text:
    Knoll versus Light et al.

    1. Plaintiff owned land above defendants’ dam, which ordinarily did not back the water on plaintiff’s land; in latter years a peculiar grass commenced growing in this dam about February of each year, which obstructed the water, and in consequence it flowed back on plaintiff’s land; about June the grass broke off and ceased to impede the current. The court below charged that if accumulations of dirt, &c., in the dam caused the growth of the grass, the defendants would be liable as if the obstruction had been caused by dirt, &c., alone; but if the grass would have grown to the same extent and caused the same injury, &c., in the channel if there had been no dam or accumulation of dirt, &e., he would not be liable. Held to be correct.
    2. If the growth of the grass was not occasioned by any act or negligence of the defendants, and was the result of natural causes over which he had no control, he would not be liable for injury therefrom to the plaintiff, although the obstruction was on the defendants’ own land.
    3. There is no liability for an injury arising from natural causes oran act of Providence, if there be no concurring negligence.
    4. The plaintiff, if injured by the grass, had the right to enter upon defendant’s land and remove it. Per Pearson, P. J.
    May 19th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Labanon county: Of May Term 1873, No. 58.
    This was an action on the case,, commenced0August 9th 1870, by Isaac Knoll against John Light, Henry Light and Cyrus Light, for nuisance in swelling water back on the plaintiff’s land.
    The cause was tried November 14th 1871, before Pearson, P. J.
    The plaintiff owned a tract of land on the Quitapahilla creek in Lebanon county; below this tract, the defendants owned iron works; the pool of the dam of the works covered an area of between 30 and 40 acres ; the dam is about a mile and a half in length, and the breast is a mile and three-quarters below the plaintiff’s line. The dam was built one hundred years or more ago; the fall from the head of the dam to the breast is but 6J feet. Eight .or ten years before bringing this suit a peculiar kind of grass commenced growing in the dam, especially in the channel of the stream; the grass would appear about February and March in each year, attain its full growth sometime in the month of June, the stem break off at or near the roots and would shortly afterwards disappear. During the time of its existence the water would be obstructed and flow back on the plaintiff’s land and injure his meadow. His allegation was that the grass grew in the dam by reason of dirt, &c., which the defendants permitted to accumulate in it: that if this were not so, still as the grass grew upon the defendants’ land and obstructed the flow of the water to the injury of the plaintiff, it was the duty of the defendants to remove it.
    The defendants alleged the growth of the grass was a natural and spontaneous growth, not occasioned by an accumulation of dirt, &c., in the dam and did not arise from any neglect or omission of duty on their part; but that it was the act of God and therefore involved them in no responsibility as to keeping the channel clear from it.
    The plaintiff and defendants both submitted points.
    In answer to the points and in the general charge the court instructed the jury in substance, that if the obstruction to the flow of the water arose from the accumulation of dirt, &c., in the defendants’ dam; or if the grass grew or was permitted to remain by any neglect of the defendants, they were liable; but if the growth was the result of natural causes, without any negligence on the part of the defendants, they were not liable.
    The facts of the case, the points made by the parties, and the rulings in the court below, are stated in the opinion of the Supreme Court: no further statement of them is therefore deemed necessary.
    The verdict was for the defendants, and the plaintiff took a writ of error assigning the rulings of the court below for errors.

      W. M. Derr and A. R. Boughter.

    A riparian owner is liable for injury from an overflow of water arising from the filling up of a dam, without regard to what produced the filling: Schuylkill Nav. Co. v. McDonough, 9 Casey 73; Addison on Torts 138, 157. An act of God is an inevitable accident without the intervention of man; something in opposition to act of man: Forward v. Pittard, 1 T. R. 33; Simmons v. Norton, 7 Bingham 639; Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 Rawle 9; Roush v. Walter, 10 Watts 87; Bacon v. Arthur, 4 Id. 440.

      J. Bunch, for defendants in error.
    A riparian owner is no.t bound to keep the stream through his land clear from obstructions which do not come there through his fault: Kemmerer v. Edleman, 11 Harris 145. The upper owner has the right to enter on the land of the lower owner to remove injurious obstructions from the stream : Kauffman v. Griesemer, 2 Casey 413 ; Prescott v. Williams, 5 Metc. R. 425; Prescott v. White, 21 Pick. 341; Washburn on Easements 225, § 17.
   Mr. Justice Williams

delivered the opinion of the court, October 12th 1874.

A brief statement of the facts of this case and the substance of the charge may aid us in comprehending the precise questions presented by the record. The plaintiff is the owner of a farm on Quittapahilla creek, and, for the last ten or twelve years, about three acres of the meadows, bordering on the creek, have been overflowed from the month of March until the middle of June. The defendants are the owners of a forge and mills propelled by water-power, situate on the creek a mile and three-quarters below the plaintiff’s land. The dam by which their water-power is supplied was built about one hundred years ago, and, in ordinary stages of the water, does not throw water back so as to flood the plaintiff’s meadow. The pool formed by the dam is a mile and a half long, with a fall of only six and a half feet in its entire length, and' covers an area of thirty or forty acres. Sometime about the year 1862 a peculiar kind of grass began to grow in the pool and along the channel of the creek, and has since continued to grow every year. It springs up in February or March, grows rapidly to the length of ten or twelve feet — coming to the surface of the water, however deep it may be — and grows so close and thick as to obstruct the flow of the water and swell it' back upon the plaintiff’s land. It.arrives at maturity in June, and then breaks off from the roots and ceases to obstruct or impede the current. In 1863, the grass growing in the pool was mowed by the property-owners along the the creek, when the water. directly fell to its former level; but since that time it has not been cut, and during the season of its growth the plaintiff’s land has been more or less overflowed. The evidence on both sides shows that the overflow was occasioned by the grass growing in the pool; but whether its growth was caused by deposits of dirt-and debris which the defendants had allowed to accumulate in the pool, or was the result of natural causes over which they had no control, was a matter of dispute at the trial, in regard to which the evidence was conflicting. The court charged that “ if the jury believe that the accumulations of dirt, filth and debris in the dam cause the growth of this grass, the defendants are responsible to the plaintiff for the injury to his meadow by the backing of the water, in the same manner and to like extent as they would be if the accumulations of dirt, &c., directly flowed back the water. But if the grass would have grown to the same extent and caused the same injury in the natural channel of the stream, if there had been no dam, or no accumulation of dirt, then the defendants are not responsible.” * * * . «if the grass would have grown in this channel so as to dam back the water and- flood plaintiff’s meadow, if no artificial impediment had been there, the defendants are not responsible merely because the growth was on their land. If there was no neglect of the pool, no improper accumulation of dirt therein, which caused the growth of this vegetable, although the same grows stronger and thicker in consequence of the depth and stillness of the water, yet the defendants would not be answerable therefor.” * * * “The jury must bear in mind that this dam was a lawful structure, for useful and proper purposes, built on the parties’ own land, and they are only answerablé for injuries arising from their acts or neglect. If the improper accumulation of dirt in the dam caused the growth of the grass, the defendants must remove both, however expensive or difficult it may prove.” * * * “It is for the jury to consider whether this grass would have grown and choked up the stream if the dam had not been there. If such would have been the case, the defendants can scarcely be considered culpable, unless the dirt increased its growth. If the stream is choked by the spontaneous growth of this grass, we have no doubt of the plaintiff’s right, and that of all other property-holders-injured, to enter on the land of the defendants and remove the obstruction to the flow of the water and thus abate the nuisance.” * * * “It is for the jury to determine from the evidence whether the grass would have choked the stream independent of the dam.” * * * If you find a verdict in favor of the plaintiff, however small, it will oblige the defendants to remove the grass so as to prevent the flow of the water on the plaintiff’s meadow. This you must do regardless of consequences if you believe the defendants’ negligence caused the growth of the grass. * * * “ The defendants will thenceforth be obliged to keep the dam clear of that impediment to the flow of the water, and thus the nuisance will be abated. The duty to remove the grass, which is a spontaneous growth of nature, depends on whether it grows on account of any negligence of the defendants in permitting the dam to become dirty and impure from the accumulation of dirt and debris as already mentioned.” This is- the -substance of the instructions as given in the charge, and the answers to the points are m strict conformity therewith. The jury were told, in answer to the plaintiff’s second point, that, if in consequence of the accumulation of dirt in defendants’ dam the grass grew to such an extent as to injure the plaintiff’s meadow, it was the duty of the defendants to remove the grass from their dam so as to permit a free flow of the water, and for the failure to do so, he can recover damages to the extent of the injury sustained, unless the jury are satisfied that the grass would have grown and choked the stream if no dam had been there. And in answer to the defendants’ first point, they were told that for the injury resulting to the plaintiff from the grass growing in the dam and stream, the defendants are not responsible if the jury believe it resulted from natural causes, and was not produced directly or indirectly by the agency of the defendants. Under these instructions the jury found that the growth of the grass was not caused by accumulations or deposits of dirt and debris in the pool, or by any act or default of the defendants, but was the result of natural causes, over which they had no control, and that it would have grown and obstructed the channel if there had been no dam there. Why, then, should the defendants be liable for the injury resulting from the overflow occasioned by the grass ? If its growth was not caused'by any act or negligence of the defendants, why should they be responsible if it choked up the stream and caused it to flow back on the plaintiff’s land ? But it is contended that it is immaterial what caused the growth of the grass, or whether it would have grown if there had been no dam. The question is not, say the plaintiff’s counsel, would the grass grow in the stream if the dam, was not there; but would the grass growing in the stream, if the dam was not there, obstruct the stream so as to swell the water back on the plaintiff’s meadow ? And they strenuously insist that this question should have been left to the jury, and that the court erred in not submitting it to their determination. The answer to this contention is twofold. In the first place the court was not asked to submit the question. It is not presented or suggested in any of the points upon which instructions were prayed for; and it is not error for the court to omit to charge upon any possible aspect of the facts, especially when uninvited by the party complaining: Kauffman v. Griesmer, 2 Casey 407. But in the second place the court did in fact submit the question to the'jury when they were told that “ if the grass would have grown to the same extent and caused the same injury in the natural channel of the stream, if there had been no dam, or no accumulation of dirt, then the defendants are not responsible.” Again: “If the grass would have grown in this channel so as to dam back the water and flood plaintiff’s meadow, if no artificial impediment had been there, the defendants are not responsible merely because the growth was on their land.” And the court emphasized these instructions when it afterwards said: “ It is for the jury to consider whether this grass would have grown and choked up the stream if the dam had not been there.” And still more pointedly: “It is for you to determine from all the evidence whether the grass would have choked the stream independently of the dam.” There-is then no foundation for the complaint that the attention of the jury was not called to the question, whether the grass growing in the stream, if the dam was not there, would obstruct the stream so as to swell the water back on the plaintiff’s meadow. This very question, in substance, was put to the jury and they answered it affirmatively. The reason is obvious. The testimony of all the witnesses, including that of the plaintiff'himself, shows that the overflow was occasioned by the grass growing in the pool and channel of the stream. The fact that as soon as the grass comes to maturity, and breaks off from the roots, it no longer keeps the water back or impedes its flow, is conclusive that it was the grass growing in the pool that occasioned the overflow. If it was the dam that caused the grass to obstruct the stream, why did the overflow cease as soon as the grass was severed from the roots ?

But it is further insisted that, under the evidence and the law of the case, the court should have given an unqualified answer to the plaintiff’s third and fourth points. In the former, the court was asked to charge that if the jury believe that the grass growing in defendants’ dam caused the overflow of plaintiff’s meadow, then the plaintiff can recover. And in the latter, that if the jury believe that the grass growing in the dam was the cause of the overflow of the plaintiff’s meadow, and that the grass might, by mowing off the same, or by any other device, have been removed annually, even at great expense, and thus prevent the flooding of plaintiff’s meadow, defendants were bound to do so, and, in default thereof, the plaintiff can recover -to the extent of his injury. There is no suggestion in either of the points that the growth of the grass was occasioned by any negligence of the defendants, or that the overflow would not have occurred if it had not been for the dam. Both points assume that the grass growing in the pool of the dam was the cause of the overflow, and the duty of removing it, or paying for the injury which it occasioned, is predicated of the fact of its growing in the pool irrespective of the cause' of its growth. But if its growth was not occasioned by any act or negligence of the defendants, if it was the result of natural causes over which they had no control, why should they be responsible for the injury which it occasioned, or why should it be their duty to remove it ? If both parties were without fault, why should not the loss which it occasioned be borne by the plaintiff on whom it fell ? It cannot be pretended that there is any liability at eommon law for an injury which happens exclusively from natural causes. If there is no concurring negligence, there can be no liability for a loss occasioned by an act of Providence: Bell v. McClintock, 9 Watts 119. But the defendants wmre guilty of no negligence if the grass grew without any fault on their part. If, then, the flooding of plaintiff’s land was caused by the grass growing in the pool of defendants’ dam, and if, as the jury have found, its growth was the result of natural causes, not superinduced by any act or negligence of theirs — if it would have grown and choked up the stream and forced the water back on plaintiff’s meadow, if there had been no dam, the defendants are not responsible for the injury which it occasioned. This was the doctrine of the charge, and it was clearly right.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Wharton versus Douglass.
    1. Where evidence is offered as a whole and part of it is inadmissible, it is not error to reject the whole.
    2. A written instrument may be modified by parol as to wbat passed between the parties at its execution in cases of fraud, mistake or trust.
    3. Without proof or allegation of fraud, the terms of a promissory note cannot be changed or contradicted by parol evidence.
    4. In an action of debt on a promissory note, evidence is not admissible; under the plea of ‘‘nil debet’’ and “ set-off,” that the plaintiff was indebted to the defendant on partnership accounts.
    5. Anspach v. Basi, 2 P. I?. Smith 356; Hill v. Haw, 4 Barr 493 ; Bussell v. Miller, 4 P. B. Smith 154; Sennett v. Johnson, 9 Barr 335, followed.

      May 20th 1874.
    Before Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Huntingdon county : Of May Term 1874, No. 17.
    This was an action of debt, brought December 31st 1869, by W. H. Woods, P. M. Bare, John Bare, and D. W. Woods, “for Samuel Douglass,” against' H. S. Wharton. The defendant pleaded “Nil debet and payment with leave,” ahd afterwards added the plea of set-.off. Subsequently, on motion of the attorney for the plaintiffs, the style of the plaintiffs was changed to “ Samuel R. Douglass, holder.”
    The cause of action was the following note :—
    “ Huntingdon, Feb. 28th 1865.
    “ Sixty days after date I promise to pay W. H. Woods, P. M. Bare, John Bare, and D. W. Woods, or order, one thousand dollars, without defalcation for value received.
    “H. S. Wharton.”
    (Endorsed)
    “ John Bare,
    D. W. Woods,
    W. H. Woods,
    P. M. Bare.”
    This note afterwards became the property of P. M. Bare alone, and about April 1869 he transferred it to Douglass, in part - payment of endorsements by Douglass for him, he being at that time insolvent.
    The case was tried April 23d 1873, before Dean, P. J., when the foregoing facts appeared by the evidence.
    The defendant testified that the note had been given on Bare’s verbal promise to deliver to plaintiffs one share of the stock in the Porter Island Oil Company; he received one dividend and paid two assessments; he got a certificate of stock some time after-wards.
    The defendant then made the following offer:—
    “ That at the time this note was given, P. M. Bare, from whom Douglass, the plaintiff, received it, and H. S. Wharton, defendant, were partners in the hoop-pole and stave business; that Bare came to Wharton’s office at Huntingdon and requested Wharton to purchase a share in the Porter Island Oil Company, at the price of one thousand dollars; that Wharton was averse to purchasing; that Bare stated to Wharton he (Bare) was largely indebted to him (Wharton) in their partnership in the hoop-pool and stave business, and that Wharton could safely give his note at sixty days for the $1000, and pay the same out of the amount due from Bare in the partnership transactions in the hoop-pole and stave manufactory ; that Wharton only signed and delivered the note on Bare’s assurance that he would hold it, and present it as so much due from Wharton in the settlement of their partnership accounts; that Bare did hold it until after maturity, and then transferred it to this plaintiff, to be followed by evidence that on a 'settlement of their partnership accounts Bare is indebted to Wharton in a sum greater than the amount of this note, and that at the time it was given he (Bare) was so indebted.”
    The offer was overruled, the court saying:—
    “ The pleas in this case are nil debet and payment with leave: assuming that defendant could give evidence of set-off under this plea, yet to establish his right to a set-off he must show that on a settlement of the partnership accounts of ‘Bare and Wharton,’ a balance is due him from Bare. He admits that these partnership transactions are long and complicated, and have never been settled finally. Whatever may be his remedy, or whatever may be the relief he is entitled to, he cannot obtain it under the plea of payment in this action. The equities of partners, the condition of their accounts, the rights of partnership creditors, would all have to be considered and determined in this case, before defendant’s right to set-off could be ascertained. There is an appropriate form, of action in which this can be done, but it is not this one; the evidence is therefore excluded.”
    A bill of exceptions was sealed for the defendant.
    The court charged:— * * *
    “Defendant alleges, and plaintiff does not deny, that the note was transferred after maturity. This being the case, defendant further alleges that plaintiff took it subject to all the equities existing between the parties to it at the date of the transfer; that P. M. Bare is the real payee in the note; that he conducted the negotiations which resulted in the making and delivery of it; that after it was delivered, and before being transferred to plaintiff, Bare became the actual owner of it. * * *
    “ We have ruled out the evidence relating to the alleged set-off or equitable defence, and it is not before you; the evidence of want or failure of consideration, is insufficient — fails to show want of consideration. This opinion of ours takes from your consideration the only disputable fact between these parties. The amount of the note, with interest to this date, it is conceded, is $1497, and for this amount we instruct you to render a verdict for plaintiff.”
    The verdict was for the plaintiff for $1497. '
    The defendant took a writ of error.
    He assigned for error:—
    2. The rejection of his offer of evidence.
    8, 4, 5. The charge of the court.

      8. T. Brown, for plaintiff in error.
    A note taken after maturity is subject to the objections which might be made to it in the hands of the payee: Bower v. Hastings, 12 Casey 288; Hughes
      v. Large, 2 Barr 103. The transfer of an over-due note will not defeat an agreement for set-off: Oulds v. Harrison, 24 L. J. Exch. 66; Collenridge v. Farquaharson, 1 Starkie 269. Parol evidence of acts and declarations of the parties at and about the time of the execution of a writing, is admissible to affect the contract, &c.: Rearich v. Swinehart, 1 Jones 238 ; Miller v. Fichthorn, 7 Casey 252.

      It. B. Petrihen (with whom was W. II. Woods), for defendant in error.
    Parol evidence was not admissible to contradict the written contract contained in the note: Anspach v. Bast, 2 P. F. Smith 356; Hoare v. Graham, 3 Camp. 56; Moseley v. Hanford, 10 B. & C. 729; Woodbridge v. Spooner, 3 B. & A. 233 ; Mason v. Groff, 11 Casey 449; Hill v. Gaw, 4 Barr 493 ; Martin v. Berens, 17 P. F. Smith 493. The offer involved the settlement of a partnership account, which could be settled only in account render, and therefore could not be inquired into under a plea of set-off: Sennett v. Johnston, 9 Barr 337; Russell v. Miller, 4 P. F. Smith 164; Roberts v. Fitler, 1 Harris 266; Hughes v. Large, 2 Barr 104.
   Mr. Justice Mercur

delivered the opinion of the court, October 5th 1874.

The record shows no fact of which to predicate the first assignment of error. It must therefore be disregarded.

The second assignment is to the rejection of the evidence covered by the bill of exceptions. The evidence was offered as a whole, and rejected as a whole. Hence if any part of it was inadmissible, there was no error in rejecting the whole: Sennett v. Johnston, 9 Barr 335. It is sometimes a little difficult to determine whether parol evidence should be received to contradict or vary the terms of a written instrument. It may be modified by parol evidence of what passed between the parties at the time of its execution, in cases of fraud, mistake or trust. Without proof or allegation of fraud, it has frequently been held that such evidence is not admissible to change or contradict the terms of a promissory note: Hoare et al. v. Graham, 3 Camp. 56; Moseley, Assignee, v. Hanford, 10 B. & C. 729; Free v. Hawkins, 8 Taunt. 92; Hill v. Gaw, 4 Barr 493; Anspach v. Bast, 2 P. F. Smith 356.

In the absence of fraud, the first part of the offer is in conflict with these cases; but the latter part is more clearly inadmissible. It involves an inquiry into many and complicated partnership transactions. That this cannot be done in this form of action is well settled: Sennett v. Johnston, supra; Russell v. Miller, 4 P. F. Smith 164. The learned judge was entirely correct in rejecting the evidence. We see no error in the record; therefore,

Judgment affirmed.

Mr. Justice Sharswood dissented.


author: Mr. Justice Williams

text:
    Trimbath et ux. versus Patterson et al.

    1. It. is essential in proceedings under the Landlord and Tenant Act of April 3d 1830, that the jurisdiction of the justice should be shown affirmatively on the record.
    2. The act does not authorize proceedings against a tenant for life or in fee under a perpetual lease, but the jurisdiction under it is limited to a demise for years or less period.
    3. It is fatal to the justice’s proceedings, if the record does not show the term for which the premises were demised.
    4. The omission to ascertain and determine the amount of rent in arrear and endorse the same on the writ of possession is error.
    5. It is error to issue a writ of possession on the day judgment is entered, the act prohibiting it from being issued within five days after judgment.
    6. McDermott v. Mcllwain, 25 P. P. Smith 341, adopted.
    May 20th 1874.
    Before Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Blair county: No. 22, to May Term 1874.
    The proceedings in this case were under the Landlord and Tenant Act of April 3d 1830, Pamph. L. 187, 2 Br. Purd. 884, before a justice of the peace, to recover possession of premises alleged to have been demiséd,for non-payment of rent.
    The justice’s docket entry was as follows: — •
    Landlord and tenant case before E. McKiernan, one of the justices of the peace in and for the county of Blair. “Edward Patterson, Anderson Patterson, Deceased, heirs, v. Edward Trimbath, per his wife, Jane.
    “April 26th 1873. Plaintiff appears and complains on oath, according to law, that there was leased to Jane Kinney, now intermarried with Edward Trimbath, reserving rent a certain house and lot of ground, situate on the north side of Front street, in the town of Williamsburg, and numbered in plan of said town No. 11, and now occupied by the said Edward Trimbath, and Jane his wife, which said premises is and has been the property of the said plaintiff and Anderson Patterson, deceased, since the fourth Monday of April, A. D. 1865, which said rent is in arrears and unpaid, and that there are not sufficient goods and chattels on the premises to pay and satisfy the said rent, except such as are by law exempt from levy and sale; and that the lessees havej after being notified according to law, refused to remove from and deliver up possession of the said premises. Same day summons issued to constable of Woodberry township, returnable Saturday, May 3d 1873, at one o’clock R. M. Returned; served personally on defendants, by reading and contents, April 26th 1873; answers constable; and now, May 3d 1873, plaintiff and Edward Trim-bath appear, and defendant says they claim by purchase from A. Patterson.
    “ A. Patterson sworn. Plaintiff produces a deed for the said premises from Essington Hammond, dated the 28th day of December 1872. Whereupon, on hearing, the said justice finds that the above or within complaint is in all particulars just and true, and enters judgment against said defendants; that they shall deliver actual possession of the said premises to the plaintiff.
    “ Writ of possession issued to the constable of Woodberry township, returnable May 13th 1873. Writ of possession taken up May 6th 1873.”
    The writ of possession recited the proceedings before the justice and concluded:—
    “Therefore, we command you, the said constable, judgment having been entered by our said justice against the said Edward Trimbath, and Jane his wife, forthwith to deliver actual possession of the said premises to Edmund Patterson, the lessor, and we also command you that you levy the costs endorsed hereon on the goods and chattels of the said Edward Trimbath, and Jane his wife. And hereof fail not and of your proceedings herein, together with this writ make return to our said justice, within ten days, to wit, on or before 13th day of May, instant.”
    The writ was endorsed:—
    “ Writ of Possession: E. Patterson v. Edward Trimbath and wife. Served notice on defendants May 6th 1873. Fee 40 cents.
    “ James D. Allenüer, constable.”
    The defendants removed the proceedings into the Court of Common Pleas by certiorari, and took a number of exceptions to the justice’s proceedings.
    The exceptions were there overruled and the proceedings affirmed, and an habere facias posséssionem issued to deliver possession to “E. Patterson and A. Patterson’s heirs.”
    The defendants removed the record to the Supreme Court, and there assigned for error:—
    2. The justice had no jurisdiction of the case when it appeared that the possession was claimed by Jane Trimbath, under title from Adolphus Patterson.
    3. 'The complaint and inquisition do not show that the occupants were tenants of the plaintiff, or of any other person from whom he derived title.
    4. The record does not show when or by whom the premises were let.
    5. The record shows a recovery of the entire possession at the suit of one tenant in common.
    6. The judgment against Jane Trimbath is void, having been rendered without her appearance, and without a verification of the return of service by the oath of the constable.
    7. The justice did not ascertain and determine the amount of rental due.
    8. The complaint and inquisition does not disclose the nature of the tenancy, the amount of rent payable, the commencement of the term, nor the date and length of notice to quit.

      S. S. Blair, for plaintiffs in error.
    The jurisdiction under the landlord and tenant laws is special, and the record of the magistrate must contain every essential to support it. Nothing can be taken by intendment: Grivins v. Miller, 12 P. F. Smith 133; Fahnestock v. Faustenauer, 5 S. & R. 178. The complaint must allege that the premises were let by the plaintiff to the defendants: Yund v. Yanvleet, 2 Phila. R. 41.

      H. M. Baldridge, for defendants in error.
    The mere claiming of the possession under a purchase by parol from Adolphus Patterson would not oust the jurisdiction of the justice: Essler v. Johnson, 1 Casey 350. It is not required by the statute that the complaint shall expressly state that the premises were let by the plaintiff: McKeon v. King, 9 Barr 213. The delivery of possession to Edmund Patterson was a delivery to all of the plaintiffs. A substantial compliance is all that is required: Snyder v. Carfrey, 4 P. F. Smith 90; Buchanan v. Baxter, 17 Id. 350; Buckmyer v. Dubs, 5 Binney 31.
   Mr. Justice Williams

delivered the opinion of the court, July 2d 1874.

The main question in this ease was decided in McDermott v. Mcllwain, 25 P. F. Smith 341. It was there ruled, for reasons which need not be repeated, that it is essential to the validity of proceedings under the Landlord and Tenant Act of April 3d 1830, Pamph. L. 187, to obtain possession of demised premises for the non-payment of rent, that the jurisdiction of the magistrate should be affirmatively shown by the record. The act does not authorize proceedings against a tenant for life, or in fee under a deed of perpetual lease; but the jurisdiction which it confers is limited to the case of a demise for years, or for a less period, and therefore it is a fatal defect if the record does not show the term for which the premises were demised. In the case before us the record does not show that the complainants, or any one under whom they claim title, demised the premises to Mrs. Trimbath, nor does it show that they were demised to her for a term of years or a less period, and consequently there is nothing on the face of the record showing that the magistrate had jurisdiction of the proceedings.

The omission to ascertain and determine the amount of rent actually due and in arrear, and endorse the same on the writ of possession, was clearly an error. The act requires this to he done in order that the tenant may, if he sees fit, supersede the writ by paying to the constable, for the use of the lessor, the amount of the rent together with the costs of the proceeding. And it was a flagrant error, though not assigned as such, to issue a writ of possession on the day the judgment was entered, in face of the provision that no writ of possession shall be issued for five days after rendition of judgment. There is nothing of substance in the other assignments that call for special notice or discussion. The want of jurisdiction is fatal to the whole proceeding, and, if the demise was in fact for a term of years, the defect in the record is irremediable.

The judgment of the court below is reversed, and the proceedings of the justice of the peace are set aside at the costs of the complainants, the defendants in error.


author: Mr. Justice Gordon

text:
    Houck et al. versus Ritter.
    1. A wife made a deed for real estate which she owned, her husband not joining in it; his consent, not given in the manner and form required by the statute, was of no effect and after her death he could recover the land as tenant by the curtesy.
    2. Evidence that the grantee of the wife held a note against the husband, which was given to her as the consideration for the land, was inadmissible in ejectment for the land by the husband after the wife’s death.
    3. Johnson v. Fritz, 8 Wright 110, remarked on.
    May 20th 1874.
    Before Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Huntingdon county: No. 15, to May Term 1874.
    This was an action of ejectment, brought September 9th 1872, by John G. Ritter against John Houck, Martin Houck, and John Snyder, for lot No. 10, in the borough of Petersburg.
    On the trial, April 25th 1873, before Dean, P. J., the plaintiff gave in evidence a deed dated March 18th 1852, from the then owners of the lot to Rebecca A. Ritter, who was the wife of the plaintiff.
    The plaintiff testified that he had been married in 1851 to Rebecca A. Ritter; that a child was born of the marriage in 1852, and that his wife died in 1863.
    On cross-examination, he testified that James Wall, a brother of his wife, had to pay for plaintiff two notes amounting to $1100 ; that Wall had the property from plaintiff and his wife “ on rent,” and so held it at the time of the wife’s death, and ever since.
    The defendants made the following offers of evidence:—

      1. That at the time of the marriage in 1851, and for years afterwards, the plaintiff was without means, and that his wife Rebecca, under the will of her father, had received about $1000, and that the purchase-money of this house and lot was paid by her out of her separate estate.
    2. That afterwards her brother, James Wall, as bail for her husband, paid over $1100 of his own money, which money was wholly received and used by the husband for his own benefit.
    3. That the plaintiff, after Wall became liable for him, gave Wall a note for the amount of his indebtedness, and that on the 31st of December 1860, Mrs. Ritter, with the consent and acquiescence of her husband, conveyed by deed, in the execution of which her husband did not join, the lot in dispute to James Wall, and that, as the consideration thereof, with the consent and approval of her husband, the note of the plaintiff was delivered by Wall to Rebecca Ritter, plaintiff’s wife.
    4. That in pursuance of this conveyance, Wall took possession of the house and lot, and held it peaceably from the date of the conveyance in 1860 until he conveyed the same, March 6th 1872, to John Houck, the defendant, who is now in possession; and further, that before this suit was brought, Ritter, the plaintiff, called upon Wall and demanded more money for the property.
    These offers were objected to by the plaintiff, rejected by the court and several bills of exception sealed.
    The court charged:— * * *
    “ These facts are not disputed: — the title and possession of the wife; her marriage to plaintiff; the birth of a child, and her death.
    “ The plaintiff claims the right to the possession of the lot as tenant by the curtesy consummate: the possession of the land of his deceased wife during his life.
    “The plaintiff is entitled to a verdict, unless there be that shown on the other side which rebuts this prima facie case.
    “ The defendants have offered in evidence a deed by Rebecca A. Ritter to James Wall, the vendor of defendants, dated the 31st of December 1860, for the lot described in the writ; this deed is executed by Mrs. Ritter, after her marriage with plaintiff, and he does not join in it. A deed by a married woman, in which her husband does not join, in Pennsylvania passes no estate. The defendants, to avoid this legal obstacle to their right to possession under this deed, have offered evidence from which it is claimed this plaintiff is in equity estopped from denying that the deed of his wife passes his estate by the curtesy. [Assuming the facts to be as defendants propose to prove them, they are not sufficient to defeat plaintiff’s right to recover; substantially the offer is to prove that plaintiff obtained from his wife and used for his purposes the consideration-money received by her for the land; but this does not estop him from alleging in this suit his right to the possession, and we therefore instruct you to render a verdict for plaintiff for the land described in the writ.”]
    The verdict was for the plaintiff.
    The defendants took a writ of error. They assigned for error the rejection of their offers of evidence and the part of the charge in brackets.

      T. P, Qremer (with whom was R. M. Speer), for plaintiffs in error.
    The offers of evidence being to raise an equitable estoppel, they should have been admitted: Johnson v. Fritz, 8 Wright 449 ; Hamilton v. Hamilton, 4 Barr 193. The debtor should not keep both land and money: Leshey v. Gardner, 3 W. & S. 319 ; Wilson v. Bigger, 7 Id. 111; Moody v. Vandyke, 4 Binney 40 ; Maple v. Kussart, 3 P. F. Smith 352; Smith v. Warden, 7 Harris 430. Although a deed be void, yet if the plaintiff accepts part of the purchase-money, he is estopped from alleging anything against it: Stroble v. Smith, 8 Watts 280; Adlum v. Yard, 1 Rawle 163. Even married women may be estopped by their acts and declarations : McCulloch v. Wilson, 9 Harris 436; Glass v. Warwick, 4 Wright 140.

      S. S. Blair (with whom was R. B. Petrihen), for defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, October 12th 1874.

The offer of the defendant was not sufficient to raise the question of estoppel as against the plaintiff, and hence was properly rejected.

The assent or consent of the plaintiff to the execution of the deed by his wife, unless given in the manner and form required by the statute, amounted to nothing. We cannot see that the case was helped by the offer to prove that the woman was induced to take, in lieu of money, a note upon her husband, for the note belonged to her as much as the cash would have done, had it been paid; and so far as he was concerned — as has been well said by the judge who tried the case — there was merely a change of creditors. In the case of Johnson v. Fritz, 8 Wright 449, it was proved that the husband actually received part of the purchase-money paid to his wife, and hence it was held that he was estopped from claiming his curtesy in the land. For my own part, I think this case carries the doctrine of estoppel quite as far as it should go; nevertheless, did the offer come within this ruling, it would determine the question in favor of the plaintiff in error; but it does not. There is nothing in the offer which proposes to show that the plaintiff derived any benefit whatever from the sale, and we cannot presume that he did.

The note, if not paid during her life, would, at her death, form part of her estate, and as such, be the subject of distribution, either under her will or under the intestate laws, as the case might be; but it does not follow that in either event he would be a beneficiary. Judgment affirmed.


text:
    De Witt’s Appeal.
    1. Runk gave Harris a mortgage to secure a bond of same date; the condition of the bond was recited toiidem verbis in the mortgage; on the margin of the bond was written: “ Mortgage bond. See U. S. stamp on mortgage." After recording this mortgage, Runk gave another to Miller. After-wards Harris sued Runk on the bond and filed in the suit an exact copy of the bond (including the marginal memorandum) as her claim; she obtained judgment in this suit against Runk, and assigned it on the record to Shoemaker; she afterwards entered satisfaction on the record of her mortgage; “ satisfaction" was noted also on the mortgage index of her mortgage. Afterwards De Witt took an assignment of the Miller mortgage. In the distribution of the proceeds of the sheriff’s sale of Runk’s land, Held, that- the transfer of the judgment carried the mortgage with it; the lien of the judgment was carried back to the date of the recording of her mortgage, and the entry of satisfaction being void as to the assignee of the judgment, De Witt was postponed to Shoemaker.
    2. The assignment was a fraud on the assignee of the judgment; the subsequent mortgagee was not prejudiced by it, and could not be benefited by it.
    3. The lien of the Harris mortgage remained after the entry of satisfaction as before; Miller as subsequent mortgagee was in no better or worse position than she was before.
    4. A copy of the bond on which the judgment was obtained being filed in the suit, showed sufficient to put De Witt upon inquiry as to the mortgage; he had therefore constructive notice that it was for the same debt as the mortgage and that the entry of satisfaction was void.
    5. If a judgment is founded on a statutory lien or. a mortgage-debt, its lien relates back to the date of the lien of the claim or the mortgage.
    6. Hartz v. Wood, 8 Barr 471 ; Moore v. Cornell, 18 P. R. Smith 320, followed.
    May 21st 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Appeal from the Court of Common Pleas of Dauphin county: No. 44, to May Term 1874. In the distribution of the proceeds of the sheriff’s sale of the real estate of Elizabeth S. Funk and C. S. Funk her husband.
    After the payment of uncontested liens, $397.74, the balance of the proceeds of sale were paid into court, and Robert Snodgrass, Esq., appointed auditor to report distribution.
    The claimants for the fund were Wallace De Witt and John J. Shoemaker.
    On the 1st of June 1869, Mrs. Funk and her husband made a bond to Keziah E. Harris as follows:—

      Q ¡z¡ O M P3 0 0 E-) P3 O “ Know all men by these presents, that we, Elizabeth S. Funk and Christian S. Funk, of Halifax, Dauphin county, Pa., are held and firmly bound unto Keziah E. Harris, of Upper Paxton, Dauphin' county, Pa., in the sum of $1400, good and lawful money of the United States, to be paid to the said Keziah E. Harris, or to her certain attorney, executors, administrators or assigns. To which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, and every of them, firmly, jointly and severally by these presents. Sealed with our seal, and dated the first day of June, in the year of our Lord 1869. “ The condition of this obligation is such, that if the above bounden Elizabeth S. Funk and Christian S. Funk, their heirs, executors, administrators, or any of them, shall and do well and truly pay, or cause to be paid, unto the above-named Keziah E. Harris, or to her certain attorney, executors, administrators or assigns, the just and full sum of $700 in manner following, to wit: $100 July 1st 1869; $100 August 1st 1869; $100 September 1st 1869; $100 ~ October 1st 1869; $100 November 1st 1869; $100 December 1st 1869; and the remaining $100 January 1st 1870, without fraud or delay; then the above obligation to be void and none effect, or else to be and remain in full force and virtue. • E. S. Funk, [l. s.] C. S. Funk, [l. s.]” © <} © P3 © & © <4 EH l=> m 02
    Endorsed — “ Mortgage-bond for ~ "
    On the same day they executed to Keziah Harris a mortgage on a farm belonging to Mrs. Funk, to secure the payment of this bond, which was recited in the mortgage and the condition set out in totidem verbis. The mortgage was recorded July 6th 1869.
    On the 13th of July 1869, the same Mrs. and Mr. Funk executed and delivered to Margaret Miller a mortgage on the same property to secure the payment of $750. This mortgage was recorded July 15th 1869.
    To November Term 1869, Keziah Harris instituted an action of debt in the Court of Common Pleas of Dauphin county, and on the 15th of December filed a statement and copy of the bond as above given. The statement was as follows:—
    “ This suit is brought to recover the amount of a certain bond entered into by defendants to the plaintiff in this case, a copy of which is hereto attached and made part of this statement, and plaintiff avers that no part of the same has been paid, wherefore plaintiff demands judgment for the amount thereof against defendants.”
    On the 11th of April 1870, a judgment was confessed by the defendants to the plaintiff in the suit for $484, and on the same day this judgment was assigned on the record to John J. Shoemaker. On the 17th of March 1871, Keziah E. Harris entered on the record satisfaction of the mortgage to her, and on the indexes in the recorder’s office both of mortgagors and mortgagees, the mortgage was marked “satisfied.” In December 1871, Slargaret Miller assigned her mortgage to Wallace De Witt, Esq.
    The auditor, amongst other things, reported:— * * *
    “ Mr. De Witt alleges that at the time he purchased this mortgage he examined the records and found the satisfaction referred to entered on Mrs. Harris’s mortgage, that he also found the judgment in her favor entered April 11th 1870, but had no knowledge that they represented the same debt. He therefore claims that he was a purchaser without notice; that as to him the Harris mortgage was extinguished by the satisfaction, and that Shoemaker cannot now avail himself in this distribution of the mortgage-security, but must be confined to the lien of his judgment, and consequently postponed to Mrs. Miller’s mortgage. The correctness of this position depends upon the validity of the satisfaction of the Harris mortgage, and this presents the matter in controversy between the parties.
    “ As between Keziah E. Harris and her assignee, it is not contended that the satisfaction is of any binding effect. The assignment of the bond carried with it the mortgage-security and all the rights of the assignor under it. After assigning the bond, Mrs. Harris could n.ot by any act of her own wipe out and destroy the security for its payment. So also as between Mrs. Harris or her assignee and Margaret Miller, the satisfaction is equally inoperative. The Harris mortgage was recorded nine days before that of Mrs. Miller, and at that time the position of the latter on the record became fixed. It was subsequent to the lien of the Harris mortgage, and Mrs. Miller could not obtain any superior rights or in any way advance the lien of her mortgage by taking advantage of the fraud of Mrs. Harris upon her assignee, and if Mrs. Miller could not set up the satisfaction in her favor, neither can her assignee. He stands in precisely the same position as she would be in were she herself the claimant. His rights were the same as hers — no greater, no less. The rule applicable to purchasers without notice does not apply to her ease. He purchased an overdue obligation and took no better title therein than his assignee held. This seems to the auditor so clear that there is no necessity for further argument, and he has therefore awarded the balance of the fund remaining in full, $346.53, to Mr. Shoemaker.”
    Exceptions were filed to the report.
    The court (Pearson, P. J.) overruled the exceptions and decreed distribution according to the report of the auditor.
    De Witt appealed to the Supreme Court, and assigned the decree of the court for error.

      W. De Witt, appellant y?, p.
    ’Shoemaker should have taken an assignment of the mortgage and recorded it to give notice to third parties: Phillips v. Bank, 6 Harris 402; failing to do this, the satisfaction was binding on him as respects third parties without notice: Gaullagher v. Caldwell, 10 Harris 300; James v. Johnson, 6 Johns. C. R. 432; Mott v. Clark, 9 Barr 399; Fisher v. Knox, 1 Harris 623; Eagle Beneficial Society’s Appeal, 25 P. F. Smith 226; Wood v. Reynolds, 7 W. & S. 406; Swartz v. List, 13 Ohio 419; Eby v. Scofield, 35 Barb. N. Y. 33. To put a party on inquiry, so as to amount to constructive notice, there must be some act or declaration from an authentic source: Jaques v. Weeks, 7 Watts 267; Maul v. Rider, 9 P. F. Smith 167; York Bank’s Appeal, 12 Casey 458. No inquiry for encumbrances beyond what the record shows is necessary : Magaw v. Garrett, 1 Casey 319; Smith’s Appeal, 11 Wright 129; Speer v. Evans, Id. 144; Goepp v. Gartiser, 11 Casey 133. The record showing the mortgage satisfied, a third party was not bound to make inquiry about private arrangements: Mode’s Appeal, 6 W. & S. 284; Randolph’s Appeal, 5 Barr 245. Even if the record showed that the bond was for the same debt as the mortgage, the purchaser of the subsequent mortgage would be justified in assuming that he had given up the lien of the mortgage and relied on the judgment: Morris v. Brady, 5 Whart. 541. He cited also, on the point of not being bound to go beyond what appeared on the record, Bear v. Patterson, 3 W. & S. 233; Mehaffy’s Appeal, 7 Id. 200; Mann’s Appeal, 11 Barr 25; Ridgway’s Appeal, 3 Harris 181; Coyne v. Souther, 1 P. F. Smith 455.

      J. H. Weiss, for appellee.
    As the assignment of the bond carried the mortgage with it, 1 Hilliard on Mortgages 241, 1 Madd. Ch. 425, and would carry the lien of the judgment back to the time of recording the mortgage, Moore v. Cornell, 18 P. F. Smith 320, Shoemaker was not required to do more than have the assignment of the judgment noted on the record. The entry of satisfaction by Mrs. Harris afterwards was void. De Witt had constructive notice that the judgment was on the same bond secured by the mortgage, for the judgment having been obtained by suit, the papers, entries, &c., in the suit would show it; certainly so much as to put him upon inquiry: Jaques v. Weeks, 7 Watts 267.
   Mr. Justice Williams

delivered the opinion of the court, October 12th 1874.

The land, out of which the fund in controversy arose, was, among other liens, subject to two mortgages. The first to Mrs. Harris, recorded July 6th 1869, was given to secure the payment of a bond.for $700; and the second to Mrs. Miller, recorded July 15th 1869, was for $750. On the 8th of November 1869, Mrs. Harris brought suit on the bond for which the first mortgage was given, and on the 11th of April 1870, obtained judgment for $484, the balance due thereon, and the same day assigned the judgment to the appellee. On the 5th of December 1871, she acknowledged satisfaction of the mortgage by an entry on the margin of the record. Sometime thereafter, during the month of December 1871, Mrs. Miller assigned her mortgage to the appellant. The court below distributed the money to the judgment of the appellee. The appellant insists that it should have been applied to the mortgage assigned to him.

If the fund is to be distributed according to the priority of the lien, the court was clearly right in appropriating it to the judgment assigned to the appellee. The assignment of the judgment transferred the right to the mortgage by which it was secured: Moore v. Cornell, 18 P. F. Smith 320; and both securities being for the same debt, the lien of the judgment necessarily relates back to the date of the lien of the mortgage: McCall v. Lenox, 9 S. & R. 310; Bury v. Grieber, 5 Barr 431; Hartz v. Woods, 8 Id. 471; Commonwealth v. Wilson, 10 Casey 63. The entry of satisfaction of the mortgage by the mortgagee, after the assignment of the judgment, did not discharge the mortgage security, so far as respects the assignee of the judgment: Roberts v. Halstead, 9 Barr 32; nor did it abridge or impair the lien of the judgment. It was a fraud upon the rights of the assignee as the owner of the mortgage-debt, and the subsequent mortgagee not being prejudiced by it, could derive no benefit or advantage from it. The lien of her mortgage remained the same after the entry as before. It was still subordinate to the prior lien of the judgment. The entry of satisfaction was a nullity, so far as it respects the assignee of the judgment and the subsequent mortgagee; and the latter was in no better or worse position after it was made than before. What then is the condition of the appellant ? Has he any greater right or equity than the mortgagee had when she assigned the mortgage ? It is clear that he has not, if he had notice of the fraud, or of such facts as would have led to its knowledge, if proper inquiry had been made. If he purchased the mortgage with the knowledge, or with the means of knowing that the prior mortgage had been fraudulently satisfied, he stands in no better position than the mortgagee, and can claim no greater right or equity than she had. Even if the appellee was guilty of negligence in not taking an assignment of the mortgage, by which his judgment was secured, and entering it of record, the appellant is not in- a position to take advantage of his laches, if he knew, or had the means of knowing, that the entry of satisfaction was fraudulent and void. Undoubtedly negligence in the enjoyment of property or the exercise of a right, is cause of redress in equity or at law; but not if there has been supineness or culpable remissnoss on the other side: Fisher v. Knox, 1 Harris 622. Had the appellant t|ien the means of knowing that the satisfaction of the mortgage was a fraud on the appellee ? And was he guilty of supineness in not ascertaining the facts by due and proper inquiry? The assignment of the judgment was entered of record. The judgment docket was notice of the judgment. It is true that the appellant was not bound to look beyond the judgment docket in order to ascertain the date and amount of the judgment: Bear v. Patterson, 3 W. & S. 233; Mehaffy’s Appeal, 7 Id. 200. But the appellant knew, or ought to have known, that while the lien of a judgment ordinarily runs only from its date, yet if it is founded on a statutory lien or mortgage-debt ; its lien relates back to the date of the lien of the claim or mortgage by which it is secured. As the judgment docket sets forth only “ the names of the parties, the term and number of the case, and the date and * * * the amount of the judgment,” it was the duty of the appellant to examine the record of the judgment in order to ascertain its lien. If he had done so, he would have seen from the copy of the bond filed, upon which the suit was brought, that it was a mortgage-bond, and that the stamp-tax payable thereon, without which it would have been void, was paid on the mortgage, and consequently that the lien of the judgment ran back to the lien of the mortgage: Hartz v. Woods, supra. The examination of the mortgage index would have shown him not only the mortgage in which the identical bond, on which the judgment was obtained, is recited, and the date of its record, but the further fact that it was satisfied by the mortgagee more than a year and a half after she had parted with her interest in the mortgage debt and had ceased to have any interest in the security. The records, which it was his duty to examine, were constructive notice not only of the prior lien of the judgment, but of the fraudulent satisfaction of the mortgage. The appellant had the means of knowing the facts, and if he purchased the mortgage without making proper examination and inquiry, he was guilty of culpable supineness, and has no equity to postpone the prior lien of the appellee or to estop him from claiming the fund.

This view of the case renders it unnecessary to consider whether it was the duty of the appellee to take an assignment of the mortgage, by which his judgment was secured, and enter it of record. If he was guilty of no laches in this respect, the case is all the Stronger against the appellant. But if he was, the latter is entitled to no redress, for he had constructive notice of the appellee’s ownership of the mortgage and its fraudulent satisfaction.

Decree affirmed at the costs of the appellant.


text:
    Peters versus Light et al.

    1. Middleton, the owner of ironworks being hopelessly insolvent, by deed reciting that by an assignment for his creditors or by proceedings in bankruptcy, his creditors, except mortgage-creditors, could not hope to receive anything from his estate, but believing that if his creditors would take his ironworks, &c., and work them, his debts might be paid, &e., transferred all his estate to Light and his successors who might be elected by his creditors, in trust to carry on the ironworks, manufacture and sell the iron so long as the creditors might determine it to bo their interest to do so, and until the debt's should be paid, and when the creditors should determine, to convert the estate into money and distribute it amongst them, &c. The trustee took the estate under the deed, advanced money and made a large quantity of iron at the furnaces of the assignee. Held, that this being the product of the capital and labor of the trustee, a judgment-creditor of the assignor, who did not assent to the arrangement, could not seize the iron so made on an execution on his judgment.
    2. The property assigned enured to the benefit of all the creditors, in proportion to their claims, which would not be invalidated by any attempted preference.
    3. The stipulation that the trustees should manufacture iron so long as the creditors should determine it was their interest to do so, was void as against non-assenting creditors.
    4. Such stipulation did not hinder or delay creditors; they could sell the assigned property as if the assignment had not been made.
    May 23d 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Dauphin county: No. 78, to May Term 1874.
    This was an issue under a sheriff’s interpleader’, to August Term 1873, in the court below, in which Benjamin G. Peters was the plaintiff and Felix Landis and Andrew Light were defendants.
    The circumstances in the case, so far as necessary to understand the questions decided in the Supreme Court, are as follows:—
    Richard A. Middleton was the owner of ironworks and was largely indebted. Amongst other debts was a bond with warrant to confess judgment, dated July 12th 1870, for $10,000, to John W. Middleton; this bond was assigned to Benjamin G. Peters.
    On the 21st of October 1871, Richard A. Middleton executed a deed to Andrew Light, Felix Landis and John J. Nissley. The deed recited that Middleton had “ become involved in pecuniary embarrassment, and is now so heavily indebted that his creditors (other than those holding mortgage security for their claims) cannot hope to realize anything on their claims, either under a voluntary deed of assignment for the benefit of creditors, or under proceedings in bankruptcy, if his estate was distributed in that way; but it is believed if his creditors take his furnace and other estate, real and personal, in hand, and work it, the debts may be all paid, and most of the creditors have already agreed to try this experiment.”

      In consideration of the premises and of one dollar, Middleton conveyed to Light, Landis and Nissley in trust: A certain anthra-
    cite furnace and other real estate and personal property, situated and being at Union Deposit, * * * together with all the other real and personal estate of every kind whatsoever — exceptas hereinafter excepted — of the said Richard A. Middleton, wheresoever the same be situate, * * * excepting and reserving only the household furniture of the said assignor, and such additional personal property as is exempted by law from levy and sale, if the former does not cover that amount. To have and to hold the property * * * so assigned as aforesaid unto the said Andrew Light, Felix Landis and John J. Nissley, * * * and their successors in the said trust, who may from time to time be elected by the creditors of the said assignor; the said trustees and their successors in office shall work the furnace and carry on the business of manufacturing iron and sell the same, so long as the creditors may determine it to be their interest to do so, until all the debts other than mortgage-debts are paid, and these also if the creditors so determine, with interest; and whenever the creditors shall determine that the estate so assigned shall be wound up, the same shall be converted into money by public sale, as speedily thereafter as may be consistent with the interests of the creditors, among whom the proceeds, after deducting expenses, shall be distributed pro rata according to the amount of their respective claims ; the net earnings of the estate and income thereof shall alsb be applied, from time to time, to the payment .of the debts of the assignor in the same manner. The creditors themselves to have the right to determine by vote, graduated by •the amount of their respective claims, or otherwise, as they may agree, when the estate so assigned shall be converted into money, when new trustees shall be appointed, and all other matters pertaining to the management of the assigned estate. The said assignors shall be credited with all net earnings while the furnace is worked, and with the net proceeds of the sale of the assigned estate, if the same will be sold, by the creditors severally on their respective claims, as such payments are or may be made to them, from time to time, by the said trustees or their successors in the trust,”
    Nissley declined to act under the'deed of trust; the other two trustees took possession of the property, and continued to operate the ironworks and manufacture iron for about eighteen months.
    A number of the creditors by writing agreed that the trustees should carry on the business under the terms of the deed of trust.
    At the time of making the deed, Middleton had scarcely any stock to run the furnace; his personal effects were under execution; were soon after sold by the sheriff, and were all purchased by the trustees, to be used in carrying on the business. After the conveyance, the trustees continued the business of making iron at their own expense and on their own credit. Iron was sold from time to time as made; their advances in part repaid, and the money paid by them for the property bought at the sheriff’s sale repaid.
    Peters had judgment entered on the bond from Richard A. Middleton to John W. Middleton, and assigned to him (Peters); execution was issued on the judgment, and levy made March 20th 1873 on 900 tons of pig metal, which had been manufactured by the trustees after the execution of the deed of trust, as the property of Richard A. Middleton. The levy was also upon other personal property, which Richard A. Middleton passed under the deed of October 21st 1871. Neither John W. Middleton, nor Peters, his assignee, acquiesced in the deed of trust or did anything to confirm it. Notice was given to the sheriff that the property levied on belonged to Light and Landis, the trustees. About 300 tons of this iron were released from the levy and sold by the trustees.
    Upon the application of the sheriff, an issue was framed, September 16th 1873, under the Sheriff’s Interpleader Act, “Benjamin Gr. Peters v. Andrew Light and Felix Landis, assignees for the benefit of creditors of Richard A. Middleton.”
    The declaration was in the usual form on a wager, that the property in the goods levied on was not in the defendants.
    The defendants pleaded that the property was in them.
    The plaintiff’s points and their answers were as follows:—
    “ 1. If the defendants, at the time the sheriff levied upon the property in question, claimed the absolute ownership thereof, as assignees under the deed of assignment from R. A. Middleton, as set forth in their notice to the sheriff, given in evidence, they cannot now upon the trial set up a limited or qualified ownership or title thereto, nor claim to hold said property to secure them for advances made and liabilities incurred in its manufacture, but must succeed, if at all, by establishing their title under the claim of which they compelled the sheriff to abstain from selling, and forced the plaintiff to the trial of this issue.” • ■
    Answer: “ As we understand the first point, it might be correct in law if sustained by the facts.
    “ If a man has a mere lien on property which might be discharged by payment on the part of the creditor, about to make or having made a levy, it would be illegal to set up an absolute claim of ownership under the Interpleader Act, as the plaintiff in the execution would probably, in consequence of the character of the claim, neglect and be prevented from making a tender of the sum due. But as we understand this notice, the character of the defendants’ claim is fully set forth. They say that they claim the property partly by sheriff’s sale, partly by assignment from Richard A. Middleton, and but little of it came through that source, and also because they manufactured it themselves. Therefore it is sufficient if they make good their title by either of those means. Whatever title they establish by either of those sources will be sufficient, or they may make part good by one, the other by a different ownership, general or special.”
    “ 2. The deed of assignment given in evidence by the defendants, and under which they claim, dated October 21st 1871, is fraudulent in law, because by its very terms it tends to hinder, delay and defraud creditors, and is voidable by a non-assenting creditor of the assignor, who may avoid it by issuing execution and levying upon the property assigned.”
    Answer: “ The deed of assignment from Middleton and wife we consider good and valid. It is very certain that the parties did not intend to make a general assignment for the benefit of creditors, but the instrument operates as such according to adjudicated cases; therefore it cannot operate as a fraud. Also it could not tend to delay, hinder or defraud creditors, as there was no property out of which the creditors could be defrauded. The personal property in existence was all sold by the sheriff, independent of the deed of assignment. All of the iron now in controversy was created by the assignees with their own money or credit; no part of it belonged to Middleton, and the real estate had liens on it by mortgages and judgments to its full value, and nothing done by these parties prevented the creditors from selling it when they thought proper.”
    “ 3. Said assignment is fraudulent in law and voidable, because under the trusts declared therein the assignees cannot be compelled by an individual creditor to settle up the trusts within the time contemplated by the Acts of Assembly relating to trusts for the benefit of creditoi’s, but are expressly authorized to carry on the business so long as a majority of the creditors may desire.”
    Answer: “ It matters not what form the deed assumed if it was a valid assignment for the benefit of creditors. Any one interested in the estate as a creditor could compel a settlement of the trust as soon as the year allowed by law had expired.”
    “4. If the said deed of assignment, upon its face, contains provisions that tend to hinder, delay and defraud creditors, no subsequent acts of the assignor or assignees can give it validity as against a non-assenting creditor; nor can its validity in any way depend upon the amount or value of the property which passed under it, or upon the nature or amount of the encumbrances to which the same was subject, and that all the evidence admitted on these points and excepted to should be withdrawn from the consideration of the jury.”
    Answer: “We can see nothing in the writings, or the evidence in the case, which tends to delay, hinder or defraud the creditors of Richard A. Middleton. We have already said that the deed was a good assignment for the benefit of creditors under the Act of Assembly; and even if we are in error on that subject, the ■arrangement has no tendency to delay, hinder or defraud any creditor; they could proceed against the real estate without let or hindrance, and, as we understand the evidence, there was no personal property belonging to Middleton which came into the defendants’ hands unless by judicial sale, except, perhaps, a few old railroad cars of little value and one day’s supply for the furnace.”
    “ 5. If the jury should believe from the evidence that, at the time the levy was made under plaintiff’s execution, there was sufficient property in the hands of defendants to reimburse the expenses and liabilities incurred by them as assignees, and to satisfy said executions, the plaintiff is entitled to recover in this issue, even if the court should hold that said defendants may lawfully claim in this issue such reimbursements.”
    Answer: “ This point answered in the negative. Even if the deed referred to cannot operate as a valid assignment under the statute; but if the defendants, with the assent of the mortgage and other lien-creditors, took possession of the furnace with the assent of Middleton, under an arrangement to work it for the benefit of his creditors, themselves among others, got the personal property by purchase and carried on the business at their own expense, they are entitled not only to be reimbursed their outlays, but also be repaid their debt, before being obliged to give up the property made by themselves, and all of the money made by their labor and management must be divided among all of the creditors (themselves included) in proportion to the amount of their respective debts, and there is nothing illegal in such an arrangement under the facts in evidence in this case, unless there was evidence of actual fraud, which was not pretended.”
    The court charged also :—
    “ That the deed of Middleton was a valid assignment for the benefit of their creditors, for the reasons there given, and that there was nothing in the writings or disclosed in the case, which would amount to a fraud in law; that, therefore, there was nothing to destroy the defendants’ title to the property levied, and which was in their possession at the time.”
    The verdict was for the defendants.
    The plaintiffs took a writ of error, and assigned for error the answers to the points and the portion of the charge above given.

      B. F. Fiter, 11. M. Gray clon and J. W. Simonton, for plaintiffs in error.
    The provisions in the deed of assignment tended to hinder, delay and defraud creditors; it contemplated an indefinite continuance of the trust and put it out of. the power of creditors, less than a majority, to compel a settlement of the estate: Sheerer v. Lautzerheiser, 6 Watts 543; Ridgway v. Stewart, 4 W. & S. 392; Adlum v. Yard, 1 Rawle 170; Whallon v. Scott, 10 Watts 237; Mitchell v. Stiles, 1 Harris 306. The trusts in the deed are stamped upon it, and all who take under the deed, must take subject to the trusts; and as more than a year is allowed under the deed for a settlement, it is in conflict with the statute. The assignor, assignee and creditors assenting are volunteers: Perry on Trusts, sect. 24, 597; Murphy’s Appeal, 6 W. & S. 226. A creditor taking under a deed is bound by its stipulations, unless they were such as he was not bound to accept, and in such case the deed is invalid: McClurg v. Lecky, 3 Penna. R. 83; Irwin v. Keen, 3 Whart. 347; Thomas v. Jenks, 5 Rawle 221; Hennessy v. Western Bank, 6 W. & S. 312; In re Wilson, 4 Barr 448; and Johns v. Bolton, 2 Jones 339. The deed is invalid because it requires as a condition for receiving any benefit under it that the creditor should become a partner in-manufacturing iron : Owen v. Body, 5 Ad. & E. 28; Janes v. Whitbread, 11 C. B. 406; Edwards v. Tracy, 12 P. F. Smith 374; Bullen v. Sharp, L. R. 1 C. P. 109. The deed containing provisions tending to hinder, delay and defraud creditors, no subsequent act of assignor or assignee could give it validity: Mitchell v. Stiles, 1 Harris 306. It is not material whether the assignor had, in fact, property which did not pass by the assignment; if the deed did not contemplate that such property, if he had it, should pass, it is invalid: Thomas v. Jenks, 5 Rawle 221; Hennessy v. Western Bank, 6 W. & S. 312; In re Wilson, 4 Barr 450; Fassitt v. Phillips, 4 Whart. 398; Garrison v. Monaghan, 9 Casey 232. An assignment cannot protect property from creditors unless it be recorded: Blabon v. Lewis, 3 Phila. R. 454. The iron manufactured by the trustees after the deed, being held by virtue of it, was as if it had been in existence at the date of the deed: Lunn v. Thornton, 1 M., G. & S. 379; Railroad v. Woelpper, 14 P. F. Smith 366. The assignees having claimed an absolute ownership in the goods levied on cannot defend on a qualified ownership: Meyers v. Prentzell, 9 Casey 482; Stewart v. Wilson, 6 Wright 450; Vandyke v. Rosskam, 17 P. F. Smith 334; Bissell v. Steel, Id. 443.

      J. Funde, for defendants in error.
    The trustees were the mere representatives of the assignor for the distribution of his estate: Eulton’s Estate, 1P. E. Smith 204. Such trusts do not depend for their validity on statute; they have their foundation in the eomr mon law: Beck v. Parker, 15 P. F. Smith 264. Assignors may, in the deed, reserve part of their property: Knight v. Waterman, 12 Casey 258; Miners’ National Bank of Pottsville, 7 P. F. Smith 193; Watson v. Bagley, 2 Jones 164; Ashhurst’s Appeal, 10 P. F. Smith 32.1; Lucas v. Sunbury & Erie Railroad Co., 8 Casey 464; Bittenbender v. Sunbury & Erie Railroad Co., 4 Wright 275. To make persons partners, they must participate directly in the profits: Edwards v. Tracy, 12 P. F. Smith 380. A trust will he sustained if possible without regarding strict technicalities : Perry on Trusts, sect. 585. The trust for benefit of creditors is good, although no bond or inventory he filed: Heckman v. Messinger, 13 Wright 473 ; Klapp v. Shirk, 1 Harris 589. The deed if voidable was good until impeached: Burke’s Estate, 1 Parsons Eq. 473. Everything done under the deed in good faith is to be considered good until the deed is declared void: Weber v. Samuel, 7 Barr 521; Seal v. Duffy, 4 Id. 274 ; In re Wilson, Id. 431; Okie v. Kelly, 2 Jones 323; Wakeman v. Grover, 4 Paige Ch. R. 47. If trustees have made advances or payments, they may hold the trust property until they are reimbursed: Perry on Trusts, sect. 593; Hand v. Blake, 3 Beavan 234.
   Mr. Justice Mercur

delivered the opinion of the court, July 2d 1874.

Although several errors are assigned, yet the only question urged upon the argument relates to the iron manufactured by the defendants after the assignment by Middleton to them.

So far as the assignment sought to prefer a certain class of creditors in the property assigned, its provisions cannot be enforced. The assignment must be held to inure to the benefit of all the creditors in proportion to their respective demands: Act of 17th April 1843, § 1. It is not invalidated by this attempted preference : Law v. Mills, 6 Harris 185; Worman v. Wolfersberger’s Executors, 7 Harris 59. The other clause in the assignment, stipulating that the assignees shall carry on the business of manufacturing and selling iron, “ so long as the creditors may determine it to be to their interest to do so,” is clearly invalid as against the creditors of the assignor who did not assent thereto: Sheerer v. Lautzerheizer, 6 Watts 543. Its effect, however, was not to hinder or delay such creditors. They were at liberty to proceed and sell any of the property assigned, with like effect as if the assignment had not been made. The assignment does not indicate any fraudulent intent. In law, however, it bound no creditor who did not assent to its terms. Hence the plaintiff had an undoubted right to seize in execution against Middleton any of the property covered by the assignment.

The iron subsequently manufactured by the defendants stands upon a different footing. It was never the property of Middleton. It was the product of the capital and labor of the defendants. The fact that it was made at the furnace of the assignor did not give him any right of property therein.

The charge of the court, and answers to the points submitted, contain a correct exposition of the law.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Gallagher’s Estate.
    1. A testator made bequests and devises to his wife, also, general pecuniary legacies to others; he gave to Zeigler “ during his natural life the interest of $2500, owing by the Sulouffs and secured by mortgage ; * *■ * and if the principal be paid in the life of Zeigler, I direct the same to be reinvested, .to secure the payment of the annual interest to him.” He also made a residuary bequest. The widow elected to take against the will. The balance on the executors’ account did not include the mortgage, which had some years to run. The Orphans’ Court decreed that one-half the balance of the personal estate as it appeared on the account should be paid to the widow as her share under the intestate laws; that all the legacies should be. paid from the remainder; that from a balance still remaining, the executor to retain $1250, that he might on the maturity of the mortgage, supply the half of it, to be taken by the widow and invest $2500 for Zeigler for life. Held to be correct.
    2. The election of the widow did not destroy the right of the decedent to make a will and appoint an executor, in whom the whole personal estate vested for administration and distribution.
    3. Trom the part not belonging to the widow the general and specific legacies were to be first paid, and the remainder, if any, go into the residue.
    4. The widow was not entitled to half the mortgage specifically.
    5. The executor should have included it in the inventory, although he could not be required to distribute it until he collected it, which he was bound to do as soon as it was due.
    6. The title of the widow is through the executor, as it would be through an administrator if there were no will. She could not maintain an actio.n against a stranger for any part of her share.
    May 24th 1874.
    Before Sharswood, Williams, Mercur and Gordon, JJ.
    Appeal from the Orphans’ Court of Juniata county: No. 45, to May Term 1874. In the distribution of the estate of Robert O. Gallagher, deceased.
    The decedent made a will, dated March 13th 1872. He died April 1st 1872.
    He gave legacies of money and goods to his wife absolutely, and certain real estate for her life.
    He directed his real estate to be sold after her death, and out of the proceeds he gave a number of legacies. He then made this bequest:—
    “ I give and bequeath unto Seth Zeigler the sum of $1000, which is to be in full settlement of all accounts. I also give and bequeath unto him, for and during the term of his natural life, the interest of $2500 owing by the Sulouffs and secured by mortgage on warehouse and lot. If the principal be paid in the lifetime of Seth Zeigler, I direct the same to be reinvested by my executor to secure the payment of the annual interest to him.”
    The residuary clause in the will was :—
    “ I direct all the rest and residue of my estate, real and personal, to be converted into cash, as soon as conveniently may be done after my decease, and all the residue of my estate, not heretofore devised and bequeathed, I direct shall be divided into three equal shares after the payment of debts and expenses, and I give and bequeath one share to the children of Samuel Gallagher; one share unto the children of Thomas Gallagher; and one share unto the children of Harriet Reynolds.”
    Tbe widow, Jane Gallagher, refused to take under the will, and claimed her share of the testator’s estate under the intestate laws. The “Sulouff mortgage” would become due on the 1st of April 1875.
    The executors settled their account, which was confirmed May Bd 1873, and which showed in their hands a balance of personal estate amounting to $14,098.47. The “ Sulouff mortgage,” $2500, was not included in this balance, nor was it in any way brought into the executor’s account.
    L. W. Doty, Esq., was appointed auditor to report distribution of the balance.
    On that part of the distribution which was the subject of review in the Supreme Court he reported:—
    “Mr. Parker, on behalf of the widow, contended that the $2500 owing by the Sulouffs and secured by bond and mortgage, should be brought into the account for the purpose of ascertaining the widow’s proper distributive share.' The auditor has a threefold objection to this position: First, it is not properly before him, the executor not having brought it into his account. Second, it is not due, and will not be until the 1st of April 1875; and third, the widow must take her share of that particular thing, and not her proportionate part, including this, of the whole fund. This is in the nature of a specific bequest. As far as the widow is concerned, the decedent died intestate. This cannot occasion loss to the residuary legatees, but must be deducted from the amount coming to the specific legatee, Seth Zeigler. It is clearly the intention of the testator to charge that fund alone, with the payment of its interest, to Seth Zeigler during his life.”
    The widow filed this exception to the report of the auditor:—
    “ The auditor erred in not bringing the Sulouff mortgage of $2500 into the distribution account for the purpose of ascertaining the true amount of Jane Gallagher. It should be stated thus:—
    Balance........$14,098.94
    Add Sulouff mortgage...... 2,500.00
    Total amount ....... $16,598.94
    One-half for widow ...... $8,299.47”
    The court (Junkin, P. J.), concluding the opinion on the exceptions, said:—
    * * * “Now it is undoubted that testator gives Zeigler the interest of $2500, owing by the Sulouffs on a mortgage, yet this is only demonstrative, no more than saying out of what fund the interest shall be raised. Considering that with us both specific devises, specific legacies, and demonstrative legacies abate upon insufficiency of assets from payment of debts; Armstrong’s Appeal, 18 P. E. Smith 312; Barkley’s Estate, 10 Barr 387; ITallawell’s Estate, 11 Harris 223 ; unless the contrary purpose appears by the will, there is no sufficient reason why the estate of the testator should not be so marshalled as to carry out the intent; and the authority of the Orphans’ Court to do so is fully vindicated in the cases cited, particularly in Barkley’s Appeal, 10 Barr 387. With this power in the court, Seth Zeigler’s annuity can be preserved against the encroaches of the widow; and it does not follow that because one-half of the Sulouff mortgage must eventually go to her, that the testator’s purpose to provide for him is frustrated. By marshalling the fund his intention can be carried out, and 'the loss fall where he must have intended it should, on the residuary legatees.”
    The court then decreed that of the sum of $14,098.94, the balance of the personal estate in the executor’s hands, the widow should receive the one-half, $7049.47. After deducting this sum and the amount of all the pecuniary. legacies from the whole balance of real and personal estate in the executor’s hands, there remained $2978.53. The court further decreed that the executor retain in his hands the sum of $1250, to enable him, upon the maturity of Sulouff mortgage, to supply the deficiency which will then exist, by reason of the widow of testator being entitled to receive out of said mortgage the one-half thereof, to wit, $1250, so that he may be enabled to invest the sum of $2500, and pay the interest thereof annually to Seth Zeigler, as directed by the will of said testator, during the natural life of said Zeigler, and thus the purposes of the testator will be accomplished. The court further decreed that $1728.53 which still remain be distributed to the residuary legatees.
    Joseph Gallaher and others, the residuary legatees, appealed to the Supreme Court, and assigned the decree for error.

      D. S. Doty, for appellants.

      D. D. Parker, for appellees.
   Mr. Justice Sharswood

delivered the opinion of the court, July 2d 1874.

It may be conceded that the bequest to Seth Zeigler of the interest of the Sulouff mortgage during his natural life, was a specific and not a demonstrative legacy. In the view which we take of the case, it is quite immaterial. The estate was amply sufficient, after discharging all legal claims paramount to the will, including the claim of the widow under the intestate laws, to pay-all the legacies given in the will — general or specific. It is very clear that the residuary legatees can take nothing until all these prior claims are discharged. “All the rest and residue of my estate not heretofore bequeathed,” is all that they can demand. It appears to have been the idea of the auditor below that the widow, claiming her share of the personal property under the intestate laws, has a title to it specifically, just as she has to her share of the realty. This is a mistake. The 'election of the widow does not destroy the right of the decedent to make a will and appoint an executor. The entire personal estate, bequeathed or not, vests in the executor in trust for administration and distribution : First, to pay debts and other legal claims. The widow electing to refuse to take under the wTill, has such a claim, of which the decedent could not deprive her, as he might deprive his next of kin of all claim, and give the entire residue to strangers. Over that residue he has entire power; he can carve it out and distribute it as he pleases, and in what order he pleases. His general and specific legacies must first be paid, and then, if there is anything left, it goes to the residue. The widow had no right to the one-half of the Sulouff mortgage specifically. It was the duty of the executor to include that as well as all other assets in the inventory and appraisement. It is true he could not be required to distribute it until it was payable and received. If it was lost from the insufficiency of the security or any other cause, Seth Zeigler would get nothing, and the widow would lose one-half of that item in the inventory and appraisement. As against her, the executor would be bound to collect and distribute it as soon as due; the testator could not postpone it for the term of Zeigler’s life. Nevertheless, Zeigler would be entitled to receive the interest of $2500 during his natural life. “ If the principal be paid in the lifetime of Seth Zeigler, I direct the same to be reinvested by my executor to secure the payment of the annual interest to him.” It is clear to us that as long as the estate can do so, after discharging all debts and paying over to the widow her one full moiety of the balance, Seth Zeigler is entitled, by the clear intention of the testator, to receive his annuity for life, before the residuary legatees receive anything. The title of the widow is under and through the executor, just as it would be under and through the administrator, if there was no will. She could maintain no action against a stranger for any part of it. We think, therefore, that the learned court below was right in securing the payment of this annuity to Zeigler, in preference to the claims of the residuary legatees.

Decree affirmed and appeal dismissed at the costs of the appellants.