author: KiNG, President. —

text:
    The Estate of Esther Barton.
    The 19th section of the Act of the 29th March, 1832, makes no change in the legal relation of trustee and cestui que trust. It was intended simply to indemnify any trustee haying moneys in his hands, the principal of which was to "be paid in future, and the income to be paid away or to accumulate: if he invested such fund in some one of the securities designated in the act under the direction of the Court. The Act does not divest the trustee of any authority lawfully exercised under the instrument creating the trust. It leaves trustees clothed with special powers in regard to the investment of trust funds as it found them: responsible only for defaults arising from acts inconsistent with the terms of their charter; acts done without due and proper caution; or in violation of good faith.
    Where a trustee continues the trust fund in the same securities in which the party creating the trust had placed them; and the party immediately interested in the fund treated the investment as unexceptionable, and when the- investment is adopted, the credit of the institution was undoubted, and the most prudent and cautious persons placed their property there: he will not in general be held responsible if a loss occurred. Particularly where it is conceded he acted in good faith.
    Where a trustee has paid over the annual receipts of the income of the trust fund without claiming a deduction for commissions, and repeatedly stated he did not intend to claim any, he will not afterwards be permitted to demand commissions, because the cestui que trust has excepted to his final account and endeavoured to surcharge the account.
    A court of justice should throw no embarrassments in the way of apparently well grounded exceptions to the account of a trustee; but should always encourage a fair and just scrutiny of the same.
    As a general rule, commissions on the principal sum coming into the hands of a trustee, and on the reinvestment thereof, will not be allowed; especially in those cases where the usual commission of five per cent, has been charged on the interest and profits derived from such investments.
    Where the investments and reinvestments are made without any extraordinary trouble, the commission of five per cent, charged on the annual receipts of income, is an adequate compensation for the trustee’s care and trouble, as well for making such reinvestments, as for receiving their income.

      Sept. 10.
    This case arose in tbe Orphans’ Court on exceptions to the report of an auditor settling the account of David Sargeant, a trustee for Esther Barton, who was created such trustee under the will of Elizabeth Sargeant, deceased.
    All the facts necessary for a full understanding of the questions decided by the Court, are so clearly stated by the Judge who delivered its opinion, that it seems unnecessary to give any further statement in the report.
   The opinion of the Court was delivered by

KiNG, President. —

Mrs. Elizabeth Sargeant, by her last will, dated Nov. 5, 1835, bequeathed to David and Thomas Sargeant, $16,000 of her personal estate, in trust for the separate use of her daughter Esther Barton for life, remainder to Mrs. Barton absolutely, if she survived her husband, but in the event of her death during the life of her husband, the fund to be equally divided among Mrs. Barton’s children in equal proportions. The trustees were invested with the full and uncontrolled management of the said $16,000, so that the same might be invested in real or personal PROPERTY, or in such other way as they might think best.” Among the assets were fifty shares in the Schuylkill Bank, valued in the appraisement of the effects of Mrs. Sargeant, at $3075, and $1800 in the Loan of the Lehigh Navigation Company. These sums Mr. David Sargeant, who alone accepted the trust, transferred to himself as trustee of Mrs. Barton; he being also executor of Elizabeth Sargeant. Instead of using the phrase transferred, it would be perhaps more accurate to say retained, in reference to the Schuylkill Bank stock, because, although the stock was the property of Mrs. Sargeant, it stood during her life and at her decease in the name of Mr. David Sargeant. The remainder of the trust fund was invested in good bonds and mortgages, which, being paid off by the mortgagors, was reinvested by the trustee, in city five per cent., and county six per cent, stocks. In the year succeeding the death of Mrs. Sargeant, differences appear to have prevailed between the trustee and cestui que trust, as to the continuance of that part of the fund which had been invested in mortgage securities, Mrs. Barton being anxious that the mortgages should be collected, and the amount secured by them employed in the purchase of the stock of the Bank of the United States, then just revived under a State charter. To this mistaken requisition, the trustee fortunately refused to accede, otherwise the losses Mrs. Barton has actually sustained, would have assumed even a more disastrous character than they now unfortunately present. It seems from the report of the auditor, that Mr. Sargeant never made any claim or charge for commissions for the execution of this trust, but regularly paid over to his sister, Mrs. Barton, the full amount of the proceeds of her maternal legacy without deduction or demand of compensation. It is also reported that such a demand was not contemplated by Mr. Sargeant until the effort made in this proceeding to charge him with the depreciation which has since taken place in the value of the bank stock and Lehigh loan. The bank stock being absolutely annihilated, and the loan ruinously depressed, Mrs. Barton now insists that her trustee is liable for these losses, inasmuch as she supposes that he could only place or continue the trust fund in one of the securities indicated by law, viz. in the public debt of the nation, state, or this city, or in real security, with the approbation of this Court. The auditor, to whom the trust account was referred, has reported against this claim of the cestui que trust, and allowed the trustee a commission of 2J per centum on his reinvestments of the trust fund, amounting to $285.10, and a commission of 5 per centum on the amount of income received and paid over to Mrs. Barton, amounting to $187.47. He has also charged all the costs of the reference to the trust fund. To the entire action of the auditor, exception has been taken by Mrs. Barton; and whether he is to be sustained in whole or in part, is the matter for present adjudication.

From the subsisting condition of invested funds in this community, the question must sooner or later arise in this Court, whether, in regulating the relations of trustees, which peculiarly pertains to this jurisdiction, we will recognise any investment made by a trustee having no other or greater discretion than necessarily arises from his office, 'if made in any other than the funds in which by law this Court may, if applied to, direct such investment. This being a question involving important results, and operating on extensive interests, ought not, and will not, be decided, until it necessarily and directly arises. It does not do so in this case, which depends on its own peculiar circumstances. In the first place, by the terms of the instrument creating this trust, the trustee is clothed with the broadest discretion. He is to have “ the full and uncontrolled management of the fund, so that the same may he invested in real or personal property, or in such other way as he may think best.” In the second place, the Schuylkill Bank stock and Le-high loan were securities selected by the testatrix herself, being part of tbe very estate wbicb came into tbe possession of tbe trustee as ber executor. And in tbe third place, so far from the cestui que trust being dissatisfied with this investment, in a letter addressed by her to the trustee, dated Nov. 7, 1836, she requests him to leave “the Schuylkill Bank stock and Lehigh loan, which yield good interest as now invested. ’ ’ This last circumstance is only incidentally referred to as bearing on the good faith in which these investments were made and continued by the trustee, and is so far important. It is not relied upon as validating that which would otherwise have been a breach of trust, which, it seems, the assent of a feme covert or infant cestui que trust cannot effectuate: Lewin on Trusts, 640; Lancaster v. Dolan, 1 Rawle, 247.

To justify us in bolding this trustee under these circumstances responsible for the depreciation of these stocks, we must go to the full extent of tbe doctrine contended for — that, however broad may be the discretion given to a trustee as to investing a trust fund, he can only be indemnified from loss by selecting, under the directions of this Court, one of the funds designated by the Act of the 29th of March, 1832, § 14. Tbe Act works no such change in the legal relation of trustees. It was intended simply to indemnify any trustee having moneys in his hands, the principal of which was payable in future, and tbe income to be paid away or accumulated, if he invested such fund in one of certain designated securities under the direction of this Court. It was not intended to divest him of any authority lawfully exercised under the terms of the instrument creating the trust. This is shown by the proviso of the Act, which declares that “ nothing contained in it should authorize the Court to make an order contrary to the direction of any will or other instrument in regard to the investment of such moneys.” It was intended specially to embrace a large class of cases in which no direction is given by the instrument creating the trust, how the trust fund shall be invested; such as the general direction, so common in country wills, to “ put out money at interest.” This is also shown by the words of the law, in which it is said, that a trustee so investing under the order of this Court, “ shall be exempted from all liability for loss, in the same manner as if such investment had been made in pursuance.of directions in the will or other instrument creating the trust.” The Act was intended as a substitute for special directions as to investment in the trust instrument; not as a supersedeas of full and express authority given by a testator or grantor. It leaves trustees clothed with special powers in regard to the investment of trust funds as it found them — responsible only for defaults arising from acts inconsistent with the terms of their charter; acts done without due and proper caution; or in violation of good faith. These are the tests by which the doings of Pennsylvania trustees are to be tried. The English Courts of Equity have cettainly established strict rules on the subject of trusts, especially of infants’ money, and generally required that trust funds should be invested in government securities. But this rule has not been universal, particularly in cases where investments have been made according to the practice of the party creating the trust, 4 Johns. C. Rep. 284, or where express power is given to invest on personal security by the terms of the trust: Lewin on Trusts, 155; 24 Law Lib.

The financial policy of a nation loaded with a permanent debt, in sustaining the credit of which, all men of property are directly interested, may be one of the elements which induces in England so decided a leaning towards confining trustees’ investments to government securities. Such securities there are always at the command of purchasers. In this state the case is different. There have been happy periods in our history in which national or state securities did not exist; and, consequently, trustee investments could not have been made in them.

Trying the continuance of the investments complained of by the test rule furnished, it seems quite clear that the auditor rightly refused charging the trustee with the consequences of their depreciation. The power to invest was without stint or limitation. It extends to real or personal ‘property (a stronger phrase than security), “ or in such other way as he may think best.” Was due caution and circumspection used in the exercise of this authority ? which certainly this and every other trustee, no matter how unlimit ed his authority, is bound to employ in making trust investments. To this inquiry also an affirmative answer must be given. First, because he continued the trust funds in the same securities in which the party creating the trust had placed them. Second, because the party immediately interested in the trust fund, while she objected to some of the investments, specially treated these as unexceptionable. Third, because at the time these investments were adopted, their credit was undoubted, and the most prudent and cautious persons unhesitatingly placed their property in them. In regarding the question of due diligence and caution in making the investments, all these considerations are of value; and taking them together, laches is not fairly chargeable to this trustee. Nothing has been said in reference to tbe good faith in which the trustee has acted, this being conceded on all hands. The exception to the auditor’s report, which complains of his refusing to charge the trustee with the losses on the bank stock and loan, is dismissed.

On the question of commissions, I do not agree with the auditor, either as to amount or principle. Commissions on reinvestments ought to be carefully awarded. If too freely given, they afford, in a trustee with large discretion, great temptations to repeated changes of the securities of the fund. No such disposition appears in this case; but still, as a general observation, this is plainly true. 2J per cent, on such a reinvestment as took place' in this case is greatly too large a commission. Purchases of city and county stocks are made through brokers who, for £ of one per cent., make the purchases, obtain the transfers, and pay over the price to the vendor. Now to allow a trustee 2|- per cent, on such reinvestments, in addition to the usual brokerage, is too severe a tax on the trust fund. If called upon now to fix a standard of compensation to a trustee for investments so simple and free from care or responsibility, I would say 1 per cent, came nearer accuracy than 2J. But in this case the Court is not called upon to fix a standard; because we are of opinion that this trustee is not entitled to claim commissions, either on the reinvestments, or on the receipts and payments of the income of the fund; and for these reasons: the trustee always paid over the full amount of the income to Mrs. Barton, neither deducting nor claiming commissions in any form, until the difference arose between them as to the depreciated investments. Again, it is stated in the report, apparently as a conceded fact, that the trustee never intended to make such a claim; and was only induced to do so by the effort made to surcharge him with the losses on the stocks. This effort, in the opinion of the auditor, authorized a charge which, independent of it, neither party seems to have contemplated. But, in our opinion, where trustee and cestui que trust have, for a series of years, dealt together on the principle that no commissions were to be charged for the services of the former, it is inadmissible for the trustee subsequently to set up a charge for a full compensation, because differences may have arisen between himself and his cestui que trust, as to the mode of administering the trust fund. If such a demand had been made in the first instance, the cestui que trust might have resisted the sum claimed: she might have succeeded in placing the trust in equally secure, and less expensive hands: she have asked no further intervention of her trustee in the receipt of her income than his power of attorney to herself to collect it. In brief, the mutual understanding betweem them, and the security which it created in the cestui que trust, was such that it would be inequitable now to permit it to be changed by one, to the injury of the other, because of matters of posterior occurrence, having no connexion with it. Hereafter, if Mr. Sargeant continues to execute the trust, Mrs. Barton has notice that he will demand the usual compensation. The fact of Mrs. Barton’s resisting the trustee’s account, and of her seeking to charge him with the depreciated securities, on which the auditor seems to rest, as authorizing the charges for commissions, presents to us no sufficient predicate for such a conclusion. Such a doctrine would inflict a penalty as a consequence of asserting what was believed a right, and that too on a class of suitors, the special objects of the guardianship of a Court of Equity. It would intimidate such suitors from a scrutinous examination into the accounts of trustees, which it is the clear policy of the court not to discourage, by holding in terrorem over them, a liability to such a charge as the consequence of a too curious examination of the accounts of trustees. The safer doctrine seems to be that where, by a mutual understanding between cestui que trust and trustee, the latter waives commissions, he shall not be permitted to revive them, except on notice to the cestui que trust, which is only to operate in future.

Under all the circumstances, the Court consider the expenses of the audit properly chargeable to the trust fund. Neither party has entirely succeeded. The trustee has prevailed in resisting the chief item of the claim of Mrs. Barton, the investigation of which must have principally produced the expense incurred. Besides, the result of our decision has made Mr. Sargeant a gratuitous trustee, and one on -whom costs should be visited only in a clear case. And such is not this. So much of the auditor’s report as credits the trustee with the sum of $473.17, the aggregate of the commissions claimed, is disallowed, and that sum directed to be carried to the credit of the trust fund. In other respects the report is confirmed.

In the Case of the Trustees of Maria Hemphill.

On the 23d February, 1848, the question of commissions on investments and re-investments again came before the Court. King, President, delivered the unanimous opinion of the Court, which is in substance as follows: — As a general rule, commissions on the principal sum coming into the hands of a trustee, and on the reinvestment thereof, will not be allowed; particularly where the usual commissions of S per cent, hare been charged on the interest and profits derived from such investments. Commissions and brokerage, and all other usual expenses paid by them, are properly chargeable to the estate. But where the investments and reinvest-ments are made without any extraordinary labour or trouble, the commission of five per centum charged on the annual receipts of income is an adequate compensation for the trustee’s care and trouble, as well for making such reinvestments as for receiving their income.

There may arise cases in which, from their specialties, this general rule should not be applied; but these must always be regarded as exceptions.


source: Caselaw Access Project

author: KiN&, President. —

license: Public Domain

text:
    Clifton v. Davis.
    A court of equity will set aside a voluntary deed on the application of the grantor, executed while labouring under a deprivation of intellect, the result of excessive intoxication: where no purchaser for a valuable consideration can be affected thereby, and where the deed has prejudiced no one but the grantor himself.
    A man may allege his own incompetency to avoid his deed, on the ground of insanity or drunkenness, when such intemperance produces a deprivation of reason and understanding. And the absence of reason for a deliberate consent applies to both conditions. "When drunkenness goes so far as absolutely to destroy the reason, it renders a person in this state, so long as it continues, incapable of contracting, since it renders him incapable of consent.

      Oct. 1.
    This was a bill in equity, setting forth that Thomas Clifton, the plaintiff, entertaining a wish to visit England, his native country, and being desirous to make some arrangement for the protection of his property during his absence, and for the proper mode of so doing, applied to Davis, the defendant, for his advice as to • the means by which it could be effected. That said Davis recommended that the plaintiff should apply to a lawyer, since dead, and whom he did not know, who, Davis stated, would prepare for the plaintiff the proper power of attorney, to him, the said Davis, to manage the property of the plaintiff during his contemplated absence from the United States, and that he gave him a paper, as he understood, as instructions to the lawyer to prepare such a power of attorney; that shortly after, the complainant called upon the lawyer at his office, and stated to him the object of his calling, which was to have a power of attorney prepared, and gave him some paper, and expressed to him a desire he had, that his wife and two daughters she had by a former husband should not be put to trouble during his absence, but be assisted in any business by said Davis, and wished to know of the lawyer when he might call for the power he wished drawn; that the attorney took down the names of his wife and her daughters, and told him the paper would be ready the next morning; that he called the next day and received from the attorney the paper which he had prepared, and which he understood, from the manner in which it was read over to him by the lawyer, to be a power of attorney such as he desired to be drawn; that he then left the office, and tried to read the paper, but could not, the handwriting being difficult to read; but he supposed his object had been made known to the attorney, and he himself was ignorant how such a power should be drawn, and as the paper appeared to be of some length, and having confidence in the knowledge of the lawyer, he supposed everything had been prepared according to his instructions and wishes, and that he might safely execute it in the manner pointed out by the lawyer; and he accordingly did, and acknowledged it before an alderman on the same day that he received it; that when the paper was recorded it was not delivered to said Davis, but was received by the complainant from the recorder.
    That circumstances, some time after the execution of the paper, induced him to relinquish his intended journey to England, and he was advised to have said paper examined, to see if any revocation of the power was necessary, when he was told by the person who examined the record of it, that it appeared to be a conveyance in trust of all his property, and not a power of attorney, the original having been taken from the complainant during a fit of illness, with which he was afflicted.
    A copy of the paper was inserted in the bill, which appeared to be an absolute conveyance of all the plaintiff’s property to Davis, in trust, to pay his debts, and to pay over to Clifton two-thirds of the net rent, interest, and income of the estate, or so much as the said Davis should think necessary, and the rest and residue to his two stepdaughters, and, on the death of Clifton, to convey the whole estate to them.
    The answer admitted that the complainant called upon him for advice, but expressly declared that Clifton desired Davis to become his trustee, and that he refused, but recommended the name of another gentleman, to act for the complainant, who was his friend. It was admitted in the answer that Davis gave him a paper, and advised him to call upon the attorney who drew the deed. And the paper was produced, which was signed by Clifton, and was drawn by Davis at the request of Clifton, and written in his presence. The paper contained a request that a deed of trust should be drawn to Davis of all the complainant’s estate, and in the manner stated in the deed.

      A memorandum, in tbe bandwriting of tbe lawyer wbo drew tbe deed, was found among bis papers after bis death, containing instructions, which appeared to have been taken down by him from Clifton, when at bis office, corresponding with tbe trusts in tbe deed; also the names of the stepdaughters. Tbe answer further stated that tbe defendant went to tbe office of the lawyer with Clifton, when the request was made for the drawing of tbe deed, but did not see the complainant for many days after, as tbe defendant Tras absent from the city.
    Tbe answer also stated, that tbe complainant, previous to tbe execution of tbe deed (which was on tbe 27th of July, 1838), was affected at intervals with aberration of mind, occasioned by excessive drinking, as tbe respondent believed, and that he believed on the morning of said 27th July, when Clifton called upon him, Clifton was not himself, did not know what he was doing, although he did'not appear to be under the immediate influence of liquor, and did state what he desired in relation to having a deed of trust drawn; and, to one unacquainted with his habits, was' evidently under the effects of excessive indulgence, which with the complainant produces an unsound state of mind. It was also stated by the respondent in his answer, that he did not believe the 'complainant, at the time of giving said instructions, or of executing said deed, was in his usual sound state of mind, as when not affected by liquor or its effects, but was under an aberration of mind and labouring under delusion, and on that account and other reasons he determined not to be a trustee.
    The defendant further set forth in his answer, that some time in the year 1838, after he returned to the city, he received the deed, but from whom he does not recollect. The answer further stated, that he had not taken possession of the personal or real estate of said Clifton.
    The answer also admitted that Clifton had been confined in the Alms House when labouring under an unsound state of mind from the effects of excessive drinking. The answer denied the statements in the bill about the intended visit of Clifton to England, or that he applied to him for advice as to the proper mode of protecting his property during his absence, or that he recommended that he should apply to the lawyer who drew the deed, and that he would prepare a power of attorney; and generally all the facts as to a deed being drawn instead of a power of attorney, as charged in the bill.
    The were made to the and by guardian, who answered that they were ignora,nt of all things contained in the bill.
    The cause was argued by Messrs. Gt. M. Wharton and Rdward D. Ingraham, for complainants, and John M. Read, for respondents.
    It was argued by plaintiff’s counsel, that it is now settled at law that a man may allege his own incompetency to avoid his deed: 5 Whart. 371. That it was always the doctrine in Equity: 1 Story’s Equity, 229, 31. While insanity might not excuse one from civil responsibility for acts prejudicial to others, the rule did not hold as to acts prejudicial to himself: Story, 231; Eonb. Eq. §2,p. 967. Drunkenness is on the same footing with lunacy: Bull. N. P. 168, 172; Eonb. 67; 1 Hen. & Munf. 70; 5 Barn. & Cress. 170; 1 Wood & Walker, 105, 6 ; 3 Camp. 125. • And whenever, from the nature of the transaction, there is not good faith, or the contract or act is not just in itself, nor for the benefit of the party, in such cases a Court of Equity will set the deed aside: 1 Story’s Eq. 232; 7 Dowl. & R- 614; 7 Yesey, 264. The exception is for mere necessaries.
    Voluntary conveyances, although good between the parties, when the grantor is under no incapacity to act, yet the claim in Equity is not countenanced'when the persons benefited are mere volunteers and strangers in blood, and have expended no money or labour, and when the grantor was under no obligation to support or provide for them: 2 Mylne & Keen, 493, 503; 2 Pr. Wm. 203; 2 Yesey, 627; 2 Atk. 324.
    Courts of Equity will go to a considerable extent to relieve from a contract in case of drunkenness: 1 Story’s Equity, 235; 18 Yesey, 12; 1 Yesey and Beames, 195; 1 Smith & Batty, 183,454; 3 Blight, N. S. 1; 1 Dev. 380.
   The opinion of the Court was delivered by

KiN&, President. —

The facts disclosed in the bill and answer render it quite apparent, that when Thomas Clifton, on the 28th day of July, 1838, executed the deed to Armón Davis, which it is the object of this proceeding to set aside, he was in a state of temporary insanity, induced by habits of excessive intoxication. His does not seem to have been then the condition of mere intoxication, but of a morbid and depraved intellect, induced by the habitual and excessive use of ardent spirits. The defendant Davis, in his answer, admits his belief, that when the plaintiff gave his directions for the preparation of the deed, by which he was to divest himself of all his property, be did not know what he was doing. Davis appears to have reluctantly yielded to the acceptance of the trust, in order to get rid of the importunity of the plaintiff, at the same time being satisfied that he was “under an aberration of mind, and labouring under delusion.” Mr. Davis is a man of unquestionable character, and there is no reason to believe or suspect that any collusion exists between the parties, in order to avoid the operation of the deed. The deed, on the face of it, presents a suspicious aspect. It grants to Davis, in trust, all the property, real, personal, and mixed, of the plaintiff, first to pay his debts, then to pay him, during life, out of the net income, for his support, a sum not exceeding two-thirds; the balance of income to be paid over to his two minor stepdaughters, Elizabeth and Mary Ann Walters; and after his death the principal of the estate to them as tenants in common. At this time Clifton had a wife, the mother of Elizabeth and Mary Ann, who is left utterly unprovided for by the settlement, was in a good business, and is described by the answer of Davis as an industrious man, prudent and careful in his dealings, except when under the influence of his.besetting infirmity. Now, the effect of this settlement, if carried literally out, would have been to close his business, to leave his wife destitute, and to confine himself to a mere subsistence, not to exceed two-thirds of the net income of his estate. The provision for himself does not seem to have been in the contemplation of Clifton; for Davis, in his answer, says that the suggestion came from him, and was adopted by Clifton. A more unjust, absurd, and indiscreet disposition of property could hardly be imagined, and so Davis, the trustee, appears to have regarded it. For up to this time he never has taken possession of any part of the transferred property, but left it in the possession of the plaintiff and his family. An illustration of Clifton’s capacity to make such a sweeping disposition of his property is disclosed in the fact that, in a short time after the date of the deed to Davis, he is found in the Philadelphia Alms House, under treatment as an insane patient. It would seem from the bill that Clifton now supposes that the instrument intended to be signed by him, was a power of attorney to Mr. Davis, preparatory to a journey which he (Clifton) intended to make to his native country, England. This idea is not sustained by the answer, in which Mr. Davis describes the settlement as being desired by Clifton, in consequence of a contemplated visit to New Orleans. Both these journeys were, it would seem, the mere phantasies of a mind thrown from its balance by intemperance.

The question for decision is, whether a Court of Equity will set aside a voluntary deed on the application of the grantor, executed while labouring under a deprivation of intellect, the result of excessive drinking, where no purchaser for valuable consideration can be affected by it; and where the deed has prejudiced no one but the grantor himself. And on this question we are clearly of opinion in favour of the 'plaintiff. The doctrine of the common lawyers that no party could be admitted to disable or stultify himself, has ceased to be the reproach of a system, whose claim to the perfection of reason could not but be equivocal while such a moral anomaly retained its place as a fundamental principle. And it is now established both at law and in equity, that a man may allege his own incompetency to avoid his deed; in other words stultify himself: Bensell v. Chancellor, 5 Whart. 371; Story on Equity, 229, 30, 31; 1 Fonb. Eq. B. 1, ch. 2, § 2. Drunkenness rests on the same footing with insanity, where the extent of the former is such as to induce the deprivation of reason and understanding, and consequently of any serious and deliberate consent: Ib. Fonb. 618. In Cooke v. Clayton, 18 Ves. 12, Sir William Grant observes, “as to that extreme state of intoxication that deprives a man of his reason, I apprehend that even at law it would invalidate a deed obtained from him while in that condition1 Story Eq. 285. The absence of capacity for any deliberate consent, alike applies to both conditions, and in both furnishes the reasons for the invalidity of the contracts of lunatics, and the helpless, stolid, and stupified drunkard. This is also the doctrine of the civilians. “It is evident” (says Pothier, P. C. Art. 4, § 49) “ that drunkenness, when it goes so far as absolutely to destroy the reason, renders a person in this state, so long as it continues, incapable of contracting, since it renders him incapable of consent.” But the present is even a stronger case than one of mere excessive and disqualifying drunkenness. It is the case in which the continuous and excessive use of intoxicating drinks had so depraved the intellectual faculties, as to impair all the powers of judgment, memory, and reflection ; leaving, after the excitement of the stimulant had passed away, the mind a confused and disorganized wreck. On the whole case disclosed in the pleadings, the Court are of opinion the deed of July 1888 must be set aside and the plaintiff must have-the relief prayed for in his bill.


author: KING, President,

text:
    Dalzell v. Crawford.
    Where a recovery in damages would not be an adequate remedy for the assertion of the plaintiff’s rights under a contract for the sale of land, the courts having equity powers in this state will entertain jurisdiction of the cause.
    The specific execution of a real contract in equity is not of absolute right in the party asking it, but of sound discretion in the Court.
    Although the subject and import of the written contract are clear, so that there is no necessity to resort to evidence for its construction, yet if the defendant can show any circumstances, dehors, independent of the writing, making it inequitable to interpose for the purpose of a specific performance, a Court of Equity having satisfactory information on the subject will not interpose.
    A marketable title in equity is one in which there is no doubt involved either as to matter of law, or fact; and such a title only will a purchaser be compelled to accept.
    The absence of a description of the property in an alias levari facias on a mortgage, constitutes no objection to the title of a purchaser under such writ, where it can be amended, and the description supplied from the sci. fa. and the original lev. fa.

    The rule in equity is, that no title will be forced on a purchaser which is not so free from difiiculty as to law and fact, that on a resale, an unwilling purchaser shall be unable to raise any question which may appear to a judge sitting in equity, so doubtful that a title involving it ought not to be enforced.
    Wherever the trust or charge on land is of a defined and limited nature, the purchaser must himself see, that the purchase-money is applied to the proper discharge of the trust; but whenever the trust is of a general and unlimited nature, he need not see to it.
    So also where the trusts are defined, and yet the money is not merely to be paid over to third persons, but is to be applied by the trustees to certain purposes, which require on jheir part, time, deliberation, and discretion, it seems the purchaser is'not bound to see to the due application of the purchase-money.
    Where a purchaser has refused from other reasons than the existence of encumbrances to complete his purchase, the seller can recover damages for the purchaser’s breach of contract, if he be • able to satisfy the jury that the encumbrances were of such a nature that he could and would have removed them, had the purchaser-been willing to accept á conveyance.
    Courts of Equity will not refuse their aid to a vendor, who asks a specific execution of a contract for the sale of land, on the ground of doubts in relation to the title, except where the doubts are “considerable” and "rational,” and where, though the Court may on the whole consider the title good, they yet see real and serious difficulties in relation to it; and the opinion of conveyancers or of counsel against a title will not justify a party in refusing to comply with his contract.

      Nov. 10.
    The facts of this cause are so fully stated in the opinion of the Court, that it is deemed useless to furnish a more extended synopsis of them.
    The cause was argued by Messrs. Peter M’ Qall and F. W. Hub-bell for the plaintiff, John Sergeant and W. B. Reed for the defendant.
    It was contended by Mr. Reed, for the defendant,
    who argued the case on exceptions to the report of the master, that this was a case of unequal bargaining. Crawford was a clergyman and schoolmaster, and not expert in contracts. Dalzell was an expert, familiar with bargains, and the subject connected with sales. That the title was doubtful, and was not marketable; that it was not free from doubt and exception, as it must he to render it marketable : 20 Law Lib. 11-12, No. 28. Here it was defective. A married woman had no authority in Pennsylvania to bar her dower, or sell property by attorney. A fine could not so be levied: 8 Taunt. 260.
    In Pennsylvania the English doctrine prevails, that time is not of the essence of a contract, unless made so in express terms: Atk. 161; 3 Meriv. 84; 1 John. 306; 2 Sch. & Lef. 603; 2 Jacob & Walker, 285, 289; 5 Oranch, 276. Circumstances may make time of the essence of the contract: 1 Wheat. 196; 6 lb. 528; 1 Russ. 376; 6 Call, 308; 1 Simons & Stewart, 190; 2 Story Eq. 750.
    Mr. Subbell, for plaintiff. —
    This is an unwilling purchaser, who> almost at once abandons his contract. He does not even call on the seller to amend defects, but at once repudiates it, and gives the vendor no time for explanation, or to hunt up the lost record, which was at first the sole objection to the contract. The question is, whether this is a marketable title. Both of the alleged defects a,re curable. As to the alleged defective acknowledgment to constitute an attorney, the' Court can require such defects to be cured in the terms of the decree: 2 Whart. 453. The title is good without amendment: 3 Watts, 87. The case in 8 S. & R. settles the question -of the right of the wife to create an attorney.
    On contract expressing no time for its immediate execution, even at law, the party has no relief. In general, where no time is mentioned in the contract for its completion, the party has up to the time of making the decree to complete his bontract: Sugden on Vendors, 419, 491, 503, Chap. 8.
    When the time is mentioned, and forms the material part of it, then it must be assumed.
    Tbe chancery powers conferred upon this Court are sufficient to give specific relief when a recovery in damages would be an inadequate remedy: Purdon, 238.
    Mr. M’CaJl, on the same side. —
    A party cannot take exceptions in Court on the argument which were not taken before the master in relation to the defect of title. The point should be made before the master: 4 Madd. 212. The point as to the want of capacity of a married woman to create an attorney was not then made.

      It is not tbe rule in equity that a purchaser need not take a title objected to by a conveyancer. Tbe rule is this, that a purchaser shall not be compelled to take a title, when he fairly may be involved in litigation: 1 Yesey, Jr. 565; 12 Yesey, 252 ; 16 lb. 272; 4 Russ. 374; 6 Madd. 159; Newl. on Contr. 237; Sugden, 420. A purchaser will not be permitted to object on the ground of a bare possibility of defect: 11 Yesey, 465.
    The term merchantable title is an innovation on the law, and a departure from the ancient doctrine. This Court ought to look at the kind of doubts equity has regarded, and they will all be found to be those, where it is serious and substantial, and such only as may endanger its validity; not captious, frivolous, or evasive exceptions, which should not be noticed: 2 P. Wms. 198; 1 Brown Ch. Rep. 75; 1 Yesey, Jr. 565; 16 Yesey, 272; 1 Gilbert, 241.
    The title is good; the defects are, and can all be removed, and the title made perfect. We have the return of the sheriff, and acknowledgment according to law: 1 S. & R. 93; 10 Peters; Yohrees v. Bank of U. S., 1 Baldwin, 272; 8 S. & R. 268; 2 Wharton, 490; 9 S. & R. 277; 3 Watts, 87. The acknowledgment of a letter of attorney for the conveyance of land under the Act of Assembly, is good. The letter of attorney is a deed for that purpose: Act of 16th April, 1840. It is an assurance of land: 2 Black, 295, Act 1770, and Act of 1705, all show that such a letter of attorney is a deed, and within the provisions of the law: 8 S. & R. 299; 1 Pet. C. C. Rep. 430; Morgan v. Grath, 5 Cranch; 5 Bing. 305.
    But if it is defective, we may now correct it before decree: 7 Yesey, 202; 14 lb. 205'; 6 Mod. 256; 1 Jacob & Walker, 644; 16 Yesey, 156; Sugden, 32, 34, 40; 2 Brockenbrough, 234; 3 Swans-ton, 699; 2 Dessau. 375.
    Is time essential in this contract ? If time is material here, it must be in every contract, and in all cases brought in Court. Time may be material in law ; but not generally in equity, because substantial justice is the great end of equity. The ancient doctrine of English equity was, that time was never essential. But this has been modified, by holding that the parties may make time material; but when they have not done so, it remains unessential: Gilman v. Patterson, 1 Atkin. 112; 4 Brown C. C. 329; Seaton v. Slade, 7 • Yesey, 265; 4 Brown, 469 ; 4 Yesey, 686; 5 lb. 718, 818; 7 lb. 209; 12 lb. 315; 3 Merivale, 81; 6 Madd. 24; 1 Eng. Cond. Ch. Rep. 302; 1 Simons & Stewart, 590; 8 Paige, 600; 1 Jacob & Walker, 419; 14 Com. Law Rep. 225; 4 Cond. Chan. Rep. 293.

      The title was to be indisputable. Wbat is the title equity requires a man to take? Specific performance is compelled or refused according to legal doctrine. A doubtful title will induce equity to' refuse all interference, because the party still has his remedy at law: 4 Russ. 374; 3 Cond. Ch. Rep. 713; 3 Yesey, 565, 7; 3 Brocken-brough, 244; 16 Yesey, 272.
    This Court has jurisdiction.. This objection has come too late. It was matter of demurrer on the faee of the bill, or should have been raised by plea: 2 Daniel’s Ch. Pr. 34. The Court has general jurisdiction, and the defendant has submitted himself to it; he now comes too late with his objection. But the Act of 1836 gives to this Court jurisdiction: the legislature intended to embrace this kind of eases in which equity gives relief: 2 Story, 35. The Court have it on the ground of inadequacy of common-law relief: 10 Mod. 503; 1 Sim. & Stew. 174; 1 Eng. Com.-Law, 36; 1 Cond. Reps. 314; 1 W. & S. 245. The party here has a right to the specific performance of the contract; a right which a Court of law cannot give him.
    Mr. J. Sergeant, in reply.
    The title was inadequate to pass the land — it was defective. The acknowledgment was defective. There was an encumbrance against the transfer until some time after suit brought.
    It is evident from the face of the Act of 1836, that there was no intention to make this a Court of Chancery generally, for that is given to a single man. No one can ask relief, unless he could not have recovered damages at law. Such is the true reading of the Act. An inadequate remedy at law alone gives jurisdiction to the Court: 5 Whart. 466; 6 Whart. 522; 11 S. & R. 277.

      Time was material. Contracts for the sale of dwelling-houses are always considered those in which time is of- the essence of the contract. Where it is material, the party seeking to enforce the contract must show himself ready at the time to comply: 2 Brocken-brough, 212. In most cases the party has done something to waive the benefit of time during the negotiation. Here, Crawford, from the outset, insisted on the benefit of time, claimed the right of having the dwelling as his home, and it is evident that time in this case is material. But the title was defective, and that embarrassment was not removed. The evidence is clear that learned counsel had condemned the title, and the party was not bound to take it. ■The vendor should have been ready with a good title at the time. He was not, and the Court will not now compel him to accept a conveyance and pay the money.
   The opinion of the Court was delivered by

KING, President,

as follows:—

This case arises under a bill filed by the plaintiff against the defendant, to compel the specific execution of a contract for the sale of a house and lot of ground in the city of Philadelphia, entered into between the parties on the 8th of November, 1840. It is presented in the form of exceptions to the report of a master to whom it was referred, “ to inquire and report whether a good title could be made by the plaintiff to the defendant of the messuage and lot mentioned in the pleadings.” Before the master, various objections were made to the marketable quality of the plaintiff’s title, all of which were decided by him in favour of the plaintiff. These objections have been reiterated in the exceptions taken by the defendant to the report. On the hearing, in addition to the objections taken before the master, the defendant insisted, that this court possessed no jurisdiction to give the plaintiff the relief prayed for in Ms bill. The whole case has received from the Court long and anxious consideration. It is a case of the first impression in Pennsylvania; no analogous proceeding exists in any precedent, and we have delayed pronouncing judgment, until it was fully matured, since our decision is final and conclusive between the parties.

The jurisdiction of this Court in Equity, to compel the specific execution of contracts, arises from one of the provisions of the 13th section of the Act of the 16th June, 1836, “relating to the jurisdiction and powers of Courts.” This section among other things enacts, “ that the Supreme Court, when sitting in Banc in the city of Philadelphia, and the Court of Common Pleas for the said city and county, shall have the power and jurisdiction of Courts of Equity,” so far as relates “ to the affording specific relief when a recovery in damages would be an inadequate remedy.” It is from this section our authority in the premises is derived, or we do not possess it at all. It is truly said by the Supreme Court, in Gilder v. Merwin, 6 Wharton, 540, to the binding authority of which I unhesitatingly defer, “ that the legislature have by no means conferred on us an universal or even a general equity jurisdiction, as seems to have been conceived by some: on the contrary, equity jurisdiction has been dealt out to us at distant intervals, and in limited portions, and we cannot usurp a jurisdiction not granted, nor exceed the limits within which the legislature has thought proper to prescribe it.” Hence, unless the jurisdiction invoked is not plainly and clearly given, we must refuse its exercise, and refer tbe plaintiff to tbe remedies afforded by tbe past practice of tbe Commonwealth.

Tbe whole question of jurisdiction resolves itself into this proposition: Is a recovery in damages in Pennsylvania an adequate remedy for tbe vendor of land where, as here, the cash payments by the vendee are to be made by instalments, and the property is sold subject to existing encumbrances ? I think it proper to state the precise case before us, rather than attempt the solution of the more entangled proposition, whether this Court can compel the specific performance by the vendee of a contract for the sale of land, on a bill filed by the vendor, where the object of the vendor is to compel the immediate payment of the money price of the land contracted to be sold in a gross amount. Because, if any doubt can exist as to the jurisdiction, under the head of specific relief, it must arise in this last case.

The principles and grounds on which Courts of Equity proceed in compelling the specific performance of real contracts, are well expounded by Sir John Leech, in Adderly v. Dixon, 1 Simons & Stewart, 607. “ Courts of Equity decree the specific performance of contracts, not upon any distinction between realty and personalty, but because damages at law may not, in the particular case, afford a complete remedy. Thus a Court of Equity decrees performance of a contract for land, not because of the real nature of the land, but because damages at law which must be calculated upon the general money value of the land, may not be a complete remedy to the purchaser, to whom the land may have a peculiar value. So a Court of Equity will not generally decree performance of a contract for the sale of stock or goods, not because of their personal nature, but because damages at law calculated upon the market price of the stock or goods, are as complete a remedy to the purchaser as the delivery of the stock contracted for ; inasmuch as with the damages, he may purchase the same quantity of the like stock or goods.” The clause of the Act of 16th of June, 1886, is therefore but declaratory of the settled principles on which Courts of Equity have long acted, in the administration of specific relief.

The distinction taken at the bar between the case of vendee and vendor, in which the jurisdiction was conceded as to the former but denied as to the latter, is not new. As clearly as May 1722, in the case of Armiger v. Clark, Bunbury Rep. 111, in the Exchequer, the Lord Chief Baron took the difference. “If,” says he, “a man comes for a specific performance as to land itself, a Court of Equity ought to carry it into execution, because there is no remedy at law ; but if it is to have a performance in payment of money, they may have a remedy for that at law.” This doctrine seems to have been received with little favour. For, in Lewis v. Lord Lechmere, 10 Mod. 503-6, decided the same year; Lord Chancellor Parker refused to recognise it, though strongly urged at bar, saying “that the remedy the vendor had at law upon the article, was not adequate to that of a bill in equity for a specific performance.” Sugden, chap. 4, sec. 3, treats this distinction as no longer existing, and asserts that if either vendor or vendee refuse to perform the contract, the other may bring an action for breach of contract, or file a bill for a specific performance. In Witting v. Cottal, 1 Simons & Stewart, 174, the Chancellor observes, “ that in Equity the remedy between purchaser and vendor should be mutual.” In Adderly v. Dixon, 1 Simons & Stewart, 607, Sir John Leech says, it had been settled by repeated decisions, that the remedy in Equity must be mutual, and that where a bill will lie for the purchaser it will also lie for the vendor.” If mutuality is to be the criterion of jurisdiction here, as it clearly seems to be in English Equity, then our jurisdiction in this bill is undoubted ; for it is not denied to us in the case of purchaser against vendor. But if mutuality of remedy is too vague a standard in Pennsylvania, we have still left that of the adequacy or inadequacy of damages at law to afford a complete relief, and this point I regard as ruled against the adequacy of the remedy at law, by an action either for damages for the breach of contract, or for the recovery of the entire purchase-money, by the case of Huber v. Burke, 11 S. & R. 238. The whole course of the reasoning of the Court in that case,’ shows the difficulties under which our tribunals formerly laboured for the wantvof a Court of Equity, in order to fully carry out the respective rights and obligations of vendor and vendee on contracts for the purchase and sale of land. What is perhaps most important in that ease, as bearing on the one before us, is the difficulty noticed by the Chief Justice in the way of an action brought by the vendor against the purchaser where the purchase-money is payable by instalments. He observes, that it might possibly admit of a doubt whether the ■vendor, after having recovered one instalment, could bring a second action on the covenant; or whether he would have to wait until all the instalments should be due,” a matter about which he declined intimating an opinion. Now the present is the case, not merely of payment by instalments, but where the purchaser was to give his notes for these' instalments. An agreement to give notes means negotiable securities. These, if the drawer is in good credit, the holder could immediately turn into money. An action of damages for the non-delivery of such notes or for the recovery of the amount of them when they would have matured, if delivered according to contract, cannot surely be estimated as equal to the actual delivery of the securities according to the terms of the contract. Such damages must necessarily be calculated upon conjecture, and an action would be no equivalent for the immediate delivery of negotiable securities. But this is not all, for a fact in this case exists not in the view of the Supreme Court in Huber v. Burke. The defendant made this purchase, subject to a mortgage of $9000 to Elijah Vansyckel: for such in my opinion is the legal effect of the agreement. In the case of Campbell v. Strum, 3 Watts, 60, the plaintiff by articles of agreement had agreed to convey to the defendant a certain tract of land, “ subject to the payment of the' purchase-money and interest now due to A.and it was held, that this created a covenant on the part of the defendant to pay the purchase-money and interest. The consequence of the purchase being made subject to this large encumbrance, would have been to impose on the purchaser the obligation to indemnify the vendor from all liability arising from it had the contract been carried into effect. Would “ a recovery in damages be an adequate remedy” for the loss of such an indemnity as this ? This is the test of the jurisdiction in all cases of specific relief. What data could a jury proceed upon in computing damages under such a head of demand ? It is because of the vague, arbitrary, and undefined nature of such a remedy, and the total absence of any standard by which it can be meted out, that the relief in equity is sought after. That tribunal severs all the involved legal knots in which the subject would be otherwise entangled, by the simple process of making the party recusant do that specifically, which he specifically agreed to do. A procedure which, when practicable, is alike recommended by natural reason and by equal distributive justice. On the whole case disclosed in the pleadings and proofs, I am of opinion, that a recovery in damages would not be an adequate remedy for the assertion of the plaintiff’s rights under the contract, and that consequently the exception to the jurisdiction has not been sustained.'

We are thus brought to the consideration of the other reasons urged by the defendant why our decree should not go against him. As these mainly arise from exceptions to the plaintiff’s title to land, it becomes necessary to look into the principles on which Courts of Equity in such cases grant specific relief; and what species of objections to the titles to land are deemed by them as sufficient to induce a refusal of their interference.

The specific execution of a contract in equity is not of absolute right in the party asking it, but of sound discretion in the Court. Hence it requires a much less, strength of case on the part of the defendant to resist a bill to perform a contract, than it does on the part of the plaintiff to maintain a bill to enforce a specific performance: 2 Story, 78, 79; White v. Damon, 7 Vesey, 85. In Clows v. Higginson, 1 Vesey & Beams, 526, it is said by the Yice Chancellor to be a plain and obvious principle, that a Court of Equity is not hound to interpose by specifically performing the contract. And although the subject and import of the written contract are clear, so that there is no necessity to resort to evidence for its construction, yet if the defendant can show any circumstances, dehors, independent of the writing, making it inequitable to interpose for the purpose of a specific performance, a Court of Equity having satisfactory information on the subject will not interpose. This discretion is not however arbitrary, but exercised in a judicial manner according to established rules: 3 Atk. 187; 18 Ves. 111.

As a natural result of this doctrine, has .arisen that of marketable titles. A marketable title in equity is one in which there is no doubt involved either as to matter of law or fact; and such a title only will a purchaser be compelled to accept: Atkinson, 3. It seems that a Court of Equity has no power in suits for specific performance, except on the application and consent of all parties to direct an issue for the determination of a matter of fact; nor can it without such an application or consent direct a case or an action for the purpose of satisfying itself on a matter of law: Roake v. Kidd, 5 Ves. 647; Prebole v. Boghurst, 1 Swint. 320; Sharp v. Adcock, 4 Russ. 375. Hence, if doubts arise either as to fact or law involved in the title, and the purchaser be an unwilling one, as his consent cannot of course be had to an issue on the case, the Court is deprived of the'only competent means of informing its conscience, and is placed in the dilemma, either to take upon itself the decision of the fact or the law, which it would do at the hazard of what might be afterwards determined in a court of law, or to refuse to interfere on behalf of the vendor; an alternative it is entitled to choose on the principle that a bill for specific performance of a contract, is an application to the discretion of the Court, and a decree therefor cannot be claimed as a matter of right: Atkinson, 9. In illustration of this doctrine, Lord Eldon in Stapleton v. Scott, 16 Ves. 272, remarks, that “it has been held repeatedly that though, in the judgment of the Court, the better opinion is, that a title can be made, yet if there is a considerable, rational doubt the Court has not attached so much credit to its own opinion as to compel a purchaser to take the title, but leaves the parties to law.” This distinction between good and marketable titles seems peculiar to Courts of Equity, being unknown in Courts of Law, where the question is simply is the title good or bad: Romilly v. James, 6 Taunt. 274; 1 Marshall, 592. The equity doctrine seems to involve this result, that no title will be forced on a purchaser which is not so free from difficulty as to law and fact, that on a resale an unwilling purchaser shall be unable to raise any question which may appear to a judge sitting in equity, so doubtful that a title involving it ought not to be enforced. These are settled doctrines of English equity, and seem to necessarily arise from the constitution of strictly equitable tribunals. The urgent powers of these tribunals ought never to be applied, in the exercise of any discretionary jurisdiction, where doubts prevail as to the perfect soundness of the plaintiff’s claim; or apparent justice characterizes the defendant’s objections. The refusal to interfere does not absolutely repudiate the plaintiff’s rights, if any he can establish. It only denies to him an extraordinary remedy, properly applicable only to cases in no respect equivocal.

The doubts however which will operate on a Court of Equity are not doubts made up for the occasion; not based on captious, frivolous, and astute niceties ; but such as produce real bond fide hesitation in the mind of the Chancellor. The doubts must, in the language of Lord Eldon, be “ considerable and rational,” such as would and ought to induce a prudent man to pause and hesitate in the acceptance of a title affected by them.

Having thus ascertained the standard by which the objections to the plaintiff’s title in this case are to be weighed, let us as briefly as practicable examine them in detail.

The first objection arises under a supposed defect of the writ of alias levari facias, under which the interest of Augustus Willis and Mary his wife in the premises was sold; and the supposed incompetency of the District Court, from whence the writ issued, to amend the defect. This interest became vested in Robert Patterson, who was the purchaser at sheriff’s sale, through whom the plaintiff derived title to it. The defect consisted in the total absence of any description in the writ of the property sold, which was in this respect a blank. In this objection there is no weight. First, because, the proceedings against Willis and wife being under their joint mortgage, the scire facias contained an accurate description of the mortgaged premises, and the defect in the subsequent levari facias could be fully supplied by it. The case of Small v. Mickley, 1 Rawle, 95, is direct to this point. There the writ of venditioni exponas was not returned at all, and the Court say that “ whatever of form or substance there can be in a venditioni expo-nas, may be made out of the ft. fa. and docket entries, aided by the common forms of office without the writ.” In the present ease we have even fuller materials to remedy the supposed defect. We have the scire facias, which precisely describes the mortgaged premises. We have the judgment on' that writ, which is in rem, and specifically authorizes the money to he made from and only from the mortgaged premises. We have the original levari, which contains the description of the property complete. We have the alias levari under which the sale to General Patterson was made, which directs the sheriff to levy the judgment as before commanded; and necessarily refers to the original on file. And finally, we have the sheriff’s return and deed, duly acknowledged according to law, describing the property sold, and in all respects agreeing with the property described in the scire facias and original levari. In Thompson v. Phillips, 1 Baldwin, 272, it is said, “that in this state the reception of an acknowledgment of a sheriff’s deed is a judicial act, in the nature of a judgment of confirmation of all the acts preceding the sale; curing all defects in process on its execution, which the Court has power to act upon. When the acknowledgment is once taken, everything which has been done is considered as done by the previous order or subsequent sanction of the Court, and cannot afterwards be disaffirmed collaterally. The Court which directs the sale can alone judge of the legality of the acts done under its authority, and it follows that all questions arising under judicial sales, when their validity is questioned in an ejectment, must be those of authority, not irregularity or error, in awarding executions, or confirming process or acts in pursuance of it.” But even if the District Court would have set aside this sale for the supposed defect in the levari, the time for such action was before the acknowledgment of the sheriff’s deed. That Court would never have interfered after the property had passed through the hands of three purchasers: McCleary’s case, 3 Yeates, 405; Blair v. Greenway, 1 Browne, 208. What would have been the action of that Court even if timely application bad been made to it, may be inferred from tbe case of Owen v. Simpson, 3 Watts, 87. There tbe writ of fieri facias was correctly endorsed, but tbe body of it referred to a different suit. Tbe writ was executed, and returned by tbe sheriff as if tbe contents corresponded with tbe endorsement; a venditioni issued, upon which tbe land levied on as tbe property of the defendant named in tbe endorsement was sold; all tbe proceedings in tbe suit were otherwise correct. It was held that tbe fieri facias was' amendable, and that tbe purchaser at sheriff’s sale acquired a good title. Hut we are not called upon to theorize as to what would have been tbe action of tbe District Court in the premises. For, in point of fact, on tbe 28th of November, 1840, twenty-five days after the date of tbe contract, and fifteen days after Mr. Crawford’s refusal to execute it on bis part,, tbe District Court permitted tbe supposed defective writ to be amended. Tbe power of that Court to order tbe amendment was, under tbe authorities of Owen v. Simpson, 3 W. 87, and Ordaneaux v. Prady, 6 S. & R. 510, undoubted; and tbe time within which it was made, bad it been at all necessary, sufficiently prompt not to have defeated tbe defendant’s alleged intention of occupying tbe house in tbe fall. On this ground I agree with the master, that no valid objection exists as to the plaintiff’s title.

Tbe second objection to tbe plaintiff’s title arises out of tbe marriage settlement of Mrs. Caroline Patterson, one of the parties through whom tbe plaintiff derives bis title. On tbe occasion of her marriage, tbe estate of Mrs. Patterson, then Miss Caroline Ell-maker, was conveyed to a trustee to hold for her separate use, with power inter alia to change and alter “tbe whole or any part of trust'1 estate by sales, transfers, purchase, or otherwise, and as often as tbe same should be done, that tbe moneys or other property purchased therewith should be immediately taken and held upon similar uses and trusts to those first declared.” Under this last power, the ground rent originally existing on tbe lot in question was extinguished by tbe trustee, Mrs. Patterson signifying her assent by joining in the deed.

Tbe settlement of Mrs. Patterson differs from settlements made by other married daughters of Mr. Ellmaker, in containing no express clause, exempting tbe purchaser from seeing to tbe application of tbe purchase-money. Tbe question under this exception is whether such liability exists.

To bold of a purchaser from a trustee who has power to sell, liable to tbe proper application of tbe purchase-money, has nothing to recommend it to the Courts of this country. Our policy is to render titles to land as little embarrassed as practicable; and hence a Pennsylvania tribunal should lean against any extension of a doctrine which interferes with the convenient transmission of lands from hand to hand. Even in England, where feudal restraints on the convertibility of land into money have not been entirely shaken off, the doctrine is by no means a favourite. Mr. Butler, in his note to Co. Litt. 200, B. sec. 12, seems to incline to the opinion that the admission of the doctrine has been more productive of inconvenience than real good: that it retards, and often absolutely impedes the progress of business, involves the parties in expensive and intricate litigation, and is in other respects an useless expense. In Balfour v. Welland, 16 Ves. 156, Sir William Grant declares the doctrine to have been carried further than any sound equitable principle will warrant. “Where,” says he, the act is a breach of duty in the trustee, it is very fit that those who deal with him should be affected by an act tending to defeat the trust of which they have notice. But where the sale ■is made by the trustee in performance of his duty, it seems extraordinary that he should not be able to do what one should think incidental to the right exercise of his power: that is, to give a valid .discharge for the purchase-money.” In these views Judge Story, in his Commentaries on Equity Jurisprudence, ch. xxx., coincides. He states correctly the general principle to be this: “ that wherever the trust or charge is of a defined and limited nature, the purchaser must himself see that the purchase-money is applied to the proper discharge of the trust; but whenever the trust is of a general and unlimited nature, he need not see to it.” Even where the trusts are defined and yet the money is not merely to be paid over to third persons, but is to be applied by the trustees to certain purposes which require on their part time, deliberation, and discretion, it seems that the purchaser is not bound to see to the due application of the purchase-money: Story Com. on Equity, vol. 2, 338, § 134. The case of Warmley v. Warmley, 8 Wheaton, 422, is referred to as illustrating this doctrine. There Judge Story, delivering the opinion of the Court, says, “ there is much reason in the doctrine that where the trust is defined in its object, and the purchase-money is to be reinvested upon trusts which require time or discretion; or the acts of sale and reinvestment are manifestly contemplated to be at a distance from each other, the purchaser shall not be bound to look to the application of the purchase-money; for the trustee is clothed with discretion in the management of the trust fund, and if any persons are to suffer by Ms misconduct, it should rather be those who have reposed confidence in him than those who have bought under an apparently authorized act.” Doran v. Wilshire, 3 Swanton, 699; Wood v. Harman, 5 Madd. 358; Garnett v. Mason, 2 Brocken. 234; Lenning v. Peyton, 2 Dessausure, 375, are cases which may be referred to as identical in principle with the present, and from which may be extracted the doctrine, that whenever a trustee empowered to sell, is at the same time authorized and required to reinvest the avails of the trust property, under the same trusts with which the original estate was clothed, the purchaser is discharged from all obligation to see.to the proper application of the purchase-money, paid by him to the trustee. And it is difficult to perceive how it could practically be otherwise. Reinvestments are .eminently matters for the exercise of sound discretion. The failure of a due exercise of such discretion may involve the trustee in direct personal liability for a breach of trust. To coerce precipitate action by the trustee may be most deleterious to the trust fund; while to keep the purchaser in a state of suspended liability, until such reinvestment is properly made and duly secured according to the terms of the trust, would embarrass, if not totally nullify the whole power to sell. A more ingenious mode could hardly be devised of clogging the negotiability of trust property, and thereby depreciating its value, than the establishing of such a doctrine. I will only notice the fact that the settlements made by the other daughters of Mrs. Ellmaker contained a clause expressly exempting purchasers from liability for the application of the purchase-money, by saying that it can have no influence on the decree of this question. Accident; the employment of a more accurate or cautious draftsman, in these instances; or the opinion of the drawer of this instrument that from the nature of this trust, such a liability could not exist and was not required to be provided against, might have produced the variance. But, however this may have been, these settlements were acts among strangers; and the maxim, “res inter alios acta alteri nocere non debet” applies to them.

In this exception, according to my judgment, plaintiff has also failed.

The third objection arises from the defect in the power of attorney, executed by Robert Patterson and wife to William Patterson, dated June 13th, 1840, by which the latter was authorized to convey the right of General Patterson in this ground, as purchaser at sheriff’s sale of the interest of Augustus P. Willis and Mary E. his wife, late Mary E, Ellmaker. The defect consisted in the certificate of the acknowledgment of the letter of attorney by Mrs. Patterson, not setting forth that the contents of the instrument had been previously made known to her.

I agree in opinion with the master, that this defect is cured by the confirming act of the 16th of April, 1840. The language is broad: “ No grant, bargain and sale, feoffment, deed of conveyance, lease, release, assignment, or oilier assurance of any lands, &c., bond fide made and executed by husband and wife, and acknowledged by some judge and authorized by law, &c., executed before the first of January next — shall be held or adjudged invalid or defective, or insufficient in law, by reason of any informality or omission in setting forth the particulars of the acknowledgment, &c.” The only question under this law, is, whether a power of attorney from husband and wife authorizing a third person to sell and convey specified land belonging to the husband, is “ an instrument of conveyance” of land, of which, at this time of day, a doubt ought not to be entertained, if ever such a doubt would have been legitimate. Such has certainly been the received opinion and practice of the state, and a contrary doctrine could not fail to shake many titles and produce the most disastrous litigation. The question I consider too clear for argument.

The last objection made before the master, arises from the circumstance of the existence of an outstanding judgment against Elijah Yansyckel, the immediate owner of the property before the plaintiff, in favour of Abraham Piexoto, This was a judgment under an award of arbitrators for $1701.87J, and while it subsisted was an abiding lien on the property, and so far vitiated the title. Satisfaction was not entered on this judgment until the 26th of April, 1841, when it was released by Piexoto’s attorney. Of course, when the defendant Crawford refused to execute his contract, this judgment was in full operation, but it was satisfied before the hearing before the master. It is undoubtedly true that where an encumbrance is discovered, the vendor must discharge it before he can compel the payment of the purchase-money at law or equity. But here the refusal by the defendant to execute his contract was general, and without specification of the existence of this judgment as a cause of exception to the plaintiff’s title. From the evidence, it is more than probable that the existence of this judgment was an after discovery. For, according to the testimony of the defendant’s conveyancer, the objections made to the title arose from the supposed liability of the purchaser to look to the application of the purchase-money, under Mrs. C. Patterson’s marriage-settlement; from the supposed defect in the acknowledgment of General and Mrs. Patterson’s power of attorney; and from the defect in the writ of fieri facias, under which the interest of Mrs. Willis was sold. Not one word is said by this, or any other witness, that this judgment was considered by either party. The negotiation actually fell through, by Mr. Crawford’s absolute refusal to complete the contract, before the parties had arrived at the point of searching for encumbrances. We all know that in the practice of Pennsylvania conveyancing, searching for encumbrances is the last step in the consummation of the bargain. A prudent conveyancer generally first has the deeds executed, and then examines for liens. This is done to avoid the hazard of the entry of judgments, or the recording of mortgages pending the negotiation. Sales are every day made of real estate charged with encumbrances, it being the intent and understanding of the seller to discharge them out of the purchase-money on the completion of the sale. To raise money to discharge such liens (operating frequently, as in the ca.se of judgments, on all the seller’s property) is often the chief inducement for the sale. It would be most unjust, where the buyer has refused to accept the seller’s title from different reasons, that he should be at liberty, when foiled in the exceptions actually made, to retreat behind encumbrances, not made the subject of exception, and which, if they had been, might have been cleared off by the vendor. The true rule in such cases is found in the case of Hampton v. Speckanagle, 9 S. & R. 212, which, from having been concerned as counsel in it while at the bar, I know to have been vigorously contested. There the court held, that where a purchaser had refused from other reasons than the existence of encumbrances to complete his purchase, the seller could recover damages for the purchaser’s breach of contract, if he was able to satisfy the jury that the encumbrances were of such a nature that he could and would have removed them, had •the purchaser been willing to accept a conveyance. This is also the English rule. In Townsend v. Camperdown, 1 Y. & J. 449, it is held, that, although the estate is sold free from encumbrances, and the abstract shows an amount of encumbrances exceeding the purchase-money, yet it must be considered that the seller can make a good title, and for this plain reason, that from the existence of such encumbrances, no fair inference can be drawn that the seller has neither the ability nor disposition to remove them, if the purchaser is otherwise content to execute his part of the bargain. It would be a most unreasonable thing to ask a vendor to extinguish money liens on bis land, until it was ascertained that the vendee would complete bis purchase. In the nature of things this is a step immediately preceding the consummation of the final treaty. To main- , tain this doctrine might indeed subserve the advantage of this defendant, but it would .produce the greatest public inconvenience. The existing practice of conveyancers has originated in the practical common sense of the business community, and is sustained by the soundest principles of law and the clearest dictates of distributive ■ justice. The rule of Specknagle v. Hampton, is the true one at law. Where the vendor of an encumbered estate seeks to recover damages for a breach of contract by the vendee, he must prove that he could and would have removed the encumbrances had the defendant kept his part of the contract. In equity, on a bill to enforce specific performance, such a vendor must show that he could, within a reasonable time, have removed the encumbrances, had the vendee waived his other unsound objections to the title, and he must actually extinguish them before the Court compels payment of the purchase-money. The ability to extinguish is of course a question of evidence, but to my mind the evidence to that point is perfectly satisfactory. The cash payment to be made by the defendant was $1500, within $200 of the amount of the judgment: he was to give the plaintiff two notes, one for $500 at six months, and another for $4000, at eighteen months. Are not here ample means to extinguish a judgment for $1700, not payable instanter, being upon an award of arbitrators appealed from ? When to these we add the fact, that in five months after the date of the contract, and before the hearing before the master, the judgment was actually satisfied, can any one doubt that there are enough proofs in the the case to show that if Mr. Crawford had required the release of Piexoto’s judgment as a pre-requisite to the acceptance of the plaintiff’s title, it would have been promptly done ? The existence of this judgment I do not think, under the circumstances disclosed by the evidence, furnishes any reason why the defendant should not now be called upon to execute his contract.

Another and a most grave objection has been made on the hearing, which was not mooted before the master. This, according to equity practice, is irregular: 4 Madd. 111; Brooke, 5. In a case like this, however, arising in the infancy of our chancery jurisdiction, this strictness will not be adhered to; although its manifest convenience is such, that we shall expect it hereafter to be complied with.

The objection amounts to nothing less than that a married woman in Pennsylvania cannot sell her land or bar her dower by power of attorney, although such power is sufficiently acknowledged, had it been a direct deed in which she had joined her husband. This objection arises under the deed made by William Patterson, attorney of Robert Patterson and wife, by which the interest originally of Willis and wife, which had been purchased by Robert Patterson at sheriff’s sale, was conveyed to Dalzell, the plaintiff.

The present is the first instance in which this question has been directly raised in the courts of this state, and is one which, if well founded, is calculated to shake many titles heretofore deemed good. It is true that in Sweigart v. Burk, 8 S. & R. 299, it was ruled that a power of attorney executed out of the state by husband and wife, and acknowledged before a justice of the peace, was not sufficient to authorize the attorney so named to convey the wife’s lands in Pennsylvania, by deed executed in pursuance of such power. But this decision was put not on the broad ground of the ineffieacy of a power of attorney by husband and wife to convey title to the wife’s land, but on the ground of the insufficiency of the acknowledgment under the Act of Assembly regulating the acknowledgments of powers of attorney for the conveyance of land in the state, but executed out of it. There is no intimation of a doubt by court or counsel, that if the power had been duly acknowledged by the wife, it would have been otherwise than sufficient. Sweigart v. Burk may therefore be fairly taken as an authority against the defendant’s position, impeaching a conveyance by an attorney duly constituted by husband and wife. Morgan v. Stell, 5 Binn. 305, is a case of the same character as Sweigart v. Burk. There the question was as to the validity of a deed executed by Nicholas Holliday, an attorney in fact of Mr. and Mrs. Turner Camac, of land belonging to Mrs. Camac, after a subsequent power had been given to him jointly with Thomas Law and Benjamin Chew. The case was ruled against Mrs. Camac, on the ground that the defendant was a bond fide purchaser without notice of the revocation of the first power. The case was argued by Hopkinson and Rawle for the plaintiff, and by Binney and Wallace for the defendant, and the opinions of Judges Tilghman, Yates, and Breckenridge, given seriatim. In neither the arguments made, nor opinions delivered by these eminent personages, is the idea started, .that Mrs. Camac’s power could not give authority to her attorney to execute a deed of her land. It is not likely that this omission would have been made by such counsel and such a Court, if an objection of this character had been esteemed to be of any force.

The language of the declaratory act of the 24th of February, 1770, in reference to deeds executed by femes covert, and acknowledged under a separate examination, is of tbe broadest and most extensive character: “ Where any husband and wife shall hereafter incline to dispose of and convey the estate of the wife, and of her right of, in, and to any lands, &c., it shall be lawful for the said husband and wife to make, seal, deliver, and execute any grant, bargain, and sale, lease, release, feoffment, deed, conveyance, or assurance whatsoever, for the lands, &c., intended to be passed and conveyed.” And it declares that such deed or conveyance being acknowledged in the manner prescribed, shall be “ good and valid in law to all intents and purposes, as if the said wife had been sole and not covert at the time of such sealing and delivery.” Now, is not a power of attorney under seal, authorizing a third person to execute a deed of land belonging to the constituents, an “ assurance in law ?” The phrase, assurance, is technical. The legal evidences of the translation of property are called, says Blackstone, the common assurances of the kingdom; whereby every man’s estate is assured to him, and controversies, doubts, and difficulties, are either prevented or removed: 4 Com. 294. The power from the principal and the deed from the attorney, in pursuance of it, are in effect but one instrument. In a community like Colonial Pennsylvania, where many of the proprietors of the soil were residents in the mother country, the efficacy of conveyances through attorneys was of vital importance. Hence by the third section of the act of 1750, for “ confirming sales of lands by attorneys or agents, &c.,” it was declared that all conveyances of lands made by virtue of any letters or powers of attorney duly executed, “should be good and effectual in law, to all intents, constructions, and purposes whatsoever, as if the constituent or constituents had by their own deeds, bargains, and acts, actually and really sold and delivered the same.” It wras then the settled practice of the province for husband and wife to join in deeds conveying the wife’s interest in lands: Daney v. Turner, 1 Dall. 12; and is not the presumption irresistible, that the general and stringent terms of this law were intended to embrace conveyances made by attorneys created by husbands and wives ? The first time from bar or bench I ever heard it questioned was on the argument of this case, and I am quite clear that it has no sound legal foundation to rest upon,

But if the objection was tenable, it was cured the moment it was made. It was not one of the objections taken by the defendant’s scrivener, nor was it urged before the master. From the fact that the moment that it was stirred here, a deed of confirmation was obtained from General Patterson and wife, it is probable, if not certain, the same thing could have on either of these occasions been procured by the plaintiff if required by the defendant. If in the progress of a suit for specific performance of a real contract, objections to a title are discovered, never made during the negotiation, the defendant cannot insist on such objections as excusing him from performance, if the plaintiff is able and willing to remove them when first pointed out.

In respect to the time of completing the contract, the modern doctrine in equity requires of a vendor asking its aid, to compel specific performance of a contract, to show himself ready, prompt, and eager; and that, therefore, time alone is a sufficient bar to the aid of the Court. Due diligence is necessary to call the Court into activity, and when it does not exist, a Court of equity will not lend its assistance. But the rule is mutual, and applies to both parties, and a purchaser will not be assisted when he has made frivolous objections to the title, and trifled or shown backwardness to perform his part of the agreement; especially if circumstances are altered: Sug. vol. 3, 501, 9th ed. Time, unquestionably, is regarded in equity as of the essence of the contract, where, from the nature of the estate, the uses to which it was intended to be applied by the purchaser, or from anything else, it is shown so to have been regarded in framing the contract. In this case it is to be remembered, that in the contract no time is specified when the title is to be completed. In such a case a reasonable time, having regard to all the circumstances, must be accorded. And if we consider the objection tenable to the form of the levari faeias, under which Mrs. Willis’s interest in the ground rent was sold (the only objection made by the conveyancer having, in my opinion, any plausibility), the time taken by the plaintiff to remove it was not unreasonable, even if Mr. Crawford intended an immediate occupation of the house as a residence. The question as to the materiality of time, can only arise in that class of cases in which legitimate objections are made to the plaintiff’s abstract of title, and the question occurs whether he has removed them in due season. But in my opinion there was no objection made that required amendment in this plaintiff’s title. The encumbrance was not mentioned, and could have been removed by the plaintiff. In this view of the case, the fact that the defendant purchased this house as a resi-deuce, and desired possession at a convenient season, supposing it to be established, cannot help the case. The only effect such a circumstance of personal convenience can have, in any case, would be the requirement of the prompt removal of available objections made by the purchaser. But where the objections raised are such as are not deemed tenable, or such as a vendor is required to obviate, no equity in favour of the purchaser can be raised from them. And, as has been shown, the only objection raised of any value was corrected soon enough to leave the defendant still obliged to perform his contract.

The last matter for consideration is, whether the defendant’s exceptions to the plaintiff’s title, taken in conjunction with the opinions of his scrivener and counsel, regarded separately or in the aggregate, exhibit one of those titles, which, though not positively bad, yet is of that doubtful character which a Court of Equity, in the exercise of a discretionary jurisdiction, will not force on an unwilling purchaser. For the purpose of this defence, it is sufficient that the latter title is doubtful.

The cases in which Courts of Equity have refused their aid to a vendor, where they have considered his title good, though disputable, are cases of real and serious difficulty, such as Moulin, 3 P. Wm. 198; Chapman v. Smith, 1 Brown, 75; Cooper v. Denn, 1 Ves. C. C. 165; Stapleton v. Smith, 11 Ves. 272. The doubt, to have this effect, must be what Lord Eldon, in Stapleton v. Scott, 11 Ves. 27, calls “ a considerable, a rational doubt.” The danger of lending too ready an ear to such objections are well observed upon by Lord Eldon in Yancover v. Bliss, 11 Ves. 465. Speaking of the practical working of the equity doctrine of doubtful titles, he observes: “ It is scarcely possible to represent the difficulties that have arisen from it; especially when persons under the description of land-jobbers, are going about looking for these things, and persons imprudently enter into contracts with them. Whenever a contract is made for the purchase of land, though no doubt has ever been entertained upon the title, no one thinking of disputing it, if the purchaser has a good bargain, he overlooks all these objections; but if he finds he cannot sell the estate as well as he wished, or cannot enjoy it to his satisfaction, the first thing is, that the abstract goes to some one, for the express purpose of finding out objections, and opinions are given on both sides. I feel great concern for the owners of this.sort of property. The consequence is not only the misery arising from the uncertainty whether that which they have been enjoying with happiness, and upon which their families are subsisting, is their property; but it is an invitation to all wbo may fancy they have an interest in it to make an attack.” The circumstance so warmly dwelt upon during the argument, that the defendant’s scrivener and counsel objected to this title, is of no other weight than as requiring of us a more careful scrutiny, before we adopt what others, whose opinions are of unquestioned value, have repudiated. To this legitimate extent it has been considered, but as a substantive reason in favour of the defendant it cannot prevail. In Deverell v. Lord Bolton, 18 Ves. 506, Lord Eldon ruled that “where an abstract is laid before the counsel who approves the title, his approbation is not to be taken as against the person consulting him as a waiver of all reasonable objections, for the Court cannot compel a specific performance on ground of an opinion that it may think wrong.” If this is true where the opinion of counsel is invoked against a purchaser, it must be as true where it is offered in his support. On the whole case I am of opinion that no such exception to this title has been shown as would justify a Court of Equity in refusing a decree for a specific performance. There must be a decree accordingly.

The Court doth order and decree that the agreement on the pleadings mentioned, dated the third day of November, 1840, be specifically performed and carried into execution. And it is ordered that it be referred to Joseph A. Clay, Esq., as Master, to inquire and report what sums of money have been paid by the complainant for taxes and water rents of the premises in the said agreement mentioned, accruing since the said 3d of November, 1840, and for interest on the mortgage hereinafter mentioned, accruing since the said day, and for necessary repairs of the said premises since the said day. And upon the plaintiff executing and delivering to the defendant a proper conveyance of the estate and premises contained in the said agreement, subject to the encumbrances therein mentioned, to wit, a mortgage for $4700, dated May 1st, 1827, from James M’Olurg to William Chamberlain; and also a mortgage for $4300, dated July 31st, 1840, from the plaintiff to Elijah Yansyckel — such conveyance to be settled by the said Master if the parties differ about the same. — It is ordered that the defendant do pay the plaintiff the sum of $6000, the purchase-money, and what the Master shall report to be due to the plaintiff as aforesaid, on the amounts aforesaid, and the parties are to be at liberty to apply to the Court as they shall be advised.

       Since this judgment was pronounced, I have been referred to the case of Fulweler v. Boughter, 15 S. & R. 45, 55, in which the Supreme Court has ruled that a wife can convey her interest in lands by power of attorney, executed by her after a separate examination.