Crockford, 10 Id. 243.

      D. Wills, for defendant in error.
    Where one of two innocent persons must suffer he shall suffer who by his own acts occasioned the confidence and the loss: Story’s Eq., § 387 ; Chitty on Bills, § 60; Byles on Bills 332; Garrard v. Haddan, 17 P. F. Smith 82; Lawson v. Weston, 4 Esp. 56; Miller v. Race, 1 Burrow 452; Byles on Bills 126, 298, note c; Phelan v. Moss, 17 P. F. Smith 59.
   The opinion of the court was delivered,

by

Sharswood, J.

When this case was here before on a former writ of error (12 P. F. Smith 88), as it appeared upon the evidence, it was an attempt to make the bank liable upon the mere fact that it waá the holder and had received the amount of a draft drawn by the order and for account of the plaintiff in favor of the bank. It was clearly shown by authority that such an action could not be sustained; that the presumption was that the draft was taken either in payment of a debt or that cash was given for it at the time it was received. The presumption resting on the usual course of transactions of this nature was in favor of the defendants, and stabit presumptio. donee probetur in eontrarium. There was no fact or circumstance which threw any suspicion on the transaction — that the money or value for it had not been paid. Rut the evidence on the second trial was entirely different. Captain Norris, to whom Colonel Lawler testified that he- had sent the draft by mail, although examined as a witness on the former trial, was not asked whether he had ever received it. At all-events it did not so appear upon the record. But as we have it now, he testified that he had never received it. From his evidence and that of Colonel Lawler, the jury might well infer, especially in connection with the testimony of the plaintiff himself, that it had been lost or stolen from the mail or post-office. This fact, if believed by the jury, shifted the onus, and made it incumbent on the bank to prove value and bona fides. It may be difficult to do so, and so it may be in the case of any holder suing the drawer or maker of negotiable paper. Yet nothing is. better settled than that upon proof of the loss or larceny of negotiable paper the holder must affirmatively show that he took it in the usual course of business for value. This draft is in all respects the same as if it had been drawn by Kuhns himself on the assistant treasurer of the United States in favor of the Gettysburg National Bank. Suppose then it had been dishonored, and suit had been instituted by the bank against the drawer. Surely upon proof by the defendant that the draft had been lost, stolen or obtained from him fraudulently, the onus, would have been thrown upon the bank to have given some evidence of value. It is hardly necessary to refer to the long list of cases in this court which establish this rule: Holme v. Karsper, 5 Binn. 469; Beltzhoover v. Blackstock, 3 Watts 26; Knight v. Pugh, 4 W. & S. 448; Brown v. Street, 6 Id. 221; Albrecht v. Strimpler, 7 Barr 476. Many others might be cited. If a party receives a bill from a finder or a thief, or one who has fraudulently acquired it, and obtains the money on it, he is liable to an action for money had and received to the use of the real owner, unless he can show that, he took it for value in the usual course of business. The fact that the holder is a banker doing a very large business, and therefore that it is difficult for him to show the facts of this particular transaction among a great multitude of others, cannot change the rule of law, which is a salutary one. No point was made in the court below that it was necessary to show that notice had been given to the defendants before the trial that they would be called on to prove the consideration they had given for the draft. W e must assume that such notice had been given. It is not necessary to decide whether the rule as to notice applies. As this case goes back for another trial, it will be prudent for the plaintiff to give such notice, so as to obviate all question.

Judgment reversed, and venire facias de novo awarded.


author: Per Curiam.

text:
    Keller versus Denmead & Son.
    1. Materials were furnished to Keller, afterwards a petition in bankruptcy was filed against him, then a lien for the materials was filed in due time, then he was adjudged a bankrupt. The premises passed to the assignee, subject to the lien which was to be enforced in a state court, not in the United States court.
    2. The lien under the Mechanics’ Lien Law commences when the materials are furnished. Per Fisher, P. J.
    3. Such lien attaches to an equitable interest in the premises. Id.

    4. Materials were furnished on the contract of one tenant in common who was in possession. A lien could be entered against him as owner of the premises and a judgment had which would bind his interest. Id.

    May 4tb 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Adams county: No. 70, to May Term 1871.
    This was a scire facias sur mechanic’s lien, issued March 16th 1869, by Denmead & Son, against Moses A. Keller, with notice to Levi D. Maus and others, his assignees, for the benefit of creditors.
    On the 16th of July 1868, John H. Miller, with whom Moses A. Keller was then in partnership, entered into an agreement with Moses A. Keller and Jacob Keller, by which the partnership was dissolved, and by which he sold and contracted to convey in fee to the Kellers for $9000, the foundry buildings and improvements in Littleston, Adams county, theretofore occupied by the firm: the legal title was not conveyed to either of the Kellers. Moses Keller continued to carry on the business, and remained in possession of the foundry and other real estate. On the 22d of December 1868, Keller purchased from the plaintiffs a boiler and fixtures for his foundry, amounting to $1333.75; and on the 25th of January 1869, the plaintiffs furnished him other materials, &c., for his'foundry, amounting to $63.15. On the 12th of February, he made an assignment to Levi D. Maus and others, for the benefit of creditors. On the 1st of March, one of his creditors filed a petition in the District Court, praying that he might be declared a bankrupt. On the 9th of March, the plaintiffs filed their lien for $1396.90, for the above-mentioned materials, attaching a bill of items. The buildings, &c., mentioned in the claim were particularly described as a foundry and machine shops, main building, two stories, &c., “ and boiler building attached thereto of one story and a half, ” &c., and Keller was averred to be the owner or reputed owner. On the 17th of March, Moses A. Keller was adjudged a bankrupt, and William McSherry, Esq., appointed his assignee in bankruptcy.
    Upon the trial of the scire facias before Fisher, P. J., on the 30th of January 1871, the plaintiffs proved the delivery of the materials, &c., at the premises, sold by Miller to the Kellers, and gave evidence to show that the building containing the machinery, &c., was a new erection. The defendant also gave evidence on that question.
    The defendant submitted five points ; two of which related to the question as to whether the building was a new erection, which the court submitted to the jury as a mixed question of law and fact.
    The other points were:—
    3. If the lien claimed in this case was filed after the commencement of proceedings in bankruptcy which resulted in the adjudication of the defendant, Moses A. Keller, a bankrupt, it does not attach to the interest of the defendant in any real estate passing to the assignee in bankruptcy, by virtue of the adjudication in bankruptcy and the deed of assignment.
    4. If the legal title to the premises on which plaintiffs claim to have a lien, never vested in Moses A. Keller nor his assignee in bankruptcy, but a large amount of the purchase-money remained unpaid when the equitable interest of said Moses A. Keller was sold by the assignee by decree of court, there was no estate in Moses A. Keller at the time of the entry of said lien, or after-wards, to which it could attach, and plaintiffs are not entitled to recover.
    5. If, by the articles of agreement under which the property in question was held, Jacob Keller had an equitable interest in the same as tenant in common with Moses A. Keller, and the lien is entered only against Moses A. Keller, the lien is fatally defective and cannot be sustained, and the verdict of the jury must be for the defendants.
    The court reserved these points.
    The jury found for the plaintiffs for $1485.79, subject to the points reserved.
    The court afterwards entered judgment on the verdict for the plaintiffs on the reserved point, delivering the following opinion, adopted by the Supreme Court:—
    “ The verdict of the jury having established the facts that the building was a new erection, and that the boiler in question was furnished on the credit of the erection, the court are now called upon to enter judgment on the verdict. Several points were reserved, and the jury found their verdict subject to the opinion of the court on them.
    “ The first reserved point was as follows (and is the third point of the defendants):—
    “ ‘ If the lien claimed in this case was filed"after the commencement of proceedings in bankruptcy which resulted in the adjudication of the defendant, Moses A. Keller, a bankrupt, it does not attach'.to .the interest of the defendant in any real estate passing to the assignee in bankruptcy, by virtue of the adjudication in bankruptcy and the deed of assignment.’
    “We do not think this position a correct one. By our Mechanics’ Lien Law, ‘ the debt contracted shall be a lien until the expiration of six months after the work shall have been finished or materials furnished, although no claim shall have been filed therefor; but said lien shall not continue longer than the said period of six months, unless a claim be filed ... at or before the expiration of the said six months.’
    “ In the present case the materials were furnished on the 22d December 1868. The petition was filed to have Keller declared a bankrupt on the 1st of March 1869; and the mechanics’ lien of the plaintiffs was filed on the 9th of March of the same year.
    “We cannot think the bankruptcy of Keller operated to discharge a fixed lien, a lien made by statute. It is said, however, that in the case of James R. Dey, a bankrupt, the District Court of the United States for the Southern District of New York decided that a lien could not be filed after the petition in bankruptcy: Bankrupt Register of Dec. 1st 1869, No. 11. But the lien in that case was under the Lien Law of New Jersey, which, from the case, appears only to create a lien from the time it was entered. The case is not therefore applicable to a lien filed under the Pennsylvania Lien Law, where the lien commences when the materials are furnished.
    “ The second reserved point is as follows, and is the fourth point of the defendants :—
    “ ‘ If the legal title to the premises on which plaintiffs claim to have a lien never vested in Moses A. Keller nor his assignee in bankruptcy, but a large amount of the purchase-money remained unpaid when the equitable interest of said Moses A. Keller was sold by the assignee by decree of court, there was no estate in Moses A. Keller at the time of the entry of said lien, or afterwards, to which it could attach, and plaintiffs are not entitled to recover.’
    “ In the present case Mosés A. Keller never obtained any legal title. He never;paid the whole purchase-money, but we think the lien attached to his equitable interest. The decision in Hold-ship v. Abercrombie, 9 Watts 52, led to the enactment by the legislature of the provisions of the statute of the 28th of April 1840. By that act it was provided that the lien created by the Act of the 16th of June 1836, should not be construed to extend to any other or greater estate in the ground on which the building might be erected, than that of the person in possession at the time of commencing the building, and at whose instance the same was erected. In Lyon v. McGruffey, 4 Barr 126, it is said that the legislature in passing this act did not intend to deprive the creditors by mechanics’ lien of any of the advantages of a judgment; they merely intend to prevent his lien from operating beyond the sphere in which a judgment would be effectual. The whole case goes upon the ground that a mechanics’ lien has the same effect as a judgment, and binds every interest that a judgment would or could bind. It is too well settled that a judgment binds the equitable interest of a vendee who has paid part of the purchase-money but has not obtained the legal title, to require the citation of authorities to prove it. If a judgment binds an equitable interest, such as Moses A. Keller had in the premises, it follows from the case of Lyon v. McGuffey, that a mechanics’ lien must bind the equitable estate which Moses A. Keller had in the premises when the boiler and its fixtures, the subject of this dispute, was furnished on the credit of the building. We therefore think there is nothing in this reserved point which would prevent us rendering a judgment on the verdict for the plaintiffs.

      “ The third reserved point (and the fifth of the defendants), is as follows:—
    “ ‘ If, by the articles of agreement under which the property in question was held, Jacob Keller had an equitable interest in the same as tenant in common with Moses A. Keller, and the lien is entered only against Moses A. Keller, the lien is fatally defective and cannot be sustained, and the verdict of the jury must be for the defendants.’
    “ The defence in this case is made by Moses A. Keller, the person who contracted for the erection of the building in which the boiler was to be put. He is the person who made the contract for the boiler, and he was in actual possession of the premises at the time the building was erected, and the boiler was put in. The lien is filed against the building, and he alone is mentioned as the owner or reputed owner of the building. Jacob Keller makes no defence to this claim; in fact he is not a party to this issue. The defence seems to be made by the assignees in bankruptcy, and by Moses A. Keller, the bankrupt.

      “ If it is the law that a mechanics’ lien stands on the footing of a judgment, I can see no good reason why a lien could not be filed against Moses A. Keller as owner or reputed owner of the building, which would bind his interest, whatever it might have been, when the boiler was furnished. The Act of the 28th of April 1840, § 24, Brightly’s Purd. 1862, p. 714, plac. 40., limits the lien to the estate of the person who was in possession at the time the building was commenced. In Sill’s Appeal, 1 Grant’s Cases 285, Lowrie, J., said, in substance, the plaintiff’s recovery does not depend upon the quantity of the defendant’s interest in the land. He claims a lien on defendant’s interest, whatever it is, and he can enforce it when obtained against nothing else. The defendants rely upon the case of Carey v. Wintersteen, 10 P. F. Smith 395, to support the position taken by them, ‘ that as the lien is entered only against Moses A. Keller, who held an equitable title as a tenant in common with Jacob Keller, the lien is fatally defective.’ But we think the facts of the case do not support the position. In the present case the lien is filed alone against Moses A. Keller, the person in possession, and the contracting party. In the case cited, the lien was filed against the owners of the fee, who did not contract, and the tenant in possession, who did contract. Upon this state of the ease the Supreme Court held that the plaintiff could not recover in the manner he had filed his lien. In the present case, we think the lien is filed against the only person plaintiffs could file it against, and that it binds the defendant’s interest in the land, whatever it may be, and therefore the plaintiffs are entitled to judgment upon the verdict.”
    The defendant removed the record to the Supreme Court, and assigned for error the entering judgment for the plaintiffs on the verdict on the reserved points.

      D. Wills, for plaintiff in error referred,
    to the bankrupt acts. A judgment confessed, or a preference given, in fraud of the Bankrupt Act (Act of 1841), can only be controverted or set aside in the proper bankrupt court: Fenlon v. Lonergan, 5 Casey 471; Nugent v. Boyd, 3 How. 426; Wiswall v. Sampson, 14 Id. 69; Angel v. Smith, 9 Vesey 335; Peale v. Phipps, 14 How. 368; Taylor v. Carryl, 20 Id. 583; Ex parte Christy, 3 Id. 292.
    The jurisdiction of the District Court attached March 1st 1869, and the state court could not proceed afterwards; objection for want of jurisdiction may be raised at any time: Mannhardt v. Soderstrom, 1 Binn. 138; 1 Dunl. Prac. 430; 1 T. & H. Prac. 381; Moore v. Wait, 1 Binn. 220.
    The conditional lien of plaintiff on the property of the bankrupt, was divested by the proceedings in bankruptcy, by virtue of the operation of the Bankrupt Act: Planters’ Bank v. Sharp, 6 How. 301; Harrison v. Sterry, 5 Cranch 298; Bronson v. Kinzie, 1 How. 316.
    One of the equitable tenants in common of the premises sought to be charged with the lien, is not brought upon the record in the lien, or proceeded against in the scire facias: Wilson v. The Commissioners of Huntingdon County, 7 W. & S. 197; Harlan v. Rand, 3 Casey 511; Carey v. Wintersteen, 10 P. F. Smith 395.

      MoQlean Wood, for defendants in error.
    The statutory lien is an encumbrance upon the “ building erected” and its curtilage: Esterley’s Appeal, 4 P. F. Smith 193; Sergeant’s Mechanics’ Lien Law 336.
    The provisions of the Bankrupt Act of 1867 do not take away the remedy, to enforce the lien nor prevent the state courts from proceeding in the matter, after a petition in bankruptcy has been presented to the Bankrupt Court to have the defendant in the lien made an involuntary bankrupt: Act of Congress 1867, § 20, et seq.; Brightly’s Bankrupt Law (1st ed.), 47; Ex parte Winn, 1 Bank. Reg. 181; Ex parte Bridgman, Id. 59; Ex parte Bolton, Id. 83; Ex parte Hambright, 2 Id. 157; Leighton v. Kelsey, 4 Bank. Reg. 155; In re Kerlin, 3 How. 326; Galbraith v. Fisher, 10 Harris 410 ; Peck v. Jenness, 7 How. 612 ; Waller v. Best, 3 Id. 111.
    October 9th 1871.
    The right of the defendant to recover does not depend on quantity of Moses A. Keller’s interest in the property: Sill’s Appeal, 1 Grant 235; De Haas v. Bunn, 2 Barr 335; Lyon v. McGuffey, 4 Id. 128; Ives v. Cress, 5 Id. 122; Gaule v. Bilyeau, 1 Casey 523; Jones v. Shawhan, 4 W. & S. 257; Carey v. Wintersteen, 10 P. F. Smith 395.
   The opinion of the court was delivered

Per Curiam.

We see not wherein anything more is necessary to be said in this case than what has been so well said by the learned judge below in his opinion on the reserved points in the case. The lien of the mechanic was perfectly given by statute, at the time the defendant was declared a bankrupt, although not entered, and it continued so afterwards by being entered on the records of the court, which was within the prescribed period of six months from the commencement of the building and materials furnished. That there is a saving of liens in the Bankrupt Act is apparent in several sections. Sections 27 and 42 imply this so distinctly as not to permit it to be doubted. See notes to these sections, Bright. Dig. of Bankrupt Law, pp. 39 and 47. This court has decided within a year (Biddle’s Appeal, antea, p. 13) that a state court can proceed by process to enforce its liens obtained before an adjudication of bankruptcy, and that the remedy is not in the United States courts. We need not enlarge, for the reasons above stated. There being no error in the record, the judgment is

Affirmed.

       See also Kohrer’s Appeal, 12 P. F. Smith 498. — Kep.


text:
    Hess’s Estate.
    1. An assignee, a member of a private banking firm, mixed the trust moneys with his own, depositing them in his own name with his banking-house and received interest on the deposit. Held, that he was liable to the estate for interest.
    2. An assignee, a member of a private banking firm, deposited the trust funds with his firm in his name as assignee distinct from his own. The firm sometimes paid interest on deposits, he received no interest for this deposit. Held, under the circumstances, he was not chargeable with interest.
    3. An assignee is not bound to invest the trust fund.
    4. The fact that he as one of the firm would receive profit from deposits generally, would not make him liable for interest on this fund.

      May 5th 1871. Before Thompson, C. J., Agnew and Sharswood, JJ.
    Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1871, No. 77.
    In the distribution of the assigned estate of Samuel Hess.
    On the 27th of February 1869, Samuel Hess made an assignment for the benefit of creditors to Robert A. Evans and George K. Reed. At the time of the assignment, and up to the settlement of their account, Mr. Evans was a member of the banking firm of Evans, McEvoy & Co., and Mr. Reed a member of the banking firm of Reed, McGrann & Co.
    They filed their account, May 17th 1870; it showed a balance of $34,527.73 for distribution amongst the creditors, the estate being insolvent.
    Exceptions were filed to the account, and auditors were appointed to pass on the exceptions and report distribution.
    In their report they stated the amount and dates of the receipts by Mr. Evans, and proceeded: * * *
    “ It will be perceived, therefore, that from a very early period in the existence of the trust, there were in his hands large sums of money, not needed, for any immediate exigency of the trust as to the disposition of which his statement is as follows: ‘ I kept no account with Samuel Hess’s assigned estate of what I did with the money I collected. These moneys were not kept separate from my own money. I put the money, as I received it, into my pocket with my own money. I carried it round until it suited me to deposit it. When I deposited I did so in my own name. I kept my account in that w-ay. If I had any of that money it went along with my own. I deposited the money with Evans, McEvoy & Co.’ He says further: ‘I used it (the money of the Hess estate) for family expenses, improving my farm, and whatever I wished. I had given security for it, that it would be forthcoming when wanted in the settlement of the estate.’ In answer to the question, ‘ Had any of the' creditors of Hess’s estate the use or benefit of any of the estate moneys, other than those you made payments to according to your account ?’ he says: ‘ I do not know. I was a creditor. I had some of it.’ In answer to the question,
    ‘ Did you, in the use of the moneys you received from Hess’s estate or other sources, make any discrimination when you came to pay out money for any purpose V he says: ‘ I generally paid out the Hess money.’ ,
    “ From the books of the firm it appears that Mr. Evans during all the time that this estate was in process of settlement had deposits with Evans, McEvoy & Co., varying in amount from $72,000 to $84,000. On these, deposits he had an arrangement to receive interest, but at what rate he refuses to say.
    “ Mr. Reed’s cash receipts up to April 5th 1869, were $2513.33; on the 17th of April 1869, they amounted to $4850.25; on the 14th of May 1869, to $6240.61; on the 2d of July 1869, to $8068.66; on the 18th of October 1869, to $9035.33; and on the 13th of May 1870, to $9857.07. The entire amount of his payments up to the time of the filing of the account is $822.92. Mr. Reed, therefore, had also in his hands, from a very short time after the assignment, large sums of money, which could not be required for any purpose of the trust, until a distribution among creditors came to be made. As to the disposal of the sums, in the mean time, his statement is as follows:—
    “ ‘ Those moneys (of Hess’s Estate) were deposited with Reed, McGrann & Co., as received, and went into the general fund of the institution along with the other deposits.’ To the question, ‘ At what rate of interest ?’ he answers, ‘ At no rate of interest at all. I can give no reason why, except that I expected the firm to have the use of the money. The firm of Reed, McGrann & Co. were creditors of Hess’s estate to about $2800. These moneys were not kept separate; they were kept like other moneys, and used like other deposits. My account was opened as George K. Reed, assignee of Samuel Hess. I am one of the members of the firm of Reed, McGrann & Co., and was one before the assignment.’
    “ It is stated by each of these accountants to be the practice of the firm, with which he is connected, not to pay interest on deposits except when provision is made for it by contract with the depositor.” * * *
    After discussing numerous authorities and commenting on the facts, the auditors reported as to Mr. Evans:—
    “ Under these authorities it will be a plain duty of the auditors to charge Mr. Evans, at least, with interest at the legal rate upon the money of the trust in his hand. He will therefore be charged with interest at the rate of 6 per cent, per annum upon the funds of the trust in his hands; and in calculating it the course adopted will be, to take his statement of cash receipts, and upon each sum therein specified — after deducting previous disbursements on account of the trust and the usual commissions allowed to trustees —charge interest from a period of ten days subsequent to the date of the receipt of that sum, up to the filing of this report.
    “ In the ease of Mr. Reed, the liability for interest is, perhaps, not so obvious as is that of his co-trustee. In determining as to the applicability of the exception to him, it will, therefore, not be amiss to make a somewhat more minute examination of principles and authorities than was requisite with Mr. Evans.” * * *

      “ These accountants, as trustees merely for collection and disbursement in view of the speedy settlement of the estate, were, perhaps, not bound to obtain interest on the funds belonging to it; but familiar as they were with the uses of money, and the modes in which it might be made productive, it will hardly be doubted, that, if the balance of the trust fund in their hands had been their own individually, they would not have failed to secure upon them, at least, the rate of interest allowed by the firms with which they were connected, upon running accounts where such an allowance is agreed upon with the depositor. They, therefore, can scarcely be regarded as having exercised such care and diligence in the management of the trust funds as they would have exercised if these funds had been their own; and whether the cestuis que trust have or have not a right to complain of them on that account, it is, at all events, quite clear that the settlement of the estate as shown by the account is less favorable to the creditors than it would have been, if, ignoring all thought of personal profit or advantages, they had given to their cestuis que trust the full benefit of the very considerable skill and activity in business which they unquestionably possess. * * * In the opinion of the auditors therefore this exception must be sustained as to Mr. Reed, and he will be charged with interest at the legal rate upon the moneys of the trust deposited by him with Reed, McGrann & Co. In his account with the bank appear a great many sums — often of small amount — deposited apparently as they were received by him from those indebted to the estate. In calculating the interest, the mode of proceeding adopted will be, to take the aggregate of the deposits of each month, and after deducting therefrom all payments made during the month on account of the trust, and also the regular commissions of the accountant upon each aggregate, charge interest on each balance thus ascertained, from the close of the month to the date of the filing of this report.”
    The auditors therefore surcharged the account with $873.48 interest due by Evans and $631.86 due by Reed.
    The assignees excepted to the report; the exceptions were overruled, and the report confirmed by the Court of Common Pleas.
    The decree of confirmation was assigned for error on appeal by the assignees to the Supreme Court.

      J. Landis for Evans, O. J. Dickey and Franklin for Reed, appellants.
    AT. M. North and N. Fllmaker, for appellees,
    cited Docker v. Somes, 2 Mylne & Keene 655; Jones v. Foxal, 15 Beavan 392; McDonald v. Richardson, 5 Jurist (N. S.) 9 V. C. Stuart; Freeman v. Fairlee, 3 Merivale 25; Townsend v. Townsend, 1 Giff. 201; Bowes v. City of Toronto, 11 Moore, P. C. C. 463, 2 Williams on Executors, 5th ed., 1624-5; Lewin on Trusts 360-1; Robinson v. Robinson, 9 Eng. Law and Eq. R. 75; Snell’s Principles of Equity 118, 128; Adams’s Equity, 5th American ed. 157; Irwin’s Appeal, 11 Casey 294; Fisk v. Sarber, 6 W. & S. 31; Saeger v. Wilson, 4 Id. 502; Light’s Appeal, 12 Harris 180; Bile’s Appeal, Id. 385; Lane’s Appeal, Id. 487 ; Fox v. Wilcocks, 1 Binney 194; Say v. Barnes, 4 S. & R. 112; Robinett’s Appeal, 12 Casey 174; Oliver v. Piatt, 3 Howard 333; Wistar’s Appeal, 4 P. F. Smith 60; Lukens’s Appeal, 7 W. & S. 48; Hughes’s Minor’s Appeal, 3 P. F. Smith 500; Verner’s Estate, 6 Watts 250; Dyott’s Appeal, 2 W. & S. 557.
    May 15th 1871,
   The opinion of the court was delivered,

by Sharswood, J.

The exception by Robert A. Evans to the report of the auditors, charging him with interest, was rightly dismissed. He had mixed the trust-moneys of the assigned estate in his hands with his own, depositing them in his own name with the banking-house of Evans, McEvoy & Co., of which he was a member, and upon this deposit he admitted that he received interest, though at what rate he declined to say. All the authorities agree that in such a case the trustee is chargeable with interest: Verner’s Estate, 6 Watts 251; Dyott’s Appeal, 2 W. & S. 565; Robinett’s Appeal, 12 Casey 174; Wistar’s Appeal, 4 P. F. Smith 60.

The case of George K. Reed, the other assignee, is different. He did not mix the trust funds with his own. He deposited them in a separate account in his name as assignee. He received no interest upon them. Upon his own private account with the same bankers he received no interest. The presumption, at least in the absence of evidence to the contrary, is so, for deposits for safe keeping do not bear interest without a special agreement. Nor was he bound in an estate of this character — when he had a year to settle — and where the estate was in his hands for distribution merely, to invest the proceeds. Had this deposit been made in a banking-house in established credit in which he was not himself interested, it is not pretended that he would have been properly chargeable with interest which he had not received.

It is contended, however, and this contention prevailed with the auditors and the learned court below, that because George K. Reed was a member of the banking-house of Reed, McGrann & Co., with whom these deposits were made, that fact is sufficient to fix upon him this liability. This is pushing the doctrine, as it appears to us, to a very extravagent length, not sustained by any of the authorities which were cited and relied on by the learned auditors nor in the argument at the bar. It may be admitted that banks do employ a certain portion of their deposits in the discount of negotiable paper. They do that upon a calculation that such a proportion will not be called for. This proportion must vary from time to time, depending very much upon the state of credit and confidence in the community. When the deposits are large and are left for any certain period, they often agree to pay interest to their depositors, at rates varying according to the circumstances of each particular case. It is admitted that the agreement is generally special with each depositor. The saving fund institutions, which do not bank, but invest the money of .their depositors in bonds, mortgages and other permanent securities, generally, I believe, stipulate that a certain notice shall be given before the money can be drawn out, or if it is liable to draft at any time the rate of interest is small. Certainly the custom of banks to pay interest to their depositors is of recent introduction. ■ Now the principle maintained, and upon which alone the decree as to George K. Reed can be supported, is that no matter what his interest in the firm was — no matter -what proportion of their deposits they kept on hand to meet the checks of their depositors — or what the actual profit made — the trustee must be answerable for interest at six per cent. The rule indeed is one of policy — to enforce the great principle that a trustee shall not be permitted to derive any benefit, direct or indirect, from the trust estate. But we ought not to carry this principle to an extent which will produce inconvenience and injustice. If the ground here taken be true it will preclude a trustee from making his deposits as trustee in an incorporated bank of which he is a stockholder. It surely should be competent for the trustee, in every case in which he is charged with interest on this ground, to show what profit he actually did make. The proportion of such profits coming to him as the stockholder of an incorporated bank or the member of a private banking-house, would perhaps be inappreciably small, unless indeed the amount of the deposits was extraordinarily large. Every case of this character must necessarily depend upon its own peculiar circumstances. We do not say that there may not be cases in which the charge of interest at some rate would not be eminently proper. The only hesitation we have had in this instance is in considering the question whether George K. Reed ought not to be charged with some rate less than six per cent. Yet without knowing what was the extent of his interest in the firm of Reed, McGrann & Co., or what the rate of profits they divided, or what was the proportion of those profits derived from that part of their deposits which they used in their business, how can this be determined ? It may be that upon such a calculation it would be found that the proportion of the $831.86 lawful interest charged against Mr. Reed actually coming to him from the profits of his banking-house derived from them would be a very small sum. It will be observed that Mr. Reed’s receipts were not so large as to require the application of so rigid a rule. His cash receipts up to April 5th 1869 were $2513.83; up to April 17th 1869 $4350.25; 14th May 1869 $6240.61; July 2d 1869 $8068.66 ; Oct. 18th 1869 $9035.33; May 13th 1870 $9557.07. The assignment was dated February 27th 1869, and the account of the assignees was filed May 17th 187 0, not quite fifteen months after the assignment. Taking all these circumstances into consideration, we think that it would be unjust to Mr. Reed to allow this surcharge of interest against him to stand, and that no rule of equity or consideration of policy requires it.

Decree affirmed as to Robert A. Evans, and reversed as to George- K. Reed — the costs of the appeals to be paid by the appellants, in the proportion of two-thirds by Evans and one-third by Reed.


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    Eckman versus Eckman et al.

    1. A deposition taken in an equity suit in which a devisor was plaintiff, is evidence in an ejectment for the same subject-matter in which the devisee and the defendant in- the equity suit were parties, the devisee being a privy in estate.
    2. If a deed cannot be treated as a bargain and sale for want of a pecuniary consideration ; yet if the consideration of blood exist, it will be supported as a covenant to stand seised.
    3. An uncle, in consideration of love and affection, conveyed land to nephews in fee, with this reservation: “ Nevertheless, the said (uncle) reserves the rents and profits arising out of the said premises and dwellings for and during his natural life or lifetime, and at his decease, then the right of rents and profits of and in said land becomes vested inthesaid (nephews).” The estate in the grantees was not a freehold commencing in futuro ; nor was the deed testamentary or revocable.
    4. A recorded deed in Pennsylvania will be construed as a feoffment, with livery of seisin or as a deed under the statute of uses as will best effect the intention of the parties.
    May 5th and 6th 1871. Before Thompson, C. J., Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 78, to May Term 1871.
    This was an ejectment by Daniel B. Eckman against Benjamin Eckman and Henry Eckman, for the undivided half of a tract of 100 acres of land.
    The writ was issued. February 7th 1870.
    The land in dispute had been the property of Daniel Eckman, Sr., who, on the 6th of September 1859, executed a deed in fee for the land to Benjamin Eckman and Daniel B. Eckman, the sons of his brother, Jacob Eckman. The consideration named in the deed was $8000, but no consideration was paid. The deed was in the usual form, except the following proviso: — -

      “ Nevertheless, the said Daniel Eckman reserves the rents and profits arising out of the said premises and dwellings for and during his natural life or lifetime, and at his decease, then the right of rents and profits of and in said land becomes- vested in the said Benjamin Eckman and Daniel Eckman absolute as tenants in common, not as joint tenants, and to their heirs and assigns forever.”
    It was acknowledged the same day before Daniel Fulton, Esq., and it was put upon record by John Strohm, a conveyancer.
    On the 2d of February 1864, Daniel Eckman, Sr., made a deed in fee of the same land to Benjamin Eckman alone, in consideration of natural love and affection, services from Benjamin to his uncle, and $5, with the same life reservation to the grantor as in the former deed. This deed was acknowledged on the day of its date.
    Daniel Eckman, Sr., died childless about November 22d 1869. having made his will, dated November 4th 1863, which was established October 26th 1869, by the verdict of a jury in an issue to try. its validity.
    By the will the testator, after having given a number of legacies, none to Daniel B. Eckman, gave the residue of his estate to Benjamin Eckman.
    After the residuary clause the testator directed as follows:—
    “ But I wish it understood that I have not as yet given or conveyed away my plantation or tract of land in Strasburg township, Lancaster county, adjoining lands of David Hostetter and others, and containing 100 acres, more or less, for although I had it in contemplation to convey said tract to my two nephews, Benjamin and Daniel Eckman, as tenants in common on certain contingencies, and made a deed to that effect, I have not yet delivered said deed, the said certain contingencies not having transpired.”
    The principal question in the case was whether the deed of September 6th 1859, had been delivered.
    On the 10th of March 1864, Daniel Eckman, Sr., filed a bill in the Court of Common Pleas, against Benjamin and Daniel B. Eckman, to have the deed and the record declared'void and can-celled, on the ground that it had been delivered in escrow and the condition had not been performed, and that it had been put upon record by Strohm without authority.
    Daniel B. Eckman denied the allegations of the bill and Benjamin admitted their truth. The court below dismissed the bill. The complainant appealed to the Supreme Court. In that court the opinion was delivered by Woodward, C. J., who recapitulated in his opinion many of the facts in the case and was of opinion that the proofs established a delivery of the deed. The judgment was affirmed (5 P. F. Smith 269).
    The case was tried March 1st 1871, before Hayes, J. The plaintiff gave in evidence the deed September 6th 1859, from Daniel Eckman, Sr., to his nephews. He offered in evidence the above-mentioned record of the suit in equity. It was objected to by the defendants, admitted, and a bill of exceptions sealed.
    The plaintiff offered to read the opinion of the Supreme Court in that case; this was objected to by the defendants, admitted and a bill of exceptions sealed.
    Also the deposition of Daniel Fulton, who was dead, taken in the equity suit; this was objected to, admitted and a bill of exceptions sealed.
    Daniel Fulton said: “ Daniel Eckman, Sr., and Jacob Eckman both came to see me, and said they had come to the conclusion to divide both their properties between Benjamin Eckman and Daniel B. Eckman, the sons of Jacob Eckman. Daniel brought these papers here and I drew a deed for him for a hundred acres, which he said he was going to give to Benjamin Eckman and Daniel Eckman, the sons of Jacob. He came here and signed it and acknowledged it. When it was all finished he told me he was going to leave that deed with his brother Jacob for safe-keeping, and then at his death he was to deliver it over to Benjamin and Daniel. Afterwards Jacob came here and said that Daniel had left the deed with him, and then Daniel Eckman, Sr., came along here and informed me that he had left the deed with his brother Jacob.”
    Daniel B. Eckman (plaintiff) testified:—
    “ After the death of his uncle’s wife, his uncle asked witness and Benjamin to get the deed from their father and take it and a will he had made to Lancaster and have it examined whether the death of the wife would have any effect on it. Benjamin and witness got the deed from their father and gave it with the will to Mr. Amwake, who asked them where they got the papers from; Benjamin said from their father; witness said the same thing: Mr. Amwake said the death of the wife made no difference. Mr. Amwake asked what they were going to do with the papers; both said they were going to return them to their father. * * *
    “Within a year after my father’s death, Benjamin and I went to John Strohm’s together to get deeds drawn to separate the undivided part of each property; that is, I was to convey to him my interest in the property we got from my father, and he to convey to me his interest in the property we got .from my uncle Daniel. We took the deeds along, but no wills. There were deeds drawn, hut not executed, because he would not comply with what I wanted, and I would not comply with what he wanted. Benjamin had in his possession, and took to Strohm’s, the deed to which I have referred. Benjamin did not at that time tell me where he got uncle Daniel’s deed, and I did not ask him. * * *
    “ It was at the instance of my uncle Daniel that we took those deeds to Strohm’s. He wanted it fixed in his lifetime. We went to Strohm’s, I think, in 1868. Before we went to Strohm’s — but on the same day — uncle Daniel told me to have that deed, we ought to have that deed'from him to Ben and me recorded. When he spoke of having it fixed, he meant the deeds between Benjamin and me. He made no condition about tbe recording of tbe deed. He just said we should have that deed recorded. My father died two years before my uncle.”
    Daniel Lefevre said: “ I was one of the appraisers of J acob’s estate. Benjamin told me he didn’t want his father’s estate appraised at present. He wanted to wait until his uncle Daniel’s death. The reason was they had the right of it, and he didn’t want it appraised, as they, after his uncle’s death, had the right of it; it was their property; both of them had agreed that after his death he was to have one place, and Daniel the other. He said they had the papers. His uncle and father had fixed it all. He said, he or we had the papers. He said his uncle had reserved a life estate in it.”
    Christopher Hess said: “Benjamin and Daniel B. Eckman were not on good terms. I went to Benjamin to try to get them on agreeable terms to understand each other properly. Benjamin agreed that I should go to Daniel; said he was stubborn, and if he don’t take care I’ll have him cut short, or he will be cut short, in this other property. I said, ‘Yes; in the property of your uncle Daniel in that deed your father held in his lifetime ? I suppose it is that you are alluding to.’ ‘ Yes,’ he said, ‘ we have that deed.’ He said he would like to have that home property; he always had lived upon it. I had brought them together, and Daniel consented that he should have it. I told Benjamin that his father in his lifetime had said to me that he had that deed which was delivered to him in his possession, and that it was all fixed. This was the deed from his uncle Daniel, conveying his property to his nephews. His father had said to me that it was delivered to him, and it was all right. Benjamin said, ‘ Yes, we have that deed.’ ”
    Philip Miller said: * * * “ On my way to Daniel’s I met Benjamin, and told him I was on the way to see. what could be done. He said I might tell Daniel that if he would sign off for me here, I’ll sign off for him there — pointing towards his uncle Daniel’s place. I then asked him — from what you say, I understand that your uncle Daniel has fixed his farm in the same way your father has his, — I having read previously his father’s deed to him and Daniel for the home property. His answer was, ‘ Yes, yes; the same way.’ I asked him if he was sure of that. He answered, * Yes, I have it; it’s here.’ He said, ‘ Uncle had left it to daddy, or give it to daddy, and since his death it is here.’ ”
    John Strohm said : “ I was employed by Benjamin and Daniel Eckman, sometime in the spring of 1868, to draw a deed. They came to my house together and told me they wished me to write two deeds of conveyance; one of which was to convey the undivided half of a plantation in Strasburg township which had been owned by their father from Daniel B. Eckman to Benjamin Eckman ; the other deed was to convey the undivided half of a tract of land, also, in Strasburg township, which was held by their uncle Daniel Eckman, then from Benjamin Eckman to Daniel B. Eckman. I asked them what right they had to dispose of their uncle’s property. They told me they had a deed for it, by which it was conveyed to them jointly. I then told them, in order to make the deeds which they wished, I must have the old titles. I should want the deed which they alleged they had from their uncle among others. I asked them whether they could get that deed. They told me they could. I then told them, if they would bring me the old titles I would make the deeds which they desired. They went away and in the course of a week returned to my house and brought the title papers, one of which was a deed executed by Daniel Eckman conveying his plantation on which he lived to Benjamin Eckman and Daniel B. Eckman. They came together again and I showed them the title papers that I had drawn, and they had some conversation and disagreed about something. They could not execute them, their wives were not along, and they separated. Benjamin insisted upon having the thing settled; but Daniel was not willing to agree to what Benjamin proposed. I am not positive whether they were there afterwards or not, but the last time they were there Benjamin said if it was not fixed that night, it would be fixed in another way.”
    For the defendant Benjamin Eekman, was examined and testified that there was no delivery of the deed, except in escrow, on the condition that they could make the arrangement by ‘which Daniel B. Eckman was to convey to Benjamin his interest in the father’s farm, and Benjamin to convey to Daniel his interest in the uncle’s farm. He also contradicted the statements of Daniel B., Lefevre, Miller, Hess and Strohm.
    The defendants submitted five points, which with answers of the court are found in the assignments of error.
    The court, after referring to the facts with some minuteness, said to the jury: * * *
    “ Upon this question of delivery, as a point of fact, it is proper for the jury to consider the circumstances, that this deed was twice in the possession of these brothers, at distant intervals, and used by them for their own benefit and advantage. In the first instance, when they came to consult a lawyer as to its validity, and in the second, when they went to Mr. Strohm to have deeds drawn, one to the other, and there are considerations belonging to each of these incidents which may aid the jury in reaching a satisfactory conclusion. [With respect to the consultation with Mr. Amwake, unless they informed him or led him to believe that the deed had been delivered, he would have told them at once that it was good for nothing, no matter how correct in form. But Mr. Amwake pronounced the deed good. He therefore was assured that it had been delivered. Now suppose, as Benjamin has declared, that he obtained the deed from his uncle for this occasion, his uncle had said to him when he gave it to him, ‘ I do not intend by placing this deed in your hands to deliver it, but only do so on condition that -you return it to me immediately after you have consulted the lawyer. You must, however, not tell him that I have not delivered it, but get his opinion whether it is a good deed.’ This would have been a deception and fraud, and if the thing done were the same in effect, if the counsel were misled in regard to the fact of delivery and gave an opinion of the deed on their representation, which was not true, he was deceived as well as those who deceived him, and there was legal fraud somewhere in the transaction.]

      “ [So when between three and four years afterwards, the two brothers called upon Mr. Strohm to draw those deeds, he was led to believe this deed was good, that is, had been delivered, otherwise he would not have had the title he called for. Mr. Strohm knew, as every scrivener as well as every lawyer knows, that delivery is essential to the validity of a deed.]
    “ Again, even if this deed was at all other times in the hands of Daniel Eckman, the grantor, his giving it on these two occasions to the grantees for their use and benefit, was a complete delivery, unless there was an explicit condition attached to the giving it to his nephews on the occasion, specifying that it was not to be regarded as a delivery, but was to be returned to him as if it had not passed out of his hands, and that, if alleged, should be clearly and distinctly proved, otherwise the inference is reasonable and just that the delivery was complete. If the jury believe from all the evidence that this deed was given by Daniel Eckman to his brother Jacob to keep for his nephews, as Daniel Fulton, Esq., represents, the delivery was thereby sufficient and complete.
    “ In reference to the truth of this fact, the jury moreover may well consider the basis of the original arrangement of the two elder brothers for the benefit of these sons of the one and nephew of the other. It was perfect equality. They were to be equal owners of the two farms — tenants in common. * * * If this arrangement o(f the two brothers Daniel and Jacob Eckman were binding as an agreement for the benefit of others, it surely could not be changed by one of these parties without the assent of the other. It could not be changed by Daniel Eckman, Sr. Further it could not be changed without the consent of the parties for whose benefit it was made, that is Benjamin Eckman and Daniel B. Eckman, not the consent of one but both. [If then it was proper and consistent with the arrangement that it should be delivered, it is ground of presumption that it was in fact delivered, and confirms the testimony on that point.]

      “ Should the jury be satisfied that, in point of fact, this deed was at any time delivered by Daniel Eckman to the grantees or to Jacob Eckman for them, it became by such delivery a perfect and valid deed of conveyance, and no subsequent possession of it by Daniel Eckman, Sr., could impair its validity or effect. It passed the title as granted, subject to the reservation of the rents and profits, and fixed the rights of the parties from the moment of delivery. If the jury therefore believe this deed was delivered, the plaintiff is entitled to recover, and their verdict should be in favor of Daniel B. Eckman.”
    The verdict was for the plaintiff.
    The defendant took a writ of error and assigned errors as follows:—
    1. The court erred in admitting in evidence the record of the suit in equity between Daniel Eckman, plaintiff, and Benjamin Eckman and Daniel Eckman, defendants. Reported, 5 P. E. Smith 269.
    2. The court erred in admitting in evidence and allowing the plaintiff to read to the jury as evidence the opinion of this court in Daniel Eckman v. Benjamin Eckman and Daniel Eckman, reported as above.
    3. The court erred in permitting the plaintiff to read in evidence in the case the testimony of Daniel Eulton, taken in the equity case of Eckman v. Eckman, reported as above, said Eulton having since deceased.
    4. 5, 6. The parts of the charge in brackets.
    7. The answer to the first point of defendant; viz.: “ Delivery of a deed is essential to its validity, and that is a question for the jury to determine. If, therefore, the jury believe that Daniel Eckman executed the instrument dated September 6th 1859, under which the plaintiff claims, with the intention of delivering it to Benjamin Eckman and Daniel B. Eckman when they were ready and willing to make certain arrangements in regard to the property described therein, which he desired them to make, and kept it in his possession until the arrangements could be carried out, and that those arrangements were not carried out on account of the refusal of the grantees therein named, or either of them, to comply with his wishes, and that the instrument continued in his possession until after his death, except when he gave it to the grantees for a special purpose, or for having the papers prepared to carry out his proposed arrangements, it never was delivered and conveyed no title to the plaintiff, and their verdict must be for the defendant.”
    Answer: “ The first sentence in this point is correct. There being no evidence of the intention here supposed of Daniel Eckman with respect to the time of delivery of the deed, or that he kept it in his possession with a view to the arrangements mentioned in this point, if the deed was at any time delivered in point of fact by Daniel Eckman his subsequent possession of it did not affect its validity.”
    8. The answer to the third point of the defendant; viz.:
    “ If the instrument of September 6th 1859, is a deed, it is a deed of bargain and sale, and the payment of the consideration mentioned therein is necessary to transfer the use and render the instrument operative. The proof is, that the consideration-money was not paid. The instrument is therefore inoperative and the plaintiff cannot recover.”
    Answer: “ The deed is a good and valid deed if it were delivered.”
    9. The answer to the fourth point of the defendant; viz. :

      “ The instrument in question contains a reservation of the rents, issues and profits to the grantor for his life, which, at his death, were to vest in the grantees. This reservation limits the fee to take effect in futuro, which, at common law, can be done only where the estate is granted, not reserved. The instrument, therefore, conveys no estate to the plaintiff and he cannot recover.”
    Answer : “ The instrument in question is good and valid if it was delivered.”
    10. The answer to the fifth point of the defendant; viz.:
    “ The instrument in question is a testamentary instrument and is therefore revocable. It is revoked by the will of Daniel Eckman, the grantor, and by his subsequent deed, and is therefore inoperative and conveys no title to the plaintiff.”
    Answer : “ The instrument in question is a good deed of grant, bargain and sale, operative according to its terms, and, if delivered supersedes all subsequent instruments, deeds or wills of Daniel Eckman, Sr., contrived to defeat its operation or effect.”

      I). Gr. Bshleman and D. W. Patterson, for plaintiffs in error,
    as to the admission of the evidence: 1 Starkie on Ev. 192, 196, 197 ; The Borough of York v. Forscht, 11 Harris 392; Philadelphia v. Girard’s Heirs, 9 Wright 9; Noble v. McClintock, 6 W. & S. 58; Dimes Savings Inst. v. Allentown Bank, 15 P. F. Smith 116.
    The court misled the jury by submitting to them as facts proven, matters about which there was no evidence which is error : Snyder v. Wilt, 3 Harris 59 ; Herdic v. Bilger, 11 Wright 60; Burford v. McCue, 3 P. F. Smith 427; Updegraff v. Rowland, 2 Id. 317: and they still further injured the plaintiff in error by basing a string of ingenious presumptions upon those alleged facts which had no existence in the case. It was the duty of him who alleged delivery of the deed to prove the fact: Bickham v. Smith, 5 P. F. Smith 337; Kelly v. Kauffman, 6 Harris 351.
    Where there is some evidence of a material fact it is the duty of the court to submit it to the jury: Cole v. Bolard, 10 Harris 431; Fitzwater v. Stout, 4 Id. 22. As to the revocahility of the deed: Turner v. Scott, 1 P. F. Smith 126; Perry v. Scott, 1 Id. 120; Miller v. Casselbery, 11 Wright 378; Frederick’s Appeal, 2 P. F. Smith 338.
    May 18th 1871,

      Franhlin, for defendant in error.
    As to the delivery: Doe dem. Garnons v. Knight, 5 Barn. & Cress. 671; Stephens v. Huss, 4 P. F. Smith 20. A deed cannot be delivered to a grantee as an escrow: 3d Cruise’s Dig., 30, Feed, Chap. 2, § 58; .Thoroughgood’s Case, 9 Reports 136; Simonton’s Estate, 4 Watts 180. In the absence of fraud, the validity of a deed cannot be impeached by proof of non-payment of the consideration-money therein mentioned: Wilt v. Franklin, 1 Binn. 518. Since the passage of the Statute of Uses, courts have recognised the validity, force and effect of deeds of this character: Wilkinson v. Tranmer, 2 Wilson 75; Milburn v. Salkeld, Willes’ Rep. 670; Fisher v. Strickler, 10 Barr 348; 3 Cruise’s Dig. part 4, 186, &c. As to the revocability of the deed: Greenfield’s Estate, 2 Harris 489; Ritter’s Appeal, 9 P. F. Smith 9.
   The opinion of the court was delivered,

by

Sharswood, J.

The first three assignments of error are not according to Rule VIII., 6 Harris 578, and must therefore be dismissed. We may say, however, as matter of grace and not of. right, that the plaintiff in error suffers nothing by these errors not having been properly assigned. Benjamin Eckman claiming in this ejectment as the devisee of Daniel Eckman, who was the plaintiff in the equity suit, the record of that suit was clearly evidence against him as privy in estate; and this being so, the testimony of Daniel Fulton, taken in that proceeding, was also admissible. It is within, the letter and spirit of thé Act of March 28th 1814, 6 Smith 208, which declares “ that any deposition taken or to be taken in any cause which, by the rules of law, may be read in evidence in the cause in which it is or may be taken, shall be allowed to be read in evidence in any subsequent cause wherein the same matter shall be in dispute between the same parties or persons, their heirs, executors, administrators or assigns.” The subject-matter of thaksuit was the title to this land, and the particular question involved the same as here, the delivery of the deeds — Daniel Eckman to Benjamin Eckman and Daniel B. Eckman, dated September 6th 1859; and Benjamin Eckman is the assignee in law of Daniel Eckman. We have had more difficulty as to the admissibility of the opinion of the court in that case. It was properly perhaps no part of the record. But it seems to fall within the decisions in Carmony v. Hoober, 5 Barr 305, and Coleman’s Appeal, 12 P. F. Smith 252, that such an opinion may be resorted to as evidence that the decree or judgment was upon the merits and not upon any incidental or collateral question. No point was made below as to the effect of the decree — whether it was a decision upon the main question and conclusive — nor has such point been raised in this court. Had the plaintiffs in error wished to exclude the opinion so far as it respected the statement of facts, they should have requested the court to charge that though admitted and read in the cause for another purpose, it was no evidence of any fact, and in that point of view was.to he dismissed from their consideration.

The 4th, 5th and 6th points complain of the charge of the court and may be considered together. The learned judge below was of the opinion that the weight of the evidence was in favor of the delivery of the deed. This court thought so upon the same testimony in Eckman v. Eckman, 5 P. F. Smith 269, and we all agree in thinking so now. The opinion of the judge below was indeed very strongly expressed to the jury, but they were explicitly told at the same time that the question was for them to decide. We cannot say that there was any abuse of the discretionary power of the court to express their opinion upon the sufficiency of the evidence or that the jury were misled. In stating the evidence of Messrs. Amwake and Strohm, the learned judge may have been mistaken in attributing to them what was only a legitimate inference from their testimony. It was really immaterial what their opinions may have been on the question of the goodness of the deed: the important bearing of their testimony was the almost necessary, nay, inevitable inference that the two brothers had consulted them together without raising any objection to the deed on the score of its non-delivery. If there was a mistake committed as to their testimony it was evidently an inadvertent one, and had his attention been called to it at the close of the charge, the learned judge would have referred to his notes and either corrected the one or the other according to the fact. Upon a difference of opinion between the court and counsel I have frequently seen the witness himself recalled and asked to repeat what he had said. We do not think that the jury were misled by anything in these portions of the charge here assigned for error, and these assignments are therefore dismissed.

The 7th error assigned is to the answer of the learned court to the first point of the defendant below. The judge instructed the jury that there was no evidence that it was the intention of Daniel Eckman at the time of the execution of the deed not to deliver it until the grantees should make certain arrangements between themselves in regard to the property. Nor was there any such evidence, unless afforded by what occurred subsequently to the death of Jacob Eckman, and Daniel’s desire then that such arrangements should be made. Had these things followed close upon the execution of the deed they might have afforded some grounds for the inference, hut the date of the instrument is September 6th 1859, and Jacob Eckman died in 1862, three years after, leaving his elder brother Daniel, the grantor in the deed, to survive him. It was in the spring of 1863 that the two brothers, Benjamin and Daniel B., called upon Mr. Strohm to make amicable partition of the two farms, by mutual releases. It was then after the deeds of release were drawn, and were ready to be executed, that this unfortunate controversy between the two brothers arose by a disagreement about the profits, taxes and repairs of the farm derived from the will of their father, and then vested in them as tenants in common. We think it would not be a legiti'mate inference from this that old Daniel Eckman had originally intended that his nephews should make such an arrangement and not to deliver the deed unless they did.

The1 answers of the learned judge to the 3d and 4th points of the defendant below, which form the subject of the 8th and 9th assignments of error, were clearly right. It is one of the best established principles, for which no reference to authorities is necessary, that a deed shall always be so construed as to give it effect; ut res magis valeat quarn per eat. If it cannot be treated as a deed of bargain and sale because there was in fact no pecuniary consideration, yet if the consideration of blood did exist it shall be supported as a covenant to stand seised. Quacunque via data, therefore, this deed was good, and conceding that the reservation to the grantor of the rents and profits arising out of the I premises, was a life estate in the land itself, the remainder to the \ grantees was not a freehold commencing in futuro, but a future ' springing use, taking effect under the Statute of Uses. We may say here that in Pennsylvania a recorded deed will be construed as having the effect of a feoffment with livery of seisin or as a deed under the Statute of Uses, as will best accomplish the intention and design of the parties: Act of May 28th 1715, § 5, 1 Smith L. 95.

The 10th assignment of error, which complains of the answer to the 5th point of the defendant below, raises the question whether the deed of September 6th 1859 is not a testamentary instrument: by reason of the reservation to the grantor of the rents and profits for life. It is contended that it falls within the principle of Turner v. Scott, 1 P. F. Smith 126. There was a provision in the deed in that case not to be found in this: “ this conveyance in no way to take effect until after the decease of the said John Scott, the grantor.” Although in form a grant, these words were supposed to indicate that it was nothing but a declaration of what the grantor willed to be done after his death. But there is nothing of the kind in this instrument. ' It is a grant— and whether a bargain and sale or a covenant to stand seised, it enures to the use of the grantor for life, and after his death to the use of his nephews, the grantees, in fee simple, and there being no power of revocation contained in the instrument it was irrevocable.

Judgment affirmed.