text:
    Becker et al. versus Werner.
    1. Where a clause in 'a lease prohibits the transfer thereof by the lessee under penalty of forfeiture, the mortgaging of the leasehold by said lessee will constitute a sufficient ground of forfeiture.
    2. Where, by the terms of a lease, the lessor is authorized to distrain either for rent or taxes in arrear, and is also empowered to forfeit said lease in case of failure to pay said rent or taxes, he has the right to dis-train for rent in arrear, and at the same time to proceed to forfeit the lease for unpaid taxes.
    3. A. leased property to B. the lease providing that the improvements on the premises might be levied upon for rent or taxes in arrear, and that the non-payment of rent or taxes, or the assignment of the lease by the lessee, should constitute sufficient ground for forfeiture. B. and his wife afterwards mortgaged the leasehold. Rent and taxes subsequently falling into arrear A. distrained on the improvements for the rent •liw only, and the same were sold to B’s wife. Five days later A. notifl-d B. that the lease was forfeited. B. and his wife, notwithstanding the forfeiture, remained in possession, the wife paying to A. rent out of her separate estate. Afterwards, the interest on the mortgage being in arrear, the leasehold was sold thereunder and bought'by C. C. having brought ejectment against B. and his wife: Held, that the mortgage was as against A. a nullity, and could not successfully be set up as against the title acquired by B’s. wife through the forfeiture and sale of the improvements; that she having joined in the mortgage through a mere blunder, and without having any interest in the leasehold, was not estopped from setting up her title as opposed thereto, and that therefore, defendants were entitled to judgment.
    October 14th 1881. Before Sharswood, O. J., Mercur, 'Gordon, Paxson, Trunket and Sterrett, JJ. Green, J., absent.
    Error to the Common Pleas No. 2, of Allegheny eowni/y: Of October and November Term 1881, No. 226-J-.
    This was an action of ejectment by Frederick Werner against Frederick Becker apd Anna Maria Becker his wife, and Louis Schafer, for a certain tract of land with the buildings and improvements thereon erected, situate on East street in the city of Allegheny.
    On the trial, before White, J., the following facts appeared: On March 30th 1877, Edward Schenley and wife executed to Frederick' Becker a lease of the premises in question for a period of twenty years at an annual rental of $400. The lessee in said lease covenanted to pay said rent and also all taxes or assessments in the nature thereof that might be charged against the premises during his term. Said lease also contained, inter alia, the following provisions: “ In case . of violating these cove-1 nants, or any of them, or of transferring this lease without the written sanction of said lessors, said lessee and his assigns shall forfeit said lease and improvements, and lessors may, either with or without any writ, or legal process, at their option, re-enter and hold said premises and the improvements, buildings, &c., from which time all claims, by defaulting lessee, shall wholly cease. Improvements by said lessee erected, may be removed from said premises at the termination of this lease; provided said covenants have been kept and all arrearages, taxes, assessments, &c., for full term of lease as aforesaid, have been fully paid. But it is herein expressly understood and agreed, that said buildings, improvements and other property on said premises, are subject and held liable to distraint and sale under warrant, in like manner as personal property, for said rent, taxes, assessments and charges ; and at any time, in case of failure to pay the same, said taxes, assessments, charges, rents, &c., aforesaid, and at such time due, may be included in, as part of, and do really make, the amount of rent due, and may, at the option of the lessors, be included in and distrained for, on the premises; . . . . arid further, it is herein expressly stipulated that no receipt or distraint for simple ground rent is to be considered or claimed as a waiver of right to distrain for, or otherwise enforce payment of, any balance of taxes or other arrears, as aforesaid ; also, that other remedies are not waived by lessors.”
    Becker entered into possession of said premises in pursuance of the above lease. A number of small houses thereon erected he sub-let to various tenants. Other improvements he himself used and occupied.
    In February 1878, Becker and wife executed a mortgage of certain other premises belonging to Mrs. Becker, and also of all their right, title and interest in the leased premises. This mortgage was duly recorded, but was not accompanied by a copy of the above lease.
    On July 1st 1879, $500 rent being in arrears upon the lease, Torrance, who was the agent of the lessors, directed T. H. B. Patterson, Esq., counsel for the estate, to issue a landlord’s warrant for that amount. Patterson accordingly drew up such a warrant, which was placed in the . hands of one Irwin, a constable. At the time of the issuing of the said warrant, certain taxes assessed upon said premises were due and unpaid, the amount thereof not being, however, included in the warrant. Irwin, by virtue of said warrant, proceeded to levy upon and sell at constable’s sale, on July 18th 1879, certain of the improvements on said premises, consisting of two houses, a large stable and other outbuildings, occupied by Becker. From this sale sufficient was realized to discharge all the arrears of rent due. The purchaser was one Louis Schafer, who bought in the interest of and in trust for Mrs. Becker, with nioney advanced from her separate estate. A bill of sale for said improvements was after-wards duly delivered to him.
    On July 23d, five days after the date of said sale, Patterson, acting under the instructions of Torrance, proceeded to declare the leasehold forfeited for non-compliance by the lessee with his covenants. "With regard to his action in this matter he testified as follows: “ Mr. Torrance had told me that the rent was not paid, and directed me to forfeit it. I drew up a notice in writing and went over on to the premises, took possession of the leasehold, served notice on the sub-tenants there in the houses, notified them that the estate took possession of the property, and notified Mr. Becker.”
    After this date Becker remained in possession of the premises as theretofore, Schafer paying the rent, which he testified was furnished to him out of Mrs. Becker’s separate estate.
    The interest being in arrear upon the mortgage executed by Becker and wife, the mortgagee, on July 29th 1879, issued a scire facias thereon, and having obtained judgment caused a levari facias to be issued, directed against “ all the right, title and interest ” of Becker and wife in the premises in dispute. At the sale under said last-named writ, Frederick Werner became the purchaser, and a sheriff’s deed being afterwards executed to him, lie then brought the present suit.
    The court charged, inter alia, as follows : “ The defendant contends that the mortgage, not having that lease accompanying it, or recorded with it, is invalid, and hence the sale under it is worth nothing. The plaintiff replies that the Beckers, being the mortgagors, cannot take advantage of that. 1 have great doubts myself whether the mortgage is really a valid mortgage, but that is a question I will reserve to be considered by the court hereafter, and for the present instruct you it is a good and valid mortgage. . Your verdict is for the plaintiff, to be subject to the consideration of the court in banc of that question, which is presented in the second point of the plaintiff’s counsel. ,
    “ The defendants contend further that the sale by the constable on the landlord’s warrant divested the mortgage. . . . 1 answer that by saying, that the constable’s sale does not divest the mortgage.
    “ Third. Another ground of defence is that this lease to Becker was. forfeited by Mr. Patterson as attorney for the Schenleys. . . . The evidence is uncontradicted that Mr. Torrance, as the agent of the Schenleys, issued his landlord’s warrant and placed it in the hands of a constable, who made a levy, and on the 18th day of July made a sale for an amount sufficient to cover all the arrears of rent then due. [For Mr. Patterson, therefore, to go on the premises on the 23d of July and claim that he had forfeited the lease by so notifying the tenants, is a manifest and palpable absurdity.] If the "Schenleys had the right to forfeit the lease for the nonpayment of rent, they could have pursued that course; but they did' not do so; they issued a landlord’s warrant, made a sale for an amount sufficient to pay the rent in arrear, and according to Mr. Patterson’s testimony, on the 23d of July, had collected it. [I say, to attempt to forfeit the lease of Becker without notice to him, and under such circumstances, was a manifest and palpable absurdity.]
    “Still another question is presented by defendants’ counsel; that there were some taxes on the premises at that time unpaid. . . . . [Mr. Torrance might, at the time he issued his landlord’s warrant in July, 1879, have included all the arrears of taxes at that time, but he did not;' he issued his landlord’s warrant simply for his rent due, leaving the taxes unpaid ; he could not then forfeit the lease simply because there were arrears of taxes unpaid. I don’t remember that there was a particle of evidence in, this case to the effect that Mr. Patterson or any person ever notified Mr. Becker that they would forfeit the lease.] ”
    Yerdict for plaintiff accordingly. Subsequently the court, in an opinion by White, J., entered judgment for plaintiff on the point reserved, holding that the mortgage of the lease was authorized by the act of April 27th 1855, § 8 (P. L. 369), and further, that Mrs. Becker, having executed the same, and suffered judgment 1o be entered against her thereon, and a sale to take place thereunder without making any defence, was estopped from setting up the invalidity of said mortgage because of the failure to record the lease therewith.
    Plaintiff thereupon took this writ, assigning for error, inter alia, the portions of the charge above cited in brackets, and the entry of judgment for plaintiff on the point reserved.

      Alex. M. Watson and A. J. Kirsehner, for plaintiffs in error. —
    The mortgage of the leasehold was invalid, because unauthorized by the provisions of the act of April 27th 1855, § 8 (P. L. 369). The words “ or other premises ” contained in said act, are to bé construed as meaning premises ejusdem generis as those already enumerated, viz.: mining or manufacturing premises Schenley’s Appeal, 20 P. F. Smith 101; Commonwealth v. Wickersham, 9 Norris 311. It was also invalid because a copy of the lease was not recorded therewith, as required by the provisions of said act: Sturtevaut’s Appeal, 10 Casey 150; Ladley v. Creighton, 20 P. F. S. 190. Mrs. Becker is not es-topped from setting up the invalidity of the mortgage. She had no interest in the leasehold and was not therefore capable of putting in any defence. The forfeiture for taxes in arrears was valid. Patterson expressly testified that he notified Becker. Ail actual entry is not necessary in Pennsylvania to complete the forfeiture: Sheaffer v. Sheaffer, 1 Wright 525; Davis v. Moss, 2 Wright 346. After forfeiture the lease was dead : Kenrick v. Smick, 7 W. & S. 41.

      W. C. Moreland, for defendant in error.
    The act of 1855, while it may be limited in its terms to mining and manufacturing properties, is nevertheless universally construed by the profession in our part of the state to cover any leasehold property. The failure to record a copy of the lease with the mortgage was no doubt an irregularity, but Mrs. Becker is clearly estopped from taking advantage of it. The attempt, on her part, was to avoid her own mortgage. This she cannot do: Mac’s Appeal, 4 P. F. Smith 200; Hosie v. Gray, 21 P. F. Smith 203. Particularly as against a purchaser at a sale thereunder, she having interposed no defence. The charge of the court on the question of forfeiture was clearly right.
    November 7th 1881.
   Mr. Justice Paxson

delivered the opinion of the court,

This case at first sight would seem to require a great deal of winnowing to separate the wheat from the chaff. A close examination of it, however, leads us to the conclusion that the real matter of controversy lies in a very narrow compass.

The learned judge of the court below charged the jury (see 4th assignment), that “ Mr. Torrence might, at the time he issued his landlord’s warrant in July, 1879, have included all the arrears of taxes at that time, but he did not; he issued his landlord's warrant simply for the rent due, leaving the taxes unpaid ; he could not then forfeit the lease simply because there were arrears of taxes unpaid. I don’t remember that there was a particle of evidence in this case to the effect that Mr. Patterson or any person ever notified Mr. Becker that they would forfeit the lease.” The learned judge further instructed the jury (see 3rd assignment): “I say to attempt to forfeit the lease of Becker without notice to him, and under such circumstances, was a manifest and palpable absurdity.”

The clause of forfeiture in the lease contains the following language: “And in case of violating these 'covenants or any of them, or of transferring this lease without the written sanction of said lessors, said lessee and his assigns shall -forfeit said lease and improvements, and the lessors may, either with or without any writ, or legal process, at their option, re-enter and hold said premises and the improvements, buildings, &e., from which time all claims by defaulting lessee shall wholly cease.”

At the time of the forfeiture there were three distinct breaches of covenant on the part of the lessee. 1. The rent was in arrear; 2. The taxes were unpaid; and, ¿j. The lessee liad mortgaged his leasehold, which in law was equivalent to an assignment of it. Each of these breaches was a ground of forfeiture. When the distress was made for the rent the overdue taxes were not included in the landlord’s warrant., as they might have been, under the terms of the lease. Including the taxes in the warrant was optional, and their omission by the landlord deprived him of no right. If, at the time the-rent fell due, there were other breaches of covenant, he had the right to collect his rent by distress, and at the same time proceed to forfeit the lease for such breaches; otherwise he might lose his rent by reason of the forfeiture. This view renders it unnecessary to discuss the question how far the forfeiture could have been sustained under the circumstances had the non-payment of the rent been the only breach of covenant by the leasee.

It was contended, however, that the forfeiture was without notice to Mr. Becker, the lessee, and was otherwise irregular and of no effect.

Mr. Patterson says, in his testimony: I went over on the premises. Mr. Torrance had told me that the rent was not paid, and directed me to forfeit it. I drew up a notice in writing and went over on to the premises, and took possession of the leasehold, served notice on the sub-tenants then in the houses, notified them that the estate took posession of the property, and notified Mr. Becker.”

It will thus be seen that Mr. Becker had notice. We need not speculate how far the proceedings were invalid as to him had he objected to them. But he has never made such objection, and is not now in court denying the regularity of the proceedings. The objection comes from a party who is a stranger to the transaction, and who has no equity to be heard. The mortgage upon the leasehold through which he claims title fell with the forfeiture. The creation of the mortgage was prohibited in substance by the lease, and was a ground of forfeiture. The lessee, having no right to assign his lease, could not do so indirectly by mortgaging it. As against the landlord the mortgage was a nullity, and it cannot be successfully set up as against the title acquired through the forfeiture and constable’s sale. That title is now in Louis Schafer as trustee for Mrs. Becker, who furnished the money out of her separate estate to pay the bid at the constable’s sale. The original lease was to Frederick Becker, her husband. It is not pretended that she had any interest in this lease, and she certainly was not a party to it. It is true she joined in the mortgage of the lease, but that was merely through the ignorance or carelessness of the scrivener. The mortgage covered other property which admittedly belongs to Mrs. Becker, and her joining in the mortgage of the leasehold of her husband was simply, a blunder. " It furnishes no just ground of estoppel in this proceeding.

The judgment is reversed, and it is now ordered that judgment be entered in favor of the defendants below upon the question of law reserved. '


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Cridge and Wife versus Hare.
    1. Where a married woman gives a mortgage upon her separate estate she may, in a subsequent suit thqreon, set up as a defence the fact that she was induced to execute the mortgage by reason of fraudulent representations made to her with reference to the nature of the consideration thereof, even though snch representations were not made by the mortgagee nor with his knowledge and consent.
    2. It is the duty of all persons taking from a married woman a mortgage of her separate estate, to ascertain affirmatively that she has not been deceived by any false representations of her husband as to the consideration of said mortgage.
    3. The. mere fact that a paper has been read in the presence of a husband constitutes no evidence that the contents of such- paper are known to his wife.
    October 14th 1881. Before Sharswood, O. J., Merque, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1881, No. 175.
    Scire facias sur mortgage, by Thomas Hare against Joseph Cridge and Maria Cridge,-his wife. On the trial, before Bailey, J., the plaintiff put in evidence the mortgage, drawn in the usual form, duly executed by the defendants and separately acknowledged by Mrs. Cridge. The plaintiff testified that the mortgage was given to and received by him as collateral security for a bill of sale of goods which he sold and transferred to Mrs. S. E. Workman, wife of John Q. Workman. The bill of sale bore the same date as the mortgage, and contained the following clause: “ And as security -for the payment of the said sum of one thousand dollars, I hereby acknowledge the receipt of a mortgage from Joseph Cridge and Maria, his wife, for said sum, payable in one year from this date, with legal interest.”
    The defendants alleged that the mortgage was executed in consideration of an agreement of sale of the said goods by Hare to Mr. Cridge, the mortgagor; that Mrs. Cridge was induced to execute it on such representations, and that the goods having been sold and transferred by Hare to another (Mrs. Workman) no consideration passed, and the mortgage was invalid as to Mrs. Cridge, by reason of misrepresentations to her, and fraud in the ■use of the mortgage.
    Defendant’s counsel offered the defendant, Mrs. Cridge, as a witness, to prove “her knowledge at the time of her execution of the mortgage, and the purpose for which she gave it.” Objected to, because the offer does not propose to show misrepresentations or deceit on the part of the plaintiff. Objection sustained; exception. (1st assignment' of error.)
    The plaintiff presented, inter alia, the following, point. (3) “ The right of Thomas Hare to recover is not affected by any representations made to Mrs. Cridge, or by any fraud practiced upon her in order to secure her signature, unless he (Hare) was a party to such fraud and misrepresentations, or had knowledge of the same.” Answer. Affirmed. (5th assignment of error.
    The court charged the jury, inter alia, as follows: “Mrs. Cridge then passed this mortgage over to the representative of Mr. Hare, for the time being, Mr. Watterson, the notary public, and he took it away, put it on record and gave it to Mr. Hare. If there was any fraud committed upon Mrs. Cridge by anybody, it is manifest, and I have so instructed you, that there is no evidence that it conid have been directly by Mr. Hare, because,according to the testimony, Mr. Hare and Mrs. Cridge-never met, consequently there was no direct fraud practiced upon her by Mr. Hare. If there was any fraud practiced upon her it must have been either through the agency of her husband, or of John Q. Workman. Suppose there was fraud practiced upon her by John Q. Workman or Mr. Cridge, if it was not with the knowledge, consent, connivance, or agreement of Mr. Hare, he has nothing to do with it whatever, and is not bound by it in any way; but Mrs. Cridge, having put this mortgage into the hands of a party who could make a bad use of it, so far as she was concerned, was liable to the party to whom it was transferred.” (14th assignment of error.)
    “ If you believe that this paper (the bill of sale to Mrs. Workman.) was read to Mr. Cridge in the office of Brown & Lambie, by Marshall Brown, and if you believe the testimony •that the paper was read to Mr. Cridge in his hearing, then your verdict will be for the plaintiff.”
    At the close of the charge a juror asked: “ If we believe, independent of all the other testimony, that the bill of sale was read in the presence of these parties, our verdict will be for the plaintiff ?”
    By the Court. — “I have instructed you if you believe that that bill of sale was read in the office of Brown & Lambie by Marshall Brown, in the presence and hearing of Mr. Cridge, that your verdict will be for the plaintiff.” (17th assignment of error.)
    Verdict for plaintiff, for the amount of the mortgage, with interest, and judgment. The defendants took this writ of error, assigning for error inter alia, the exclusion of Mrs. Cridge as a witness, the answer to plaintiff’s third point, the portion of the charge above quoted, and the answer to the above question by the juror.

      O. 8. Fettermcm, for the plaintiffs in error.
    The testimony showed that Mrs. Cridge executed the mortgage supposing it was to secure her husband’s obligation for the purchase of the goods from Hare. If in fact it was to secure the debt of Mrs. Workman, of which Mrs. Cridge had no knowledge, she is not bound by it. The court below ruled that to avoid her mortgage it was necessary to show that liare was an actual party to the fraud by which she was deceived. In this the court erred. Where a man takes a mortgage from a married woman he is bound to inquire from her, the same as if he were taking an assignment of a mortgage executed by one sui juris : Michener v. Cavender, 2 Wright 334. Mrs. Cridge was a competent witness to prove her understanding of the transaction; and the purpose for which she executed the mortgage. So far as the testimony shows she never heard of Mrs. W orkman being the purchaser of the goods, for which the plaintiff claimed the mortgage was given' as security. The court instructed the jury that if the bill of sale was read in the presence of her husband, the verdict should be for the plaintiff against both defendants.

      John S. Lambie (A. M. Brown, with him), for the defendant in error.
    The evidence of Mrs. Cridge was excluded because the offer did not propose to connect Hare with the alleged fraud. The mortgage was duly executed and the notary’s certificate was conclusive in the absence of evidence that the plaintiff was a party to the alleged fraud : Heeter v. Glasgow, 29 P. F. Smith 79 ; Singer v. Rook, 3 Norris 442.
    The mortgage of a married woman to secure the debt of her husband or of a^ third person is binding upon her: Black v. Galway, 12 Harris 18 ; Haffey v. Carey, 23 P. F. Smith 431; Danbert v. Eckert, 13 Norris 255 ; Radford v. Carwile, 13 W. Va. 572.
    October 31st 1881.
   Mr. Justice Trunkey

delivered the opinion of the court,

A married woman may mortgage her estate for her husband’s benefit, or to secure his existing debts and future indebtedness : Haffey v. Carey, 23 P. F. Smith 431. She may borrow money on the security of her mortgage and immediately give the money to her husband : Daubert v. Eckert, 13 Norris 255. The right of disposition is incident to her separate property and she may sell or give it to whom she pleases ; but generally she can only convey her real estate with the consent of her husband, manifested by his joining in the deed. Her mortgage deed is valid when given to secure the debt of a stranger, upon the same principle that it is when given for her husband’s debt. She can make no binding executory contract except as authorized by statute, nor can she convey her real estate without compliance with the statutory requisites. The consideration for her deed may be valueless to herself and yet good. It has been settled that when she can convey her land she may mortgage it. Though a mortgage is often called a mere security for a debt and in many respects is so treated, yet it is the conveyance of the land, subject to an equity of redemption, executed in the same manner as an absolute deed.

Nothing on the face of this mortgage shows that it is a collateral security for another’s debt. Apparently it is for a debt of the mortgagors amounting to $1,000, and accords witlo their allegation that Cridge bought the property from Hare for that sum. The notary informed Mrs. Cridge of its contents just as it reads, when he took her acknowledgment. She neither saw the bill of sale nor heard it read. Nobody, told her it was made to Mrs. Workman. There is no evidence that she had knowledge that the mortgage was not taken for her husband’s debt. If the jury believed his testimony they would have found, had the question been submitted, that she was informed that Hare would sell the property to him for the mortgage, and upon that she made it. Her own testimony ought to have been received, when offered to prove this fact.

Hare is the mortgagee, but if in any view of the facts he should be treated as an assignee of the mortgage, the mortgagors, or either of them, may defend on the ground that it was procured' by fraud, or that a fraudulent use was made of it. An assignee takes subject to all defences arising from matters connected with the execution and use of the mortgage, unless he inquire of the mortgagor and learn that there are none. The mortgagee is in no better position. Per Woodward, J. Michener v. Cavender, 2 Wright 334. Stoddart v. Robinson, 4 P. F. Smith 386, rules that under the special circumstances in that case the loose affidavit of defence was insufficient; not that it is necessary to show that the mortgagee had knowledge that the mortgagor was induced by fraud to give the mortgage. Hare did not take on the faith of a certificate of no defence, and, perhaps, that would not preclude defence, for he is a party in the transaction. The delivery of the mortgage by Mrs. Cridge to Waterson, Hare’s representative, was of like effect as if she had delivered it to Hare, and gave no power to any party to make a bad use of it. Neither Hare nor Waterson told her a falsehood; they told her nothing of the bill of sale already made to Mrs. Workman, nor did they' inquire if she knew that the mortgage was a collateral security. If she was induced to give the mortgage on the representation that it was for purchase-money of property sold to her husband, she may avoid it for the deceit. We are of opinion that the instructions set forth in the fifth, fourteenth and seventeenth assignments were erroneous.

If the jury believed that the bill of sale was read in the presence and hearing of Cridge, that fact would warrant the remarks of the learned judge of the common pleas as to him, but by no means justify a peremptory instruction to render a verdict against Mrs. Cridge.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Dean and Stoughton versus Warnock.

      1. In a suit upon a promissory note under seal against two joint obliaors, the third being dead, tbe note upon being jnit in evidence appeared to have an alteration upon ils face. In order to explain this alteration, the plaini iff, who was the obligee, was called to the stand and testified that he received the note from one of the joint obligors, he could not remember which, in its then altered condition. He answered two questions upon cross examination, but. his compelency as a witness was ihen i.bjecled to by defendants. Held, that since ho might have received the note from the deceased obligor, he was incompetent to testify as against the surviving obligors. Held, however, that the objection to his competency came too late, and that, there being other evidence in the case explanatory of the alteration in the note, the court waa clearly right in admitting his testimony and submitting the case to the jury.
    2. The fact that a note under seal bears a special indorsement under the signature of the obligee, does not preclude such obligee from recovering upon it in his own name, there being no evidence that the note has ever been assigned or delivered to the person named in the special indorsement, or that he has any interest in it.
    October 17th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Lawrence oonnty: Of October and November Term 1880, No. 201.
    Debt, by John L. Warnock, for use of John Esson, against William E. Dean and O. P. Stoughton, surviving obligors of TIenry Emery, deceased. The plaintiff filed as his narr. an affidavit of claim showing the cause of action to be a lost joint promissory note under seal, signed by William E. Dean, O. P. Stoughton and one Henry Emery, now deceased, dated August 16th 1869, payable eighteen months after date, for $130, on which there was a credit indorsed of $43.91, paid by Emery. Emery died before the commencement of this suit.
    The defendant pleaded non est factum, payment with leave, &c.
    After filing of the pleadings and before the trial, which was had before Bredin, J., the note was found. When offered in evidence, it was apparent on the face of the note, that the date had been changed by erasing the date “ September 7th” and writing above it “ August 16th,” and also by erasing the words “ fifteen months after date ” and inserting the words “ eighteen months after date.”
    The plaintiff’s counsel, to explain the alteration, called the legal plaintiff, John L. Warnock, whose testimony and the objection thereto, as shown by the printed bill of exceptions, was as follows: — ■
    “ The note is the same as when I accepted it. I can’t remember who brought it. My best recollection is that I got it from some of the parties.
    “ Oross-examined: — This note I think I received in New Castle. Was never up at Dean’s 1 but the time we put up the machine.
    “ Defendants object to competency of John L. Warnock, the suit being against defendants as surviving obligors. Objection overruled and exception noted and sealed.
    “It might have been changed in New Castle. The time wasn’t so long when I sold the machine. I don’t know when the alteration was made — whether before or after the note was signed, or who by.

      “ Re-direct:- — -I never made any alteration.”
    The court charged the jury that the note being offered with an alteration apparent on its face, the burden was on the plnizitiff to explain to the satisfaction of the juz-y that the alteration was made before deliveiy, and that, if so explained, the verdict should be for the plaintiff.
    Verdict for the plaintiff for $186.10, and judgment thereon. The defendazits took this writ of error, assigning for error the admission of John L. Warnock, legal plaintiff, as a witness,- the suit being against defendants as surviving obligors of Henry Emery, deceased, who was a joint maker in the note.

      Martin (with him Gardner and D. B. & E. T. Kurts), for the plaintiffs in error.
    The action being upon a joint promissory note against the survivors of one of the joint obligors, the payee, who was the legal plaintiff, was not a competent witness in his own behalf, as to facts which oceurz’ed prioz- to the death of the deceased obligor : Act of April 15th 1869, Pamph. L. 30; Act of May 25th 1878, Pamph. L. 153; Hanna v. Wray, 27 P. F. Smith 27; Standbridge v. Catanach, 2 Nor. 368 ; Hess v. Gourley, 8 Norris 198; Ash v. Guie, 1 Out. 193.

      Robert Gilliland and R. B. McComb, for the defendant in error.
    The administrators of Emezy, the deceased co-obligoi', were not parties to the record. Thei'efore, Warnock was a coznpetent witness. He did not seek to recover against Emery or his estate. Both of the defendants were also competent witnesses. There was thus no inequality between the parties. The Act of 1869, and the authorities cited by the plaintiff in erz-or, do not apply to this case. Moreover, Warnock’s testimony in chief was not objected to until after he had been partially cross-examined. This objection came too late.
    October 31st 1881.
   Mr. Justice Sterrett

delivered the opinion of the court

After the death of Emezy, one of the three joint obligws, this suit was brought on the bond in the name of Warnock, the obligee, to use, &e., against Dean and Stoughton, the surviving obligors. On the tidal it became necessaiy to explain azi alteration apparent on the face of the bond, and for that purpose Warnock, the legal plaintiff, was called, and, without objection, testified in substance that he received the bond from one of - the obligors, but could not remember which of them, and that it is ■ now iu the same condition as when he received it. After his examination in chief was concluded and lie had answered one or. two questions on cross-examination the defendazzts interposed an objection to his coznpeteney on the ground- that the suit was against them as surviving obligors. The objection was overruled and the cross-examination of the witness continued, but no additional facts were elicited on either side.

Assuming, for the present, that the objection to the witness was not too late, was he competent to testify to any transaction between himself and either of the three joint obligors? lie was undoubtedly competent to testify as to what occurred between himself and either of the survivors, but not as to any transaction between himself and the deceased obligor. The fact sought to be proved by him was that the bond, in its present condition, was delivered to him by one of the three, and he so testified, but could not remember which of them delivered it. Eor aught he knew he may have received it from the deceased obligor; and, if so, the survivors would be deprived of the benefit of his testimony, and the plaintiff would therefore occupy a vantage ground, gained by the death of the other joint obligor. It would be otherwise if he had testified that one or the other of the survivors had delivered the bond,.for then they would be in a position to deny the fact, if it was untrue. The letter as well as the spirit of the Act of 1S69 and its supplements is opposed to opening a door to one party that has been closed by death against the other: Hanna v. Wray, 27 P. F. Smith 27. In furtherance of the principle of equality recognized in that case, the Act of May 25th 1878, provides, that in all civil proceedings, by or against surviving partners, no interest or policy of law shall exclude any party to the record from testifying to matters having occurred between the surviving partners and the adverse party on the record. In Ash v. Guie, 1 Out. 493, this statute is said to be remedial and intended to enable parties who stand on an equality, to testify, though a party in interest be dead. “Its spirit embraces the survivor of two or more who jointly contracted. If two persons jointly execute a note and one dies, in an action between the holder and the survivor this statute should apply as if the makers had been partners : otherwise the mischief is only partially remedied. Those jointly concerned in a transaction are partners in the popular sense of the word, and considering the obvious intendment of the statute it should apply in the ease of a surviving partner in the popular as well as the technical sense.”

In addition to this, the rights and obligations of a deceased obligor, in a certain sense devolve on the survivors. It is their duty to guard the interests of his estate as well as their.personal interests. If they are compelled to discharge the joint obligation, they have a light to claim contribution from his estate; and the extent of such contribution is not always measured by the number of joint obligors. If one or more of them prove to be insolvent the contribntive share of the others will be correspondingly increased. It does not follow, therefore, in this' case, that by reason of having paid one-third of the bond the personal representatives of the deceased obligor are exempt from further liability.

It follows from what has been said, that while the obligee was a competent witness as to any transaction between himself and either of the surviving obligors, he was incompetent to prove any transaction he may have had with the deceased obligor in relation to the bond. But the objection to his competency came too late. lie was permitted to testify fully in chief to the facts which he was called to prove. It was not until he was partially cross-examined, that any objection was raised. The defendants must have known in the outset the ground of objection which they interposed after they heard what the witness had to say. They cannot thus be permitted to take the chance of obtaining testimony favorable to themselves, and then, upon discovering that it is against them, ask to have it excluded. The testimony in itself was both competent and relevant. If there was a valid objection to the competency of the witness by whom it was delivered, it should have been interposed at ’the proper time. Not having been done then,'it should be considered as having been waived. There was other testimony tending to show that the bond was not altered after it was executed and delivered to the obligee. In view of the evidence as to the execution of the instrument and explanatory of the alleged alteration, the court was clearly right in admitting the bond and submitting the case to the jury as was done.

The indorsement on the bond, “Pay to A. Patchen,” over the signature of the obligee, presented no obstacle to the plaintiff’s recovery. The instrument is not negotiable, and there is not a particle of evidence that it was ever assigned and delivered to Patchen or that he ever had any interest in it. The suit was properly brought in the name of the obligee. The assignments of error are not sustained.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Briggs versus Erie County.
    1. A county is not liable to an official stenographer appointed by virtue of the provisions of the act of May 8tli 1876 (Paraph. L. 140), for transcripts of his notes furnished by him, unless said transcripts be made by order of court or to be filed in performance of the stenographer’s general duty.
    2. A county is not liable to such stenographer for a transcript furnished by him at the request of counsel, although the same be filed in the cause and constitute part of the record thereof.
    October 17th 1881. Before Sharswood, O. J., Merour, Gordon, .Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Erie County: Of October and November Term 1881, No. 138.
    Amicable action of assumpsit between Ira E. Briggs, plaintiff, and the County of Erie, defendant, with the same effect as if upon appeal from the judgment of an alderman in favor of the plaintiff for $20, being the amount of fees due him as official stenographer for a transcript of the notes of testimony in a certain cause pending in said court.
    The following facts were agreed upon in a case stated, which was submitted for the opinion of the court.
    On May 4th 1880, the plaintiff was appointed official stenographer for the sixth judicial district of Pennsylvania, under the provisions of the Act of May 8th 1876, Pamph. L. 140, section 4 of which is as follows :—
    “ It shall be the duty of said stenographer to furnish a copy of his notes of testimony, written out in long hand, upon the order of the court or the request of counsel in the cause, during the progress of a trial or at any subsequent time; also, within a reasonable time after trial to transcribe all notes not previously' transcribed by order of the court, which transcripts shall be filed and made a part of the records of the case: Provided, that the stenographer may be excused in the discretion of the court with the consent of counsel, from the aforesaid duty of transcribing notes and furnishing transcripts, in which case it shall be said stenographer’s duty to preserve the 'notes taken by him for future reference or transcription if desired. The transcripts thus made shall be furnished at a compensation not exceeding fifteen cents for each one hundred words; such compensation to be paid by the county in which the notes are taken when the the transcript is ordered by the court or when made for the purpose of being filed, and by the counsel in the respective cases, when ordered by them.”

      On May 17th 1880, the case of Elsey et al. v. McDaniel, No. 177, Nov. Terra, 1877, Common Pleas of Erie county, was tried before a jury and the plaintiff took stenographic notes of the testimony, lie afterwards' made a transcript of tlie stenographic notes which transcript was filed in the case on August 6th 1880 and is a part of the record in the case. The transcript was made and filed at the request of Qurtis & Norton, who were the attorneys of Elsey et ah, the plaintiffs in the case.
    The plaintiff here now seeks to recover from the defendant the pay for the transcript of the notes made and filed, as above stated.
    If the court be of opinion that the county is liable they shall enter judgment for the plaintiff for $20.00 with costs. If they be of opinion that the county is not liable they shall enter judgment against the plaintiff for costs. Either party may take a writ of error.
    The court entered judgment against the plaintiff for costs, Galbraith, P. J., filing the following opinion : — “ This case requires a construction of the fourth section of the Act of May 8th 1876, by which the compensation and manner of payment of court stenographers are fixed and regulated. (Tiis honor here quoted the section.)
    “ The obvious meaning of the legislature in the last clause of this section would seem to be that the county should only be obliged to pay for transcripts ordered by the court, as when required for the court’s own use, not when they are ordered by counsel. It might impose an intolerable burden upon the comity and open a door for abuse, were this section to be so construed as to permit the counsel in a cause, at his own option, to require transcripts to be made out at the expense of the county. It would be to impose upon the county a part of the expense of litigation in each cause tried, or at least in all causes taken to the Supreme Court, that ought to be borne by the parties as a part of the legitimate personal expenses of a suit, as much so as counsel fees. It could not have been intended by the framers of the law, that the construction should be put upon it claimed by counsel for plaintiff.
    “In this case it appears that the transcript was filed at the request of the attorneys for plaintiff in the cause referred to, and not ordered by the court. ¥e are therefore of the opinion that the county is not liable, and judgment is accordingly entered against the plaintiff for costs.”
    The plaintiff took this writ of error, assigning for error the entry of judgment against the plaintiff for costs on the case stated.

      L. S. Norton (C. D. Curtis with him), for the plaintiff in error.
    The Act makes it the duty of the stenographer “ to furnish a copy of his notes of testimony written out in long hand, upon the order of the court or the request of counsel in the cause, during the progress of a trial, or at any subsequent time.” But the section further provides that it shall be the duty of the stenographer “ Also within a reasonable time after trial, to transcribe all notes not previously transcribed by order of the court, which transcript shall be hied and made a part of the records of the case,” and the only way the stenographer can be excused from said duty is “ in the discretion of the court, with the consent of counsel.” The court alone has not the power to excuse him. The counsel must consent, or else the transcripts must be made and filed in all cases.
    The case of Elsey v. McDaniel, in which the notes were taken, was to be carried to the Supreme Court.. It was tried on the 17th of May, and the stenographer not having filed the transcript with the records of the case as the law made it his duty to do, he was requested by the attorneys for the plaintiffs in that case to make and file it, which was done on the 6th of August, and as set forth in the case stated, the transcript “ is a part of the record in the case.” The counsel did not order the copy for themselves or for their clients. They simply requested the stenographer to do what the law required him to do, viz.: to make and file the transcript. It was not private property but was part of the public record, and was used by the attorneys of both sides in preparing the case of Elsey v. McDaniel, for the Supreme Court.
    It is provided by section 4 that the county shall pay for all transcripts “ when made for the purpose of being filed.” Such is the present case. Nor is there any oppression or hardship upon the county, as seems to be imagined by the court below. The object of employing a stenographer is to save time and thereby save large expense to the county. So it is not burdensome upon the county to call upon it to pay the expense of the transcripts; but whether burdensome or not, it is sufficient to say the law says it must be done.
    The stenographer’s fees are part of the costs of the case; and since the Act of June 8th-1881 (Pamph. L. 80), which requires security to be entered by the party purchasing a writ of error “ for the payment of all costs that have accrued in the cause or shall accrue,” the losing party will finally pay the stenographer’s fees, the county only advancing the amount temporarily. ,

      D. B. McCreary (with whom was Frank, Gunnison), for the defendant in error.
    The fourth section of the Act in question is not free from obscurity, but whatever want of clearness may exist in the first part, in reference to the filing of transcripts, there is certainly no want of clearness in the proviso as to who is to pay for them. The meaning of the section is that where counsel order transcripts without consulting1 the court, and obtaining its sanction to have the transcript made and filed, the counsel ordering the transcript shall pay for it. Certainly, the Act does not repose unlimited discretion in the counsel on both sides of the case to order transcripts of voluminous notes, which may prove unnecessary and useless, at the expense of the county treasury.
    November 14th 1881.
   Mr. Justice Mercur

delivered the opinion of the court

The Act of 8th May 1876, Pur. Dig. 2054, authorizes the judges of the several courts of the Commonwealth to appoint a stenographer who shall be paid $10 for each day spent by him in taking notes in court, and be paid by the county or counties forming the judicial district. Section 4 imposes additional duties and declares by whom such services shall be paid. He is required “ to furnish a copy of his notes of testimony written out in long hand upon the order of the court or the request of counsel in the cause, during the progress of the trial or at any subsequent time; also within a reasonable time after trial to transcribe all notes, not previously transcribed by order of the court, which transcripts shall be filed and made a part of the records of the case.” Provided in the discretion of the court with the consent of counsel, he may be excused from transcribing notes and furnishing transcripts; but then he shall preserve the notes for future reference or transcripts if desired. The section proceeds, the transcripts thus made shall be furnished at a compensation specified, to be paid by the county in which the notes ai’e taken, when the transcript is ordered by the court, or when made for the purpose of being filed; and by the counsel in the respective cases, when ordered by them.”

Thus the county is liable to the stenographer only when the transcript is ordered by the court or when made to be filed, in performance of his general duty. During the progress of the trial “ or at any subsequent time,” counsel in the case may require the evidence to be written out at length ; but whenever so required by counsel, the compensation therefor shall be paid by the counsel ordering the same. The Act contains no language imposing a liability on the county to pay, when the transcript is ordered by counsel, whether it be during, or after, the trial. The language imposing the liability to pay on the counsel ordering it, is the same in each case. Making a copy for counsel during trial, will not dispense with the obligation of the stenographer to make another to file after trial. He is only ex-cnsed from making one to file tliat lie lias previously transcribed ‘‘ by order of court.” The counsel has a right to procure a transcript for his own use. The court to require it, as a part of tie record.

The stenographer is paid out of the public treasury for all ■his services in attending court, and taking stenographic notes. The liability of the county for further compensation to the stenographer, cannot be enlarged by any action of counsel in the case. Nothing in the Act authorizes counsel in the case to assume any of the powers given to the court, and thereby impose costs on the county.

The case stated shows that after the trial of a certain cause, in the Common Pleas of Erie county, at the request of the attorneys of the plaintiffs therein, the stenographer made and filed a transcript of liis stenographic notes. By reason thereof he seeks in this action to' recover his compensation therefor from the county of Erie. The learned judge correctly held the county was not liable for a transcript furnished at the request of counsel, although it was filed of record in the case.

Judgment affirmed.


author: Chief Justice Sharswood

text:
    Walker versus Marine National Bank of Erie.
    1. The confession of a judgment to a bona fide creditor, even though it be intended to, and has the effect of giving him a preference over other creditors, is not a fraudulent disposition of an insolvent estate.
    2. An insolvent firm cannot, by voluntary assuming the individual debt of one of its members, and giving to the creditor of such member a judgment note for the amount of such debt, prefer such creditor to the arm creditors. It may do so, however, if there be a moral obligation on Its part to pay the debt of the individual member.
    3. A., a member of a firm* gave, to his daughter a lot whereof he was seised, but deferred the execution of a deed. Subsequently A. sold the lot for $1,200, which sum he put into his firm, receiving credit on the books of the firm therefor. Nothing appeared on the firm books to show that this sum was tile property of A.’s daughter, but all the members of the firm knew that such was t-iie case. Subsequently, said firm, being iu failing circumstances, gave to A.’s daughter a judgment note for $1,200, with intent to prefer her to the firm creditors. In a contest between A.’s daughter and subsequent judgment creditors of the firm for the proceeds of certain firm real estate taken into execution and sold, — Held, that there was a moral obligation on the part of the firm to pay the,debt of A. to his daughter, that, therefore, the giving of the judgment note to her was not a fraudulent preference ; and that hence she was entitled to the fund.
    4. A court should not frame an issue to determine the distribution of a fund, where there is no fund actually in that court, said fund being in some other court of co-ordinate jurisdiction
    5. Where such an issue is framed without objection by either party, and on the trial thereof errors are committed, the Supreme Court will on error reverse without awarding'a venire facias de novo.
    October 18th 1881. Before Shabswood, O. J., Mebcur, Gordon, Paxson, Teunket, Steeeett and Green, JJ.
    Eeeoe to the Court of Common Pleas of Erie county: Of October and November Term 1881, No. 265.
    Feigned issue. On October 6th 1879, judgment was entered on a judgment note with warrant of attorney, dated October 1st 1879, payable October 2d 1879, in favor of Agnes C. Walker against William M. Caughey, Thomas M. Walker and C. J. Caughey. The defendants were partners, trading as Caughey, Walker & Co. At the date of the judgment note, the said firm was insolvent, and on October 7th 1879, the day after the entry of the above judgment, the Marine National Bank of Erie obtained a judg cent against the said firm in the United States Circuit Court for the Western District of Pennsylvania, in a suit begun prior to the date of said judgment note. About the same time other judgments were entered against the said firm, upon which executions were issued and the personal property of said firm was sold and the money appropriated to those judgments. An execution was also issued on the judgment of the Marine National Bank in the United States Court, under w'hich the real estate of said firm and of the individual members thereof was sold and the proceeds paid into the United States Circuit Court for distribution among creditors.
    Mrs. Agues C. Walker presented her claim on said fund, averring that her judgment, being prior in date, was entitled in the distribution to priority of lien over the judgment of the Marine National Bank.
    The Marine National Bank thereupon presented its petition to the Court of Common Pleas of Erie county averring that the said judgment note, given by Caughey et al. to Mrs. Walker, was given and received with the fraudulent intent of delaying and hindering the Marine National Bank in the collection of its debt from the firm of Caughey, Walker & Co.; and praying that an issue be . awarded to determine whether it was so given.
    The court, thereupon, made the following order:
    “ And now, January 5th 1881, an issue is awarded to be tried by a jury to determine whether the note of the defendants to Agnes O. Walker, now in suit, was given and received with 'the fraudulent intent of delaying or hindering the petitioner, the Marine National Bank of Erie, in the collection of its judgment at No. 2, January Term 1880, from the defendants therein, to wit: Messrs. Wm. M. Canghey, Thomas M. Walker,and C. J. Caughey, partners tts Caughey, Walker & Co.
    “ The said Agnes Walker shall be plaintiff and the Marine National Bank ot Erie shall be the defendant in said issue.
    “ The plaintiff shall, within twenty days from the filing of this opinion and notice therein to her by the prothonotary or to her attorney of record, file a declaration of her claim in debt against the firm of Caughey, Walker & Co. The defendant in tliis issue, the Marine National Bank of Erie, shall plead nil debet with leave to file a special plea, setting forth at length the alleged fraudulent intent in receiving the same.
    “ The burden of proof shall be on the plaintiff to show that said note was given and received to secure the payment of a debt due by said firm to her and not for a debt due her by Wm. M. Caughey.
    “ If she proves that it was given and received for a debt of the firm then the burden of proof shall shift on the defendant in this issue to show that it was given and received to fraudulently hinder or delay them in the collection of their claim against said firm.
    “If the jury shall find for the plaintiff they shall find the amount due, but if they find nothing due her, or that the note was given and received with the fraudulent intent to hinder or delay the collection of the defendant’s claim, then their verdict shall be for the defendant generally.”
    On the trial of this issue, before Brown, P. J., of the 37th Judicial District, the following facts appeared:
    Prior to and during the year 1865, William M. Caughey and John Clemens were doing business in Erie, Pa., under the firm name of Clemens, Caughey & Co. ■ Caughey was then possessed of ample means. In the early part of 1865, he purchased two lots in Erie for $1,200 each. One of these lots he gave to his daughter Agnes C. Caughey (subsequently married to Thomas M. Walker), the plaintiff. He postponed giving her a deed, intending to do so on her birthday. Before that day arrived, viz.: on August 15th 1865, he sold the said lots and gave his daughter his individual note for $1,200, the value of the lot, and put the purchase-inúney of both lots into his firm of Clemens, Caughey & Co., for which he received credit on the books of the firm. No account was opened on the books of the firm with Mrs. Walker. This firm was succeeded by the firm of Clemens, Caughey & Burgess, afterwards by Caughey, McCarter & Co., and finally by Caughey, Walker & Co,; William M. Caughey remaining a member of all the said firms. This sum of $1)200 was used by the firm that first received it, down through the succeeding firms, including the firm of Canghey, Walker & Co., the same as other partnership money. When. the firm of Oaughey, Walker & Co., became in failing circumstances in 1879, William M. Oaughey signed and procured the signatures of the other members of the firm of Oaughey, Walker & Co., 'to the 'said judgment note in favor of Mrs. Agnes O. Walker for the sum of $1,936, which was the amount of the note given to her by him on August 15th 1865, with interest, less about $400, which the firm of Oaughey, Walker & Go. had paid or assumed to pay on the purchase by her of a piano. On this note judgment was entered on October 6th 1879, as aforesaid.
    The court, in answer to points presented by plaintiffs and defendants, and in the general charge, instructed the jury, substantially, that while a debtor in failing circumstances may lawfully confess a judgment to one creditor in preference over others, yet the debt "to Mrs. Walker was not the debt of the firm of Oaughey, Walker & Oo., and the firm had no right to make it so by voluntarily assuming the indebtedness of oue of their number to her, whereby she was given a preference as against the Marine National Bank, a creditor of the firm; that the money that was put into the original firm by William M. Oaughey had become his money by a loan from Mrs. Walker, and not being her money, the firm was under no obligation in law or morals to assume or to pay it, and had no right to do so to the detriment of other creditors; and that, if William M. Oaughey, in procuring the signatures of his partners to the note, acted for Mrs. Walker, and she adopted the transaction, she must be taken to have known whatever he knew as to the purpose for which the note was given. The court submitted to the jury the question whether the said note was given and received for the purpose of delaying and hindering the Marine National Bank in the collection of its indebtedness against the firm, instructing them that if they found that it was, their verdict should be for the defendant.
    Verdict and judgment for the defendant. The plaintiff took this writ of error, assigning for error the above instructions of the court.

      D. B. McCreary, and L. S. Norton, for the plaintiff in error.
    This case is ruled by Siegel v. Chidsey, 4 Casey 279. It was there held that “ where money was obtained on the personal credit of a member of the firm, and the money went into the firm and was used for its exclusive benefit, though this would not make the firm liable to the creditor, yet it would be a good consideration to support the subsequent promise of the firm to pay the debt; if the partners confess judgment to the creditor for such debt, iris not the application of the partnei’ship effects to the private debt of a member of a firm, but the honest assumption by all the partners of a debt created for their joint benefit and which in equity and conscience all were equally bound to pay.” The firm having thus the right to promise to pay the debt, and having so promised, the preference given to Mrs. Walker was not fraudulent as to other creditors of the firm : Reehling v. Byers, 9 W. N. C. 359; Covanhovan v. Hurt, 9 Harris 495. The issue was awarded to try the question of fraudulent intent. There was no evidence of actual fraudulent intent, yet the court left the jury to infer it. Fraud is never presumed, but must be proved: Bear’s Estate, 10 P. F. Smith 430 ; Reehling v. Byers, 9 W. N. C. 359; Louchheim v. Henzey, Ibid. 571.

      John P. Vincent (with him J. C. and F. F. Marshall1), for the defendant in error.
    The case of Siegel <o. Chidsey, 4 Casey 279, is not like this. There the money borrowed from the elder Siegel was always treated as a firm debt, the interest on it paid by the firm out of the partnership funds. It never was treated by the firm as the private debt of Field, for which he had taken a credit to himself on the books of the firm and treated as his own liability at all times until within a few days of failure, and then, and not until then, turned into a debt of the firm. It was always a liability of the firm, so treated and considered. There was ample evidence of fraudulent intent to take the case to the jury.
    [Sharswood, C. J. — The judgment was valid as against the firm — a third party, the bank, claimed that it was invalid as against it. Now what had the Court of Common Pleas to do with that question, there being no fund in that court for distribution? The claimant should have gone into the United States court where the fund was for distribution. In asking for the issue in the Common Pleas, you asked that court to do the other court’s work.]
    On the distribution of a fund by an auditor, the validity of a judgment cannot be attacked. We therefore come into court where it was obtained, obtain an issue, and attack it in advance of distribution. We understand that to be the proper practice.
    January 2d 1882.
   Chief Justice Sharswood

delivered the opinion of the court,

It is well settled that the confession of a judgment to a bona fide creditor, even though it have the effect of giving him a preference over other creditors, is not a fraudulent disposition of an insolvent estate. It was held by this court in Oovanhovan v. Hart, 9 Harris 495, that a conveyance of land by a debtor in failing circumstances to a creditor to pay an’existing debt is not fraudulent although the parties contemplate that thereby the claims of other creditors will be defeated. Putting aside, then, all the evidence in this case that the parties confessed the judgment with the very purpose and design of securing for it a priority over the judgment of other creditors impending and about to be entered, the sole question was this: Was the plaintiff a bona fide creditor of the firm of Caughey, Walker & Co., at the time the judgment was confessed? She held the note of the firm. It was unquestionably good as against the firm. They could not have impeached it for fraud or want of consideration. It is certainly true that if there was no debt due from the firm to the plaintiff at the time of the giving of the note— if they had never received any consideration, they had no right create a debt by voluntarily assuming the debt of one of the members so as to be good against their creditors. But there were facts in the case which showed that they were morally bound for the debt. They had received the money. It had entered into the business of the firm, made their purchases, paid.their debts, and in equity and good conscience the plaintiff stood upon as fair a platform as other creditors who had sold them goods or advanced them money. They might undoubtedly have repudiated it as a debt of the firm. We think the learned judge below erred in his charge as complained of in the third specification of error. . He held, and so charged, that “ the money that was put into the firm by W. M. Caughey was credited to him on the books of the firm: it had become his money by loan from Mrs. Walker: there was no privity between the plaintiff, Mrs. Walker, and the firm, and hence it is, we think it a mistake to say that the firm had the use of her money. It was the money of W. M. Caughey that they had the use of.” We think there was error in making this fact conclusive, as the charge did. The mere form of book-keeping could not change the facts of the case or alter the result. That it was not noted on the book, that the money was a debt by the individual member to whom it was credited to the plaintiff, that it was a loan from her to him, merely, ought not to conclude the question. All the partners knew of the fact that she held her father’s note for the money, though they did not consider it a debt of the firm, as certainly it was not. It was expressly held by this court, in Siegel v. Chidsey, 4 Casey 279, that when money was obtained on the personal credit of a member of the firm, and the money went into the firm and was used for its exclusive benefit, though this would not make the firm liable to the creditor, yet it would be a good consideration to support the subsequent promise of the firm to pay the debt; and a judgment confessed on such assumption was not fraudulent as to creditors. We cannot distinguish-in any material point between that case and the one now before us.

No exception was taken in the court below to the order directing the feigned issue. It is not our intention to award a venire facias do novo — because we are of the opinion that the issue should not have been ordered. There was no fund in court which rendered a decision of the question raised by the issue necessary. Such necessity might never arise. W e are informed, indeed, that there was a fund in the Circuit Court of the United States for this district for distribution among creditors. It was for that court to direct an issue. It is plain that the court having ultimately to decide should have the settling, control and supervision of the issue. They should have the power to order a new trial if they should think the instructions of the court to the jury or their rulings upon questions of evidence erroneous, or the verdict against the weight of the testimony. It is their conscience which is to be informed. They understand the nature of the fund which they are required to distribute. If, for example, that fund was raised by a sale of the separate estate of W. M. Caughey, the main question in this case could not arise, for it w.as beyond all doubt that the judgment was confessed for a bona fide debt owing by him. The entry of the judgment against the firm did not change its character. He and his separate property were still bound by it, for the judgment was several as well as joint, as all judgments against partners are. Teton the verdict and judgment in the court below, the defendants might go into the circuit court and insist that this finding is conclusive against the plaintiff’s clear right to a priority of payment out of her father’s separate property. Courts do not sit to decide hypothetical cases. It is not enough for a party invoking their decision to show that he may be interested in the question at some future time. He must have a present interest. I know of but one exception to this rule. When a party is in peaceable possession of land he may file a bill in , equity quia timet to remove a cloud on his title which renders it unmarketable.

In Maynard v. Esher, 5 Harris 222, there was an amicable action to try in the District Court of Philadelphia a question arising on a proceeding in the Common Pleas of that county. There was no exception to the action nor assignment of error, but Lowrie, J. said: “ When issues of fact arise and a jury is demanded, the court should oversee the framing of the issues, and order them to be tried by its own jury, and then proceed itself to determine the rights of the parties found and admitted.....The District Court might very properly ha^e refused to try this wager in aid of a court that could do its own business; and we have had some hesitation in allowing it to be heard before us.” In Rowland’s Estate, 7 Penn. Law Journal 312, 4 Clark 199, upon a petition ordered by the Court of Common Pleas, the District Court of Philadelphia held, that it it is not competent for the court, upon the application of a third person, to vacate and annul a judgment between other parties who ask uo action and attempt by the process of the court no injury to his rights, and which judgment, though fraudulent and inoperative as to him, is perfectly good as to all the world beside. There may be no impropriety in my saying that the learned president of the Court of Common Pleas — Judge King ■ — -who had directed the application to be made to the District Court, assured me afterwards that he thought the refusal of that court to entertain the case was entirely right. 1

Judgment reversed..


author: Mr. Justice Green

text:
    Reck versus Clapp.
    1. A purchaser of land who examines th.e records is protected by them as far as they can protect him, but he necessarily takes the risk of having the actual state of the title correspond with that which appears of record.
    2. A. being seised of a tract of land, the same was taken into execution under a judgment against A. and sold by the sheriff to B., a bona fide purchaser, on August 6th 1875. On December 20th 1875, A. conveyed tlie said land to O. by deed. Subsequently the date of said deed was fraudulently altered from ‘‘1875” to “ 1874.” On February 1st 1877, C. conveyed the property by deed back to A. The deeds from A. to C. and O. to A. were recorded March 29th 1877, the former being so recorded as to bear date “ 1674,” and not “ 1875.” On June 9th 1877, A. conveyed the tract to D., a bona fide purchaser for value, who did not see the original deed from A. to C., and had no notice of the fraudulent alteration in the date thereof. In ejectment by B. against D. for the tract of land, Held, that the plaintiff was entitled to judgment.
    October 17th 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.'
    Error to the Court of Common Pleas of Ola/i'ion cownty : Of October and November Term 1881, Nos. 249 and 250.
    Two actions of ejectment by W. R. and E. M. Reck against E. E. Clapp, to recover tlie undivided one-fourth of two tracts of land in Clarion county. The cases involved the same question of title, and, by consent of the parties, were tried together before tlie same jury.
    On tlie trial, both parties claimed under James W. Guthrie, wbo acquired title to tlie premises in question September 6th 1872. The plaintiffs claimed title nnder a sheriff’s sale in executionupon a judgment obtained by tbe plaintiffs against James W. Guthrie, in the Common Pleas of Clarion county, August 6th 1875.
    The defendants offered in evidence exemplifications of the record of three deeds : the first purporting to have been dated and acknowledged December 20th 1874, recorded March 29th 1877, from James W. Guthrie to Hugh Maguire; the second, dated and acknowledged February 1st 1877, recorded March 29th 1877, from Hugh Maguire to James W. Guthrie; the third, dated February 3d 1877, acknowledged February 15th 1877, recorded June 9th 1877, from J. W. Guthrie to the defendant, all for the premises in question.
    The plaintiffs, in rebuttal, produced in evidence the originals of the said three conveyances, which were all attached together. They then gave in evidence a deposition of John Beatty, a justice of the peace, before whom the deed from Guthrie to Maguire, and the re-assignment from Maguire to Guthrie were acknowledged, in which lie testified that both these deeds were acknowledged before him at the same time, viz., in February 1877; that J. W. Guthrie said that one of the assignments “ought to have been acknowledged at a certain time and Guthrie dated the acknowledgment back to the time he mentioned.”
    The plaintiffs also proved by two experts that the figure “ 4 ” in the date December 20th 1874, in the assignment from Guthrie to Maguire, and also in the acknowledgment to the same, was certainly written upon an erasure, and that the original figure, so far as the indistinct outline could be seen, appeared to be either 5 or 6.
    The plaintiffs alleged there was a forgery and fraudulent alteration in the date and acknowledgment of the conveyance of Guthrie to Maguire, made for the purpose of making it appear that Guthrie had parted with his title prior to the date of the plaintiffs’ judgment.
    The plaintiffs presented, inter alia, the following point:—
    2. “If the jury find from inspection, and other evidence that the date of his assignment or transfer by Guthrie to Maguire of his title deed for the land in controversy, and also the date of the acknowledgment thereof, were erased, mutilated and changed on the paper itself, from December 20th 1875, to December 20th 1874, it would render such assignment or transfer fraudulent and void; and being in the direct line of his title, defendant was bound to take notice of it, and if he failed to do so, he is not an innocent purchaser without notice, and the verdict of the jury should be for the plaintiffs for the land in controversy.”

      Answer. “ If the date of the assignment was fraudulently changed as stated in this point it would destroy the validity of the paper as affecting all interests intended thereby to be prejudiced, but we do not think that such- change would affect the defendant, as stated in the last part of- said point, if he used due diligence in obtaining correct information, and was unable to do so. The proposition is divisible, the point is double. One part.of it declares, as a result of the facts hypothetically stated, that the assignment would be void. We state if this change was fraudulently made it would be void and not prejudice any right or any parties intended to be defrauded. But the other part of the point asserts that this alteration was in the direct line of the title of the defendant, and that he was bound to notice it, and if he failed to do so, he was not an innocent purchaser without notice. To that part of the point we have already said that if he examined all the papers that he had access to or could by reasonable diligence obtain, if he examined the titles on the record and fouud them fair, and did all that he could reasonably do to find out all about this claim of title, and after having used such diligence was unable to get hold of this paper ; the fact that the paper he could not thus get was altered, would not affect him with the consequences stated in the last part of this point.” (Fourth assignment of error.)
    The defendants presented, inter alia, the following points:
    3. That a bona fide purchaser for value takes a title discharged of every fraud or secret equity on part of his predecessors in title of which he had no knowledge or notice. Answer. — We answer this point in the affirmative. (Seventh assignment of error.)
    7. “That if J. M. Fleming, in 1870, by Guthrie, as his agent, executed the paper of the 28th June 1870, and in 1872, to carry out the purposes of that paper, Fleming conveyed to Guthrie, and Guthrie conveyed the land to Maguire in pursuance of the trust reposed in him by Fleming, the date of the deed of Guthrie to Maguire, or the date of its acknowledgment under the evidence are immaterial in this case, and, if the jury so find, their verdict should be for the defendant.”

      Answer. — •“ Gentlemen, now be careful on this point, because here is the second general view of the case. It is referred to by both parties in their arguments — referred to in several of the points. In some measure by the points put by the plaintiffs because this is a summing up of the second general line of defence set up by Clapp. (Defendant’s seventh point read.)
    “We answer this point in the affirmative. That is the second general point. Now, this is denied by the plaintiffs. It is affirmed by the defendants. They say that the property was conveyed as a mortgage to Maguire in Í870 ; that he held that paper; they say that Guthrie testifies that the deed made by administrators to him was made for the purpose of enabling him to carry out in good faith to the mortgagee the trust that he liad in the land, and they say, if that be so, that there was a mere trust relation between Guthrie and Maguire and the Flemings, and that a judgment would not attach to it, and the sale would be good for nothing and pass no title. We say that is the law if the facts be so found. But the plaintiffs in the case say that is not so. They say that is not so and that the evidence does not justify the jury in forming that conclusion. Taking the evidence and all the papers in the case, they say that Guthrie is mistaken about that. Now we leave you to determine under the evidence which has the right of the issue.” (Ninth assignment of error.)
    Verdict for the defendant and judgment thereon. The plaintiffs took this writ of error, assigning for error, inter alia, the answers to the above points.

      W. L. Corbett (Boggs & Weidner with him), for the plaintiffs in error.
    A bona fide purchaser of real estate is not protected from a forgery in a link in the title under which he claims. The doctrine that a bona fide purchaser acquires title discharged from all secret equities, does not apply to this case. The plaintiffs’ judgment became a valid lien on Guthrie’s title, August 6th 1875, before the forged deed from Guthrie to Maguire was placed on record, and the latter was ineffectual to divest the plaintiffs’ legal right. Iu such case, a purchaser under the void deed acquires no title, even though the record did not disclose anything to put him on inquiry. The purchaser’s innocence will not protect him: 2 Sugd. on Vend. 738; Van Amringe v. Morton, 4 Whart. 382; Arrison v. Harmstead, 2 Barr 191; Wallace v. Harmstad, 3 Harris 462.

      Wilson & Jenks, for the defendant in error.
    The defendant used diligence and purchased in good faith on the strength of the record title. The evidence was insufficient to show a fraudulent or even material alteration, and the jury so found. It was proved that Maguire had in fact held title two or three years before he re assigned to Guthrie, but it was claimed that the alteration of the deed operated retrospectively and made the deed absolutely void. This does not follow, if the title was in Maguire, any more than if the conveyance to Maguire, originally made in good faith, had been then physically destroyed. Neither its destruction nor its fraudulent alteration would operate to re-vest the estate in Guthrie prior to such destruction or alteration.
    November 7th 1881.
   Mr. Justice Green

delivered the opinion of the court

Tim second point of the plaintiffs was in the following words :

“If the jury find from inspection and other evidence that the date of the assignment or transfer by Guthrie to Maguire of his title deed for tlie land in controversy, and also the date of the acknowledgment thereof, were erased, mutilated and changed on the paper itself from December 20th 1875 to December 20th 1874. it would render such assignment or transfer fraudulent and void, and being in tlie direct lino of bis title, defendant was bound to take notice of it, and if be failed to do so he is not an innocent purchaser without notice, and the verdict of the jury should he for the plaintiffs for the land in controversy.”

’ The hypothetical facts of this point were an absolute obliteration of the actual date of an instrument conveying title to land, and the substitution, in place thereof, of an anterior and false date. Beyond all question, such an alteration of such an instrument would be a forgery as against any person affected by the change, and who was not a party or privy to it. The plaintiffs claim to be, and apparently are, such persons. They acquired title by purchase at sheriff’s sale under a judgment entered August 6th 1875. "Whatever title Guthrie, the defendant in that judgment, had on that day, in the land in controversy, passed to the plaintiffs by their-purchase. This gives them a sufficient interest to question the condition of Guthrie’s title. Now the legal effect of the alleged alteration was to divest Guthrie’s title as of August 6th 1875, by subjecting it to the operation of a transfer dated December 20th 1874. lie held title by a deed in fee simple dated September 6th 1872, which on its face contained no conditions or qualifications. But the defendant Clapp claims to have been, and apparently is, an innocent purchaser for value of Guthrie’s title as it stood on the record. Tested by tlie record alone, bis claim would be good because that afforded no evidence of the forgery. In this condition of things the plaintiffs’ second point was put in order to charge the defendant with the effect of the forgery, for the reason that the forged instrument was itself a link in his chain of title. He does, and must claim title directly through that paper. The question is reduced to one of the plainest and simplest character, to wit, does a forged deed pass the title which it assumes to convey, as against one who has no participation in, or knowledge of the forgery % Of course it can accomplish no such result.

The second point of the plaintiffs was answered by the court below by their saying, in effect, that tlie defendant would not be affected by tlie forgery, because lie could assert the rights of an innocent purchaser without notice if he used reasonable diligence to obtain access to the original papers, but without success, and the title, as recorded, was fair and free from blemish. The consequences of such a doctrine would be of a most seiious character if it received the sanction of the courts. For then it would only be necessary for the forger of a deed or mortgage, after having it placed on record, to lose or destroy the original instrument and convey his title to an innocent third person for value, pretending to him that the original paper was mislaid and would be subsequently delivered. Of course, a purchaser who examines the records is protected by them as far as they can protect him, but he necessarily takes the risk of having the actual state of the title correspond with that which ■appears of record. The language of this court in the ease of Arrison v. Harmstead, 2 Barr 191, fully illustrates this subject: A deed, good in its creation, may become void by matter ex post facto, as by interlineation, erasure, or by alteration in a material part. But a deed may be good in part and void in part. It may be good against one person and void against another.” . . . “ It is said that Mrs. Lewis is a bona fide purchaser without notice, and that the action may be sustained on that ground. But conceding that she is, her situation is no better than the fraudulent grantor’s. Although the title of the grantor was, in its inception, good, it became entirely void by matter ex post facto. At the time of the assigm&eut, the title being avoided, tile assignor had nothing to convey; of course nothing passed to the assignee. It may be, and perhaps is, a a hard case. Fraud may be committed on an innocent pui chaser, who may find it difficult to guard against imposition. This is conceded; but it is far better to encounter this risk, than to give the least countenance to any alteration whatever of a solemn instrument of writing, which would certainly be the result, if the guilty party could escape the consequences of his fraud by a transfer to a person who might assume the garb of an innocent purchaser for a valuable consideration. We cannot lay too many restraints upon trick, artifice and fraud.” In Van Amringe v. Morton, 4 Wh. 382, it was held that if a deed which has been executed and acknowledged by the grantor with a blank for the grantee’s name, be surreptitiously and fraudulently taken from the grantor’s house, and the blank filled up, no title passes thereby; and a bona fide purchaser for a valuable consideration from the person holding the deed stands in no better situation than such fraudulent holder. In the case of Wallace v. Harmstad, 8 Wright on p. 494, Woodward, J., speaking of the cases of Arrison v. Harmstead, 2 Barr 191, and Wallaces. Harmstad, 3 Harr. 462, said: “The stern ruling in those cases was applied without hesitation to a bona fide purchaser of the ground rent without notice of the fraud, so that, as far as concerns Arrison and all persons claiming under him, the part of the deed which was intended to enure to his benefit, may indeed be said to be dead. It was not merely a voidable instrument, it was void. It was called a forgery and treated as sucb, and neither law nor equity would tolerate it even in the hands of an innocent purchaser.”

We are clearly of opinion that the learned court below was in error in the answer to the defendant’s second point, and for that reason the judgment must be reversed. The views we have expressed require a modification of the answers given to the defendant’s third and seventh points, and the case is also reversed on the seventh and ninth assignments, in which those answers are complained of. As to the other matters presented by the various assignments, we forbear discussing or deciding them, for the reason that the case goes back for another trial and these questions maybe affected by testimony to be then delivered.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Gordon,

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    Angier, Trustee versus Agnew.
    1. The mortgagor of real estate may continue, after the execution of the mortgage, as before, to cut and sell the timber growing upon the premises, without violating any of the rights of the mortgagee by so doing.
    2. Where such timber is sold without any fraud or concealment on the part of the mortgagor, the vendees thereof will take a good title as against the mortgagee.
    3. In a suit by the mortgagee against such vendees to recover the value of the timber, where no fraudulent combination between the mortgagor and the vendees is alleged, it is quite immaterial whether the mortgagor was solvent or insolvent at the time of the sale. Evidence to prove his insolvency at that time is therefore inadmissible.
    October 18th 1881. Before Sharswood, O. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Forest county: Of October and November Term 1881, No. 292.
    Trespass on the case for waste by cutting timber trees, by J. B. Angier, trustee for the creditors of the Titusville Savings Bank, against Leonard Agnew et al. Plea, not guilty, with leave, &e.
    On the trial, before Wetmobe, P. .J., the plaintiff’s evidence showed the following facts: In October 1873, the Titusville Savings Bank, a partnership association, failed. A plan was devised to get an extension of time, by which each stockholder was to deposit with the plaintiff, Angier, trustee for the creditors, securities as collateral to their individual liability as stockholders. In pursuance of this plan, Joshua Douglass, one of the stockholders, on November 29th 1873, executed to Angier, trustee, a mortgage for $5,000, that being his proportion of the liabilities, on a tract of land in 'Forest county, conditioned for the payment of the debts of the bank on or before January 1st 1870. This mortgage was recorded in Forest county, May 25th 1874.
    On December 29th 1875, three days before the maturity of the mortgage, Douglass, the mortgagor, sold all the timber on the mortgaged premises to one Hilands, for the defendants, for $300. The defendants entered upon the laud during 1877, and cut and carried away the greater part of the timber. This was done without the knowledge of the plaintiff.
    In 1877, the plaintiff, as trustee, at the instance of the creditors, sued out the mortgage, and the land was sold at sheriff’s sale for less than $200. lie then brought this suit against the defendants.
    The plaintiff offered in evidence proceedings in bankruptcy of Joshua Douglass, to show his insolvency in 1877. Objected to. Objection sustained. Exception.
    At the close of the plaintiff’s testimony, the court, being of opinion that the action could not be maintained, directed a non-suit, and subsequently refused to take it off, whereupon the plaintiff took this writ, assigning for error the rejection of the above offer of testimony, and the refusal to take off the nonsuit.

      Neill (Heywang with him), for plaintiff in error.
    The court below held that we have no remedy. The-question is, can a mortgagor of timber land, whose mortgage is recorded, sell and convey to a purchaser the right to strip the land of the timber, without liability on the part of the purchaser to the mortgagee. The timber, in Forest count}’-, constitutes the chief value of the land, and the result of the decision below is, that the mortgagee, without fault on his part, is deprived of the security of his mortgage. We could not bring trover or trespass, there being no privity between plaintiff and defendants; nor replevin, nor estrepement, nor a bill in equity for an injunction, because the timber had disappeared. We therefore brought this comprehensive action on the case in the nature of an action for waste, our right to maintain which was virtually decided in Roberts v. Dauphin Bank, 7 Harris 71, 77; Denny v. Brunson, 5 Casey 382; McCullough v. Irvine, 1 Harris 438. The distinction between the actiou of waste proper and case in the nature of waste, is this, that whenever the former could be maintained for an injury committed by a privy, the latter may be maintained for such injury committed by a stranger: Patterson v. Cunliffe,32 Leg. Int. 398. A mortgagor may cut timber to a reasonable extent, by implied license of the mortgagee, but he cannot denude a tract of timber-land. To what extent timber may be cut without waste is a question of fact for the jury, whether the action be in trespass or on the case: McCullough v. Irvine, supra; Coggill v. Mileburn & Co., 10 C. E. Green; Woodman v. Good, 6 W. & S. 172; McCay v. Wait, 51 Barb. 225; S. C., 8 Amer. L. Reg. (N. S.) 191; 18 Ibid. 588; Drown v. Smith, 52 Me. 141; Bond v. Lockwood, 33 Ill. 212; Page v. Robinson, 10 Cush. 99; Brady v. Waldron, 2 Johns. Ch. 148. The mortgagee may follow into the hands of a purchaser from a mortgagor a fixture severed from the mortgaged premises: Hoskin v. Woodward, 9 Wr. 42; Witmer’s Appeal, Ibid. 455. In our case the mortgage was recorded and there was some other evidence to affect the defendants with notice of it, and the case should have been submitted to the jury.

      C. W. Stone (with him E. L. Davis), for the defendant in error.
    The court did not enter the nonsuit by reason of the form of action but because the elements of recovery did not exist. There was no evidence of any fraud on the part of the defendants, nor that they had actual knowledge of the mortgage, or of Douglass’s insolvency. There is- no duty on the part of the purchaser of standing timber or of coal, or minerals, to inquire if there is a mortgage on the land, or if the mortgagor is insolvent. A mortgagor in possession has the right in Pennsylvania to sell in the usual way the timber, coal and minerals thereon, unless the mortgagee stops him by ejectment or estrepement: Hoskin v. Woodward, 9 Wr. 44; Witmer’s Appeal, Ibid. 455; Asay v. Hoover, 5 Barr 21; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 419. The cases from other states cited on the other side do not apply, as a mortgagee there takes an estate in the land, not a mere security. The same rule exists in Connecticut, where the doctrine as to mortgages is the same as in Pennsylvania: Cooper v. Davis, 15 Conn. 556 ; Gardner v Heartt, 3 Iowa 234. See also Wilson v. Maltby, 59 N. Y. 127.
    November 7th 1881.
   Mr. Justice Gordon,

delivered the opinion of the court

Angier, the plaintiff, as trustee for the creditors of the Titusville Savings Bank, must stand or fall on the rights of the bank as mortgagee of Douglass, for his suit has no other foundation. Therefore, whether Douglass was solvent or insolvent at the time of the execution of the mortgage, or at the time he conveyed the timber in controversy, is of no real consequence, for the establishment of either of these conditions could neither extend nor abridge the rights of the mortgagee. Had the plaintiff proposed to prove a fraudulent combination between Douglass and the defendants to strip the land of its timber to the injury of the bank or its creditors, we would have had a question very different from the one now before ns. Then the insolvency of the mortgagee might have been regarded as one of the facts or circumstances which induced the fraudulent combination. But as no such ¡proposition was made the evidence offered was properly rejected.

We are thus left to the single inquiry, whether the mortgagor may, after the execution of the mortgage, continue, as before, to out, dig and sell th¿ timber upon, or the coals or other minerals in, the mortgaged premises. If lie may, then has the plaintiff, Angier, no case; for Douglass sold the timber growing upon this land to the defendants, without either fraud or concealment, and if he had the right to sell they had the right to buy, take possession of, and sever the timber from the land on which, it was growing. But that Douglass, as mortgagor, had such right, seems to have been very plainly ruled in the cases of Hoskin v. Woodward, 9 Wr. 42, and Witmer’s Appeal, Ibid. 455. In the first of these two cases the question was, whether the mortgagee could follow with his execution, issued from a judgment obtained on the boud secured by the mortgage, a lathe, one of the fixtures of a machine-shop, which had been severed by the mortgagor and sold to a third party, and it was held that lie could, inasmuch as such severance and sale were a fraud upon the rights of the mortgagee. But from this ruling the sale of lumber, fire-wood, coal, ore, fruit or grain found in or growing on land, was expressly excepted, and it was said that these may be sold without violating the rights of the mortgagee, and for the reason that products of this kind are usually intended for consumption and sale. We may also add, that the use of these things in the way thus spoken of, cannot be a fraud per se on the mortgagee, for he must know when lie takes bis security, that such articles will continue to be subjeet to their ordinary use; indeed, as was said in the case cited, they may afford the only means which the debtor possesses with which to pay the mortgage.

The second case, above referred to, was that of a bill in equity by judgment creditors to restrain tbe removal and sale of a steam-engine, part of the premises bound by the judgment Here again, while it was admitted that such a bill could be sustained for the purpose indicated, yet, citing Hoskins v. W oodward, it was held that the fraudulent character of the severance must he determined by the character and circumstances of each case. While the dismantling of mills, factories and other permanent structures on the eve of bankruptcy must be regarded as a fraud on tbc rights of tlie mortgagee, yet that the rule did not apply to the use and sale of timber, coal and other natural products.

It will be observed that in this case, no distinction is made between the rights of the mortgagee and judgment creditor; indeed, both are said to stand on the same footing, and to be supported by the .same principles. Mortgages and judgments are alike liens and nothing more, and they differ only in the methods prescribed for their collection; beyond this the rights which belong to their owners are the same. What, then, must be the effect of the doctrine contended for by the plaintiff \ Just this; that the purchaser who buys ore, coal or timber from the owner of land covered by a lien of any kind, is guilty of constructive fraud against the lien creditor, and may, at any time within six years from his purchase, be subject to an action on the case. But a doctrine such as this would operate so disastrously upon the debtor and the business of the country that, were we to adopt it, it would soon be found to be a burden too intolerable to be borne. The very means necessary for the payment of those liens would be taken from the debtor, whilst no prudent person could risk the purchase of so much as a timber tree or a ton of coal from such debtor without having first obtained the consent of all his lien creditors.

As we cannot agree to be instrumental in the introduction of a condition of. affairs such as this, opposed alike to our own authorities and the common understanding of our people, we must adopt and affirm the ruling of the court below.

Judgment affirmed.