author: — Per Curiam:

text:
    January Term, 1882,
    No. 38.
    Ulrich’s Appeal.
    1. Administrators, having an order from the Orphans’ Court to sell the real estate of a decedent for the payment of his debts, are the proper parties to file a bill in equity against a third person in whose name the title stands, in order to compel him to make a conveyance to the purchaser,
    2. That the heirs of the decedent are 'not joined as parties complainant is not ground for a demurrer to the bill.
    3. Where a subsequent written settlement between the parties is inconsistent with the theory that certain moneys advanced are still due and unpaid, and there is verbal testimony that the parties had “settled,” and since the settlement fourteen years have passed, a master’s finding of fact that the moneys are still due may be overruled by the Court.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and G»een, JJ.
    Appeal of Philip Ulrich from the decree of the Court of Common Pleas, No. 4, for Philadelphia County, sustaining exceptions to the report of a master.
    January 8th, 1880, Margaret Barnholt and Jacob E. Long, administratrix and administrator of the goods, etc., of George Barnholt, deceased, filed a bill in equity against Philip Ü1rich, setting forth that, about November 6th, 1865, George Barnholt, the decedent, purchased at a sheriff’s sale certain real estate in Philadelphia; that the whole of the purchase-money was paid by Barnholt, but the title thereto was made to Philip Ulrich, the defendant, he agreeing to hold the same in trust for said Barnholt; that on March 4th, 1867, the defendant executed and delivered to Barnholt a paper in the following form:
    “Philadelphia, March 4th, 1867.

      “Know all men by these presents, That I, Philip Ulrich, have this day sold to George Barnholt the twelve court houses situate on and in the rear of Linden Street, between Spring Garden and Green streets (called-Avenue), and the three-story brick house and lot situate on the east side of Seventh Street, north of Poplar Street, and the frame building and lot on the west side of Marshall Street, above Poplar (bought by me at the sheriff’s sale of the .property of Matthias Smith), for the price or sum of nine thousand dollars, which he has paid to me in full, the receipt of which I do hereby acknowledge, and that I will make a deed or deeds, conveyance or conveyances to him, or to such person or persons as he may direct therefor, at his own proper costs and charges, subject to the mortgages now existing thereon.
    “ W itness my hand and seal this the day and year first above written.
    “Philip Ulrich, [seal.]
    “Witness present:
    “J. Alex. Simpson.”
    That Barnholt died intestate May 10th, 1877, and letters of administration on his estate were gi’anted to the complainants; that the Orphans’ Court made an order of sale of the said real estate for the payment of the debts of the decedent, to which the administrators made return that they had exposed the premises to sale and had received no bid, but that subsequently Elizabeth, wife of John G. Drell, had offered $1500 for one of them, and asking authority to accept said offer upon the entry of security, which was duly entered; that they prepared a deed to the purchaser, which the defendant, upon request, refused to sign; that in consequence of the delay the purchaser says she will not accept the title, and great loss will be incurred by the estate of the decedent, and that at no time since the date of the sheriff’s deed to him has the defendant ever claimed or exercised any power or authority over said premises or any part thereof; that the same were rented and the rents collected and repairs paid for by decedent and his agent.
    The hill prayed (1) that the defendant be ordered to unite with complainants in a deed to make title; (2) to pay the loss incurred; and (8) further l'elief.
    The defendant demurred to the bill on the grounds that (1) it did not appear that the plaintiffs, or either of them, had any estate or interest; and (2) the bill showed title out of the plaintiffs in the heirs of Barnholt.
    The Court overruled the demurrer, and permitted the record to be amended by making John G. Drell and Elizabeth his wife, in right of the wife, parties plaintiff.
    The defendant then filed an answer, denying knowledge of having executed the paper set out in the bill, and admitting his refusal to execute the deed, and setting forth that, April 9th, 1866, he advanced to Barnholt through his counsel, J. Alexander Simpson, Esq., upon the security of the said properties, the sum of $788.25, to be appropriated as set out in the following receipt:
    “Received, Philadelphia, April 9th, 1866, of Philip Ulrich, the sum of seven hundred and thirty-three dollars and twenty-five cents, to be applied as follows, to wit: Pour hundred and twenty-five dollars, and interest, to the payment of the pro rata part of a mortgage of fifty-five hundred dollars held by Virginia Earp, due from a lot on the west side of Marshall Street, north of Poplar, 12 feet in front, and 87 feet 6 inches in depth; two hundred and seventy dollars for the interest upon a certain mortgage of $3000, upon a messuage on the east side of Seventh ¡Street, 316 feet 4J inches north of Poplar Street, and extending through, eastward, to Marshall Street; and twenty-five dollars and fifty cents for the proportion of interest on $5500 mortgage paid by John Hibbett to Virginia Earp.
    «$733.25.
    (Signed) “J. Alexander Simpson.”
    That this sum of $733.25 had not been returned, but was legally due to him from Barnholt; that he was ready and willing to execute a deed whenever the said sum with interest was repaid; that Barnholt never demanded a conveyance, knowing that he was indebted in the above sum; and that «I admit that the said premises were rented by the said George Barnholt, and the repairs to the same, the water rents and taxes, paid for by him; but it is not true, as set out in the 11th paragraph of plaintiffs’ said bill, that at no time since the date of the sheriff’s deed to said George Barnholt have I ever claimed or exercised any power or authority over said premises; but, on the contrary thereof, I did, on one occasion, stop the payment of the rents to said George Barnholt until he had repaid to me a certain sum of money, to wit, the sum of $955, advanced by me to him over and above the said sum of $733.25, as set out in my answer in the 8th paragraph.”
    On the 25th of March, 1880, the Court made an interlocutory order, by agreement of counsel, that the defendant execute a deed “upon payment into Court of a sum of money-sufficient to cover the claim of defendant, with interest thereon, and costs of suit, to wit, the sum of $1700, within five days from the date of this order, the payment of said sum of money being without prejudice to either party, and the cause to proceed to a final decree in relation thereto.” The sum of $1700 was paid into court by the plaintiffs.
    Before an examiner, appointed to take testimony, the receipt of April 9th, 1866, and the paper of March 4th, 1867, were offered in evidence.

      J. Alexander Simpson testified for the complainants, inter alia, in regal’d to the paper of March 4th, 1867:
    « Mr. Barnholt and Mr. Ulrich came to my office together the day this paper was drawn and dated. Mr. Barnholt said to me, in the presence of Mr. Ulrich, that he had settled with Philip, and wanted me to draw a paper for Mr. Ulrich to sign, acknowledging that the properties bought at the sheriff’s sale were his, Barnholt’s. I knew that the principal part of the purchase-money had been paid by Mr. Barnholt previously. He paid to the sheriff all but the $850 I got from Mr. Ulrich. I then drew this paper, read it over to Mr. Ulrich, and he signed it in my presence.”
    P. Ulrich, the defendant, testified, inter alia, under objection :
    “ This paper I first saw on the day on which Mr. Grace and myself came to this office to see it, and then went to Mr. Simpson’s office, and Mr. Simpson, Jr., showed it to me. It was about a week or ten days ago.
    “ Q,. What is owing to you?
    “A. $733.25.”
    March 25th, 1881, the case was referred to Charles Gibbons, Jr., as master, to report the facts and form of a decree.
    The master reported, inter alia, the facts as follows:
    “On the 9th day of April, 1866, Ulrich advanced to Barnholt the sum of $733.25, to be applied in and about the said real estate as set forth in the receipt for the same, and recited at large in the answer, and Ulrich continued to hold the title of'the said property as security for the return of the money so advanced. On March 4th, 1867, the defendant Ulrich executed and delivered to George Barnholt the paper, which the master will call the declaration of trust, recited in the bill. No part of the $9000 was paid to Ulrich. . . .
    “The said sum of $733.25 was not returned to the defendant, Ulrich, and is still due him. Ulrich always held the title to these properties, and the same stands in his name at the present time.
    “ During the life of George Barnholt no request was made of Ulrich to execute a conveyance, a period of nearly twelve years elapsing between the date of the sheriff’s deed and the death of Barnholt, during which time there is evidence that Ulrich exercised control over the collection of the rents growing out of the said real estate. . . .
    “ In his finding of said facts, he did not consider the evidence of Philip Ulrich, the defendant.”
    The master further reported:
    “In the first place this money was advanced to Barnholt for specific purposes, for the purposes contained in the receipt which was given Ulrich by Barnholt’s attorney: Four hundred and twenty-five dollars thereof was intended for the payment of a part of a mortgage of $5500 on the Marshall Street property; two hundred and seventy-five dollars for the payment of interest on a mortgage of $3000 on the Seventh Street property, and twenty-five dollars for the proportion of interest on the $5500 mortgage. This receipt most particularly sets forth the manner in which the money is to be applied. Ulrich advanced this money on the'identical properties which he held, and for the purposes of meeting claims and demands against these properties. It is not contended that the advance took any other course than that specified in the receipt. If the money had been loaned to Barnholt for ordinary purposes simply, or, in other words, if it had been given for any other purpose than expenditure on these very properties, it might be argued to some effect that the defendant was not justified in refusing to sign the deed when presented; but, when we consider that in advancing this sum of $733.25, both Ulrich and Barnholt took the precaution to specify the mode of its application, by a receipt prepared by an attorney, we must presume that that receipt was intended for more than an ordinary acknowledgment of a simple debt.
    “ Holding the title, a sheriff’s deed, holding a receipt for moneys advanced on account of said properties, controlling to a certain extent the collection of the rents therefrom, Ulrich must be considered in the light of a trustee, and, as such, has every right to be reimbursed for expenditures and advances (especially when made at the request of the cestui que trust), before a chancellor will direct him to convey. The position of the parties is not at all altered by the fact of a sum of money being paid into court sufficient to cover the debt due the defendant, and by the fact of the defendant having signed the deeds.
    “ The claim of the defendant is simply removed from the property to the fund. The principle that the master has applied to the conveyance of the real estate applies with equal force to the fund.
    “Your master most respectfully submits the foregoing report, and suggests that the sum.of $733.25, with interest from the ninth day of April, A. £>. 1866, be awarded from the said fund to Philip Ulrich, the defendant; that the bill as filed by plaintiff be dismissed, and that the plaintiff pay the costs of these proceedings.”
    The complainants filed twelve exceptions to these findings.
    The Court below, Briggs, J., sustained the exceptions, and ordered that the money in court be awarded to the plaintiff, and the costs be paid by the defendant, filing the following opinion:
    “ We do not think that the evidence in this case sustains the master’s conclusions. The sealed declaration of the defendant, of March 4th, 1867, made and delivered to the plaintiff’s decedent eleven months after the receipt of Mr. Simpson, of April 9th, 1866, is utterly inconsistent with the theory that the moneys advanced, as set out in that receipt, were still due and unpaid. The defendant’s declaration is in these words: [Reading it.]
    “The language here employed admits of no doubt as to its meaning, and raises an express obligation on the defendant’s part to convey the premises, subject only to the proper costs of conveyance and existing mortgages. The learned master, nevertheless, maintains that the premises are also subject to the advances mentioned in the receipt of Mr. Simpson, of April 9th, 1866. There is, however, no legal evidence (for the defendant is not a competent witness) to warrant this conclusion, and to support such a deduction, we must assume that a provision to secure those advances was omitted from the paper signed by the defendant, for some reason not defined. If the advances were, then, unextinguished, it were just as easy to say so as to charge the premises with the mortgage and cost of conveyance, as that paper was given but eleven months after the advances had been made, and while, it is fair to presume, the transactions were yet fresh in the memory of the parties.
    “ The more rational theory to be adduced from these documents alone is, that a settlement at the time of making the defendant’s paper, or before, had taken place between them, and that the document was given to show precisely the conditions upon which the premises were then held by the defendant, and were to be conveyed at Barnholt’s request. This view is supported by the additional testimony of Messrs. Simpson and Davis. The former testifies that Barnholt and Ulrich ‘ came to my office together the day this paper was drawn and dated. Mr. Barnholt said to me in the presence of Mr. Ulrich, that he had settled with Philip, and wanted me to draw a paper for Mr. Ulrich to sign, acknowledging that the properties bought at sheriff’s sale were his, Barnholt’s......I then drew the paper, read it over to Mr. Ulrich, and he signed it in my presence.’ Now, here we have them together at Mr. Simpson’s office, stating that they had settled, and wished a paper drawn to show precisely what the settlement was.
    “The paper is drawn accordingly. Under these circumstances, to allege that that document does not express the result of the settlement, and show the true relation between the parties as it then existed, is to assert that their going to Mr. Simpson’s office, and what was there said and done, was an empty circuity and form, and was not intended to express the intention of the parties. In the absence of proof the law does not raise a presumption to support such a theory.
    “ If more were wanted, we have it in the fact that since the date of that settlement (March 4th, 1867) fourteen years have passed, and no effort has been made to obtain either .the principal of the advances, or a cent’s interest accruing thereupon. And during all these years, Barnholt to the time of his death, and the plaintiffs since, have received the rents issuing from the premises, and have paid the taxes and water-rent assessed thereupon, with the exception that upon one occasion the defendant stopped the rents until he was paid another sum of money which he had advanced to Barnholt. That being repaid, the rents were paid to the plaintiffs and their decedent, precisely as if the claim now set up had never existed. After this lapse of time, a presumption of payment arises, which is protected by the statute of limitations. And wherever that statute will bar in suits at law, it will, by analogy, be a like bar in proceedings in equity: Neely’s Appeal, 4 Nor., 397; Hamilton v. Hamilton, 6 H., 20; Bickel’s Appeal, 5 Nor., 204; Ashhur3t’s Appeal, 10 P. F. Smith, 290 ; Fricke v. Magee, 38 Leg. Intel., 139 ; Irwin v. Cooper, 11 Nor., 298. It follows, that neither equity nor sound reasoning will permit this long silence now to be broken.
    “ From the views already expressed, we are irresistibly led to a conclusion adverse to that reported by the learned master, and hence sustain the 3d, 10th, 11th, and 12th of the plaintiff’s exceptions.”
    The defendant then appealed, assigning that the Court erred in sustaining the exceptions, in making its decree, in not ordering that the sum of $733.25 be paid to defendant, in overruling the demurrer to the bill, and in not dismissing the bill.

      Theodore F. Jenkins and A. Atwood Grace, for the appellant.
    The findings of fact by a master will only be set aside for plain error: Phillips’s Appeal, 68 Penna. St., 130.
    The fact that the money had been advanced and was not paid back was abundantly proved. The answer was directly responsive to the bill, and is evidence of the highest order: Pusey v. Wright, 7 Casey, 387; Paul v. Carver, 12 H., 207; Eberly v. Groff, 9 Harris, 251; Anton’s Appeal, 16 P. F. Smith, 483.
    The paper of March 4th, 1867, did not set out “ precisely the conditions ” upon which the premises were to be conveyed, for the payment of $9000 was never asserted by any one. The position that the claim of Ulrich was barred by the statute of limitations is untenable, because Ulrich held a security: Eomig v. Erdman, 5 Wh., 112; Krouse v. Beitel, 3 Eawle, 204; Baughman v. Dowler, 3 Teates, 9; Altemus v. Elliott, 2 Barr, 62.
    The bill should have been dismissed, because the heirs of Barnholt were not made parties: Anshutz’s Appeal, 10 Casey, 375.
    The heirs would have a right to pay the debts and so discharge the realty: Cassell v. Carroll, 11 Wharton, 104; Erb v. Erb, 9 W. & S., 147; Single’s Appeal, 3 Brewster, 160.

      J. Alexander Simpson, Jr., for the appellees.
    The answer as to new matter is not evidence: Torrey v. Burke, 38 Leg. Intel., 252. Only such parts are evidence as expressly deny the averments of the bill: Baker v. Williamson, 4 Barr, 463 ; Yollmer’s Appeal, 61 Penna. St., 118.
    The findings of the master are supported on no evidence: Milligan’s Appeal, 10 W. N. C., 203; Phillips’s Appeal, 18 P. E. Smith, 138.
    The answer is not responsive to the bill on the point that the $733.25 had not been repaid.
    In the proceeds of this sale the heirs have no interest. The heir does not appear as a party in the petition nor at any other time.
    February 6th, 1882.
   — Per Curiam:

The demurrer was rightly overruled. The administrators having an order to sell the real estate for the payment of debts were the proper parties. We are of opinion that, upon the evidence, the learned Court were right in overruling the report of the master, and that the appellant has no just ground to complain of the decree.

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


source: Caselaw Access Project

author: — Sterrett, J.:

license: Public Domain

text:
    SCHUYLKILL COUNTY.
    January Term, 1880,
    No. 191.
    April 20th, 1882.
    Seitzinger versus Marsden et al.

    1. A coal lease gave a right of way and privilege of erecting a breaker, and provided that the lessees should pay five cents per ton for every ton of coal brought through a certain gangway, that legal process out of any of the courts of this Commonwealth or of the United States should not operate in the transfer of the lease without the consent of the lessor, and that the lease should be forfeited for any breach of the covenants. The title of the lessees became vested in B.
    B. took a subsequent lease from the lessors which provided that he should put up engines and machinery at his own expense; that at the expiration of the lease these improvements should be valued by disinterested persons, each party choosing one, and on the award of valuation being made known it should be optional with the lessors to take or refuse to take them at the valuation; that legal process should not effect the transfer of the lease without the consent of tlie lessors, and that for any breach in these stipulations fifty cents a ton for every ton of coal thereafter taken out should be paid. It also contained a clause of forfeiture in case of the breach of any of the covenants. B. put up improvements, the greater part of them under the prior lease. His interest in the leases and personal property was levied upon and sold by the sheriff to the plaintiffs. The rent due, was claimed from the proceeds of the sale. The lessors refused to recognize plaintiffs as tenants, gave notice of forfeiture for non-payment of rent and breaches of covenant, and took possession. The lessors afterward sold some and removed others of the improvements. There was evidence that the possession was taken upon an understanding that the position of the plaintiffs should be the same as if they had been ousted by force, and that one of the lessors said he would be accountable for all the property. In an action against the lessors the Court charged that by virtue of the sheriff's sale of B.’s personal property the plaintiffs acquired all the right, title, and interest of B. in the property sold. Held, that this was correct.
    2. The Court further charged the jury, ‘‘ If you think from the law as explained and the facts that the plaintiffs have established their right to the property sold by the sheriff and they have satisfied you that the defendant, by liis agents or employes, acting within the scope of their authority, received any of this property and converted it to his own use, with a promise to pay for the same, or through fraud or unfair dealing, then he would be liable for the value of so much, if any, of the property which he received, with interest from the time of such conversion.” Held, to be correct.
    3. There was nothing in either of the leases that would have prevented B. from using his property on the demised premises before the sale, nor was there anything to prevent those who succeeded to his title from exercising rights of ownership, after they came into possession as vendees of the sheriff.
    4. As against execution creditors of the lessee under the second lease, the lessors’ option to buy the tenant’s fixtures at the end of the term, gave them no title to such fixtures until they were appraised and accepted.
    5. The title of B. in the engines and machinery was personal, and could be taken in execution, notwithstanding the agreement that upon a certain event they might be taken by the landlord upon a valuation, unless that event had occurred.
    6. If there was any breach of the tenant’s stipulations it resulted from the sheriff’s sale, and for it the parties themselves had provided a penalty, to which the lessors should be remitted rather than be permitted to take the property from the sheriff’s vendees without compensation.
    7. Under the facts of this case the plaintiffs could recover in an action of indebitatus assumpsit.

      Before Sharswood, C. J.; and Mercur, Gordon, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Schuylkill County.

    Assumpsit by Thomas Marsden, James Carr, and George Miles, trustees, against William Wetherill and Jacob J. S. Seitzinger, administrator de bonis non, etc., of Jacob W. Seitzinger, deceased, to recover the value of certain personal property alleged to have been taken by the defendants and converted to their use. There was a return of nihil as to Wetherill, and the case proceeded against Seitzinger alone.
    The narr was in indebitatus assumpsit, and contained the common counts for goods sold and delivered, work done, and materials furnished, money lent, money paid for the use of defendants, money had and received, and money found to be due.
    On the trial in the Court below before Walker, J., the following facts appeared:
    March 5th, 1858, Wetherill entered into an agreement under seal with Joseph W. Cake, John H. Adams, and John C. Lessig, by which he leased to them “ the right of way or privilege of bringing out coal through and over the Ell-maker tract of land . . . with the right of depositing dirt made from coal on the said tract,” during the term of ten years. They were also to “ have the privilege of erecting a coal breaker on said Ellmaker tract . . . and such right of way or privilege of bringing through coal shall extend only to all coal brought through the gangway of the mines lately worked on the Ellmaker tract by George Alton & Co.”
    The lessees covenanted that they would pay five cents per ton for every ton of coal brought through the said gangway, that the lessor should have a right of distress, that they would not “ interest any person or persons with them in this lease, excepting George Alton and Benjamin Titus, of the County of Schuylkill, without the consent and approbation of the party of the first part, had in writing for that purpose ; nor shall the operation of any legal process out of any of the courts of this Commonwealth, or of the United States, operate in the transfer of this lease, without the consent and approbation of the party of the first part, and for any breach in these stipulations the said lessees shall thereafter, for and during the term hereby granted, in manner aforesaid, pay the sum of ten cents per ton for every ton of coal thereafter brought through or over the land hereby leased.”
    The lease also contained a clause of forfeiture in case of the breach of any of the covenants.

      March 5th, 1853, Cake, Adams and Lessig, the lessees, granted to Benjamin N. Titus and George Alton the right of way through the Ell maker tract, with the privilege of depositing dirt on the same, and the right to remove all their fixtures within a certain period after the expiration of the lease. Titus and Alton organized a firm of Titus, Alton & Co., and put up a breaker, a double house, office, stable, and blacksmith shop on the tract. They erected a dirt plane, and had in the breaker a twenty-horse-power engine, machinery, screens, and rollers. The rights of the firm became vested in Titus, and in 1858 the sheriff of Schuylkill County levied on the lease and fixtures as the property of Titus, and sold them, November 29th, 1856, to J. H. Adams.
    On the 19th of February, 1859, Adams sold the lease and fixtures to William Burton, who, June 10th, 1859, took alease of the Ellmaker tract from Jacob J. S. Seitzinger, administrator as aforesaid, and William Wetherill, for the term of ten years. This lease provided, inter alia, that Burton should have the right to mine coal above and below water level on the Diamond Vein on the said tract; that he should put up necessary steam-engines at his own expeuse, in substantial houses, “ and at the expiration of this lease the engines and machinery shall be valued by disinterested persons, each party choosing one, and on the award of valuation being made known it will be optional with the parties of the first part (lessors) either to take or to refuse to take the engines and machinery at such valuation;” that all the houses and timber-work built by the lessee should, when the lease expired, become the property of the lessors; that the lessee should dig ten thousand tons of coal in each year, and in case of failure should pay the same amount of rent as though he had taken out the full quantity; and in any instance of failure of this stipulation, then at the option of the lessors the lease should be forfeited; that the lessee should pay for every ton of pea coal ten cents, and of all other kinds of coal twenty-five cents; that “this lease shall not be transferred or mortgaged by the lessee, nor shall said lessee interest any person or persons with him in working the mines hereby demised without the consent and approbation of the parties of the first pai’t, had in writing for that purpose, nor shall the operation of any legal process out of any of the courts of this Commonwealth or of the United States effect in the transfer of this lease without the consent and approbation of the parties of the first part,” and for every breach in these stipulations fifty cents a ton for every ton of coal thereafter taken out should be paid; that in case the vein should prove so faulty as to make it impossible to mine ten thousand tons, the lessee should be released, provided he ruu one hundred yards of gangway per annum; that the lessors might dis-train for arrears of rent; that the “ vein in the slope, the screens, turnouts, and all other iron except the railroad iron in the gangways shall at the expiration of this lease be valued by the same persons who affix a valuation to the steam-engine and machinery, and shall in like manner be taken or refused by the parties of the first part; ” that if at the expiration of the lease the right to mine out the coal should not be granted to the lessee, the railroad iron in the gangways should be valued and taken or refused, as above provided ; and that for breach of any of the covenants the lease should be forfeited.
    Burton put up a hoisting-engine, slope house, hoisting apparatus, forty-horse engine and pump, and sunk a slope. The distance from the foot of the slope to the eastern line of the tract was about 500 or 600 yards, and he drove a gangway in that direction about 225 yards. From the foot of the slope the length of lessee’s run to the west was 1000 yards, and he drove a gangway in that direction about 400 or 450 yards. The coal was faulty in both gangways.
    December 16th, 1861, the sheriff of Schuylkill County levied on the interest of Burton, in a certain coal lease on land of Wetherill and Seitzinger, having about eight years to run, “together with a frame slope house,.with a fifty-horsepower steam-engine for hoisting and pumping, with pump and pumping-rods, gearing, boilers, etc., a frame coal breaker, with a twenty-horse-power steam-engine, with gearing, boilers, etc., a single set of schutes, screens, and rollers,a frame blacksmith shop, frame stable, frame office, frame powder-house, one block of frame miners’ houses, all railroads in and about and connected with the mines; also all the interest of Burton in a coal lease on lands of Joseph W. Cake and John II. Adams, having about eight years to run, together with all the railroads connected with said mines. Also, 16 slope cars, 1 dirt car, 1 mule, 2 stoves, 450 feet of water-pipe,” etc.
    At the sheriff’s sale the plaintiffs bought the railroads, leases, cars, two engines, and breaker, and the implements of the breaker, blacksmith tools and chains, and everything there. They entered into possession and kept the pumps going, but did not mine any coal.
    They sold the wagons, and February 17th, 1862, began to take the railroad iron out of the gangways and the pumps, and put them on the bank. On the 24th of February, 1862, they served a notice on an agent of the defendants that they would proceed, on February 28th, 1862, to value and appraise the property, under the provisions of the lease of June 10th, 1859. The defendants refused to recognize plaintiffs as tenants. In March, 1862, the defendants served a notice on Burton and the plaintiffs, setting forth the lease of June 10th, 1859; that rent amounting to $225.11 was due; that they had not worked the colliery, and had taken up the iron and the pumps, and that therefore their rights were forfeited. On the 11th of April, Thomas Levis and Francis Spencer, for the plaintiffs, valued the property at $9235. Soon afterward the defendants took adverse possession. There was testimony to the effect that it was upon an understanding between counsel that the position of the parties was to be precisely the same as if the owners had ousted the plaintiffs by force, and also that Seitzinger, the defendant, said that he would take charge of the property and “ be accountable for all.”
    Witnesses for plaintiff testified that the defendants, after obtaining possession, pulled down and hauled away the hoisting engine and breaker, breaker engine, screens, railroad iron, and all the machinery, slope house, and slope engine, hoisting gear, and everything connected with it, blacksmith shop, frame stable, frame office, and block of houses, and the whole thing.
    Defendants produced evidence to show that the railroad iron was sold for $567.18, and that the other machinery and iron would be worth to remove not over from $500 to $800. D. S. Althouse, an agent of the defendants, testified that at the sheriff’s sale he gave a notice. “It was a notice for rent due, only so far as the persoual estate was due, the movable property or loose property. It was a notice given on account of loose property. That was my notice for rent, any money that might come out of the sale of the loose property.”
    Counsel for the plaintiffs presented certain points, which, with the answers of the court, were as follows:
    1. That the title to the personal property, consisting of the breaker, engines, and other fixtures and loose property, erected by the tenants in possession under the several leases given in evidence, sold to plaintiffs by the sheriff, vested in the plaintiffs in this suit by the sheriff’s sale 10th January, 1862.
    A. This point is affirmed.
    2. That the purchasers at such sales had a right to remove the fixtures and- personal property bought by them at such sale, and if while in the effort to do so they were interrupted and prevented by the defendant and his agents, and by reason of such interruption prevented, they would not lose their right of property in the property at the mines.
    A. This point we affirm.
    3. That if the agents of the landlords refused to recognize the purchasers as tenants, and the purchasers neglected to work the mines, because there was no coal to work, the covenants in the lease of 10th .June, 1859, to Burton, were terminated by consent of the parties; and the defendants were bound, if they desired to retain the fixtures at the slope erected under said lease, to appraise the same, and if they neglected and refused, and took possession and retained them, they were guilty of converting the same to their own use.
    A. This point we affirm.
    4. If there was no coal in the Diamond vein, leased to Burton, the purchasers at the sheriff’s sale had a right to dissolve the lease, and remove all the fixtures on the premises erected by the tenants, except such things as were to be left at the end of the term without compensation ; and if the defendant took possession of the property as testified to by Howell Fisher, and refused to allow the purchasers to remove the breaker, engines, pumps, iron, railroad iron, and blacksmith shop, and such property as belonged to the purchasers, they were guilty of converting the same, and are liable in this action for their value, with interest from the time of such conversion.
    A. If there was a total failure of coal in the vein leased to Burton, the lessee had the right to rescind the lease, and as the plaintiff's were the purchasers at the sheriff's sale, and bought all the right, title, and interest of Burton in the same, they acquired the same rights and privileges that Burton had, subject to the provisions of the lease with the landlords. But whether or not there was such a failure of coal is a question for the jury.
    The latter part of this point is affirmed.
    Counsel for defendants presented, inter alia, certain points, which, with the answers of the Court thereto, were as follows:
    3. That, by the terms of said lease, said plaintiffs could not and did not acquire any title to said lease, or to any of the fixtures, part of which the plaintiffs severed, but did not remove, without the consent and approval of the lessors, or the subsequent recognition by said lessors of the plaintiffs as their tenants, and that there is no evidence in this case of such recognition, and that the verdict of the jury must therefore be for the defendant.
    6. That there is no liability of the defendant, under the undisputed facts of this case and in this form of action,because,—
    1st. There is no evidence of joint liability of the two lessors as tenants in common for any joint receipt of proceeds.
    2d. There was no removal of anything from the premises by Althouse, agent of W. "Wetherill, until September, 1862, and then only the railroad iron, and this was long after, under all the undisputed evidence iu the case, the defendant, and his co-tenant, Wetherill, were in possession ; and
    3d. That, as to any other property, it remained in the position the defendant and his co-tenant found it in the spring of 1862, until the winter of 1863, when it was removed by Christian Frantz, and when the premises described in the lease had been in the adverse possession of said lessors for nearly a year; and
    4th. That, under the undisputed evidence in the case, there were no facts that showed ex cequo et bono, the defendant should pay any proceeds of the iron or anything else to the plaintiffs.
    5th. That the defendant having entered into the possession in the spring of 1862, under a claim of title (even if not perfectly clear title), there can be no presumption of any implication to pay the plaintiffs anything so as to enable them to recover in this form of action.
    The 7th and 8th points asked the Court to charge that, under the facts and evidence, plaintiffs were not entitled to recover. The Court reserved the 6th point, refused the others, and charged the jury, inter alia, as follows:
    “ [We say to you that, by virtue of the sheriff’s sale of Burton’s personal property, the plaintiffs acquired all the right, title, and interest of Burton in and to the property sold.] [If you think from the law as explained and the facts that the plaintiffs have established their right to the property sold by the sheriff, and they have satisfied you that the defendant (by his agents or employés acting within the scope of their authority) received any of this property, and converted it to his own use, with a promise to pay for the same, or through fraud or unfair dealing, then he would be liable for the value of so much (if any) of the property which he received, with interest from the time of- such conversion.”]
    December 10th, 1878, verdict for the plaintiffs for $15,000.
    The defendants then made motions for a new trial, in arrest of judgment, and for judgment for defendants, non obstante veredicto, which rules the Court discharged, and it •ordered judgment upon the verdict, provided the plaintiffs remit the excess-above $10,400.
    Plaintiffs filed a remittitur, and judgment was entered accordingly.
    Defendants then took out a writ of error, and assigned as errors 1st and 2d, the portions of the charge within brackets; 3d, 4th, 5th, and 6th, the answers to plaintiffs’ 1st, 2d, 3d, and 4th points; 7th and 8th, the answers to defendants’ 3d and 6th points; 9th and 10th, the refusal to enter judgmeat non obstante veredicto; 11th and 12th, the answers to defendants’ 7th and 8th points.

      Hughes and Farquhar, for plaintiffs in error.
    As to the 1st, 2d, 3d, 4th, and 7th assignments, this was error.
    1st. Because, if not controlled by the terms of the lease, so much of the fixtures and improvements as were erected by Burton, and could be removed without serious injury or destruction of the freehold, could be sold on execution, but the purchaser acquired title to them absolutely only in case he removed them before the expiration of the term, otherwise he only acquired the right to use them.
    If the lease was terminated by forfeiture or otherwise before the fixtures were removed, they became the property of the lessors: Davis v. Moss, 38 Penna. St., 352, etc.; Taylor’s Landlord and Tenant, §§ 549-50.
    In Pennsylvania, entry by the lessors is not necessary to complete a forfeiture of the lease, when there has been a breach of conditions by lessee: Sheaffer v. Sheaffer, 1 Wright, 525.
    2d. Because by the terms of the lease of 10th June, 1859, the engines and machinery erected by the lessee were not to belong absolutely to the lessee, but were to remain upon the premises until the expiration of the lease, subject to the right of the lessors to take them at their appraised value.
    3d. By its terms plaintiffs could not acquire any title to the lease or its fixtures without the consent and approval of the lessors.
    The general rule of law as to the right of tenants to remove trade fixtures cannot contravene an express agreement : Taylor’s Landlord .and Tenant, § 594; Shell v. Slay-wood, 4 Harris, 523 ; Piper v. Martin, 8 Barr, 206.
    Where there is a covenant against subletting, an assignee cannot claim the rights of the lessee: Rosenberger v. Hallowell, 11 Casey, 369.
    5th. This assignment is to the affirming of the plaintiffs’ third point, which contains three erroneous propositions, viz.:
    I. That the facts that the lessoi’s refused to recognize the plaintiffs, and that there was no coal that plaintiffs could work, terminated the covenants of the lease of 10th June, 1859, by consent of the parties.

    II. That the defendants were bound to have the fixtures and improvements appraised before taking possession thereof.
    III. That the defendants were guilty of converting the fixtures and improvements to their own use.
    6thl There is no implied warranty from a lease that the land contains coal: Harlan v. Coal and Navigation Co., 11 Casey, 293; 3 Casey, 430; McKnight v. Kreutz, 51 Penn a. State, 239.
    8th, 9th, 10th, 11th, and 12th. This is an action of assumpsit for goods sold and delivered, money lent, and money had and received, and account rendered. This action cannot be sustained unless there was an express contract, or unless the law will imply a contract. It does not lie for a chattel illegally detained. The plaintiff cannot waive the tort and recover the value of the goods unless the tortfeasor has sold the article and received the money: Willet v. Willet, 3 Watts, 277; Bethlehem v. The Fire Co., 3 Weekly Notes of Cases, 104; Satterlee v. Melick, 26 P. F. Smith, 62, Deysher v. Trieble, 14 P. F. Smith, 383; Gray v. Griffith, 10 Watts, 431.

      James Ryan, William, R. Smith, and John W. Ryan, for defendants in error.
    The breaker and the bulk of property, both in quantity and value, were erected under the agreement of 1853, long before the lease of June 10th, 1859, was ever contemplated, and it would have been a palpable error for the Court to have held such property in any manner subject to the terms and conditions of the latter lease.
    In respect to the property put up wholly at Burton’s expense, under the lease of June 10th, 1859, the defendants contended that the purchasers at the sheriff’s sale acquired no rights without the consent of the lessors.
    It will not be seriously contended that an agreement that the landlords might have the option to buy the tenant’s fixtures at the end of the term, at a valuation to be fixed by three men, to be by the parties selected, gives the landlords any title to the fixtures before they shall have been app>raised and accepted by him; much less will it be contended that the teuant who, at his own exclusive cost, has put up such fixtures has no title that a creditor of his can acquire by sheriff’s sale: Lemer v. Miles, 4 Watts, 330.
    October 2d, 1882.
   — Sterrett, J.:

This suit was Drought hy the plaintiffs below, as trustees for laborers and miners employed in the collieiy of William Burton, to recover the value of certain personal property sold on an execution against him, and purchased by them in trust for themselves and their associates, which property they allege was taken by the defendant below and converted to his own use. It was, of course, incumbent on them to show title to the property in question, that it was subsequently taken and converted by the defendant, and its value at that time. Testimony tending to prove each of these facts was adduced and submitted to the jury under instructions, which appear to be free from substantial error. It was clearly shown that they purchased the property at the sheriff’s sale, took possession of it, sold a portion, and retained the residue until it passed into the hands of the plaintiffs in error. At the time of sale, Burton was lessee of the colliery, under the leases given in evidence, and the property in question had been put upon the premises and used by him for the purpose of his business. The testimony also tended to show that the right of the sheriff’s vendees to the custody and control of the property was contested by defendants below, and, for the purpose of avoiding threatened personal violence, they were permitted to take possession of it, with the understanding that such taking'should be considered forcible, and should not prejudice any claim the plaintiffs might have to the value of the property so taken. Whether there was any such understanding or agreement between the parties, by virtue of which the possession was obtained, or riot, was a question of fact for the jury. If they found there was, it was their exclusive province to ascertain the terms and conditions thereof. The learned judge accordingly submitted the question to the jury, and instructed them to inquire and determine whether the defendant converted any of the plaintiffs’ property to his own use, under a promise to pay them for the same, and, if so, what was its value. He also charged that, by virtue of the sheriff’s sale, “the plaintiffs acquired all the right, title, and interest of Burton in and to the property sold” as his; that if under the law, as explained by the Court, and the facts, as found by them, they believed the plaintiffs had established their right to the property; and were further satisfied that defendant (by his agent or employés, acting within the scope of their authority) received any of the property and converted it to his own use, with a promise to pay for the same, or through fraud or unfair dealing, then he would be liable for the value thereof with interest. We think the evidence was not only sufficient to justify the submission of these questions of fact to the jury, but that it would have been error to have withdrawn the case from their consideration by giving binding instructions, as requested in defendant’s 3d, 6th, 7th, and 8th points. The several assignments, based upon these matters respectively, are therefore not sustained. Nor is there any merit in the several assignments relating to the title acquired by plaintiffs, as vendees of the sheriff.

The Court was clearly right in saying that, by virtue of the judicial sale, they “acquired all the right, title, and interest of Burton in and to the property sold.” And, when considered in connection with the general charge, the affirmance of plaintiffs’ first point conveyed precisely the same idea. There is nothing in either of the leases that would have prevented Burton from using his property on the demised premises before the sale, nor do we think there is anything to prevent those who succeeded to his title from exercising rights of ownership after they came into possession as vendees of the sheriff. In affirming defendant’s fourth point (in case the jury found the facts to be as therein stated), the learned judge instructed them that if plaintiffs, after obtaining possession as vendees of the sheriff, went to work to dismantle and destroy the colliery, with the purpose of abandoning the same, they did what they had no right to do, and that they acquired thereby no right to the fixtures when severed. But the facts stated in that point are impliedly negatived by the verdict. The greater part of the property was put upon the demised premises under the lease of 1853, which contains no stipulation or covenant by which the lessors during the term could acquire any right to such improvementsas were put upon the premises by the lessee for the purpose of his business, nor did it require the latter to pay royalty on any more coal than was actually prepared for the market. But it is contended that, by virtue of stipulations contained in the lease of 1859, the sheriff’s vendees could acquire no rights whatever without the consent or approbation of the lessors, and, in the absence of such consent, they took nothing by their purchase.

One of the stipulations provides for an appraisement of the engine and machinery at the expiration of the lease, and, in case the lessors refuse to take the property at the valuation, the lessee shall not remove the pumping-engine until the lessors put up one for themselves, within the time fixed. Another clause provides that the lease shall not be transferred or mortgaged by the lessee, nor shall the operation of any legal process effect a transfer of the lease without like consent; and, on any breach of these stipulations, the lessee, or those who come into possession of his interest, shall thereafter, during the remainder of the term, pay fifty cents per ton for every ton of coal taken out. It is scarcely necessary to say that, as against execution creditors of the lessee, the lessors’ option to buy the tenant’s fixtures, at the end of the term, gave them no title to such fixtures until they were appraised and accepted. Nor can it be successfully contended that Burton had no such title to the engine, machinery, etc., "which he had set up on the demised premises, for the purposes of his business, as could be seized and sold by his creditors. Such property is personal and may be taken in execution; nor is its character changed by an agreement between the tenant and his landlord that in a certain event the latter shall have the privilege of taking it at a valuation, to be fixed by parties chosen for that purpose, unless that event has actually occurred. But if there was any breach of the stipulations above mentioned, it resulted from the sheriff’s sale. For that, however, the parties themselves have provided a penalty, to which the lessors should be remitted, rather than be allowed to take the property from the sheriff’s vendees without compensation.

The testimony fails to show that Burton had neglected to perform any of the covenants in the lease except in the nonpayment of a small portion of the rent, and that was claimed by the lessors out of the proceeds of the sheriff’s sale. There appears to be nothing in the case that would have justified the Court in holding that Burton’s title to the property was in any manner extinguished, or lost, so that the sheriff’s vendees could acquire nothing by their purchase.

We discover no error in any of the rulings of the Court that calls for a reversal of the judgment.

Judgment affirmed.


text:
    January Term, 1881,
    No. 255.
    April 19th, 1882.
    Snyder versus Elliott.
    1. A. was indebted to B., and B. consented to accept a note to be made by O. to B.’s order for the amount. A. persuaded C. to execute the note as an accommodation, telling him that there would be no trouble, that it was a mere matter of form, and that he himself would take care of it. A. then delivered the note to B.

      JEPeld, that if the note was delivered in settlement of the debt of A. to B. and not as collateral security, which fact was found by the verdict, O. was liable to B. for the amount.
    2. If B. took the note in payment of A.'s indebtedness, in whole or in part, he stood in the position of an innocent holder, and could not be affected by any equity between O. and A.
    3. B., having paid value for the note, was not bound by any representations made by A. to C. at the time of its execution.
    Before Sharswood, C. J.; Gordon, Trunkey, Sterrett, and Green, JJ. Mercur and Paxson, JJ., absent.
    Error to the Court of Common Pleas of Schuylkill County..

    Debt, by W. D. Elliott, trading as W. D. Elliott & Co., against Joseph L. Snyder, upon a promissory note for $304, dated February 29th, 1876, drawn by Snyder to the order of Elliott & Co., and indorsed by J. C. Holt.
    Upon the trial in the Court below before Walker, A. L. J., the following facts appeared.
    In December, 1875, J. C. Holt was indebted to Elliott & Co., in about $900, and on the 13th of that month he gave them three notes, drawn by R. E. Holt and Thomas L. Holt, and indorsed by him for $295.50, $297.50, and $298.52, at 60 days, 90 days, and four months respectively. One of these notes became due and went to protest.

      Joseph G. Holt testified, inter alia:

    “ The note, dated 29th February, 1876, was given to take up another note that my brother and his wife had given him, that was given to Mr. Elliott, and that went to protest, and I gave that note to take that note up.....I proposed to fix [it) up by my father-in-law’s indorsement of another note, but Mr. Elliott proposed that my father-in-law should be the maker of the note. My father-in-law is Joseph L. Snyder. Elliott accepted the note I went myself to see my father-in-law.....Elliott told me that he would accept that note, and I went and got it. First he objected to signing the note, and afterwards he consented to sign it, and I told him there would be no trouble, that I would attend to it, and he signed it. Elliott -was not there. I asked him whether he would sign it, and he objected, but he afterwards consented by my telling him that I would take care of it, and there would be no trouble, that it was a mere matter of form.....The note was drawn up before I went there. The way I understood it, this note was to be given in settlement of the account, of course. There was nothing said about this note being given in order that I might have time to pay. The note was not given in consideration of the other note being given up, but was given to settle accounts and to cover the protest in the case of the other note.”
    On cross examination he said, inter alia:

      “ That was given as collateral for their part of the bill that was due, $304.....The Snyder note was given to cover that portion of the account represented by the note that went to protest.....I offered to give Snyder as collateral security for that part of the account. ... I thought I would be able to pay the note when it came due..... I gave the note as collateral security.”
    The defendant, Joseph L. Snyder, testified, inter alia:

    “Mr. Holt came to me .... and said there was nothing in the signing of it. It was just a kind of form. So I hesitated a bit, and at last I took the note. He had it drawn up already. He said there was no responsibility, and he would see it through.”
    Counsel for defendant proposed to ask the witness, “ what was said by J. C. Holt in reference to his responsibility for the note in case he signed it, for the purpose of showing in connection with the other evidence in this case that there is no responsibility upon the part of the maker of the note.” Objected to as immaterial and irrelevant.
    The offer was overruled and exception taken.
    The witness continued:
    “ I got no consideration from Mr. Elliott.....The idea was that the note was an accommodation to my son-in-law. .... He said 1 Oh! it’s a kind of a form, and there is nothing serious about it, and I will see that you do not have any trouble,’ and I signed it.”

      W. I). Elliott, the plaintiff, testified, inter alia:

    “The first note came due and xvas protested, and I came up here about two weeks after and endeavored to get the money, but J. C. Plolt was not able to pay it. I looked to him principally, although thenotes were drawn to Thomas & R. E. Holt and indorsed by J. C. Holt. I proposed to him that I would give him a little additional time if he would give me security, which he said he would endeavor to do. Afterwards he brought me this note of Snyder’s. I never saw Snyder but once at the arbitration and once here, and never had any dealings with him at all. And that night I got Mr. Healy to inquire about Mr. Snyder’s responsibility, and I finally took it. I had nothing to do with the drawing up of the note, and as to the note being drawn to the order of W. D. Elliott & Co., it was done through ignorance. I got Joseph Holt to indorse it on the back. The note was not an accommodation note; I wanted my money and not a note. That note settled up the note that had been protested two weeks before, and the interest and cost of collection. I offered to give Joseph Holt additional time provided he gave me security ; and .he brought me the Snyder note, and I gave him time in return. I have not sued the Thomas Holt notes to this day.”
    On cross-examination he said :
    “ This note that was given by Joseph Snyder was not given as collateral. It was given in payment.”
    Counsel for defendant asked the Court to charge the jury as follows:
    1st. That if they find from the evidence in this case that the note in suit was made for the benefit of the plaintiff in this suit, he being the payee in this note, then it was a mere accommodation, and the defendant is entitled to a verdict.
    2d. That if said note was given by Joseph L. Snyder to William D. Elliott & Co. upon the representation of Joseph Holt that said note was simply an accommodation to him, and if the jury find from the evidence that Joseph Holt was authorized by Elliott to procure this note in the manner it was, and the said Joseph Holt misrepresented the object of giving the note, and the note instead of being given to Holt as a favor was given to William H. Elliott & Co., then William 1). Elliott and Co. cannot recover, the note being turned to a different purpose, for which it was represented by the party procuring it.
    3d. That, if the jury find from all the evidence in the case this note was given for the benefit of Elliott & Co., then the verdict must be for the defendant.
    The Court answered these points as follows:
    1. The evidence in this case shows that the note was given for the accommodation of Joseph Holt, and if the jury believe, as testified to by the plaintiff, that he took the note in payment of one of Joseph Holt’s notes, and for Joseph Holt’s indebtedness, and not as collateral security, then we decline to affirm this point.
    2. Any fraud or misrepresentation, made by Holt to Snyder, without the knowledge of plaintiff, could not affect the plaintiff, if he took the note of defendant in payment of Joseph Holt’s indebtedness, and not as collateral security.
    3. Under all the evidence in this case, we decline to affirm this point.
    The Court further charged the jury:
    [Mr. Elliott testified that he never knew Snyder ; that he only saw him. twice, once at the arbitration after the suit was brought, and here in court. He says he noticed at the time that the note was an irregular note, and, thereupon, he required him to put his name on it. This would make Holt a surety for the note. There is no question but that Joseph Holt got value for this note, it being a part of his indebtedness ; that is the undisputed evidence in this case. Joseph Holt should have paid it at maturity, but, as he could not, he made a proposition to give security for its payment.] Air. Elliott said that he made the offer to him, and afterwards brought him this note signed by Air. Snyder. He, also, said he took this note as payment of Air. Holt’s debt, and not as collateral security; that he gave thirty days’ time in consideration that he would give him security for the payment of the note.
    The evidence shows that he went away, and drew up the body of the note himself, and brought it back signed, and gave it to Mr. Elliott. He also swears that he took it in payment of Holt’s indebtedness so far as it reached, and did not take it as collateral security. [We say to you that whatever might have been the conversation between Holt and Snyder, whatever fraud (if there was any), though the counsel, I believe, do not urge that, whatever representations there might have been made by Holt, that he -would meet the note himself, whatever provision he made to Snyder, or anything that occurred betwmen Holt and Snyder would not affect the plaintiff', provided he paid value for it and did not take the note as collateral security, but took it in payment of Holt’s indebtedness], whatever occurred that was not bi’ought to his, Elliott’s, attention, could not affect him, but if the plaintiff had notice that Snyder agreed to give his note, but was not to be called upon to meet it, and the plaintiff took it under these circumstances, then he would be affected by such an agreement. If it is true that he went away, and brought a note from Snyder, and Elliott took it as payment without notice, as he says, then he would not be affected by anything that occurred between Holt and Snyder, for the rule of law is that a bona fide holder of a negotiable note, without a knowledge of fraud, is not affected by the fraud of third persons. If you believe from the testimony of Elliott that he took it in payment of the indebtedness, and not as collateral, then he could recover against the defendant the amount of the note with interest, unless there was some fraud, but, if he was an innocent holder for value without notice of any fraud, then he could recover. That is the law, as laid down in numerous decisions, and thereupon we submit the facts to you under our explanations of the law. If you believe the testimony of Mr. Elliott that Holt had transactions with Mr. Elliott, and was indebted to him, and the further testimony that Mr. Holt failed to meet his notes at maturity, and if you believe Elliott’s testimony that he agreed to give time if Holt would give further security, then we say that whatever might have been the understanding between Holt and Snyder as to this being a mere form, or as to there being no responsibility, it could not affect the plaintiff. If you find these facts, you will find for the plaintiff. If ypu find for the plaintiff', he would be entitled to the amount of the note with interest. AVe submit the case to you under all the circumstances.
    Counsel for defendant excepted to the answers to his points and to the charge.
    November 24th, 1880. Verdict for the plaintifffor $391.32, upon which judgment was afterward entered.

      The defendant then took out a writ of error, assigning that the Court erred in the exclusion of the testimony offered, the answers to the points, and those portions of the charge within brackets.

      W. F. Shepherd, for plaintiff in error.
    If Elliott authorized Holt to procure the note pursuant to the understanding of Holt- with Elliott, and he did procure it from Snyder in that way, the latter would not be bound to pay it. If Elliott authorized the note to be procured in the way it was, he made the act of Holt his own. Any agreement Holt made with Snyder would bind Elliott, and it would be competent to prove, as between the immediate parties to the transaction, what was said at the time the note was given: Breneman v. Furniss, 9 Norris, 186.
    Where the check or note of a third party is received by a creditor from his debtor upon a pre-existing debt, the presumption is that it was received as a conditional payment. In the absence of proof of an agreement to the contrary, it is presumed to be given as collateral security : McIntyre v. Kennedy, 5 Casey, 448; 2 Parsons on Notes, 133 ; Leagues. Waring, 4 Norris, 244.

      Christopher Little, for defendant in error.
    Accommodation paper is the loan of the maker’s credit, without restriction as to the manner of its use: Appleton v. Donaldson, 3 Barr, 386.
    He, who puts himself in the situation of a principal, shall not escape by alleging that he was a surety: Walker v. Bank, 12 S. & R., 382.
    The principle is a general one, that tbe person making or indorsing a negotiable note, for the benefit of another, is liable to a third person, even with notice of the want of consideration: 2 Parsons on Bills and Notes, 27; Byles on Bills, 237 ; Stephens v. Monongahela National Bank, 7 Norris, 162.
    Whether viewed as the ease of a note in the hands of a third party for value, or as that of a maker who has given his name to pay the debt of another, the defendant is liable. The time given Holt was a sufficient consideration to support the direct promise by Snyder: Silvis v. Ely, 3 W. & S., 420; Muirhead v. Kirkpatrick, 9 Harris, 237 ; Byles on Bills, 96-97 ; Sowerby v. Butcher, 2 C. & M., 368.
    May 1st, 1882.
   — Per Curiam:

The law, as laid down by the Court in the charge, is indisputable. If Elliott took the note in suit in payment of Holt’s indebtedness in whole or part, he stood in the position of an innocent holder, and could not be affected by any equity between Snyder and ITolt. This was a question of fact, and was fairly submitted to the jury.

Judgment affirmed.


author: — Per .Curiam:

text:
    SNYDER COUNTY.
    January Term, 1882,
    No. 265.
    May 1st, 1882.
    Dundore et al. versus Hollman.
    1. A husband and his wife were jointly interested in land, and united in a mortgage, He died, and suit was brought by the mortgagee against the wife and his administrators. After the jury were sworn the appearance for the administrators and their pleas were withdrawn. The -wife offered to prove that she was induced to execute the mortgage by representations made by her husband, and by the judge who took her acknowledgment, that it would not affect her interest, and that her joining was merely for the purpose of incumbering his interest, and that, when these representations were made, the mortgagee was within hearing distance. Held, that the offer was too vague, and was inadmissible.
    2. The wife was not a competent witness to prove the offer.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Snyder County.

      Scire facias sur mortgage by Michael B. Plollman against N. T. Dundore and C. W. Heintzelman, administrators of W. G. Herrold, deceased, and Mary Herrold.
    The action was brought on a mortgage for $6734, dated August 10th, 1877, from William G. Herrold and Mary, his wife, to M. B. Hollman. William G. Plerrold being dead, his administrators were substituted.
    The defendants pleaded coverture, nil debet, payment, payment with leave, and set-off.
    Upon the trial in the court below, before Bucher, P. J., the plaintiffs offered in evidence the mortgage and rested.
    The defendant called Mrs. Mary Herrold, and made an offer of testimony which the Court ruled out.
    The defendant then, by leave of the Court, withdrew the appearances and the pleas of the administrators of William G. Plerrold, and then renewed her offer, as follows:
    “ Defendant offers to prove by this witness, for the purpose of defeating this mortgage against her interest in this land, which is one undivided third interest in the land covered by the mortgage, she being a co-tenant with her husband as to the entire contract, that before and about the time of the execution of the instrument of this mortgage, William G. Herrold, her husband, in order to induce her to execute this mortgage, represented to her that her joining in the mortgage with him would not aifect her third interest in the land covered by the mortgage, at all, but her joining was merely for the purpose of incumbering his two-thirds interest in the land covered by the mortgage, and the law required her to join for the sake of conformity ; and under these representations made to her by her husband she joined with him in the execution of this mortgage, and under the belief induced by these representations, that it could not aifect her undivided one-third interest in this land, and that the mortgagee was present. Also offer to prove by this witness that this mortgage is largely usurious in the amount stated therein. Further offer to prove that at the time that his Honor, Judge Raudenbush, took Mrs. Herrold’s acknowledgment, she inquired of Hon. B. L. Raudenbush whether it would aifect her one-third interest in this land, and that he replied that it would not, it would only bind the two-thirds of this land belonging to William G. Herrold. To be followed with proof that she is the owner in her own right of one-third of this property, and” William G. Herrold the owner of the other two-tliirds.

      The Court: Ho I understand you to offer to prove that Hollman was present when she asked Raudenbush this?

      Answer: He was within hearing of this. We propose to ask her the question when he was within hearing distance of it, and Herrold was.
    The plaintiff objected, first, “that the evidence is not admissible under the pleadings in this case; second, that the witness, being the wife of William G. Herrold, deceased, and a party to the mortgage, is incompetent to testify in this case, her husband being dead, that the plaintiff is precluded from being a witness at common law, or under any act of Assembly, and as he cannot testify, none of the parties defendant are permitted to testify. That the mere fact that Mr. Hollman may have been within hearing distance, unless the proof is that he heard what is alleged to have passed between Judge Raudenbush and the witness, it is incompetent in this manner to attempt to fritter away the rights of the mortgagee. That, as to the mortgage being usurious, the evidence is not admissible under the pleadings, and that the witness is incompetent to establish it. And, for the additional reason, that the jury are sworn as to the administrators, and it would be an attempt to contradict the terms of the mortgage.”
    The Court sustained the objection, and ruled out the testimony, under exception.
    September 29th, 1881. Verdict for the plaintiff for $8355.66, upon which judgmeut was afterward entered.
    The defendants then took out a writ of error, assigning that the Court erred in the rejection of the testimony offered as above.

      Charles Blower and A. W. Potter, for plaintiffs in error.
    The administrators were made co-defendants simply because William G. Herrold joined in this mortgage with his wife. There was no issue of fact between Hollman and the administrators, and could not be. The husband’s and the wife’s interests in these lands were entirely separate and distinct estates. If she should defeat the claim, on the grounds set forth in the offer, it would not affect the mortgage as to him. The mere fact that it was necessary to have him join in the mortgage does not affect the rules of evidence.
    She would not be testifying against her husband, but in her own behalf, and is not excluded: Musser v. Gardner, 16 P. F. Smith, 242; Rowley v. McHugh, 16 P. F. Smith, 269.
    If the opposite theory be correct, then the law forces her to join with her husband to make the instrument valid, and prohibits her from testifying because she is married.

      A. C. Simpson and F. 8. Simpson, for defendant in error.
    The subject-matter was a mortgage executed by William G. Herrold and Mary, his wife, while in full life. lie died, and his land passed to his widow and heirs, subject to the payment of his debts. Her dower in the land vested the moment he died. By reason of his death, Herrold could not be a witness, and the law sealed the mouth of M. B. Hollman as to anything that had taken place previous to Mr. Herrold’s death. Again, Herrold must be regarded as the defendant’s assignor : Ewing v. Ewing, 9 W. N. C., 489.
    The question is expressly ruled in Crouse v. Staley, 3 W. N. C., 83; see Gardner v. McLallen, 29 P. F. Smith, 398; Earns v. Tanner, 16 P. F. Smith, 297.
    May 15th, 1882.
   — Per .Curiam:

The evidence offered was clearly inadmissible. To say, not that Hollman was present when the transaction took place, but that he was within hearing distance, was altogether too vague. Besides, the suit was still in the name of l^ie administrators, although the Court allowed the appearance and plea to be withdrawn, and as Hollman could not be a witness, Mrs. Herrold was also incompetent.

Judgment affirmed.


text:
    UNION COUNTY.
    January Term, 1881,
    No. 381.
    January 18th, 1882.
    Albright versus Leiser.
    1. After the filing of the report of a referee, and argument upon exceptions, all of the papers, records, reports, and everything connected with the case, were accidentally destroyed by fire. The referee filed a subsequent report, reciting that he had, in his previous report, decided that the action would not lie, and confirming the judgment and finding therein contained. The Court below discharged a rule to set aside the' agreement of reference. Held, that, in the absence of the original report of the referee, there was nothing on the record from which the Court could say that there was error in the judgment of the Court below.
    2. The Court below had no power to set aside the submission.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Union County.

      Assumpsit by Chester E. Albright against Jacob J. Leiser.
    After the case was at issue, it was submitted to Lewis V. Housel, as referee, by agreement. The referee filed his report August 9th, 1879, and on the 12th of .the same month exceptions were filed.
    On the 16th of November, 1880, the plaintiff presented a petition, asking that the order of reference be rescinded, setting forth “that the case was proceeded so far before him (the referee) that the testimony was taken, a report made, exceptions filed and argued, when, before the same were disposed of, all the papers, records, reports, and everything connected with the ease, were burned up in the great fire at Milton on the 16th day of May last. Since then, nothing has been done in the case ”
    December 10th, 1880, the referee filed the following report :
    “ The referee, in the above-stated ease, having decided, on ' the 9th day of August, A.D. 1879, that the action of assumpsit would not lie, and on August 12th, A.D. 1879, exceptions were filed to said report, and argument was held to said objections before the undersigned referee, in the borough of Milton, on the--day of--, A.D. 1880, it is hereby ordered and decreed that the judgment and finding of the referee is hereby confirmed in the above stated case, with costs to be paid by the plaintiff.”
    The plaintiff filed exceptions to this report on the following grounds:
    1st. The report is not in accordance with the act of Assembly in such case made and provided, that “ the decision shall be made in writing, stating separately and distinctly the facts fouud, the answers to any points submitted in writing by counsel, and the conclusions of law.”
    2d. To the decision of the referee that “ the action of assumpsit would not lie.”
    3d. To the order that the judgment and finding of the referee be confirmed, with costs to be paid by the plaintiff.
    4th. That the report does not find all the material facts, has not that fulness and certainty, so that the judgment is a conclusion of law on the facts.
    January 28th, 1881. The Court granted a rule on the defendant to show cause why the agreement of reference should not be set aside, and the cause again put on the issue list.
    This rule the Court below, Bucher, P. J., discharged, saying;
    “The plaintiff instituted an action of assumpsit against the defendant to recover a balance alleged to have been struck in his favor, on a settlement of partnership accounts.
    “The cause was pdaced at issue, and during the trial, which involved a settling of the partnership accounts, the parties, by their agreement in writing, dated June 1st, 1878, referred the cause to L. V. I-Iousel, Esq., referee, agreeably to the provision of the Act of May 14th, 1874, P. L., 1874, page 166.
    “On the 9th of August, 1879, the report of the referee was filed, in which he dismissed the case upon the ground that an action of assumpsit would not lie, but the remedy of plaintiff was by account-render or bill in equity. On the 12th of August, 1879, exceptions were filed by the plaintiff* to the report. These exceptions were placed upon the current argument list, where they were uot reached in regular order for some time, owing to the absence of counsel. When they were reached, we refused to entertain them, because the act of Assembly, under which the referee was appointed, clothed him with the sole power to pass upon them. The exceptions were then made before the referee, but, before he rendered his decision, all the papers were destroyed by the great fire at Milton, on the 16th day of May, A. D. 1880. But, notwithstanding the destruction of the papers by the fire aforesaid, the referee did act, and upon the 10th day of December, 1880, filed his report, dismissing the exceptions at the costs of the plaintiff'. To this report exceptions were filed January 5th, 1881. Then, on the 28th day of January, A. D. 1881, plaintiff took this rule, alleging that, by reason of the destruction of all the papers by fire on May 16 th, 1880, it was impossible for the referee to act, and asking the Court to strike off the agreement of submission, and reinstate the case on the trial list.
    “Have we the power to make the rule absolute?
    “ It is urged that we have, under the 6th section of the Act of May 14th, 1874, P. L., 1874, page 167, which section reads as follows, to wit: £ .... But, if the referee shall die before rendering his decision, or if it becomes impossible for him to act, or for the parties to obtain his decision in a reasonable time, through the fault of said referee, the court in which the suit is pending, after proper application by a party in interest, may, after due notice to the other parties, set aside the agreement of submission, and in such ease the costs accrued shall be treated in all respects as part of the docket costs.’
    “ The section gives the Court power to set aside the submission in three instances:
    “ 1 st. When the referee dies.
    “ 2d. When it becomes impossible for him to act.
    “ 3d. When it becomes impossible for the parties to obtain his decision in a reasonable time through the fault of the referee.
    ££ It has been seen from a statement of the facts, that the case does not fall within any of the three contingencies, upon the happening of which the courts have power to strike off the submission. The allegation is that it was impossible for the referee to act, because the papers had been destroyed by fire; but the referee did act before the fire, and filed his report dismissing the exceptions notwithstanding the fire.
    “ The plaintiff’s case, then, is this : he asks us to set aside the report, because he thinks there is error in it, and he can not have the same reviewed in the Supreme Court, to which tribunal he must go in order to convict the referee of error.
    “ It may be there is error in the report; but the presumption is there is none. We cannot set aside the submission after the report is made (as is the case here), simply because the plaintiff alleges there are errors in it, which cannot be corrected otherwise. The act of Assembly gives no such power, and we must, therefore, decline to interfere.”
    The plaintiff excepted to this decision, and took out a writ of error, assigning that the referee erred as set forth in the exceptions filed to his report, and that the Court erred in discharging the rule to rescind the order of reference.

      J. Merrill Linn, for plaintiff in error.
    The referee could not act after everything was burned up.
    The act requires that “ the decision shall be in writing, stating separately and distinctly the points submitted, and the conclusions of law, and shall be filed in the office of the prothonotary or clerk of the proper court where the case is pending, etc.....If exceptions to the finding of the facts, or conclusions of law, be filed within said thirty days, the Court, etc. . . . may, upon argument, order judgment to be entered according to the decision previously filed, or make such modifications thereof,as in justice and right shall seem proper, subject always, nevertheless, to review by writ of error or appeal in the Supreme Court.” Purdon, 1989. The referee has the power, and performs the duties, that would belong to the Court, under a like submission. Act of 14th May, 1874; Purdon, 1940.
    The report must find all the material facts, and be self-sustaining: Vansyekel v. Stewart, 77 Penna. Stat., 124.
    The finding of facts and conclusions of law must be separate : Weil v. Erauenthal, 2 Luz. L. R., 96.

      Oscar Foust, for defendant in error.
    The legal presumption is that the.referee did his whole duty under the act of Assembly, and that the judgment entered by him on his report is correct. It is the duty of the plaintiff in error to show wherein the referee or the Court below erred.
    This, we believe, they have totally failed in doing, and, therefore, the judgment should be affirmed.
    May 15th, 1882.
   — Per Curiam:

We have nothing on this record from which we can say that there was any error in the judgment of the Court below. It is, perhaps, the misfortune of the plaintiff in error that the report of the referee was accidentally destroyed by fire. There was clearly no power in the Court to set aside the submission. The referee had acted and made his report, and, unless it is made to appear that there was error in it, we cannot reverse the judgment.

Judgment affirmed.


author: — Per Curiam :

text:
    January Term, 1882,
    No. 270.
    May 2, 1882.
    Overseers of Chillisquaque versus Overseers of Lewisburg.
    1. An order for the removal of a pauper widow “ and her family,” may be amended on appeal by inserting the names of her children.
    2. Semble, that the order would have been good without amendment.
    3. The family of a widow are prima facie her children.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Quarter Sessions of Union County.

    Appeal of the overseers of the poor of Chillisquaque Township from an order of two justices removing a pauper and her family.
    The order of removal was dated September 28th, 1878, and set forth:
    “ Whereas complaint has been made to us, the subscribers, two of the justices of the peace in and for said county of Union, by the overseers of the said district of Lewisburg, that Mrs. Agnes Leidy, wife of William H. Leidy, deceased, hath lately come to inhabit in the said district of Lewisburg, not having gained a legal settlement therein, and that the said Agnes Leidy and family have actually become chargeable to the said district of Lewisburg, the said William H. Leidy being now deceased, his family are still remaining a charge in said district of Lewisburg; we, the said justices, upon due proof and consideration had of the premises, do adjudge the same to be true, and do likewise adjudge that the place of the last legal settlement of the said Agnes Leidy is the district of Chillisquaque, in the said county of Northumberland. These are, therefore, to authorize and require you, the above-named Larrisou Pross, William J. Painter, Joseph Kreamer, overseers of the poor of the district of Lewisburg, at the expense of said district of Lewisburg, to remove and convey the said Agnes Leidy and family from the said district of Lewisburg to the said district of Ohillisquaque, in the said county of Northumberland, and to deliver them, together with this order, and a true copy thereof, to the overseers of the same, who are hereby required to receive and provide for the said Agnes Leidy and family as settled inhabitants thereof.”
    From the depositions taken in support of the appeal the facts appeared to be as follows:
    Agues Leidy was the widow of William H. Leidy, and had five minor children. William H. Leidy, the husband and father of the paupers, had a settlement in Lewisburg. April 1st, 1872, he removed therefrom to Chillisquaque Township. At that time and up to the time of his death he was the owner of real estate in Lewisburg. He paid the taxes on this real estate for the years 1874, 1876, 1877 ; but the tax for the last year was paid after the order of maintenance issued and he had become a charge. He rented in Chillisquaque Township from April 1st, 1872, to October 5th, 1875, during which time he acquired a settlement there. He removed from Chillisquaque to Bloomsburg, in the county of Columbia, after the 5th of October, 1875; but did not dwell there for one whole year, and failed to acquire a residence there. He died before he could be removed, aud no actual removal of the paupers had taken place.
    Counsel for the overseers of Chillisquaque then moved to quash the order of removal:
    First. Because it is intended to embrace within its terms persons not named in the order of removal and unknown to the ovei’seers of the poor of Chillisquaque Township, while neither the order itself nor the maimer of its execution (no actual removal having been made to Chillisquaque) furnished to the defendants the means of ascertaining what persons' are included in the “family,” either their names or number of them.
    Second. Because there is no adjudication that the persons intended to be represented by the word “ family ” had any legal settlement in the district of Chillisquaque, and such settlement cannot be presumed from the use of the word “family,” because that word if it may be used at all in the manner intended here may be used to cover within the order any number or character of persons without notice to the defendants what number or character of persons may be included in the order.
    Third. The defendants ask the Court to quash all that part of said order of removal referring to any other persons than Agnes Leidy, because she is the only pauper named in the order or adjudicated as having a settlement in the district of Ohillisquaque.
    Counsel for the overseers of Lewisburg, the plaintiffs, moved to amend the order by inserting after the words, “ Agnes Leidy and family,” the following, to wit: “ Clara, Annie, Mary, Margaret, and George, minor children of William H. Leidy, deceased, and that the place of their last settlement was Chillisquaque Township.”
    The amendment was objected to as not allowable without evidence to support it, and because it was virtually to make a new order without the adjudication of the justices.
    The Court below, Bucher, P. J., confirmed the order and dismissed the appeal, saying, inter alia:

    “ Objection was made to the allowance of the amendment. The Act of 13th June, 1836, provides for the amendment of orders of removal when they are defective in form, and declares that the Court shall hear and determine the cause upon its merits after the amendments. It was held in Cumberland v. Jefferson, 25 P. S. R., 463, that the act must be liberally construed. Since the passage of the act, amendments are favored by the courts. Yates, Justice, said, in Reading v. Cumree, 5 Binney, 87, that, under the Act of 20th March, 1810, it was the duty of the Court to amend orders of removal both in form and in substance. Indeed, it would be impossible to decide the case upon its merits without an amendment. The Court must decide the cause ‘ upon its truth and merits’.(Act of 1836) without regard to defects in the order.
    “The amendment is allowed. We have, then, the settlement of the father and mother in Chillisquaque. The children (who represent the ‘family,’ and they were meant by this word in the order) are all minors. The place of settlement of the children is that of the father until they acquire a new one: Lewis v. Turbut, 3 Harris, 145; Toby v. Madison, 8 Wright, 60; Nippenose v. Jersey Shore, 12 Wright, 402. There is no evidence that these minors acquired a settlement of their own, nor is it even pretended that they did.
    “It follows that the proceedings before the justice must stand.”
    The defendants thén took out a writ of error, assigning that the Court erred in permitting the amendment, in affirming the order, and in refusing to quash.

      JR. JMJ. Cummings, for plaintiffs in error.
    When an ambiguous or uncertain word is used in the order, it can only be corrected or amended when the evidence in the case shows clearly what is meant or intended to be meant by it, and cannot be amended upon the assertion of a fact which the evidence does not show and the adjudication of the justices does not warrant.
    The order of relief does not name any person except William H. Leidv. The order of removal does not name any person except Agnes Leidy and family, which might mean any person or persons residing with her, either father, mother, brothers or sisters, or children of different husbands, and an attempt to adjudicate a settlement under so ambiguous a term is no adjudication at all. But the justices issuing the order did not attempt it. They do not find that the last legal settlement of the persons intended to be included under "the word “ family ” was in Chillisquaque Township, but only say that the last legal settlement of Agnes Leidy, and this defect is not removed by the evidence, and in reference to persons thus intended to be included the order should have been quashed.
    The order was improperly amended. First, because the evidence does not warrant it. It does not show that William H. Leidy had minor children. Secondly, the law and public polity do not authorize it. If at the argument an order may be amended by adding names and descriptions of persons not mentioned in the evidence, then it may be amended by striking out and by adding to, and by striking out we may have a new order that would not be affected by the evidence taken in the case.

      Wolfe (f Wilson, for defendants in error.
    If the overseers convey the right person, it' is not absolutely necessary that the name should be known: Burns’s Justice, vol. iii., p. 535.
    It was decided in Reading v. Cumree, 5 Binney, 81, that “ the Court shall decide (the appeal) according to the merits, without regard to defects in the order either as to form or substance,” and this was declared to be the law in Overseers of Limestone v. Overseers of Chillisquaque, 6 Norris, 294, where the counsel for plaintiff in error in the case cited it in support of the position which he then took, and which is our position now.
    May 15th, 1882.
   — Per Curiam :

The family of a widow are prima facie her children, and it is not clear that the original order of removal would not have been good without amendment. Id cerium est quod cerium reddi potest. But the power of the Court below to amend the order was unquestionable. Upon the merits, it is very clear that the confirmation of the order of removal was entirely right.

Order affirmed.