text:
    PIKE COUNTY.
    January Term, 1884,
    No. 58.
    February 25, 1884.
    Mitchell v. Newman.
    1. An agreement of submission to arbitration by two partners of the matters in dispute between them, which contains, in addition- to the mere submission, a stipulation that one partner, shall give to the other possession of the books and papers of the firm, and that the latter shall become the liquidating partner with full power to dispose of its assets, and pay its indebtedness therewith, is, upon sufficient consideration, to make the submission irrevocable when made.
    2. An attempted revocation by the defeated party of a submission to arbitrators just as the award is about to be announced, when there is persuasive evidence that he had substantial knowledge of the conclusion which liad been reached, is not entitled to much favor, and cannot he asserted except under a clear claim of right.
    Before Mercur, C. L; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of PiJce County.

    Amicable action of assumpsit by John B. Newman against William Mitchell.
    The following is a copy of the submission:
    “And now, to wit: February 20, 1882, it is agreed, by and between the said John B. Newman and William Mitchell, that all matters at variance between them, or which may arise in any effort of settlement between them, of their late partnership matters, accounts, individual claims one against the other, and any claims of the estate of Solomon Newman, deceased, against said late firm, and any claims of said late firm against the estate of said Solomon Newman, deceased,. be, and are hereby, referred and from time to time shall be referred, until all differences so arising shall be finally determined and adjusted, to C. W. Bull, J. H. Yan Etten, and John D. Biddis, Esqs., they to hear any and all evidence offered by either party in their behalf, to examine all books and papers and accounts submitted to them by the parties, and upon same to make a final award or finding of their conclusions, to be signed by the said referees, or a majority of them, said finding to be final and conclusive between the said parties. And further, that the prothonotary of said county of Pike be authorized to enter a judgment against the above plaintiff or defendant in the above entitled action in accordance with the terms of said award and finding by said referees, to have the same effect as a verdict and judgment on same rendered by a jury in open court, upon any proper action or suit that might have been brought by said parties for the purpose above-mentioned. Said hearing and examination to be completed and award rendered on or before May 1, 1882. And it is further agreed that William Mitchell be and hereby is authorized to settle all accounts and claims of said firm, except as above mentioned, and to sell, transfer, and assign any notes, accounts, or judgments of said late firm, and to pay the money arising therefrom in liquidation of any proper indebtedness of said firm, and for that jeurpose said Mitchell to have possession of the firm books and papers, reserving the right to said John B. Newman, or his attorney, to examine and see the same, the said Mitchell to keep a separate account of all moneys so received or paid out by him. The said Mitchell not to charge or be allowed any compensation for his individual services in making said settlement, but to be authorized and empowered to pay for any necessary legal services he may require. Witness our hands and seals the day and year aforesaid.
    (Signed) John B. Newman, [l. s.]
    William Mitchell, [l. s.]”
    The arbitrators heard the evidence of both parties, and then held several meetings for consultation upon an award. At one of these meetings, held on April 29,1882, Bull, who had been appointed in the interest of Newman, offered to sign an award in favor of the plaintiff for $1,800, if the other two arbitrators would sign also. This proposition Yan Etten, who had been selected on Mitchell’s part, refused. Biddis then proposed to sign an award with Yan Etten for plaintiff in the sum of $1,500. This also was rejected by Yan Etten. Biddis then stated that unless Yan Etten would sign one of these awards, the award would be $2,100. Mitchell then, through Van Etten, requested further time for examination, but this was refused on the ground that the submission fixed the 1st of May as the time for the award. Mr. Bull consulted Mr. Newman in regard to his willingness for a continuance ; and Mr. Bull reported that Mr. Newman would agree thereto, provided each party should give to the other a bond with surety not to do any act or bring any suit at law, or otherwise, in any manner; prevent an award or finding of the arbitrators or referees during any extension of time as asked and as might be agreed upon — and further that the award would be accepted without exception or appeal when rendered.
    The arbitrators then adjourned until May 1, 1882, in order to learn the conclusion of the parties. Mitchell refused to give the bond, and during the morning of that day, before the meeting, served upon Van Etten a notice of revocation of the submission setting forth:

      “ Messrs. Q. W Bull, J. D. Biddis, andJ. H. Van Etten, arbitrators:

    Please take notice that I hereby withdraw from the submission made in above case, and hereby give notice before the signing of the award that I decline to abide by said reference or be bound thereby.”
    Prior to the meeting at 2, p. ii., Bull had sketched in pencil a form of award, but had not inserted any amount. At the meeting Van Etten stated that Mitchell had served a notice on him of a revocation, and had requested him to hand a copy to each of the other arbitrators. This he did, and then withdrew. Biddis then copied upon the submission the form of award sketched by Bull, inserting the amount $2,100, and entered it of record. It appeared that Mitchell had knowledge before the final meeting that the award would be against him.
    Exceptions to the award filed by Mitchell were dismissed by the Court, and a rule to strike off the judgment and set aside the award discharged in the following opinion by McCollom, P. J.;
    [After disposing of some minor exceptions not after-wards pressed.]
    “This view leaves for consideration these questions: Was the submission revocable ? and if so, was it revoked by proper instrument, and in time?
    As a part of the agreement of submission, Mitchell was to have possession of the books of the dissolved partnership, and to settle its affairs. He was by said agreement made the liquidating partner upon the terms therein stated. The agreement was entire. It possessed the elements of a contract upon sufficient consideration, and after its execution it was not in the power of either to revoke or cancel it without the assent of the other: Mc-Geehen v. Duffield, 5 Barr, 499 ; Paist ■». Caldwell, 25 P. F. Smith, 166.
    We think, too, that the attempted revocation was defective in form: the submission was under seal, the attempted revocation was not. In Morse on Arbitration and Award, it is stated that ‘ the formality of the revocation must follow and conform to the formality of the submission. Thus, if the submission be under seal, so, also, must be the revocation. If the submission be in writing, the revocation must be written ; but if the submission be only verbal, then the revocation may be verbal also. If this rule be not complied with, a revocation, which is insufficient under it, will be of no effect.’ We .are not aware that this precise question has been determined in Pennsylvania, but in Dickerson v. Rorke, 6 Casey, 392, it was held that ‘ where a submission is in writing, it cannot be directly revoked except by a written instrument given to the arbitrators or a majority of them.’
    It is probable that, under the authorities, the attempted revocation in this case would be held to be in time, as it was made before the award was signed or the exact amount agreed upon ; but it is clear from the evidence that Mitchell knew, before he attempted to revoke the submission, that the award, when made, would be against him, and it is a fair inference from the evidence that he knew that its amount would be $2,100 unless Yan Etten, his former counsel, consented to the proposition of Biddis. If revocation is admissible upon the state of facts disclosed by this evidence, the policy of the rule which admits it is seriously questioned.”
    The defendant thereupon took this writ, assigning for error, inter alia, the action of the Court in holding the submission irrevocable, and in refusing to set aside the award.

      G. G. Waller for plaintiff in error.
    The submission was not a contract upon sufficient consideration. It gives him the liberty to settle accounts and claims, and pay over the money to those they owe, but he had that right before, as one of the partners. As a matter of convenience to themselves and their debtors,the books and papers are left with one of them, inasmuch as they had separated, and could not both have the books at the same time. Newman does not agree to give anything for this work, and stipulates that Mitchell is not to receive anything. What rights did Newman relinquish ? He had access to the books at all times, just as much as if he was the liquidating partner. It -was for their mutual benefit that the books and accounts of the late firm should be settled. One party was no more interested in this than the other. That was not a matter submitted to the arbitrators, or with which they had anything to do, but which the parties chose to arrange for their own convenience, without any consideration moving either, beyond the legal right which either of them already had.
    The learned judge says: “Mitchell was by the agreement made the liquidating partner upon the terms therein stated.”
    The mere fact that the agreement states a self-evident fact, or concedes a right already existing and undisputed, should not make it an essential factor in the submission, and for that alone, without any consideration, constitute it a binding contract: Johnson v. Andress, 5 Phila., 8.

      H. T. Baker for the defendant in error.
    The agreement to submit to arbitrators was a contract upon sufficient consideration to render it irrevocable. While it is true that Mitchell, before this agreement, had the right to settle the affairs of the firm as a partner, Newman had also the right. By the submission Newman gave it up: McGreehen v. Duffield, 5 Barr, 499. In this case Newman relinquished his right and gave Mitchell full power to settle accounts and claims, sell, transfer, and assign notes, accounts, and judgments, pay out moneys in liquidation of the debts, and to have sole possession of the books and papers of the firm. This, moreover, gave Mitchell the practical advantage of communication and dealings with old customers of the late firm at his new place of business. Further, Newman submitted to the arbitrators as a part of the adjustment of the several affairs in dispute between the parties his judgment, then due, and ripe for execution, and abstained from entering up and issuing execution upon the same. He also— with the consent of the other heirs of his father’s estate— submitted to their determination all the matters of that estate connected with the firm, involving a large store account and rent for the premises occupied by the firm for the full term of partnership, and began no litiga tion in that behalf; thus, by this single method of adjudication of the several differences between the parties, avoiding at least three different forms of legal proceedings : Williams v. Tracey, 14 N., 310.
    The revocation at best was not in time, nor founded upon proper canse. No fraud or misbehavior of arbitrators is alleged; and if Mitchell, between Saturday, when the amount was agreed upon, (unless an extension was made by the parties,) and Monday, when the award was actually signed, simply concluded that he was dissatisfied with the conclusion reached by a majority of the arbitrators, the revocation was not warranted thereby. Under these circumstances, it was not in the power of Mitchell, “at the last moment, and after the referees had gone far into the case, suddenly to give a notice of revocation and avert a result;” Paist v. Caldwell, 25 P. F. S., 163.
    In this case; the parties were a law unto themselves, and only gross misbehavior of the arbitrators or fraud could stop or set aside the award; Robinson v. Bickley, 6 C., 389 ; Paist v. Caldwell, 25 P. P. S., 166 ; Monongahela Nav. Co. -o. Penlon, 4 W. & S., 205 ; Gallup v. Reynolds, 8 W., 426 ; Lewis’ Appeal, 10 N., 359.
    March 10th, 1884.
   Per Curiam :

This agreement of submission contains something more than a mere submission. It further stipulates that the defendant in error should give to the plaintiff in error possession of the books and papers of the firm, and that the latter should become the liquidating partner, with full power to dispose of its assets and pay its indebtedness therewith. This was a sufficient consideration to make the submission irrevocable -when made. An attempted revocation just as the award is about to be announced, and when there is persuasive evidence that the party had substantial knowledge of the conclusion at which the referees had arrived, is not entitled to much favor. It cannot be asserted except under a clear claim of right. Such right did not exist in this case.

Judgment affirmed.


source: Caselaw Access Project

author: Paxson, J.:

license: Public Domain

text:
    SCHUYLKILL COUNTY.
    July Term, 1883,
    No. 103.
    April 23, 1883.
    Refowich v. Rice.
    1. Where an award of arbitrators in an aetion for slander in favor of the plaintiff is under forty shillings, and does not show on its face an intention to give full costs, full costs will not be allowed.
    2. An award in slander “ in favor of the plaintiff for six cents’ damages and costs,” does not carry full costs.
    3. A mistake or ambiguity in the award of arbitrators can only be corrected by the arbitrators themselves.
    4. Depositions showing the intent of the .arbitrators are no part of the record.
    5. In an aetion for slander, arbitrators awarded to the plaintiff “ six cents’damages and costs.” A rule was subsequently granted on the plaintiff to show cause why judgment on the award should not be entered “for no more costs than damages.” Depositions of the arbitrators showed that they intended to award full damages to the plaintiff. The Court discharged the rule. Held, to be error, and that the discharge of the rule was not the equivalent of amending the award.
    6. Stuart v. Harkins, 3 Binney, 321, followed.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of ScJmylMll County.

    Case -for slander by Charles T. Rice against Levi Refowich to recover damages for injuries sustained by reason of slanderous words uttered by Refowich in reference to Rice’s business.
    The plaintiff filed a declaration charging slanderous language, and the case was referred to three arbitrators before plea. The arbitrators found in favor of the plaintiff “in the sum of six cents’ damages and costs.” On March 12, 1883, the Court granted a rule “on the plaintiff to show cause why judgment on the award in the above case should not be entered for no more costs than damages.” On the same day, a rule was granted to take testimony as to the intent of the arbitrators with reference to costs in their award. The testimony of the three arbitrators, taken under the rule, was that they “intended the award to carry all costs in the suit, as against defendant.”
    On April 23, 1883, the Court, Green, A. L. J., discharged the rule on the plaintiff to show cause why the costs should not be limited to the amount of the damages, filing the following opinion :
    “The award in this case is exactly the same as in Stuart v. Harkins, 3 Binu., 321. There it was decided that an award of one dollar damages and costs gave the plaintiff no more costs than damages, under the act of 27th March, 1713, section 4. If this were all that appears in the present case, we should be compelled to make the rule absolute. But the evidence taken shows that the arbitrators intended to give full costs. Whei’e such intention legally appears, full costs are allowed. Although the jury have full power to give full costs when the damages in slander are under forty shillings, yet an intention to do so ought clearly to appear; and, therefore, a bare finding of costs, without saying more, being equivocal, must be intended to mean such costs as the act operating on the subject-matter will allow: Glower v. Clayton, 6 S. & R., 85. This intention to give full costs is shown by the testimony of all the arbitrators. That the finding of the arbitrators may be corrected when there has been a clerical error, or amended in the case of an equivocal award, is, I think, clear from all the authorities. In the case of Reiland ». Krapp, 2 Leg. Rec., 389, where the award was one dollar, this court allowed it to be recommitted for the purpose of adding ‘and all costs of suit,’ on the ground that the arbitrators had, inadvertently, omitted it. If a correction could be made in that case, it must follow that it can be made in the present case, [where the arbitrators evidently supposed they were giving an award that would carry all the costs, and so intended. It is not necessary to cite authorities as to the power of a court to recommit an award for correction of informalities or for a clerical mistake. It is not necessary to recommit, in the present instance, because we accomplish the same purpose by discharging the rule. Rule discharged.] ”
    The defendant thereupon took this writ, assigning for error the action of the court in discharging the rule, and the portion of the opinion in brackets.

      John W. Ryon for plaintiff in error.
    This case is ruled by Stuart v. Harkins, 3 Binney, 321. The plaintiff was not entitled to a judgment for full costs on the award: Turner v. Horton, Barnes, 132; Hinds v. Knox, 4 S. & R., 417; Moon v. Long, 12 Pa. St. Rep., 207.
    The proper course in this case was an appeal from the award. This was not taken: Walls v. Wilson, 4 Casey, 514; Bowers v. Worrell, 1 Browne, 212.

      L. D. Haughawont for defendant in error.
    The court may recommit an award: Thompson®. Warder, 4 Yeates, 836; Heslop v. Bush, 30 P. F. S., 70.
    The same substantial result was obtained by the rule to take testimony.
    May 5, 1884,
   the opinion of the Court was filed by

Paxson, J.:

The act of 27th March, 1713, 1 Smith’s L., 76, provides that in actions on the case for slanderous words, if the jury shall find the damages under forty shillings, the plaintiff shall recover no more costs than damages. It has been held, however, that juries and arbitrators are not bound by this act, but may give full costs though the damages found be under forty shillings. Our statute pursues the words of the English statutes of 21 Jac. 1, C., 16, under which it was held that the jury may disregard the statute, and give full costs without regard to the amount of damages. The English rule was followed in Stuart v. Harkins, 3 Binney, 321, and has been uniformly recognized as the law by this court since.. In that case, however, it was held that an award of one dollar damages and costs would not carry full costs. In the analogous case of Hinds v. Knox, 4 S. & R., 417 the jury found six cents’ damages, and all costs of suit, held to carry full costs. So in Moon v. Long, 2 Jones, 207, which was an action of slander, the jury gave one dollar damages, “ and that defendant pay the costs,” and it was held that the words “the costs” carried full costs. These cases were decided upon the ground that the award upon its face sufficiently indicated that the arbitrators intended to give full costs. In the case in hand, the award was in favor of the plaintiff for six cents’ damages and costs. Under the authorities, this award would not carry full costs. This was conceded by the learned judge below, but upon a rule upon the plaintiff entered some time after the award, to show cause why judgment should not be entered for no more costs than damages, he discharged the rule, and gave the plaintiff full costs. It is to this rub ing that error has been assigned in this court. The learned judge reached this conclusion by matters dehors the record. The depositions of the arbitrators were taken, showing that they intended to give full costs. These depositions are no part of the record. .Had the award been recommitted to the arbitrators, and amended so as to give full costs, there would have been no difficulty. But there was no action by the arbitrators as such. Their award could only be amended by themselves, acting in their official character as arbitrators, upon a recommittal of it to them by the court. The discharge of the rule was not, as the learned judge supposed, the equivalent of amending the award. While his conclusion may have been entirely correct if it had been reached in an orderly way, the vice of it consists in the fact that his mode of proceeding leaves nothing upon the record to sustain him.

The judgment is reversed, and it is ordered that judgment for costs be entered for six cents only.


text:
    January Term, 1884,
    No. 336.
    April 24, 1884.
    Walker’s Appeal.
    1. The orphans’ court has no jurisdiction to decree the conveyance, by an executrix and devisee, of real estate held in trust by testator when the declaration of trust executed by the testator provided that only so much of the property as should not have been sold within a certain time should be reconveyed; that the taxes and expenses should be paid by the trustee, to be refunded by the cestui que trust; and that after the latter should be re-imbursed for all his outlays, the profits should be equally divided between them.
    2. These are matters which belong to the equity side of the court of common pleas.
    3. The provisions of the act of 1834 do not confer upon the orphans’ court the power, expressly or by implication, to take cognizance of partnership dealings and state an account between the surviving partner and the representatives of the decedent, or where a full and final settlement of the partnership affairs and the specific performance of agreements in relation to the real estate are necessarily involved in carrying out the contract of a decedent.
    Before Gordon, Paxson, Trunkey, Sterrett, and Green, J.Merour, C. J. and Clark, JJ., absent.
    Appeal of Lewis B. Walker, assignee of Thomas H. Walker, trustee of Thomas H. Schollenberger, from a decree of the Orphans’ Court of SchuylJcill County refusing to order the conveyance of real estate held by L. P. Whitney, deceased, in his lifetime, as trustee.
    The facts, as they appeared from the petition and answer, were as follows:
    In the fall of 1873, Thomas H. Schollenberger purchased from various parties three lots of land in Schuylkill county. The deeds were made out in the name of L. F. Whitney. Schollenberger paid, out of his own funds, the entire purchase money at the time, with the exception of $2,264 45, for which mortgages were given by Whitney. Ón July 1, 1875, Schollenberger purchased a tract of land in Clarion county, which, on April 20,. 1877, he conveyed to Whitney. He also conveyed to Whitney 9,090 shares of the Jefferson Oil Company. Schollenberger subsequently paid off the mortgages for $2,264 45, which were satisfied of record January 4, 1876.
    On April 1, 1874, Whitney executed to Schollenberger a declaration of trust. This deed, after describing the-several properties mentioned above and averring that’ Schollenberger had paid all the purchase money or consideration for them, continued as follows: “Now, it is hereby acknowledged and declared by the said L. F. Whitney, in consideration of the premises and of the covenants and agreements hereinafter recited and mentioned, that he, the said Whitney, is made grantee in said recited deeds by the direction and appointment of, a.nd upon the behalf of, the said Thomas .H. Schollenberger, and that he is therein trustee for him, the said Schollenberger, his heirs and assigns, and that he does not claim to have any right or interest in the premises so conveyed to him, or to his, the said Whitney’s, own use or benefit* except as hereinafter set out and specified, and subject to the covenants and agreements hereinafter mentioned. And he, the said Whitney, for himself and his heirs,, covenants and promises to and with the said Schollenberger, his heirs or assigns, that upon payment by the said Schollenberger, his heirs or assigns, of all the purchase or consideration money now remaining unpaid, as aforesaid, and upon the fulfillment and performance of all the covenants and agreements hereafter recited and mentioned, he, the said Whitney, and his heirs, will, at. the request and cost of the said Schollenberger, his heirs and assigns, convey to the said Schollenberger, his heirs and assigns, so much of the premises as shall not, in the meantime, have been sold and conveyed, or agreed to be sold or conveyed, by the said Whitney to other persons, in pursuance of and under the covenants and agreements hereinafter recited.
    “It is agreed, by and between the said parties to these presents, as follows:

      “First. Said Whitney shall, at his discretion, lay out into streets, lots, and outlets, of sizes of which he shall deem proper and expedient, the whole or any part of the premises mentioned in the above-recited deeds, and until the receipts from sales, as hereinafter provided for, shall be equal to the taxes and current expenses paid and incurred by said Whitney in execution of the trusts and powers mentioned and given, the said Schollenberger shall pay the same, or the deficit, and charge the same against the property, to be re-imbursed as soon as the property shall yield sufficient money for that purpose.
    “Second. Said Whitney shall sell and convey the said premises, or any parts thereof, in lots or by the acre, or in any size or sizes which to him shall seem meet and proper, and for the interest and advantages of said Schollenberger and himself.

      “Third. All taxes, expenses, and costs shall be first paid out of the proceeds of sales or as provided above.”
    The agreement further provided that Schollenberger and Whitney should divide the net profits equally from time to time, and that at the end of three years a full and final settlement should be made, unless the parties at that time should extend the agreement. It was agreed that when the final settlement should be made “ Whitney or his heirs shall and will convey to the said Schollenbeager, his heirs' and assigns, the one undivided half part of so much of the premises as shall not before that time be sold or conveyed, or agreed to be sold or conveyed, to other persons aforesaid: Provided, however, That before any division of profits shall be made, or before the said Whitney shall convey to the said Schollenberger, as aforesaid, the said Schollenberger shall be re-imbursed the cost paid by him for said land and interest as aforesaid.”
    This deed was recorded November 21, 1878. On April 24, 1877, by an agreement under seal recorded November 21,1878, the time of the trust was extended for three years from April 1, 1877, and the trust was made to include the land in Clarion county and the stock in the Jefferson Oil Company conveyed to Whitney in 1877.
    ■ On May 1, 1877, Schollenberger assigned his interest in the trust to T. H. Walker for the benefit of certain creditors named in the deed of assignment. T. H. Walker subsequently assigned the same property, with the assent of Schollenberger, for the same purposes to L. B. Walker.
    Whitney rendered his last account to Schollenberger January 4, 1876. On September IQ, 1878, he died, having constituted his wife, Hannah Whitney, the executrix of his will, and made her the sole devisee and legatee of his will.
    ■ On July 15, 1882, L. B. Walker presented his petition to the orphans’ court, in which, after setting forth the facts as above, he averred that L. F. Whitney had not kept true and just accounts of all the moneys which he had received as trustee for T. H. Scliollenberger; that he had rendered no account, since January 4, 1876 ; that he had failed to pay over large sums of money which he had received since the rendition of said account, and that he had appropriated said sums to his own use ; that lie had “not paid over to the said Thomas H. Schollenberger the amounts advanced by him for the purchase of the said property with interest according to the agreements aforesaidthat Hannah Whitney, in whom was the legal title to the trust estate under her husband’s will, refused to convey the said legal title, although the petitioner was ready and willing to pay all the expenses of conveyance, and that Hannah Whitney had refused to render any account of money and proti ts received from the properties which compose the trust estate, although often requested to do so. The petition prayed that Hannah Whitney might be compelled to render an account of all moneys received from the trust estate by L. F. Whitney in his lifetime, and by herself after her husband’s death, and that she be compelled to make conveyance of the legal title to the trust estate to the petitioner.
    Hannah Whitney made answer to the petition that she had no knowledge of what had occurred in the lifetime of L. F. Whitney, and that she could not submit any account for L. F. Whitney. That she had paid to L. B. Walker $973 60 which, she had as dividends from the Jefferson Oil Company, and that she had $218 76 in her hands received from the same source, which she was ready and willing to pay over to Walker; that as executrix she had not to her. knowledge neglected any duty relative to the trust estate ; that the‘estate of L. F. Whitney was insolvent ; that sire submitted to the court: “A. Whether the said court has any jurisdiction to make any order or decree as prayed for. B. That the petitioner be required to establish by dire and competent proof the existence of such facts as will establish his right to the relief prayed for to the end that no injustice may be done to said executrix and the estate of the said L. F. Whitney.”
    At the same time, certain creditors of L. F. Whitney filed a protest to the petition setting forth that L. F. Whitney owed the protestants certain sums of money as set forth; that the estate of Whitney is insolvent; that the real estate demanded by Walker is the bulk of Whitney’s estate ; that the creditors should be made parties to this proceeding ; that the orphans’ court has not jurisdiction ; that on the death of Whitney his estate became vested in his creditors as equitable owners, and that Hannah Whitney is merely their trustee ; “that the said deeds for several pieces of real estate to said L. F. Whitney being on their face absolute and in fee, the said L. F. Whitney obtained credit on the strength thereof;” that the declaration of trust was null and void because not recorded until after Whitney’s death; that the petition should therefore be dismissed.
    On October 29, 1883, the Court, Bechtel, J., dismissed the petition on the ground of want of jurisdiction in the orphans’ court.
    L. B. Walker thereupon took this appeal assigning, for error the action of the Court in refusing the decree prayed for in his petition.

      Thomas H. Walker and L. B. Walker for appellant.
    Under the act of June 16, 1836, the orphans’ court had jurisdiction to decree specific performance of the contract set forth in the declaration of trust: Brinker v. Brinker, 7 Barr, 53; Chess’s Appeal, 4 Barr, 52; McFarson’s Appeal, 1 Jones, 503; Weller ». Weyand, 2 Grant, 104; West Hickory Mining Association v. Reed, 30 Smith, 38.
    The right of the cestui que trust in this case can only be defeated by a {bona fide purchaser or mortgagee of the property for value without notice of the trust. A judgment or simple creditor is not such a purchaser or mortgagee as can claim against the trust.

      S. H. Eaercher and William B. Wells for appellee.
    The orphans’ court had no jurisdiction to enforce specific performance of the contract in this case. The proper forum to enforce performance of such a contract is the court of common pleas, whose equitable powers may be invoked in the settlement of the partnership affairs: Wiley’s Executors’ Appeal, 3 Norris, 270.
    This appeal is experimental upon the part of the appellant. He has filed a bill in equity in the common pleas praying for the same decree. It is for this court to say which is the proper forum.

      A. W. Schalck for the creditors of L. F. Whitney, deceased.
    May 5, 1884.
   The opinion of the Court was delivered by'

Paxson, J.:

If the orphans’ court had no jurisdiction to decree specific performance in this case, we need inquire no further. The act of June 16, 1836, P. L., 792, provides: “The jurisdiction of the several orphans’ courts shall extend to and embrace * * * the specific executions of contracts made by decedents, to sell and convey any real estate of which such decedent shall die seized.” The fifteenth section of the act of 24th February, 1834, P. L., 75, points out the mode of proceeding in such cases.

It was said in Brinker v. Brinker, 7 Barr, 53, that “ the draftsman of the act of 1834 had in his eye the case of an ordinary bargain and sale of real estate, and Wiley’s Appeal, 3 Norris, 270, decided that the provisions of the act of 1834, which gave the orphans’ court jurisdiction to decree specific performance of the contracts of decedents for the sale and conveyance of real estate, do riot confer upon that court the power, expressly or by implication, to take cognizance of partnership dealings, and state an account between the surviving partner and the representatives of the deceased, or where a full and final settlement of the partnership affairs, and the specific performance of agreements in relation to the real estate are necessarily involved.in carrying out the contract of a decedent. The contract sought to be enforced in this case involves more than an ordinary bargain and sale of real estate. Whitney, the decedent, held the property in trust for Schollenberger. The agreement to re-convey was not absolute, but depended upon certain conditions specified in the declaration of trust. Only so much as shall not have been sold was to be re-conveyed; the taxes, expenses, &c., to be paid by Whitney, and to be refunded by Schollenberger, and that after the latter shall be re-imbursed for all his outlays, the profits were to be equally divided between them. We have here a trust, a liability on the part of the trustee to account to Schollenberger, and a stipulation for a division of the profits. These are matters which belong to the equity side of the court of common pleas, and never were intended to come within the jurisdiction of the orphans’ court.

The decree is affirmed and the appeal dismissed at the costs of the appellant.


author: Oreen, J.:

text:
    TIOGA COUNTY.
    January Term, 1884,
    No. 332.
    May 15, 1884.
    McDowell v. Jones, et al.

    1. On November 28,1862, K obtained from U a loan of $19,000, and delivered to U a notefor that amount, payable on June 10,1864, with interest payable semi-annually, and in which it was stated “ as collateral security for the payment of this note, I have this day assigned to the said U a certain bond of D for $40,000, dated November 10, 1862, and payable June 10,1864, with warrant of attorney, together with the indenture of mortgage, securing said bond, recorded, &c., * * * and I agree with the said U, his executors, administrators, or assigns, that upon default being made by me in the payment of the interest or principal of this note for ten days after the same may become due, that he or they may and shall sell the said bond and mortgage, * * * and apply the proceeds of said sale to the payment of this note and interest, &c.” There were no witnesses1; it was not under seal, and was not acknowledged or recorded. Held, that while this kind of an assignment would not enable the assignee to proceed by suit in his own name, it -was, nevertheless, effectual to pass a perfect title to both the bond and the mortgage to U, the assignee, in accordance with its terms.
    2. In 1864, D sold to J two lots of ground subject to the said mortgage of $40,000. J took possession and made improvements; and he and his heirs have continued in possession ever since. The deeds to J were dated September 30, 1864, and January 10, 1865, and both were recorded on February 10,1866. On October 10,1864, D paid to U $3,000, and procured from him a release, by which the lots bought by J were released from the lien of the mortgage, which release was recorded February 2,1S65. On February 17, 1865, judgment was entered upon the bond in the name of U, assignee of K, against D. This judgment was satified of record on December 6, 1865. In June, 1865, D gave to K another bond and warrant of attorney, which was an exact copy of the one assigned to U, except as to the names of the witnesses. In November, 1865, K obtained $25,000 from M, and assigned to him this second bond and warrant, which was recorded December 7,1865. In 1871, M assigned the same to T, who entered judgment thereon in 1874. The land in dispute was sold at sheriff’s sale under this judgment, and purchased by T, who afterwards conveyed the premises to McD. Held, in an action of ejectment by McD. against the heirs of J, that U, being the assignee of the bond and mortgage, and plaintiff in the judgment, was the proper person to release the land, and that the release was certainly operative against M, whose interest never came into existence until months after it was executed, delivered, and recorded.
    3. The defendant in the judgment entered by U, assignee of K, having made no objection to the form in which the judgment was entered, no one else could do so, and it was as fully operative in all respects as if it had been entered in the name of K for the use of U.
    4. If it was a fraud upon M to give him a bond dated back to the same date as the original bond, J, who had nothing to do with it, and whose rights were established before any right of M had come into existence, could not be affected by it.
    5. The fact that J was in possession of the land was sufficient to put M upon inquiry as to the title of J.

      Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. '
    Error to the Court of Common Pleas of Tioga County.

    Ejectment by Thomas McDowell against Rachael Jones, Margaret Jones, Mary Jones, Edward Jones, and Benjamin Jones, to recover possession of two lots of land in Bloss township, Tioga county.
    The case was submitted to the court below, Mayer, P. J., without the intervention of a jury, under a written agreement between the parties in accordance with the act of 23d April, 1874.
    The findings and conclusions of the Court were as follows:
    This is an action of ejectment brought by Thomas McDowell, the plaintiff, against Rachel Jones and others, heirs of Benjamin Jones, deceased, defendants, to recover possession of two pieces, parcels, or lots of ’ground, situate in Blossburg, Tioga county. Both parties claim under a common source of title, Edwin Dyer.
    The plaintiff’s title is derived from a sheriff’s sale of the premises in dispute, made under and in pursuance of proceedings had upon a mortgage covering said premises, given by Edwin Dyer to Henry E. Keene, dated November 10, 1862, and recorded same day in Tioga county, in mortgage book No. 2, page 308, etc.
    The defendants claim title under two several deeds executed and delivered by Edwin Dyer to Benjamin Jones, the one dated September 30, 1864, and the other dated January 10, 1865. Both of said deeds were recorded in Tioga county February 10, 1866, in deed book No. 37, page 367, etc.
    The following facts were found by the Court:

      First. Edwin Dyer was the owner of the land in controversy, and on the tenth day of November, 1862, executed and delivered to Henry E. Keene, of the city of Philadelphia, who was his son-in-law, a bond, with warrant of attorney attached, in the penal sum of $80,000,' conditioned for the payment of $40,000, on the 10th day of June, A. D. 1864, with interest payable half-yearly.

      Second. On the same day, ,November 10, 1862, Dyer, executed and delivered to said Keene a mortgage to secure the payment of said bond, which was recorded in Tioga county on the day of its execution, and delivery in mortgage book No. 2, page 308, etc. This mortgage covered a large amount of real estate situate in Tioga county, including the land for which this ejectment was brought.

      Third. The bond and mortgage were delivered by Dyer to Keene, as his agent and attorney, for the purpose of negotiating a loan for Dyer.

      Fourth. On the 28th day of November, 1862, Keene negotiated a loan of $19,000, from one Samuel C. Upham, of the city of Philadelphia. At the time he procured said loan Keene made and delivered to Upham his own note, dated November 28, 1862, payable June 10,1864, the date when the bond secured by the mortgage would become due and payable. This note was given as additional security to Upham for the loan of $19,000.
    This note is as follows:
    Philadelphia, November %8, 186%.

    On the 10th day of June, 1864, I promise to pay Samuel C. Upham or order, nineteen thousand dollars without defalcation for value received, with interest payable semiannually as follows : On the 10th day of December, 1862, on the 10th day of June, 1863, on the 10th day of December, 1863, and at the maturity of this note, to wit: on the 10th day of June, 1864 ; and as collateral security for the payment of this.note I have this day assigned to the said Samuel C. Upham a certain bond of Edwin Dyer for $40,-000, dated November 10, 1862, and payable June 10, 1864, with warrant of attorney, together with the indenture of mortgage securing said bond, recorded in the proper office in Tioga county, in mortgage book No. 2, page 308, etc., and I agree with the said Samuel C. Upham, his executors, administrators, or assigns, that upon default being made by me in the payment of the interest or principal of this note for ten days after the same may become due, that he or they may and shall sell the said bond and mortgage at private or public sale, without further reference or notice to me, and apply the proceeds of said sale to the payment of this note and interest, and to the expenses incurred in such sale, and should there be any deficiency, I promise to pay the same to the holder of this note on demand.
    Henky E. Keene.

      Fifth. By the terms set forth in this note Keene assigned to Upham the bond of Dyer for $40,000, with warrant of attorney, together with the indenture of mortgage securing said bond, as collateral security for the payment of said note.

      Sixth. In 1864, Edwin Dyer sold to Benjamin Jones, by articles of agreement, the land in controversy, and Jones went into possession and made improvements. . Jones and Ills heirs have continued in possession ever since the purchase, in 1864.

      Seventh. On the 10th day of October, 1864, Dyer procured from Upham a release, by which the premises in dispute in this ejectment were released and discharged from the lien of the mortgage, which had been assigned to Upham by Keene on the 28th day of November, 1862. At the time the release was executed, Dyer paid to Upham the sum of three thousand dollars. The release was recorded in Tioga county on the 2d day of February, 1865, in mortgage book No. 2, page 472, etc.

      Eighth. On the 30th of September, 1864, Dyer executed and delivered to Benjamin Jones a deed for one of the lots in dispute, and bn the 10th dáy of January, 1865, executed and delivered a deed for the other lot. Both deeds were recorded in Tioga county on the 10th day of February, 1866, in deed book No. 37, page 367, etc. At the time .these deeds were delivered, Jones paid to Dyer the balance of the purchase money.

      Ninth. The defendants are the heirs of Benjamin Jones, and in possession of the land in dispute.

      Tenth. On the 6th of February, 1865, judgment was entered in the court of common pleas of Philadelphia, in the name of Henry Keene, for the use of Samuel C. Up-ham versus Edwin Dyer, on the warrant of attorney attached to the bond, which had been assigned by Keene to Upham, when the loan of $19,000 was procured. An exemplification of the record of this judgment was taken to Tioga county and entered on the 17th day of February, 1865, in the court of common pleas of .Tioga county. On the 2d of December, 1865, this judgment was satisfied of record in the common pleas of Philadelphia, and on the 6th day of December, 1865, satisfied of record in the common pleas of Tioga county.
    (The record shows that the above-named suit was brought by Samuel C. Upham, assignee of Henry E. Keene, against Edwin Dyer.)

      Eleventh. After judgment had been entered on the bond and warrant of attorney assigned to Upham, Keene undertook to procure another loan for Dyer, and to effectuate this purpose had another bond and warrant of attorney prepared and executed by Dyer to himself. This bond and warrant of attorney was an exact copy of the original bond and warrant of attorney which had been assigned to Upham. except that the subscribing witnesses to its execution were different. This last or second bohd and warrant of attorney were drawn in June, 1865, and executed and delivered to Keene about the latter part of July, 1865.

      Twelfth. On the 29 th day of November, 1865, this second bond and warrant of attorney, together with the original mortgage, were assigned to David M. Jaquett for a loan of $25,000, which had been procured from him. This assignment was recorded in Tioga county in mortgage book No. 2, page 528, on the 7th day of December, 1865. December 29, 1871, Jaquett assigned said bond and mortgage to Phoebe M. Thompson.

      Thirteenth. Judgment was entered on the bond and warrant of attorney assigned to Phoebe M. Thompson in the court of common pleas of Philadelphia, to No. 287, December term, 1874. A writ of test. fi. fa. was issued to Tioga county, February 16, 1876, and the land in dispute levied on by the sheriff, inquisition held, and the property condemned. March 15, 1876, a writ of test, vend. exp. was issued, and the land levied upon was sold by the sheriff of Tioga county to Phoebe M. Thompson. April 7, 1876, a deed was made by the sheriff of Tioga' county to Phoebe M. Thompson, duly acknowledged and recorded in Tioga county, on the 20th day of August, 1877, in deed book 58, page 532, etc. On the 16th day of August, 1877, Phoebe M. Thompson sold and conveyed, by deed, the premises in dispute to Thomas McDowell. The writ of ejectment was issued October 4, 1883, and served on the defendants.
    From the foregoing facts, the Court made the following conclusions of law:

      “First. That Samuel C. Upham was a bona fide assignee of the original bond and warrant1 of attorney, secured by the mortgage dated November 10, 1862.

      “Second. That the assignment contained in the note of Iienry Keene to Samuel Upham, dated November 28, 1862, was a legal and valid transfer and assignment of said bond and warrant of attorney recited in said note.

      “Third. That the transfer and assignment of said bond and warrant of attorney to Upham by Keene, operated in equity to transfer the mortgage to Upham as security for the payment of said bond, although there -was no formal assignment of the mortgage.

      “Fourth. That the release, dated October 10, 1864, made and delivered by Upham to Keene, at the time when Upham held the title to said bond and mortgage, was effectual to release and discharge the land in dispute in this suit, from the lien and operation of said mortgage.

      “Fifth. That the deeds dated September 30, 1864, and January 10, 1865, executed and delivered by Edwin Dyer to Benjamin Jones, vested a valid, title in Benjamin Jones to the land for which this ejectment was brought, which title descended to the heirs of said Benjamin Jones, the defendants in this suit.

      “Sixth. That the proceedings had upon the mortgage of Edwin Dyer at the suit of Phoebe M. Thompson, under which the premises in dispute were sold at sheriff? s sale to said Phcebe M. Thompson, and by her conveyed to Thomas McDowell, the plaintiff, were ineffectual to confer a valid title to the land in controversy, as against the title of the defendants.

      iiSeve?ith. That the defendants are entitled to recover in this action of ejectment, and therefore judgment is entered for defendants.”
    ■ The plaintiff’s counsel filed numerous exceptions to the findings and conclusions of the Court, which were dismissed.
    The plaintiff then took ont a writ of error, and assigned as efrror the dismissal of the exceptions.

      Samuel O. Dixon and Edwin S. Dixon for, plaintiff in error.
    The fifth, seventh, and tenth findings of fact are really conclusions of law, and should not have been found as facts.
    The note in question was never intended by the parties to be an absolute assignment of the bond and mortgage ; it simply recites that they were assigned, and only mentions them as collateral security, and limits the use that can be made of them by specifying that in default of payment of the note they may be sold.
    An assignment neither under seal nor in the presence of witnesses, or acknowledged and recorded, is not a valid and legal assignment: Partridge v. Partridge, 2 Wr., 80; act 28th May, 1715, Purd. Dig., 162-7. Assignments of mortgages come within the recording act, and, therefore, must be acknowledged: Pepper’s Appeal, 27 P. F. Sm., 373.
    The release of mortgage given to the defendant was executed by one who was not the holder of the mortgage by legal assignment. The plaintiff had made a thorough examination of the title and had complete searches, disclosing the mortgage as a first lien upon"the premises and standing in the name of Keene. He also took a declaration of no set-off from Dyer, the mortgagor and owner of the land, who by the records continued to own the lands for two months after Jaquett took his assignment, Jones’ deed not having been recorded at the time of this assignment.

      Ií. P. Allen, M. F. Elliott, and F. E. Watrous for defendants in error.
    The findings of fact are conclusive upon all parties. Although there was no such formal assignment of the mortgage as the statute requires in order to transfer the legal title so as to enable the assignee to sue in his own name, yet there was a valid assignment and transfer of the bond which operated as an equitable transfer of the mortgage. The transfer of the note carries with it the security without any formal assignment or delivery: 1 Jones on Mortgages, S., 480; 16 Wallace, 271; Licey ®. Licey, 7 Barr, 253; Caldwell ®. Hartupee, 20 P. F. Sm., 74 ; 123 Mass. R., 58 ; Jones on Mortgages, Yol. I.
    The mortgage was not a lien as to subsequent lien creditors and purchasers until the day when the money was actually paid by Jaquett: 1 Jones on Mortgage, 86; Mullison’s Est., 18 P. F. .Sm., 212; Schafer ®. Reily, 50 N. Y. R., 61; 1 Trickett on Liens, secs. 137, 104, 105; Johnson ®. McCurdy,. 83 Pa., 282; Hess ®. Coleman, 2 W. N. C., 224.
    The original bond was never transferred to Jaquett, and, therefore, neither he nor his assignee is entitled to the benefit of the lien of the mortgage. This bond did not accompany the mortgage, and the mortgage could not have been given to secure its payment.
    The satisfaction of the judgment entered on the bond operated as a cancellation of the mortgage: 16 Wallace, 271; Mitchell ®. Coombs, 15 Norris, 431; Anderson ». Neff, 11 S. & R., 223 ; Craft v. Webster, 4 Rawle, 255 ; Cover ®. Black, 1 Barr, 493, 13 Norris, 489.

      Samuel Q. Dixon and Edwin S. Dixon in reply
    cited Shaver ®. Williams, 87 111., 469; Roberts ®. Halstead, 9 Barr, 32 ; Morris®. Brady, 5 Wh., 541; Brown ®. Henry, (not yet reported;) DeWitt’s Appeal, 26 P. F. Sm., 283.
    October 6, 1884,
   the opinion of the Court was delivered by

Oreen, J.:

It cannot be doubted that the note from Keene to Up-ham, dated November 28, 1862, contained an effective, valid assignment of tlie bond and mortgage given by Dyer to Keene, It describes the bond by its date and amount, and the name of the obligor, and the mortgage by a special reference to its record, and declares explicitly that both were assigned to Upham on the day of the date of the note as collateral security for the payment of the note. While this kind of an assignment would not enable the assignee to proceed by suit in his own name, it was, nevertheless, entirely effectual to pass a perfect title to both the bond and the mortgage to Upham, the assignee, in accordance with its terms. Subsequently, ■ in February, 1865, and before the assignment to Jaquett, which was not made till November 29, 1865, Upham asserted his title to the bond by entering judgment upon it, in his name as assignee of Keene, in the common pleas of Philadelphia, and by transcript in the common pleas of Tioga. As Dyer, the defendant, made no objection to the form in which the judgment was entered, no one else could do so, and it was as fully operative in ail respects as if it had been entered in the name of Keene for the use of Upham. This judgment was notice to all that Upham had enforced his title to the debt secured by the mortgage, as the bond is fully described in the record entry of the judgment precisely as in the mortgage. • Being thus the assignee of the bond and the mortgage, and the plaintiff in the judg-" ment entered upon the bond for the payment of the mortgage debt, Upham was undoubtedly the proper person to release the land bound by the mortgage and judgment. Certainly Keene could not have done so, as his title was divested and all others were strangers. In this condition of the record, Benjamin Jones, the defendant’s predecessor in the title, purchased from Dyer, the owner of the fee, the part of the lands described in the mortgage which is in controversy in this action.' He bought by articles of agreement in September, 1864, and at once entered into possession and made improvements, and he and his heirs have remained in possession ever since. Deeds were made to him, one on September 3.0, 1864, and the other on January 10, 1865, for the premises purchased. It being desired to release the land sold to Jones from the lien of the mortgage to Keene, such release was executed by Upham to Dyer on October 10, 1864, for the consideration of three thousand dollars paid by Dyer to Upham. Why should not Jones have the benefit of this release? It is difficult to understand. Upham’s title to the mortgage by equitable assignment was undoubted. He has obtained judgment for the mortgage debt which clothed him with the legal title thereto. He only could give an effective release for a lien which he held. He gave the release for a full consideration actually paid for the benefit of an innocent and good-faith purchaser who took a perfect paper-title for the land in question, and followed it up with actual possession and improvements. If this release was operative then, it certainly was operative against persons whose interests never came into existence until months after it was executed, delivered, and recorded. For it was recorded in Tioga county, where the land lies, on February 2, 1865, and thus again notice was given, not only of the assertion of Upham’s title to the mortgage, but of the exercise of his power to release, applied to this particular land, nearly ten months before Jaquett loaned his money or took his assignment. In point of fact, Jaquett never received the original bond secured by the mortgage of November 10, 1862, the bond which he acquired having been really executed in 1865, and dated back to the same date as the original bond. If this was a'fraud upon Jaquett, we fail to perceive how Jones, who had nothing to do with it, should be held responsible for it. He was as innocent as Jaquett could possibly be, and his rights were established long before any right of Jaquett had come into existence. His release was recorded, and he was in possession of the land. This possession was sufficient to put Jaquett upon inquiry as to the title of Jones, and that inquiry would naturally have developed the true facts of the case. An examination of the record for liens against Dyer, the owner, would have disclosed Upham’s judgment for the very debt described in the mortgage he was about to buy. Moreover, this bond and mortgage were then (in November, 1865,) more than a year past due; Keene, the mortgagee, had never advanced any money on the mortgage; so far as Jaquett was concerned, his advance would only give him a lien from the time it was made; the original bond given with the mortgage never was transferred to Jaquett, and the mortgage was not given to secure the bond’executed in 1865, which was assigned to Jaquett; the plaintiff’s title is not derived from a sale under the mortgage but from a sale under a test. vend. ex. issued upon a judgment entered in the common pleas of Philadelphia in 1874 on the bond and warrant which Jaquett acquired in 1865, and not upon the bond given in November, 1862, with the original mortgage. In all these circumstances, we cannot think that the title of Jones, acquired in 1864, more than a year before Jaquett had obtained any rights whatever, and accompanied with immediate and continuous possession, caii be taken away by force of any of the facts claimed in support of the plaintiff’s title.

Judgment affirmed;


author: Tkunkey, J.:

text:
    UNION COUNTY.
    July Term, 1883,
    No. 56.
    May 5, 1884.
    Union National Bank v. Dersham.
    1. A depositor in a bank testified that, upon negotiations for the settlement of a dispute concerning a certificate of deposit for $200 between himself and the directors of the bank, one of the directors said that “ they could take me for forgery, and could sue me and get tlie $200, and then I thought, sooner than to go to law, I would pay $75, and I gave them a due bill, and promised them to pay in thirty "days. If I had money, I would have paid it then.” He gave his note for $75, which was immediately indorsed over to an innocent holder for value, and paid the money a few days before the note was due. In an action against the bank to recover back the $75 so paid, hdd, that the question of duress ought not to have been submitted to the jury on such testimony.
    2. Any contract produced by actual intimidation is voidable, not only where the circumstances were sufficient to intimidate a man of ordinary firmness, but were sufficient to and did intimidate the particular person because of his or her infirmity, though insufficient to intimidate one of ordinary firmness.
    Before Mercur, C. J. ; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to tlie Court of Common Pleas of Union Qounty.

    Appeal by Tlie Union National Bank, defendant, from the judgment of R. F. Brown, Esq., for $84 34 in favor of Jacob Dersham, the plaintiff.
    Upon the trial in the court below, before Büoiier, P. J., the following facts appeared :
    On May 8, 1878, the Union National Bank of Lewis-burg, Pennsylvania, closed its doors for investigation, the bank examiner taking charge on the 10 th day of May.
    A day or two after the bank closed, Jacob Dersham, the plaintiff, came to the bank with the obligations which he had against the bank and against its cashier, H. P. Sheller, personally, and showed them to Jonathan Wolfe, one of the directors. Among these papers was a certificate of deposit for $200, dated August 18, 1877, and signed by H. P. Sheller, but without the word “cashier.” This obligation appeared upon the books of the bank. Mr. Wolfe made a memorandum of these obligations in the presence of the plaintiff, and put down the certificate as the individual obligation of Sheller without objection.
    The plaintiff then called upon H. P. Sheller at his residence, who added the word “cashier” after his name on the certificate. John K. Kremer was afterwards appointed cashier of the bank, and this certificate was presented at the bank and paid by him. He afterwards discovered that the word “cashier” had been apparently written at a different time, and with different ink, and wrote to plaintiff to call at the bank. Upon his attention being called to the matter, plaintiff admitted that “cashier” had been written to the certificate afterwards. The directors of the bank claimed that an over-payment had been made to the plaintiff to the extent of these $200, and proposed to compromise with him, and finally agreed to accept $75 to settle the matter. The plaintiff testified, inter alia :

    “Then the cashier said that they paid me too much. I told them, right away, that they did not, and then the directors were in the back room, and then there was a fellow there, I guess it was Smith. He said that I should go along out, and while there he tried to persuade me that if I would give one hundred dollars back, and I told him that I would not pay any back, that it was not right, for they got the money, and it was my money that they paid for that certificate. Well, so he said if I paid one hundred dollars back, but I did not agree to it. I thought it was a hard feed, and then he said they would go to law, and make me pay the two hundred dollars back. Well, I could not believe it. Well, then, he come down; then I promised him fifty dollars sooner than go to law. They threatened me to take me for forging; said that they could take me for that. Well, then, he did not know whether he should take fifty dollars. Then he went into the back room to the other fellows, and was there a while, and came out and said he would not take the fifty dollars, and came down to seventy-five dollars. He said they could take me for forgery, and could sue me, and get the two hundred dollars ; and then I thought, sooner than to go to law, I would pay seventy-five dollars, and I gave them a due bill, and promised them to pay thirty days. If I had money, I would have paid it then. Then I came down in thirty days, and I asked the cashier. I did not care for the due bill. And he wrote, a note, and I saw my name on the back, and I thought I would have to pay it, and I did pay it.”
    Upon cross-examination he testified :

      Q. “Now, then, Mr. Dersham, you say that Mr. Smith told you that they could bring a prosecution against you for forgery. Are you sure he said that ?

      A. Yes, and Duncan too.

      Q. That they would ?

      A. That they could.

      Q. Did they say that they might be able to recover the two hundred dollars from you %

      A. Yes, sir; that is what Smith said. I thought sooner than go to law I would sooner pay that. First I offered fifty dollars, but they would not take that, and I paid the seventy-five dollars rather than have any lawsuit about it. This is the first law-suit, and I hope it will be the last one.”
    The note given by the plaintiff was immediately indorsed over to ah innocent holder for value, and discounted by the bank. Plaintiff paid the note five days before it was due, and was not aware of the manner in which it was indorsed until more than two years after-wards.
    Defendant’s counsel offered to show that this certificate was, at the time, recorded by Mr. Dersham as an obligation against Mr. Sheller, an'd not against the bank. Offered in connection with the testimony that has been given for the purpose of showing that there was a doubt as to whether this was the obligation of Mr. Sheller, or whether it was the obligation of the bank, and this, together with the circumstances that the plaintiff in this suit held individual obligations against the bank to show that it was by way of compromise that there was ground for claim, and it was by way of compromise that this note of $75 was given.
    Objection by plaintiff sustained. Exception.
    Defendant’s counsel offered to show by Jonathan Wolf, the amounts and dates of the obligations of Mr. Dersham against Mr. Sheller individually, as well as those that were due by the bank were given by him as cashier of the bank, for the purpose of showing that there was a doubt whether this paper for $200 was a claim against Mr. Sheller individually or a claim against the bank. For the purpose of showing that the bank had the ground of claim against Mr. Dersham, and that the note for $75 was given in compromise thereof.
    Objection by plaintiff sustained. Exception.
    Defendant’s counsel offered to ask W. C. Duncan whether Mr. Sheller, the former cashier of the bank, had made false entries in the books of the bank, admitted to by him as having been made, by which the bank was prejudiced, taken in connection with the knowledge of the fact that Mr. Sheller had afterwards changed this paper. Offered, for the purpose of showing that there was a reasonable doubt as to whether this obligation was the obligation of the bank or of Mr. Shelter individually, as a ground of compromise between these parties.
    Objection by plaintiff sustained. Exception.
    Defendant’s counsel offered to prove further, by W. C. Duncan, that the bank examiner came to the bank after the comptroller of the treasury had been telegraphed to, and that he assumed the control of the bank. Offered for the purpose of showing that Mr. Sheller was not the cashier, that the examiner took the affairs of the bank out of the hands of all of them, including the cashier.
    Objection by plaintiff sustained. Exception.
    The Court charged the jury, inter alia, as follows :
    “We submit this case under all the evidence in the cause, and under the instructions to the court to you to find such verdict as you think right and proper. If you find there was duress, then find for the plaintiff $75, with interest from the time of its payment.”
    March 18, 1882, verdict for the plaintiff for $92 22, upon which judgment was afterwards entered.
    Defendant then took out a writ of error, assigning as error the refusal of defendant’s offers, and the portion of the charge quoted above.

      Alfred Hayes and William Jones for plaintiff in error.
    The rejected testimony would show that there were good grounds for compromise, without the element of duress being involved in it. The payment was entirely voluntary on the part of Mr. Dersham, and there was nothing amounting to duress: Real Est. Saving Inst. d. Linder, 24 P. F. Sm., 371; Navigation- Co. n. Brown, 4 Out., 338; Barrett v. French, 1 Conn., 354; Hatter -o. Greenlee, 26 American Decisions, 370 ; U. S. ®. Huckabee, 16 Wall., 421; Worcester v. Eaton, 13 Mass., 377; Bissett v. Bissett, 1 Har. & McIL, 211.
    The fact that the note had been negotiated does not affect the case, because it was not paid merely because it was negotiated. If there was duress, the note was ratified by its subsequent voluntary payment.

      Jill & Beale for defendant in error.
    The rejected testimony was inadmissible, because a compromise compelled by duress is as invalid as an extortion by duress without pretense of claim.
    The private memorandum could not affect the plaintiff below, because he was no party to it. The fact that the examiner took charge of the bank would not prove that Shelter did not remain cashier. •
    Fraudulent representation and duress are clearly shown by the evidence: Jordan «.Elliott, 12 W. N. C., 59; Miller «. Miller, 18 P. F. Sm., 4S6.
    Threats of an illegal arrest or imprisonment render void an instrument procured through them : 32 N. J. Eq. R., 55; Carpenter «. Groff, 5 S. & R., 164; Preston «. Hill, 38 Cal., 686.
    October 6, 1884,
   the opinion of the Court was delivered by

Tkunkey, J.:

Dersham’s testimony reveals a dispute between the officers of the bank and himself, respecting a certificate of deposit. He knew all the facts at the time he gave the note in settlement, and he complains of no fraudulent representation. Before the note became due, and without knowledge that it had been indorsed to an innocent holder, he went from his home to the bank for the purpose of paying it, and did pay without objection. The fact of indorsement had nothing to do in moving him to make payment. He says that, pending the negotiations for settlement, the directors threatened him with prosecution for forgery, but, in giving the language of the alleged threat, it was that they “could, prosecute,” not “would.” In the talk with Smith, he offered to pay $50 rather than go to law. Smith saw the others, and then proposed to take $75. Dersham states the conclusion thus: ‘ He said they could take me for forgery, and could sue me, and get the $200 ; and then I thought sooner than go to law I would pay $75, and I gave them a due bill and promised them to pay in thirty days. If I had money, I would have paid it then.” Such is the alleged duress as shown in the plaintiff ’ s testimony. The testimony on the part of the defendant makes the case no stronger. There is no evidence that the plaintiff is timid or feeble, or not possessed of ordinary firmness by reason of age or other cause. He did not believe they could collect the money back, finally settled and gave the note to avoid a law-suit, and he does not assert that his judgment was overcome, of that he gave the note through fear arising from a threat of criminal prosecution. As bearing on the question of 'duress, his act of payment of the note is as potent as if no transfer had been made — he did not learn of the transfer till in the act of payment. He gave the note and paid it in settlement of a claim for a larger sum. .

The whole testimony, or that on part of the plaintiff, did not warrant a finding of “that degree of severity, either threatened and impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.” There was no threatened exercise of power from which he needed immediate relief — if sued, he could defend. It may be conceded that the rule has become settled that'any contract produced by actual intimidation is voidable, not only where the circumstances were sufficient to intimidate a man of ordinary firmness, but were sufficient to and did intimidate the particular person, because of his or her infirmity, though insufficient to intimidate one of ordinary firmness. The question of duress ought not to be submitted on a scintilla of evidence. We are of opinion that the fifth assignment of error must be sustained.

It is unnecessary to note the other assignments. The Court charged in effect that a voluntary payment of money without fraud or constraint, though in ignorance of the law or the legal circumstances of the case, cannot be recovered back. There being no sufficient proof of fraud or coercion — no duress — the plaintiff was not entitled to recover.

Judgment reversed.


author: Per Curiam:

text:
    WARREN COUNTY.
    January Term, 1884,
    No. 339.
    May 29, 1884.
    Rogers v. Davidson.
    1. The right of a trial by jury cannot be taken away by any uncertain agreement.
    2. Articles of agreement between parties to a contract contained the following section: “ Said parties agree to have no litigation over this contract or the work under it, and if any real or supposed cause of complaint should arise, they hereby agree to submit tire same to one or three indifferent men, to be chosen by the parties as arbitrators are under the general arbitration law, upon notice by either party as to the time and place of choosing, whose award shall be final.” Held, that this agreement contained no submission that could be enforced according to its terms.
    3. A dispute having arisen, one of the parties notified the other to appear before the prothonotary for the purpose of choosing arbitrators. The prothonotary appointed the arbitrators, who found for the plaintiff. In an action of debt brought by the plaintiffs upon the award, the court refused the admission of the award as evidence, and granted a non-suit. Held not to be error.

      Before Merour, C. J.; Gordon, Parson, Trunket, Steeeett, Geeen, and Clark, JJ.
    Error to the Court of Common Pleas of Warren County. \

    Debt by L. A. Rogers against Samuel Davidson, to recover the amount of an award rendered by arbitrators against the defendant.
    At the trial, February 29,1884, before Williams, P. J., the following facts appeared:
    On July 2, 1874, an agreement in writing was entered into between Rogers and Davidson, which contained, inter alia, the following article:
    ‘ ‘ Said parties agree to have no litigation over this contract or the work under it, and if any real or supposed cause of complaint should arise, they hereby agree to submit the same to one or three indifferent men, to.be chosen by the parties as arbitrators are undef the general arbitration law, upon notice by either party as to the time and place of choosing, whose award shall be final.”
    A dispute having arisen between the parties, on June 7, 1875, Rogers served a notice upon Davidson to meet him at the prothonotary’s office on the 22d day of the same month, to choose arbitrators to settle all matters at variance between them. On the day appointed, arbitrators were appointed by the prothonotary. On July 8, 1875, the arbitrators met and found for the plaintiff.
    The plaintiff offered in evidence the award of the arbitrators. The defendant objected, because the arbitrators were not chosen under any authority contained in the contract, or under any authority given to the prothonotary of the county of Warren by law or by the contract, and because, therefore, the arbitrators had no authority to act in the premises, and their award is null and void.
    The objections were sustained, under objection, and the Court' directed a compulsory non-suit, which it subsequently refused to take off. The plaintiff thereupon took this writ, assigning for error the action of the Court in refusing his offer, as above, and directing a non-suit.

      J. O. Parmlee, W. W. Wilbur, and W. M. Lindsey for plaintiff in error.
    It is well settled that where parties to a contract have agreed to leave their differences to a particular person or persons, whose decision shall be final, resort must be had to the tribunal appointed by the agreement: Reynolds v. Caldwell, 1 Smith, 298; O’Reilly v. Kerns, 2 Id., 214; Howard v. The Allegheny Yalley R. R., 19 I'd., 489; Lauman ©. Young, 7 Casey, 308; Monongahela Nav. Co. v. Fenlon, 4 W. & S., 210.
    The duty of courts is to enforce all lawful contracts made between parties, whatever they may be: Harris v. Ligget, 1 W. & S., 301.
    The court will always seek to uphold a . submission in spite of a defect in formality, according to the obvious intent of the parties: Morse on Arbitration and Award, 47.

      Brown & Stone, and John P. Vincent for defendant in error.
    The agreement contains no submission that can be carried out according to its terms. The arbitrators were to be chosen by the parties, and not by the prothonotary of Warren county. The plaintiff assumes that the words ‘ ‘ as arbitrators are chosen under the general arbitration law,” means that the one or three arbitrators are to be chosen by the prothonotary when neither the officer nor the county are named in the submission. If it was a sensible submission at all, it was clearly a prospective one — to arbitrators to be thereafter chosen by the parties. That such a decision is not binding on the parties, and does not oust the general jurisdiction of the courts, is decided in many cases : Meútz r>. The Armenia Ins. Co., 79 Pa., 475; Insurance Co. v. Morse, 20 Wallace, 445; Gray v. Wilson, 4 W., 39.
    June 9th, 1884.
   Per Curiam:

This judgment is clearly

right. The agreement contains no submission that can be enforced according to its terms. The right of trial by jury cannot be taken away by any uncertain agreement. A stipulation that either party may fix the time and place of choosing the arbitrators is too uncertain to sustain the action of the party and the prothonotary in this case.

Judgment affirmed.


text:
    WASHINGTON COUNTY.
    October and November Term, 1884,
    No. 4.
    October 20, 1884.
    Scott v. Ames.
    1. A rule of court provided that in an action of ejectment, plaintiff may rule defendant “ to give him an abstract of the title under which he defends, and a specification of all special facts and equitable matter which he intends to rely upon,” and if he neglects to furnish the same, “ he shall not be permitted on the trial to set up any title in defense.” Under this rule defendant furnished an abstract of title and special matter. Held, that an omission to state that the defendant relied upon a title by continuous adverse possession for twenty-one years, precluded him from setting up such title in defense.
    2. Where defendant in ejectment had given in evidence a deed by plaintiff to a third person, made before suit brought in order to show want of title, parol evidence by plaintiff in rebuttal to prove that the land in suit was not intended to be included within the boundaries given in the deed was admissible.
    Before Merctjr, C. J.; Gordon, Trtjnkey, Sterrett, Green, and Clark, JJ.; Paxson, J., absent.
    Error to the Court of Common Pleas of Washington County.

    Ejectment by Arthamer Ames against A. D. Scott for lot of ground situate in West Pike B.un township, containing one quarter of an acre, more or less. Plea, not guilty.
    Under the rule of court providing that “theplaintiff in like manner may have a rule on defendant to give him an abstract of the title under which he defends, and a specification of all special facts and equitable riiatter which he intends to rely upon ; and if he neglects to furnish the samé on or before the first day of the next term after ten days’ service of the rule as aforesaid, he shall not be permitted to set up any title in'defense,” the plaintiff took a rule on defendant to file an abstract of title and a specification of all special ’facts and equitable matters upon which he intended to rely. The defendant thereupon filed an abstract of title and special matter, which contained no statement that he intended to claim title by continuous adverse possession for twenty-one years.
    Upon the trial in the court below, before Hart, J., the following facts appeared:
    William Beall, by deed dated December 25, 1872, conveyed to Arthamer Ames two tracts of land containing twenty-four acres, more or less. The land sought to be recovered in this suit was included in that deed. Defendant gave in evidence deed dated March 3,1882, (two months prior to bringing this suit,) by which Arthamer Ames and wife conveyed to John Yorty:
    “All the following described tract of land situated-in West Pike Run township, bounded by land of Isaac Thompson, John Duvall, William Allen, and A. D. Scott, making the road that goes from the N ational road to the Pike Run road the line between Arthamer Ames, and the said Yorty, containing twenty-four acres, more or. less, being the same property as purchased at sheriff’s sale by William Beall and conveyed by him to Arthamer Ames by deed dated December 25, 1872, and recorded in book S, Yol. Y, page 501.”
    Defendant offered to prove that the defendant and those under whom he claims, have been in continuous adverse possession for twenty-one years or more.
    Objected to by plaintiff for the reason that under the rule of court they have not notified the plaintiff of the evidence in their bill of particulars.
    Offer overruled. Exception by defendant.
    The plaintiff offered to show in rebuttal the location of the road referred to in said deed of Ames to Yorty, with reference to the land therein mentioned, and that said road intersects said land, cutting off a small- portion thereof from the twenty-four acres, more or less, it being the land in dispute, for the purpose of showing that the disputed land was not included in the deed from Ames to Yorty.
    Objected to as incompetent and irrelevant, the plaintiff having already parted with his interest in the land deeded to him by William Beall by his conveyance of March 3, 1882, to John Yorty.
    Objection overruled. Exception by defendant.
    Defendant’s counsel presented the following point for charge:
    “The Court is respectfully requested to instruct the jury that there is no exception or reservation in the deed from the plaintiff to Yorty put in evidence by the defendant; that all the right, title, and interest of the plaintiff to the land in dispute passed to Yorty by the deed aforesaid, and that consequently the verdict must be for the defendant.” Refused.
    The Court thereupon charged the jury, inter alia, as follows :
    “The title that is held by the plaintiff overlaps a certain road, and extends into a field, which is in possession of Mr. Scott; and the disputed tract is inclosed, by Mr. Scott’s fence. There is no doubt of that, gentlemen, from the evidence. It is a very small piece of ground, containing less than a quarter of an acre, but it lies in Mr. Scott’s field. Now, then, under the circumstances, the plaintiff is entitled 'to recover here, he holding the older title to this piece of ground, if you are satisfied that is the case— that this piece of ground is inclosed in Mr. Scott’s field, and is not included in the conveyance made by the plaintiff to John Yorty before the bringing of this suit. [Now, I instruct you that if you believe the evidence in regard to the location of the disputed piece of ground, and there don’t seem to be any doubt about it — that it is not included in the deed from Arthamer Ames to John Yorty, and therefore that it still belongs to Mr. Ames, your verdict should be for the plaintiff for the land in dispute.]”
    “ There is no question here in regard to the Statute of Limitations ; and. you are confined to'the one point. [If you believe that this land in dispute lies between Mr. Yorty’s ground and Mr. Scott’s according to the deed of conveyance from Ames to Yorty, why, that little piece of ground was reserved and belongs to the plaintiff, and he is entitled to your verdict in this action. Your verdict, should be simply for the plaintiff for the land in controversy.]”
    September 21, 1883, verdict for plaintiff, upon which judgment was afterwards entered.
    The defendant then took out a writ of error, and assigned as error the refusal of defendant’s offer, and admission of plaintiff’s offer of evidence as above stated, the answer to the point, and the parts of the charge inclosed between brackets.

      J. L. Juclson and Dougan & Todd for plaintiff in error.
    •The only effect of omitting to give notice of special matter is to confine the defense to the general matters under the pleas on the record: Ege v. Medlar, 1 Nor., 101; Moyer ■». Fisher, 12 Har., 515; Snyder v. Bauchman, 8 S. & B,., 336 ; Black t>. Tricker, 2 P. F. Sm., 436 ; Patterson v. Brindle, 9 Watts, 99. The defense of ‘the Statute of Limitations was therefore admissible under the plea of “not guilty.”
    Where the description of the subject-matter conveyed is defective, uncertain, or too .general to be understood, explanatory evidence is admissible: Best v. Hammond, 5 P. F. Sm., 409. But where a subject-matter exists which will satisfy the terms of the instrument of conveyance, the explanatory evidence is inadmissible: Starkie on Ev., 693 ; Wusthoff 'o. Dracourt, 3 Watts, 240 ; Harvey v. Yandegrift, 8 Nor., 346; Appel v. Byers, 2 Out., 479. The land conveyed to Yorty is identified by the deed, hence parol evidence was inadmissible: 1 Green-leaf Ev., sec. 297 ; Wright v. Weakly, 2 Watts, 89.
    An exception out of a grant ought to be stated and described fully and accurately : Bouv. Law Diet., tit. Exception, 1 Greenleaf Ev., sec. 297.

      John L. Goto for defendant in error.
    The argument that the defense is admissible under the general issue would render the rnle of court inoperative and of no effect. The cases referred to decide that the defendant will not be allowed to give affirmative evidence in support of his plea, but will merely be allowed to repel the case of the plaintiff : Moyer r>. Fisher, 12 Har., 515 ; Black ®. Tricker, 2 P. F. Sm., 436 ; Daniel v. Wilver, 12 Har., 516.
    No exception of the one fourth acre was made or intended. It was not embraced in the conveyance to Yorty, and this may be shown by locating the boundaries : Mc-Clenahan ». Humes, 1 Casey, 87. The recital is descriptive of the title only: Chaplin v. Srodes, 7 Watts, 410.
    The question whether the land in controversy was embraced in the deed could only be determined by parol testimony: Hoffman v. Danner, 2 Harris, 28; Collins v. Rush, 7 S. & R., 147.
    November 3d, 1884.
   Per Curiam:

The rule of court requiring a bill of particulars to be furnished is a just and wise one, and it was properly enforced in this case. No valid reason was given for the omission to state in the bill the title attempted to be given in evidence. No request was made for leave to amend the bill. The evidence was properly refused. The reference in the deed to “the road, that goes from the National road to the Pike Run road” as one of the boundaries of the land conveyed, made the parol evidence proper. The object thereof was not” to establish that the land in question was technically excepted out of the land conveyed, but to prove that it was not intended to be included within the boundaries given in the deed.

Judgment affirmed.


author: Per Curiam :

text:
    October and November Term, 1884,
    No. 25.
    October 20, 1884.
    Smith v. Linn.
    1. An antenuptial settlement not intended by the parties to be of binding force, executed and shown to the grown-up children of the husband in order to remove their objections, may be annulled and destroyed by the husband, with consent of the wife, after the marriage.
    2. Her consent, during the coverture and after its removal, confirms and ratifies the annulment.
    8. His children have no such interest in the agreement as to give them a right to object.
    4. Nor has a purchaser from the assignee in bankruptcy of the husband any such right.
    Before Merotjr, C. J.; Gordon, Trunkey, Sterrett, Green, and Clark, JJ.; Paxson, J., absent.
    Error to the Court of Common Pleas of Washington County.

    Dower by Mary Maria Linn against W. W. Smith to recover her common law dower in land bought by Smith from the assignee in bankruptcy of her husband, James Linn, Sr.
    At the trial, November 15, 1883, before White, J., the following facts appeared:
    In 1860, James Linn, Sr., was the owner of the land-in question. In that year lie married the plaintiff, who was his second wife. He had, at the time of his marriage, six grown children by his first wife. The plaintiff had a personal estate in money of $2,070. It was agreed between her and Linn that each should enjoy their own estate after marriage, but in the event of death, the survivor was not to claim an interest in the estate of the other. The contract was reduced to writing and signed by both parties. As to this agreement, Mrs. Linn testified as follows :
    “It was just concérning whatever each other possessed, to pacify his children at home. . There was some half dozen of them. They were grown up. That was the arrangement before there was pen put to paper. They were opposed to my getting any part of his estate by my marriage, and to reconcile them we-made this agreement. He was to destroy it right away whenever the children were made acquainted with it. I could not state it word for word, but each one was to have his own property; neither to claim an interest in the property of the other. That was the sum and substance of it. Each one was just to have and hold their own, without any claim on the estate of the other. * * *
    When he proposed it, he just said it was to pacify the children. Nothing more nor less. I would sign it on no other condition, only for him to destroy it, and that was what he proposed ; that was part of the agreement at the time — that it should be destroyed. * * He told me he had destroyed it at the time he borrowed my money.”
    Mrs. Linn testified that after the marriage Linn destroyed the writing. Robert Linn, a son of James Linn, also testified that his father had told him that he had destroyed the agreement.
    In 1872, Linn was adjudged a bankrupt, and under an order of the District Court of the United States, his land was sold by the assignee to W. W. Smith. Linn died in 1875.
    The Court charged the jury, inter alia, as follows :
    1 ‘ From the evidence, she was' married to Mr. Linn in 1860. He died in 1875. She testifies that prior to their marriage they had an article of agreement signed by them, which may be called an antenuptial contract, or agreement, that she was to retain her own property, and he was to retain his ; and that he was to have no interest in her estate, nor she in his estate. [According to her testimony as to the contents of that agreement, I think it would have barred her dower in his estate, had it not been destroyed.] She testifies to you that the agreement was entered into, not. in good faith, but as an imposition on the children of Mr. Linn, who were grown ujj and who were opposed to his marriage. She testifies that she would not have signed the agreement except upon the condition that it was to be destroyed. It was to be shown to the1 children for the purpose of satisfying and pacifying them, and was then to be destroyed; and she says that after their marriage it was destroyed by her husband ; that she had some $2,000 of her own money; that he borrowed that money from her about the year 1862, and gave her a note for it, and at that time he told her that paper was destroyed. Mr. Linn’s son also testifies that his father told him he had destroyed the paper; and he says that was, he thinks, seven or eight years after they were married, which would bring it to about 1867 or 1868. [The question of law has been raised by the defendant’s counsel that Mr. Linn could not destroy that agreement; that he and his wife, before their marriage, having entered into such a contract, in which she substantially agreed not to claim any dower in his estate, that afterwards it could not be destroyed. I decline to sustain that proposition of law, and I say to you *that it was competent for the two parties, husband and wife, after their marriage, to agree and have that paper destroyed, and that if they both agreed to destroy it, it would enable him to claim an interest in her estate, and enable her to claim an interest in his.
    The children of Mr. Linn have no vested interest in his property. They had no such interest in his property as wo,uld prevent their father from destroying that paper, and allowing his wife to claim her dower interest in his property. He could have held her to that agreement, and, if he had preserved the paper and held her to the agreement, she could not claim dower here now. But if it was destroyed with her consent, and for the purpose of doing away with that agreement, it would let her in to claim her dower in his estate, at law.]
    After Mr. Linn, was put into bankruptcy, by regular proceedings in bankruptcy, and after the creditors, by the proceedings in bankruptcy, had commenced them against his estate — if at that time his widow was entitled to no dower in his estate, it would be a fraud by Mr. Linn upon his creditors to destroy that paper ; and I say that, unless that agreement was destroyed before the proceedings in bankruptcy, it could not be destroyed so as to allow her to come in and claim her dower.
    The only question then left for you to pass upon, or, I may say, two questions, are: First, was that paper destroyed with the consent of Mr. Linn and his wife ? and, second, was it destroyed before the proceedings in bankruptcy were commenced \ These proceedings were commenced on the 19th of September, 1872; he was adjudicated a bankrupt on the 19 th of November, 1872. Was the paper destroyed before that time %

    If it was, with the consent of both parties, then I say to you she is entitled to her dower in the property.”
    Yerdict for plaintiff and judgment thereon.
    The defendant took this writ, assigning for error, inter alia, the portions of the charge in brackets as above.

      Braden & Miller for plaintiff in error.
    The agreement between the plaintiff and James Linn, Sr., was entered into in contemplation of marriage.
    At the time this agreement was made, the plaintiff was free to act for herself. It was a contract which she was competent to make, and which she deliberately entered into. The children of Linn were virtually parties to it. It was made for their benefit.
    The contract, having been made and reduced to writing, was signed by the plaintiff and James Linn, and then exhibited to his children. It satisfied them that the plaintiff would not make any claim to their father’s estate. The marriage then took place, and then, by.force of this contract, the right of expectancy of Linn’s children in their father’s estate was recognized by him, and by the plaintiff it was assured to them.
    But now, after the estate of James Linn is bankrupt, and after her own estate is gone, she says, as between herself and James Linn, the antenuptial contract had no other purpose than to serve as a means of deception on the children of Linn; that it was understood between them, that after the writing had been submitted to his children to satisfy them that she would not make any claim to his estate, that then it was to be destroyed. To permit such a defense to prevail would be to sanction fraud.

      J. li. Braddoelt and J. B. Forrest, for defendant in error,
    relied upon G-angwere’s Estate, 2 Harris, 417.
    November 3d, 1884.
   Per Curiam :

It appears that the writing, in regard to which this contention arises, was not intended by the parties thereto to be of binding force. With the consent of his wife, the husband had a right to annul and destroy it, so far as his rights and benefits were concerned. His children had no such interest therein as to give them a right to object. His wife assented to his action so far as she could during her coverture, and since its removal, confirms and ratifies the same. The evidence was properly received and correctly submitted to the jury.

Judgment affirmed.