text:
    Evans versus Fegely.
    1. Evans contracted under seal to sell to Eegely his right, &c., in the real and personal property of B. E. & Co., Eegely indemnifying him against damages for failure to fulfil any contract of the firm. Eegely agreed that if such damages should not be recovered, nor he suffer from fire to the amount of $2000, he would pay Evans $1000 in two years. Evans agreed if Eegely should not realize $7000 from the real estate or the valuation ofithymen at the end of that period should not amount to that sum clear of improvements, he would relinquish the $1000. In an action by Evans for the $1000, Reid, that the burden was on Eegely to show that he had not realized or that the value of the estate less improvements was not $7000.
    2. The covenants were several and distinct.
    3. If Eegely had not realized the required sum or the property was less than that value, it was his duty to notify Evans.
    January 17th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery eou/nty: No. 174, to July Term 1870.
    This was an action of covenant, issued November 2d 1867, by William D. Evans against Isaac Eegely.
    The foundation of the action was the following instrument:—
    “ Whereas, William D. Evans having sold to me all his right, title and interest in the real and personal property belonging to the firm of Evans, Eegely & Co., and I have given the said William D. Evans my indemnifying bond for three thousand dollars as security against any railroad company that may claim damages for not fulfilling any contract made with the firm of Evans, Eegely & Co. Now I hereby agree with the said William D. Evans, if such damages are not recovered from me nor I meet with any accident by fire amounting to more than two thousand dollars while the presént car work is on hand, I will pay or cause to be paid to the said William D. Evans, his heirs, executors or assigns, the sum of one thousand dollars in two years from the date hereof, or sooner if determined, and if not paid by April 1st 1865, then I agree to pay him legal interest on the same until April 1st eighteen hundred and sixty-six. The said William D. Evans also agrees that in case the said Isaac Fegely does not realize the sum of seven thousand dollars out of the real estate or the valuation by three disinterested men .at the expiration of that time should not amount to that sum clear of improvements made by Isaac Fegely, then the said William D. Evans is to relinquish his claim to one thousand dollars.
    “ Witness our hands and seals this sixth day of April, eighteen hundred and sixty-fofir.
    “Isaac Fegely. [l. s.]”
    “Wm. D. Evans, [l. s.]”
    The suit was to recover the $1000 mentioned in the agreement.
    The plaintiff, upon the trial below, gave the agreement in evidence, and showed that the property therein referred to was sold by the defendant in the spring of 1867, for $10,000.
    The plaintiff then offered to show that no improvements had been added to the property by the defendant of sufficient amount to affect the recovery of the plaintiff under the agreement, to be followed by evidence that no damages had been recovered against the defendant by any railroad company upon any contract made with the firm of Evans, Fegely & Co., also that, no accident by fire had taken place to the damage of the defendant.
    The plaintiff offered also to prove by three disinterested witnesses that on the 1st of April 1866, the property described in the agreement was worth over $7000, clear of improvements made by the defendant.
    These offers were rejected by the court, and several bills of exception sealed taken by plaintiff.
    The defendant offered no testimony, and the court instructed the jury to render a verdict in his favor.
    The verdict was for the defendant.
    The plaintiff took a writ of error, and assigned for error the rejection of the offers of evidence, and directing a verdict for the defendant.

      B. M. Boyer and D. H. Mulvany, for plaintiff in error.

      C. Hunsicker and J. Boyd, for defendant in error.
    There was no offer of proof that the condition happened within the time fixed: Benninger v. Hankee, 11 P. F. Smith 345; Smith v. Frazier, 3 Id. 226. Appraisers were the chosen and only tribunal of the parties : McAdams v. Stillwell, 1 Harris 90; Reynolds v. Caldwell, 1 P. F. Smith 298; Herdic v. Bilger, 11 Wright 60. Time was of the essence of the contract: Stevenson v. Maxwell, 2 Comstock 408; Chitty on Contracts 337. There was no consideration for the contract: Brua’s Appeal, 5 P. F. Smith 294.

      February 9th 1871,
   The opinion of the court was delivered,

by Agnew, J.

This case turns upon the true interpretation of the agreement between Isaac Eegely and William D. Evans, of the 6th of April 1864. It is an agreement of two parts udder the respective hands and seals of the parties. The covenants are clearly several and distinct, each party covenanting with the other for those things , he should perform. Eegely, on his part, covenants with Evans that “ if such damages (those mentioned in the preamble) are not recovered from me, nor I meet with any accident by fire amounting to more than $2000, while the present car-work is on hand, I will pay or cause to be paid by the said W. D. Evans, his heirs, executors or assigns, the sum of $1000, in two years from the date hereof, or sooner if determined,” &c. Then follows a provision for interest. Here the covenant of Eegely ends, and his liability on his own covenant is definitely fixed, subject to the two conditions as to damages and fire. Then we come to the separate and distinct covenant of Evans with Eegely, by which he agrees “ that in case the said Isaac Eegely does not realize the sum of $7000 out of the real estate, or the valuation by three disinterested men at the expiration of that time, should not amount to that sum clear of improvements made ly Isaac Pegely, then the said William D. Evans is to relinquish his claim to $1000.” Now this covenant on part of Evans is not only distinct from the covenant of Fegely .to pay on the two conditions named, but is different in its subject. If we examine this subject we find' it to be one wholly within the knowledge of Eegely alone. Who but he can know whether he has realized $7000 from the real estate, or what the cost of the improvements made by him ? If he has not realized the required sum, or if the property clear of the improvements be less than that sum in whole, clearly it is his duty to notify Evans of the fact. Undoubtedly, in the absence of notice to the contrary, Evans has a right to suppose that no third condition of recovery will be injected into the covenant of Eegely to pay the $1000. The fact that Eegely did not make it a third condition in his covenant to pay, proves that it was intentionally reserved for the covenant of Evans, which is one of simple relinquishment. He covenants to relinquish the $1000, but when ? Clearly only when it appears that Eegely has not realized his $7000, or that the value of the real estate less the cost of improvements is not $7000. Now this made Eegely the actor. Not having exacted it as a condition of his own covenant, he was bound to give notice to Evans that the property had not realized the required sum if sold; or if not sold, to demand a valuation in the mode expressed by Evans’s covenant. It is not to be presumed that Evans, who had left the township, should know the affairs of Eegely. The latter was the only party who could know the state of his affairs) the condition of the property, what improvements he had made, and how much they had cost. He therefore must be presumed to know of the happening of the contingency on which the covenant of Evans was to be performed, and was bound to give notice of it and demand a relinquishment. Thus the separate character of the covenant, its independence of the conditions reserved by Fegely as the terms of performance of his own covenant to pay, the language of Evans’s covenant “ to relinquish,” and the nature of the subject, threw upon Fegely the duty of giving notice of the happening of the contingency, and of demanding an appraisement. The burthen of proof therefore lay on him and not on Evans. . There was no reason that he should object to Evans taking the laboring oar, and clearly the court erred in taking the case from the jury.

The judgment is therefore reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: by Read, J.

license: Public Domain

text:
    Ferree versus The Oxford Fire and Life Insurance, Annuity and Trust Company.
    • One of the conditions to a policy of insurance was that it should not be assigned without the consent of the company endorsed on it. In case of assignment without such consent, whether of the whole policy or an interest in it, the liability of the company should thenceforth cease. The assured assigned the policy as collateral security for/a lien against the property insured without obtaining the consent of the company; the property was burned; afterwards the assured paid the lien. Held, that he could not recover for the loss, not having had the consent of the company to the assignment. '
    January 18th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Chester county: Of January Term 1871, No. 179.
    This was an amicable action of covenant and case stated, entered August 19th 1870, between T. Waters Ferree, plaintiff, and The Oxford Fire and Life Insurance, Annuity and Trust Company, defendants.
    The case stated showed the following facts:—
    ‘ On . the 14th of January 1869 the defendants, by policy No. 65, insured the property of the plaintiff, amongst other things a frame house for $4000.
    . The third condition of insurance annexed to the policy is as follows:—
    “ Policies of insurance subscribed by this company shall not be assignable without the consent of the company, expressed by endorsement made thereon. In case of assignment without such consent, whether of the whole policy or of any interest in it, the liability of the company in virtue of such policy shall thenceforth cease; and the company reserves to itself the right to elect either to consent to the transfer, or return a rateable proportion of the premium and cancel the policy. In case of claim for loss or damage on a policy assigned, where there is no actual sale or transfer of the property insured, proofs of loss shall be made by the assured in conformity with the conditions of this policy in like manner as if no assignment had been made; otherwise this policy shall be void and of no force or effect whatever, and all liability on the part of the company shall cease.”
    The following assignments were endorsed on the policy:—
    “ Eor valuable consideration, I do hereby assign and set over unto Amos K. Hanna, of Oxford, Chester county, Pa., and Eber Anderson, of West Chester, their heirs and assigns, all my right, title and interest on the policy of insurance, and all the benefits and advantages to be derived therefrom, as collateral security for the payment of money loaned.
    “ Witness present, John E. Leonard.
    “ T. Waters Ferree. [l.s.]”

      “ For valuable consideration, I do hereby assign and set over unto L. A. W. Pyle, of West Chester, her heirs and assigns, all my right, title and interest on the policy of insurance, No. 65, for $4375, of Oxford Fire and Life Insurance Annuity and Trust Company, of Oxford, Chester county, Pa., issued to T. Waters Ferree, dated January 14th 1869, and all the benefits and advantage to be derived therefrom, as collateral security for the payment of money loaned to said Ferree, on a judgment which I have assigned to said L. A. W. Pyle.
    “ Witness my hand and seal, this 23d day of August 1869.
    “ Eber Anderson, [l.s.]”
    Neither of these assignments was submitted to or approved by the defendants. On the 20th of January 1870, the plaintiff paid to the defendants $8.33, annual payment for the continuance of the said insurance for the year commencing the first Monday of January 1870. On the 18th of February 1870, the said building was totally destroyed by fire. The plaintiff has continued to be the owner of the premises insured ever since the policy was issued. He has, since the fire, paid the debts to secure which the policy was assigned. He gave notice of the fire to the defendants, according to the conditions of insurance. He demanded the said sum of $4000 of the defendants, which they refused to pay.
    The question is, whether, under these circumstances, the plaintiff is entitled to recover. If the court shall be of opinion with the plaintiff, judgment to be entered in his favor for $4000, with interest from June 18th 1870. If otherwise, judgment to be entered for the defendants.
    The court entered judgment for the defendants, Butler, P. J.,' delivering the following opinion:—
    “The case turns on the construction of the third condition annexed to the policy. Whatever is determined to be its meaning will govern the rights of the parties. It is their contract, and they must abide by it.
    “ Then what is its meaning ? It declares that ‘ policies of insurance subscribed by this company shall not be assignable without the consent of the company expressed by endorsement made thereon. In case of assignment without such consent, whether of the whole policy or of any interest in it, the liability of the company in virtue of such policy shall thenceforth cease; and the company reserves to itself the right to elect to consent to the transfer or to return a rateable proportion of the premium and cancel the policy. In case of claim for loss or damage on a policy assigned, where there is no actual sale or transfer of the property insured, proof of loss shall be made by the assured in conformity with the conditions of this policy, in like manner as if no assignment had been made; otherwise this policy shall be void and of no effect whatever, and all liability on the part of the company shall cease.’
    “ Such is the language used by the parties. The plaintiff argues that it was intended simply to prohibit a transfer of the property or interest insured, as was held in Carpenter v. The Insurance Co., 16 Peters 496. But Carpenter v. The Insurance Co. bears no resemblance to this case, and the language here employed precludes such a construction. It is the policy that' ‘ shall not be assignable without consent,’ and it is the assignment of such policy that is to terminate the liability of the company. In Carpenter v. The Insurance Co. the terms used were: ‘ The interest of the assured in this policy is not assignable unless by consent of the company in writing; and in case of any transfer or termination of the interest insured, either by sale or otherwise without consent, the policy shall be void. Of which the court said: ‘ Now the interest here last spoken of manifestly is the interest of the owner in the premises insured, and not merely his interest in the policy.’ The difference between this language and that now under consideration is too clear to justify comment. Here it is a transfer of the policy, expressed in the plainest language, that is to forfeit the rights of the insured. If the language were even doubtful, we would hesitate to give it the construction suggested, for the reason that a transfer of the interest insured — the property— Would terminate the liabilities of the insurer without such prohibition.
    “ Again, it is argued for the plaintiff that if the prohibition applies to an assignment of the policy, it is to an absolute assignment — a transfer of all the assured’s interest in it — and not a transfer as collateral security merely.
    “ Such an absolute transfer, except where accompanied by a sale of the property insured, would also terminate the liability of the company without any prohibition in the policy. The law will not permit an insurance to one not interested in the property, nor allow a recovery where the insured, or owner of the policy, is not so interested at the time of loss. Where the transfer is as collateral security, the recovery is by the assignor, on the ground that he still retains an interest. But for this subsisting interest connected with the ownership of the property, there could be no recovery by any one. It was not therefore against an absolute transfer unaccompanied by a sale of the property, that the prohibition was directed. Such a transfer, as before observed, would of itself forfeit the policy.
    “ But an absolute transfer accompanied by a sale of the property would not of itself forfeit it. For although it was at one time held that policies against fire are not in their nature assignable, the modern rule is otherwise. And therefore stipulations against assignment are resorted to. And such an assignment — an absolute transfer to a purchaser of the property — it is very clear the language under consideration does embrace and prohibit. But does it go no further? Does it not contemplate other assignments — where the property has not been sold ? Clearly it does, otherwise how are we to understand these words: ‘ In case of a claim for loss or damage on a policy assigned where there is no actual sale or transfer of the property insured, proof of loss shall be made by the assured, as if no assignment had been made ?’ The force of this language is irresistible. The prohibition was intended to embrace assignments not accompanied by a transfer of the property. And as the only assignments of this character that the company has any interest in prohibiting (the only assignments not accompanied by a transfer of the property which do not of themselves release the company) are those made as collateral security, it would seem to follow that it wa's such assignments that were contemplated. Any other construction would be illogical and unjust. But as if to guard against the possible danger of such injustice, the company has inserted additional language which precludes any other construction. It is not only an assignment of the policy that is to release the company, but an assignment of any interest in it. ‘ In case of assignment, whether of the whole policy or of any interest in it, the liability of the company * * * shall thenceforth cease,’ is the language employed. It has not been suggested that one who takes a policy as^collateral security has not an ‘ interest in it,’ and it will not be.
    “ But it is argued, that as the company cannot be injured by such an assignment, it has no motive to prohibit it, and did not therefore intend to do so, notwithstanding the plain import of the language used. Such conjecture in respect to motive would be too uncertain a guide to justify a departure from the ordinary meaning of the terms employed.
    “ But is it true that the company has no motive to prohibit such a transfer ? Insurance against fire is a contract of indemnity to the insured. His character and his interest in the property enter into the calculations of the insurer. A risk exceeding three-fourths the value of the property will not generally be taken.' Encumbrances are objectionable, and are usually inquired after, for as they increase the interest of the owner diminishes. True, if honest, he is interested in the payment of his debts. But this is a different interest from that which a man feels in the preservation of property which he can continue to enjoy — which belongs to him and not to his creditors. If, then, the privilege of transferring the policy as collateral security for goods purchased or money borrowed, tends to the increase of encumbrances, the company has a motive to prohibit it. That it does so tend, common experience proves. A judgment or mortgage covering the value of the property, accompanied by a transfer of the policy, is worth just as'much more in consequence of such transfer as the value of the policy itself.
    “ But what is much more important, is the fact that such a transfer may create art interest directly hostile to that of the insurer. If the transferee is a second or subsequent encumbrancer, his interest may be in the destruction of the property. As we have seen, the owner cannot be insured to its entire value, and a stranger to it in any amount whatever; because, in the first case there would be no interest to preserve it, and in the’ second an ‘.interest to destroy it. But this interest to destroy would be no greater than that of such transferee of the policy may be. If the buildings be preserved, the lien before his will take their value; if destroyed, he will get it; and the circumstances may be such that he can get nothing else — as where the preceding liens cover the value of the property. But suppose the transfer to be on account of indebtedness without lien. Then the only way in which it can be of any value whatever, is through the destruction of the property.
    “ The insurer has, therefore, a motive, and a very strong one, for keeping the subject of collateral assignments within his control. And the argument based upon the hypothesis that he has not, consequently fails.
    “ And for the same reason, the suggestion that the law will not permit such a prohibition (based upon the same hypothesis), fails. It is true a debt may be' transferred; the debtor cannot stipulate against it. And money actually due upon a policy is but a debt. The insurer cannot, therefore, prohibit its transfer. But such a case bears no resemblance to a transfer of the contract of indemnity.
    “ The only case we have been able to find bearing much resemblance to the one before us, is Smith v. The Insurance Co., 1 Hill N. Y. (and 3 Hill). But there the resemblance is very close. The assignment was in terms absolute. But being on account of indebtedness, this is unimportant. In effect it was limited to securing the debt: Fulton v. Brooks, 4 Cush. (Mass.) The provision against assignments was almost, if not quite, identical with that contained in the policy before us. The plaintiff’s situation was such as to excite sympathy; and the court manifested a desire to relieve him by confining the provision to a transfer of the property, or of the policy with the property, but found it impossible to do so without perverting the language employed. The policy was therefore held to be forfeited by the transfer without approval.”
    The plaintiff took a writ of error, and assigned for error; not entering judgment for the plaintiff,

      R. T. Cornwell (with whom were W. Darlington and R. E. Monaghan), for plaintiff in error.
    The 3d condition has reference only to such assignments as accompany the transfer of the property, not where the assignment is as collateral security. A collateral assignment is but a pledge that the amount that may be recovered in case of loss, shall first be applied to the payment of the debt due the assignee, and does not amount to a transfer of any interest of the assured in the policy: Peabody v. The Ins. Co., 20 Barb. 339; Hill v. Ins. Co., 9 P. F. Smith 474; Ins. Co. v. Stewart, 7 Harris 45; Masters v. Ins. Co., 11 Barb. 624; 2 Parsons on Contracts 451. The reasons for the prohibition apply only to such assignments as accompany the sale of the property assured: Ins. Co. v. Roberts, 7 Casey 438; Ins. Co. v. Berger, 6 Wright 291; Finley v. Ins. Co., 6 Casey 311. The construction of the condition is to be most favorable to the assured and against the insurers: The Ins. Co. v. Berger, supra; Buckley v. Garrett, 11 Wright 204; The Ins. Co. v. Cropper, 8 Casey 351; Angell on Insurance 247; Carpenter v. The Washington Ins. Co., 16 Peters 495. The assignment of a policy vests an equitable interest in the assignee. Such assignment may be valid without the consent of the insurers: 2 Parsons on Contracts 354, 355; Lazarus v. Ins. Co., 19 Pick. 81. Conditions are not sustained when they infringe upon the essential enjoyment and independent rights of property, and tend manifestly to public inconvenience: 4 Kent’s Com. 131; Goit v. The Ins. Co., 25 Barb. 189; Court ney v. The Ins. Co., 28 Id. 116; The Ins. Co. v. Helfenstine, 4 Wright 289.
    February 20th 1871,

      G. F. Smith (with whom were W. B. Waddell and P. F. Smith), for defendants in error.
    The plaintiff having but a judgment had no interest in the property; this.would have been an answer to any claim he might have made on the company for indemnity for the loss: Grevemeyer v. Southern Mutual Insurance Co., 12 P. F. Smith 340. The plaintiff, at the time of the fire, had no interest in the policy. The policy being separated from an interest in the subject of it, was of no force or obligation: Hill v. Cumberland Valley Mut. P. Co., 9 P. F. Smith 474; s. p. 3 Kent’s Comm. 375. The third condition is against assigning the policy; it does not speak of property: Smith v. Saratoga M. F. Ins. Co., 1 Hill 497.
   The opinion of the court was delivered,

by Read, J.

On the 14th of January 1869, the defendants issued to the plaintiff a policy of insurance for $4000, on certain premises against fire for one year from that date, who assigned the same to Amos K. Hanna and Eber Anderson, as collateral security for money loaned him, and on the 23d of August 1869, the Said Eber Anderson assigned the same to L. A. W. Pyle, to whom he had assigned the judgment which he held. Neither of these assignments were submitted to or approved by the defendants. On the 20th of January 1870, the plaintiff paid to the defendants $8.33, the annual payment for the continuance of the said insurance for one year, and on the 18th of February the building was totally destroyed by fire, since which he has paid the debts to secure which the policy was assigned.

The defence is, that by the third condition annexed to the policy the liability of the defendants ceased by reason of the above assignments, which were made without the consent of the company expressed thereon. In this cáse no consent was given to either of the assignments, nor was there any waiver of the condition in any manner or form by the defendants. “ Policies of insurance,” says the condition, “ subscribed by this company, shall not be assignable without the consent of the company expressed thereon. In case of assignment without such consent, whether of the whole policy or of any interest in it, the liability of the company in virtue of said policy shall thenceforth cease.” This condition is a perfectly legal one: Smith v. Saratoga County Mutual Fire Insurance Co., 1 Hill 497; Same v. Same, 3 Hill 508; 1 Phillips on Insurance 477; Angell on Fire and Life Insurance 249, 251. The remaining part of the third condition has no bearing on the present case, having no application when the liability of the company has entirely ceased.

We have examined the authorities cited by the plaintiffs and ' find nothing affecting in any way this - condition or its plain and obvious meaning.

Judgment affirmed.

Thompson, C. J., dissented.


author: by Agnew, J.

text:
    Slack versus Kirk.
    1. - Scott drew a note for his own accommodation to the order of Slack; to secure its discount at bank, he procured Kirk’s endorsement who placed his name above Slack’s. Slack paid one-half the note; Kirk under threat of suit by the bank paid the other half. Held, that Kirk could recover from Slack the amount paid by him.
    2. Slack by his endorsement was liable to the .bank for the amount of the note.
    3. As to the bank, Slack could set up neither the Statute of Frauds nor Kirk’s want of liability.
    4. Slack could not object to payment to any transferee of the bank or to any one rightfully paying the bank and entitled to substitution to its rights.
    5. Kirk as irregular endorser was the only one who could set up the Statute of Frauds, and if he, although an irregular endorser, chose to comply with his parol promise to pay, no one could object.
    6. Kirk had a right to pay if he would, and having paid, to be subrogated to the rights of the bank.
    - 7. There was a moral obligation on Kirk to perform his promise to pay the bank, and this followed by actual payment constituted his equity and entitled him to substitution.
    8. On paying the bank, Kirk was entitled to the noté and could claim as holder under Slack’s blank endorsement.
    January 18th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Chester county: To January Term 1871, No. 24.
    ■ This was an action of assumpsit by James S. Kirk against Timothy Slack, to recover the sum of $310.20, the amount paid by the plaintiff to the National Bank of Oxford, on a note drawn by Thomas & J. P. Scott and endorsed by the plaintiff and defendant.
    The plaintiff gave in evidence the note and its endorsements as follows and rested.
    “ Oxford, October 1st 1868.
    “ Sixty days after date, we promise to pay to the order of Timothy Slack, at the National Bank of Oxford, one thousand dollars, without defalcation, for value received.
    “ Thomas & J. P. Scott.”
    Endorsed as follows:—
    “ Thomas & J. P. Scott.
    “ James S. Kirk.
    “ Timothy Slack.
    “ Thomas & J. P. Scott.”

      Endorsed: — ■
    “ Amount due on this note January 28th 1869, . $1009.73
    “Paid by T. & J. Scott, . .... $389.33
    “ “ Timothy Slack, . . 310.20
    “ “ James S. Kirk, . . 310.20”
    The defendant called William T. Fulton, Esq., who testified:—
    “ This note was placed in my hands, as attorney of the National Bank of Oxford, for collection. I was directed to collect half from each of these parties, and if they refused to pay, to bring suit.' Slack said he was ready at any time to pay half of it. Kirk objected to paying any of the note. He said Slack was good for it, and he had no right to pay. I told him my instructions; He said he would pay rather than be sued, but he would have it back again. The amount due on the note January 28th 1869, was $1009.73. Mr. Scott had on deposit in bank, $329.33, which was deducted. This left $620.40, which was paid equally by Kirk and Slack.”
    He also called Thomas Scott, who testified:—
    “ I called on Slack to see if he would endorse for me for a certain amount if I could get another good man to go along. He said he would. I named Kirk. I saw Kirk. He asked who Slack was — said he didn’t know him. I told him who he was. He then said he knew him, and consented. He said he would go to the bank, and went with me. We made our statement before the president. They both endorsed the note for $1200 at 60 days. I got the money. When the note matured I had the money to take it up. I consulted the endorsers. I wantéd to use $1000 of the money again. They agreed to go on again on the same conditions as on the first note. I had a note endorsed by Slack when I went to Kirk.” .
    The defendant closed.
    The plaintiff called James S. Kirk, who testified:—
    “ Mr. Scott came to father’s and said he had a note with a good man on it and wanted the money.on it. . I told him I had no money. He said you can soon raise the money on it. I told him I thought not, the banks are very tight. * * * I went with him tp Oxford, and went to Dickey’s and asked if they had money. I told Mr. Ramsey a man wanted money. I told him Timothy Slack’s name was on the note: I didn’t know Slack. Ramsey said he was good for twenty thousand dollars, and he would go with me to see the president of the bank. They agreed to give him the money if I would put my name on the note — endorse. They all said he was good. I then ■ endorsed the note, after I. understood Slack was responsible. Mr. Scott never said anything to me about becoming joint endorser with Slack. Slack’s name was on both notes before I endorsed. * * * Mr. Dickey (president of the bank) said they would give him the money if I would endorse. I endorsed the second note with the same understanding as the first.”
    The defendant submitted this point:—
    “ The plaintiff, under the circumstances proved in this case, was not liable to the National Bank of Oxford, and his payment of $810.20 to the attorney of the bank was voluntary, and no action can be maintained by him against the defendant to recover the money so paid.”
    The court reserved the question in the point, and on the facts the jury found a verdict of $329.78 for the plaintiff.
    Butler, P. J., entered judgment on the verdict, saying amongst other things:—
    * * * í% The note, as we have seen, was drawn by the Messrs. Scott in favor of Slack, and by him endorsed. The name of Kirk, however, is written above Slack’s. And if we could look no further, could see nothing that does not appear upon the paper, we would be compelled to regard him as having endorsed irregularly (before Slack). And then, according to the doctrine of Taylor v. McCune and the cases following it, we would have to hold that he is under no obligation to the bank, inasmuch as the payee’s name was not written above. But if we may look further, and see the order in point of time, in which the paper was endorsed, we will find that while Kirk appears to have gone irregularly upon it (by endorsing prior to the payee), the fact is otherwise ; that Slack first endorsed the paper and delivered it to one of the drawers, who in company with Kirk applied to have it discounted-, and was promised the money if he would endorse; that he did then endorse and the money was paid over. If we may thus look into the circumstances attending the execution of the paper, all appearance of irregularity will disappear, and Kirk will be seen to be the second endorser. In such case it will be immaterial where his name is found; the law will treat it as if in its proper place. He could not, if he designed, vary the effect of his act by selecting a particular place for his signature. But here there was no such design; the name was misplaced by mistake. Kirk himself testifies that the bank required him to endorse, as the condition on which the money would be furnished; and that he accordingly did so. That he intended to do so in the usual way and with the usual effect, cannot be doubted. Any other suggestion would be wholly inconsistent with the purpose in view. Placing his name above the payee’s directly tended to defeat this purpose, for without explanation (by reference to the circumstances), it created no obligation whatever. Indeed if the defendant’s position (that no explanation can be heard, that the paper alone can be looked to) is correct, it was (if designed) an act of pure folly, for it had not the slightest effect, but left the parties precisely as they were before. It would seem to be clear therefore that the name was misplaced by mistake. But whether this is so or not, is immaterial; because if we may look at the facts and see that he was the second endorser, the law will hold him responsible as such, no matter how his name came to be misplaced.” * * *
    After stating the grounds on which he held that the facts he referred to might be considered, he concluded:—
    “ In our judgment, Kirk was regularly upon the note as second endorser, and thus was liable to the bank. We must therefore answer the defendant’s point in the negative, and allow the verdict against him to stand.”
    The defendant took out a writ of-error and assigned for error that the court erred in not entering judgment for the defendant, notwithstanding the verdict.

      R. T. Cornwell and W. Darlington, for plaintiff in error.
    The National Bank of Oxford could not have recovered against Kirk, he was an irregular endorser: Schafer v. Farmers’ & Mechanics’ Bank of Easton, 9 P. F. Smith 144. Under no circumstances can he be liable to the payee: Murray v. McKee, 10 P. F. Smith 35. The decision of the court is directly in conflict with the Act of April 26th 1855, sect. 1, Pamph. L. 308; Purd. 497, pl. 4. Without parol evidence Kirk was not liable for Scott’s debt to any one: Herrick v. Carman, 12 Johnson 160.

      J. J. Lewis, for defendant in error.
    The Act of 1855 does not forbid showing mistake. The proof rebuts an implied fraud in Kirk, which’ would arise from Slack’s endorsement below his and thus negotiating the note: Barto v. Schmeck, 4 Casey 451; Brown on Frauds, sect. 406. Parol proof is allowable to show when a guaranty was made: Leonard v. Vredenburg, 8 John. R. 29. The evidence on that case was at first rejected on the authority of Wain v. Warlters, 5 East 10, but on consideration, Kent, C. J., granted a new trial: Union Bank v. Cosier’s Exrs., 3 Comstock 210; Baily v. Freeman, 11 John. 221: De Wolf v. Rabaud, 1 Peters 498; Moies v. Bird, 11 Mass. 436; Nelson v. Dubois, 13 John. 476; Campbell v. Butler, 14 Id. 349; Sampson v. Thompson, 3 Metc. 278; Schafer v. Farmers’ & Mechanics’ Bank, 9 P. F. Smith 150. Parol proof has always been held to be receivable to show mistake or fraud: Harbold v. Kuster, 8 Wright 392; Fisher v. Deibert, 4 P. F. Smith 463; Shenk v. Robeson, 2 Grant 272; Schafer v. Farmers’ & Mechanics’ Bank, supra. The endorsements amounts to an unwritten contract on the part of the endorser with the endorsee and every subsequent holder: that the maker is competent to bind himself to payment and will pay; and that if the maker shall not pay, he, the endorser, will, on notice of dishonor: Story on Prom. Notes p. 145. One name may be written across the face of the note, and other names on the back: Chitty on Bills 147, or on another paper annexed to the note: Folger v. Chase, 18 Pick. 63.
    February 9th 1871,
   The opinion of the court was delivered,

by Agnew, J.

As between the parties to the action, this case does not fall within the Statute of Frauds of 26th April 1855, requiring a writing to be signed by the party to be charged in order to make him answerable for the debt or default of another. The note upon which this question arises was drawn by T. and J. P. Scott, to the order of Timothy Slack, and endorsed by. James S. Kirk, first in the order of position on the hack of the note, and next by Slack, the payee. The note was discounted by the National Bank of Oxford for the benefit of the drawers, who after-wards failed to pay, except a part. The bank then collected one-half of the balance from Slack and the other half from Kirk, who paid voluntarily, but asserting at the same time Slack’s liability to him. Then granting that, by reason of Kirk’s irregular endorsement before Slack, the payee, neither Slack nor the bank could compel payment by Kirk, according to the decisions in Barto v. Schmeck, 4 Casey 447, Schaffer v. The Bank, 9 P. F. Smith 144, and Jack v. Morrison, 12 Wright 113, yet Slack, the payee and endorser of the note, was undoubtedly liable to the bank. He could set up neither the Statute of Frauds nor Kirk’s want of liability, being the payee and regular endorser of the note as to the bank. He could not object, therefore, to payment to any transferee of the bank, or to any one rightfully paying the note, and entitled to substitution to the rights of the bank. Kirk, as irregular endorser, was the only party having a right to set up the Statute of Frauds, for his was the only parol agreement. But if, as an irregular endorser, liable only' upon his verbal promise to be answerable to the bank for the payment of the note, he chose to comply with his agreement, who can object? Certainly not Slack, for the payment enured to his benefit, if Kirk was liable to him; and if not, it was a matter of indifference to him whether he should pay the bank or some one else who bo-, came entitled to the note. The statute was made for the proteo-. tion of a party alleged to have made a verbal assumption, to be answerable for the debt or default of another; but if he admits his promise, and does not ask the shield of the statute, it does not compel him to be dishonest. Clearly Kirk had a right to pay if he would: and paying, he is entitled in equity to be subrogated to the rights of the bank, unless Slack can show that Kirk had also agreed to be liable to him for payment by the drawers. This promise, though not enforceable against Kirk, by reason of the statute, probably would be a defence to Slack. What right, ■ 'then, has Slack to object-to Kirk-fulfilling any promise he had made to the bank to be answerable for payment of the- note ? Clearly he had none by reason of the face of the paper, Kirk being an irregular endorser and not liable to him, according to the cases before, cited. There was amoral obligation on the part of Kirk to perform his promise to pay the bank, and this, followed by actual payment, constitutes his equity, and entitles him to substitution. If Slack claims protection against Kirk by reason of a promise to indemnify him,- he must make proof of it; otherwise, why should he have' any defence to Kirk, standing in, the room of the bank? If it be objected that the irregular endorsement by Kirk will not in itself enable him' to maintain the-suit, it might be answered by saying that the action is amendable, and the name of the bank can be used for his benefit. But what is to hinder Kirk’s action ? On paying the note to the bank, he is entitled to delivery of it, and can claim as a holder under Slack’s blank endorsement. His own name being irregularly endorsed before Slack can of itself make no. difference, for he is not liable to Slack upon that endorsement, according to Barto v. Schmeek and Schaffer v. The Bank, the presumption being.that he was intended'to be the second endorser, and it was Slack’s own wrong to endorse below him. To escape this Slack must resort to proof. But if we resort to the parol evidence in this ease the same result follows. It shows that'Kirk never did assume the position of first endorser 'intentionally, and that his name was written above Slack’s by inadvertence or mistake. The note was brought to him by the drawer, with Slack’s endorsement already on it, and without an intimation that he should assume the position of first endorser. He went to the bank with the drawer to assist him in having it discounted and without having endorsed it; and it was ■ only when the bank refused the discount without his name that he endorsed the name. The order of his endorsement, it is evident, was unnoticed, or its effect unknown, as it tended rather-to jeopard the security of the bank than to increase it. As the ease.stood, therefore, this evidence did not alter the relation of Slack to the bank, who had regularly endorsed the note as the payee, nor did ■ it give him any recourse against Kirk. In either aspect, therefore, the plaintiff was entitled to recover the money paid by him to the bank, the payment not being voluntary in the sense of a payment by a mere volunteer, but being made on the footing of a promise to pay and an endorsement of the note. Having waived the protection of the statute, and honestly paid the bank according to his undertaking, he has. a right to use the name of the bank, or to sue in his own name to recover the money.

Judgment affirmed.


text:
    The County of Schuylkill versus Copley.
    1. A bond signed by an illiterate obligor under a misrepresentation of its contents is not his deed, and may be avoided under the plea of non est factum.

    2. Where a'bond is signed with a knowledge of its contents on an inducement by a misstatement of facts, it’ is the deed of the obligor, but may be avoided by the misstatement.
    3. One who has been convicted and is undergoing his sentence for embezzlement as a public officer is a competent witness.
    4. The nature of- the.offence, not its punishment, determines its character as to infamy.'
    5. The tendency of the judicial mind is against objecting to testimony.
    January 20th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. S’harswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county:, Of January Term 1870, No. 369-|. .
    This was a feigned issue, directed on the 21st of March 1868, to he formed between Peter Copley as plaintiff and The County of Schuylkill defendant, to try whether a bond, on which judgment had been entered, purporting to have been executed by Copley and others to the county of Schuylkill, was'the bond of Copley.
    The bond in question was an official bond, dated June 30th 1865, and was in the penalty of $26,012; it purported to have been executed by Thomas Eogarty, Peter Copley,, and fourteen other persons to The County of Schuylkill. It recited that Fogarty had been appointed tax collector of Mahanoy City and had received a tax duplicate amounting to $13,006, and had taken upon himself the duty of collector aforesaid. The condition was that Fogarty should collect and pay over to the county treasurer or account for the whole' amount of taxes charged in the duplicate.
    Copley’s name appeared on the bond with his mark, witnessed by Edward Britt.
    On the trial, January 31st 1870, before Ryon, P. J., Copley testified, that he could not write, that he never made his mark to the bond nor authorized any one to make it for him ; that he did not go bail for Fogarty; that Fogarty asked him to sign a petition “ to get the tax instead of Michael Groody.”
    Edward Britt testified that the name “Edward Britt” as witness was not his signature; that he did not see Copley sign or make his mark; that witness was never asked to sign as witness; that he could not write his name; that he did not authorize any one to write his name for him; that he never saw the bond till he- • saw it in court.-
    The defendant gave evidence tending to show that Copley did isigu the paper under representations that it was a petition on ..behalf of Fogarty for his appointment as tax collector.
    .The defendant offered Thomas Fogarty, a convict serving out a term of imprisonment for defaulting as tax collector. Defendant offered to prove by him that the plaintiff signed the bond, &c. ■
    Plaintiff objected upon the ground of the incompétency of the witness, the offer was rejected and a bill of exceptions sealed.
    The defendant asked the court to charge:—
    “That if the jury believe-that Copley put his name to this bond, or authorized any one to sign it for him, it is immaterial whether he was deceived by Fogarty in the matter or not, unless it be shown that the county was aware of that before taking the bond.”
    The court ehárgéd, that if the plaintiff .made his mark, or authorized it to be made for him as surety upon this bond, the verdict should be in favor of the defendant.
    If, however, that mark was forged or signed by the plaintiff under fraudulent misrepresentations, that it was but a petition to get the appointment to collect the duplicate, the plaintiff not being informed of the contents of the paper, and if he could- not read, the verdict should be for the plaintiff.
    The verdict was for the plaintiff.
    ' The defendant took a writ of error and assigned for error, not affirming defendants’ point, the charge as above’given and rejecting Fogarty as a witness.

      A. W. Schalck (with whom was G. D. B. Keim), for plaintiff in error.
    A fraud .practised by a principal in obtaining the signature of the surety, does not discharge him from his obligation to the obligee, unless such fraud was with the knowledge or consent of the obligee: Graves v. Tucker, 10 S. & M. 9. Notice is necessary, or such acts as a statute characterizes as fraudulent: Dennis v. Burritt, 6 Cal. 607. Fraud is never to be presumed: Stewart v. English, 6 Ind. 176; 'Kellman v. Smith, 18 Texas 835. ‘ Delivery of a bond to the payee is absolute, its effect cannot be controlled by parol: Plank Road Co. v. Stephens, 10 Ind. 1; Ferguson v. Glaze, 12 La. An. 667; Sproule v. Lawrence, 33 Ala. 674. The fact that a surety is unlettered, raises no presumption against its validity: Ellis v. McCormick, 1 Hilton (N. Y. C. P.) 1313. There is no privity between the creditor and the sureties upon a constable’s bond: Rutland v. Paige, 24 Vt. (1 Deane) 181. The character of the undertaking cannot be varied by parol: Bank of Albion v. Smith, 27 Barb. (N. Y.) 489; Speer v. Whitfield, 2 Stockton (N. J.) 107; Ruiz Morton, 4 Cal. 359; Harper v. Pounds, 10. Ind. 32. A contract which parties intended to make, but did not make, cannot be set up in the place of one which they did make, but did not intend to make: Sanford v. Howard, 29 Ala. 684; Sanborn v. Chittenden, 1 Williams (Vt.) 171; Billings v. Billings, 10 Cush. (Mass.) 178. The declarations of the maker of a note made in the absence of the surety are not admissible in evidence against him: Dexter v. Clements, 17 Pick. 175. The execution .of the bond may be proved by the admissions of the obligor or otherwise: Fritz v. Commissioners, 5 Harris 131; Taylor v. Meekly, 4 Yeates 79; Conrad v. Farrow, 5 Watts 536; Garrett v. Gonter, 6 Wright 143. A bond in the hands of the obligee cannot be declared invalid, because of some alleged understanding among the obligors themselves: Keyser v. Keen, 5 Harris 327; Grim v. School Directors, 1 P. F. Smith 219. A party who seeks to relieve himself from his bond for actual fraud must establish that there was a false representation which actually misled him to his hurt: Fulton v. Hood et al., 10 Casey 365; Bredin v. Bredin, 3 Barr 81. Fraud among the debtors on a-note cannot operate to the injury of the discounting bank: Irvine v. Lumbermen's Bank, 2 W. & S. 206. The declarations of an obligor are not evidence to destroy a bond given by him: Wolf v. Carothers, 3 S. & R. 240; Whiting v. Johnson, 11 Id. 328. Declarations of persons combining to defraud are not evidence against an absent party without evidence of combination: Helser v. McGrath, 8 P. F. Smith 458; Slate v. Peck, 53 Maine 284. Fogarty’s offence was not infamous; his credibility was for the jury: Starkie on Ev. 117, 118, Penal Code March 31st 1860, § 65, Pamph. L. 400, Purd. 229, pi. 73; Commonwealth v. Shaver, 3 W. & S. 342; Bickel’s Ex’rs v. Fasig’s Adm’rs, 9 Casey 465; 1 Greenlf. Ev. § 373; 1 Phillips’s Ev. 23, note 13; Wharton’s Am. Crim. Law, § 760; Little v. Gibson, 39 N. H. 505; Shay v. People, 4 Parker (N. Y.) 353; Shay v. People, 22 N. Y. (8 Smith) 317; Wharton’s Am. Criminal Law, § 761.
    February 9th 1871,

      T. H. Walker (with whom was M. Strouse), for defendant in error.
    Copley having been defrauded could not be bound whether the county knew it or not: Michener v. Cavender, 2 Wright 334. If there was a misrepresentation of the contents of the paper, of which Copley was not informed, and he an illiterate man, the bond would be worthless and not binding upon him: Green v. North Buffalo Tp., 6 P. F. Smith 110; Marshall v. Gougler, 10 S. & R. 164; Henning v. Werkheiser, 8 Barr 518; Fulton v. Hood et al., 10 Casey 365. Fogarty was not a competent witness. There is no distinction under the English statutes between larceny and embezzlement, which is a species of larceny: Roscoe’s Criminal Evidence 414; Commonwealth v. Rogers, 7 Met. 500. They cited also Sinclair v. Healy, 4 Wright 417; Green v. Humphry, 14 Id. 212.
   The opinion of the court was delivered,

by Agnew, J.

This was a feigned issue to try the question whether a certain bond, on which judgment had been entered under a warrant of attorney, was the deed of Peter Copley, as one of the sureties of Thomas Fogarty, a collector of taxes. It was proved on the trial that Fogarty obtained the signature of Copley, who was an illiterate man, by representing to him that the paper was a petition to the county commissioners for his appointment as tax collector. The county contended that the deception mattered not, unless it be shown that the county had a knowledge of the fraud before accepting the bond. The court below held that the misrepresentation of the contents of the paper avoided it as a bond. The issue, therefore, was the same as if, to a declaration on the bond, non est factum had been pleaded. The instruction of the court was right and follows the distinction stated in Green v. North Buffalo Township, 6 P. F. Smith 114, between a defence resting upon facts which are misstated in order to induce a party to enter into a bond, the contents of which he knows; and one resting on a misrepresentation of the contents of the instrument itself, to an illiterate person. In the-former it was said the bond is the obligation of the party who seals it, but is avoided by the false inducement to enter into it; in the latter it is riot Ms deed or bond at all. No authority.-was cited for this elementary principle,-and it is argued .that the second proposition is unsound. But it was the first resolution in Thoroughgood’s Case, in the time .of Lord Coke, 2 Reports, 9 b, in these words: “First, that although the party to whom the writing is made, or other by his procurement, doth not read the writing; but .a stranger of his own head read it;in other words than it in truth is; yet it. shall not bind the party who delivereth it ;• for it is not material who readeth the writing, so as he who maketh it be a layman, and being not lettered, be (without any covin in himself) deceived, and that is proved by the usual form of pleading in such a case, that is to say, that, he was a layman and not learned, and that the.deed was read to him in other words, &c.; generally,, without showing by whom it was read.” The second' resolution in Thoroughgood’s Case was that an illiterate man need not execute a deed before it is read to him in a language he understands; but if he do, without desiring - it to be read, the deed is binding. And see 2 Black’s Com. *304-308. And says Mr. Chitty, in his Pleadings, Vol. I., *483, The defendant may give evidence under the plea non est factum that the deed was void at common law db initio; or that it was obtained by fraud; or whilst the party was drunk, a married woman or. a lunatic; or that it became void after it was made and before the commencement of the action, by erasure, alteration, addition, &c. See also 1 Saunders on Pl. & Ev. *407. The-very point in this case was decided in Stoever v. Weir, 10 S. & R. 25. That was an action on a single bill to which a defence was set up that the writing had been obtained by falsely reading’it as a receipt, apd requesting the defendant to sign it as a witness. The plea setting forth the facts specially was treated as a special non est factum. See also Bauer v. Roth, 4 Rawle 93, 94, per Kennedy, J. These authorities show that the learned judge committed no error in his charge.

But we think the court erred in the rejection of Thomas Fogarty .as a witness on the ground of infamy: Fogarty had been convicted and'senteneed for embezzlement of the county’s money, as a tax'collector, under the 65th section of the Act of 31st March 1860, Brightly’s Dig. 229, pl. 73; and was in prison- under his sentence. The punishment of the offence of embezzlement under this section is imprisonment by separate or solitary confinement at labor not exceeding five years, and a fine equal to the amount of the money embezzled. . The punishment is the same kind as that inflicted for infamous offences in Pennsylvania; but it is’now settled that it M not the nature of the punishment, but of -the of-fence, which determines its infamous, character: 2 Russell on Crimes 974; 1 Greenleaf’s Ev., § 372, in note 3; 3 Casey 465. Infamous crimes are treason, felony, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, and offences, affecting the public administration of justice; such as bribing a witness to absent, himself, and not to give evidence, and conspiracies • to obstruct the administration of justice, or falsely to accuse one of an indictable crime: 2 Russell- on Crimes 973; 1 Greenleaf’s Ev., § 373. This is clearly the limitation of the infamous crimes as understood in this state; as may be seen in the following cases: Commonwealth v. Shaver, 3 W. & S. 342-3; Bickel’s Ex’r. v. Fasig’s Adm’r, 9 Casey 464-5. And see argument of counsel in Commonwealth for use v. The Ohio and Pennsylvania Railroad Co., 1 Grant 331, 2, 3, 4.

There are many offences,- involving both falsehood and fraud; which' are punished as infamous crimes are usually punished in this state, and yet are not infamous crimes, and .will not exclude the offenders as witnesses : Commonwealth v. Shaver, and Commonwealth v. Ohio and Penna. Railroad Co., supra; 1 Greenleaf's Ev., § 373. In Massachusetts it is held that the offences of receiving stolen goods knowingly, and cheating by false pretences, will not render the offenders infamous : Commonwealth v. Rogers, 7 Metcalf 500; Utley v. Menich, 11 Id. 302; and see 1 Whart. C. L. § 761. As remarked by Woodward, J., in 9 Casey 465, the tendency of the judicial mind is against objections to competency. -Such also is the direction of legislation, to be seen in § 181 of the Act of 31st March 1860, Brightly’s Dig. 247, pl. 190, which gives to a convict who endures his punishment, for a felony or any misdemeanor punishable with imprisonment at labor, the advantage of a full pardon, except as to wilful and corrupt perjury. Fulfilling his' sentence, therefore; restores the offender to competency as a witness. The Act of 15th April.1869, declaring that no interest or policy of law shall exclude a party or person from being a witness in any civil proceeding, runs in the same direction. In all these cases the objection goes to the credibility of the witness rather-.than to his. competency. Fot the error in rejecting the witness, the judgment is reversed, and.a venire de novo awarded.


text:
    McHugh versus The County of Schuylkill.
    1. The defence to a bond was that the obligor’s name was forged; the court charged that if the' obligor subsequently approved and acquiesced in the forgery or ratified it, the bond was binding on him. Held, there being no new consideration, that the instruction Was error.
    2. Where there has been actual and positive fraud or the party has acted malfi fide, there can be no confirmation. : . *
    3. A contract infected with fraud is void,"not merely voidable; confirmation without a new consideration would be nudum pactum.

    January 20th 1871.'
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J.,- at Nisi Prius.
    Error to the Court of Common Pleas of' Schuylkill county: Of January Term 1870, No. 366.
    This was a feigned issue directed October 1st 1869,. between James McHugh, plaintiff, and The.County of Schuylkill, defendant, to try whether a bond on which judgment had been entered and which purported to have been signed by the plaintiff, had' been executed by him.
    The instrument was the official bond of Patrick McKenna, collector of taxes in Port Carbon, and was in the penalty of $17,668 conditioned for the collection and paying over of the taxes appearing on the - duplicate amounting to $8834. The bond appeared to be signed by the plaintiff and nine others as sureties for McKenna: the name “Francis McHugh” appeared as witness to the plaintiff’s-signature.
    On the trial, February 1st 1870, before Ryon, P. J., the plaintiff called •
    Mary McHugh, who on the bond being shown her,-testified: “I have seen this before. I know who wrote James McHugh’s name on this. I did it. I wrote Francis McHugh’s name also. Francis McHugh is my brother. I am James McHugh’s daughter. Mr. Patrick McKenna told me to write James McHugh’s name to this paper. My father was not present when I wrote it. He did not tell me to write it. I wrote the name in the dining-room of our house. No one was in the room when I wrote father’s name but McKenna. Francis came in just as I had written my father’s name. McKenna asked his name. I told him ‘ Francis;’ and he told me to put that down too.” * * *
    Francis McHugh testified: “I am a son of James McHugh. I remember seeing McKenna at our house one time when my sister wrote my name to .that paper; this was done in the dining-room.' ' McKenna, my sister and myself were the only persons present. I came in from the kitchen. McKenna took the paper and went into .the bar-room. I think I went into the ■ kitchen.' I could write. When McKenna left the dining-room I did not see him again.” * * *
    John McQuail testified: “I live in. Luzerne county; I went to Mahanoy City with McKenna to his house; we started together from New Philadelphia. McKenna came there for me. We went to Mahanoy City together to the house of James McHugh. We got to his house'sometime about half-past. four.in the afternoon. When we went' in there, there was no one in the bar-room but McHugh’s daughter. McKenna did not make himself known at once. When we went in the old man pame in and after they had talked awhile he pulled a paper out of his pocket and threw it once on the counter and said, I want you to put your name to that. McHugh shook his head and said, ‘ That is something that I don’t do.’ So McKenna picked up this paper to put it in his pocket and appeared mad or dissatisfied that-he shouldn’t do •this favor for him.” * * *
    For defendant: Patrick Carr testified : “ I was at Mahanoy City some' time ago at McHugh’s house some two or three months before McKenna was arrested. McHugh asked me how McKenna was getting along with the collecting of the tax. I told McHugh that I heard.McKenna was $3000 behind. McHugh said it was a good job that he, McHugh, was not his bail. I asked him if he was not on his, McKenna’s, bond, he said he was not. Some time after that I saw McKenna. I told McKenna of the conversation he had with McHugh. I afterwards saw McHugh at Port Carbon in McKenna’s house. I asked McHugh whether he had said that he was not on McKenna’s bond. He denied having said this to me. There was some talk there, I don’t remember what it was, but McKenna introduced him to the men there as his bail.' McHugh said he was on McKenna’s bond and would be there again if he, McKenna, could get the tax again. James MéGovern, Patrick Ruddy and Mrs. McKenna were present at the time. * * * It was three or four weeks afterwards McHugh came to McKenna’s house; he came in alone. James McGovern, Thomas Ruddy and Mrs. McKenna and myself. McKenna fetched McHugh into the porter-room. I went alone into the porter-room; no one else but we three, were there. I asked McHugh whether he had said to me at Mahanoy City that he was not on McKenna’s bond. He said he had not. McKenna laughed and said he had, and left and went back to bar-room. They said the same out in bar-room.' McKenna introduced McHugh as his bondsman. There is Mr. McHugh, one of my bondsmen, from Mahanoy City. They talked about the bond, but I cannot remember what they said. It was on a Sunday, three 'or four months before McKenna was arrested in 1868.” * * * •
    , Bridget McKenna testified: “ I am the wife of P. McKenna; I know Mr. McHugh; the last time McHugh was at our house was when he came to borrow money; McHugh, McKenna and myself went into the .porter-room; we got talking about this bail; McHugh told McKenna to try and get the money collected and pay it in as fast as he could ; he said he was in some difficulty about his property, and could do nothing while he was on Pat’s bond; he said something about a difficulty he was in; he asked Mr. McKenna to lend him $500; McKenna said he had none, but he would go -and get -him some; they began to talk about McHugh’s denying being on the bond; McHugh said he never said it to'Carr; we came out then.” * * * •
    In rebuttal the plaintiff testified: “ I .did not see my daughter when she wrote my name to the- bond. I did not know she had done it until three or four days after my little girl wrote my name. We were sitting at the. supper table when I heard .of it. I did not see McKenna for three weeks after.. I saw McKenna in Port Carbon, and asked him to have my name off the bond. I came down to get McKenna to • take me off the bond. He began to curse me and ask if .1 was afraid he would run off with the money. I asked him why he could go over little children so. He said damn his soul he.did hot care, he had my name anyhow. Pour or-five weeks after I came down again to'see'if he had done it.. He said he-had not and would not. * * * The first I.knew of being on the bond, was when the little girl told me McKenna had asked me to sign on- this bond. ' I told him no I could not bail a cat. He did not ask me again. He ’asked me in my own bar-room. * '* * As soon as McKenna put. the question to me, I left to get some. ale. McKenna did not call for the drinks. There was no one left in charge of the bar-room. I was away three-quarters or half an hour, less or-more. * * ■* I cannot read or write.” * *. *
    The following are points of -the defendant,’ with their -answers :—
    2. Even if James McHugh had not authorized his name to be put on the bond, yet if he. afterwards affirmed it, as testified to by the witnesses for the defendant, he is still liable thereon.
    Answer : “ McHugh might, if he did not authorize the signing of his name, approve or adopt the act as his own, in which case he would be liable-on the bond. But whether he did so approve or adopt the act of 'his daughter is a question for the jury. This testimony relating to the acknowledgment of the plaintiff .that he was upon the bond would refer to the original act more particularly than to a ratification of anything that was done without his authority. With these remarks we affirm this point.” ■
    3. If the name of James McHugh was subscribed to the said bond without his direction or consent, and subsequently he ratified the same, or consented to or approved of it,-he - is still bound- by, the bond.. • ,
    Answer: “ Answered by reasons-given in answer- tó defendant’s 2d point.”'
    The court charged:—
    “McHugh, the plaintiff; was one of the sureties of Patrick McKenna, who was appointed collector of the county rates and levies for 1867. McHugh alleges that his signature to the bond Was a forgery and this issue was directed to try that question, wherein McHugh was made plaintiff and the county the defendant. If McHugh did not make his signature to-this bond or authorize another to make it for him, but his name was put'upon this bond' without his knowledge or consent or authority, then' the plaintiff is' entitled to a verdict. [Upon- the -other hand, if McHugh authorized his name to -be put-upon this bond, ór consented that it should be put there at the time it was put upon' the bond, or’ subsequently approved it and acquiesced in the act, he would be bound,-and your verdict'should be for the defendant.]. The plaintiff .contends that his name was put on this-bond by. his daughter, and signed by his son (small boy) in .his absence and- without his authority or knowledge,, at the instance of McKenna, and that he (plaintiff) did not know that his'name-was on the bond until four days after it was put there by his daughter. This state of facts is sustained by his daughter and son'and the-plaintiff himself and by his declaration subsequently made and proved by" the' defendant. After the plaintiff knew that his name had been affixed' to' the bond 'he proves that, he took steps to have his name taken off. The evidence you have heard, and if you believe it your verdict should be for the plaintiff.
    “ [The county-have not been able to prove that the plaintiff at the time signed the bond by witnesses that were present at- the signing, but rély u-pon the declarations of the plaintiff, subsequently made, and circumstances to show that the plaintiff’s name was put there with his knowledge or consent, or was subsequently approved by the plaintiff. The. facts are before you and you must determine the question. If you should find' the- facts as contended for by the county, as above stated, your verdict should be for the county.] The testimony is conflicting and contradictory. Your duty is to reconcile it if you can; if not you must give credit to such as you- think most reliable, and disregard such as you think is not entitled to credit.”
    The verdict was for the defendant.
    The plaintiff took out a-writ of error and assigned for error; the answers to the defendant’s points and the portions of the •charge in brackets'.

      February 9th 1871,

      H. B. Graeff and J. W. By an, for plaintiff in error.
    The bond as to McHugh being void at its inception could not he ratified : Duncan v. McCullough, 4 S. & R. 483; Chamberlain v. McClurg, 8 W. & S. 31.

      A. W. Schalck (with whom was G. D. B. Keim), for.defendant in error.
    The plaintiff is estopped by his laches: Garrigues v. Harris, 5 Harris 351; Martin v. Ives, 17 S. & R. 366. When a loss must befall one of two innocent persons, he must bear it, through whose act it was occasioned: Hill v. Epley, 7 Casey 334; Epley v. Witherow, 7 Watts 165; Carr v. Wallace, Id. 400; Patterson v. Lytle; 1 Jones 56; Nass v. Van Swearingen, 10 S. & R. 146; Commonwealth v. Moltz, 10 Barr 530; Keeler v. Vantuyle, 6 Id. 253; Chapman v. Chapman, 9 P. F. Smith 214; Bridge Co. v. Kline, Brightly’s R. 324; Garrett v. Gonter, 6 Wright 143. A consideration is not necessary to the validity of a bond; Page v. Trufant, 2 Mass. 159; and a failure of consideration is not a defence to an action on a bond: Dorlan v. Sammis, 2 Johns. 179. The seal imports a consideration, and creates a legal obligation: Candor’s Appeal, 3 Casey 119. One who has been induced to enter into an agreement by fraud may affirm the contract after the discovery of the fraud: Whitney v. Allaire, 4 Denio 554; Blydenburgh v. Welsh, Bald. 331; Ulingate v. King, 10 Shep. 35; Byers v. McClanahan, 6 Gill & Johnson 250; Rhode v. Louthain, 8 Blackf. 413; Hill v. Scales, 7 Yerger 410.
   The opinion-of the court was delivered,

by Read, J.

If the story told on the- part- of the plaintiff is-believed, then his name was forged- as a surety upon a bond given to the county of Schuylkill by a collector of taxes, by the principal in the instrument.. Assuming.this to be a fact for the purposes of the case, the question is, was the court- in error either in its answers to the points, or in 'its charge. to the' jury ? A forged deed is void. The plaintiff cannot write, and there is no mark to the name of James McHugh on the bond, and the name is proved to .be in the handwriting of his-, daughter, who was directed by McKenna, the principal, to sign it, and if thé testimony is believed' without a shadow of. authority from the plaintiff McKenna, using the daughter and son as' hi's innocent instruments in committing, this, crime. - There is not a particle of evidence that the commissioners or any of. the county authorities ever'saw the plaintiff, but the.whole testimony which is relied- on to establish the plaintiff’s liability, are vague conversations and declarations from which approval, acquiescence or ratification are inferred.

. From the answers to the defendant’s point.s; and the charge of the court, the- learned judge appears to have instructed the jury that if the plaintiff subsequently approved and • acquiesced in this void act, or ratified it or subsequently approved of it, then the bond was binding upon him. No new consideration of any kind was either alleged or pretended, and the cases of Duncan v. McCullough, 4 S. & R. 483, Chamberlain v. McClurg, 8 W. & S. 31, 36, Goepp’s Appeal, 3 Harris 428, show clearly, that under the circumstances the act simply retains its original character, and. is entirely void.

Judge Rogers says, 8 W. & S. 36, “ The principle which rules this part of the case, is ruled in Duncan v. McCullough, administrator of Findley, 4 S. & R. 486. When there has been actual and positive fraud, or the adverse party has acted malá fide, there can be no such thing as a confirmation; what was once a fraud, will always be so. The reason is,- that a contract infected with fraud, is not merely voidable, but void, and confirmation without a new consideration would be nudum pactum.”

Can there be any doubt of the application of this rule to a' forged bond or - deed which involves the commission of a heinous crime, punishable with a fine not exceeding $1000, and imprisonment by separate or solitary confinement at labor not exceeding ten years ?

The case of Garrett v. Gonter, 6 Wright 143, has really no application whatever; for the alleged forged power of attorney was not ratified at all, and the only alleged ratification was of a mortgage which was executed in her name by a professed agent acting under a real or a pretended authority” — “ to ratify that required no new .consideration from the mortgagee.”

In two cases this term, forgeries are alleged of sureties’ names to bonds of collectors of taxes in Schuylkill county, and we believe embezzlements of the public moneys charged against the principals. The commissioners should certainly exercise more care and caution in selecting honest officials, and in taking good security.

Judgment reversed, and a venire facias de novo awarded.


author: by Sharswood, J.

text:
    Pratt versus Eby.
    • 1. A Me depending on the bar of the Statute of Limitations may be ' marketable, and a purchaser compelled to accept it if it clearly appear that the entry of the real owner is barred. .
    2. If- the owner be under a disability when the adverse possession commenced, the Act of April 22d 1856 applies.
    3. The exception in the Act of 1795 as to persons beyond seas, is repealed by Act of March 11th 1815.
    4. Under an order of the Orphans’ Court in partition, the estate of Graham was sold and the purchaser took possession in March 1840. A successor of the purchaser sold; the vendee declined to accept a conveyance alleging that the proceedings were defective; suit was commenced for the purchase-mon'ey September 1870. Held, thirty years having expired, that whether Graham’s heirs were under disability or not, all right of entry in them was barred, unless there had been an entry followed by an ejectment or,an action within that period.
    > 5. By the order of the Orphans’ Court to Ann Graham, the administratrix, two-thirds of the purchase were to be secured by mortgage.' The return to the order was “ the subscribers, attorneys in fact for Ann Graham, administratrix,” &e., and was signed “Washington Boss, Mark A. Hodgson, attorneys, Ann Graham,” and was confirmed. The deed was in the name of the administratrix by her attorneys (naming them) specially constituted, and signed by the attorneys only; the mortgage was to them as attorneys.of the administratrix.. After her death one of the attorneys received the money and entered satisfaction of the mortgage. Meld, that this would not be evidence of extinguishment of the mortgage.
    6. No payment, demand, &c., had been made on the mortgage for more than twenty-one years. The Supreme Court was divided as to .whether a mortgage is within the expression “ other charges,” in 7th section of Act of April 27th 1855, and this was held sufficient to render the title unmarketable.
    .7. It is a mistake to suppose that a doubtful title can be made marketable by an opinion of a court on a case stated between vendor and vendee:
    8. In this case the 'heirs of Graham not being in court as parties to the action, their rights could not be concluded by any judgment in it.
    January 20th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to ■ the. Court of Common Pleas of Chester county: No. 257,.to January Term 1871. .
    This was an amicable action of debt and cáse stated, in which ' Henry Eby was plaintiff and Joseph Pratt was.defendant. It was commenced-September 6th 1870.
    The ease exhibited the following facts:—
    The Rev. Robert Graham, of Penn township, in said county, being seised in fee of two certain, messuages and three lots or parcels of land adjoining each other, situate- in said township of Penn, &c., and containing altogether 69 acres and 72 perches of land more or less, died intestate November 5th 1835, leaving a widow, Ann Graham, and children, to whom said real estate descended. After his death such proceedings in partition upo'n his said real estate were had in the Orphans’ Court that, on May 6th 1839, said court ordered that said Ann Graham, one of the administrators of said deceased, having first filed a bond in the usual form, with Washington Ross and Mark A. Hodgson as sureties, should expose said premises to sale on October 19th 1.839, upon the following terms and conditions: One-third of the purchase-money to be paid cash, one-third in one year, with interest, and the remaining third at the death of the widow of said deceased; these two latter payments to be secured by bond ánd mortgage upon the premises, in the usual form.
    In' pursuance thereof, said administratrix sold said real estate, on the day in said order mentioned, to- Frederick Andress, for $3711. A return of said sale was made to said court, signed by Washington Ross and Mark A. Hodgson, as attorneys in fact of said administratrix, and also by the said Ann Graham, administratrix (which return was made a part of the case), the return was confirmed by said court, November 4th 1839. In pursuance of said salé a deed was made to the said ^Frederick Andress, on March 6th 1840, executed in the name of Ann Graham, administratrix of Rev. Robert Graham, deceased, by Washington Ross and Mark A, Hodgson, attorneys in fact, specially constituted, signed by them .alone, the said Ann Graham hot uniting with them (the deed was made part of the case). On the delivery of.the deed, Andress paid one-third of said purchase-money in cash, and executed a mortgage upon the premises for the balance (being the money directed by the order of court aforesaid to be secured .upon said premises), in which Ann Graham, administratrix of Rey. Robert Graham, by her attorneys in fact, Washington Ross and Mark A. Hodgson, specially constituted, are the mortgagees named, conditioned' for the payment of $1237, with interest, on April 1st 1841, and also for the.payment of $1237, upon the decease of said Ann Graham, the interest thereof to be paid to her during her life, which mortgage is recorded, &c. No power of attorney from Ann Graham to Washington Ross and Mark A. Hodgson is filed, or on record, or can be found, and no evidence of the same exists, except as is contained • in the ■ return to the order of sale, the deed and mortgage aforesaid. •
    Ann Graham, widow of the said Rev. Robert Graham, deceased, died March 26th 1840. Frederick Andress paid the whole of the moneys, secured by said mortgage to Washington Ross, one of said mortgagees, who, on the '30th day of.March 1842, entered satisfaction upon the records of said mortgage, and no- payment, claim or demand on account of said mortgage, has since been made by any one. Andress, at the time of receiving said deed, entered into possession of said premises, and he and his grantees have held continuous, uninterrupted,' hostile and notorious possession thereof ever since. ■
    Ry virtue, of 1 divérs mesne conveyances, the title of the said Frederick Andress to a portion of said premises, hereafter described, became■ vested in Henry Eby,'Sr.,-to wit: To all that messuage and lot of ground, &e., containing one acre of land, more or less.
    On October 28th 1869, the said Henry Eby, Sr., the plaintiff, sold thé premises last described, to. Joseph Pratt, the defendant, for $6000, according to conditions of sale and acknowledgment of. purchase. Pursuant to said contract, the said Henry Eby, Sr., tendered a deed of conveyance in the ordinary form, for the said premises, purporting to convey a fee' simple in the same, to the said Joseph Pratt,'.and demanded payment of the purchase-money, in .accordance with the terms of said conditions -of sale. The said Joseph Pratt declined to receive said deed, and to pay said purchase-moneys, on the ground that the plaintiff had no marketable title to the said premises, and could not convey an indefeasible fee simple title thereto.
    The question for the opinion of the court, is whether, under the above circumstances, the plaintiff has an unencumbered marketable title to said premises.
    “ If the court shall be of opinion that the plaintiff has' a marketable. title to said premises, and can convey an indefeasible fee simple title thereto,-the judgment to be entered for the plaintiff, the amount to be settled by the attorneys. If not, judgment to be entered for the defendant.”
    Return to order of sale in Rev. Robert Graham’s estate:—
    “ To the Honorable the Judges within named.
    “ The subscribers, attorneys in fact for Ann Graham, administratrix of the estate of Rev. Robert Graham, deceased, within mentioned, do report, that, in pursuance of the within order of court, having given due public and timely notice of the time and place of sale, agreeably to the directions thereof, we did, on the 19th day of October, A. D. 1839, expose the lands and tenements therein-mentioned to sale by public vendue or outcry, and sold the same, all together,, to Frederick Andress, for the sum of three thousand seven hundred and eleven dollars,, he being the highest and best bidder, and that the highest and best price bidden for the same, which sale we pray may be confirmed by the court..
    “ Washington Ross,
    “ Mark A. Hodgson,
    “ Oct. 19th 1839. Attorneys.
    “ Ann Graham.
    “Nov. 4th 1839, read and confirmed nisi.”
    Deed:—
    “ This Indenture, made the 6th day of March, in the year of our Lord one thousand eight hundred and forty, between Ann Graham, of the township of Penn, in the county of Chester, state of Pennsylvania, widow, administratrix, &c., of Rev. Robert Graham, late of the same place, deceased, &c., by her attorneys, Washington'Ross and Mark A. Hodgson, especially constituted of the one part, and Frederick Andress, of the township of West Bradford, in the -county and state aforesaid, of the other part. Whereas, &e. (reciting Graham’s title, his seisin at his death and the proceedings in the Orphans’ Court). And whereas, the said Ann Graham, administratrix as'aforesaid, by her letter of attorney, under her hand and sea-1 duly executed, did nominate, depute and appoint the said Washington Ross, of, &c., and Mark A. Hodgson, of, &c., to be her lawful attorneys, giving and' granting unto the said Washington Ross and Mark A. Hodgson full'power and authority to sell the above-mentioned and described three tracts or parcels of land, and also to give good and sufficient discharges for all and every sum or sums of money which they, the said Washington Ross and Mark A. Hodgson, or either of them, shall receive, as and for the purchase-moneys of the aforesaid three tracts or parcels of land, and also to sign, seal and deliver and acknowledge all such deeds of conveyances as might be necessary for the absolute granting and assuring of the premises in fee simple, as in and by said letter of attorney, bearing date the nineteenth day of October, Anno Domini one thousand eight hundred and thirty-nine. In pursuance of which said order, the said Washington Ross and Mark A. Hodgson, attorneys aforesaid, after having given due public and timely notice, &e., sold the same to the said Frederick Andress for the sum of $3711, which •sale, on report thereof made to the judges of said court, was, on the fourth day of November following, by them confirmed, &c. * * *
    “Now, this Indenture witnesseth, that the said Ann Graham, by her attorneys, Washington Ross and Mark A. Hodgson as aforesaid specially constituted, for and in consideration of the sum of three thousand seven hundred and eleven dollars, &c., to them in hand paid by the said Frederick Andress at and before the sealing and delivery hereof, the. receipt whereof is hereby acknowledged, and thereof acquit and for ever discharge the said Frederick Andress, his heirs, executors and administrators, by these presents have and each of them hath granted, &c., and by these presents, in pursuance and by virtue of the said order of the court, do grant, &c., unto the said Frederick Andress, and to his heirs‘and assigns, all the above mentioned and described messuage or tenement, and three tracts of land, &c. * * *
    “ In witness whereof, the parties to these presents have interchangeably set their hands and seals the day and year above written. [l.s.] “ Washington Ross.
    [l.s.] “ Mark A. Hodgson,
    “ Sealed and delivered,” &c.
    Butler, P. J., .delivered the opinion of the court, as follows: — “We think the sale under the order of the Orphans’ Court, and the acts of the parties in pursuance of it — the delivery of possession and payment of purchase-money — vested a complete title in Mr. Andress. The failure to. execute a deed is not, we think, important.
    “ But in addition to this, the long, uninterrupted, hostile possession which the plaintiff and those under whom he claims have had o.f the land, confers a good title under the Statute of Limitations. More than thirty years have elapsed since they entered. That the possession was uninterrupted, notorious and hostile, is set out in the case stated. • Since the Act of April 22d 1856 such possession for such a length of time bars everybody.

      “ And we think the title is unencumbered — that the mortgage by Andress is satisfied. Independently of the entry on the record by one of the attorneys in fact named in it, the Act of 1855 requires that the mortgage shall be treated as extinguished, no money having been paid nor demand made on account of it for more than twenty-one years.
    “ A marketable title is one in which no actual doubt is involved: Dalzell v. Crawford, 1 Pars. Eq. Cases 37. And we believe the plaintiff, on the facts stated, has such a title.”
    Judgment was thereupon entered for the plaintiff, which the defendant assigned for error on the removal of the record to the Supreme Court.

      R. E. Monaghan and J. Smith Futhey, for plaintiff in error.
    The Acts of Assembly contemplate the making of a deed, conveying the title to the purchaser : Acts of 29th of March 1882, § 47, Pamph L. 204, Purd. 298, pl. 153; 9th of April 1849, § 4, Pamph. L. 525, Purd. 298, pl. 155.
    There being no evidence of any authority in Washington Ross and Mark A. Hodgson to execute a deed, the case stands as if no such conveyance had been made. The title of the defendant in error, therefore', rests solely on the undisturbed possession of the premises, without any conveyance of the legal title to him.
    The power of the attorneys in fact ceased with the death of the administratrix — for their power would die with her — they had no authority to receive the instalment of one-third^ secured by the mortgage and payable in one year, the administratrix having died previously to its becoming due.
    The widow’s third could be satisfied only by the heirs: Act of 29th of March 1832, § 43, Pamph. L. 203, Purd. 297, pl. 152; Hise v. Geiger, 7 W. & S. 273.

      A. P. Reid, for defendant in error.
    A purchaser will not be permitted to object to a title on account of a bare possibility: Dalzell v. Crawford, 1 Pars. Eq. Cases 37; Sugden on Vendors 590. A deed was not necessary to vest a complete title in Mr. Andress: Beeson v. McNabb, 2 Watts 106; Backenstoss v. Stahler, 9 Casey 256. In sales by order of the Orphans’ Court, the administrator is but the agent of the court: Sage v. Nock, 3 Am. Law Reg. 326; Miles v. Diven, 6 Watts 148; Myers v. Hodges, 2 Id. 381; Marshall v. Hoff, 1 Id. 440; Vandever v. Baker, 1 Harris 126. The fact that the attorneys gave no security, will not affect the title in the hands of the purchaser, who has complied with the terms of sale: Lockhart v. John, 7 Barr 137; Dixey v. Laning, 13 Wright 146. Andress and his grantees have held continuous, uninterrupted, exclusive, hostile and notorious possession thereof, ever since, — a period of over thirty, years. This gives complete title against every one: Watson v. Gregg, 10 Watts 289; Johnson v. Irwin, 3 S. & R. 291; Pederick v. Searle, 5 Id. 236; Acts of March 26th 1785, §§ 2, 4, 2 Sm. L. 299, Purd. 653, pl. 3, 5; April 22d 1856, § 1, Pamph. L. 532, Purd. 654, pl. 12; Weddle v. Robertson, 6 Watts 486; Shofer v. Dutton, 6 Phila. R. 185. Satisfaction by Ross, one of the mortgagees, who was recognised as the agent of the court, in making the sale, was but collateral to the order of the court: De Haven v. Bartholomew, 7 P. F. Smith 126. Hise v. Geiger, 7 W. & S. 273, is overruled by Unangst v. Kraemer, 8 W. & S. 391; Brooks v. Smyser, 12 Wright 89.
    February 27th 1871,
    It is claimed that the charge in favor of the widow is a lien independently of the mortgage. The presumption from the lapse of time is that the whole money has been paid. Besides, no “ payment, claim or demand on account” has ever been made by any one.
    All rights, under either it or the mortgage, are therefore completely extinguished: Act of April 27 th 1855, § 7, Pamph. L. 369, Purd. 654, pl. 11.
   The opinion of the court was delivered,

by Sharswood, J.

A title depending on the bar'of the Statute of Limitation maybe a marketable title which a purchaser will be compelled to accept, provided it clearly appears that the entry of the real owner or owners is barred: Shober v. Dutton, 6 Phila. Rep. 185. As where there is an owner in fee under no disability at the time the title accrues as against whom the statute begins to run and of course continues to run as against all his alienees, whether of particular estates or otherwise, and twenty-one years elapse without entry, or what is equivalent thereto, twenty-two years elapse without an action brought founded upon an entry within the twenty-one years. By the Act of April 13th 1859, § 1, Pamph. L. 603, “ no entry upon lands shall arrest the running of the Statute of Limitations unless an action of ejectment be commenced therefor within one year thereafter.” Even if the owner be tenant in tail, at the time of the decision, and the bar becomes complete as to him, no entry can be made “ by any person claiming any estate, interest or right which such tenant in tail might lawfully have barred; and whensoever the Statute of Limitations shall have begun or shall begin to run against the tenant in tail it shall continue to run against the issue, remainderman or reversioner, unless arrested by the act of the tenant in tail:” § 2 of the same act. If tjie owner, however, should be under a disability at the time the adverse possession commenced, then the Act of April 22d 1856, Pamph. L. 532, applies. The first section of that act provides “that no exception in any Act of Assembly respecting the limitation of actions in favor of persons non compos mentis, imprisoned, femes covert or minors, shall extend so as to permit any person to maintain any action for the recovery of any lands or tenements after thirty years shall have elapsed since the right of entry thereto accrued, to any person within the exceptions aforesaid.” The other exception in the Act of 1795, as to persons beyond seas, was repealed by Act of March 11th 1815, Pamph. L. 125. In addition to this there is the further security provided by the second section of the Act of April 22d 1856, Pamph. L. 532, by which it is enacted that no purchaser or mortgagee shall be affected with notice of the pendency of any ejectment or action to recover real estate, or to compel a conveyance thereof, unless such action shall be indexed against the defendant and any terre-tenant made a party thereto in a book to be kept by the prothonotary, and called the ejectment index, for which the plaintiff shall furnish the necessary information.” Prior to 1856, the docket had to be searched to ascertain if there was any lis pendens.

The plaintiff below took adverse possession of the premises on March 1st 1840, at which time the right of entry, if the Orphans’ Court sale was defective, was in the heirs-at-law of the Rev. Robert Graham in fee; and thirty years having expired, whether they were then under the .disability or not, all right of entry in them, or any person claiming under them, is barred, unless there has been an entry followed by an action of ejectment, or an action within that period, of which the docket of the Court of Common Pleas, and perhaps of the Circuit Court of the United States, will furnish the necessary negative evidence. Thus qualified and fortified we would he disposed to hold such a title resting on adverse possession to be indubitable, and therefore marketable.

But that which we have found to be a more difficult question to answer in the affirmative is, whether this title is clear of all encumbrances. Andress, the purchaser at the Orphans’ Court sale, paid one-third of the purchase-money in cash, and the balance was a charge upon the estate by the order of the court requiring the execution of a mortgage, and by the execution and recording of the same. According to the case stated, this mortgage was one “ in which Ann Graham, administratrix of Rev. Robert Graham, by her attorneys in fact Washington Ross and Mark A. Hodgson, specially constituted, are, the mortgagees named.” We are not provided with a copy of the mortgage; but we must assume that it is truly described. Now it can hardly be pretended that the receipt of the money, and, the entry of satisfaction by Washington Ross, after the death of Ann Graham, would be sufficient evidence of the extinguishment of the mortgage. But more than twenty-one years have run since the date of it, “ and no payment, claim or demand on account of said mortgage has since been made by any one.” It is contended that this presents a case within the 7th section of the Act of April 27th 1855, Pamph. L. 369, by -which it is provided “ that in all cases where no payment, claim or demand shall have been made on account of or for any ground-rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, subject to such ground-rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground-rent, annuity or charge shall thereafter be irrecoverable.” Is this mortgage within the meaning of the word, “ground-rent, annuity or other charge upon real estate?” If it is, the title is unencumbered. If not, there is only the ordinary presumption of payment open to be rebutted, a risk which a purchaser cannot be required to assume. Upon this question it may be argued that “ other charges upon real estate,” means other charges ejusdem generis with ground-rent or annuity, a charge arising from deed or will. My opinion is that the act should have a liberal construction, and be held to apply to all kinds of charges upon real estate, to which the ordinary presumption of payment applied, making such presumption to be juris et de jure. Upon this question the members of this court are divided in opinion. That of itself is a sufficient reason for not forcing the title upon a purchaser. It is a great, though perhaps a common mistake, to suppose that a doubtful title can be made marketable by an opinion of a court on a case stated between Vendor and vendee. We have not the heirs of the Rev. Robert Graham before us as parties in this action, and their rights cannot be concluded by any judgment we can give.

Judgment reversed, and now judgment for the defendant on the case stated.