text:
    Northumberland Coal Company versus Clement.
    1. In a controversy as to the location of the division line between two adjoining tracts of land included within two separate adjoining blocks of surveys, the senior block lying north of the junior block, and the official returns of the junior block calling to adjoin the senior block upon the north, marks were discovered upon the ground that clearly define the exterior opposing lines of the respective blocks, but no marks, counting to the dates of the original surveys, were found to establish the common, or division, line of the blocks: Held, where surveys have been made and returned as a block, the location of each tract therein may be proved by pi'oving the location of the block. The inquiry is not where a tract should, or might, have been, located, but where it actually was located. Every mai'k on the ground tending to show the location of any tract in the block is some evidence of the lacation of the whole block, and, therefore of every tract therein.
    2. The testimony of practical surveyors of large experience in tracing original lines, and especially the testimony of those acquainted with the marks made by the’surveyor who located the warrants, was properly admitted. A surveyor must not be permitted to testify as to the legal interpretation to be given to a survey, yet a practical surveyor may testify whether in his opinion certain marks on trees, piles of stones, or other marks on the ground, were intended as monuments of boundaries.
    3. The location of a junior warrant may throw light upon the location of a senior warrant which it calls to adjoin, where the division line between the two was returned as of the same length in each return and where both warrants, having been in the surveyor’s hands at the same time, were located by the same surveyor.
    June 10th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicey, Sterrett and Green, JJ.
    Error to the Court of. Common Pleas of Northumberland county: Of May Term 1879, No. 91.
    Ejectment, brought by Ira T. Clement against the Northumberland Coal Company, to recover a tract of land situate in Mount Carmel township, Northumberland county, containing about 96 acres.
    The trial was had 19th April 1878, before Rockefeller, P. J. It appeared in evidence that the plaintiff, Clement, is the owner of one undivided half part of a tract of land surveyed under a warrant dated June 11th 1793, granted by the Commonwealth in the name of Thomas Billington. Also that the Billington was one of eleven warrants owned by Dr. Thomas Ruston, all dated June 11th 1793, granted in the name of Daniel Reese, Charlotte Ruston, Mary Meyers, John Reynolds, Thomas Billington, Mary Ruston,

      Thomas Euston, Mary Euston, Jr., John Young, Joshua Bean, and Samuel Lobdill. These lands are now generally known as the Brush Valley lands. The Daniel Eeese, situate at the western end of the series, is the leading warrant, and calls for the Charlotte Euston on the east ; while the Charlotte Euston calls for the Daniel Eeese on the west. Each of these warrants, from the Eeese to the Lobdill, calls alternatively for the adjoining warrant, proceeding from west to east in the order given above. Surveys were made under the first four of these warrants on the 2d October 1793 ; the return of the Billington survey does not show upon what day it was made, though the Mary Euston, which adjoins it on the east, was surveyed on the same day, the 2d October, and the last five tracts upon the following day, the 3d October 1793. A certified copy of the returns of surveys showed that these eleven surveys had all been returned into the land office by William Gray, deputy-surveyor, on the 3d March 1794; at which time the Thomas Billington tract was said to contain 411 acres. The plaintiff contended that these surveys were made and returned as a block. The evidence showed that the Thomas Billington tract was patented the 18th October 1794, and that one equal undivided half part of the said tract became vested by sundry' mesne conveyances, in Ira T. Clement, the plaintiff. There was no dispute as to the plaintiff’s title to so much of the tract.
    The evidence further showed the defendant, the Northumberland Coal Company, to be the owner of a tract of land, containing 371J acres, surveyed in the warrantee name of Lewis Walker, lying directly south of the Thomas Billington tract, and also showed that the Lewis Walker warrant was one of four, granted by the Commonwealth to Ebenezer Branham, Nathaniel Brown, Lewis Walker, and William Elliott, all of which are dated the 26th November 1793, under which surveys were made on the 21st and the 22d October 1794, and returned into theland office, by William Gray, deputy-surveyor, February 23d 1795. These four tracts, now generally known as the Lefevre lands, extend along the Brush Valley lands, on the south, throughout their entire length, and the official returns of these surveys call for the Brush Valley lands upon the north. There was no dispute as to the defendant’s title to the Lewis Walker tract.
    The controversy arose as to the location of the line that divides the Billington tract from the Walker tract, and defines the southern limit of the former and northern limit .of the latter; the plaintiff contending that his survey, as marked upon the ground, includes the land described in this writ of ejectment, while the defendant asserted his right to extend his claim as far north as the southern line described in the official return of the Thomas Billington tract, which the Walker survey calls to adjoin- on the north, thus confining the plaintiff, by courses and distances, to the official return of

      b.is survey and disregarding the marks said to have been found upon the ground.
    Many surveyors were called, by either side, who testified that the northern lines and corners of the eleven tracts composing the Brush Valley lands are well defined by marks still existing upon the ground, made at the time of the original survey in 1793; they all agreed as to the northern line and northern corners of .the Thomas Billing-ton tract. Along their southern boundary line, these eleven surveys call for post corners in every case excepting one corner, which forms the southern limit of the division line between the Thomas Billington tract and the John Reynolds tract; these tracts call for a small maple tree as a common corner, it being the southeast corner of the Reynolds tract and the southwest corner of the Billing-ton tract. There was a conflict of evidence as to whether the position of this maple had been established by the surveyors, and the question of its true position was submitted by the learned court to the jury. No original marks were found by the surveyors in running either the southern line of the Brush Valley lands, unless it be this maple corner; nor were there any original marks upon either of the division lines between the eleven tracts except upon the line between the Reynolds tract and the Billington tract. Upon this line the surveyors found a white pine tree and a hemlock tree each marked at the date of the original survey. In regard to the maple tree, called for as a common corner by the Reynolds and the Billing ton tracts, the defendant introduced the testimony of David Rockefeller, a surveyor, who had run this division line in the year 1847. He testified th.at he found the line well marked upon the ground, corresponding with the dates of the original surveys, and that, in running from the northern corner, and making allowance for the rugged character of the land, he found at the end of the official courses and distances a small maple stump, with maple sprouts growing about it, and a maple tree lying upon the ground. The defendant asserted that this is the true location of the maple tree called for as the common corner, though the tree found by Rockefeller lying upon the ground was too much burned, and otherwise disfigured, to show whether it had ever been marked by surveyors or not. But the plaintiff’s surveyors testified, in rebuttal to this, that the maple sprouts found by Rockefeller were situated not only about eight rods short of the official distance of the division line between these two tracts, but were also about seven rods out of the official course, and that similar clumps of the maple sprouts are frequently to be met with upon the mountain in that vicinity.
    It appeared, from the evidence, that the land in controversy would not be included in the Thomas Billington tract, but would lie beyond it, and would extend seventy-two rods further south, if the lines of that tract were run according to the official courses and distances as they were returned by the deputy-surveyor. And it also appeared that if the southern line of the Billington tract were run as the defendant asserted it should be run, so as to make a corner at the point where Rockefeller found the maple sprouts spoken of by him, the land in dispute would be excluded.
    The plaintiff introduced the testimony of John Fisher, who had run the division line between the Reynolds and the Billington tracts in the year 1814, in company with Henry Donnel, the county surveyor at that time of Northumberland county. He testified that, at the southern end of this line, the southwest corner of the Billington tract, they found a stone corner and a post, situate near a swamp, at a distance of sixty or seventy rods south of the point now known as Rockefeller’s maple sprouts. Henry Donnel had been.an assistant to William Gray, the deputy-surveyor, at the time the surveys of the Brush Yalley lands were made, and he was employed by Gray in making various surveys in that part of Northumberland county. The plaintiff offered to prove by the witness, John Fisher, that Henry Donnel told him, while they were surveying the western line of the Thomas Billington tract in 1814, that the stone corner they found at the southwest of the Billington tract was where he had located that cÜffner some twenty years before; this for the purpose of showing where the original corner was, and to establish the southern line of the tract as originally located. This offer having been objected to by the defendant, was rejected by the court upon the ground that, as there was no evidence to show that Henry Donnel made the original surveys, his declarations twenty-one years after the surveys were made are not admissible. The court sealed a bill of exceptions for the plaintiff.
    But, in order to prove that the southern line of the eleven tracts composing the Brush Yalley lands, and consequently also the southern line- of the Billington tract, was run at the time of the original survey and marked upon the ground, far enough south of the courses and distances given in the official return to include the land now in dispute, the plaintiff had recourse to the location of other surveys in the block of eleven as well to other prior and subsequent surveys made by the same deputy-surveyor, William Gray, almost at the same time; he contended that what the surveyor did in locating these other surveys must be taken as some evidence to be submitted to the jury, and to be considered by them in determining whether the southern lines of the eleven tracts were actually located upon the ground or not.
    One of these surveys was made by William Gray and returned the 10th September 1793, in the warrantee name of Francis West, a few days before the Brush Yalley tracts were surveyed, as their returns show. The Francis West tract lies east and south of the Samuel Lobdill, the easternmost of the Brush Yalley tracts, and it appeared in evidence that its lines and corners were marked upon the ground. Another survey was made on the 23d February 1794, under a warrant granted in the name of Richard Martin, and dated January '22d 1794; it appeared that its northern, eastern and southern lines were marked upon the ground. The Martin survey calls for the Samuel Lobdill survey on the west. The plaintiff contended that the Lobdill survey was one of a block of surveys, that its southern line was actually run. upon the ground a number of rods south of its official courses and distances, and that if he proved this, by means of these other surveys, he should have a starting point that must control the location of the whole block. There is a post by a pine tree at the southwest corner of the Francis West survey called for in the official return, and this same post by a pine is called for also as the southeast corner of the Richard Martin survey. From this corner the official course of the Martin survey is north 89f degrees west, 309 perches, and the surveyors all testified that they found upon this line a pitch pine tree counting to 1794, that was marked as a line tree, and establishes the southern line of the Martin survey. The plaintiff extended this line, in its official course, the official distance, to tfye point where it would intersect the western line drawn from the northwest corner of the Richard Martin survey, and he asserted that this point must establish the southwest corner of the Martin survey; and, as the Richard Martin calls for the Samuel Lobdill survey on the west, the plaintiff contended that this is some evidence that the Samuel Lobdill survey was located at that place by the surveyor in 1793. It appeared that the eastern line of the Richard Martin survey, as marked upon the ground, is longer than its official distance, and consequently its western line must also be lengthened if drawn to intersect the southern line running west from the post by a pine corner. And it appeared also that, if the southern line of the eleven Brush Valley tracts were run upon the ground, starting from the point thus obtained as the southeast corner of the Samuel Lobdill survey, and following .its courses and distances, as the plaintiff contended this line was run in 1793, the land in dispute would be included in the Thomas Billington survey. There is still another survey, lying south of the Francis West, the Richard Martin and the Samuel Lobdill surveys, which was made on the 21st October 1794, under a warrant granted in the name of Ebenezer Branham, dated the 26th November 1793, referred to above as one of the Lefevre tracts ; it calls for a post by a pine in its northern line, and this the plaintiff alleges to be the same corner that is called for by the Francis West and the Richard Martin surveys as their common corner, and that the surveyor adopted that post by a pine corner in locating the Ebenezer Branham survey; and also that he adopted the line of the Richard Martin survey as marked upon the ground a few months before. The Ebenezer Branham survey calls for the Richard Martin on the north, and it calls also for the Samuel Lobdill. The plaintiff contended, therefore, that if the Branham survey were established either by marks made by the surveyors upon the ground, or by the monuments called for by it, its call for the Samuel Lobdill would be some evidence that that survey was located upon the ground. The defendant asserted that the southern line of the Brush Yalley tracts was never run and marked upon the ground by the deputy-surveyor in making the original surveys, and all the surveyors called for the defence testified that there are no original marks upon it corresponding to the dates of the surveys, although they ran for a distance of seven miles through timber old enough to have been marked at the time for line trees and corners.
    The plaintiff introduced, in this connection, the testimony of Abraham Shipman, who, upon being asked, under objection and exception, where, in his opinion as a surveyor, the southern line of the eleven surveys of October 1793 was located by the deputy-suryeyor, testified that the best authority he could find for its location was to begin at the post at the southeast corner of the Martin survey and run westward, following the courses and distances, to the pine line-tree at the south of the Martin, that being exactly in the official course; also, that he could not locate the southern line of the eleven tracts, according to their official courses and distances, without ignoring this pine tree, and that if the southern line of the eleven tracts were run by the official courses and distances from the post by a pine corner and by the pine line-tree at the south of the Martin survey, the distance of the south line from the north line of the eleven tracts would be greater than that given in the official return of these surveys. This witness also testified, on behalf of the plaintiff, under objection and.exception, that he found that the lines in William Gray’s surveys generally overrun the official distances, where there are lines of mountain surveys and run from one mountain to another, as in this case they do. This was offered as some evidence of the original location of the line between the Brush Yalley lands and the Lefevre lands.
    ! The court submitted to the jury the questions whether the eleven tracts composing the Brush Yalley lands were surveyed in a block; also, whether the place where the maple stump and maple sprouts were found is the original location of the common corner between the John Reynolds survey and the Thomas Billington survey, and whether the southern line of the Thomas Billington survey was run upon the ground or not, and where it was run, if run at all. In regard to locating the southern line of the Brush Yalley lands by means of the Martin and the West surveys, the court charged the jury, inter alia : “ But what the surveyor did in locating these two surveys, the Richard Martin and the Francis West, is submitted to you to be considered by you, with all the other evidence in the case, in determining the question whether the southern lines of the eleven tracts were actually run upon the ground or not; and, if so, where they were run, and I will repeat, that nothing that was done by him in the location of these two surveys, the Martin and the West, is to have, or can have, the effect of extending the Lobdill survey, but .is only submitted to you as some evidence of what he did upon the ground in 1T93 in locating the other eleven tracts.”
    Verdict for the plaintiff and judgment thereon.
    The defendant then took this writ, and filed nine assignments of error, among which were the charge of the court as stated above, and the following: The court below erred, 1. In receiving the evidence offered by the plaintiff below, as follows : “ Plaintiff’s counsel propose to ask the witness, Judge Shipman, where, in his opinion as a surveyor, the southern, line of the eleven surveys of October 1793, was located by the deputy-surveyor ?” 2. In receiving the evidence offered, as follows: “ Plaintiff proposes to show by the witness, Abraham Shipman, what the excess in lines in William Gray’s surveys, in the neighborhood of these blocks, has been found to be.”

      Joshua W. Comly and William H. M. Oram, for plaintiff in error.
    As to the first assignment of error. The witness was asked his opinion, as a surveyor, where the southern line of the eleven surveys was located by the deputy-surveyor. This was simply asking him how a line which the deputy-surveyor did not run and mark upon the ground ought now to be located. It is a purely legal question which the witness was not competent to answer. The court permitted him to decide it, and he decided that the line ought not to be run where the official returns of the surveys call for it, but that it should be controlled by the location of the junior adjoining survey of Richard Martin. This was not good law: Clements v. The Northumberland Coal Co., 6 Norris 291; Carbon Run Improvement Co. v. Rockafeller, 1 Casey 49; Manhattan Coal Co. v. Green, 23 P. F. Smith 310.; Bellas v. Cleaver, 4 Wright 260. Nor was the opinion of the witness competent evidence: Ormsby v. Ihmsen, 10 Casey 462.
    As to the second assignment of error. Where lines are found run upon the ground, which may or may not have been run for the survey, and objection is made to their being established as lines of the survey, on account of the excess of land that the survey would then contain, evidence of similar excess in -surveys made by the same surveyor has not been received to'meet such objection; but such evidence is not generally admitted as competent in questions of location, nor is it ever admitted except under peculiar circumstances that do not exist in this case.
    All the surveyors testified that, in their opinion, the south lines of the eleven surveys had not been run by the deputy-surveyor upon the ground. The fact that these surveys call for posts at sixteen corners along their southern lines, running through a well-wooded country, is, of itself, strong evidence that those corners were imaginary: Woods v. Ingersoll, 1 Binn. 150.
    The survey of the Thomas Billington tract became valid twenty-one years after it was returned into the land-office for «all the land contained in that survey, according to the courses and distances so returned: Fritz v. Brandon, 28 P. F. Smith 342, 355.
    The post corner by a pine was made for the southwest corner of the Francis West survey some twenty-two days before the surveys of the eleven tracts were commenced, and after they were finished there was a mile of vacant land lying between the Francis West and the Samuel Lobdill, the nearest of the eleven tracts. When the latter surveys were made, there was no connection between them and the Francis West by location, by contiguity, by call or by common ownership, and it was only when the surveyor occupied the vacant land between the Samuel Lobdill and the Francis West, by the location of the junior survey of Richard Martin, that the post by a pine corner could possibly have any connection with the south lines of the eleven tracts. But, if they were run upon the ground at all, it was done previously to this connection, and the marking of this post corner by a pine could have no share in locating the lines, or power to prove that they were run upon the ground.
    The south line of the Richard Martin passes through a rugged country for 318 perches, but the surveyor never ran more than 646 perches of this land, and marked at that place a pine as a line-tree. He finished it by protraction, and called for a post at the southeast corner of the Samuel Lobdill, thus making the east line of the Lobdill and the west line of the Martin identical, and, in the return of the Richard Martin, he describes the western line as 320 perches in length; that is, he calls for a post as the common corner of the Martin and the Lobdill surveys at precisely the same point where he placed the southeast Corner of the Samuel Lobdill, in the return of that survey. He supposed that his south line, that he continued by protraction from the pine witness, would intersect the line coming down from the northeast corner of the Samuel Lobdill tract at the distance of 320 perches from that northeast corner. But he was mistaken in this; for he had made a mistake in running the west line of the Francis West tract, and had described that Tine in his return as 250 perches long, though it is found by the surveyors to be really 280 perches upon the ground to the post by a pine'corner. When he adopted this line as the lower east line of the Richard Martin survey, he adopted the error in length also, and returned this line of the Richard Martin survey as 250 perches long. It is conceded that the south line of the Richard Martin is marked upon the ground, running from the post corner by a pine, its official course, until- it intersects the western. line from its northwest corner. But this corner formed by this intersection cannot affect the southeast corner of the Samuel Lob-dill survey, or determine the south line of the Thomas Billington tract, for this would clearly be extending older surveys in consequence of t£e acts and mistakes of a deputy-surveyor committed in locating a younger survey: Clement v. The Northumberland Coal Co., supra; Carbon Run Improvement Co. v. Rockafeller, supra; Manhattan Coal Co. v. Green, supra. But even if the eleven surveys be considered as having been made in a block, and if the mistake in measuring the lower east line of the Richard Martin survey could lengthen the Samuel Lobdill tract by about 30 perches, it would be unreasonable to continue this error in measurement in such a manner as to extend the Thomas Billington tract 72 perches further south than its official return, and to carry the error of the Martin survey through a whole tier of surveys that were made before the warrant for the Richard Martin had been granted by the Commonwealth.

      T. H. Purdy and S. P. Wolverton, for defendant in error.
    As to the first assignment of error. The question answered by the witness, Abraham Shipman, was the following : “ Look at the map and state, from the examinations you have made, where, in your opinion, the southern line of this block of eleven tracts called the Brush Valley tracts, was located.” This involved no legal proposition, but only required him to state from his experience as an expert surveyor, where the survey originally located the southern line of these tracts. Nor is this an unusual question: Davis v. Mason, 4 Pick. 156; Peterborough v. Jaffrey, 6 N. H. 464.
    Mere abstract opinion is not evidence, but a surveyor, or any other person conversant on the subject, may state facts, and his opinion on those facts, to enable the jury to form a correct judgment of the matter in dispute: Lessee of Forbes v. Caruthers, 3 Yeates 557. A surveyor may state where lie would locate a warrant similar to that under which the party holds : Farr v. Swan, 2 Barr 245.
    As to the second assignment of error. The Brush Valley surveys would contain much less land than was returued by the surveyor, if they were located, as the defendant below contended they should be, by taking the maple sprouts as a monument upon the southern line of the block. All the 'surveyors testified that this corner is eight rods short of the official distance. Counsel for the plaintiff below contended that this corner should be placed forty rods further south, near a swamp, and assigned as a reason for doing so, that the defendant’s alleged location would not only lessen the official quantity of land in the Brush Valley block, but would very greatly increase the quantity contained in the Lefevre block. As bearing upon this question, the plaintiff showed, by the testimony of surveyors, that all the lines run in this block and upon adjoining surveys, where monuments are found, exceed the official lengths given in the returns of surveys. Whether it be the theory of the defendant’s counsel that the southern line should be established by running east and west by these maple sprouts, or by the exact official distance of the survey, this testimony was not only relevant, but also very important. It is well known that an excess was thrown into surveys made about the time these lands were located, and that all the lines upon the ground are found to overrun the official distances. The practice of including a quantity of land, exceeding ten per cent, more than the warrant, called for, was sanctioned by the proprietaries’ land officers, and has been recognised by repeated Acts of Assembly: Layton v. Paull, 5 Watts 465.
    The plaintiff owns the Thomas Billington survey, which is one of a block, i. e., the Brush Yalley block; and the defendant below owns the Lewis Walker survey, also one of a block called the Lefevre block. The question is: Which survey covers the land in dispute? The southern line of the Lefevre block is well marked upon the ground, as also the north line of the Brush Yalley block. In the exact course of the Richard Martin and the Ebenezer Bran-ham surveys, there is a well-marked pine line-tree, counting to 1793. This undoubtedly fixes the line between the Martin and the Bran-ham, and not only that, but it establishes the, whole northern line of the Lefevre block in which the Branhaj® and the Walker surveys are included. By continuing this line westward from the pine line-tree, its official courses and distances, the land in dispute is excluded from the Walker survey. Any other location of this line would distort the figures of the surveys. The result of the location asserted by the defendant below would be, to produce an offset of about thirty perches at the line between the Martin and the Lobdill tracts, where Gray returned a straight line, and also to increase the width of the Walker tract about sixty perches, thus increasing its quantity of land by about eighty per cent.
    ' The pine line-tree between the Branham and the Martin surveys was marked in two places, and may have been marked, according to the testimony of the surveyors, either when the eleven tracts were surveyed, or, possibly, both when the Martin survey was made and again in the same year, when the Lefevre block was located. In either case, it is without question a common line-tree between the Richard Martin tract and the Lefevre block. It is well settled that where surveys were originally made and returned into the land office, as a block, they must be located upon the ground as a block : Hagerty v. Mathers, 7 Casey 355; Darrah v. Bryant, 6 P. F. Smith 69 ; Mathers & Boynton v. Hagarty, 1 Wright 64; Fritz v. Brandon, 28 P. F. Smith 351; Mock v. Astley, 13 S. & R. 382; Hole v. Rittenhouse, 1 Casey 491; Malone v. Sallada, 12 Wright 425.
    The pine line-tree of the Martin survey was clearly adopted for the Lefevre block. Lines marked upon the ground constitute the actual survey and control the return; the defendant is therefore bound by this fixed line marked upon the ground: Hall v. Tanner, 4 Barr 244; Walker v. Smith, 2 Id. 43; McGinnis v. Porter, 8 Harris 80.
    October 4th 1880.
    In locating a junior warrant the deputy-surveyor may adopt the marks of an older survey instead of confusing evidence by making new ones; and when such marks have been adopted, the line of the junior survey is as effectually located as if it had been actually marked upon the ground: Dreer v. Carskadden, 12 Wright 38; Caul v. Spring, 2 Watts 390; Martz v. Hartley, 4 Id. 261; Schnable v. Doughty, 3 Barr 392; McBarron v. Gilbert, 6 Wright 279 ; Bellas v. Cleaver, 4 Id. 267.
    [The Reporter is indebted to the Editor of the Weekly Notes of Cases for this valuable report.]
   Mr. Justice Mercur

delivered the opinion of the court,

When original surveys have been made and returned as a block into the land .office, the location of each tract therein may be proved by proving the location of the block. In ascertaining the location of a tract the inquiry is not where it should or might have been located, but where it actually was located. Every mark on the ground tending to show the location of any tract in the block is some evidence of the location of the whole block, and therefore of each tract therein: Hagerty v. Mathers et al., 7 Casey 348 ; Malone v. Sallada, 12 Wright 425 ; Darrah v. Bryant, 6 P. F. Smith 69 ; Fritz v. Brandon, 28 Id. 351.

This contention is as to the location of a tract surveyed in the name of Thomas Billington. It is one in a block of .eleven tracts, for which warrants issued on the 11th of May 1793. They were all owned by one person. The surveys made by virtue thereof were all returned to the office of the surveyor-general on the 3d of March 1794. The block begins with the Daniel Reese on the west, and ends with the Samuel Lobdill on the east. The official returns show the surveys of the first four, and of the sixth, in order, to have been made on the 2d of October 1793. The return of the Thomas Billington, which tract is the fifth in the block, omits to state the precise date of its survey, further than that it was in 1793. It is, however, fair to presume it was made on the same day as the John Reynolds, on the west, and the Mary Ruston, on the east. The remaining five tracts were surveyed on the day next thereafter. The Richard Martin, which lies east of and adjoining the Samuel Lobdill, was surveyed on the 23d of February 1794, on warrant dated the 22d of the month preceding. The Lewis Walker, under which the plaintiff in error claims, lies south of and adjoining the Thomas Billington, and was surveyed on the 22d October 1794, and return thereof made on, the 23d February following.

Nearly ninety years have passed since the Billington' warrant was located. Time has effaced many marks of the survey. Those which were distinctly visible have, to a considerable extent, become obliterated or destroyed. The location of the northern lines of the Billington tract, and of the block of which it forms a part, is unquestioned. They are found distinctly marked on the ground. The main question is, where was the south line of the Billington tract located ?

The testimony of practical surveyors of large experience in tracing original lines, and especially the testimony of those acquainted with the marks made by the surveyor who located the warrants, was properly admitted. It is true a surveyor must not be permitted to testify as to the legal interpretation to be given to a survey,, yet a practical surveyor may testify whether in his opinion certain marks on trees, pile's of stones, or other marks on the ground were intended as monuments of boundaries : Whart. Ev., sect. 444; Davis v. Mason, 4 Pick. 156; Lessee of Forbes v. Caruthers, 3 Yeates 527; Ormsby v. Ibmsen, 10 Casey 462.

The practical knowledge and experience of the surveyor, whose opinion was asked, are unquestioned. The facts proved were amply sufficient to enable him to form an opinion as to the actual location of the warrant. We will refer to some of them. The official survey of the Thomas Billington calls for a small maple as its southwest corner. Maple sprouts are found at the place claimed by the defendant in error to be the southwest corner of the tract. The original surveys of all these tracts were made by Henry Donnel, acting as a deputy-surveyor. It is shown that the same Donnel in 1814, in running the northern line of the Lewis Walker tract, fixed the line between it and the Thomas Billington to be where it is now claimed by the defendant in error. The official survey of the Richard Martin calls for a white pine tree in its south line. That tree is standing and identified. That warrant was located by the same surveyor, and the return of survey was made three days before the survey of the Billington tract was returned. It calls for the Samuel Lobdill on the west, and the line between the tracts is of the same length in each survey. He had the warrants in his hands at the same time. The location of the latter throws light on the former. The location claimed by the defendant in error for the Billington is not only in harmony with the.block of surveys of which it forms a part, but also with the location of the Richard Martin made by the same surveyor soon thereafter.

Without referring to the evidence more in detail, we think it was sufficient to submit to the jury to find the true location of the tract, and that it was properly submitted by the learned judge. We discover no error in the record.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Philadelphia and Erie Railroad Co. versus Cake.
    1. Where viewers are appointed to assess damages for the construction of.a railroad and the works connected therewith, it is a fatal omission for them not to state in their report that they made any just allowance for the advantage which may have resulted, or may seem likely to result, to the landowner, or that they made a fair and just comparison of the advantages and disadvantages.
    2. Where the damages are grossly excessive the court below may set aside the report of the viewers.
    June 11th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Certiorari to the Court of Common Pleas of Northumberland county : Of May Term 1879, No. 92.
    The proceedings in the court below commenced by a petition for tne appointment of viewers to assess damages to the property of Henry L. Cake, by the Philadelphia & Erie Railroad Company. The case was before this court for review on a previous writ of error. (See Cake v. Philadelphia & Erie Railroad Company, 6 Norris 307.)
    The material facts in the case were as follows:—
    Henry L. Cake being the owner of thirteen contiguous lots, constituting together a square, bounded on the west by Railroad Avenue, and on the east by a street twenty-five feet wide, in the borough of Sunbury, in 1865 and 1866 built five blocks of two houses each on this square, making ten single houses, all fronting on Railroad Avenue. The Philadelphia & Erie Railroad Company, which had been incorporated in the name of the Sunbury & Erie Railroad Company, by an Act of Assembly approved April 3d 1837 (Pamph.L. 470), had constructed their railroad from Sunbury to Erie, and been in daily use” of the road for many years before these houses were built, owned a tract of about forty-two acres of land situate on the east of the above mentioned twenty-five feet street, through which the tracks of their railroad were laid, and upon which their workshops were built. In 1870 the company, requiring an additional siding, constructed-it upon and along this twenty-five foot street, by making an embankment upon it from four to seven feet high, where the east side of the square owned by the defendant in error fronts upon the street, and thereby completely obstructed the street and prevented all passage along it, or to or from the said lots. The company have not reconstructed the said street in any other place. v
    Cake presented his petition to the court below for the appointment of viewers, under the tenth and eleventh sections of the General Railroad Law of February 19th 1849, to assess the damage he had sustained by reason of the embankment in the street on the east front of his said lots. The order of view was issued on the 10th of August 1871, directing the viewers to meet on the premises on the 5th day of September 1871, but on the 1st day of September 1871, the railroad company presented their petition to the court, stating that the petition and order of viewers were illegal and should be set aside. 1. Because no notice had been served on the company of the appointment of viewers or of the time of meeting. 2. That the proceedings were instituted under the General Railroad Law of 1849, which was inapplicable to the company, and that the company was not subject to the provisions of that law, but had a charter of their own, and that the Act of April 14th 1864, providing for the extension of the 10th and 11th sections of the Act of 1849, had not been accepted by the company, but, as they believed, had been repealed by the Act of July 22d 1864 (Pamph. L. 1865, 944). 3. That no authority was given by the charter of the ■ company for the appointment of viewers to assess damages to land not occupied by the company — that the damages asked for are purely consequential, being in consequence of constructing railroad tracks in said public street, and praying for a rule to show cause why the order appointing the viewers should not be set aside and stricken off, and that all proceedings under the same be stayed in the meantime. ' The rule-to show cause was granted, and proceedings were stayed until after argument, when the court discharged the rule, and ordered the viewer’s to meet on the 19th of October 1871. On that day the viewers met, and filed their report with the prothonotary, finding for the petitioner $5600, ■tjith interest from the 29th day of August 1870.
    On the 17th of November 1871, the, company filed exceptions to, and entered an appeal from, the report of the viewers. The seventh exception was : “ Eor that the viewers do not state that in estimating and determining the- damages, &o., they had any regard to or-made any just allowance for the advantages which may have resulted, or which may seem likely to result, to the said Henry L. Cake in consequence of the making or opening of said railroad and of the construction of works connected therewith, nor that they made any fair and just comparison of the advantages' and disadvantages.” These exceptions were argued, and on the 27th of October 1873, the court overruled them, and directed proceedings on the appeal. The entry was, “ October 27th 1873, opinion of the court filed. Exceptions to report of viewers disallowed, and it is ordered that the appeal be proceeded with as directed by the Act of Assembly in such case made and provided.”
    On the 5th of June 1876, a rule to show cause why the appeal should not be stricken off was entered, which, on argument, the court discharged on the 25th of September 1876, and the cause was called for trial on the 1st of October 1877, when the court having charged the jury to render a verdict for the defendant, they found accordingly, on the 3d of October 1877, and judgment having been entered on the verdict, the cause was by writ of error removed to the Supreme Court, and at May Term 1878, the judgment was reversed and the appeal from the report of viewers was stricken off, and the record ordered to be remitted for further proceedings. (See 6 Norris 307.)
    •On the 5th of August 1878, on motion of the petitioner, the court below granted a rule to show cause why judgment should not be entered in favor of the plaintiff and against the defendant, as of the 27th of October 1873, nunc pro tunc, for $5600, with interest from the 29th day of August 1870, &c. This rule was argued, and December 27th 1878, the court entered judgment as follows, viz. : “ The report of viewers is confirmed, except so much thereof as states with interest from the 29th of August 1870, and judgment is entered thereon in favor of plaintiff, and against defendant, for the amount thereof with interest from the date filing the same, October 19th 1871.”
    In an opinion filed, the court, Rockefeller, P. J., inter alia, said:—
    “That hardship and injustice will be the result of the confirmation of this report, I conscientiously believe. That it ought not to be set aside on merely technical, grounds, such as informality in the report, or even substantial errors therein, not excepted to at the time, I have no doubt; but whether it is the duty of the court, or whether it is now in its power to set it aside on the ground of excessive damages, is another matter. I have already stated that I find the fact that the damages are excessive, but after much thought I have come to the conclusion, that under the circumstances, it is not the duty of the court, nor is it now in its power to set aside the report of viewers for this reason. I might, for the sake- of seeing justice done at all hazards, take a different view of this matter if I did not believe the defendant had a full and complete remedy in the Supreme Court if I am wrong. If that court believes injustice has been done, and that this court has refused to interfere on improper principles and mistaken views of the law or of its power, it will do what this court ought to have done. This is asserted on the authority of the case of The Pennsylvania Railroad v. Heister, 8 Barr 448, 453.”
    Judgment was entered for’the plaintiff for $5600, with interest from the date of the filing of the report, October 19th 1871. The company then took this writ, and alleged that the court erred, inter alia, in overruling the seventh exception to the report of the viewers, and in refusing to confirm the report because the damages were excessive.

      H. T. Beardsley, W. C. Packer and J. B. Packer, for plaintiff in error.
    The Act of 1849 requires the viewers to make a fair and just comparison of the advantages and disadvantages, and to have a, due regard to and make a just allowance for the advantages which may have resulted, or which may seem likely to result to the owner in consequence of the making or opening of the railroad and of the construction of works connected therewith : Ohio & Pennsylvania Railroad Co. v. Wallace, 2 Harris 248; Reitenbach v. Railroad Co., 9 Id. 105 ; O’Hara v. Pennsylvania Railroad Co., 1 Casey 445; Zach v. Pennsylvania Railroad Co., Id. 394. A report of viewers, appointed under the fourth section of the Act of 27th March 1848, supplementary to the charter of the Pennsylvania Railroad Company, which omits to state the quality and value of the land taken, is fatally defective, and will be set aside: Pennsylvania Railroad Co. v. Porter, 5 Casey 169 ; Puffenberger v. Susquehanna Railroad Co., 1 Pearson 46; New Castle Railroad Co. v. McChesney, 4 Norris 522. From the court’s own opinion of the excessive damages it should have set aside the report: Pennsylvania Railroad Co. v. Heister, 8 Barr 445. The original act of incorporation of the company of April 3d 1837, invested them with all the usual powers of a railroad corporation, and granted to them “ all the privileges, franchises and immunities incident to a corporation, and such as may be necessary or incident to the making and maintaining .the said railroad.” The eleventh section provides the company “ shall have the power to survey, lay down, ascertain, mark and fix such route or routes as they shall deem expedient for a railroad, with as many sets of tracks as, they may deem necessary from Sunbury by the way of Northumberland and Williamsport by the most eligible route to the harbor of Erie.”
    Clearly the use it now makes of the street is a part of its franchises. It is a liberty granted by the sovereign to its subject, in which the latter cannot now be disturbed except -by the sovereign power. The location of the route, the act on which its franchise rests, and without which the franchise falls, was done under a general authority, and in the exercise of a discretion conferred. To revise and attempt to correct the location, is to interrupt and destroy the franchise itself, and clearly this does not belong to individual right. The act of location was not void, and if voidable, because other ground ought to have been taken, none but the Commonwealth can now call the company to account for it: Cleveland & Pittsburgh Railroad Co. v. Speer, 6 P. F. Smith 325; Clarke v. Bridge Co., 5 Wright 147; Wilmington & Baltimore Railroad Co. v. Williams, 4 P. F. Smith 103; Note to 1 American Railway Cases 166 ; Black et al. v. Phila. & Reading Railroad Co., 8 P. F. Smith 249; N. Y. & E. Railroad Co. v. Young, 9 Casey 175.
    If then the defendant possessed the right to construct this additional track or siding in the fall of 1870, independently of the Act of the 14th of April 1864, such construction should not be regarded as evidential of an acceptance of the act as a part of its charter, and there would be no contradiction in this case of the testimony of the officers of the company to the effect that the said act has never been accepted and that the company has never proceeded under the same for the appropriation of land. If they never did accept it, nor adopt nor act under it, can the company be held liable under it without their consent ? The company’s original act of incorporation (1837) did not contain any reservation to the legislature of the right to alter or amend it. The Act of April 14th 1864 did not relate merely to remedies, or the mode of enforcing existing obligations, duties and liabilities, but is sought to impose additional burdens, by making - the company liable for a large class of consequential damages for which they were not responsible before, and it was, therefore, defendants submit, unconstitutional and void. The right of the supreme legislative power to authorize the building of railroads on a street or other public highway is not now to be doubted : Commonwealth v. E. & N. E. Railroad Co., 3 Casey 354; Danville, Hazleton & Wilkesbarre Railroad Co. v. Philadelphia & Trenton Railroad Co., 6 Whart. 43; Mercer et al. v. Pittsburgh, Fort Wayne & Chicago Railroad Co. et al., 12 Casey 99; Faust et al. v. Passenger Railway Co., 3 Phila. R. 166; Yost v. Philadelphia & Reading Railroad Co., 29 Leg. Int. 85. The legislature only intended to provide against direct damages not consequential; under our charter there can be no consequential damages.
    June 19th 1880.

      J. Adam, Cake and Joshua W. Comly,, for defendant in error.
    The Act of February 19th 1849 was made applicable to the defendant company by the Act of April 14th 1864. No prior acts authorized the company to occupy a street, and if they availed themselves of the Act of 1864 they were liable for damages caused by the embankment. (See 6 Norris 307.) The construction in this case is a mere siding — a part it is true of the railroad to which it is annexed, but still simply an addition thereto, made for the convenience of the company and not within the reason of the law which requires that the advantages and disadvantages of the railroad shall be taken into consideration when land is taken for the construction of the railroad in the first instance: New Castle & Franklin Railroad Co. v. McChesney, 4 Norris 522. The depositions as to the value of the property are not a part of the record, and this court will not examine into exceptions which are founded thereon, and as the opinion of the court is no part of the record, the statements of the court relative to the excessive damages will not on this certiorari be regarded by this court.
   Mr. Justice Paxson

delivered the opinion of the court,

The sixth assignment of error must be sustained. It sets forth that the court below erred in disallowing the seventh exception filed by the defendant. Said exception is as follows.; “ That the viewers do not state that in estimating and determining the damages, they had any regard to or made any just allowance for the advantages which may have resulted, or which may seem likely to result, to the said Henry L. Cake in consequence of the making or opening of said railroad, and of the construction of works connected therewith, nor that they made any fair or just comparison of the advantages' and disadvantages.” That this is a radical defect and an adequate ground for setting aside the report, has been repeatedly decided. It is sufficient for present purposes to refer to Ohio & Pennsylvania Railroad Co. v. Wallace, 2 Harris 245; Reitenhaugh v. The Chester Valley Railroad Co., 9 Id. 100; Zack v. The Pennsylvania Railroad Co., 1 Casey 394; O’Hara & Darlington v. Pennsylvania Railroad Co., Id. 445; The Railroad Co. v. Porter, 5 Casey 165. It is no answer to say that it would be useless to set forth such matters in the report. The law requires it and for sufficient reasons. As was said in Zack v. The Railroad Co., supra, “ The report is to be reviewed by the court; and this can be of no value if no facts be set out in it, unless the court choose to hear the evidence over again. If the facts be not set out and are not required to be, then a review in this court is worth nothing. Besides it is important in reviewing a case tried out of the general course of the law to see what matters have been inquired of, that it may be known that the cause has been fully and rightly considered.”

This disposes of the case and renders a discussion of the remaining assignments unnecessary. It is proper to say, however, that it was the plain duty of the learned judge of the court below, upon his own statement of the case, to have set aside this report. He says in his opinion : “ The evidence shows and I find as a fact that the damages found by the viewer's are grossly excessive.” Notwithstanding this finding, he entered judgment upon the report upon a mistaken idea that he had no power to set it aside, and sent the case up to this court with what amounts to an invitation to us to do what he omitted to do. All this, however, appears only in the opinion of the court which forms no part of the record. How far we would be justified in looking at it when the court below has declined to exercise its discretion from an erroneous view of its power, and has sent up its opinion for the very purpose of showing us its reasons for declining to act, and to invite our review of its ruling, it is not essential riow to decide. We reverse the case upon the grounds previously referred to.

The judgment is reversed, and the report of the viewers set aside.


author: Mr. Justice Green

text:
    Brice’s Appeal.
    1. Where one who is a stranger to an obligation pays the debt in whole or in part, in the absence of evidence to the contrary, he becomes by implication the purchaser of the debt to the extent of his payment.
    2. Where a debt is secured and a stranger Voluntarily pays the same, it is prima facie a purchase of the debt and the accompanying security, and is determined by the manifest intentioü and understanding of the parties at the time.
    3. F. becoming in default on a bond secured by a mortgage given for his indebtedness, B. voluntarily paid several instalments of interest and a portion of the principal, it being verbally understood that he was to be reimbursed out of the mortgage, F. afterwards made an assignment to B. for the benefit of creditors, and a scire facias having issued on the mortgage, a judgment was recovered for the full amount of principal and interest from the time when F. first defaulted. B., as assignee, paid to the mortgagee the balance actually due to him, and in his account as assignee credited himself with the full amount of the judgment and costs. Gr., a judgment-creditor,
    ■ excepted to that portion which B. had voluntarily paid before the assignment. Held, that evidence of the verbal understanding was sufficient proof of the purchase of the mortgage by B., to the extent of his payments, and no written transfer was necessary to create in him said interest therein. There is no reason why a partial interest could not be thus acquired by a partial payment, in the same manner as an entire interest by an entire payment.
    4. The fund arising from the sale of real estate by the assignee amounted to 816,535. Held, that in the absence of any especial trouble, two and one-half per eent. commissions were properly allowed.
    June 11th 1880.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Northumberland county: Of May Term 1879, No. 95.
    Appeal of A. N. Brice, assignee for the creditors .of John W. Filling, from the decree of the court on exceptions to his account and to the report of the auditor thereon.
    On January 4th 1877 John W. Filling and wife made an assignment for the benefit of creditors to said appellant, Brice. On the 14th of November 1877 said assignee presented a petition to the court for an order of sale of the real estate of Filling, divested of liens. By virtue of the order this real estate was sold for $16,535, and on June 17th 1878 the assignee filed his account of the proceeds of the sale. W. I. Greenough, a judgment-creditor of Filling, who had obtained his judgment previous to the assignment, excepted to the following items of the account:
    “ Cash to Mary Smith for mortgage on farm as confirmed by court, $5109.10.
    * % * * * * if:
    “Percentage due to accountant as assignee, $16,535, at four per cent., including time, trouble, &c., $661.40.”
    The account was referred to an auditor, T. H. Purdy, Esq,, Before Mm, in regard to the first item, the follorving testimony was given: Mortgage of John W. Eriling to Mary Smith, dated January 1st 1874, for $4000, and record of judgment of Mary Smith against John W. Eriling in the Common Pleas of Northumberland county, August Term 1877, obtained upon the scire facias issued sur this mortgage.
    George W. Zeigler then testified: “I was attorney for Mary Smith to collect this judgment from J. W. Eriling. The money was paid to her and she entered satisfaction on the judgment and mortgage. The full amount was not paid to her. My impression is that there was $4106 paid when I took the judgment. I took it for face of the mortgage and the interest, $4093.33. I knew there was not that much due, but could not get the amount, and so I took judgment for the full amount of debt and interest. When she entered satisfaction she got the whole amount that was due to her at that time; she did not claim the balance of the judgment. Mr. Brice, at that time, exhibited receipts for money that he had' individually paid, which reduced the judgment to $4106. I don’t know whose money Brice used. Mr. Brice is a son-in-law of J. W. Eriling.”
    Brice, the assignee, testified: “ In the mortgage to Mrs. Smith of $4106 I had paid her that much in satisfaction of the judgment entered on said mortgage. I had made advances to make up the difference between this sum and the credit in my account of $5109.10. When the first payment came due of the interest on $4000, which was $240, Mrs. Smith demanded her interest of Mr. Eriling. He could not raise it and she came to me. I raised her the $240 and paid her. On January 21st 1875, I paid her $100. On January 25th 1875,1 paid her $137.75. These two payments, including $2.25 for corn furnished by J. W. Eriling, made up the $240. H. Y. Eriling owed me for other matters, and the $2.25 was put into that account. Mrs. Smith gave notice that she wanted at least $200 on the principal by the 1st of April 1875. Mr. Eriling did not have it to spare. I gave her on or about the 1st of April 1875 $100. On the 7th of April 1875 I gave her my check for $89.08 on account of the principal of the mortgage. There was a lumber bill of Eriling, Bowen & Engle of $10.92, which was due by Mrs. Smith to them, which was counted in a settlement I had with Friling, making up the sum of $200 on the principal of the mortgage. The next payment Eriling failed to pay ; it came due in January 1876. Mrs. Smith came to me and said she would push the mortgage if she did not get the interest. I made a calculation of the interest due on the 2d of September 1876, and it amounted to $269.18 on that day. I drew my check in her favor for that amount, on account of interest on the mortgage, up to that date. I am mistaken as to the time up to which .the interest was calculated. It was calculated up to Majch 1st 1876, although I paid her after that $150 in checks and money, to wit, April 6th 1877, check for $25; April 26th 1877, check for $25; another check dated November 19th 1877 for $50. The balance of the $150 being $50, was in money at different dates ; I cannot state exactly when.’’ (The above checks offered 'in evidence.)
    Witness being asked how he was to be secured for the several advancements above mentioned, answered: “I was to be repaid out of the mortgage. They were simply advancements on the mortgage. These payments were out of my own individual fund; I was not reimbursed in any other way by Mr. Friling. I paid these several sums to Mrs. Smith at my office. She did not threaten so much, but talked of issuing it if she did not get her money. I did not pay money to Mrs. Smith.for Mr. Friling, on any other account than the mortgage. I did not take from Mrs. Smith a written transfer of any part of the bond and mortgage of J. W. Friling to her, for any of these payments. She did not assign to me any part of the said bond and mortgage as security for these payments. I had no arrangement with J. W. Friling for this security. He knew that I was to be secured in this way. It was a verbal understanding; there was nothing written. * * * Mrs. Smith asked me how I wanted to be secured for the payment of this money. I replied I was to be secured out of the mortgage1. She said ‘ very well, then, I don’t want to see you lose the money advanced.’ Mr. Friling said something like that in her presence. He had no security then to give. This conversation took place at one of the two payments at which he was present.”
    Relative to this credit for the amount paid on the mortgage the auditor reported: The auditor is therefore of the opinion and finds from the evidence, that the accountant, A. N. Brice, was not in any position of compulsion to make these advances, but that they were voluntary .advances of money upon the credit of and for the purpose of assisting Mr. Friling, and that there was no transfer of any portion of said mortgage, such as would entitle him to claim any part of the fund arising from the sale of the farm. * * * This item of the account must then be so corrected as to strike therefrom the amount of money claimed as a credit for advancements made in behalf of Mr. Friling before the date of the deed of assignment; and to give said assignee credit for the amount of» money actually paid by him in that behalf as assignee after .the assignment was made; and as the evidence shows that the sum of $709.18 was so advanced before the date of the deed of assignment, that amount must be stricken from the credit side of the account, leaving the actual credit in this item $4399.92, instead of $5109.10.”
    As to the second item excepted to he reported: “ The auditor finds no strict rule of law to govern the compensation of trustees or assignees. All depends upon-the amount of v-exation, time and trouble bestowed or incident to the settlement of the estate. The percentage does seem to be large, but as no evidence was produced to show how much time and trouble was bestowed, andas the estate seems to have been a troublesome one, the auditor does not feel at liberty to reduce it.”
    October 4th 1880.
    Brice excepted to the finding of the auditor as to the first item, and Greenough as to the second item. The court, Elwell, P. J. (holding a special court), dismissed the exceptions filed by Brice, and sustained those filed by Greenough “ as to one and a half per cent, commission on $16,535,” and in other respects confirmed the report. Brice then took this appeal, and alleged that the court erred in this action.

      S. P. Wolverton, for appellant.
    The auditor struck from the credit side of the account $709.18, as having been advanced prior to the assignment, thereby reducing the judgment that amount. There is no question about Brice having paid this money, intending that 'the mortgage should remain as a security for such advancements in good faith. There is no intimation of any fraud or collusion in obtaining the judgment for the full amount $4903.33. The judgment having been obtained adversely, it is submitted that =the auditor had no power to open the judgment and make the deduction. This-was, in effect, inquiry into the validity of the judgment in a collateral proceeding : Appeal of Second National Bank of Titusville, 4 Norris 528. Not only had the auditor no power to open the judgment, but no issue would have been ordered by the court, as there was no allegation of fraud or collusion. But why should the advancements made by Brice before the assignment be treated as payments on the mortgage, and not entitled to its lien to protect such advancements ? What obligations were there on the part of Brice to pay anything on account of either the principal or interest of this mortgage? If there had been any obligation to pay, it might be construed to be an extinguishment of the debt to the amount of the payment, but as there was not, there is a presumption that it was a purchase, and that he did it on the strength of the security of the mortgages: Lithcap v. Wilt, 4 Phila. R. 64; Wilson v. Murphy, 1 Id. 106; McCall v. Lennox, 9 S. & R. 304 ; Weston’s Lessee v. Mowlin, 2 Burr. 969 ; Wentz v. DeHaven, 1 S. & R. 367; Johnson v. Hall, 3 Johns. Cas. 329; Ricket et al. v. Maderia, 1 Rawle 328; 1 Hilliard on Mortgages 243, 253.

      Joshua W. Comly, for appellee.
   Mr. Justice Green

delivered the opinion of the court,

We think the first assignment of error is sustained. It appears upon the face of the auditor’s report and by the testimony returned with it, that certain moneys, amounting in the aggregate to $709.18, had been paid by the assignee prior to the assignment directly to Mary Smith, the holder of the mortgage against Friling, the assignor. Other payments were made by the assignee after the assignment, in full discharge of the judgment on the mortgage, and for these credit was allowed to the assignee. But the payments made before the assignment were not allowed. The auditor seems to have been influenced mainly by the consideration that there was no written transfer of any portion of the mortgage by Mrs. Smith to Brice, and that there was a transfer of other assets to Brice by Friling to secure him for the payments made to Mary Smith on her mortgage, and against certain liabilities he had incurred for Friling. He does not state whether anything was realized by Brice from the transfer of the book account that could or would be applicable to the repayment of the moneys paid on the mortgage. In the absence of any testimony or finding to that effect, it is fair to presume that Brice obtained no indemnity from that source. On the question whether there was any agreement or understanding by which Brice was to be secured for such payments, there was testimony which does not appear to have.been contradicted in any manner. A. N. Brice testified as follows : I had made advances to make up the difference between this sum ($4106) and the credit in my account of $5109.10.” Mr. Wolverton asks Mr. Brice how he was to be secured for these several advancements. Answer: “I was to be repaid out of the mortgage. They were simply advancements on the mortgage. These payments were not of my own individual fund. I was not reimbursed in any other way by Mr. Friling. * * * I had no arrangement with J. W. Friling for this security. He knew that I was to be secured in this way. It was a verbal understanding; there was nothing written. * * * Mrs. Smith asked me how 1 wanted to be secured for the payment of this money. I replied I was to be secured out of the mortgage. She said ‘ very well, then, I don’t want to see you lose the’money advanced.’ Mr. Friling said something like that in her presence. He had no security then to give.”

This testimony was in no way contradicted or impeached, and is therefore to be accepted as true. The conclusion of the auditor was not a finding of fact adverse to the testimony, but a conclusion of law, holding it to be insufficient to create any interest in the mortgage or the debt secured thereby. In that conclusion, as well as in the opinion of the court to the same effect, we think there was error. There was no pretence of any kind of fraud or collusion on the part of Mr. Brice in making the payments or in taking credit for them in his account. On the contrary, the argument is that he did not take sufficient care of his interests by procuring a written transfer of a part of the mortgage corresponding with his payments. If a writing were necessary in order to create in him an interest in the mortgage, the decision of the auditor and court below would be right. But it has been frequently held that a written transfer is not necessary to accomplish that result. In Lithcap v. Wilt, 4 Phila. 64, it was held that “ the essential difference between the purchase of a debt and the payment of it, depends upon the intention of the parties at the time; but the payment by a stranger to the obligation, of the debt, or by one whose liability was secondary, is prima facie a purchase.” In Wilson v. Murphy, 1 Phila. R. 106, the court say, “ There is no doubt that a mortgage may be kept alive even after payment in full, if such was the intention of the parties, and even though there be no actual assignment to a trustee. Equity will consider that as done which was agreed to be done, and not' suffer the trust to fail for want of a trustee.” In McCall v. Lennox, 9 S. & R. 304, Tilghman, C. J., says: “An assignment of the debt carries with it the benefit of the mortgage, although the mortgage be not specifically assigned. From the moment the debt is assigned the mortgagee becomes the trustee of the assignee.” In the same case Gibson, J., said: “Chancery will order a security to be assigned in favor of a surety who has paid it.” And Duncan, J., said: “ Whatever will give the money will carry the estate in the land along with it. The estate in the land is the same thing as the money due upon it. * * * The assignment of the debt or forgiving it will draw the land after it as a consequence. It would do it though the debt were only given by parol: Weston’s Lessee v. Mowlin, 2 Burr. 969.” And again, “the debt being paid or in any other manner extinguished, the mortgagee becomes a trustee for the mortgagor.” In Johnson v. Hall, 3 Johns. Cas. 329, Kent, J., said: “ When the note to secure which the mortgage was given was negotiated, the interest in the mortgage, which was given for no other purpose than to secure that note, passed of course. It required no writing, no assignment on the back of the mortgage.” * * * “ Whoever was owner of the debt was likewise owner of the security.” In Rickert v. Madeira, 1 Rawle 328, Rogers, J., says: “ Whatever will give the money secured by the. mortgage will carry the mortgaged premises along with it. The forgiving the debt, although by parol, will draw the land after it as a consequence.”

It has been many times decided that a mortgage may be transferred by parol, and that when given to secure notes payable ,to bearer, the holder is the equitable owner of the mortgage. Whoever pays the debt for the mortgagor'is the equitable owner of the mortgage. See 1 Hilliard on Mortgages 243, 253.

We think the authorities cited show that when one who is a stranger to the obligation pays the debt in whole or in part, in the absence of evidence to the contrary, he becomes by implication a purchaser of the debt to the extent of his payment. In the present case Brice was an entire stranger to the debt due by Friling to Mrs. Smith. He was under no kind of obligation to pay it. There is no affirmative testimony that when he made the payments he thereby intended to extinguish the indebtedness to that extent. This lack of testimony would alone qualify him to be regarded as a purchaser. But the case is stronger than that. The testimony already quoted, contradicted by no one, shows that he at least intended to be secured by the mortgage given to secure the debt upon which the payments were made. When he testified, “I was to be repaid out of the mortgage. They were simply advancements on the mortgage;” and “Mrs. Smith asked me how I wanted to be secured for the payment of this money, I replied I was to be secured out of the mortgage. She said ‘very well, then, I don’t want to see you lose the money advanced,’ a clear case of concurrent assent is made out between Brice and the mortgagee to treat the payments as the, acquisition of an interest, and not as on absolute extinguishment. Certainly if he had paid the entire debt he would have become the equitable owner of the mortgage, and could have compelled its transfer to himself. We see no reason why a partial interest could not be acquired by a partial payment in the same manner as an entire interest by an entire payment. In equitable contemplation it is the fact of payment which creates the interest, and this controlling fact has the same effect in principle whether the payment be partial or entire. When Mrs. Smith brought suit on her mortgage she claimed, and took judgment for, the whole amount of the mortgage and interest, without any deduction for the payments made by Brice. This was in apparent conformity with the understanding testified to by Brice, and adds strength to the other affirmative testimony on that subject. She was then the legal owner of the mortgage and judgment to the extent of the amount remaining due to her, and the trustee for Brice as to the amount paid by him. This being so, Brice was entitled to credit for the whole amount of the judgment and interest paid by him, and the auditor and court below were in error in rejecting the credit for $709.18 paid prior to the assignment.

As to the second error assigned, we do not, in view of all the circumstances of the case, see any sufficient reason for interfering with the action of the court below in regard to the compensation of the accountant, and this assignment is not sustained.

Decree reversed and record remitted, with direction to the court below to allow the accountant credit for the full sum of five thousand one hundred and nine dollars and ten cents ($5109.10) paid to Mary Smith at the same time and in the same manner as appears in the original account of the assignee, the costs of this appeal , to be paid by the appellees.


text:
    Creveling versus Wood & Leman.
    O., a manufacturer of railroad and bar iron, wrote to W. & L.: “ In reply to your application to be appointed, selling agent for the Glendower Iron Works, I will agree to appoint you my selling agent for the sale of my railroad iron, merchant bar and muck bar, for New York and eastern markets, ju'ovided you will agree to exert yourselves to keep the mill employed, and give me the preference and refusal of all orders that may come to you. Ini compensation for such service I will agree to allow you a commission, on all sales of railroad.iron and muck bar in your district, of one and one-half per cent. (1-jj, out of this percentage you to pay all extra commissions to other brokers.” On'the same day W. & L. wrote on the face of thi& letter, “ Terms and conditions of this agreement accepted.” W. & L. negotiated a sale of 4500 tons of rails to a railroad company, but only 646 tons were delivered, as the company through its embarrassments was unable to pay for moro. W. & L. claimed to recover commissions on the whole 4500 tons, and in a suit therefor the court below instructed the jury that the right of the plaintiffs to compensation did not depend upon the quantity of railroad iron delivered, but upon the amount which was sold through the agency of the plaintiffs; that if the latter brought the defendant and the purchaser together, and “ there was an act of sale or purchase passing from one to the other, the one agreeing to do and the other accepting, this constitutes a sale so far as the agent employed is concerned, who when he has gained' the mutual assent of the minds of the person who desires to purchase and of him who desires to sell, has then performed what he agrees to perform, and has earned his percentage.” Held, that this was error; that plaintiffs wore not acting in the capacity of brokers of the defendant, but as agents to sell under a special agreement, and that the sales contemplated in said agreement were actual sales in a commercial sense and not more contracts to sell.
    June 11th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Montour county: Of May Term 1880, No. 44.
    Assumpsit by George R. Wood and Benjamin B. Leman, partners, under the name of Wood & Leman, against Alfred Creveling, to recover commissions for the sale of certain railroad iron.
    Creveling, who is a manufacturer of railroad iron and other bar iron at the Glendower Iron Works in Danville, Pennsylvania, on the 19th of July 1877, appointed Wood & Leman, who were then iron brokers in the city of New York, his agents for New York and the eastern markets. His contract with them was made in New York, by the following letter and acceptance of terms, viz :
    “New York, July 19th 1877.
    Messrs. Wood & Leman,
    Gentlemen:
    In reply to your application to he appointed selling agent for the Glendower Iron Works, I will appoint you my selling agent, for the sale of my railroad iron, merchant and muck bar for New York and eastern markets, provided you will agree to exert yourselves to keep the mill employed, and give me the preference and refusal of all orders that may come to you. In compensation for such service, I will agree to allow you a commission, on all sales of railroad iron and muck bar in your district, of one and one half per cent. (1§), out of.this percentage, you to pay all extra commissions to other brokers. In the event of any sales being made through the instrumentality of C. M. Schott, then it is agreed, that the commission of (1-J) per cent, shall be equally divided between yourselves and him. Commission to be allowed only on the net price at the mill. Commission on all merchant bar in the same district sold to be seventy-five cents per ton. This agreement to continue in force until annulled by giving sixty days notice to either party.
    Yours, &c.,
    A. Crevelins.”
    Wood & Leman accepted these terms by writing upon the face of this letter, “New York, July 19th 187†. Terms and conditions of this agreement accepted. Wood & Leman and the agreement continued in force until the 20th of February 1878, when it was terminated by a written notice for that purpose from Creveling to Wood & Leman served on the 20th December 1877.
    While Wood & Leman were the agents of Creveling, they introduced him to William S. Williams, a director and agent of the Covington, Columbus and Black Hills Railroad Company; and considerable negotiation then took place between Creveling, assisted by Wood & Leman on the one side, and Williams on the other, in regard to the manufacture of railroad iron by Creveling and its sale to the railroad company. Creveling made an offer in writing, dated September 4th 1877, to furnish 4500 tons of railroad iron of the therein specified weight, lengths and quality and of the pattern agreed upon; not less than 200 tons to be delivered at Chicago per week, at $34.50 per ton, provided the freight would not exceed $4 per ton, each 200 tons to be paid for on delivery, and presentation of invoice and bills of lading to W. S. Williams, 26 Pine Street New York. Proposition to be accepted on or before the 20th of September 1877. On the 20th of September 1877 Wood & Lea-man made two copies of a memorandum of an agreement between Creveling and the railroad company, which they called “bought and sold notes,” which differed from Creveling’s offer among other things, in requiring that 300 tons should be delivered each week, and in stipulating that the payments should be made by drafts on Williams payable three days after sight. They, sent one copy to the president of the railroad company to be signed by him, and the other to Mr. Creveling for his signature. The latter refused to assent to these changes in the contract, but interlined the copy of the memorandum sent to him, so as to make it correspond to his proposal of September 4th 1877, and signed it thus altered, and sent it to Wood & Leman. They gave it to Williams and received from him the copy signed by the president of the railroad company as drawn by them, Wood A Leman, and without being altered so as to correspond with the copy signed by Creveling; and, by letter dated the 8th of October 1877, stated to Creveling that the changes would have to be sent to Sioux City for formal acceptance, but that Williams said he should go on and commence making rails, as the company must have 2000 tons-before winter. Creveling commenced making the rails which he charged to Williams at $30.50 per ton delivered at Danville. He delivered 646 tons, the last of which was delivered before the 5th of November 1877, and he was paid for this iron each week for the amount then delivered, by means of sight drafts on Williams, which the latter paid. Creveling made some 300 tons more but before they were delivered, viz. on the 10th of November 1877, he was directed by Wood & Leman, at the instance of Williams, to withhold drafts and shipments, until he, Williams, should return from Chicago. It was then discovered that the railroad company was embarrassed and could not pay for any more rails, and no more were made for them, the 300 tons on hand being sold to other parties.
    At the trial before Elwell, P. J., the plaintiff submitted the following point, to which is subjoined the answer of the court.
    The court are requested to charge the jury that if they find from the evidence that Wood & Leman effected a sale of 4500 tons of railroad iron for the defendant, to the railroad company, and bought and sold notes were exchanged between said Creveling and said company evidencing said sale, the plaintiffs thereupon became entitled under the provisions of the agreement between-them and the said Creveling, of the date of July 19th 1877, to their commissions on the net amount of said sale — that is, on the pricé of the iron at the defendant’s mill in Danville, and are entitled to recover the same in this action unless the said commissions have been paid by the defendant or released by plaintiffs for a sufBcient consideration.
    Ans. “I affirm that point as the law of the case.”
    The first point of the defendant with the answer of the court was as follows:
    That under the written contract of July 19th 1877, by -which the plaintiffs became the selling agents of the defendant, the plaintiffs are not entitled to charge a commission on the price of 4500 tons of railroad iron agreed to be made by the defendant for the railroad company, but only on so much of said railroad iron as was actually sold by the defendant to the said railroad company — that is, under the evidence in this cause, on the iron made and delivered to the said company or its agent.
    'Ans. “I decline to affirm that point. In what I have already said in the general charge it is apparent to you that the law is, as we hold it to be, that the right to compensation does not depend upon the amount of railroad iron delivered, but upon the amount which was sold through the agency of the plaintiffs.”
    In the general charge the court, inter alia, said :
    “ The contract in, this case is evidenced by a writing dated on the 19th of July 1877, signed by one party and an acceptance written upon it by the other. * * * There is a passage in it which I would like to refer to, however. On the part of the defendant it was proposed to the plaintiffs in the words following: ‘ In compensation for such service (after stating what the service was), I will agree to allow you a commission on all sales of railroad iron and muck bar iron in your district of one and one-half per cent.; out of this percentage, you to pay all extra commissions to other brokers.’ That phraseology requires us, in construing this contract, to ascertain what is meant by the words, ‘ all sales of railroad iron.’
    “ Where technical terms are used, they are to have the interpretation given by law to the particular word, unless there be something in the character or nature of the contract which would really control the general significance of. a technical term, but we are to consider the relative situation of the parties and the subject-matter of the contract, in order to understand what. the parties meant; for it is their intention which is sought for in giving construction to a writing. Where they have in express and clear terms indicated and put upon record their whole meaning, it is not open to construction because it speaks for itself. But in many instances it is necessary to consider facts and circumstances, the relation of the parties and the subject-matter of the .contract, in order to understand what the parties have meant by the terms which they have used. As applied to the business of an iron broker, an agent in a city who sells a large amount of property like railroad iron, a question arises whether the word ‘ sale’ is to be considered in its technical sense, as the transfer of an article existing at the time in a shape capable of being handed over directly and immediately to the purchaser, or whether it relates to the transfer of the future produce of the vendor. What is generally understood in cases of that kind ? Suppose a man who has a large dairy agrees in the spring of the year to sell the product of his farm, his entire dairy, how would that be understood ? that it was a sale of each and every particular cheese, and would amount to no sale "unless there were cheeses then existing ? True, it would not pass the title to the particular article at the time of making the contract; but if one man should employ another to make a sale of his dairy for him, promising him (say) a hundred dollars if he -would do so, when this employee has brought a purchaser, accepted by the dairyman and their contract is complete, I apprehend, according to the usual understanding and common parlance, a sale has been effected, at least so far as regards the agreement between the dairyman and his agent. Such is my understanding 'of the word ‘sale’ used in this contract.’

      “[I hold, therefore, that if the jury find that a contractivas made, a purchaser was found for Creveling for the product of his mill, that Creveling and this purchaser were brought together by their writings, that there was an act of sale or purchase- passing from one to the other, the one agreeing to do, and the other accepting, this constitutes a sale so far as the agent is concerned; who, when he has gained the mutual assent of the minds of the person who desires to purchase, and of him who desires to sell, then performed what he agreed to perform and has earned his percentage. No responsibility rests- upon the broker, acting as an agent, for the solvency of the purchaser to whom his employer has contracted to sell. No stipulation as to delivery is binding upon him after the contract. In fact, without improperly inter-, fering, he could do nothing more than to accomplish the sale satisfactorily to his employer.”]
    Verdict for plaintiffs for $1442.54; and after judgment thereon defendant took this writ and alleged that the court erred in the answers to the above points (2d and 3d. assignments), and in the portion of the charge in brackets. (1st assignment.)

      Grier & Hinckley and Joshua W. Comly, for plaintiff in error.
    Wood & Leman were simply agents to sell iron for Creveling. He designated them as agents in his letter. They are not governed by the law of real estate brokers. The letter shows that the understanding of the contract was that commissions wore only to be paid for iron sold and paid for. They were to receive commissions on actual sales, not on contracts for sales. A sale in law is a contract by which the property is passed. Here only 646 tons were delivered.

      Hdward H. Baldy cf Son, for defendants in error.
    Wood & Leman were iron brokers, and when they had brought the parties together and found for Creveling a purchaser for 4500 tons of rails, and Creveling had sold the same, their duties were at an end, and they were entitled to their commissions on the 4500 tons: Story on Agency, sect. 28 ; 2 Kent’s Com. 622, 4th ed.; Keys v. Johnston, 18 P. F. Smith 42; Inslee v. Jones, Bright. Rep. 78. It was not intended that Wood & Leman should join the duties of factors with that of brokers. They were employed as brokers only. They were employed to sell, not to deliver, or do any other act in reference to the execution of the contract. When they had made a sale and disclosed their principal, their whole duty was done, When the principal is disclosed, the broker is no longer authorized to alter the terms of the contract on the ground that the moment a sale is made he is functus officio; Long on Sales

      June 19th 1880.
   Mr. Justice Paxson

delivered the opinion of the court,

The radical error of this case is to be found in that portion of the charge embraced in the first assignment of error, and involves the construction of the letter of the defendant .below to the plaintiffs under date of July 19th 1877. The plaintiffs having accepted the terms of said letter by an endorsement thereon, we must look to it as embodying the agreement of the parties. The effect of iwas to make the plaintiffs “selling agents ” for the defendant for the sale of his “railroad iron, merchant and muck bar for New York and eastern markets,” upon certain conditions therein named, and for an agreed compensation “ on all sales.” Under this appointment the plaintiffs alleged that they had sold forty-five hundred tons of iron for the defendant to the Covington, Columbus & Black Hills Railroad Company. A contract in writing between the defendant and the railroad company was prepared for the sale of said iron, the due execution of which was, however, denied by the defendant. This point we regard as unimportant. The defendant delivered six hundred and forty-six tons of iron to the company, when a further compliance with the contract on his part was prevented by the inability of the company to make payments. The plaintiffs claimed a right to recover commissions on the whole forty-five hundred tons; the defendant denied any liability beyond the six hundred and forty-six tons.

The learned judge instructed the jury that the right of the plaintiffs to compensation did not depend upon the quantity of railroad iron delivered, but upon the amount which was sold through the agency of the plaintiffs; that if the plaintiffs brought the defendant and the purchaser together, and “ there was an act of sale or purchase passing from one to the other, the one agreeing to do, and the other accepting, this constitutes a sale so far as the agent employed is concerned, who, when he has gained the mutual assent of the minds of the person who désires to purchase, and of him who desires to sell, has then performed what he agrees to perform, and has earned his percentage.” This is in almost the language of Inslee v. Jones, Bright. R. 76, and Keys v. Johnston, 18 P. F. Smith 42, in which it was held that “ brokers are persons whose business is to bring buyer and seller together; they need have nothing to do with the negotiation of the bargain.” This language was applied in a case where a real estate broker had brought suit to recover his commissions. If the present claim had been by a broker for commissions on the sale of real estate, the ruling of the court would have been accurate. But this was a case of merchandise, and the plaintiffs were not acting in the capacity of brokers of the defendants. They were agents to sell under a special agreement. The sales contemplated in said agreement were actual sales in a commercial sense, not mere contracts to sell. A sale is a transfer of the absolute title to property for a certain agreed price. It is a contract between two parties, one of whom acquires thereby a property in the thing sold, and the other parts with it for a valuable considerationStory on Sales, sect. 1. There was no sale -here beyond the six hundred and forty-six tons. There was a mere contract to sell. The iron was not even made. If the plaintiffs were entitled to commissions on the contract to sell, they had earned commissions on the entire forty-five hundred tons the moment the contract was entered into. No claim, however, was made for commissions on the undelivered iron until after the matte* fell through by reason of the inability of the purchaser to pay. This portion of the claim was evidently an afterthought. The parties to the agreement regarded it as a contract for commissions on actual sales. On the 15th of December 1877, more than a month after the last iron had been delivered, the plaintiffs sent to the defendant their bill for services to that time, in which they claimed one and a half per cent, on the six hundred and forty-six tons delivered, and made no claim for percentage on the residue of the forty-five hundred tons. The construction placed upon their agreement by the parties themselves at the time they were acting under it, was the proper one. There can be no recovery for commissions on the forty-five hundred tons beyond the amount actually sold and delivered.

What has been said covers the first, second and third assignments and renders the fourth unimportant.

Judgment reversed, and a venire facias de novo awarded.