text:
    Bradley v. Grosh.
    j If, on the trial of a canse, a release is given to render a witness competent, and ' | the releasee» avails himself of the benefit of his testimony, the release is a bar to any future action against the releasee, upon a cause of action covered by the release: unless the same were procured by fraud, or by the fraudulent representations of the releasee, as to the testimony he would give.
    Under the plea or replication of non est factum, the party pleading it, cannot give evidence of fraud in obtaining the deed, nothing being put in issue by that pleading, but the execution and delivery of the instrument.
    It is error to submit to a jury the question of fraudulent representations in obtaining a release, in the absence of all evidence tending to show such representations.
    In error to the Court of Common Pleas of Lancaster county.

      May 11. This was an action of trespass on the case, in which Thomas Grosh, the defendant in error, was plaintiff, and John Bradley, the plaintiff in' error, was defendant. The declaration contained the common money counts, and one for work, labour, and services. To this, the defendant pleaded non assumpsit, and payment with leave, &c. An additional count, on guarantee of defendant, was subsequently filed by consent, when the defendant pleaded a release to the whole narr., or of the whole cause of action. To this plea, the plaintiff replied non est factum. The plea of release and the replication of non est factum, are the only pleadings material here. The case was this: On the 18th of November, 1839, Morgan J. Thomas gave a note for $210, payable to Mark A. Hodgson, six months after date. On the 4th of October, 1841, Hodgson sold or transferred the note to James Hamilton and John Bradley, the plaintiff in error, and guarantied the payment. Evidence was given to show that this transfer and guarantee were made upon condition that the note was to be “ sued out,” as it was expressed, by the then next ensuing court for the county of Chester. That term of the court was held on the first Monday of November, 1841. About the latter end of October, or early in November, 1841, Bradley and Hamilton sold or transferred the note and guarantee to Thomas Grosh, the plaintiff, after Bradley had endorsed it. There was evidence given tending to show that Grosh was to bring suit, and if he failed to get the money Bradley was to be responsible; and that Cfrosh was not to suffer any loss. There was no evidence that Grosh was made acquainted with the special agreement by which suit was to be brought at the then next term as the condition upon which Hodgson was to be liable on his guarantee. Whether the transfer was made to Grosh after the term of the court referred to, or after it was too late to bring suit to that'term, did not clearly appear. On the 2Tth December, 1842, Grosh brought suit against Morgan J. Thomas on the note; and on the 2d June, 1843, obtained an award, on which he issued a writ of fieri facias on the 6th July, 1843. , To this writ the sheriff returned nulla bona. On the 26th October, 1843, suit was brought by Bradley and Hamilton for the use of Grosh v. Mark A. Hodgson, on the guaranty of the 4th October, 1841. This was tried before arbitrators, and an award made in favour of the plaintiff on the 18th January, 1844. The defendant in that action appealed on the next day, and on the 20th November, 1844, obtained a verdict in his favour. On the trial before the arbitrators, evidence was given at the first meeting tending to establish the special agreement requiring suit to be brought at the then next term. Upon this, the plaintiff obtained a continuance, and at the second meeting released Bradley and Hamilton from liability and introduced them as witnesses. Upon the trial afterwards in court their testimony was rejected.
    On the trial of this case before Lewis, P. J., the following testimony, on the part of the defendant, relative to the release, and the causes which induced Grosh to execute and deliver the same to Bradley and Hamilton, on the hearing of' the case of Bradley and Hamilton, for the use of Grosh, v. Hodgson, before arbitrators, was given by one of the counsel of Grosh in that case:—
    “ I was Mr. Gr osh’s counsel. After the first hearing we thought it necessary to have the testimony of Bradley and Hamilton. Arbitration continued — 2d day of meeting, they came. Objected to on ground of interest. Grosh, Bradley, and Hamilton retired with me into another room. I prepared a release to Bradley and Hamilton from Grosh, executed by him under seal. I witi nessedit; my name is to it; only those four were there. We came in and produced the release, and the parties (Bradley and Hamilton) were admitted as witnesses. I don’t know what became of the release.”
    The defendant then, after giving some evidence to prove the loss of the release, offered to prove the contents thereof, which was objected to by the plaintiffs; but the objection being waived, the witness' was again called, and testified as follows:—
    “ I drew the release — it was substantially this — a release by Grosh of all claims that he had or might have against Bradley and Hamilton, by reason of the endorsement of the note. In my judgment it was intended to relieve Bradley and Hamilton from any liability to Gh'osh, to enable them to be witnesses. It toas intended, and, I believe, was an entire discharge. They were both examined as witnesses by the arbitrators, but rejected afterwards by the court on the decision of Patterson and Heed, Post and Avery, &c.
    “ Cross-examined — This release was given to make these parties witnesses. The defendant in answer to our case showed by two witnesses, the Duffields, that Bradley and Hamilton had agreed to sue the note at the coming term. We then got the continuance to get Bradley and Hamilton. I examined them in my office. They both stated that there had no such conversation ever taken place, but on the contrary, they had asked Hodgson the consideration of the note — that he stated multicaulis. Wanted it sued out at next court, but Bradley refused. Then it was given to him to collect according to law. Then we offered them. Thought they had an interest. We then went into the back room. I asked them again what their testimony would be. They stated it again. I told Grosh if he executed this release he would be precluded from any claim against them. They testified before the arbitrators substantially what they stated before me in my office they would swear to — but were excluded in court. Upon those representations of what they would swear to, I advised Grosh to execute this release. I would not have advised so, if it had not been for these representations. Hamilton and Bradley stated that the statement of Hodgson’s witnesses were incorrect, to wit: that Bradley was to sue at the next court. They denied it also on oath before the arbitrators.”
    His honour, Judge Lewis, after stating the case, charged the jury as follows:—

      “ If the jury believe that the defendant sold to. the plaintiff the note of Thomas, and the guarantee of Hodgson, and agreed to be responsible if the plaintiff failed to recover upon suit brought, and believe also that the plaintiff used due diligence in the collection of the money, and failed to collect -it by reason of the insolvency of Morgan J. Thomas, and the discharge of Mark A. Hodgson from his guarantee by the failure of Bradley, while he held it, to bring suit within the time required by the agreement, then the plaintiff may recover in this action, unless his claim is barred by his release.
    “ If the plaintiff released the defendant from all liability arising out of the transaction, for the purpose of using him as a witness, and availed himself of the testimony of Bradley accordingly, the plaintiff is barred, unless the release was obtained by the fraud of Bradley.
    “ In deciding upon the question of fraud, the jury will bear in mind that conflicting testimony, touching the matter stated by Bradley, was heard and known to the- plaintiff before he executed the release, and that Bradley did testify substantially as he had stated he would, before the release was executed. To impeach the release on the ground of fraud, some new facts should be shown, which were not known to the plaintiff at the time of its execution. If he voluntarily executed it with a full knowledge of all the facts now known, he has but small cause of complaint. A mere mis-recollection of facts, or a mistake of the defendant in regard to them, would not be sufficient to invalidate the release. Nothing short of a false representation of facts, known by the defendant at the time to be false, would produce that effect. This involves a charge of perjury as well as fraud, and on that account should be examined with care. 'But if, after such examination, the jury find that the release has been obtained by fraud, the jury should disregard it as inyalid.”
    To this charge, the defendant excepted.
    The jury returned a verdict in favour of the plaintiff for f 455 damages, and six cents costs. The defendant thereupon sued out this writ, and assigned the following errors here:—
    1. The court erred in their charge to the jury, in instructing them that they should inquire whether the release pleaded was obtained by the fraud of Bradley; “ that a false representation of facts, known by the defendant at the time to be false, would produce that effect; and if the jury find that the release has been obtained by fraud, the jury should disregard it as invalid.” The pleadings in the case did not put in issue the validity of the release, on the ground of fraudulent representation of facts; and the reference of that question to the jury, was manifest error.
    2. The court erred in the whole of that part of their charge relating to the effect of the release pleaded; there was no -evidence in the case which justified the court in referring the question of fraudulent representations to the jury.

      Franklin and Fordney, for plaintiff in error.

      Frazer, contrd.

      May 18.
   Coulter, J.

The learned judge below states the law on the subject of the release with great clearness and force. But he submits the question of its being procured by the fraud of Bradley to the jury, when there existed no proof in the cause conducing to show the fraud. Fraud is not to be presumed, but must be proved; and in most cases, it is the most dangerous kind of question to be submitted to a jury without proof. At all events, as we are unable to perceive any evidence in the cause that Bradley procured the release by fraudulent representations, or failed to testify what he alleged he could give in evidence, or did any other act with the design of procuring the release fraudulently, we must reverse the judgment. It has been often ruled that it is error to submit a fact or question to the jury, of which there is no evidence.

The defendant pleaded a release of the cause of action covered by the declaration; to which the plaintiff replied non est factum. Under this replication, the plaintiff could not legally have given evidence that the release was procured by fraud. The defendant came to trial on the ground of maintaining that the release was the deed of the plaintiff. Under the plea of payment with leave, &c., in Pennsylvania, the defendant may give in evidence fraud, want of consideration, &c.; but that is under a well established practice, understood by all the profession, for the purpose of letting in an equitable defence. And the craving leave to give the special matter, puts the plaintiff on his guard, so that he may-demand a specification. But, under the plea of non est factum, the plaintiff has no notice whatever of any special matter, nothing to put him on his guard; and no plea of non est factum is entered with any other view than putting in issue the legal execution of the deed. The defendant may give in evidence anything which shows that the execution of the instrument or deed was void; such as, that the' defendant was a lunatic at the time of the execution, or, if a female, that she was married at the time. But an equitable defence, such as payment, fraud, or want of consideration, is not covered by the plea of non est factum. Why, then, should the rule be different in the case of a replication? Almost all replications are special in their nature, and it was as easy to reply that the release was procured by fraud, as that it was not the deed of the plaintiff. By the replication of non est factum, nothing was put in issue but the execution of the deed, and whether any circumstance made the execution void, such as lunacy, &c. It gave the defendant no kind of notice that proof of its being procured by fraud, would be adduced. If the plaintiff was allowed to take his chance first on the replication of non est factum, and, if he failed there, was permitted to throw himself on the issue of fraud, he would be allowed the benefit of two replications, one of which was unknown to the defendant, and made no part of the issue. It is necessary to preserve forms, so as to enable parties to come prepared with a knowledge of what is to be the issue to be tried; otherwise, justice will be in fact blind. There was neither evidence of fraud, that we can perceive, nor was it involved in the issue. This is not the case of an imperfect issue, or of informal pleading, -which might be cured after a trial and verdict. But it is the case of a perfect issue, formal in all its parts, which conveyed precise notice to the defendant, and a trial upon another issue or state of pleading unknown to the defendant.

Judgment reversed, and a venire de novo awarded.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    Good v. Mylin.
    If issue be 'taken upon the charge of flooding the plaintiff’s land, by means of a, dam erected across a stream of water, the proof must be confined to the point— thus in issue; and evidence that the water was raised by obstructing two outlets, or lateral sluices, through a bank, of the stream which was no part of the dam, is not admissible.
    In such cases, the injury is a consequence which must be laid and proved to have been produced by a specific cause; to lay the flooding as a consequence without more, would be too general.
    In an action for flooding the plaintiff’s land, by means of a dam erected across a stream of water, a compensation to the plaintiff for Ms trouble and expense in conducting his suit, and establishing Ms right at law, is not recoverable.
    In error from the Court of Common Pleas of Lancaster county.

      May 11. This was an action on the case, by Christian B. Mylin against Joseph Gooch The declaration contained two counts. In the first, the cause of action was thus stated:—

      “ Joseph Good, late of said county, was summoned to answer Christian B. Mylin, of a plea of trespass on the case, &c. Whereupon the said Christian complains, for that whereas he the said Christian, on the 1st day of August, in the year of our Lord 1846, and from thence hitherto, was and still is, seised in his demesne as of fee, of and in a certain close of about forty acres of land, together with about twenty acres of meadowland, and a certain grist-mill, saw-mill, dam, water-course, tail-race, and other appurtenances thereunto belonging, situate in Conestoga and Martic townships, in 'said county of Lancaster, which said land, meadow, mills, dam, water-course, tail-race, and appurtenances, were, during all the time aforesaid, in the possession of a certain Benjamin Hess, as tenant of the plaintiff; and whereas, the plaintiff and all whose estate he has in the said close, meadow, mills, water-course, and tail-race, and all others, his and their tenants and occupiers of the said premises, hare always had and enjoyed, until the obstructions hereinafter mentioned, the free course and use of a certain ancient stream of water, called the Pequea creek, running and flowing to and along the same, to the said water-course, and thence along and over the said water-course to the said mills, and thence along and over the said tail-race, land, and meadow, to the said stream at its natural channel, and thence down the same in its ancient course; so that at the said mills and water-course, before the obstructions hereinafter mentioned, there was a great fall of water, creating a water-power of great value, to be applied to the driving of water-wheels and propelling of mill-works and machinery; and the plaintiff and all others, his tenants and occupiers of the said premises, held, used, and applied the same to their great profit and advantage, and still ought to have and hold the same free and undisturbed, of all which the defendant had notice. Yet, the defendant, contriving and unjustly intending to injure the plaintiff, afterwards, to wit: on the day and year aforesaid, at the county aforesaid, wrongfully and injuriously raised, erected, and built, and caused to be raised, erected, and built a dam, composed and made-of stone, logs, clay and gravel, of the height of five feet and a half, and of the length of sixty feet, in, over, and across the said stream of water, below the said land and mills of the plaintiff, to the great obstruction and impediment of the running and flowing of the said stream of water; and continued the same so raised, erected, and built, from that time to the day of issuing the original writ in this cause: by reason whereof, the waters of the said Pequea creek during all the time aforesaid were dammed, swelled up, and flooded back upon the said mills and tail-race of the plaintiff, and over his said land and meadow, and caused a back-water, hindering the free course of the said stream from the said mills, water-course, and tail-race, so that the fall of water at the said mills was reduced and the power thereof greatly diminished; and the water-wheels at the said mills during all the time aforesaid were clogged with so much water that they could not be turned round by the course of the water of the said stream, as they used to be: and the said mills could not be worked and run so constantly as theretofore, and could not do so much work as they were used to do, and the profits thereof were greatly lessened : so that the said tenant of the plaintiff was unable to pay the rents reserved to him, and the land of the plaintiff was overflowed and drowned by the said water, to the great damage and prejudice of reversionary interest and estate of the plaintiff.”
    In the second, the cause of action was stated to be an injury from backing the water, and flooding, as set forth in the first count, by raising the dam already erected, or erecting an additional dam, “higher than the same was used or ought to be, in, over, and across the same stream of water.”

    To the cause of action as thus set out in the declaration, the defendant pleaded not guilty; and on these pleadings, issue was joined and the cause tried. On the trial, before Lewis, P. J., a mass of testimony was given, which it is not necessary to notice in this report.
    Of the bills of exception to evidence, the following only is material:—
    The plaintiff, in addition to the evidence given, offered to prove that for upwards of twenty years, previously to August, 1846, there were two outlets or sluices from the pool of the dam through the left bank into Eshleman’s meadow, and thence into the natural channel of the stream below the dam, and over or through which the water constantly flowed; that the said outlets or sluices were never higher than the breast of the dam, and that the defendant raised them so that no water flowed through the same. To the admission of this testimony the defendant objected, because it was not the injury set forth in the declaration. But the court considered the outlets- or sluices as part of the stream, and the erection therein as part of the dam described in the declaration, and admitted the evidence, and sealed a bill of exception.
    The court instructed the jury that the slightest flooding of the land or mill of the plaintiff by the defendant without authority, entitled the plaintiff to. nominal damages. That the jury might in addition give damages sufficient to compensate the plaintiff for the injury actually sustained, and for the trouble and expense of establishing his right: — Bearing in mind that the plaintiff, in claiming damages for the injury to the property, is confined to the injury done to his reversionary interest in the premises, and is not entitled to recover damages for the injury done to the term. Eor the latter injury the tenant alone (Abraham Hess) is entitled to compensation. It is certainly true, however, that any permanent injury to the freehold which puts a stop to the operations of the mill, and thus drives its customers from it, and impairs the market value of the reversion, is one for which compensation may be awarded in the present action.
    To so much of the charge as related to the recovery of damages “for the trouble and expense of establishing the plaintiff’s right,” the defendant excepted.
    The jury found a verdict for the plaintiff, and assessed the damages at $100, with six cents costs.
    The defendant thereupon sued out this writ of error, and assigned the admission of the evidence embraced in his bill of exception, and' his exception to the charge of the court, for error here.

      Stevens, for plaintiff in error,
    cited Ang. on Water-Courses, 156; 10 Wend. 177; Jacoby v. Laussatt, 6 S. & R. 300; 1 Cow. 240; 14 Johns. R. 128; 7 Cow. 294; Hager v. McManus, 4 Watts, 118; 21 Wend. 144; Rogers v. Fales, 5 Barr, 154, 159.

      Frazer and Franklin, contó.
    As to variance of proof from allegation in declaration: Outlets part of stream — island formed by them. Need not aver outlets in declaration: Durgin v. Leighton, 10 Mass. Rep. 56.
    As to expenses: Wilt v. Tickers, 8 Watts, 227.
    General principle in actions of tort: Nowell v. Roake, 7 Barn. & Cress. 404; Taylor v. Morgan, 3 Watts, 333; Romig v. Romig, 2 Rawle, 241; Hager v. McManus, 4 Watts, 118.

      May 19.
   Gibson, C. J.

The cause of action set out in the first count of the declaration, is an injury from flooding by erecting a dam of a particular height and length across the stream of a creek; in the second, it is an injury from flooding by an additional dam erected, “higher than the same was used or ought to be, on and across the same stream of water.” In cases of the sort, the injury is a consequence which must be shown to have been produced by a specific cause; for it is apparent, from the precedents, that it would be too general to lay the flooding as a consequence, without more; and if the plaintiff is bound to state the cause of it, he is bound to prove it as stated. The rule is, that the allegata and the probata must agree; and as the proof must be confined to the point in issue, it excludes all evidence of collateral facts which afford no reasonable inference as to the principal matter in dispute: 1 Greenl. Ev. s. 51, 52. 448. No allegation, it is said in 1 Stark. Ev. 433, which is descriptive of that which is legally essential to the charge or claim, can ever be rejected; because it would mislead the adverse party, and the court would not be sure that the facts had been found which were essential to support its judgment; and as the proof would be more general than the allegations, it would no longer agree with the cause of action laid. The issue, taken in this instance, was on a charge of flooding by means of a dam erected across the stream, of which alone the defendant had notice by the pleadings. The proof admitted was, that the water had been raised by obstructing two lateral sluices or gullies through the left bank, which was no part of the dam. These sluices had led the water out of the edge of the stream, round the dam, from a pool considerably above it, and returned it into the natural channel, below the defendant’s mill. There was, therefore, a decisive variance between the allegata and the probata, for which the evidence ought to have been rejected. The closing of the sluices probably produced the mischief; for there was evidence that the additional dam was lower than the other,, and would not have raised the water so high in the same circumstances.

A graver question arises on the instruction that the jury were at liberty to compensate not only the injury laid, but the trouble and expense of establishing its existence. I lament that the general principle was recognised by this court, in Wilt v. Vickers, 8 Watts, 235, and Rogers v. Fales, 5 Barr, 159; for, to overrule decisions so recent and direct, must cast a doubt on the stability of judicial decision. Yet it is better to eradicate an erroneous principle while it has scarce taken root, than to let it grow up into a fixed rule of property. From a series of cases, the law has become a system of principles; and to keep them in harmony with each other, will conduce more to safety and certainty than would an implicit obedience, in every case, to precedent. The injury, in each of the cases alluded to, was inflicted under circumstances of aggravation; and it is evident, from the opinion of the court, delivered by our late brother Kennedy, in the first of them, that the point was not thoroughly and deliberately considered. It was an action for having forcibly set the plaintiff’s young son on a vicious horse, which threw him to the ground and broke his leg; and that judge, premising that loss of service was the true foundation of the action, said that if such a father should make out a case, it would seem to follow as a corollary, that he should recover whatever amount of damages might be necessary to compensate him, and it might be that it could not be done without taking into the estimate the trouble and expense incurred in the prosecution of the suit; for that, if it were not, it might happen that the value of the service lost would not be equal to the trouble and expense; in which case the father, instead of being a gainer by his remedy, would be a loser by it. It would have been safer to put the case on the same ground as an action for the seduction of a daughter, in which damages beyond the value of the service are constantly given, to punish the offender. The ground actually taken is untenable in a variety of aspects. The principle founded on it would be without bound or limit, both in the generality of its application and the extent of its operation. It would hold in actions ex contractu as well as in actions ex delicto; and a defendant sued on a plain bond, might find himself soused in damages, not only for the detention of the debt, but for the amount of a surgeon’s bill for curing the defendant’s leg, broken in a fall from his horse, while travelling to court in order to prosecute the suit. Where would it stop ? If every consequence, dehors the immediate injury, were to be taken into consideration, every loss, however remote, which would not have been incurred if there had been no suit, would have to be paid for. ' Special damages may be recovered in an action for a tort, when they are laid in the declaration; but the resulting injury must be a legal and a natural consequence of the tort, and not remote; such as the loss of a lieutenancy by imprisonment was held to be, in Boyce v. Bayliff, 1 Camp. 58. But it is a rule of pleading, in addition, that special damages must be so laid as to make it appear that no part of them had accrued after the inception of the suit; consistently with which, the damages claimed in this case could not be laid at all, for they accrued, day by day, in the progress of it. The second case I have referred to was ruled, I presume, on the authority of the first; for there is no other precedent for it in the English, and scarce one in the American, books from the Norman conquest to this day; and that the fact is so, is conclusive evidence that there is no such principle in the law. No lawsuit is prosecuted without trouble and expense; and were compensation for these recoverable, as an original ground of action by anticipation, the claim would be a standing dish, and we should have a direct precedent for it in every trial. Besides, it is a fallacy to suppose that every successful plaintiff has a right to be made whole by a verdict which is, at best, only an approximation to perfect justice. There is many a right which is not worth the trouble and expense of enforcing it; and the right supposed by our late brother, is exactly of that stamp. To pay for expenses and trouble, in order to make it valuable, would open a field of inquiry often more extensive than the issue raised by the pleadings, and make it the principal battleground. Such a principle of compensation is contrary to the genius of the common law, which does not give even costs, and the statute of Gloucester does not embrace it. Indeed, were such compensation allowed, it could only be as costs; for it would be infinitely more congruous and convenient .to have it taxed by the prothonotary, on proof of particulars, than to. have it assessed by the jury, without any proof at all. The only demand of it, to be found in the books previous to our own decisions, took that shape in Sebring v. Ward, 4 Wash. 546; in which a charge for travel and attendance was struck out of the bill of costs, avowedly because it would not have been allowed by this court. In the case before us, there was no evidence of either; and how was the jury to estimate the loss from it ? To guess at it as a lumping charge, would often do more injustice than to give nothing. On both points, then, it seems the decision below Avas wrong.

Judgment reversed, and venire de novo awarded.


author: Coulter, J.

text:
    Wright’s Appeal.
    The creditors of a lunatic, who obtain judgments after inquisition found, do not acquire thereby any right of priority over other creditors.
    The debts of a lunatic are to be paid according to their character or nature, at the time of the inquisition finding lunacy. Judgments and mortgages obtained during sanity, or before lunacy found, are liens, and entitled to a preference, but all other debts attach equally, and have equal claims for payment.
    The directions of the act of the 13th of June, 1836, entitled, “ An act relating to lunatics and habitual drunkards,” must be strictly pursued by creditors in the collection of their debts from a lunatic.
    Under the 20th and 21st sections of the act of the 13th of June, 1836, the trust declared is for the payment of the first debts of the lunatic, which mean the debts due at the time of inquisition found, and as they then existed: because, the interests of the creditors then attach to the funds or property of the lunatic, in the hands of his committee.

      May 12. This was an appeal by John L. Wright, from the decree of the Court of Common Pleas of Lancaster county, in the matter of the distribution of the balance of the fund, raised by the sale of the real estate of John Evans, a lunatic, under an order of court upon the application of his committee, amongst the creditors of the said lunatic. It appeared by the report of the creditors, that the claims against the lunatic were very numerous, and some of them of a very doubtful character. It was therefore agreed by and between the parties interested, that the auditor should merely report to the court such claims as were, in his opinion, liens on the real estate of the said lunatic, sold by his committee. The auditor,-thereupon, reported two judgments obtained against John Evans, the lunatic, and regularly entered on record in the Court of Common 'Pleas, before his lunacy was found by inquisition. It appeared that the commission, in the nature of a writ de lunático inquirendo, was issued on the 28th of March, 1846; and that the inquisition, finding John Evans a lunatic, Ayas confirmed by the court, on the 21st day of April, 1846. After the confirmation of the said inquisition by the court, it appeared, from the report of the auditor, two judgments, one in favour of the Columbia Bank and Bridge Company, and the other in favour of William Steel, were obtained by suit against John Evans, the lunatic, with notice to his committee.
    To this report the following exception was filed:—
    “ The auditor erred in reporting that the judgments obtained after John Evans was declared a lunatic, should be paid in full; they should have been placed on the same footing with the other debts presented to the auditor, and taken their dividend.”
    After argument,' the court (Lewis, P. J.) delivered the following opinion:—
    “ This ease comes up on exceptions to the auditor’s report. The real estate of the lunatic was sold under the direction of the court, on the application of the committee, and the sale was confirmed on the 17th August, 1847. No opposition is made to the payment of the judgments obtained before the lunacy was found by inquisition. But two judgments were obtained after the appointment of the committee, and before the confirmation of the sale of the real estate; and one judgment was obtained after the confirmation of the sale. In'favour of this last judgment, it is urged with great earnestness, on the authority of Lloyd v. Hart, 2 Barr, 473, that the surplus, after payment of debts, continues real estate, notwithstanding the sale, and is therefore bound by the judgment. We question whether the case of Lloyd v. Hart will be carried beyond the point actually decided therein; but be that as it may, the view which we take of the case before us renders it unnecessary to decide whether the surplus continues real estate for the purposes of becoming subject to judgments, levies, &c. A more serious question arises: — can a creditor, after lunacy found, and committee appointed, obtain any lien against the real estate of the lunatic ? It is the opinion of the court that from the time of the appointment of a committee, the estate of the lunatic, real and personal, is in custody of the law, and is subject to the same rules which would govern the chancellor in England, in similar cases,' with reference to the payment of debts. The legal remedy is in effect taken away, because it becomes subject to the injunction of the chancellor ; and the creditors are thus forced to go into equity to obtain payment. Equity delights in equality, and would therefore refuse payment except upon the terms of a pro rata distribution, where the fund was not sufficient for all: the creditor may have occasion to sue for the purpose of liquidating the amount; but such suit is under the direction of the chancellor in England, and is not conclusive upon his conscience. Here there is a positive right to sue secured by the statute. But this has been considered by an eminent judge as giving no right to proceed by execution to the sale of the property. £ Proceedings may be had’ after the £ commencement of the action,’ as in cases of service upon £ a person of sound mind.’ This provision of the 55th section of the act of 13th June, 1836, is understood as extending only to proceedings fending the action, and not to proceedings ufon the judgment after. the action is ended. The opinion of King, P. J., in the matter of Eckstein, 2 Penn. Law Journal, 137, is so full to the point, and so satisfactory to this court, that we refer to it for a further explanation of our views.
    “Let the judgments of the Columbia Bank and Bridge Company, and that in favour of William Steel, be stricken out of the auditor’s report, as they are not liens on the real estate sold, and are only entitled to payment fro rata with other creditors having no liens. With this correction the auditor’s report is confirmed.”.
    Error assigned: The court erred in overruling the report of the auditor.

      Stevens and Fraser, for appellant,
    cited act of 13th of June, 1836, entitled an Act relating to Lunatics and Habitual Drunkards; Lloyd v. Hart, 2 Barr, 473; 2 Law Lib. 250; Shelford on Lunacy, 395.

      FUmaTcer, contó,
    cited act of 13th of June, Pur. Dig. 6th ed. p. 713, sections 21, 22, 23, 24, 34, and 45; Eckstein’s Estate, 2 Penn. Law Journal, 138, 142, 143, and 144.

      May 22.
   Coulter, J.

This is a case of the first impression in this court; and its interest is greatly enhanced by the hopeless condition of the unfortunate class of human beings whose interests it regards. Everywhere in the civilized world the deprivation of reason has been and is considered a valid claim, not merely upon the sympathy, but also upon the protection of organized society. In some of the less polished nations, lunatics are regarded as under the especial protection of heaven, which has seen fit to deprive them of the powers of protecting themselves, and they are regarded for that reason with veneration. The common law lawyers, for a time, resisted the appeal for protection as to their estates, upon the ground that no man ought to be permitted to stultify himself. But that notion has been long exploded in England, and was never adopted here. By the 17th Edw. 2, cap. 10, it is enacted, that the king shall provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them for their use when they come to their right minds. This power has been always exercised by the king through the agency of the Court of Chancery, to whom the king issues his commission for that purpose. This statute was never extended to this state. But by the 6th sec. of the 5th art. of the constitution, it is declared, that the Supreme Court and Courts of Common Pleas shall have the power of a court of chancery relative to the care of the persons and estates of those who are non compotes mentis; and the legislature of the state have, by the act of the 13th. June, 1836, prescribed the mode by which that power shall be exercised. .

This introduces the question which presents itself to the court jn the present case; that is, can any creditor of a person whd becomes lunatic, and is so found by • inquisition, obtain a lien upon the estate, and a preference over other creditors, by a judgment obtained after inquisition found ?

The court below was of opinion, that after the committee of the lunatic was appointed, the estate was in the custody of the law, and that although the creditor might obtain a judgment, the remedy by common law process to execute it did not exist; and that the creditor must go into equity, where, the judgment would not be enforced, except upon terms of equality, or a pro rata distribution among all the creditors. The court refers to the opinion of Judge King, the learned and able president of the Court of Common Pleas in Philadelphia county, in the matter of Eckstein’s, 2 Pa. Law J. 137, which is adopted as illustrating their opinion. That learned judge takes a comprehensive view of the subject, under the chancery decisions in England and the state of New York, and ' very satisfactorily comes to the conclusion that from these analogies the creditor obtains no preference, and that the court, the proceedings being on the equity side, would enjoin the plaintiff from proceeding at law.

In the case on hand, the question arose on the report of auditors to whom the account of the committee was referred, and exceptions filed to that report, which gave a preference to judgments obtained after inquisition found. But if the principle, that judgments so obtained acquire no preference, is established, there will arise no difficulty in carrying it out in those cases where equity powers, according to chancery forms, are not granted to the Common Pleas by statute. The court may .always set aside an execution on such judgment, and compel the plaintiff to seek his remedy in the mode which I think is distinctly pointed ont in our own statute of the 13th June, 1836. Although I am inclined to rest the decision of this case on the clauses of our statute, this court by no means reject the light which is shed upon us by the chancery decisions of England, and those of the state of New York. On the contrary, the ray which is thus thrown over the dark fate of this unfortunate class, we are bound to follow, or else be untrue to nature, to reason, and humanity. But I prefer to find, as I think I do find, in the Pennsylvania statute, all that is necessary to give the same extent of protection.

We must bear in mind, that the legislature had in view the constitutional grant of powers to the Courts of Common Pleas on this subject, that it was intended not to cripple the court in its exercise, but on the contrary, for the purpose of enabling it to accomplish the objects of the power: and that being beneficent and remedial, it ought to be liberally construed.

The law directs the court, upon the return of the inquisition and its approval, to commit the custody and care of the person and estate of the lunatic to a committee, who shall give security for the faithful performance of the trust, and duly to account for all property and funds that may come into their hands.

The committee is bound, within forty days after appointment, to file in court a just and true inventory of all the personal, with a description of the real estate. The committee shall manage the real estate of lunatic as well as the personal, and apply so much of the income as may be necessary to the payment of his just debts, and the maintenance of himself and family. And if the income shall not be sufficient for that purpose, then to apply so much of the principal of the personal estate to that purpose, as may be necessary, under the direction of the court; and if that shall be insufficient,' then to sell, under the direction of the court, the real estate, or so much as may be necessary. The order of sale must be preceded by a statement from the committee, of all the debts due by the lunatic, so far as the same can be ascertained. And an order for selling not only the real estate in the county, but situate any where in the state, is provided. After sale by the committee and approval by the court, the committee are enjoined to make a deed to the purchaser, which shall be effectual to convey all right, title, or interest of the lunatic. The sale is thus invested with the peculiar characteristics of a judicial sale, and vests the property in the purchaser, discharged from the lien of judgments obtained before inquisition found, and whilst the lunatic was yet sane. Here are powers vested, ample and adequate to do justice to all creditors; and the committee are required to settle an account whenever required by the court, which they would of course require by citation, whenever any creditor requested it. If the creditors could, upon the finding of any person a lunatic by inquisition, be tempted into a scramble or race for the first judgment, under the idea of obtaining preferences, and could thus obtain preference, the whole system devised by the legislature with so much care, would be frustrated, and the constitutional provision be rendered abortive: for the lunatic’s estate 'would be liable to the creditors according to the course of the common law and its process. The act of 21st of March, 1806, provides, that where a remedy is provided, a duty enjoined, or anything directed to be done by-act of assembly, the directions of the act shall be strictly pursued. Now if there be any living virtue and energy in this statute, the act concerning lunatics’ estates must be strictly pursued: because there is a remedy provided, a duty enjoined, and things directed to be done, for the purpose of giving protection to the lunatic, and affording an efficient remedy to creditors. It is true, that the statute authorizes a suit to be brought against the lunatic, which the committee is directed to defend. This may be done for the purpose of establishing the amount of debt; but there he must stop. The same thing may be done in England; but that does not remove or annul the power of the chancery courts to enjoin further proceedings at law, and to distribute the estate, according to equity. Nor will it lift away in this case the other provisions of the statute for the protection of the lunatic, and providing the mode of sale of his estate. I must be understood to speak in relation to sales attempted to be made on judgments obtained after inquisition of lunacy found; because the exigencies of- the case go no further, and it would be improper to give any opinion upon a state of facts not before the court.

It remains to be considered whether the. creditor who obtains a judgment after inquisition found, receives thereby any right to priority of payment over other creditors, or whether all debts must not be paid according to their character at the time of the finding of the inquisition, giving to judgments or mortgages obtained during sanity, a preference according to their dates. The act directs that when any person shall be in confinement on process, he shall be discharged, if upon the examination directed by the act, it is found that he is of unsound mind; and the court are required to appoint two suitable persons as assignees, who shall take possession of tbe estate of tbe person so determined to be of unsound mind, and distribute it in the same manner as tbe law directs with regard to assignees appointed under tbe insolvent law. In sucb case no preference is acquired by judgment after insolvency. If then tbe distribution is according to this rulej at tbe time of tbe appointment of assignees, why should it not be tbe same at tbe time of the appointment of tbe. committee ? Tbe lunacy is determined in a different mode, but the reason is precisely tbe same in both cases. Tbe statute enacts, that after tbe appointment of tbe committee, and before tbe court will order a sale of tbe real estate or any part of it, tbe committee, who have already given general security, shall give additional security that they will distribute tbe money faithfully according to tbe trust. That trust is declared in tbe 20th and 21st sections, to be tbe payment of the just debts of tbe lunatic. Tbe question then arises — what debts ? Why obviously tbe debts then due and owing, as they then existed; for tbe interest of the creditors, then attached to tbe funds or property in tbe bands of tbe committee. Judgments previously obtained before lunacy have a lien, but all other debts attach equally, and have equal claims to payment. Under sucb circumstances, and when tbe fund or property is distributed by law, 'equality of right is 'regarded in equity as tbe first element of justice. Tbe same equality which is directed in tbe case of insolvency, when the lunacy is ascertained under tbe direction of tbe court after'tbe individual is in confinement. Moreover, it was obviously tbe intent of the statute that debts should be so paid, because its terms import that construction, and because it is just, and in analogy to legal proceedings after death, where no one can obtain a preference, although suit may be brought and judgment obtained. Tbe unfortunate persons contemplated, undergo a living death — with possibly a glimmering of reason, sufficient to perceive and feel tbe sacrifice of their estates by common law process. We ought always to consider, when adjudicating on this subject, that Providence may possibly restore tbe lunatic to reason, and to bi's estate — at all events that it ought to be preserved, and husbanded for bis maintenance; and that it is our duty to give full and liberal effect to the system devised by tbe legislature for that purpose.

It is tbe judgment of this court, that tbe decree of tbe court below be affirmed.


text:
    Kinzer v. Mitchell.
    The acts and declarations of parties in the presence of each other, or the acts and declarations of the party to be affected thereby, in relation to the subject-matter, and which constitute parts of the res gesta, and enter into the character of the whole transaction, are evidence, as conducing or tending to prove the allegations made by the party in whose favour they operate; and their weight, either separately or collectively, is for the jury.
    Evidence of the acts and declarations of parties in the presence of each other, or of the acts and declarations of the party to be affected thereby, and which constitute parts of the res gesta, and enter into the character of the whole transaction, is not to be taken in detached parts, and each one rejected, because it does not make out the case; but it is all to be taken together, and each part admitted as a link in the chain of connected facts and circumstances by which fraud is most frequently effectually established.
    Where it appeared from certain proceedings in the Orphans’ Court, that the settlement of the second account of an administrator exhibited a balance of §157.84, in favour of the accountant; that the day after the said account was confirmed and allowed by the court, a petition was presented by the administrator for an order to sell the real estate of the decedent, consisting of a tract of land containing 156 acres, for the payment of debts, which order was granted by the court; that the only debt against the said estate, was the said balance of §157.84, in favour of the administrator as exhibited on the fade of his second account; that the administrator returned a sale of one-third of the tract to the husband of a daughter of the decedent, and of the other two-thirds to the guardian of two minor children of the said decedent, and that the said sale was confirmed by the cour.t: Held, that the record itself afforded the strongest evidence that the proceedings were a partition among the heirs, and not a sale; and this, independently of parol evidence, which showed that the widow and heirs, with the aid of a surveyor, made an amicable partition of the land by metes and bounds, agreed upon the part which should go to the married daughter, and which to the other two heirs, and agreed also upon the sum at which the said parts should be returned as sold by the administrator, which was strong evidence that the proceedings in the Orphans’ Court were designed by the widow and heirs as a convenient mode of settling the estate, and were a partition among the heirs, and not a sale for the payment of debts.
    Where the administrator in such case, returned that he had sold one-third of his intestate’s real estate to the husband of a married daughter of the intestate, and tire other two-thirds to the guardian of the other two minor children of the intestate, which sales were confirmed by the court; and the said husband and wife, in consideration of a deed delivered to them, for their said part of the said real estate, executed and delivered to the administrator a release in full satisfaction of their share of the said estate, and of all claims or demands against the same, and no money had been paid by the husband to the administrator, it was held, that that part of the real estate returned as sold to the husband belonged to his wife, the daughter, and one of the heirs of the intestate, and that any attempt by the husband to set up title to it in himself, was a fraud upon the wife.
    The administrator, in such cases, is a competent witness to prove facts connected with the alleged sale, and upon the question of the payment of money by the husband.

      The acts and declarations of the husband after judgment obtained and entered against him, -which were not communicated to the plaintiff in the judgment, nor to the purclfttser at sheriff’s sale, will not affect the rights of .either: unless it be made to appear that there was a concerted plan between the husband and the plaintiff on the judgment, in which the purchaser was a participant, to defeat the wife, and deprive her of her estate or interest in the land.
    In error from the District Court of Lancaster county.

      May 12. Ejectment by George H. Kinzer against Martha Mitchell, for fifty-two acres and eighty perches of land, situated in Colerain township, Lancaster county. The parties claimed under William Kerr,, who died intestate, and seised of the land in controversy, leaving a widow and three children, Martha, the wife of James Mitchell, and two minors. This cause was up in 1847, and is reported in 5 Barr, 216. The facts of the case are sufficiently stated in that report, and in the charge of Judge Hats to the jury at the late trial, which is here given entire.

      Charge. — “ This is the second trial between these parties. The cause was first tried about a year ago. The District Court, on that occasion, overruled the testimony offered by the defendant, considering it incompetent to impeach, by such testimony, the decrees and judgments which had been given in evidence by the plaintiff, and on which his title was founded, and considering those decrees and judgments as conclusive. That trial was, of course, a very short one. But the case was removed to the Supreme Court, and-passed under their review; by which court it has been decided that the District Court ought to have received the testimony offered; and that if the defendant had proved what was offered, the verdict ought to have been in her favour.
    “ The record has been remitted for another trial; and now, at the close of this trial, I may say that I have yielded willing obedience to the authority of the court of the last resort, anxious at all times to be guided by their superior wisdom. • .
    “This is an action of ejectment by George H. Kinzer, purchaser at sheriff’s sale of the land in dispute, against Martha Mitchell, who claims it as one of the children of William Kerr, deceased. The land lies in Colerain township, and consists of fifty-two acres and eighty perches. It was sold by the sheriff, March 13, 1845, by virtue of an execution issued on a judgment of Henry Kinzer against James Mitchell, entered in the District Court on the 25th of November, 1841, for $1,200. It was sold as the estate of James Mitchell, and struck down to George H. Kinzer, for the sum of $800; to whom the sheriff made and duly acknowledged a deed for the same on the 18th of June, 1845.

      “ His title being thus founded upon the sheriff’s deed and the estate of James Mitchell, the plaintiff has exhibited ha» support of it the deed of ‘Eneas McCreedy, administrator of William Kerr, to James Mitchell, dated 17th of June, 1822, for this land, together with the proceedings of the Orphans’ Court ordering the sale of the same, and of the administrator in pursuance thereof, resulting in this deed; also the letters of administration granted to the said administrator, Eneas McCreedy, on the 14th of December, 1815; his administration bond, three administration accounts, the judgment of Henry Kinzer, and proceedings in execution, with the sale and sheriff’s deed.

      “ The defendant’s (Martha Mitchell) title is founded upon the estate of her father, who died intestate, the owner of this and other land, leaving three children, including her. . James Mitchell was her husband. She contended, and gave evidence to show, that the proceedings in the Orphans’ Court and the administrator’s deed to James Mitchell, and the deed to the guardian of the two younger children, were in fact a mode agreed upon between the administrator and the children for the equal division of the real estate of their father among them; that there ■ was, in point of fact, no sale by public vendue or outcry, of the premises, but that James Mitchell, her husband, in her right, as eldest child, chose the one-third, i. e. the fifty-two acres and eighty perches now in controversy, and the administrator returned it sold to him, and also returned the oother two-thirds as sold to Heidelbaugh, the guardian of the two younger children, without being paid a cent of purchase-money by any of them; that James Mitchell paid nothing, and that the administrator made the return or report of sale and the' deed, in consummation of the arrangement for dividing this property, and for that purpose alone; and that in truth and equity, her rights were not- divested or changed by this proceeding, except by the assignment to her of this part in severalty, instead of holding, as she did before, an undivided third part of the whole estate, in common with the other two children. She further contended that James Mitchell’s interest in this land was but a life estate, that the administrator’s deed did not vest in him the absolute fee, but that he became merely the trustee for her under the same. Of this she urged and gave evidence, that Henry Kinzer, the plaintiff in the judgment and the real plaintiff, as she insisted, in this cause, and George H. Kinzer, the purchaser at sheriff’s sale, had notice; and she has endeavoured to show that the judgment of Henry Kinzer was obtained by the confession of James Mitchell, as a part of the scheme concocted by the latter, in conjunction with the former, to cut her out and deprive her of her rights in the estate; that James Mitchell did not really borrow $1,200 from Henry Kinzer; that the loan was a sham, and the whole transaction a deception and fraud, intended for that purpose. Under the recent decision of the Supreme Court, the defendant has been allowed to go into evidence, explaining the real design of the proceedings in the Orphans’ Court, and to impeach the judgment on which the land in question was sold by the sheriff. The plaintiff relies upon these proceedings and the judgment as establishing his title in a manner not to be shaken, insisting that they are bond fide and fair in all respects, as well as conclusive upon the defendant in point of larv.”
    On the trial in the court below, bills of exception to the admission of the following evidence, was taken by the plaintiff:—
    Defendant offered in evidence the deposition of Eneas S. McCreedy, who was the administrator of William Kerr, deceased; which was objected to by the plaintiff. But the court admitted the deposition, and sealed plaintiff’s first bill of exception.

    The deponent testified, that in 1820', he obtained an order of the Orphans’ Court of Lancaster county, to sell the real estate of William Kerr, deceased, consisting in the whole, of one hundred and fifty-six acres of land, for the payment of debts; that he offered the entire tract at public sale two or three times, but could not effect a sale thereof; and that after it could not be sold, it was divided in parts and averaged amongst the heirs, of whom Martha Mitchell, the defendant, and wife of James Mitchell, was one; that James Mitchell never paid him any money for the part he got in right of his wife, nor did John Heidelbaugh as the guardian of the two other heirs for the parts taken for them; and that Mitchell and wife gave him a release, in full satisfaction of all claims and demands against the estate of William Kerr, deceased.
    . The defendant then gave in evidence, under objection by the plaintiff, the release of James Mitchell, and Martha Mitchell, his wife, to Eneas S. McCreedy, as administrator of William Kerr, deceased. This was plaintiff’s, second bill of exception.

    He then called John Heidelbaugh, jun., and offered to prove by him, that his father, John Heidelbaugh, was guardian of the other two heirs of William Kerr, deceased, and that his father, James Mitchell, and the widow, agreed that the land should be divided into three parts and should be taken by the heirs; that his father being unable to attend at the premises, the witness, his son, 'was deputed to go over to the land; that he attended accordingly, and the division was made pursuant to the agreement; that James Mitchell insisted upon having the first choice as being in right of his wife, the oldest heir; that the land was appraised at $8; and that James Mitchell in pursuance of this arrangement chose the one-third of the premises in question; which was returned as sold to him: to be followed up by the proof, that the plaintiff had notice of the defendant’s title, before the sheriff’s sale. To the admission of this evidence, the plaintiff objected; but the court admitted it, and sealed plaintiff’s third bill.

    He then offered in evidence the appraisement of the property under order of the Orphans’ Court, the order to divide amongst the heirs, September 16, 1818, and the petition for the appraisement, signed by James Mitchell, in the name of his wife, and John Heidelbaugh, on the 12th of September, 1818. This evidence was objected to by the plaintiff, because the proceedings embraced in the offer were precedent to the petition for sale for payment of'debts, and because they were irrelevant. The defendant stated that the object of the offer was to show that the subsequent order of sale for the payment of debts was, in fact, only to divide. The court, thereupon, admitted the evidence, and sealed plaintiff’s fourth bill.

    The proceedings showed, that the real estate of William Kerr, deceased, was parted, divided, and appraised as follows:—
    {No. 1. 97 acres, 67 perches, at $25 per acre. “ 2. 60 “ 55 perches, at $9.50 per acre. October 12th, 1818, read and confirmed.
    The defendant then called Daniel Ehler, and after showing him the sheriff’s deed to George H. Kinzer, the plaintiff, for the land in controversy, offered to ask the witness, — who it was that paid the purchase-money, for the purpose of showing that the purchaser was living at home with his father, and that his father was in fact the purchaser. To the admission of the evidence thus offered, the plaintiff objected, on the ground that, as the deed had been given in evidence, the receipt therein showed who paid the sheriff. The court admitted the evidence, and sealed plaintiff’s fifth bill.

    The witness testified, that there was no purchase-money paid; that the office costs were paid, and Henry Kinzer, the father of George H. Kinzer, who was the oldest judgment creditor, receipted for the net proceeds; that George paid no money that he knew of; and that if he did not live with his father, he knew not where he lived at the time.
    The defendant then, after giving in evidence a hill to perpetuate testimony, in which Martha Mitchell was plaintiff and Henry Kinzer defendant, entered on the 25th of March, 1844, to April term, 1844, offered the depositions taken thereunder, and filed September 9th, 1844, to show notice to Henry Kinzer of Martha Mitchell’s claim of title to the land, and for no other purpose. The court admitted the depositions, under objection by the plaintiff; which was his sixth hill.

    The reasons for setting aside the sheriff’s sale to George H. Kinzer, were then offered in evidence by the defendant, to show the grounds upon which the motion to set aside the said sale was based: the said motion having been given in evidence by the plaintiff, without reading the reasons. The courtadmitted the evidence, after the defendant had proved the service of a copy of the reasons upon George H. Kinzer, under objection by the plaintiff, which was his seventh hill.

    Defendant then called George Thompson, and offered to prove by him, “that James Mitchell abused his wife and family before his death, and drove his wife from her home; that they, after this, lived separate, up to the time of his death; that after his death, she returned to the property now in dispute, lived upon it, worked it, and claimed and used it as her own: of which facts Henry Kinzer, the plaintiff in the judgment, had notice before the sheriff’s sale.” The court admitted the evidence (which was offered and objected to, in detached parts) under objections by the plaintiff, and sealed his eighth, ninth, tenth, eleventh, and twelfth hills of exception.

    The facts contained in the offer were then proved by the witness.
    Defendant then called Ross A. Campbell as a witness, and offered to prove by him, that he had a conversation with Henry Kinzer in relation to his judgment against James Mitchell, and what that conversation was. The court admitted the evidence, under objection by the plaintiff; and this was plaintiff’s thirteenth hill.

    It appeared from the testimony of this witness, that Henry Kinzer told him that he held a judgment for $1,200 against James Mitchell, for money loaned; that he had borrowed the money from a neighbour to give to him; that to a remark of witness, that he did not know why Mitchell borrowed the money, he not being a business man, nor in debt, Kinzer replied, that he did not know what James Mitchell did with his money; that there was a dispute between Mitchell and a part of his family; that he seemed willing to do anything to prevent his wife and elder children from getting or having any part of the property; and that Mitchell had not paid any interest, and that he owed him for two years.
    Defendant then offered to ash witness, whether after November, 1841, to the time of his death, he ever knew Mitchell to lay out any large sum of money, or make any purchase ? The plaintiff objected, on the ground that neither the acts nor declarations of James Mitchell could affect him without notice. Objection overruled, and plaintiff’s fourteenth bill sealed.
    In answer to the question, the witness stated that he never knew Mitchell lay out any large sum of money, or build, or purchase.
    The plaintiff’s fifteenth bill of exception was to the admission in evidence of a conversation between a witness and Henry Kinzer, in relation to the place or land in dispute; and as to where he got money loaned to Mitchell. Kinzer, it appeared, told the witness that he had got Mitchell’s place; that he had a judgment against it for $1,200, for that sum loaned to Mitchell"; that he got the money so loaned from the bank; and that Diller Baker was his endorser; and that some of his neighbours said the place was worth $1,400.
    The plaintiff’s sixteenth bill of exception was to the admission of evidence of the value of the land in the fall of 1841. The grounds of objection were, that it was opinion merely, and irrelevant. To this the defendant replied, that opinion proved the value of land, and that the value was evidence on the'question of fraud. Witness stated it was not worth more than $1,000.
    The plaintiff’s seventeenth bill of exception was to the admission of evidence that Martha Mitchell, after she was beaten by and driven from her house by her husband, James Mitchell, lived apart from him; that after his death, she returned to the place, the land in dispute, claiming it as her own; and that, after she had taken possession, the witness heard her say and declare that she took and held possession of the place as her own.
    The plaintiff’s eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-first, and thirty-second bills of exception, were to the admission of the following evidence, given by different witnesses: — That immediately before James Mitchell gave the judgment for $1,200 to Henry Kinzer, in the fall of 1841, he (Mitchell) consulted with several of the witnesses, as to the mode or manner by which he could cut his wife and eldest son, William, out of the property now in controversy; that at the request of Mitchell, one of the witnesses took him over to Henry Kinzer’s, in the fall of 1841* for the purpose, as Mitchell said, of getting his property fixed so that his -mfe and eldest son, William, should never get any part of it; and that after he (Mitchell) came home, he told witnesses he had got it fixed so as to cut his wife and William out, and that the property would go to his youngest children; that Mitchell, in a conversation with one of the witnesses, said he had' given a judgment, but did not state to whom; that Ms wife had sued him, or was going to sue him, for a separate living or maintenance; that he had given the judgment to prevent her from getting 'anything; that he did not need the money he had got, and never intended to use any part of it; that he showed to witness a bunch of paper money, saying that was his own, independently of the other; that he also showed witness two promissory notes; that the property in controversy, in the fall of 1841, was worth $14 or $15 an acre; that in a conversation with another witness whom he consulted as to the plan of cutting his wife and eldest son out of the property, Mitchell said he would try and have it fixed so that they should never be a farthing better for the property in his possession; that some time after this,' witness heard him say he had given a judgment ; that he told witness he had given Henry Kinzer a judgment, and got his property fixed as he wanted it; that witness borrowed • $140 of him, previously to the fall of 1841; that he never pressed for the payment of it, and that witness could have paid it in the fall of 1841, if Mitchell had requested him to do so; that ■in the fall of 1842, Mitchell told another witness that he had assigned his property over to Henry Kinzer, for the purpose of cutting out his wife and eldest boy; that to another witness he said he had given Henry Kinzer a judgment for $1,200, for the purpose of putting a stop to any further trouble with his family, as he was determined his wife and eldest son should never get a cent of his' property; that the reported failure of Henry Kinzer was for the purpose of frightening him; that in a conversation with witness about making his will, he said he wanted his. real estate left to his three youngest children, and his personal property to his eldest daughter Ellen, who had taken care of him; that he would rather Henry Kinzer should get the amount of his judgment than that his wife should get one cent, and that this was a short time before his death;' that the appraisers found a ten dollar bank note in a chest at the time of the appraisement, and sixteen dollars in silver was subsequently found enclosed in a newspaper, in a barrel of-wheat standing in one of the sleeping-rooms of his late dwelling-house.
    The plaintiff’s thirty-third, thirty-fourth, and thirty-fifth bills of exception, were to the admission of evidence of the value of the land in controversy, and of the expressed determination of Mitchell to cut out his wife and eldest son out of any participation in the property, and of his avowed preference in favour of Henry Kinzer getting the whole property, to his wife and eldest son getting one cent out of it; that he had given the judgment to Henry Kinzer for the purpose of depriving them of any portion of it; that he showed witness $35 in money, and said he had obligations against different persons for $200; that he had not given the judgment because he wanted money, and that he owed no man a cent, except what he owed the witness for attending his son, which he offered to pay him.
    The thirty-sixth bill of exception of plaintiff was to the admission of the record of the indictment for assault and battery committed by James Mitchell on his wife, Martha Mitchell, on the oath of the said Martha; which was offered in evidence for the purpose of showing the difficulty in the family, and of fixing the time.
    The plaintiff’s thirty-seventh, thirty-eighth, thirty-ninth, and/ortieth bills of exception, not being deemed material, are not noticed in this report.
    Each party propounded a number of points, upon which they requested the instructions of the court to the jury. These points, with the answers of the court thereto, were as follows:—
    On the part of the plaintiff the first and second points were as follows, viz:—
    1. The title of plaintiff to recover the land claimed, is founded upon a sheriff’s sale, under a judgment obtained by Henry Kinzer against James Mitchell. The application of Martha Mitchell, administratrix of James Mitchell, deceased, to be let into a defence; and the judgment of the court thereon; her appearance to the scire facias to show cause why execution should not issue; and the judgment thereon, are conclusive, as to the validity and fairness of the same; and it is not in her power to impeach it in this action.
    2. The rendition of the judgment against the administratrix on the scire facias above stated, is conclusive evidence that the same is unpaid; and she is estopped from saying that the same has been either paid or discharged; and the jury has no right to make any such inference from the declarations given in evidence.

      To which the court answered, that notwithstanding the application of Martha Mitchell as administratrix of James Mitchell, deceased, as set forth in this proposition; the Supreme Court has decided, that she is not concluded, but may nevertheless impeach the judgment in this action, on the ground of fraud and covin invented to injure her, and show that this judgment was not given to secure the payment of a just debt, but that it was a part of a scheme for defrauding the defendant out of her just rights.
    8. The petition in the Orphans’ Court for the sale of the real estate for the payment of debts, and the decree of the Orphans’ Court; and the subsequent sale operate as a conversion of the real estate; and are conclusive upon all the parties claiming under the intestate; and neither the testimony of John Heidelbaugh or the facts proved, tend to show that the decree of the Orphans’ Court was founded upon misrepresentation or fraud; or that the debt claimed by the administrator of Wm. Kerr, deceased was not, bond fide, due to him; or that any concert to defraud existed between the purchaser and the administrator; and without the proof of these facts, or some of them, the defendant cannot impeach the conclusiveness of the decree of sale.
    The answer of the court to this point was, that if this decree of the Orphans’ Court and the subsequent proceedings founded upon it, were in form only a sale, but in substance and effect a mere division of the intestate’s real estate among his children, and if no money consideration was in fact paid by James Mitchell to the administrator for the deed to him — those proceedings did not operate as a conversion of the real estate, — and that although the decree and proceedings of the administrator were fair and honestly intended, yet it is competent for the defendant to show their real purpose, and that the conduct of James Mitchell in attempting to defeat that purpose, was a fraud upon her.
    4. There is no evidence that James Mitchell became the purchaser at the Orphans’ Court sale, to hold the land in trust for his wife; and even if this fact were otherwise, it could not affect the rights of the judgment creditor; or the purchaser at sheriff’s sale, without express notice.
    In answer to this point, the court said, that it was one of the questions of fact in the case, whether James Mitchell was actually a purchaser or not. This question depends upon the real character of the proceedings referred to. If they were only a method' of dividing the real estate of the intestate among his children, he-was not a purchaser by reason of the deed to him, so as to give him the absolute right, any more than John Iieidelbaugh was a purchaser in his own absolute right of the two parts assigned to his wards; but so far as the right was vested in James Mitchell, it was as trustee for his wife. If this fact be so, notice of it, either express, that is, by proof of actual knowledge of the fact, or constructive notice, that is, by such knowledge as would induce inquiry and lead to the fact, if shown to have been received and enjoyed by the plaintiff in the judgment and the purchaser at sheriff’s sale, is sufficient to affect their rights. Whether such notice has been proved, it is for the jury to determine.
    5. The testimony of Iieidelbaugh and McCreedy cannot alter or affect the decree of the sale made by the Orphans’ Court; and without express notice of the facts thus stated to the judgment creditor and purchaser at sheriff’s sale, such facts cannot affect the rights and interests of either; and there is no evidence of any such notice.
    This, as to the matter of fact and as to the evidence of notice, was referred to the jury.
    6. The acts and declarations of James Mitchell, after judgment rendered in favour of Henry Kinzer, not communicated to him or the purchaser at sheriff’s sale, cannot affect the rights of either, and the jury is bound to disregard them.

      Answer. — Such acts and declarations are evidence, if the jury think there was a concerted plan between James Mitchell and the plaintiff in the judgment, to which the purchaser was privy, and in which he was a participant, to defeat the defendant, Martha Mitchell, and deprive her of her interest in this property; otherwise, they are not.
    On the part of the defendant, the following points were presented :—
    1. If before the order to sell the property in question for the payment of debts, a division of the real estate of William Kerr into three equal parts, was made by the heirs or their guardians, for the purpose of giving to each heir his part of the estate in land; and afterwards, the heirs and the guardian did make such division, and each selected his part; and they, together with the widow, fixed the price at $8 per acre, merely to know what they should pay tho widow; and if there never was a sale by the administrator, nor any money paid him by James Mitchell or the other heirs, then said Mitchell took only a life estate in said property, and held the fee simple in trust for his wife, who became entitled to it at the death of her husband, discharged from his debts.

      This point is answered in the affirmative.
    2. If Mitchell procured his deed, and held the land as stated in the first proposition, then a purchaser at sheriff’s sale, of the property on a judgment against James Mitchell, took no title thereto, and the verdict should be for the defendant.
    And this also.
    8. If the judgment on which the property was sold was given by James Mitchell and accepted by Henry Kinzer, for the purpose of cutting his wife and oldest son out of the property, then Henry Kinzer nor any person purchasing the property for him, under said judgment, could thereby obtain any title to said land — whether Kinzer actually loaned Mitchell the money or not.
    If these facts bo proved — the whole proceeding would be a fraud; and neither Henry Kinzer nor any one purchasing the property for him, could acquire title to the land.
    4. If such judgment was a mere sham, or the money was returned to Kinzer, the purchaser (if he be in fact Henry Kinzer) acquired no title by the sheriff’s deéd, whether he had notice of defendant’s title or not.
    This is according to law.
    5. If after the death of James Mitchell, his wife, who for years before had-been separated from him, entered upon the land, claiming it as her own, and worked it for her sole benefit, and cut down and sold large quantities of wood and timber, and continued thus in possession and occupancy of it up to the time of the sheriff’s sale, such possession, together with the Orphans’ Court record returning the property sold to the heirs, and the way in which the deed is made, and the administrator’s account settled, are notice to all the world of Mrs. Mitchell’s title, and the plaintiff cannot recover.
    If these facts be found by the jury, I am of opinion that they would constitute notice, according to this proposition.

      6. If Kinzer’s judgment was fraudulent, and the sheriff’s deed was paid for by a receipt on said judgment, then Henry Kinzer, the real purchaser, is not a bond fide purchaser for value, and is not entitled to notice of defendant’s title; and if George H. Kinzer did not pay any of the purchase-money, even if his father made him a present of the title, he is not an innocent purchaser, for a valuable consideration; and whether he had notice of Martha Mitchell’s title or not, is wholly immaterial, and if the property was hers in law and equity, the verdict must be for the defendant.
    In case these facts are established by the evidence, the conclusions are sustained in law. Notice in such case would not be requisite — the plaintiff could not recover.
    With respect to the charge of fraud, there is one caution, which is always proper to be observed, namely, that fraud is never to be presumed; it must be proved, either directly by showing the fraudulent acts and purpose of the party, or indirectly by showing such circumstances in the conduct of the party charged, as are inconsistent with honesty and the principles of morality.
    There is another rule of evidence to which the court was requested to advert, — in relation to the admissions of a party — that when declarations are received to charge a party, the whole declaration must be taken into consideration. This rule applies to the admission of evidence, and to the proper weight to be given to the evidence when admitted. As to the first point of view, the court is bound to admit the whole of the declaration, if any part be admitted. As to the second point of view, the. jury weighing the declaration, in connexion with all the evidence in the case, may give to the several parts of it such belief as they are satisfied these are really entitled to, and may deem a part of the declaration to be true, and another part not true, according to the whole evidence.
    To which charge of court, the plaintiff did then and there except, and prayed the court to allow this bill, which was done accordingly.
    The jury having returned a verdict for the defendant, the plaintiff sued out this writ of error.
    Errors assigned: 1st. The court erred in admitting the evidence Contained and set forth in the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-first, thirty-second, thirty-third, thirty-fourth, thirty-fifth, thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth, and fortieth bills of exception.
    2d. The court erred particularly in admitting the evidence contained in the tenth, eleventh, twelfth, and seventeenth bills of exceptions, being the declarations and acts of Martha Mitchell, out of the presence of Henry Kinzer or George H. Kinzer, the plaintiff in this suit.
    3d. The court erred particularly in admitting the testimony contained in the thirteenth and fifteenth bills of exception; being a conversation with Henry Kinzer, the plaintiff in the judgment, without notice to the purchaser and plaintiff in this suit.
    4th. The court erred particularly in admitting the evidence contained in the fourteenth, eighteenth, nineteenth, twentieth, twenty-third, twenty-fourth, twenty-sixth, twenty-eighth, twenty-ninth, thirtieth, thirty-first, thirty-fourth, and thirty-fifth bills of exception, being declarations and conversations of James Mitchell, made behind the back of Kinzer, and of which the purchaser had no notice.
    5th. The court erred in their answer to the first and second points of plaintiff; also in their answer to the third point.
    6th. Also the answer of the court to the fourth point of plaintiff, and also that part relating to notice.
    7th. The answer to the fifth point of plaintiff is also erroneous.
    8th. Also their answer to the sixth point of plaintiff.
    9th. The court erred in their answers to all defendant’s points, and particularly in the mode ’of answering same by adopting the assumed facts set forth in said points.

      Frazer and Ohampneys, for plaintiffs in error, contended — ■
    1st. That the decree of confirmation of sale by the Orphans’ Court of the estate of William Kerr, deceased, sold by the administrator to James Mitchell, is conclusive, unless the same can be impeached by legal evidence of the fraud and collusion of the parties.
    2d. The admission of the parol declarations of James Mitchell the purchaser and others to impeach the validity of the sale, and the title of the plaintiff, violated the well-settled principles of the law of evidence.
    3d. The testimony offered and admitted of declarations made by the administrator of Kerr, to impeach the validity of his own deed, jeopards the security of all titles to real estate; and is opposed to the current of all the judicial decisions upon the subject.
    Upon the first point, they cited Cauliff v. Maepherson, 11S. & R. 428-429; Act 1st April, 1811; 5 Sm. 257; 20th section Act 17th April, 1794; Yohe v. Barnett, 1 Bin. 358; Flory v. Becker, 2 Barr, 470; Robb v. Beaver, 8 W. & S. 126; Galbraith v. Galbraith, 6 Watts, 112; 2 Starkie on Ev., ed. of 1826, 205-6-7; Act 29th March, 1832, P. L. 190.
    On second point: Greenl. on Ev. sect. 98, 99, 100, 276-7-8; Packer v. Gonsalis, 1 S. & R. 526; McDonald v. Campbell, 2 5 & R. 473; U. S. v. Mertz, 2 W. 406; Postens v. Postens, 3 W. 6 S. 127; Colt v. Seldon, 5 W. 525; Irvin v. Buckelow, 12 S. & R. 35; Iddings v. Iddings, 7 S. & R. 115; Stine v. Shirk, 1 W. & S. 195; Heiler v. Imbrey, 6 S. & R. 401.
    Upon the third point, they cited Lichty v. Short, 450; 3 P. R. 450; Reichart v. Castator, 5 Bin. 109; Allison v. Kurtz, 2 W. 187-8; Selin v. Snyder, 7 S. & R. 172; Clyde v. Clyde, 1 X. 92; Goodriglit v. Miller, 1 Y. 305; Hubley v. Wight, 2 Y. 133; Lewis v. Lewis, 2 W. & S. 458.
    Stevens, contra.
    The administrator a competent witness: Kieffer v. Brenneman, 1 Barr, 452. Where land is apportioned among heirs by partition in the Orphans’ Court, and the husband of one of them takes a part in right of his wife, and the deed is made to him, in his name as purchaser, he is a mere trustee for his wife; 1 S. & R. 460; 3 W. & S. 520; 9 W. & S. 181; Fogelsonger v. Somerville, 6 S. & R. 267; 3 W. & S. 223. Bill to perpetuate testimony, notice to Kinzer: Sug. on Yend. 542; 2 Peere Wms. 482. Possession sufficient notice to purchaser at sheriff’s sale: 5 W. & S. 439; Cover v. Black, 493. Only íoná fide purchasers protested: 1 Cow. 641. Evidence of conspiracy: 1 Greenl. Ev. 187, section 3.

      June 12.
   Coulter, J.

This cause was here before, and is reported in 5 Barr, 216; then, the defendant below was plaintiff in error; and it was determined that Martha Mitchell, one of the three children of William Kerr, deceased, might impeach the proceedings in the Orphans’ Court of Lancaster county, by which the plaintiff claimed title to be in James Mitchell, husband of said Martha, and also the judgment confessed by James Mitchell to Henry Kinzer, arid the subsequent sheriff’s sale to George Kinzer, on the ground of fraud; and was entitled to establish by competent evidence, that the proceedings in the Orphans’ Court were not in reality a sale, but a mere mode of partition, adopted by the heirs for convenience; that James Mitchell never paid a farthing of money for the land, but held as the trustee of Ms wife Martha Mitchell, who, with the other heirs, throughout the whole transaction, understood the proceedings as in fact a partition. That no sale was in fact made, nor any purchase-money paid; and that Mitchell, after quarrelling with his wife, set up absolute title in himself, and confessed a judgment to Henry Kinzer, the father of George Kinzer, the plaintiff and purchaser at sheriff’s sale, who never paid any money and had notice of the fraud.

The defendant, on the last trial below, offered evidence to maintain these allegations and positions, which was admitted by the Court, and the plaintiff tendered forty bills of exceptions. It is impossible, in any reasonable compass, to go over and examine these forty bills of exceptions, seriatim; at any rate, it is useless to do so. They all embrace evidence, which, in connexion with the other facts, conduce or tend to prove the allegations made by the defendant. Their weight, either collectively or separately, was a matter for the jury. They do not cover facts which are impertinent or irrelevant — are not hearsay declarations — but are the acts and declarations of the parties in presence of each other; or the acts and declarations of the party to be prejudiced by them, in relation to the subject-matter, and in fact parts of the res gesta, and enter into the character of the whole transaction. If with a microscopic minuteness we shut out from our vision everything but individuated atoms, we will learn little of the world. The minute philosopher,, who picked a pebble or a stone from a mountain, and averred that it was not a mountain, but a stone or pebble, would say true enough. But in its cohesive affinity with other things of a like kind, it nevertheless made a mountain. So, it will not do in morals or social transactions to segregate facts and circumstances, and attempt to judge and pronounce on the whole, by the separated or disjoined part. A just man, and I would say, a wise lawyer, must look at the whole transaction from beginning to end, to ascertain its true character. He must elevate his vision, and amplify his conceptions to the height and breadth of the case, or else he is* not over-anxious that it should be rightly decided. The plaintiff takes small detachments of the defendant’s evidence, and objects to it as it is offered, and the argument in favour of the objection is that this fact is totally insufficient to overturn a paper title, verified by public seals and the records of courts. Yery true. This might be said of every parcel of evidence covered by each of the forty bills of exceptions. This mode of argument was vehem'ently urged. Is it possible, said the learned counsel, that solemn records shall be overturned by a scrap of evidence like this? No, certainly not; but this scrap, taken in connexion with the other thirty-nine, may have been, and actually were, in the estimation of the jury, quite sufficient. Every separated item of testimony, although of itself it did not establish the fraud, did nevertheless look that way. It was relevant and germain to the matter — a link in the chain of events which Providence weaves in the rear of individuals, who by cunning and covin would thwart justice, to prevent their purposes from being successful. Facts or circumstances unconnected with the fraud alleged, and which could operate only by means of raising a prejudice against the individual, ought to be excluded. But fraud, in its nature, eludes the light and walks in ambushes and deceits. It is therefore that a latitude, to the extent of fair connexion with the transactions involved, on the part of the actor or actors who are to be affected, is allowed. Fraud is never presumed; it must be proved. But it is often most effectually proved by a chain of connected facts and circumstances.

These observations may suffice as an answer to the forty bills and corresponding assignment of errors. This court is of opinion, that neither separately nor collectively, is there sufficient in them to disturb the verdict and judgment below. Independent, however, of' the parol evidence, that the proceedings in the Orphans’ Court were designed by the widow and heirs as a convenient mode of settling the estate, they having, by the aid of a surveyor, made an amicable partition, by metes and bounds, and agreed which part should go to Mrs. Mitchell and which to the other two heirs; and agreed upon the sum at which it should be returned as sold, by the administrator, who was an uncle of the parties; the record itself, and the accompanying papers, contain the strongest evidence that the proceedings were a partition among the heirs, and not a sale.

Thus, the administrator had settled his final account, from which it appeared that there was a balance in favour of administrator of §157. This was approved 19th September, 1820, and the next day the administrator presented his petition for the sale of the real estate of William Kerr, deceased, for the payment of his debts, which was granted; and he returned that he had sold one-third of the land to James Mitchell, and the other two-thirds to Heidelbaugh, the guardian of the two minor children, and the sale was confirmed. The obvious conclusion is, that as the administrator could not split up the estate and sell it in parcels, as he pleased, that the court never would have approved of the sale, unless as a matter of consent by all parties, and because- the land was assigned to the heirs. The next conclusion is, that the court would not have ordered the sale of the whole tract for the payment of the sum of §157 to the administrator, unless it had been a matter of consent and arangement all round, especially as the tract contained over one hundred and fifty acres, and each third as divided sold for something over three times the amount of debt. The administrator settled his account in June, 1821, and charged himself with §1,260, the amount of the sale, and takes credit for §420, one-third of the real estate sold to Mitchell, and to Heidelbaugh the guardian for the other two-thirds, retaining nothing for the balance due to him, and making the then balance due to him $255 — the increase of the balance due to him being probably occasioned by the expenses and costs of the proceeding in the Orphans’ Court. On the 24th February, 1830, Mitchell and wife executed a release to the administrator for their share of the estate of William Kerr, Mrs. Mitchell’s father, in consideration of their having received from said administrator, “ a deed duly executed for a certain tract or piece of land, situate in Colerain township, containing 52J acres, marked No. 2, on the draft of the estate of William Kerr, deceased, it being one-third of the said estate, in full satisfaction of their share of the estate, and of their share and dividend of the said tract of land.” The administrator testifies that he never received a cent from Mitchell, or Heidelbaugh, — that the land was divided among them. The deposition of the administrator, like everything else, was objected to, but its competency is fully established by the case of Kieffer v. Brenneman, 1 Barr, 452. But independent of that case, the administrator had not the slightest interest in the cause, and stood on the same footing that any other witness would have done, who testified to the same facts, with this advantage, that his knowledge was more accurate than .that of any other person could have been. This was surely, in connexion with all the other facts, sufficient to go to the jury, for the purpose of establishing that the sale was intended as a mode of partition, and was not an absolute sale, and that Mitchell had paid nothing for the land.

In Kaufman v. Kaufman, 9 W. & S. 131, it was ruled that where husbands had procured a deed for the lands of their wives, by virtue of a sale by executors, where the money was to be divided among testator’s daughters, and divided the land and executed deeds to each other, the husbands acquired nothing but the naked legal title, and upon their deaths the fee remained in their wives. In Fogelsonger v. Somerville, 6 S. & R. 267, it was held that where the husband agrees to take the land of the wife, and enters into recognisance, and the court decree the estate to him, the decree as to the wife’s share is void, and on her death her share descends to her heirs — and a hond fide purchaser is in no better situation than the husband. In Weeks v. Haas, 3 W. & S. 520, the chief justice lays down the rule, clear and unshadowed, that the law raises a resulting trust in favour of the person whose money paid for the land, and if partition be made by feme coverts, and mutual releases be executed to the husbands, they do not vest absolute estates, but they hold in trust for their wives. This rule contains in itself the purest light of equity. If then, the evidence satisfied the jury, that it was a partition, and that the setting up an absolute title in himself by Mitchell was a fraud against his wife, it was sufficient: because this court ruled in 5 Barr, 216, Mitchell v. Kinzer, that it was competent to establish these facts by evidence, without the record. In relation to the errors assigned by the plaintiff in error, as to the answers of the court to the various points proposed by the counsel for the plaintiff and the defendant, the learned judge below, admirable for his temper as well as for his intellect, submits the questions of fact to the determination of the jury; particularly the question of notice to the purchaser at sheriff’s sale, as he was bound to do, with this correct qualification, that the acts and declarations of James Mitchell, after judgment rendered in favour of Henry Kinzer, not communicated to him or the purchaser at sheriff’s sale, could not affect the rights of either, and the jury was bound to disregard them, unless they should believe from the evidence that there was a concerted plan between Mitchell and Kinzer, the plaintiff in the judgment in which the purchaser at sheriff’s sale was a participant, to defeat the defendant Martha Mitchell, and deprive her of her interest in this property; and fully cautioned the jury that fraud must be proved.

And as to the law rising out of the case, the court conforms to the principles established in Mitchell v. Kinzer, 5 Barr, 216, which have been fully considered by this court, and are re-affirmed.

Judgment affirmed.