text:
    Lamb et al. versus Irwin.
    1. Unseated land was assessed in Clark’s name; the land book showed payment of taxes by Irwin; and also after a tax sale “ redeemed by Irwin for Clark’s heirs; Irwin afterwards bought the land at a tax sale; and continued to pay taxes in his own name. He denied having any agency for Clark or his heirs, alleging that he had before his purchase redeemed íbr a creditor of Clark who had not repaid him. The court charged that the evidence was too slight to constitute an agency in Irwin for Clark. Held to be error — these were facts for the jury.
    2. Where a party in redeeming from tax sale claims to have paid all taxes demanded, in order to be relieved as to any not demanded, it must appear that the fault was with the treasurer exclusively. The party must have demanded a search for all sales and not allowed the treasurer to believe that a particular sale only was asked for.
    October 11th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Forest county: Of October and November Term 1870, No. 145.
    This was an action of ejectment brought November 26th 1867, by Richard Irwin against M. Anna Lamb and others, heirs of John Lamb — Orris Hall, W. P. Merrill, John C. Schooley, D. C. Hyde, George B. Downing, William Downing, J. 0. McIntyre and - Saekett, for a tract of 1100 acres of land, being warrant No. 5217, in Kingsley township, Forest county, formerly Venango county.
    The case was tried May 24th 1870, before Campbell, P. J.
    The plaintiff gave in evidence: warrant, survey and patent to George Meade, dated June 13th 1798. Treasurer’s deed, July 16th 1846, to plaintiff for No. 5217 sold for taxes of 1844-1845, assessed in the name of R. L. Clark’s heirs. Treasurer’s deed, June 14th 1852, to J. S. Myers for taxes of 1850, 1851, assessed in the name of R. Irwin. Assignment endorsed, Myers to Irwin (plaintiff), September 3d 1852. Assessments in land-book of 5217 from 1840 to 1849 in the name “ Clark,” and “ Clark’s heirs;” from 1850 to 1853 “ Richard Irwin,” stated in the margin as to 1840, 1841, 1846 to 1849, 1852,1853 to have been paid by R. Irwin; as to 1842, 1843, collected by sale to A. Raymond; 1844, 1845, 1850, 1851 sold. Also, treasurer’s sales books, as to 1840, May 27th 1842, redeemed by Richard Irwin for heirs of R. L. Clark; as to 1844, “ Redeemed, June 9th 1846, by R. Irwin for Clark’s heirs;” as to 1846, “Redeemed, October 20th 1854, by John Lamb, B. H. & S. May.”
    By the defendant’s evidence it appeared as follows:—
    Deed, Irwin to Benjamin May and H. H. May for an undivided half of 5217. Treasurer’s deed, December 29th 1826, for No. 5217 to commissioners, for taxes in the name of G-eorge Meade. Deed, Commissioners to Ilezekiah May, August 24th 1834, and deed, Hezekiah May to Richard L. Clark, May 31st 1836, both for No. 5217.
    J. S. Myers purchased the tract in 1862, at treasurer’s sale, for the plaintiff; who told him, that he had advanced the money to pay taxes on the tract and the owner had failed to refund them; Myers thought Irwin mentioned Clark’s name.
    Richard L. Clark died, January 20th 1842, in Michigan, leaving an only child, Lavinia Clark, born August 4th 1887.
    Deed, Lavinia Clark, January 5th 1852, to Benjamin May, H. H. May and Selden T. May for No. 5217. Miss Clark afterwards married T. P. Sheldon, also residing in Michigan. Deed, T. P. Sheldon and Lavinia his wife for 5217, dated December 6th 1854, to Benjamin May, H. H. May, John Lamb and Orris Hall. Deed, B., H. H. and S. T. May, October 20th 1854, to John Lamb for an undivided fourth of the tract. Deed, April 6th 1863, S. T. May to Orris Hall for an undivided fourth. John Lamb died November 19th 1863, leaving a widow M. Anna Lamb and seven children, defendants. The other defendants derived title from the Mays.
    The defendants called Benjamin May, who testified that in October 1854, he and John Lamb went to the county treasurer’s office, and May told him that he had come to redeem 5217, giving him the number of the lot and Richard L. Clark as the owner’s name; he showed the treasurer by the deed that it was then in Clark’s minor daughter; “ I requested him to give me the amount of the redemption-money against No. 5217; he took his book and looked over it, and gave me the amount, and I paid him — Lamb and myself; I paid all he demanded, * * * I looked at the sale entry on the books; the treasurer turned to the place where the sale was made in 1846; I suppose I redeemed the one sale; I looked at the entry of this sale in 1846; the treasurer called my attention to this entry, and I knew there had been a sale; I told him I wanted to pay all the taxes against the lot; I did not call the attention of the treasurer to the other tax sale, for I did not know of it; I don’t remember that I wanted to pay the taxes on the land, on which no sales had been made; I did not pay any at that time; I told the treasurer I wanted to redeem all that was against it. I knew of the sale to Irwift, but don’t know whether I stated so to the treasurer or not. I told him I wanted him to hunt and give me all the redemption-money.”
    In rebuttal the plaintiff (Irwin) testified that neither Clark nor his heirs nor administrators ever furnished him any money to pay taxes on the tract, nor to redeem it; the redemption-money of 1842 had been furnished to him by a man named Fenton, who had a claim against Clark’s estate; he wished to prevent the title from passing into other hands. Plaintiff paid taxes of 1840 and 1841; sent receipt to Fenton, and requested him to refund what he had paid out, he sent plaintiff no money; it was bid in by Raymond; plaintiff redeemed to save himself, and get deed from Raymond; plaintiff paid taxes of 1846, 1847 and 1848; it was bid in by Myers for taxes of 1850, 1851; plaintiff paid taxes of 1852, 1853, 1854, others then took possession, and paid taxes. Myers’s testimony was correct, except that Clark’s heirs were not mentioned; plaintiff never saw or knew Clark; got one letter fro'm him asking about the quality of the land; he corresponded with Fenton, who told him Clark was dead, and he wanted to secure the title for his own benefit.
    The plaintiff’s 5th point was:—
    “ When May and Lamb went to redeem the land in 1854, they, as well as the treasurer, had duties to perform in the proper consummation of that purpose, and if, through the joint carelessness or neglect of them and the officer, the outstanding sale of 1852 was unredeemed, the redemption from the sale of 1846 alone would not avail the defendants.”
    This was affirmed.
    His 6th point and the answer were:—
    “ To bring a case within the exceptional principle claimed, that a failure to redeem is in law a good redemption, the evidence to Show that such failure was the fault of the officer exclusively ought to be clear, consistent and satisfactory.”
    “We answer this point that the jury must be satisfied that the failure was the fault of the officer exclusively, and they must find according to the weight of the evidence.”
    The defendant’s 2d, 3d, 4th and 5th points were answered in the charge, and are as follows: — •
    “ 2. It is not necessary to show an express agreement to take charge of the land and see to the payment of the taxes, in order to preclude the plaintiff from holding the land under the treasurer’s sale, but such agency and trusteeship may with propriety he inferred from the acts of the plaintiff, such as paying the taxes for Clark while he was living, paying the taxes for his heirs after his death, and for them and in their name redeeming the land from sales made by the treasurer.
    “ 3. If the jury believe from the evidence that on the 20th of October 1854, John Lamb and B. and H. May, for themselves and Selden May, called upon the treasurer for the purpose of redeeming the tract in controversy; that they informed the treasurer that such was their object; that the treasurer informed them the amount necessary to redeem ; that thereupon they paid to the treasurer the full amount demanded by him, such payment was a redemption of the land from the sales under which the plaintiff claims, notwithstanding the treasurer wholly overlooked the sale of 1852, and demanded and received only a sum sufficient to redeem the land from the sale of 1846.
    “ 4. If the jury believe from the evidence that the plaintiff did pay taxes on the tract for Clark in his lifetime, that after the death of Clark he paid taxes and redeemed the land in the name of Clark’s heirs, that on the 28th of May 1842, in their name he paid tbe taxes of 1840 and 1841; that on the 27th of May 1842, in their name he redeemed the land from the treasurer’s sale of 1840; that on the 9th of June 1846, in their name he redeemed the land’ from the treasurer’s sale of 1844; these facts furnish evidence, if unexplained, from which the jury may conclude the existence of' such an agency or trust as would prevent the plaintiff from purchasing the land at treasurer’s sale and setting up the title acquired thereby against Clark or his heirs, or those claiming under them, and that this conclusion is strengthened, if it appears that these taxes and redemptions were not made by Irwin from his own funds.
    “ 5. If the jury believe from the evidence that after the treasurer’s sale to James S. Myers, in 1852, and in the fall thereafter, the plaintiff procured an assignment of the deed from Myers, claiming that he (plaintiff) was the owner of the land, or that he was entitled to redeem the same, and paid for such assignment no more than the amount necessary to redeem, the transaction was but a redemption, and the plaintiff got no other or better title than he had prior to the treasurer’s sale to Myers.”
    The court charged:—
    “ The plaintiff in this suit seeks the recovery of the undivided half of about 1000 .acres of land, in Kingsley township, in this county, known as lot No. 5217, in the name of George Meade, and he has shown a paper title that, in the absence of evidence on the part of the defendants, would entitle him to recover. But the defendants allege that at the time the plaintiff, Irwin, bought this land in dispute, at treasurer’s sale in 1846, he was the agent of the owner of the land, or of the man who had been the owner, and was then dead, and that the agency had not terminated, and that his purchase was in violation of the fiduciary relation he sustained toward the estate, and therefore the sale was void; and that the purchase of the tract from Colonel Myers, in 1852, was at his instance, and the assignment from Myers to him before the time of redemption had expired, was in effect all his own act, done for the purpose of defeating the title of the heir of the principal. [If Irwin was the agent of the heir of Richard L. Clark, and the relation of agency had not been explicitly renounced, this would be so. But was R. Irwin ever the agent of Clark, either for the payment of taxes, or the redemption of this or any other of Clark’s land, in Venango county? Is there any evidence that Clark ever asked him to become his agent, or that Irwin ever agreed to be his agent, or to occupy any confidential relation toward him or his heir, at any time, either before or after Clark’s death ?] The only evidence we recollect that there was any communication between Clark, in his lifetime, and the plaintiff, was a little inquiring how many pine trees were on an acre, but nothing about taxes, and this is all the communication disclosed between them. The land was sold for taxes in the spring of 1840, and within two years thereafter a man named Fenton sent Judge Irwin §80 to redeem it, alleging, if the evidence is believed, that he was a creditor of Clark’s, and that he did not wish his title to be lost to this land, and with §29.24 of that money, it appears this land was redeemed, and about the same time, or shortly after, the plaintiff, instead of allowing it to be again sold for taxes of 1840 and 1841, paid the taxes for these years with the 76 cents remaining in his hands of Fenton’s money, and the balance with his own money. This redemption was made for the heirs of Clark. Then in 1844 it was again sold for taxes and bought by a man named Raymond. Two years had expired, within one day, and the plaintiff, who had then bid in the land, at the treasurer’s sale of 1846, went to the treasurer and redeemed and took the treasurer’s receipt for the redemption-money, showing that he redeemed for himself, and not for Clark’s heirs. On the treasurer’s sale list, it is marked ‘redeemed for Clark’s heirs.’ The plaintiff had a right, when he paid the money to the treasurer, to say for what he paid, and if the treasurer receives the money, he is bound to give a receipt as required, and that in the hands of the payor is evidence of what it contains. This, we think, is the best evidence of what the money is paid for; but it is for you to say. The evidence is for you. [In all this, there is no communication between Clark or his heirs and the plaintiff, and we think the evidence of agency, or confidential relation toward Clark, or the estate of Clark, either by contract or act of his for the estate, is too slight to estop him from becoming a purchaser at treasurer’s sale of the title to this lot,] and therefore we- decline to answer the first two points of the defendant, as requested. We answer the plaintiff’s 5th and the defendant’s Bd points substantially in the affirmative: If Benjamin May, having the deed of - Clark’s minor daughter, went to the treasurer, telling him that Lavinia Clark was still a minor, and that he wanted to redeem the land and pay all taxes against it since the death of Richard L. Clark, and the treasurer, in pursuance of such demand, made an examination and made one account purporting to be all that was against it, and Messrs. May and Lamb, believing it to be all that was against it, and all that was demanded, it would be a good redemption, notwithstanding the sale of 1852 was omitted altogether. [In a word, if the omission was the fault of the officer and not of those redeeming, it would be a good redemption, and your verdict should be for the defendants. If Mr. May knew of this sale of 1852, or any other sale, and did not call the attention of the treasurer to it, the redemption is not good, and your verdict should be for the plaintiff for the half. This is the important question in this case, and it is referred to you for your careful consideration.] [In answer to defendants’ 4th point, we think the evidence of agency is too slight to disqualify the plaintiff from purchasing at treasurer’s sale.] We answer the defendants’ 5th point in the affirmative : if the plaintiff was the owner of the title at the time of the sale of 1852; if he was not the owner of the title before that time, but if he was a stranger to the title, the purchase made by Myers would not be a redemption, and might convey a good title. The facts are for you.”
    The verdict was for the plaintiff for an undivided half of the .premises mentioned in the writ.
    The defendants removed the record to the Supreme Court; they there assigned for error:—
    1 and 2. The answers to the defendant’s 2d and 4th points.
    8, 4 and 7. The parts of the charge in brackets.
    5 and 6. The answers to the plaintiff’s 5th and 6th points.

      W. B. Brown (with whom was S. Souther), for plaintiffs in error.
    As to the 1st, 2d, 3d and 4th specifications. One who has undertaken to act as the agent, to look after lands and see to the payment of the taxes, or who has, by his acts, induced the owner to repose a trust in him that he will do so, cannot acquire a title adverse to his cestui que trust without first renouncing the trust: Henry v. Raiman, 1 Casey 354; Reid v. Stanley, 6 W. & S. 369; Bartholemew v. Leech, 7 Watts 472; 1 Story Equity, §§ 321-322. As to the 5th, 6th and 7th specifications: Where the owner of unseated land presents himself at the treasurer’s office and offers to pay taxes, or redeem lands from tax sales, the treasurer, as a public officer, has duties to perform, the neglect of which cannot fairly be charged against him, who is doing for himself all the law enjoined: Price v. Mott, 2 P. F. Smith 315; Baird v. Cahoon, 5 W. & S. 540; Bubb v. Tompkins, 11 Wright 359; Laird v. Hiester, 12 Harris 452; Dietrick v. Mason, 7 P. F. Smith 40.

      B. J. Reid (with whom was F. D. Kinnear), for defendant in error.
    As to the 4th point; the court expressed but an opinion ; this was not binding nor error: Ditmars v. Commonwealth, 11 Wright 335; Sailor v. Hertzogg, 10 Barr 296; Schoneman v. Fegley, 2 Harris 376; Church v. Ruland, 14 P. F. Smith 432. As to agency: McHenry’s Appeal, 11 Id. 432. As to plaintiff’s 5th point: Baird v. Cahoon, 5 W. & S. 540. As to the 7th error: Allegheny v. Nelson, 1 Casey 332; Kline v. Johnston, 12 Harris 72; Storch v. Carr, 4 Casey 135. A redemption from one tax sale does not work a redemption of all others: Price v. Mott, 2 P. F. Smith 315; Bubb v. Tompkins, 11 Wright 359; Laird v. Hiester, 12 Harris 452.
   The opinion of the court was delivered, October 30th 1871, by

Agnew, J.

We think the court erred in withdrawing from the jury the question of the agency of Richard Irwin for Richard L. Clark and his heirs, and of the offer to redeem alleged to be made by Benjamin May. The facts collected together and summed up in the 4th point of the defendants below were undoubtedly some evidence of Judge Irwin’s agency in payment of the taxes for Clark, and if unexplained might lead to the conclusion that he had been employed by Clark or his heirs to attend to the land and prevent its sale; for it is not probable that any one would volunteer for distant owners and strangers to redeem and to pay taxes. It is true that Judge' Irwin gives a very natural explanation of his interference, which, if true, would prevent any inference from his acts that he was acting for the Clarks. But here is just where the learned judge below erred in not submitting the fact to the jury with proper instructions. Judge Irwin is the party, and the explanation came from himself as a witness. His credibility, therefore, ought to have been passed upon by the jury. Nor while the high character of the witness might in this case avail much, it is too important to be overlooked, that since the Act of 1869, making parties witnesses in their own causes, their credibility has become a question of great importance in settling controversies. They are now often found standing as exact antipodes to each other, and a jury must determine their relative credibility to arrive at a verdict. The finding of the alleged agency would have vitiated the treasurer’s sale, and therefore it was a material fact in the cause: Bartholomew v. Leach, 7 Watts 272; Comegys v. Carly, 3 Id. 380; Reed v. Stanly, 6 W. & S. 376 ; 1 Casey 354. It is argued that the portion of the charge of the court assigned for error was the expression of an opinion only upon the fact, when the judge said the evidence was too slight to estop Irwin from becoming a purchaser at treasurer’s sale. We might be induced so to consider this part standing alone, but we must interpret it by the answer of the judge to the defendants’ 4th point, where he says distinctly the evidence of agency is too slight to disqualify the plaintiff from purchasing at treasurer’s sale. A jury, listening to both portions of the charge, could scarcely avoid the conclusion that they were instructed to disregard the evidence.

We discover no error in the principles given to the jury governing the offer of Benjamin May to redeem the land from all tax sales. Undoubtedly the failure to find the sale, which was overlooked, must have been the fault of the treasurer exclusively, and therefore the party must have distinctly and clearly called his attention to the demand for a search for all sales. He must not permit him to rest under the supposition that a particular sale only is asked for in order to redeem. If Benjamin May did not know of the sale of 1852, as he swears, he could not call the attention of the treasurer to it, and the oase would then turn on the distinctness and clearness with which he made known to him the request to redeem from all sales theretofore made. It does not appear in the evidence found in the paper-book that May knew of the sale of 1852, and if there were no question of credibility of the witness, it was an error on part of the court to say that if he did not call attention to the sale of 1852, the redemption is not good, and the verdict should be for the plaintiff. We should feel loath to reverse for this alone, for it is quite probable the credibility of May, as to his want of knowledge of the sale of 1852, may have been questioned before the jury. But for the former error the judgment is reversed, and a venire facias de novo is awarded.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    Cook et al. versus Cook.
    1. J.’s land being to be sold by tbe sheriff, he arranged with P. to buy it it in for him. At the sale J. and P. informed bidders of their arrangement; they ceased bidding and P. bought the land. Eeld, that P. took as trustee for J.

      2. In ejectment by P. against J., the court charged “■?. can be declared trustee only on the ground that the purchase-money to the sheriff was furnished by J.” Eeld to be error.
    3. P. was a trustee merely for J., and J. was P.’s debtor for any part of the purchase-money unpaid.
    4. The land was held by J. by articles. After the sheriff’s sale B. paid the balance due on the articles and obtained a deed, “ subject to P.’s and J.’s equity.” In ejectment by P. against J. and B., P. was not bound to tender to B. the amount paid by him. J. could tender and demand a conveyance from B.
    October 21st 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1870, No. 178.
    This was an ejectment commenced August 9th 1866, by Philip Cook against John Cook and George N. Berlin, for 108 acres of land.
    The case was tried August 24th 1870, before Barrett, P. J., of the 22d district.
    The plaintiff’s title was as follows: John Cook, his brother, one of -the defendants, by article dated the 1st of August 1837, contracted with the agents of the Bingham estate for the land in dispute for the consideration of $162.75. The article was renewed by another dated November 1st 1849, for the consideration of $282.37, the debt and interest due on the original article. An execution for $103 was issued against John Cook on the 20th of December 1852, and his land extended at $50 per annum, and accepted by John Cook; on failure to pay the rent, the land was sold under a venditioni, to Philip Cook for $375, and the sheriff’s deed acknowledged December 8th 1854. On the 10th of February 1865, John Cook receipted to the sheriff for $131.93, the surplus from the sale after payment of debt and costs. On the. 10th of June 1863, Philip Cook paid Judge Campbell, representing the Bingham estate, $170.98 on John Cook’s article. George N. Berlin, the other defendant, paid $390.93 to Judge Campbell, that being the whole amount then due on John Cook’s article, and a deed was delivered to Berlin, March 3d 1866, “subject to the equity of John Cook, Jr., and his vendee Philip Cook, as specified in the article of John Cook, Jr.,-with the Bingham estate.” Before bringing suit, Philip Cook tendered to Berlin $400 in payment of the amount due on the contract.
    The defendant, John Cook, alleged that Philip had bought in the property at sheriff’s sale for him. He testified that when the land was about to be sold by the sheriff, he asked Philip to buy in the property for him, and Philip agreed to do so; a number of persons were at the sheriff’s sale. John Zents was bidding and John Cook told him his arrangement with Philip ; John and Zents went to Philip, who told Zents he was buying for John, Zents then said he would not interfere when one brother was buying for another; the land was struck down to Philip for $37 6 ; John testified that he did work for Philip, which he agreed should go towards paying for the land; also, that he paid Philip several sums of money on the same account, and that Philip was otherwise indebted to him. Philip gave John his note for the surplus at the sheriff’s sale. John cleared after the sale about 21 acres, enlarged the house and built a barn. Philip never claimed the property till the suit was brought. Zents testified that he went to the sale intending to buy the property if he could have got it for $700 with a clear title; it was then worth $1000 or $1200.
    He was informed substantially as stated by John Cook, the arrangement between John and Philip, and he did not bid any more.
    C. E. Beaman was a bidder at the sale, but stopped on learning that Philip was bidding for John. William Ray testified in the same manner. There was evidence that after the sale Philip said the property was John’s.
    The defendants’ points were:—
    1. If the jury believe that there was an understanding and agreement between Philip Cook, the plaintiff in this case, and
    John Cook, defendant, before and at the time of the sale, that said Philip Cook should purchase the real estate sold on the execution in the case of GvGr. Williams, assignee, &c., v. John Cook, and that said Philip Cook jointly with John Cook, and also by himself, induced Zents and others to desist from bidding at such sale ; and by suph means was enabled to purchase the land in controversy at a price below what it would have sold for at such sale, and below its actual value, such facts would make said plaintiff, Philip Cook, a trustee for defendants, and the jury should find for the defendants, subject to the payment of any balance-unpaid of the purchase-money paid by plaintiff on sheriff’s sale, and to Hon. James Campbell on the contract.
    2. If the jury find for the defendants on facts stated in first point, and that the moneys actually paid by the plaintiff on the sheriff’s sale, and also that paid to Hon. James Campbell on the John Cook contract, has been- refunded or repaid by the defendant John Cook to the plaintiff, then their verdict ought to be for the defendants generally.
    The points were refused.
    The court charged:—
    * * * “Was there a resulting trust created at the time of Philip’s purchase at sheriff’s sale ? No fraud is alleged. There were no creditors to be affected. It was a contract, if any existing, in parol between John and Philip. How was John interested in depressing the value of the property at.sheriff’s sale ? There was but the one judgment. ' It was more than paid. The surplus money went to John, and -the more it sold for the greater the surplus would be.
    “What was the agreement between the parties? This is a question for the jury. If Philip Cook is believed, he did make the purchase under a promise to let John remain upon the land for some time. He has let him live upon it since 1854. If John is believed, he purchased it for him, and agreed to convey it to him on being paid the money invested. There is some evidence corroborating both. If such was the contract between these brothers, why did John take Philip’s note for the surplus at the sheriff’s sale ?
    “ If Philip is to be declared a trustee for John, it must be because such was the arrangement at the time of the sheriff’s sale. If John furnished the money to pay Philip’s bid for the land, then the law would make him a trustee. There is some evidence on his part that he did, which is positively denied by Philip. This is a question for the jury. [Philip can only be declared a trustee on the ground that the purchase-money for the sheriff’s title was furnished by John.] Whatever bargains or contracts they may have made afterwards could not change the character of the original transaction. It was not enough that in an account between the parties years afterwards the indebtedness of Philip to John may be shown to be sufficient to cover the money paid.
    “ If the jury believe, under all the evidence, that Philip purchased the land at sheriff’s sale for John, and that John furnished the money to pay the bid, they should find for the defendants. The plaintiff would not be entitled to any conditions. His payment on account of the purchase-money would be a voluntary one.
    “ If the jury believe that Philip purchased the land and paid for it with his own money, the plaintiff is entitled to a verdict for the premises, to be absolute on the payment of the purchase-money and interest due to George N. Berlin.” * * *
    The verdict was for the plaintiff upon condition of paying the unpaid purchase-money to Berlin.
    The defendants removed the record to the Supreme Court and assigned the answers to their points, and the part of the charge in brackets, for error.

      W. L. Corbett (with whom was J. Boggs), for plaintiffs in error.—
    Philip’s conduct stops his mouth from asserting anything contrary to what he declared at and after the sale. It created a trust for John: Brown v. Dysinger, 1 Rawle 408; Morey v. Herrick, 6 Harris 123; Sharp v. Long, 4 Casey 433; Williard v. Williard, 6 P. F. Smith 119; Robertson v. Robertson, 9 Watts 32; Kisler v. Kisler, 2 Id. 323; Abbey v. Dewey, 1 Casey 413; McCaskey v. Graff, 11 Harris 321; Sheriff v. Neal, 6 Watts 534; Plumer v. Reed, 2 Wright 46; Beegle v. Wentz, 5 P. F. Smith 369; Kellum v. Smith, 9 Casey 158.

      B. J. Reid (with whom was Or. W. Lathy), for defendant in error.
    If there was fraud at the sheriff’s sale, John was a participant and cannot take advantage of it: Haines v. O’Connor, 10 Watts 318. At most this was hut the breach of a parol agreement which will not make the, purchaser a trustee: Jackman v. Ringland, 4 W. & S. 140; Fox v. Heffner, 1 W. & S. 372; Barnet v. Dougherty, 8 Casey 371. Except by fraud in the purchaser or payment of the purchase-money, a resulting trust will not arise: McCulloch v. Cowher, 5 W. & S. 427; Sample v. Coulson, 9 Id. 62; Kisler v. Kisler, 2 Watts 323; Geiger v. Miller, 12 Harris 109.
   The opinion of the court was delivered, November 6th 1871, by

Read, J.

John Cook entered upon the premises in controversy under an article of agreement with the trustees of the Bingham estate, dated the 1st of August 1837, and on the 1st of November 1849, by an article of agreement in writing from the said trustees, which was a renewal of the former one, purchased the same for the consideration of $282.37. He cleared land, made valuable improvements, and with his family resided thereon at the commencement of this suit, on the 9th August 1866.

On the 7th August 1852, a judgment was obtained against John Cook for $103, on which an alias fi. fa. was issued, and levied upon this real estate, extended at a rent of $50 per annum, and accepted by John Cook, and upon his failure to pay, a vend, exponas was issued upon which this land was about to be sold. John sent for his brother, Philip Cook, to come over and buy the property in for John Cook at the sheriff’s sale, which he did for $375; the surplus money, after paying debt and costs, John receipted for to the sheriff, but did not receive it. From the 1st December 1854 to 9th August 1866, John Cook remained in undisturbed possession of the land, paid the taxes, cleared land, built a barn, and cut timber thereon, which he had manufactured into lumber on the mill of Philip Cook, the plaintiff.

On the trial of the cause John Cook testified: “ My property was up for sale on that judgment; I had some money, but not enough to pay the debt; I asked Philip to come over and buy the property for me; I wanted him to furnish a part of the money for a time, until I would get my money from Bethlehem; he agreed to come over and buy the property. He came; he was here two or three days; Zents was a bidder; William Ray came up to myself and Philip, and asked if the property had to be sold ; Philip told Ray that he was buying the property in for me; Zents was bidding, and I went and told him my arrangement with Philip; he said if that was the case he would not bid on it. We went to Philip, and Zents asked him; Philip told him he was buying it in for me; then Zents said he would not interfere where one brother was buying for another. The property was knocked down to Philip for $375.” Zentz, Beaman, Ray and Dunkle, all agree as to these facts, and if these witnesses, counting John Cook, are believed, then John Cook’s story is true, and fixes Philip with a trust for John.

Philip Cook, on 10th June 1863, paid the trustees of the Bing ham estate $170.38 on the John Cook, Jr., article, and on the 19th February 1866 George N. Berlin paid $390.93, the balance in full of the John Cook article, and received a deed, “ subject to the equity of John Cook, Jr., and his vendee, Philip Cook, as specified in the article of John Cook, Jr., with the Bingham estate.”

There was evidence of money paid to Philip by John on account of the judgment, and also claims, which, if established, would repay all Philip’s advances. But the view taken by the court rendered all this evidence entirely nugatory. One cardinal error runs through the whole case, and makes it unnecessary to consider the errors assigned in detail, to the answers to the defendants’ points, and to the judge’s charge.

The court evidently considered there could be no resulting trust unless John furnished the money to pay Philip’s bid for the land. “Philip,” say the court, “can only be declared a trustee on the ■ ground that the purchase-money for the sheriff’s title was furnished by John.”

Now it is perfectly clear that Philip purchased for John, and his conduct at the sale in preventing bidders and getting the property at a low price, far below its real value, would be a wilful and deliberate fraud, if he did not fulfil his agreement with his brother, publicly acknowledged at the very moment of the purchase. If he was not a trustee for his brother, then it was defrauding him out of what would have been given by others, amounting to several hundred dollars. Philip was a trustee merely for his cestui que trust, John is simply his debtor for any advance remaining unpaid, and for the $170.38 paid the Bingham estate; but he was not entitled to tender the $390.93 to George N. Berlin, and demand a conveyance of the legal title. John Cook could tender and require a conveyance of it.

The defendants’ 1st and 2d points should have been affirmed. The facts should be submitted to a jury, with proper instructions.

Judgment reversed, and venire de novo awarded.


author: Sharswood, J.

text:
    Johnston versus Furnier.
    1. 3?. died in 1807, greatly in debt, devising one-third of his land to his wife for life, the residue to his three children; the widow, who was executrix, married again ; she and her husband lived on the land; he paid the debts. Afterwards, whilst the children were minors, the widow and her husband and guardian of the children, submitted to the award of three men to settle between them. They awarded part of the land to the husband and the remainder to the children, who after coming of age conveyed their part by deed reciting the award. In ejectment by one of the children against the heir of the hushand: Held, that the deed ratified the partition under the award.
    2. Family arrangements, if fair and equitable, should not be disturbed after long acquiescence, which is strong evidence of ratification by a ward of the aot of his guardian.
    3. A partition by an infant, although unequal, is only voidable by'him when he comes of age. If he takes the whole profits after age, the partition is good for ever.
    4. Ratification of a minor by acquiescence in this case.
    October 24th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Westmoreland county: No. 87, to October and November Term 1870.
    This was an action of ejectment brought June 9th 1869, by Bowman Furnier against Levi Johnston, for 200 acres of land in Rostraver township, known as the “ Campbell tract.” David Furnier died in 1807, seised of about 420 acres of land, of which the premises in dispute are part. By his will he gave to his wife, Polly Furnier, one-third of his personal estate absolutely, and one-third of his real estate for her life. He gave to his daughters Lucinda and Matilda, and his son Bowman, all the residue of his estate, to be divided when his son should come of age. He appointed his wife and Joseph Becket executors. The widow shortly afterwards married Robert Johnston. The defendant, Levi, was the only child of the marriage. In 1822, Joseph Markle was appointed by the Orphans’ Court of Westmoreland, guardian of Matilda and Bowman Furnier (the plaintiff), then about twenty years of age. Lucinda, the other daughter, was married to James Fuller. Afterwards the parties entered into an agreement contained in the following paper :—

      “ Whereas, David Furnier, late of Westmoreland county, died and leaving considerable property, both real and personal, which at his death appears to be considerably embarrassed in debt, and leaving and appointing in his last will and testament, his widow, Jacob Bowman and Joseph Becket, Esq., his executors, directing his said executors to pay his just debts, the said widow, before his said debts were all paid, intermarried with Robert Johnston. It appears that the said Robert Johnston, with his wife, one of the executors aforesaid, did proceed and pay off said debts. And the time coming that one of the heirs of the said deceased arrived at age, and the court of said county did appoint Joseph Markle the proper guardian of the other two, which were in their minority, the parties, Robert Johnston, Joseph Markle, guardian of said two children, namely, Matilda Furnier and Bowman Furnier, with James Fuller, husband of Lucinda Furnier, one other daughter of the said deceased, thinking it proper to adjust and settle all matters amicably and on the most friendly terms, did, in the month of September, eighteen hundred and twenty-two, agree and appoint James D. Cope, Esq., John Milligan, Esq., and Andrew Finley to settle and adjust all matters with respect of adjusting the accounts of said estate and divide the landed property, they agreeing to fully abide to what the said three referees do agree on, on their part each for himself. We the said referees, accordingly met on the premises on the twenty-fourth day of September of said year, and by request of the parties concerned, did adjourn on the evening of the twenty-fifth of said month to convene on said premises on the second day of October following, which we accordingly met, examining the vouchers produced with the land, will, &c., we being of the opinion that the said Robert Johnston had paid considerable amounts of said debts, for which we giving our advice and opinion, and the parties agreeing and writing to stand to the same as follows, to wit: The said Robert Johnston to have and enjoy the farm commonly called the Campbell farm, containing two hundred acres of land, with one hundred and three acres of the Beazel place, allowing the Orphans’ Court of said county to order proper measures to obtain a legal title for the above described, agreeable to our opinion and the agreement of the parties, for and in consideration of moneys paid by the said Robert Johnston or advanced by'him for the payment of said debts, the said Robert Johnston, with his wife, agreeing to deliver up to the said guardian and said James Fuller, full and peaceable possession of the mill and the tract, of land attached thereto, with the balancé of the Beazel tract which is supposed to be about thirty-three acres, clear of all encumbrances, right of dower, or anything that may embarrass the same, with the same way of obtaining the title as above, that is as said court may order in said premises; yet it is to be remembered that the thirty-three acres to be taken off the Beazel farm for the heirs is to be on or lying most advantageous to the mill tract, so as not to take in a coal pit that the said Robert Johnston has opened. We, the parties, fully agree by the said court, in their wisdom, ordering such measures as will make said parties sufficient titles to said lands as agreed on. Witness our hands and seals the third day of October, in the year of our Lord one thousand eight hundred and twenty-two. Referees sign as witnesses.

    On the 1st of April 1828, Robert Johnston and wife, “ late Polly Furnier,” by deed of that date, “ in pursuance of and in order to perfect (the) award,” conveyed to the children of David Furnier, “ all right of dower and claim and demand whatsoever” to the mill-tract and the part of the “ Beazel tract” awarded to the children by the referees, and Johnston and wife “release all claims against the heirs of said David Furnier, deceased, in pursuance of the submission and award aforesaid.”
    On the same day Fuller and wife and Matilda Furnier, reciting the award, &c., conveyed to Robert Johnston in fee the land assigned to him in the award.
    On the 20th of April 1833, Fuller and wife, Matilda and Bowman Furnier, by deed, reciting that Johnston and wife, “ in order to perfect and confirm their submission to the award of the men amicably chosen by the parties to make partition and settlement of” the Furnier estate, had conveyed and released to the children of David Furnier their interest in the land assigned by the award to the children — conveyed that land to Samuel Speers, in fee, for the consideration of $1800, “ freely and clearly acquitted of all mortgages, judgments, Hens and every encumbrance whatsoever, prior to the date hereof, whereby a good title to the same might hereafter become embarrassed.”
    On the 21st of October 1858, Levi Johnston, defendant, conveyed to Bowman Furnier, plaintiff, about five acres, part of the “ Campbell tract.”
    Robert Johnston moved to the land in dispute shortly after the award and lived there till his death in 1888. He erected buildings on it and otherwise improved it; his son, the defendant, has lived there since. The plaintiff worked on the premises for Robert Johnston and the defendant, and lived on the adjoining five-acre lot sold to him in 1858; he lived in the neighborhood all his life.
    The widow of Johnston, the mother of plaintiff, lived on the premises till her death.
    The defendant offered in evidence the records of the Court of ■ Common Pleas of Westmoreland county, to show that the land of David Furnier, at his death, was largely encumbered by judgments, which were paid by Robert Johnston after his marriage with the widow ; also judgments against his personal representatives, which were paid by Robert Johnston. The offer was objected to by the plaintiff, rejected by the court and a bill of exceptions sealed.
    The defendant requested the court to charge the jury :—
    “ 1. That if Bowman Eurnier, the plaintiff, acquiesced in the family arrangement made by the submission and award dated 3d October 1822, for a period of over forty years after he became of age, with full knowledge of such arrangement, and permitting large and valuable improvements to be made on the land in dispute, with a full knowledge of their being made, he cannot now be permitted to disturb it, and cannot recover.
    “ 2. That such acquiescence and ratification may be proved by his acts and declarations.
    “ 4. That if the evidence in this case is believed by the jury, such a state of facts is made out from which the jury may infer such an acquiescence and ratification on the part of the plaintiff of the arrangement as will bar the plaintiff’s recovery.”
    The court charged :—
    “ The plaintiff holds the legal title as an heir of his father. That legal title has never been transferred by the plaintiff. That entitles him to recover, unless the defendant has shown a better title.
    “ The defendant’s claim rests upon a mere equity. Would a chancellor, under this evidence, have compelled Bowman Eurnier to execute a deed to the defendant Johnston, conveying to him the legal title ? Has such an equity been shown as will move the conscience of a chancellor, and take from the plaintiff the title he inherited from his father to Robert Johnston, or the present defendant ? This is the question.” * * *
    The answers to the points were:—
    “1. I do not understand the paper of the 3d October 1822, as a submission and definitive award. It is not signed by the referees, nor is there ‘any submission defining the subject-matter submitted. It refers to both real and personal estate, embraces the settlement of the accounts of the decedent as the division of the interest of the real estate, and it is not stated that the parties are to be bound by it, but it is to be carried out under proper orders and decrees of the Orphans’ Court. The plaintiff in this case was then a minor, and incapable of contracting, and it was done by his guardian without any authority, and without any order of court. This is not the case when one claims adversely, and enters and takes possession of another’s land, and with full knowledge and acquiescence of the owner, and especially if encouraged, makes valuable improvements, and is therefore estopped. But in this case Robert Johnston and'wife had a right to one-third of the land for life, and entered into possession. Their possession, and nature and extent, has reference to the nature and extent of title; and such possession and improvements can confer no greater right than the title under which they claim. One tenant in common cannot improve another out of his right. ■ This point is, therefore, answered in the negative.”
    “ 2. This point is answered in the affirmative, if it depended upon parol proof, or the nature of the evidence to sustain a parol estoppel.”
    “ 4. This point under the circumstances and evidence in this case, is answered in the negative.”
    The verdict was for the plaintiff for one undivided third of the land.
    The defendant took a writ of error, and assigned for error the rejection of his offer of evidence, the charge and the answers to the points.

      S. T>. Foster and A. B. Marohand, for plaintiff in error.

      F. Qowen, for defendant in error.
   The opinion of the court was delivered, January 9th 1872, by

Sharswood, J.

The first error assigned is to the rejection by the court below of an offer of the defendant to prove by the records of the Court of Common Pleas of Westmoreland county, “ that at the time of the death of David Furnier, his land was largely encumbered by judgments against him, which were paid by Robert Johnston, after his marriage with the widow of David Furnier; also by judgments against his personal representatives after his decease, which were paid by Robert Johnston.”

Before proceeding to the consideration of this assignment, it will be proper to notice a preliminary objection which has been made to it. It is said, that it infringes the well-settled rule of practice of this court, which requires that, whenever there is a bill of exceptions taken to the exclusion of any written evidence, a copy of the document offered must be attached to the bill, in order to enable the court to judge of its relevancy: Gratz v. Gratz, 4 Rawle 411; Stafford v. Stafford, 3 Casey 144 ; Aiken v. Stewart, 13 P. F. Smith 30. The rule is a necessary one, and must be adhered to in all cases to which it is properly applicable. But this is not the case when the offer is to prove the mere fact of the existence of a judgment or judgments in the same court, by the production of the original records. The very documents offered could not be attached, and to require full copies would be a burdensome and unnecessary expense. Nor is it within the reason of the rule, for it is not necessary that the entire record should be inspected to determine the question whether the existence of judgments was or was not relevant to the issue.

We are of the opinion that the offer thus made was relevant and ought to have been admitted. David Furnier died in 1807, leaving a widow and three children. By his will he devised one-third of his real estate to his widow for her life, and the residue to his children. He nominated his widow to be his executrix, and letters testamentary were accordingly issued to her. She subsequently intermarried with Robert Johnston. Many years after-wards, in 1822, a family arrangement was entered into for the settlement of his estate. To this arrangement General Joseph Maride, the guardian of Bowman Eurnier, the plaintiff below, was a party. Three neighbors were appointed as referees, who reported that being of opinion that Robert Johnston had paid considerable amounts of the debts of David Eurnier, they gave it as their advice and opinion that Robert Johnston should have and enjoy the farm commonly called the Campbell farm, with a part of the Beasel place, allowing the Orphans’ Court of said county to order proper measures to obtain a legal title thereto, and that the mill and tract of land, with the balance of the Beasel tract, should in the same way be assured to the three children. In accordance with this award, Robert Johnston and wife, by deed, April 1st 1828, released all her estate and right in the land agreed to be assured to the children. By a deed of the same date, the children, except Bowman Eurnier, conveyed their interest in the other land to Robert Johnston. Bowman Eurnier seems at this time to have been of age, but did not join in the deed. The parties went into possession of their respective parts, and subsequently, by a deed, acknowledged April 20th 1833, Bowman Eurnier joined his sisters and their husbands in a sale and conveyance of the part allotted to them to Solomon Speers for and in consideration of the sum of ¡¡>1800. This deed recited the partition and settlement, as it is there termed, of 1822, and the release of Robert Johnston and wife in pursuance thereof. This action of ejectment against the son of Robert Johnston for the tract allotted to him, was not commenced until June 1869, nearly forty-seven years after the settlement, referred to, and more than eighteen years after the death of the widow of Eurnier. Such family arrangements, if fair and equitable in themselves, after so long an acquiescence, ought not to be disturbed, and such acquiescence will be strong evidence of a ratification by the ward of the act of his guardian,In Hume v. Hume, 3 Barr 144, where by just such a family arrangement a dispute respecting an obscure will was submitted to men, it was held that twenty-eight years’ acquiescence and enjoyment of land under it, interposed a strong obstacle to any attempt to set it aside by an infant who had not avoided it when he came of age. “It could only be voidable,” said Mr. Justice Sergeant, “by the infant on coming of age, and here he has acquiesced.” It was very important then for the defendant below to show that this was a just and equitable settlement, and this he proposed to do by proving that Robert Johnston had paid a large amount of the debts of David Furnier. In regard to these debts, which were secured by judgments in the lifetime of David Furnier, they continued to be liens on his real estate at the time of the settlement, if not then actually satisfied. The referees reported that they had examined the vouchers produced by Robert John-stone to show the payments made by him. Under such circumstances and after so long an acquiescence, the jury would have been fully justified in finding a ratification by Bowman Furnier of the agreement entered into by his guardian.

But we think the court below ought not only to have admitted this evidence, but to have gone further, and instructed the jury that Bowman Furnier, by his deed to Solomon Speers, absolutely ratified and confirmed the partition of 1822. He conveyed the share allotted to him and his sisters clear of his mother’s life-interest in one-third, she being then living, reciting her release and the award and settlement of 1822. He received his one-third of $1800, the full value of the land unencumbered by her title to one-third. A partition by an infant, even if unequal, is only voidable by him when he comes of age, and not void. If he take the whole profits of the unequal part after his full age, the partition is made good for ever: Co. Litt. 171 b. So, if he continues in possession of land received in exchange: 2 Vermont 225. “If any act of confirmation,” says Chancellor Kent, “ be requisite after he comes of age, to give binding force to a voidable act of his infancy, slight acts and circumstances will be a ground from which to infer the assent:” 2 Com. 237. Leases by a guardian which endure beyond the minority of the ward, are not void, but only voidable, and may be confirmed by his acceptance of rent accruing after he comes of age: Bingham on Infancy 170; Smith v. Low, 1 Atk. 489. The authorities upon this subject are fully examined by Mr. Justice Duncan, with his usual learning and ability, in Brown v. Caldwell, 10 S. & R. 114, and it was there held that if consentable lines are fairly made between adjoining tracts by the guardian of an infant, if the infant do not dissent when he comes of age, but acquiesces, he is for ever bound. See also Hill v. Roderick, 3 Penna. Law Jour. 417. Now, what can be a more unequivocal and conclusive assent and ratification by an infant after majority of a partition made by his guardian, than a sale and conveyance of the land allotted to him, clear of the encumbrance which would have otherwise attached to it, reciting the very partition as valid which he now claims to avoid ?

Upon this view of the law, as applicable to the facts, it is of course unnecessary to examine the remaining assignments of error.

Judgment reversed, and venire facias de novo awarded.


text:
    Creps versus Dunham.
    1. H. bought “timber leave,” for making staves, which were not to be removed till the “ leave” was paid for. H. made staves and sold his right to D. All that passed to D. was the right to take the staves on paying for the “ leave,” and no actual delivery to Ü. was necessary to make the transfer good against H/s creditors.
    2. The staves were levied'on for H/s debt, the “leave” not having been paid; 1). had not the possession nor the right of possession, so as to maintain trespass against the Sheriff.
    3. Arbitrators were chosen in the action; without striking off the rule, the plaintiff ruled the defendant to plead, which he did and the case went to trial. Pleading admitted the case to be in court and going to trial waived any error in the proceedings.
    October 26th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Indiana county: No. 76, of October and November Term 1871.
    This was an action of trespass d. b. a., brought April 16th 1868, by Azariah Dunham against Jacob Creps, late sheriff of Indiana county, for levying on and selling a large number of staves under an execution against Thomas P. Hatch; the plaintiff alleging that the staves were his property.
    After filing the declaration, the plaintiff entered a rule of reference on the 7th of February 1869, and on the 3d of March the attorneys of the parties chose arbitrators. The record shows the service of the rule of reference on the 4th of March, but nothing further until October 17th 1870, when a rule to(plead in ten days was entered. On the 28th of October the defendant pleaded ££not’guilty.” The cause was tried April 12th 1871, before Campbell, P. J., of the 18 th district.
    To December Term 1867, two executions were issued against Hatch, and the sheriff levied on several distinct lots of staves on the farms of James Bowman, John Saddler, Joseph McCartney, James D. Dias and-Waehob, as Hatch’s property.
    It appeared that the owners of these farms contracted with Hatch for “ timber-leave” on their land, at different prices. Hatch to have the right to enter upon the land, cut, pile and “cob ” staves, but not remove them until the wood-leave should be paid for; there was no precise amount of timber or number of staves contracted for, nor any specified time for which Hatch might continue to cut. In some of the contracts it was expressly understood that he was to stop when the landowners directed. The contracts were all by parol. Hatch cut a large amount of staves under that contract; some Were partly paid for, some wholly unpaid. On the 18th of October 1866, he entered into an agreement in writing with Dunham, the plaintiff, by which, for the consideration of $3550, Hatch agreed “ to sell and release the shop, house and lot in Franklin; also the use of the shop used heretofore (by Hatch) at Altimus, to be and remain as the property of Dunham, free from all encumbrance.” Also “ to deliver at the shops before mentioned, 125,000 shook staves, as good as those now at shops, at as early a period as possible, not to exceed one year.” Also “ two joints of the shook shed at Nineveh station, P. R. R.” Hatch “ to use his influence in behalf of (Dunham) in procuring staves, timber, &c., for supply of said shops, hereby releasing and giving over to the said Dunham all his right, &c., of, in and to all or any timber or timber-leave which the said Hatch may have or hold.” Hatch also transferred to Dunham “ the stave machinery and all tools now in use (in the shops), for the manufacture of stock.” Hatch to give possession of the property at the date of the agreement, and a deed when all the money should be paid; but reserving the privilege to make in the shops about 1400 shooks “ to fill contracts already made by him.” Dunham paid the money under the contract. This contract was made and signed on behalf of Dunham by J. W. Kellar, his agent.
    At the sheriff’s sale Cunningham, who appeared to be acting for or with the execution-creditors, bought the staves. He paid the amount remaining unpaid to the landholders.
    There was evidence that Kellar, the agent of Dunham, had agreed to pay some of the landholders for the staves. Some of the staves cut by Hatch were moved and were not levied on.
    Tomb, an agent of Dunham, after Kellar who had died, testified: * * *
    “ Some three weeks or a month before sheriff levied on them, wanted to know how many staves Mr. Dunham had, as I did not know much about how many he had; found staves at James A. Lowman’s ; I found short and long staves, about 80,000, more or less, did not count them; at Wachob 28,000, did not count them; at John Saddler’s between 2000 and 8000; on land of Joseph McCartney between 30,000 and* 40,000; on land of James D. Dias about 8000, did not count them; there were some staves brought out from Lowman’s land, after I took charge of them as agent; some of Wachob’s staves were brought in. Sheriff Creps levied on the staves. * * * I agreed to pay McCartney $6 per thousand stumpage, so far as the staves had been delivered to Kellar in his lifetime; I paid the stumpage on the McCartney lot; made arrangements with Saddler to deliver the staves, but he did not get it done until it was levied upon by the sheriff; some of them were hauled a part of the way; some of the McCartney staves were hauled out of the woods to the road; * * * Wachob staves — made arrangements with him to have them delivered right away; he was to haul them himself; they were hauled out in a long pile along the road ; they were all long staves; don’t know when they were hauled out; Dias staves were standing in the woods where they were made; think they had not been moved at all; * * * did not pay McCartney any wood-leave for staves levied on hy the sheriff; the McCartney and Saddler staves in the woods were piled up by the trees where made; the Lowman staves were brought out before my entering on the business; nine thousand of the Dias staves were hauled out; they were sold by the sheriff; * * * found them there when I went around to see; don’t know who caused them to be hauled out; * * * did not pay for the making of any staves levied on; did not pay for the making of any staves- after I took charge of them; don’t know when any of the staves were made that were levied on; don’t know who paid the timber-leave on staves levied on; did not move any staves when I went around; did not mark them in any way; I endorsed what Mr. Kellar had done about hauling the staves.”
    The following were the points of the plaintiff with their answers :—
    “ 3. If the jury believe that any of the staves sold by the sheriff were made before the sale of October 18th 1866, by Hatch to Dunham, and remained on the premises where made, they were in the possession of the respective landowners, subject to the payment of timber-leave, and not in Hatch’s possession, and that therefore such possession thereof was taken by Dunham, after his purchase, as the law under the circumstances could require.”
    “We answer, if the landowners'were to hold the possession as against Hatch till paid, they might deliver the staves made to Dunham or his agent, and such possession would enable him to hold the staves; but there must be a possession taken such as the property was susceptible of. The merely looking at them would not be such possession. Was such .possession taken hy Dunham ? The facts are for you.”
    “ 5. If the jury believe that the staves seized and sold by the sheriff were under such circumstances sold by the landowners to Dunham’s agents, who agreed to pay the landowners for them, and took possession of them hy counting, such contract vested in .the plaintiff the right of property in such staves so purchased, and the plaintiff should recover.”
    “ The plaintiff’s 5th point is affirmed.”
    The defendant’s 2d point and its answer were:—
    “ Even if there was a sale to Dunham of the property levied upon by the sheriff, it was fraudulent and void in law, there being no such change in the possession as the property would admit of, and as the law requires against creditors of the vendor.”
    “ We answer, that whether there was a delivery of the possession of these staves or any part of them to the plaintiff, is for the jury. If they were as we have indicated, we do not think such sale would be void in law.”

      The court charged: — * * *
    “ It appears that the agreement was that Hatch might go upon their land and take out staves and pile or cob them up, but not remove them until paying so much per thousand to the owner for the timber out of which they were made, and until that was done Hatch could not take them away, and they remained in possession of the land or timber-owners. We think this does not amount to a contract for real estate at all. Hatch might cut and make into staves just as long as the owners saw proper, and then the owner would sell the timber out of which they were made to Hatch on paying for it, and could not move the staves without payment of the timber out of which they were made; then was there any possession of these staves in Hatch at any time ? His right to remove them was contingent, if we have stated the contracts correctly, and not having removed them the possession remained in the landowner, and Hatch might transfer to another by parol his interest, and authorize another to take the staves on the same terms, he could take like himself. [Then, did Hatch transfer to Dunham or his agent the right to haul awaythese staves, or any of them ? Hatch says he told Dunham’s agent he might haul some staves and he would allow him for it, and did he in pursuance of such transfer take possession ? If he did he would have a right, we think, to hold it against the sheriff’s vendee.] * * * It is clear Hatch had no right to any timber he had not worked up into staves, only at the will of the owners of the land he had nothing to transfer, and it was only a matter of grace that the owners allowed any staves to be made by either Hatch or Dun-ham. If the contract of Hatch was only to cut at the pleasure of the owner or owners a particular space and on the terms we have stated, this was no license for any particular time, and only a sale of the timber in the staves before removal.”
    The verdict was for the plaintiff for $1410.19.
    The defendant took out a writ of error. He assigned for error, The answ-ers to the plaintiff’s 3d and 5th points; the answer to the defendant’s 2d point; the part of the charge in brackets; and, “ 5, the court had no jurisdiction; the case being out of court on a rule to arbitrate, taken at the instance of plaintiff, under which arbitrators were chosen, and before whom the case was pending at the time of the trial in court.”

      J. P. Blair and A. W. Taylor, for plaintiff in error.

      H. W. Weir and Stewart $ QlarJc, for defendant in error.
   The opinion of the court was delivered, November 6th 1871, by

Sharswood, J.

This case has some appearance of complication and difficulty, as presented by the record and paper-books, but if' we exclude from it all extraneous and immaterial facts, that complication and difficulty will vanish. It may be thus stated: Hatch had made a contract with a number of landowners for what is termed “ timber-leavethat is, that he should have the right to cut timber on their land and manufacture it into staves, he paying a certain sum per thousand for the timber of the staves so manufactured ; but the staves were not to be removed from the land until they were paid for. He had accordingly cut and manufactured a considerable number, which were remaining on the land, unpaid for, in whole or in part. Hatch then contracted with Dun-ham in writing to deliver to him one hundred and twenty-five thousand shock staves at as early a period as possible, and not to exceed one year from the date of the agreement, which was October 18th 1866. This certainly was not an executed sale of any particular staves, but an executory agreement only, which might have been performed on his part by the delivery of any such staves, whether those now in question or others. But the agreement proceeded further to release and give over to Dunham all his (Hatch’s) interest of, in or to all or any timber or timber-leave which the said' Hatch may have or hold. It would rather seem that this did not comprehend timber already manufactured into staves, but was intended as an assignment of his interest in his contracts with the landholders for the privilege of cutting timber to be manufactured into staves, and of such as was cut but not yet manufactured. It is true, that Hatch might by parol have transferred his interest in the staves already manufactured to Dunham. There is some evidence, though slight, of such an agreement in the testimony of William Caldwell. “ Mr. Hatch said he could not get the staves hauled, and for Mr. Kellar (Dun-ham’s agent) to go on and get them.” It is highly probable that there was such an arrangement in order to fulfil, in part at least, his contract for the delivery of one hundred and twenty-five 'thousand staves, for which he had been paid in full. But what passed by that transfer to Dunham ? Not the possession or right of possession, for Hatch had it not himself to transfer. The possession and the right of possession were in the landowners until they were paid for the timber-leave. All that passed to ' Dunham was the right upon payment of the timber-leave to tak¿ the possession. No actual delivery of possession by Hatch to Dunham was necessary to make the transfer good as against Hatch’s creditors, under the cases of Linton v. Butz, 7 Barr 89, and Pier v. Duff, 13 P. F. Smith 59. Where the vendor himself has not the possession of the chattel, or the right of possession, it is clear that he cannot be required to deliver it. At the time of the levy by the sheriff on these staves, as the property of Hatch, Dunham had not the possession or the right of possession, and could not maintain an action of trespass for taking them: Fitler v. Shotwell, 7 W. & S. 14; Ward v. Taylor, 1 Barr 238; Lewis v. Carsaw, 3 Harris 31; Weitzel v. Marr, 10 Wright 463. Indeed, the contention that Dunham had any right to maintain this action, founded on the transfer of Hatch, was not pressed in the argument before us; but the able and ingenious counsel for the defendants in error relied principally upon the ground that there was evidence of a subsequent transfer by the landowners to him. They might, indeed, assign their' right of possession with their right to receive the unpaid timber-leave from Hatch without payment, if they chose. This would have given him the right of possession, and if he had a previous transfer of Hatch’s interest, the full property. But after looking carefully through the record, I can find no evidence of any such transfer by them by which they waived their right of possession until paid. Even as to McCartney, it was only as to ten or eleven thousand staves which were removed before the levy, and not comprehended in it. As to the residue, the witness stated distinctly that the purchase^at sheriff’s sale paid for the timber-leave. So as to the other landowners ; they all testified that the balance due them had been either paid or settled by the sheriff’s vendee. Indeed it would rather seem to have been considered that what was sold by the sheriff was merely the right, title and interest of Hatch, and had his return conformed thereto, Dunham could have had no shadow of title in any aspect of the case, to have maintained an action of trespass against him. As it was, the right to that action was in the landowners, if in point of fact the goods were taken out of their possession and delivered to the sheriff’s vendee without paying their claims.

The learned judge below, as well in his answers to the points presented to him, as in his charge, recognised these principles. But the error which runs through the whole was in submitting to the jury the question whether there had been a delivery of possession of the staves either by Hatch or the landowners to Dun-ham. Of this there was no evidence, that we can discover. The jury were instructed in the answer to the 3d point of the plaintiff, “ that merely looking at them would not be such possession,” which was certainly true; but in affirming the plaintiff’s 5th point they were in effect told that the plaintiff might take possession “ by counting.” Tomb certainly does testify that as the agent of. Dunham he went on the land and counted the staves. But that was no evidence of possession — the actual possession and the right of possession being at that very time in the owners of the land upon which they were “ cobbed” or piled.

We think there is nothing in the 5th assignment of error. It is true, that the record shows that a rule to arbitrate was entered by the plaintiff and arbitrators chosen. After this, however, the defendant was ruled to plead, and pleaded “ not guilty,” thereby admitting the case to be in court. But clearly, after going to trial without raising that objection, the plaintiff in error waived it, and cannot be heard here to complain.

Judgment reversed, and venire facias de novo awarded.


text:
    Roshi’s Appeal.
    1. A religious society, incorporated or not, is but a trustee of a charity and a court of equity will prevent the diversion of property held in trust.
    2. A church endowed in connection with an ecclesiastical organization, or in subordination to it, cannot unite with another organization or become independent.
    3. The title to the church property of a divided congregation is in that part which is acting according to its own laws; and the right is to be determined by the ecclesiastical laws, &c., which were accepted among them before the suit began.
    4. Those not conforming to their laws may form another connection or become independent, but must abandon all claim to thq property.
    5. A portion of a church declared independence of their ecclesiastical judicatory ; the judicatory declared the offices of their elders and deacons vacant, and ordered the election of others for the church. Having thrown off the jurisdiction of the judicatory, they were not entitled to notice of the election.
    October 19th 1871.
    Before Thompson, C. J., Read, Agnew, Shakswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Crawford county: In Equity: No. 144, to October and November Term 1870.
    On the 28th of July 1869, Andrew Koehler, Henry Roshi, Henry Shaffer, Conrad Reitz and John Kramer, filed a bill against Peter Roshi, Adam Hill, Jacob Baner, Adam Gundaker and Robert Koehler. The bill set out:
    1 and 2. In 1836, Thomas Astley conveyed to Rev. P. Zaiser, a minister of the German Reformed Church, and Peter Stein and other members of that church, an acre of land in Greenwood township, Crawford county, for the use of “ The German Reformed Church and congregation of Greenwood townshipthe grantees erected on the lot a house of worship, which was “ consecrated for religious service in accordance to the order, discipline and faith of the German Reformed Church of the United States.” In 1854 the building was taken down and a new one erected on the same ground, which was set apart in the same manner and for the same uses.
    3. The church had been served until about two years since by /ministers of the German Reformed Church; it had always been I a member of the Classis and Synod of the German Reformed Church of the United States, and in many instances had been supported by the treasury of the church.

      4. The respondents and others in 1868, assumed to act as elders, deacons and' trustees of the church, without proper authority, and took possession of the property above named, and contrary to the “ constitution, order and discipline ” of the church, placed in the ministerial office, Robert Koehler, one of the respondents, who was not a member of good standing in the German Reformed Church, was not legally elected or installed, and on account of his immoral conduct, was unfit for the ministerial position, and the respondents closed the house of worship against regular German Reformed ministers sent by authority of the church, &c.
    5. Upon complaint, St. Paul’s Classis, the proper ecclesiastical court, resolved that the German Reformed congregation of Greenwood is a member of the German Reformed Church of the United States; that St. Paul’s Classis has jurisdiction over the congregation, and any one not acknowledging this jurisdiction cannot be an officer or member of the congregation; that the officers, elders and deacons in the congregation be declared vacant; that the members who adhere to the faith, doctrine and discipline of the German Reformed Church in the United States, be required to meet, on proper notice, on or before July 15th 1869, and elect elders and deacons and trustees for the congregation.
    6 and 7. At an election held in pursuance of these resolutions ; Andrew Koehler, Henry Roshi, John Kramer and Conrad Reitz were elected elders and deacons, “ and by virtue thereof, are the proper consistory and board of trustees of said church,” &c., and were duly installed by a minister of the German Reformed Church.
    8. On the 10th and 11th of July complainants took possession of the church,and lot of the German Reformed Church, Greenwood, and used the same “ for religious services in accordance with the faith, order and discipline of the German Reformed Church.”
    9. and 10. The respondent afterwards took possession of the church property, and used it in a manner contrary to the authority of the church, and threatened the complainants and their pastor, a regular German Reformed minister, sent by the authority of the church, with violence should they enter the building for the purpose of worship in accordance with the order of the church, and the complainants were thus debarred from the execution of their duties and from using their church property in accordance with the orders of the German Reformed Church, and the design of the original founders.
    11. The respondents declared that they are an independent body, not subject to the jurisdiction of St. Paul’s Classis, the Synod of the German Reformed Church, or’any other ecclesiastical body.
    12. The action of respondents in placing in the ministerial office of the church, a man loose from the restrictions on regular ministers by ecclesiastical courts, produced a demoralizing influence in the neighborhood, and if the respondents should not be restrained irreparable injury will be done.
    13. The complainants have no remedy at'law.
    The prayers were that the respondents might be declared trespassers and intruders, and that an injunction be granted restraining the defendants and any one under them from interfering which the said church property; and for general relief.
    The respondents’ answer admitted the averments of the 1st, 2d and 3d paragraphs of the bill, except that the church was attached to the German Reformed Church of the United States, and supported from its treasury, which they denied; and they averred that the church and congregation from its origin had been independent, electing its own ministers, elders, deacons and trustees, and that no classis or synod of the German Reformed Church, or any other church, had any control or jurisdiction over said church, as appeared by their - constitution and by-laws; they denied the 4th paragraph, and averred that they had been elected to their offices and duly installed in accordance with their constitution and by-laws, and they did the acts complained of in the paragraph in the legitimate exercise of their offices; that Rev. Robert Koehler was properly elected pastor of the church, w'as a minister of the church in good standing, not defective in moral character, and was fitted for the ministerial office; they were ignorant as to the matters of the 5th, 6th, 7th and 8th paragraphs, but if true, they averred that St. Paul’s Classis had no authority to declare their offices vacant, and all that had been done in pursuance of those matters were null and void; they averred that they peaceably repossessed themselves of the house and lot, in strict conformity with their rights and duties as officers of the church, had never used them contrary to the authority of the church, but always in conformity with it; they denied that the plaintiffs were officers, as alleged in the 9th paragraph; they admitted the 11th paragraph, and denied the 12th and 13th, averring that the plaintiffs had a remedy at law.
    A replication was filed, and G. W. Hecker, Esq., appointed examiner and master.
    The master reported that the congregation had been organized in 1835, by the Rev. Philip Zaiser, as minister of the German Reformed Church in the United States, by the authority of the synod, who upon his report accepted it as a member of that church, and the lot was conveyed for their use, as set out in the bill. St. Paul’s Classis was formed in 1861, and the church was represented in it by a lay delegate in each of the years from 1861 to 1867 inclusive. On the 1st of January 1868, Peter Roshi, Adam Hill, Jacob Bauer and Adam Gundaker were elected elders and deacons; and then Rev. Robert Koehler took charge of the congregation as pastor and the congregation soon after divided into about equal parts. On the 21st of January 1869, complaint was made to two of the elders, charging Mr. Koehler with immoral conduct and demanding an investigation ; the investigation was denied. Complaint against this action was made to St. Paul’s Classis, who appointed a committee to investigate the matter and report such action as might be proper to the next annual meeting of the Classis.
    The committee, amongst other things reported, that the parties in possession denied the authority of the Classis, and were not served by one of her ministers and disregarded the rules of the Reformed Church; that those acting with the complainants were a majority of the original congregation and were faithful to the authority of the church, and had been imposed on by men who improperly style themselves the consistory of Greenwood Church, and who had forced on the congregation R. Koehler as a minister, without submitting to an election of the people; the report of the committee set out other failures of duty by the consistory; and further, that they allowed R. Koehler to preach whilst under a charge for immoral conduct, and the committee had ascertained the charge to be well founded; although the consistory refused to take notice of the complaint, all the consistory but one had been acting without having been regularly installed. Under all the facts the committee concluded that the Greenwood Church had no properly constituted consistory, and that the offices of elders and deacons were vacant. They further reported that the congregation had been founded as “ a German Reformed Congregation subject to the authority of the German Reformed Church,” and in that capacity acquired the property; that the church had been served for about twenty-eight years, except three or four years of trouble in the church, by German Reformed ministers; the church- had been on her own application, united by the Classis with other congregations to make a change; had participated- during that time in the election of delegates to Classis and by-numerous other-acts shown that she regarded herself “a member of our ohurch,”' and it would be gross neglect in the Classis to permit its destruction “ as one of our body by non-interference and silence against the machinations of secession and infidelity.” The committee-recommended the passage of resolutions by the Classis as follows::
    1. That the German Reformed Congregation at Greenwood, was a member of the German Reformed Church in the United States, that St. Paul’s Classis had jurisdiction of the congregation, and that any one not acknowledging that jurisdiction could not be an officer or member of the congregation.
    2. That the offices of elders and deacons of the church be declared vacant.
    3. That the members adhering to the faith, discipline and doctrine of the German Reformed Church, be required to meet, on proper notice, on or before the 15th day of July 1869, to elect elders and deacons, to act as a consistory and a board of trustees in the congregation.
    These resolutions were adopted by the Classis, June 7th 1869, and on the 22d of the same month the complainants were elected elders and deacons.
    The congregation was part of the Watson Run charge; Rev. Frederick Wahl was installed pastor over the two congregations in May 1869, and preached to the Greenwood congregation on three Sundays, the last being on the 5th of September 1869, since when the defendants took possession of the church and hold it against the plaintiffs.
    The master decided “ that this church is a member of the German Reformed Church of the United States and of St. Paul’s Classis, and subject to the ecclesiastical jurisdiction of said classis. This congregation became divided in 1868; the division originated in the selection of Rev. Robert Koehler as minister or pastor of the church. The plaintiffs claimed that Rev. Koehler was unfit for the place assigned him, and made complaint against him to the defendants, the elders and deacons of the church, who had been elected January 1st 1868, charging Koehler with immoral conduct, and demanding an investigation of the charge. This demand not being complied with, St. Paul’s Classis, on complaint made to them, instituted the inquiry, and sitting as an ecclesiastical court, decided and so recorded on their minutes, at their annual meeting held at Brady’s Bend, Penna.j January 7th 1869, that said classis have ecclesiastical jurisdiction of this church, and declared the offices held by the defendants vacant. This decision is binding upon our courts. * * *
    “ As to the title of the property and the right to its use, which seems to be the important point in dispute between these parties, I can come to no other conclusion than that it belongs to the German Reformed congregation of Greenwood township (now Union township), to those who approve of the doctrines professed and the forms of worship in practice in the government of the church with which it was connected at the time the trust was declared, and is so whether they be a minority or majority of the congregation.” '
    After exceptions by the defendants, the court (Vincent, J.) confirmed the report, and decreed:—

      “ That the ownership and control of said property and house of worship is in the complainants as trustees thereof and in the congregation which they represent, and that possession thereof be delivered to them as such trustees and representatives, and that respondents be perpetually enjoined from interfering therewith in any other mode or manner than that permitted by the rules, regulations and discipline of the German Reformed Church of the United States.”
    The defendants appealed to the Supreme Court, and assigned the decree for error.
    C. R. Marsh and Douglass & McCoy, for appellants.
    It is not an implied condition of the grant, in trust for the use of the German Reformed Church and congregation of Greenwood, that the church shall remain connected with any particular church judicatory : Presbyterian Congregation v. Johnston, 1 W. & S. 9; Lutheran Congregation of Pine Hill v. St. Michael’s Evangelical Church, 12 Wright 20. The appellees had a remedy at law, and a court of equity will not interfere: Gallagher v. The Fayette Railroad Company, 2 Id. 102; Updegraff v. Crans, 11 Id. 103; Patterson v. Lane, 11 Casey 275; Rife v. Geyer, 9 P. Smith 393; Phipps v. Jones, 8 Harris 260.

      C. M. Brush and S. M. Pettis, for appellants,
    cited Kisor’s Appeal, 12 P. F. Smith 428; Gump’s Appeal, 15 Id. 476; Schnorr’s Appeal, 17 Id. 138.
   The opinion of the court was delivered, October 30th 1871, by

Sharswood, J.

The question whether, under the equity powers conferred by the Act of Assembly of June 16th 1836, upon the Courts of Common Pleas, those courts have jurisdiction of such a cause of complaint as is set forth in the bill in this case, has been considered and settled by this court in Kisor’s Appeal, 12 P. F. Smith 428. It had often before been assumed and exercised without dispute, and with the implied recognition of this court. If a private partnership or a corporation falls into confusion affecting all its members, there is no adequate remedy at law —no better remedy than a proceeding in equity to settle the rights of the parties and to stay by injunction the inconvenience and disturbance caused by opposite factions pretending to act as the society: Kerr v. Trego, 11 Wright 295. “ It is the very remedy,” said Chief Justice Lowrie, usually adopted i.when churches divide into parties, and we applied it in three such cases in the last year. Therein we decided directly on the rights of property, because that became the aim.” Indeed, a religious society, incorporated or unincorporated, is but the trustee of a charity, and it has always been peculiarly within the province and duty of a court of equity to prevent the diversion of property, held in trust for such purposes, from the object and design of the original endowment. Hence, it is not merely because the courts of Common Pleas are invested' with the jurisdiction and powers of a court of chancery, so far as relates to “ the supervision and control of unincorporated societies,” as well as corporations, but also as to “ the control of trusts,” and “ the care of trust property,” that the jurisdiction of the court below in this case must now be considered as beyond all question.

The principle which governs in all such cases is old and well-settled, and has been frequently asserted by' this court. Whenever a church or religious society has been originally endowed in connection with, or subordination to, some ecclesiastical organization and form of church government, it can no more unite with some other oi’ganization, or become independent, than it can reJnounce its faith or doctrine, and adopt others. Indeed, in many churches, its ecclesiasticism or form of church government is an important if not a fundamental point of doctrine. It is based, in their view, upon a scriptural model or teaching. Thus government by diocesan bishops, and the three orders of the ministry —bishops, priests and deacons — is part of the doctrine as well as the order of the Established Church of England, and her daughter, the Episcopal Church of this country. On the other hand, the Established Church of Scotland, and, for the most part, the reformed churches of the continent of Europe, and all those who have derived their succession from them, hold to the doctrine of the perfect parity of ministers, and government by Presbyteries or Classes and Synods. “I approve,” said Mr. Justice Burnside, in App v. Lutheran Congregation, 6 Barr 201, “of the doctrine Ijof Lord Eldon, in the case of the Attorney-General v. Pearson, 3 Meriv. 400, that it is the duty of the court to decide in favor of those, whether a minority or majority of the congregation, who are arlbermg-tnAhe doctrine professed by the congregation, and the form of worship in practice, as also in favor of the government of the church in operation, with which it was connected at the time the trust was declared McGinnis v. Watson, 5 Wright 9; Sutter v. The Trustees of the First Reformed Dutch Church, 6 Id. 503. “ The title to the church property of a divided congregation is in that part of it which is acting in harmony with its own law, and the ecclesiastical laws, usages, customs and principles which were accepted among them before the dispute began, are the standard for determining which party is right:” Id.

There is no difficulty in the application of this principle to the facts of this case as reported by the master, and in which we think, with the court below, that he was fully sustained by the evidence before him. The church now the subject of controversy, was organized in 1835 by the Rev. Philip Zaiser, a minister of the German Reformed Church of the United States, acting by the authority of the synod of that church. His action was reported to the synod, and approved by that body. The church was formally accepted as one of its constituent members. In 1836 the lot upon which the present church building now stands was conveyed by Thomas Astley to Peter Stein, Philip Huber and John Roberts, trustees of the German Reformed Church,” in trust for the use of the said German Reformed Church.” The German Reformed Church of the United States was at that time a distinct ecclesiastical organization, not merely having adopted the Heidelburg Catechism as the confession of its faith, but having a written constitution, a settled form of government by ecclesiastical judicatories, four in number, in regular gradation, from the lowest to the highest, having cognisance of ecclesiastical matters, though their power of course was wholly spiritual. First, the Consistory, the primary governing body of each church or congregation, composed of the minister or ministers of that church, together with the elders and deacons as the representatives of the people. Second, the Classis, consisting of all the ministers and delegated elders of the congregations within a certain designated territorial district. Third, a Synod, consisting of the ministers and lay delegates of the several classes embraced within its prescribed geographical limits. And, fourth, the General Synod, the highest judicatory of the church, and the court of last resort, composed of ministerial and lay delegates elected by all the classes respectively, according to a prescribed ratio of representation. By organizing as a German Reformed Church, the society in question, ex vi termini, agreed to submit its spiritual regulation to this constitution and form of government. It agreed, especially, that the classis within whose bounds it should happen to he should decide' all cases “ respecting either ministers or congregations which may arise within their jurisdiction:” Const, of German Reformed Church, Art. 51; and “ that before a call is accepted by a preacher it shall be submitted to synod or classis:” Id., Art. 52. They could settle no preacher as their minister except with the approbation of the classis or synod to whose jurisdiction they .were subject. If, therefore, in 1854, this congregation did adopt for themselves a constitution, by which they attempted to become independent of all ecclesiastical authority, it was ultra vires. -They might indeed, as individuals, have formed any kind of church they pleased, independent or connected with any other ecclesiastical organization. The land was before them, but then they must cease to be a German Reformed Church, and abandon all claim of right to hold any of the property of that church. It was a part of their religious liberty, guaranteed to them by the Constitution of the Commonwealth, to separate -from their former association, if they became dissatisfied with its faith or order, and build for themselves another church and organize on other principles ; but it was no part of that liberty to appropriate to themselves, in their new capacity, property which had been solemnly consecrated to other uses. But in fact the constitution of 1854 did not pretend to throw off allegiance to the judicatories of the church, though some of its provisions may have been inconsistent with the general constitution. After its adoption for many years —up to the period when this controversy arose — it continued to be served by ministers of the German Reformed Church approved by the classis. It was represented by an elder from time to time in that body. The classis to which it was attached held a meeting or meetings within its walls. It made contributions in money to defray the expenses of the classis. Its minister’s salary was on one occasion supplemented from the general missionary funds of the church; and in 1863, on the occasion of the third centennial anniversary of the foundation of the German Reformed Church, it held a religious festival in common with all its sister churches of the same communion. In view of these, and many other facts of tne same nature, disclosed by the testimony, it ought not now to be denied that the church in question was and continued to be a German Reformed Church, subject to the spiritual jurisdiction of the proper judicatories of that church.

The dispute which has given rise to this proceeding began with a certain portion, we may admit a majority, of the congregation undertaking to call and settle a minister, without having his call submitted to and approved by the classis or synod. That it was entirely within the scope of the proper jurisdiction of the classis of St. Paul, within whose bounds this church is situated, to institute an investigation and act upon its own motion in such circumstances, is abundantly clear. By art. 51 of the constitution the classis are to take “ cognisance of-whatever concerns the welfare of the congregation^committed to their care, and which does not come within the power of a consistory.” When the consistory of a particular congregation undertakes to declare itself independent of the classis, and to act in defiance of the general and fundamental law of the church, it is not only the right but the duty of the classis to declare that they no longer hold the offices to which they were elected, and to provide for the election of another consistory by those who still adhere to the order and discipline of the church. It is an emergency which can be met and provided for in no other way. Nor have the defendants in this bill any right to take exception to the regularity of the proceeding, or to complain that they had no notice, and were condemned unheard. They disclaimed the jurisdiction of the classis. In their answer to this bill they continue to disclaim it. They utterly deny that this church has ever been a member of or connected with the classis or synod of the German Reformed Church. They distinctly admit the charge of the bill that the respondents do aver and declare themselves “ to be an independent body and not subjeect to the ecclesiastical jurisdiction of St. Paul’s Classis, the synod of the German Reformed Church, or any other ecclesiastical body.” By their own act they are strangers and aliens, and had no right to notice of any proceedings affecting the church. The whole case is then reduced to this one simple question, whether being such an independent body as they declare themselves to be, they have any right or title to the lot, with the building thereon erected, which as we have seen was conveyed “ in trust for the German Reformed Church,” and can withhold the possession and enjoyment of it from those who, under the orders of the proper judicatory, have been chosen to represent that portion of the congregation who adhere to the faith, order, government and discipline of their church. To this question there can be but one answer in law, equity, good conscience, justice as well to the living as the dead, and according to the precepts of that Divine master who has taught us to do unto others as we would that others should do unto us.

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