author: Mr. Justice Mercur

text:
    French versus Commonwealth ex rel. Zimmerman.
    1. Sect. 22, art. 5 of the Constitution, requiring the erection of separate Orphans’ Courts in counties containing more than 150,000 inhabitants, and constituting the register clerk of such court, is designed to establish a new tribunal for the administration of that branch of the law and to provide for its new officials.
    2. It withholds from the former clerk of an Orphans’ Court the newly-created powers and duties pertaining to a clerk of the new court.
    3. The Act of May 19th 1874, providing for the erection of a separate Orphans’ Court in Luzerne county, &c., substantially re-enacts the constitutional requirement.
    4. The register of wills in such counties had no such vested right to his office as to preclude the people from abolishing the office or abridging the term by the New Constitution.
    5. A register of wills of Luzerne county was commissioned in 1872 for three years; in 1873 a clerk of the Orphans’ Court was commissioned for three years ; in 1874 a separate Orphans’ Court was established. Reid, that under the New Constitution, the register was clerk of the Orphans’ Court.
    6. The former Orphans’ Court having been abolished by the Constitution, the powers and duties of the clerk fell with it.
    May 31st 1875.
    At Harrisburg. Before Ag-new, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1875, No. 180.
    This was a quo warranto, issued out of the Court of Common Pleas of Luzerne county, January 5th 1875, on the relation of Michael Zimmerman against S. L. French, to show by what warrant the respondent exercised the office of clerk of the Orphans’ Court of that county, to which the relator averred he had been duly elected and commissioned.
    The answer of the respondent was that he had been duly elected register of wills of Luzerne county on the 2d Tuesday of October ■1872, and commissioned to hold that office until the 1st day of December 1875, and in pursuance thereof he had been duly qualified, and entered upon the duties of that office, and continued to exercise the same ; that in pursuance of an Act of Assembly of ' May 19th 1874, sect. 5, Parnph. L. 209, there was organized in Luzerne county a separate court, to be called the “ Orphans’ Court of Luzerne county,” that by virtue of that act the register of wills became clerk of that court; that said act was enacted under the mandate of sect. 22, art. 5, of the Constitution of Pennsylvania; that by virtue of his election and commission aforesaid and the laws and constitution of this Commonwealth, and in obedience to a decree of the said Orphans’ Court of January 4th 1875, the respondent entered upon his duties as clerk of said Orphans’ Court, and continues to exercise said office.
    The relator demurred to the answer.
    The 22d sect, of art. 5 of the Constitution, directs the legislature “ in every county wherein the population shall exceed 150,000, to establish a separate Orphans’ Court, and that in any county in which a separate Orphans’ Court shall be established, the register of wills shall be clerk of said court.”
    By sect. 26th of the schedule, “ All persons in office in this Commonwealth at the time of the adoption of this constitution, and at the first election under it, shall hold their respective offices until the term for which they have been elected or appointed shall expire, and until their successors shall be duly qualified, unless otherwise provided in this constitution.”
    The Court of Common Pleas (Harding, P. J.) entered judgment of ouster against the defendant; this was assigned for error on the removal of the record to the Supreme Court by writ of error.

      H. M. Hoyt, for plaintiff in error.
    The relator had no such vested right to the full term of his office as “ clerk of the courts,” that the people, in convention assembled, could not either abolish his term or his office: Cooley’s Constitutional Limitations 276; Butler v. Pennsylvania, 10 Howard 402; Commonwealth v. Bacon, 6 S. & R. 322; Commonwealth v. Mann, 5 W. & S. 418 ; Barker v. Pittsburg, 4 Barr 49. Is either the term or the office abolished by the new constitution, and the Act of 1874, in pursuance of it ? He then cited and discussed the sections of the constitution above referred to.

      J. H. Campbell and C. JB. Kulp, for defendant in error,
    also cited and discussed the same sections of tho constitution. When the constitution intends to annul an existing law, it expresses the intention in unambiguous language: O’Mara v. Commonwealth, 25 P. F. Smith 424; Farmers’ & Mechanics’ Bank v. Smith, 3 S. & R. 69 ; Monongahela Nav. Co. v. Coon, 6 W. & S. 101.
   Mr. Justice Mercur

delivered the opinion of the court, June 8th 1875.

Article 5, sect. 22, of the constitution declares, “ in every county wherein the populatian shall exceed one hundred and fifty thousand, the General Assembly shall, and in any other county may, establish a separate Orphans’ Court, to consist of one or more judges who shall be learned in the law, which court shall exercise all the jurisdiction and powers now vested in, or which may hereafter be conferred upon, the Orphans’ Courts, and thereupon the jurisdiction of the judges of the Court of Common Pleas within such county, in Orphans’ Court proceedings, shall cease and determine. In any county in which a separate Orphans’ Court shall be established, the register of wills shall be clerk of such court, and subject to its directions in all matters pertaining to his office; he may appoint assistant clerks, but only with the consent and approval of said court. All accounts filed with him as register or as clerk of the said separate Orphans’ Court shall be audited by the court without expense to parties, except where all parties in interest in a pending proceeding shall nominate an auditor, whom the court may, in its discretion, appoint. In every county Orphans’ Courts shall possess all the powers and jurisdiction of a Register’s Court, and separate Registers’ Courts are hereby abolished.”

Thus this section provides for the erection of a new court; when erected all jurisdiction in Orphans’ Court proceedings is taken from the judges of the Court of Common Pleas and vested in this new court. The former clerk of the Orphans’ Court does not become clerk of the new court, but the register of wills becomes its clerk. It is not the former clerk of the Orphans’ Court that the constitution declares shall be subject to the direction of the new court; but it is the new clerk, the register of wills. It is this now clerk, and not the old one, who is authorized to appoint assistant clerks. There is nothing in the section, either expressed or implied, indicating that the clerk of the former Orphans’ Court should become clerk of the new Orphans’ Court for a single hour. The manifest design was to establish a new tribunal for the administration of that branch of the law, and provide for its new officials. The same section that takes from the judges of the Court of Common Pleas all Orphans’ Court jurisdiction, and from a register of wills all power to sit in a Register’s Court, just as clearly withholds from the former clerk of an Orphans’ Court the newly-created powers and duties appertaining to a clerk of the new court.

Hence the Act of Assembly of the 19th of May 1874, providing for the creation of a separate Orphans’ Court in the counties of Philadelphia, Allegheny and Luzerne, substantially re-enacted the constitutional requirement, and in the 5th section declared that the register of wills in each of said counties “ shall be the clerk of such court.”

It is well established and conceded that the relator had no such vested right in his office as to preclude the people from abolishing the office or abridging his term by the adoption of a new constitution inconsistent therewith. It is contended, however, such was not the intention of the present constitution. In other words, it is claimed that the relator is continued in office until the expiration of the term for which he was elected by the 26th section of the schedule. It declares “ all persons in office in this Commonwealth at the time of the adoption of this constitution, and at the first election under it, shall hold their respective offices until the time for which they have been elected oi' appointed shall expire, and until their successors shall be duly qualified, unless otherwise provided in this constitution.”

The closing language of this section clearly indicates that all persons shall not continue to hold their respective offices until the expiration of the term for which they were elected. The saving power of the schedule extends not to officers where it is “ otherwise provided in the constitution.”

The particular court of which the relator had been elected clerk being abolished, his powers and duties as such clerk necessarily fell wi[h it. The continuance of a clerk to a court, after that court has ceased to exist, would present an anomaly that finds no warrant in the constitution or laws of this Commonwealth. Neither the body of the constitution nor the schedule provides for the continuance of an office after all powers and duties are taken therefrom. So far at least as to give to the new Orphans’ Court another official as its clerk, it is, “otherwise provided in this constitution.”

Hence, if we entertained doubts (which we do not) that the office of the relator was substantially abolished and his term abridged by the constitution, it is very clear that he is not thereby transferred to the new Orphans’'Court, nor authorized to perform the duties appertaining thereto.

The respondent was duly elected and commissioned register of wills in and for the county of Luzerne. He entered on the duties of that office and continued to discharge them.. The learned judge therefore erred in rendering a judgment of ouster against him, and it must be reversed.

Judgment reversed,, and judgment in favor of the defendant, with costs.


source: Caselaw Access Project

author: Chief Justice Agnew

license: Public Domain

text:
    Fritz et al. versus Brandon et al.

    1. Silliman, July 1st 1873, applied for eighteen tracts “ supposed to'be in Berks county,” warrants were placed in hands of Vanderslice, deputy surveyor of Series; he surveyed them in a single block in Northumberland, and returned the surveys July 16th; there was no evidence of acceptance ; a caveat was entered by persons claiming prior surveys as interfered with. In October 1873, Gray, deputy surveyor of Northumberland, having the warrants, located fourteen of the eighteen in a single block, partly on the former locations avoiding the interference: Held, that the presumption -was that Silliman had abandoned the Vanderslice surveys, that they were not accepted, and that new authority had been given by the surveyor general to locate the warrants.
    2. In 1829 Bitler obtained a warrant which was located so as to interfere with three of the fourteen tracts ; the plaintiffs claimed under a tax sale of Bitler’s tract, alleging that the Gray surveys were void: Held, that evidence of patents for other surveys (beside the three) in the block was admissible as showing confirmation of the Gray surveys.
    3. When one person owns all the warrants they may be surveyed in a. single block by exterior lines, leaving the interior lines to be settled by the owner.
    4. A patent cures all irregularities in surveys.
    5. A deputy surveyor’s authority is exhausted by his return, unless there be new authority from the surveyor general or board of property.

      6. The authority of the surveyor general is not exhausted by the return of his deputy, until he accepts the purchase-money.
    7. The Gray surveys having been.accepted and patents issued on some of them acquiesced in for thirty years, the Vanderslice surveys having never been recognised, the presumption is violent that they were abandoned and a new direction given from the surveyor general to Gray.
    8. The acceptance of Gray’s block survey and granting patents on some of the surveys to Silliman and his assigns left the Vanderslice surveys open to appropriation.
    9. The three tracts of the Gray surveys interfered with by Bitler’s were sold for taxes,. July 10th 1844, in the names of the warrantees, to the commissioners ; on the same day the Bitler was sold for taxes, in his name to the commissioners ; on the 16th of July 1849, the commissioners sold the three to Roseberry, and the Bitler to Straub; in September 1849 they delivered the deed to Roseberry; in consequence of dispute, the purchase-money was not paid by Straub until 1854, when his deed was delivered: Held, that the Gray surveys being valid, the sale of the three conveyed the better title.-
    10. Roseberry’s title would prevail also, because he had. first paid the purchase-money and obtained his deed.
    May 31st 1875.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1874, No. 224.
    This was an action of ejectment, commenced April 22d 1863, by Nelson Brandon and Henry Snyder against xindrew Fritz, Henry Fermier, John H. Brown and others, “ for a tract of land in Union township, Schuylkill county (formerly Northumberland county), containing about 200 acres or thereabouts, bounded by lands surveyed to James Smith, Christian Immel, John Klinger and others, being the same tract of land which was owned by Elizabeth Bitler,” &c. Edward J. Silliman and James B. Boylan were afterwards added as plaintiffs.
    The case was tried November 17th 1873, before Pershing, P. J.
    The plaintiffs gave in evidence, warrant dated March 21st 1827, to John Bitler for 100 acres of land, being unimproved, &c., in the township of Union ; survey by G Réber, deputy surveyor, June 22d 1829, for 199 acres 63 perches and allowance; calls to adjoin Casper Thiel on north, James Smith on east, and vacant on south and west; accepted 17th 1829.
    They gave evidence that the title to this survey had passed to Elizabeth and Hannah Bitler, and showed assessments in their name for 1842 and 1843 of 300 acres of unseated land in Union township, from the treasurer’s sales book ; the sale on June 10th 1844, of 300 acres in the name of Elizabeth and Hannah Bitler to the county commissioners. They then gave in evidence under objection and exception, assessments on the same land from 1832 to 1841 inclusive, for the purpose of identifying it with the land sold by the treasurer in 1844; deed Henry Shoemaker, treasurer, to Samuel Medlar and others, county commissioners, dated July 13th 1844 for 300 acres, assessed in the name of Elizabeth and Hannah Bitler. They further gave in evidence from the commissioners, register of unseated land up to 1846, “ 300 acres of land sold as the property of Elizabeth and Hannah Bitler for $6.62” to C. M. Straub at commissioners’ sale, July 16th 1849, for $6, and deed dated August 13th 1849, from Lewis Dreher and others, county commissioners, to C. M. Straub, reciting the treasurer’s deed to the commissioners; deed December 27th 1855, from Straub to Elizabeth Bitler, for 300 acres in Union township, reciting treasurer’s and commissioners’ sales and deeds. Receipt of state treasurer to Nelson Brandon, August 19th 1856, for $73.40 purchase-money, and interest on 199 acres 63 perches of land in Union township, Schuylkill county, surveyed on warrant to John Bitler, and $10 for patent; deed, December 18th 1858, Elizabeth Bitler to Nelson Brandon, “for all her right, title and interest” in all the real estate in Schuylkill county to which she was entitled; deed, dated April 16th 1860, Elizabeth Bitler to Henry Snyder, for one undivided half pax’t of the 199 acres 63 perches of tract adjoining James Smith, Casper Thiel, Christian Immel and John Klinger ; deed, dated April 17th 1860, Nelson Bx’andon to Henry Snydei', for “ all the undivided half of said tract conveyed to him by the said Elizabeth Bitler.”
    They then gave in evidence conveyances since the commencement of the suit, viz., from Snyder to J. B. Boylan for an undivided third of land in controversy, and from Brandon to E. S. Silliman for an undivided sixth of the same land.
    They then, under objection and exception, gave a large amount of evidence for the purpose of identifying the tract sold for taxes, and rested.
    For the defendants; T. R. Bannan, Esq., testified that he had been appointed by the county commissioners to collect money due to the county, amongst others the amount due by Straub for the purchase-money of the Bitler ti’act sold to him by the commissioners, and other claims in favor of the county against him. The bill for these claims was dated November 27th 1854. The deed for the Bitler tract was presented to Straub ; he did not object to taking the deed, but objected to paying the pui-chase-money, because the county owed him money; he paid no money on the bills. The commissioners settled with Straub, and the deed was given to him shortly before Straub’s deed to Elizabeth Bitler December 27th 1855.
    They then gave in evidence the application of James Silliman et al., for eighteen tracts of land, supposed to be in Berks county, filed 1st July 1793, viz.:—
    “ James Silliman, for 400 acres land on north'side of Mahanoy mountain, adjoining or near lands surveyed to Davis Rees, supposed to be in the county of Berks ; Susannah Silliman, for 400 acres, adjoining o’r near land surveyed to Isaac Pearson, and adjoining land this day granted to James Silliman; Henry Thiel, for 400 acres, adjoining land this day granted to Susannah Silliman ; Mary Thiel, for 400 acres, adjoining Henry Thiel; George Rose, for 400 acres, adjoining Mary Thiel; Catharine Rose, for 400 acres, adjoining George Rose; Jacob Kelchner, for 400acres, adjoining Catharine Rose ; Maria Kelchner, for 400 acres, adjoining Jacob Kelchner; John Shomo, for 400 acres, adjoining Maria Kelchner; Ann Maria Shomo, for 400 acres, adjoining Jo'hn Shomo ; Casper Thiel, for 400 acres, adjoining Ann Mary Shomo; Christian Immel, for 400 acres, adjoining Casper Thiel; Christian Troxel, for 400 acres, adjoining Christian Immel; John Klinger, for 400 acres, adjoining Christian Troxel; John Witman, for 400 acres, adjoining John Klinger; Mary Witman, for 400 acres, adjoining John Witman ; William Witman, for 400 acres, adjoining Mary Witman ; Jacob Yeager, for 400 acres, adjoining William Witman. Endorsed, “ Berks county, 1st July 1793. * * * J. Silliman & Co., 18 warrants, 400 acres each, 7200 acres.
    Paid in specie ...... ¿£180
    Fees paid ....... ¿£9
    Receipts delivered with copies.”
    Also, warrants of July 1st 1793, to each of the applicants except John Witman, Mary Witman, William Witman and Jacob Yeager. Surveys on the fourteen warrants on the 21st, 22d, 23d and 24th of October 1793; and certified copy list of accepted returns by William Gray, deputy surveyor of Northumberland county, viz.:—
    1794. March 15. James Silliman . . 381| acres.
    Susannah Silliman 386J “
    Henry Thiel 407J “
    Mary Thiel . 476 “
    George Rose 482 “
    Catharine Rose 464| “
    Jacob Kelchner 377 “ Should be 371
    Maria Kelchner . 439£ “
    John Shomo 377 .“
    Ann Maria Shomo 439£ “
    Casper Thiel 400 “
    Christian Immel . 400 “
    Christian Troxell . 400 “

    John Klinger 400 “ ”
    All the surveys were on the waters of Catawissa creek, and were endorsed:—
    “N. B. Another return on this same warrant made by Henry Vanderslice, deputy surveyor of Berks county, and located in another place.”
    The defendants then offered, patent dated December 10th 1806, to John Myer for the James Silliman tract, to be followed by patents to parties claiming under the warrantees for eleven of the thirteen tracts in the block located by Gray, deputy surveyor, to be followed by evidence that defendants claim under three of the tracts which underlie and with which the Bitler tract interferes.

      The offer was objected to by the plaintiffs, that the James Silliman patent was not to show that the plaintiffs claim title to any portion of the land embraced in it or that it interferes with the Bitler survey.
    The court rejected the offer so far as it related to any patents except those claimed to interfere with the Bitler survey; and sealed a bill of exceptions for the defendants.
    The patents offered in evidence were to John Myer for the James Silliman, the Susanna Silliman, the Henry Thiel, the Mary Thiel, the George Rose, dated December 10th 1806; the Catharine Rose, and the Jacob Kelchner, dated January 13th 1808, to Jacob Trout for the Casper Thiel, January 25th 1813, and to Lewis Reeser for the Christian Troxel, the Christian Immel and the northern half of the John Klinger, January 28th 1865.
    They gave in evidence assessments of 1841, Union township unseated list, for 1841, 1842, 1843, Christian Troxel 400 acres, and sale of same tract to commissioners, June 10th 1844 ; deed, dated and acknowledged July 13th 1844, Henry Shoemaker, treasurer, to S. R. Medlar and others, county commissioners; entry in commissioners’ register of unseated lands, in Union township 1844, 400 acres, sold.as property of Cbi'istian Troxel, and marked “sold to John W. Roseberry, B. Nehff and H. Krebs at commissioners’ sale, July 16th 1849, for $18 purchase-money paid, deed Lewis Dreher and others, commissioners, to Roseberry, &c., delivered September 1st 1849.” Similar entries as to the Christian Immel, John Klinger tracts; also, treasurer’s sale of the Casper Thiel tract, June 9th 1834, to the commissioners; sale by them to B. T. Taylor and J. Clayton ; also, evidence that the title to the Christian Troxel, Christian Immel and the northern half of the John Klinger tract and the Casper Thiel tract vested in John H. Brown. Lease, April 13th 1863, Brown to Henry Eermier, for the above-mentioned tracts, under the Gray surveys, for one year, and renewed from year to year up to the time of trial.
    The defendants then gave in evidence connected draft from Land Office of fourteen surveys, returned by W. Gray, deputy surveyor of Northumberland county; also certified connected draft of seven of the fourteen Gray surveys, with the John Bitler survey of 199 acres 63 perches plotted on it, to show the interference, which appears to be with the Casper Thiel on the north, Christian Troxell on the south and slightly with Christian Immel on the west.
    They gave in evidence, sale of 209 acres in name of John Bitler' in Union township to commissioners, and by them January 23d 1843 to Charles E. Mann ; also, returns of road taxes for 1841, on unseated land in Union township, in the names Casper Thiel, Christian Immel, John Klinger and Christian Troxel, sold to commissioners; the Casper Thiel sold by them February 13th 1843 to B. F. Taylor and 0. E. Mann, and the other three July 16th 1849 to J. W. Roseberry, Benjamin Nehff and Henry Krebbs, and the vesting of the title of the John Bitler to 209 acres, February 23d 1859, in John H. Brown.
    They gave evidence that all the actual distances of the Bitler survey overran the official, so that the content, according to the measurement on the ground, is about 100 acres more than appears on the official survey ; that the John Bitler was principally ou the Christian Troxel, that it interfered with the Christian Itnmel, 8 acres 71 perches, with the Casper Thiel 26 acres 46 perches ; part of it, northwest of the Christian Troxel, 138 square perches is on the John Shomo. The evidence was that the tracts surveyed by Gray were never in Berks county, they were in Northumberland county.
    In rebuttal, the plaintiffs, under objection and exception, gave in evidence copies of surveys made by Henry Vanderslice, deputy surveyor of Berks county, on the 5th, 6th, 7th, 8th, 9th, 10th and 11th of July 1793, on the eighteen warrants granted July 1st 1793, on the application of James Silliman and others above stated, with evidence of their location on the ground, viz. : certificate of the return of these surveys July 16th 1793; of the fourteen of the surveys, being those given in evidence by the defendants as having been made by William Gray, deputy surveyor of Northumberland; there is endoi’scd on eleven of them: “Another return on this same warrant made by William Gray, deputy surveyor of Northumberland county;” on one of them “N; B. A survey ret’d on the within mentioned warrant in Northumberland county ;” on two of them, “ N. B. Survey executed and patented on the within mentioned warrant in Northumberland county ;” also, a connected draft of seventeen of the above tracts, including the fourteen surveyed by Gray; caveat, dated July l8th 1793, John Kunkle and Aaron Bowen against granting patents to the eighteen warrantees for land situate in Oatawissa valley, Northumberland or Berks county, granted them by warrants dated July 1st 1793, the caveators alleging that they had warrants dated May 19th 1798, for part of the same land; certificate of surveyor general, dated November 26th 1873, that no action was taken under the caveat, and that no citation issued. There was other evidence of the location of those warrants.
    The evidence taken in the case was very voluminous; what is above given, with the opinion of the Supreme Court, it is supposed will sufficiently elucidate the questions decided in that court.
    Amongst other things the court charged :—
    “ The conclusion to which we have come is, that the surveys made by Gray were upon exhausted warrants, that his attempt to locate them a second time was an unofficial act and void, and that the lands included in his surveys not previously appropriated belonged to the Commonwealth, and were left open for future appropriations. This sweeps away many of the questions raised upon the trial, and upon which we have been requested to instruct 7 ov.”

    The following were points of the plaintiffs which were affirmed:
    4. The tax sales in 1844 by the treasurer to the commissioners could pass but one good title at best to the land in controversy, and that the sales under the assessments in the names of Christian Immel and Christian Troxel passed no title to the land in controversy, there being no title in either the said Immel or Troxel to the land in controversy, or any portion thereof, and that if the jury believe the assessments of 300 acres in the names of Hannah and Elizabeth Bitler applied to the land in controversy, the sale under these assessments passed the only good title to the commissioners, and the only one the commissioners could sell, and that as it was this title that was sold to C. M. Straub he acquired a good title by his purchase from the county commissioners.
    5. The survey made by Gray, deputy surveyor of Northumberland county, after the date of the warrant and survey and return by Vanderslice, deputy surveyor of Berks county, was wholly void and of no more effect to establish title than any lines of a mere trespasser.
    9. The surveys of Christian Troxel, Christian Immel and John Klinger, purporting to have been made by Gray, deputy surveyor of Northumberland county, after the date of the surveys and returns thereof, by Vanderslice, deputy surveyor of Berks county, upon the warrants of July 1st 1793, were wholly void and did not give the warrantees any rights either against the state or any other claimant of the tract covered by said Gray surveys, and consequently the assessment of the tracts called for by such Gray surveys and tax sales thereof, were also void for want of jurisdiction, for until appropriation of the land the commissioners had no right to assess it, and therefore no title based on a sale thereof for taxes on the assessment of these lands in 1841, ’42 and ’43, in the names of Troxel, Immel or Klinger, will pass any title to the purchaser as against an assessment of the land in controversy in the names of Hannah and Elizabeth Bitler, and a sale thereof for taxes on the same day as the sales based on the assessment in the names of Troxel, Immel or Klinger.
    10. The sale by the county commissioners of the 800 acres assessed to Hannah* and Elizabeth Bitler, to C. M. Straub, the conditions of the sale at the time by Straub, and the execution and acknowedgment of the deed to him by the commissioners, on the 13th August 1849, and the payment of the purchase-money, and subsequent delivery of the deed to him, vested title in him from the day of sale.
    The following point of the defendants was denied :—
    ■ 9. The plaintiffs making claim under the John Bitler survey of 1829, and having shown no title or interest in any of the older surveys with which it interferes as made by either Gray or Vanderslice in 1763, and the surveys by William Gray, deputy surveyor of Northumberland county, of the Klinger, Troxel and Immel in 1793, having been accepted by the Commonwealth on the 15th March 1794, and the Casper Thiel having been patented in 1813, and the Klinger, Troxel and Immel subsequently, such acceptance of the aforesaid surveys made by Gray was a valid and legal appropriation of the land against every one but the Commonwealth, and as the Commonwealth has never objected, but on the other hand has accepted and by patents confirmed said surveys, and the surveys under which the defendants claim having been made and returned more than twenty-one years prior to the survey of the John Bitler in 1829, the presumption of law is under the facts in evidence in this case conclusive of the fact that the title was legal and perfect to the Klinger, Troxel, Immel and Thiel surveys made by William Gray as against the junior survey of the John Bitler in 1829, and the defendants are entitled to a verdict.
    The verdict was for the plaintiffs. The defendants took a writ of error, and assigned sixty-one errors, amongst others.
    9. Rejecting the patents to parties claiming under the warrantees for eleven of the thirteen tracts in the block of surveys located by Gray, to be followed by evidence that defendants claim under three of said warrants which underlie and with which the John Bitler survey interferes.
    13. Receiving in evidence copies of surveys made by Henry Yanderslice, deputy surveyor of Berks county in July 1793, under the eighteen warrants granted, on the application of James Silliman, with evidence of their location on the ground, &c., for the purpose of showing that the Gray surveys were on exhausted warrants.
    26. The part of the charge given above.
    33, 34. The answers to the plaintiffs’ 4th and 5th points.
    38, 39. The answers to the plaintiffs’ 9th and 10th points.
    53. The answer to defendants’ 9th point.

      J. Hyon and J. W. Hyon (with whom was 6r. H. Kaercher), for plaintiffs in error.
    Yanderslice’s acts, being out of his district, were without legal authority and void: Hubly v. Chew, 2 Sm. Laws 257 ; his surveys did not exhaust the authprity of the warrants : Shields v. Buchannan, 2 Yeates 219 ; Funston v. McMahon, Id. 245; Goddard v. Gloninger, 5 Watts 209; McNamara v. Shorb, 2 Id. 288. A deputy surveyor cannot go beyond the lines of his district: Harris v. Monks, 2 S. & R. 557. A chamber survey, after twenty-one years without exception to it, is presumed to be regularly made: Bellas v. Levan, 4 Watts 294. After a re-. turn for more than twenty-one years, everything will be presumed to be rightly done : Caul v. Spring, 2 Watts 300; Collins v. Barclay, 7 Barr 67; Nieman v. Ward, 1 W. & S. 68.

      O. P. Bechtel and F. W. Hughes (with whom were16r. F. Farquhar and T. R. Barman), for defendants in error.
    Although the Vanderslice surveys may have been void, yet Gray could not make another survey without new authority : Gratz v. Beates, 9 Wright 102 ; Hughes v. Stevens, 7 Id. 197 ; Improvement Co. v. Numson, 14 Wall. 442. The caveat rebutted the presumption of a special order of the surveyor general to Gray; the effect of the caveat was to take away his power to issue a new order : Harris v. Monks, 2 S. & R. 561 ; Hubley v. White, 2 Yeates 140 ; Hunter v. Meason, 4 Id. 108; Shoenberger v. Baker, 10 Harris 398.
   Chief Justice Agnew

delivered the opinion of the court, October 12th 1875.

There are two principal questions in this case which must determine it. The first is upon the effect of the resurvey by William Gray, deputy surveyor of Northumbei’land county, of fourteen of the wan-ants owned by James Silliman ; the second upon the effect of the sales of the commissioners of Schuylkill county for taxes in 1849. The facts relating to the first question are these: On the first day of July 1793 James Silliman applied to the Land Office for eighteen tracts of land “supposed to be in Berks county,” and paid the purchase-money. Warrants were signed and were placed in the hands of Henry Yanderslice, deputy surveyor for Berks county, who surveyed them in a single block in the Catawissa valley, in July 1793, and returned the surveys to the Land Office on the 16th of July 1793, as made in Berks county. The evidence discloses no acceptance of these returns, and it is not probable they were accepted, as a caveat against all was filed on the 18th of July, two days after the return. This caveat sets forth the surveys as made in Northumberland county or Berks, and was filed by persons claiming prior surveys, alleged to be interfered with. These were grounds at once to prevent acceptance. The caveat was never acted upon, and no citation issued. The boundary line between Berks and Northumberland county was then in doubt, and two years later an Act of Assembly was passed creating a commission to ascertain it. When defined the Yanderslice surveys were clearly shown to be in Northumberland county. In the autumn of 1793, these warrants are found in the hands of William Gray, deputy surveyor of Northumberland, who in the month of October, located fourteen of them in a single block, partly upon the same ground surveyed by Yanderslice, but avoiding the interferences complained of. Every fair presumption is that Silliman abandoned the Yanderslice surveys, on the ground that they were probably not in his proper county, and because they interfered with older rights, and that the returns of Yanderslice were not accepted, but that the surveyor general 'either endorsed a new direction on the copies of the warrants to Gray, the deputy surveyor of Northumberland county, or issued new copies, a presumption which both the facts and the authority of Stephens v. Cowan, 6 Watts 515, justify us in drawing.

In estimating the effect of these facts on the question of title two other facts connect themselves directly with the case, to wit: that James' Silliman and others have never since recognised the Vanderslice surveys, but that both he and the Commonwealth have recognised the Gray surveys as the only foundation of title, and that the fourteen surveys were located in a single block adjoining and bounded by older surveys constituting outside boundaries clearly defined, leaving no doubt of their identity as a block survey for a single ownership.

Before noticing the principal question, it is proper here to correct an error of the court below bearing directly on the main question. The defendants offered a patent to John Myer for the James Silliman tract, dated in 1806, to be followed by the patents for ten others in this block. The court excluded all except the patents for the tracts interfering with the John Bitler survey under which the plaintiffs claimed. The effect of this rejection was to keep out of the case all these evidences of the confirmation by the Commonwealth of the block survey by William Gray. This seriously affected the defendants, for the doctrine of block survey as bearing on the title of the owner of the block is well settled. When one person is owner of all the warrants, they maybe surveyed together ih a single block by exterior lines, leaving the interior lines to be settled by the owner himself: Mock v. Astley, 13 S. & R. 382; Stevens v. Hughes, 3 W. & S. 465; Collins v. Barclay, 7 Barr 73; Hagerty v. Mathers, 7 Casey 348. The legal effect is that the entire block is viewed as one tract. Hence, 0. J. Lewis said, in Hole v. Rittenhouse, 1 Casey 491: “ Under these circumstances it is evident that the whole fifteen surveys adjoining each other in a single block, without interior lines, all made at one time and owned by the same party, were essentially but one tract, which the owner might occupy or subdivide at his pleasure.” This principle was in the mind of C. J. Woodward, when he said, in Malone v. Sallada, 12 Wright 425: “ And when we are dealing with blocks of surveys we must remember that the marks on any part of the block belongs to each tract in the block.” So Judge Strong said, in Darrah v. Bryant, 6 P. F. Smith 75 : “ And if they were surveyed as a block, they must be located as a block.” The block being thus regarded as one tract and a single ownership, and the Gray surveys being all so located, returned and accepted together, it is evident that the effect of the confirmatory acts of the Commonwealth in granting patents for eleven out of the fourteen surveys extends to the whole block, and is not confined to those only for which the patents were issued. If any of the Gray surveys are to be treated as made without authority, all must be so regarded. All stood on the same footing and were made and returned at the. same time, and if some were recognised as having been authorized it affords strong evidence all were authorized. All the patents relating to this same block should have been received.

This brings us to the main question, as to the validity of Gray’s surveys. The conclusion of the learned judge below, stated in his own language, was, “ that the surveys made by Gray were upon exhausted warrants — that his attempt to locate them a second time was an unofficial act and void — and that the lands included in his surveys, riot previously appropriated, belonged to the Commonwealth, and were left open for future appropriation.” This language is general, covering even those surveys upon which patents were granted, contrary to a number of cases deciding that a patent cures irregularities in the survey. This may not have been intended, but narrowing the learned judge’s language to apply to the cases where patents had not been issued, his conclusion was an erroneous application of a correct principle to the facts of this case. That a deputy surveyor who has made a return of his survey to the surveyor general, cannot make a new survey, or alter the lines of the survey as returned without a new authority is well settled. His authority is exhausted by the return, and he is functus officio. The authorities are numerous: Drinker v. Holliday, 2 Yeates 87 ; Porter v. Ferguson, 3 Id. 60; Deal v. McCormick, 3 S. & R. 343 ; Oyster v. Bellas, 2 Watts 397 ; Bellas v. Cleaver, 6 Wright 260 ; Hughes v. Stevens, 7 Id. 197. In all of these cases, however, the important exception is stated, viz.: unless there be “ new directions” — “new authority” — “an order” — “new authority from the surveyor general or the board of property,” and the reason given is that the deputy has exhausted his authority. But the authority of the surveyor general is not exhausted by the mere return of his deputy. Until he accepts the survey it is not consummated. If upon the return of a survey into his office he discovers a reason why the survey should not be ratified or consummated, what is there to prevent him from directing a new survey ? This is the very doctrine held in Stephens v. Cowan, 6 Watts 511. There a warrant for land in Northumberland or Huntingdon county was executed in Westmoreland county. Justice Kennedy, a most excellent land lawyer, said, “ It was certainty competent for the surveyor general, upon being informed by the holder of the warrant here, that the land lay in Westmoreland county, to have directed it to his deputy in that county, and if a survey had been made accordingly by such deputy, it can scarcely be doubted, but it would have been good. Now, for aught that appears to the contrary, the survey here may have been made by the deputy surveyor of Westmoreland county under such an authority, written upon the copy of the warrant put into his hands, which has not been produced, and after an acquiescence for upwards of thirty years on part of everybody in the surveys as made and returned here, it ought to be presumed, on account of the public peace and security of titles to real estate, that it was rightly made.” This language is very applicable to the case before us. The Silliman batch of warrants were issued for land supposed to be in Berks county, they were surveyed in fact in Northumberland county by the deputy surveyor of Berks, and interfered with other surveys ; this was in July. In October we find them in the hands of Gray, the deputy for Northumberland. His returns are accepted and patents issued on many of them, and they were acquiesced in by everybody for over thirty years, while the Vanderslice surveys were never recognised after their return. The trial took place more than eighty years after the return of Gray’s surveys. After such a lapse of time and under these circumstances, the presumption is violent that the Vanderslice surveys were abandoned, and a new direction given by the surveyor general to Gray. It is very clear that in 1806, when five of the patents were issued, in 1808 when two more were issued, and in 1813, when another was granted, there must have been evidence before the officers of the Land Office, of the regularity of the Gray surveys. The authorities on this point as to the presumption are clear and to the point.

But in the first place let us notice the powers of the surveyor general. Before the Revolution the officers of the Land Office were the agents of the proprietaries, and therefore looked upon as clothed with large powers. The Act of 9th April 1781, 1 Sm. Laws 530, which first opened the Land Office under the Commonwealth, simply provided that the secretary of the Land Office, receiver general and surveyor general, might appoint deputies and clerks to assist in executing the business of their offices, and the surveyor general should appoint deputies to make surveys in their proper counties only. No other general powers were conferred, the legislature seeming to suppose these officers acted under known customary powers. But by the second section of the Act of 1st April 1784, 2 Sm. Laws 102, “ the several officers of the Land Office are hereby fully empowered and directed to do and perform every act and thing incident or in anywise appertaining to their said offices with respect to receiving, filing and entertaining locations, granting warrants on the same, receiving the consideration, directing copies of warrants, or other rights, receiving returns, and issuing patents of confirmation, as heretofore, agreeably to the former customs and usages of the said offices.” These powers it will be seen concern the very matter in hand. Speaking of the surveyor general, Justice Yeates said, in Harris v. Monks, 2 S. & R. 559: “ But what law or usage forbids the surveyor general himself to execute a warrant, if his superior duties allow him leisure for that purpose ? If he may do it personally why may he not appoint a special agent to perform the service ? Such agent would be a deputy pro hae vice.” And in Brien v. Elliott, 2 Penna. R. 59, Chief Justice Gibson said: “ Why might not these surveys have been executed by the surveyor general in person? Even under tl^e Commonwealth, when the latitude of discretion allowed by the proprietaries, who had absolute power over the subject, has been greatly abridged by positive law, if not entirely taken away, his act of adoption has been held to ratify a survey by one who was not the proper officer, and who consequently had acted without authority.” It is clear that in the case before us the Gray surveys were accepted and adopted by the surveyor general and confirmed by numerous patents. In regard to this power to ratify or adopt, the Chief Justice spoke with authority. See Harris v. Monks, supra; Creek v. Moon, 7 S. & R. 330. In the last ease the survey was made by one not appearing to be a deputy, and Tilghman, 0. J., said, “ Under the proprietary government the surveyor general exercised the power of making special deputations, and I do not think he was deprived of that power by the Act of 1781.” He refers also to the case of Wright v. Wells, 1 Yeates 286, where a survey was made in 1786 by John Hage, deputy surveyor, of land outside of his district. The principle of adoption is the ground of decision in Shields v. Buchannan, 2 Yeates 219, and Funston v. McMahon, 2 Yeates 245. Light v. Woodside, 10 S. & R. 23, is a ease strongly bearing on this. There the surveyor general rejected the survey, and another had been made without a new authority, yet it was held after confirmation by patent that the irregularity did not invalidate the title. So in Goddard v. Gloninger, 5 Watts 209, it was said that though ratification contrary to a positive statute would not be permitted, yet even there lapse of time would make the title valid. Balliott v. Bauman, 5 W. & S. 150, is a still stronger case. There the application of Rhodes was actually located on other lands which were still held at the time of the trial under that application, by vendees of Rhoads. Many years afterward Rhodes had another survey made on his application, which was returned and accepted and patent granted upon it. It was held, the land taken by the second survey being vacant, and no intervening right acquired, the patent conferred a good title. In the present case the land first surveyed was abandoned and left open to appropriation by others. This principle of adoption governed in Stephens v. Cowan, already referred to. Another illustration of it is found in a class of cases represented by Layton v. Paull, 5 Watts 465. There, notwithstanding the proprietary regulation of 1767, forbidding deputies to include more than ten per centum in the survey, and the Act of 8th April 1785, allowing an excess not exceeding ten per centum, an acceptance by the surveyor general of a survey containing more than ten per cent, was held to be valid. The distinction is apparent, the prohibition operated on the deputy, but not on the surveyor general himself. Bearing on the same principle are the eases of Coxe v. Woolbach, 2 Casey 122, and Sabins v. McGhee, 12 Id. 453, holding that after acceptance of an irregular survey and confirmation by patent the land first surveyed is open to appropriation by others; and also Chew v. Morton, 10 Watts 321, that after the issuing of a patent the officers of the Land Office have no power to set it aside. Now in the case before us the acceptance of the block survey by Gray, and granting of patents on some of the surveys to Silliman and his assigns, left the Yanderslice surveys open to appropriation. The state having received the purchase-money from Silliman, accepted the Gray surveys and confirmed part of the block by patents, cannot assert that no title passed under these surveys, while Bifcler had no intervening right to be protected.

Now when we add to these considerations and precedents the weight always attached to the lapse of time in raising presumptions and quieting titles as the means of maintaining peace, order and harmony in the relations of civil society, there can be but one right conclusion in this case. The importance of such presumptions is stated with great emphasis and fulness of reference to authorities by Justice Kennedy in Bellas v. Levan, 4 Watts 294, where he sums up in this conclusion : “ It is too obvious not to be seen and felt by every one how very important it is to the best interests of the state that titles to lands, instead of being weakened and impaired by lapse of time, should be strengthened until they shall become incontrovertibly confirmed by.it.” The application of this doctrine to chamber surveys is a striking example: Caul v. Spring, 2 Watts 390 ; Oyster v. Bellas, Id. 397 ; Nieman v. Ward, 1 W. & S. 68. Justice Kennedy, in Bellas v. Levan, supra, says, “ Twenty years (now twenty-one) from the return of survey by the deputy into the surveyor general’s office were held (referring to Caul v. Spring), to be sufficient to raise an absolute and conclusive presumption that'the survey was rightly made.” “ And that,” said C. J. Black, “ even where there was an unexecuted order of resurvey by the board of propertyreferring to Collins v. Barclay, 7 Barr 67. “In short,” continued Judge Black, the courts of this state seem uniformly and especially of late to have refused to go back more than twenty-one years to settle any difficulty about the issuing of warrants and patents, or the making or returning of surveys, or the payment of purchase-money to the Commonwealth Strimpfler v. Roberts, 6 Harris 299. On the subject of presumptions from lapse of time; see also Mock v. Astley, 13 S. & R. 382; Goddard v. Gloninger, 5 Watts 209 ; Nieman v. Ward, 1 W. & S. 68; Ormsby v. Ihmsen, 10 Casey 462; McBarron v. Gilbert, 6 Wright 279. In the case before us the surveys of Gray were made and accepted thirty-three years before the issuing of John Bitler’s warrant, and thirty-five years before the survey made upon it.

The case of the Improvement Company v. Numson, 14 Wall. 442, does not touch the question before us. The error assigned was : “ That the court erred in charging the jury that no subsequent official survey of the land under those warrants, without a warrant of survey or order of the board of property, was authorized.” In refusing to reverse, the Supreme Court of the United States simply affirmed a general principle which we all recognise. The Jacob Yeager survey, then in question, was not one of the block of fourteen surveys by Gray, but was laid by the deputy surveyor of Berks county twenty-two miles away. No evidence was given of the acts of confirmation of the surveys in the same block, the Yeager survey being entirely isolated. The fact, too, was assumed that the Yanderslice survey on the Yeager warrant was accepted on the 16th of July 1793, the day of the return, a fact not proved and not probably true. On the question of presumption the court in that case were without facts to raise it, and relied on the case of Wilson v. Stoner, 9 S. & R. 39, a case without a single feature like the present. There was no evidence that a warrant had ever issued out of the Land Office, and the only question was whether the fact could be inferred from the finding of a survey in the deputy surveyor’s office, with the endorsement, copied for return.” Of course, without some evidence of payment of purchase-money, or some entry in the Land Office, the existence of a warrant could, not be inferred from this outside statement of a deputy in the country.

The next important question arises upon the tax sales to the commissioners in 1844, and their sales in 1849. On the 10th of June 1844, the Troxel, Immel and Klinger tracts were sold to the commissioners for unpaid taxes, and they sold the same on the 16th July 1849, to J. W. Roseberry and others, and delivered deeds therefor, September 1st 1849. On the 10th of June 1844, the John Bitler tract assessed as three hundred acres in the names of Elizabeth and Hannah Bitler, was sold to the commissioners for unpaid taxes, and they on the 16th July 1849, sold the same to 0. M. Straub, who refused to pay the purchase-money, except as a set-off of his account as sheriff, for boarding prisoners. The commissioners declined to admit the set-off, and after several years had elapsed, placed the matter in the hands of an attorney to collect the bid. The commissioners and Straub finally settled in 1854, and they then delivered the deed to Straub, upon the sale of 1849. The John Bitler survey was laid chiefly on the Christian Troxel survey, with a small part over on the Christian Immel survey, and possibly a small part on the Casper Thiel tract. The court below having decided that the surveys on the warrants by .Gray were void, on the ground of Hunter v. Albright, 5 W. & S. 423, held, that the sale of the three hundred acres assessed to Elizabeth and Hannah Bitler was the only valid tax sale, and that this was vested by the commissioners’ sale in C. M. Straub. But the court having erred in holding the Gray surveys to be void, and they being the older and better, the principle of Hunter v. Albright, turns to the opposite side, and the sale of the Troxel and Immel tracts for taxes confers the better title, which by the commissioners’ deed of sale of 1849 became vested in Roseberry and others. Hunter v. Albright was afterwards recognised in Diamond Coal Co. v. Fisher, 7 Harris 267. And irrespective of the doctrine of these cases, if the tax sale in either name be sufficient to convey title to the actual locus in quo, the title of Roseberry would prevail, for he was the first to pay the purchase-money to the commissioners, and obtain his deed. Prior in tempore potior est in jure. But it is sufficient, that the title under the Gray surveys being good, the tax sales of Troxel and Immel were good.

These are the only errors to be noticed, as the others rest on these as the fundamental questions in the case.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Zeigler versus Shomo.
    1. An assignment of a bankrupt’s land by a register to an assignee in bankruptcy, not acknowledged or proved, as required by the laws of Pennsylvania, cannot be recorded in that state.
    2. From the commencement of proceedings in bankruptcy the estate of the bankrupt is in the custody of the District Court of the United States; its jurisdiction is superior and conclusive and its decrees final and absolute.
    3. A purchaser at an assignee’s sale of a bankrupt’s property under an order of the District Court and decree confirming it, is not bound to see that every particular in the appointment and qualification of the assignee has been complied with ; he takes whatever title was in the bankrupt.
    4. Land was sold as a bankrupt’s; in ejectment against him by the purchaser, he defended on the ground that the right of possession was in his wife when the writ was served. If the wife had no title, her possession was that of her husband and the defence could not be sustained.
    5. Evidence in this case not sufficient to show that an absolute deed to husband was in trust for his wife.
    June 1st 1875. At Harrisburg.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of July Term 1874, No. 17. _
    _ This was an action of ejectment commenced May 27th 1869, by William D. Shomo against Elijah W. Zeigler for a tract of land of 113 acres and 60 perches.
    The case was tried November 6th 1873, before Walker, J.
    The plaintiff gave in evidence the writ with return of personal service on E. W. Zeigler. Also, deed January 19th 1835, from Reuhen Swartz to Abraham Turner, for the land described in the writ. Also, assignment May 15th 1851, endorsed on the deed, Turner to the defendant in fee, consideration $2000, for the premises mentioned in the deed, with receipt of Turner for the purchase-money appended. Also, petition of creditors of Zeigler, filed September 21st 1867, to the District Court of the United States, Eastern District of Pennsylvania, to have him adjudged a bankrupt, and the adjudication October 12th 1867; November 5th 1867, Jacob H. Pyle chosen assignee.
    The plaintiff then offered in evidence a copy of the record from the recorder’s office of Schuylkill county, of assignment of the property of Zeigler, dated November 8th Í867, by John P. Hobart, register in bankruptcy, to Jacob H. Pyle, assignee, executed under the seal of the District Court. The defendant objected, because the assignment was not acknowledged or proved in accordance with the requirements of the Acts of Assembly. The court admitted the offer and sealed a bill of exceptions.
    . On the 18th of January 1868, Pyle, the assignee, petitioned the register for authority to sell the premises, and on the same day he was authorized by the register to make public sale of the premises on the 15th of February then next, upon the conditions and after the publications specified In the order of sale. The assignee returned that he had exposed the premises to sale in accordance with the order, but that they remained unsold because a sufficient sum was not bid for them. On the 27th of January 1869, Pyle, the assignee, petitioned the District Court, setting out amongst other things the order of sale, that he had been unable to sell the land, because the title was in dispute; that Hezekiah Turner gave notice that he claimed to be the owner, by virtue of a devise to him by Abraham Turner; that Priscilla Zeigler, wife of the bankrupt, gave notice that the title was in Abraham Turner and Susanna his wife, when he was declared bankrupt; also, that the same Priscilla Zeigler gave notice that she claimed right of dower in case it should he made to appear the title to the premises was in the bankrupt; that the petitioner had been offered $1000 for the bankrupt’s interest in the land, with an engagement to bid that sum if a sale should be ordered; and inasmuch as the title was in dispute, he prayed that an order of sale might be issued to him, &c. An order was accordingly awarded to sell the bankrupt’s right in the premises, on the 13th of March then next, notice to be given by publications specified in the order.
    On the 24th of March the assignee made return : that having given notice by publications as directed in the order, he sold the bankrupt’s interest in the premises to William D. Shomo for $1020, accompanied by certificate of the register’s approval and recommendation that it be confirmed; the sale was confirmed March 29th 1869.
    The plaintiff then offered in evidence the deed from the assignee to Shomo, dated April 3d 1869, acknowledged same day before a justice of the peace of Schuylkill county, and recorded in the recorder’s office of Schuylkill county.
    The defendant objected to the evidence, because it appeared that the bankrupt had no title to the land, and the question of title should be first judicially decided; the deed was not acknowledged before the register in bankruptcy, and it did not appear by it that the advertisements, &c., were made in accordance with the order, &c.
    The court admitted the evidence and sealed a bill of exceptions. The plaintiff then rested.
    The defendants offered in evidence a deed dated August 5th 1852, from which the names had been cut, from E. W. Zeigler and wife to Abraham Turner, granting, for the consideration of $2000, the premises in dispute, reciting that they were the same which Swartz had granted to Turner and Turner had granted to Zeigler May 15th 1851. Appended to the deed, was a regular acknowedgment of Zeigler and wife before J. Kistler, justice of the peace, on the day of the date of the deed — this not being mutilated.
    Defendant called Kistler, who proved the acknowledgment.
    Zeigler testified to the same fact, and also that with consent of Turner he had cut off the signatures about two years afterwards; they were cut off on account of a new agreement with Turner.
    Under objection by plaintiff the court admitted the deed in evidence.
    On cross-examination, Zeigler testified that an agreement of February 26th 1873, shown to him, was made before the names were cut off; they agreed that by cutting off the names the title would be put back where it was before the deed was made; at the time the names were cut off Turner said he would rather leave the old deed just as it was, that this would be better to secure his daughter’s (Zeigler’s wife) interest; they then agreed to cut off the names.
    Defendant gave in evidence articles of agreement of July 28th 1852, between Zeigler and Turner, for the sale of the land and for its conveyance to Turner on the 5th of August 1852. The consideration was $2,000, of which $500 were to be paid on the delivery of deed, $500 April 1st 1853, and the remainder on the 1st of April 1854.
    Defendant gave in evidence the notice by Mrs. Zeigler, to the assignee “ and all buyers and bidders,” at the assignee’s sale of the bankrupt’s land, viz. : that the bankrupt had no title or right whatever to the property; that Turner, by assignment of May 15th 1851, in consideration of $2000 and advancement to Mrs. Zeigler, wife of the bankrupt, by her father the said Turner, and the performance of certain stipulations of an agreement of May 15th 1851, had conveyed the property to the bankrupt; that the said bankrupt and his wife, by deed of August 5th 1852, in consideration of $2000, conveyed the property to Turner; that the Signatures of the bankrupt and his wife had been cut from the deed, but there had been no reconveyance from Turner and therefore the title was not in the bankrupt, &c.
    E. W. Ziegler further testified that he was not in the possession of the property; but he was there when the writ was served; his wife was in possession at the time; she was there with some of the children; he lived then at a hotel one-fourth of a mile distant. She claimed the property as an heir of Abraham Turner, who had died in 1863 ; the $2000 mentioned in the receipt -were intended as a gift from Turner to his daughter, defendant’s wife, witness paid nothing of it. Turner valued the property at $4000 ; he said he would divide his property equally amongst his children ; he did so at the time of this first transaction ; he gave his son a farm adjoining, valued at $2000; to Mrs. Hill, a daughter, he gave $2000 in money; for the other $2000, he said at the time he made the deed to defendant, that the wife could not hold the property without her husband was mentioned in the deed. Defendant moved on the place, moved out w-hen the deed was cancelled and moved back in 1853. Mrs. Zeigler rented the house1 in 1868 ; she -was living there in 1869 and 1870; defendant agreed to give the land hack, and Turner agreed to pay $2000 cash back as advancement for defendant’s wife instead of the farm.
    The plaintiff then asked the court to instruct the jury to disregard the testimony of Zeigler as to the deed of August 5th 1852, and the agreement of July 28th 1852, and all testimony by him of facts prior to Turner’s death ; also, as to conversations between Zeigler and Turner prior to and at the time of the delivery of the deed from Turner to Zeigler, because the deed of August 5th 1852 revested the title in Turner. The defendant objected to granting the motion, the court sustained it “ so far as it relates to the conversations, acts or doings of Turner connected with or growing out of the subject-matter or thing of which he was the assignor or the assignee,” and sealed a bill of exceptions for the defendant.
    Gideon Hill, husband of a daughter of Turner, testified : that he was not present when the deed was made to Zeiglpr, nor when he made a division amongst his children, but was present when Turner gave some money to Mrs. Zeigler and witness’s wife; Turner paid money to witness’s wife, and said he would give Mrs. Zeigler $2000 in the farm. Turner said he took the land back; the conversation was the year before Turner died.
    The defendant then gave in evidence the deposition of Mrs. Zeigler. She testified that she claimed to own the property as her own separate property, and that she derived it from her father as her share of his estate.
    Thomas Hess testified: that Turner told him that he had given the farm to his daughter for an inheritance. This was in the last year of his life.
    The plaintiff, in rebuttal, gave in evidence: agreement dated May 15th I851j between Turner and wife of the one part, and E. W. Zeigler of the other part, reciting that Turner and wife had on the same day granted to “ the said Elijah W. Zeigler in fee,” the land in dispute and “ do by these presents assign,” &c., to him all their live stock and farming utensils, except, &c., Zeigler having agreed to maintain them during their lives. “ Now the condition of this obligation is such” that Zeigler should allow Turner and wife two rooms, &c., and shall deliver to them .yearly wheat and other articles specified, and in case of the death of either should deliver to the other one half of the articles named to the survivor, keep a cow for them, &c., with other privileges ; and Zeigler bound himself not to sell the land without their consent, &c.
    Also, under objection and exception, an agreement dated February 26th 1853, between Zeigler and Turner by which Turner agreed to give Zeigler “ his farm, one cow,” and a number of other articles of stock, farming utensils, grain, &c., for which Zeigler agreed to give “his lot which he bought of J. Kleckner,” with certain amounts of grain, &c., “ delivered to them during their joint lives every year, &c., and in case of the death of either of them the half is to be off, and when they are both dead everything is to be and remain the said Zeigler’s ; * * * the said Zeigler also agrees to return the bonds drawn by Abraham Turner and J. Kistler in favor of E. W. Zeigler worth $1500, and all former agreements are hereby declared void and of no effect and to be cancelled at the expense of Abraham Turner.” Endorsed on this agreement was a receipt by Turner for “ $189.59, the balance in full.”
    The following also was endorsed :—
    “ It is further agreed by the subscribers, that while a former agreement is on record that so much of the old or former agreement which does not agree with the within agreement, shall be crossed or cancelled at the request or instruction of Abraham Turner, and that the said Turner shall then keep the old agreement as a copy of this.
    E. W. Zeigler Abraham Turner.”
    There was other evidence for the purpose of showing the ownership of the premises, and who was in possession when the writ was served.
    A number of points were submitted by each party.
    The jury found for the plaintiff. The defendant took a writ of error, and assigned a large number of errors, amongst -which were:—
    2. Admitting in evidence the record of the assignment, John P. Hobart, register, to Jacob H. Pyle, assignee.
    3. Admitting in evidence the deed from Jacob H. Pyle, assignee, to William D. Shomo.
    5. Striking out the testimony of E. W. Zeigler, as above-mentioned.

      Q-. P. Parquhar and P. W. Hughes (with whom were 0. P. Bechtel and J. W. Ryon), for plaintiff in error.
    A copy of the record of the deed from the register to the assignee was not admissible, not having been acknowledged or proved as required by Act of May 2d 1715, sect. 2, 2 Sm. Laws 94, 1 Br. Purd. 460, pl. 10 ; the recorder therefore had no right to record it: Stonebreaker v. Short, 8 Barr 155. Both parties claiming under Turner the proviso of.the Act of April 15th 1869, sect. 1, Pamph. L. 30, 1 Br. Purd. 624, pi. 16, does not apply: Karns v. Tanner, 16 P. F. Smith 305.

      James Ryon and B. W. Gumming (with whom was M. Strouse), for defendant in error.
    The Bankrupt Act of 1867, sect. 14, requires the assignment of the register to be recorded in every state where a conveyance of bankrupt’s lands ought by law to be recorded. Loose delarations of the holder of a legal title that it is held in trust for another are inadmissible : Cowden v. Oyster, 14 Wright 373. Declarations of the person who created the trust, made in the absence of the trustee, are not alone evidence to establish it: Tritt v. Crotzer, 1 Harris 451; Edwards v. Edwards, 3 Wright 878. The expressions must be contemporaneous with act of disposition or in contemplation of it: Kilpin v. Kilpin, 1 Myl. & K. 537; Hill on Trustees 2: Sugden on Vendors 131. Declarations of an insolvent husband are not evidence to prove that property was purchased with his wife’s money: Bradford’s Appeal, 5 Casey 513.
   Mr. Justice Gordon

delivered the opinion of the court, October 11th 1875.

The deed of assignment, John P. Hobart, register in bankruptcy, to Jacob Pyle, assignee of Elijah W. Zeigler, not having been acknowledged according to the requirements of our Acts of Assembly, was not a fit subject for record, and hence the admission in evidence of the copy thereof, appearing upon the recorder’s book, was erroneous. True, the Act of Congress requires these deeds of assignment to he recorded in every office of registry of deeds in the United States, where a conveyance of any lands owned by the bankrupt ought to be recorded, but, as it does not provide any mode of authentication, it follows that the mode prescribed by the several states must be pursued. We are not, however, prepared to reverse for this error, as we do not think the paper had any significance in the case, and hence its admission was productive of no harm. Had the assignee made the sale on his own motion this deed would have been all important, as without it there would have been no warrant for such sale. But his action, in the case presented, is under and by virtue of the authority of the District Court of the United States. Where the property of the bankrupt is encumbered, or where the title thereto is in dispute the assignee has no power to sell except under the order and direction of said court. Hence, in such case, it is this order, and not the deed of the register, which empowers the assignee to act:' Rev. Stats. U. S., § 5063; In re Graves, 1 Bank. Reg. 19 ; In re Salmons, 2 Id. 19. The inquiry, then, is one limited to the question of the jurisdiction of the above-named court; about this, however, there is and can be no dispute. For not only has it such jurisdiction, but from the moment of the commencement of proceedings in bankruptcy the property and estate of the banlumpt are in the custody of that court, and its jurisdiction over them is superior and conclusive,: Bump’s Bankruptcy 152 and 153, and authorities there cited. It follows, that the decrees of that court, upon the subject-matter in hand, are final and absolute. We have, further, the petition of Pyle the assignee, setting forth the fact that the title of Zeigler to the property therein described was disputed, and praying for an order of sale; the approval thereof by the register; the return and report of sale; the decree of the court confirming the same, and the deed to Shomo in pursuance of said decree. Thus we not only find the general jurisdiction ample, but we also find the proceedings necessary to bring that jurisdiction to bear upon the special case. The purchaser having discovered this condition of affairs was bound to look no further. As is said in McPherson v. Cunliff, 11 S. & R. 432, with reference to Orphans’ Court sales: “ The purchaser is not bound to see further back than the order of the court; he is not to see whether the court was mistaken in the facts of debts and children; his contract is in truth with the court.” So we say as to the case in hand; Shomo was not bound to look beyond the order of the District Court to see whether every particular had been complied with in the appointment and qualification of the assignee; his contract was, in fact, with the court, and as it had ample power over the subject-matter, he, as its vendee, took whatever title there was in Elijah W. Zeigler at the time of the act of bankruptcy.

The deed, then, being good, the question turns upon Mrs. Zeigler’s right of possession, for it cannot be pretended that Zeigler himself can defend against the vendee in bankruptcy. This alleged right of possession in the wife, depends upon whether she had or had not title to the premises in controversy, if she had no title, her possession was that of her husband and the defence rightly failed. Upon this branch of the case, a number of exceptions have been taken to the ruling of the court below. There is but one, however, which we deem important to consider. It is the one raised by the fifth specification, and which excepts to the refusal of the judge to submit to the jury the testimony of Zeigler detailing the declarations of Turner in his lifetime, concerning the vesting of an alleged trust in Mrs. Zeigler at the time of the execution of the deed of 1851, from Turner to Zeigler, as well as some subsequent declarations of the same character, which occurred in 1853, at or about the time of the cancellation of the reconveyance of 1852, Zeigler and wife to Turner. We are inclined to accept the ruling upon this point as right. Not, indeed, because Zeigler was incompetent to prove the facts stated, for we do not think the case is one within the exception of the Act of 1869, but because the evidence proposed was not sufficient to establish a trust estate in Mrs. Zeigler as against the vendee of the assignee. If we isolate the transaction of May 15th 1851, and consider it apart from the transactions of 1852-3, we are at least left in doubt as to whether Turner intended to vest in his daughter an interest in the land, or to abate one half of the purchase-money by way of advancement. We think the latter the better opinion, for if Turner intended to vest in Mrs. Zeigler an interest in the realty it is remarkable that her name is not mentioned in any of the papers. This however is consistent with the supposition of an abatement of the purchase-money by way of an advancement or gift, either to her separately or to her and her husband jointly. In this state of uncertainty a chancellor would refuse to decree a conveyance of the premises in dispute to Mrs. Zeigler, and, it follows, that the admission of the testimony proposed would have availed the defendant nothing, as the plaintiff would still have been entitled to a peremptory instruction in his favor. But, by the deed of Zeigler and wife to Turner, August 5th 1852, the previous arrangement, whatever its character had been, was annulled, and when the equity was revested in Zeigler by the agreement of February 26th 1853, it was limited by no trust to any one. It is true Zeigler says that at the time of the cancellation of the deed of 1852, after the execution of the articles of 1853, the parties intended to restore things to the state they occupied previously to the execution of the last-named deed. But testimony so slight as this from an interested party,, and in the face of writings solemnly executed, in which a full and ample consideration is represented as passing from the vendee to the vendor, is wholly insufficient to abrogate or modify the written contract of the parties. To permit such a result would be to dig away the solid foundations on which our Pennsylvania land titles rest, and to substitute therefor such as might be constructed for the occasion, by the interests of parties or the uncertain and often partial memory of witnesses. But the uncertainty and confusion are increased when we come to consider the acts and testimony of Mrs. Zeigler. Giving all the force possible to the testimony of Hill and Zeigler, and the interest of Mrs. Zeigler in the premises extended but to one half thereof, and that arose by virtue of the arrangement of 1851. She, however, in her notice to the assignee, March 13th 1869, claims, that by virtue of the deed of August 5th 1852, the title to the property revested in Abraham Turner, and, notwithstanding the subsequent cancellation thereof, the title still continued to be so vested, and that in the said property Elijah W. Zeigler had no interest whatever. Then, in her testimony, she claims the title by virtue of a gift from her father, and as her share of his estate. This piece of evidence does not inform us when or how this gift was made, and it ignores entirely the agreement of February 1853, which left nothing in Abraham Turner either to sell or give away, except a bare legal estate valuable to no one unless, perchance, to Turner’s widow, as a means of enforcing her maintenance as provided for in that agreement. After such allegations as these, by the chief party in interest, the testimony with reference to a trust looks, to us, like an after-thought seized upon under the stress of circumstances to bolster up a bad case. Judgment affirmed.


author: Per Curiam.

text:
    Lawrence and Others’ Appeal.
    1. A railroad company constructed their road without legal proceedings to appropriate the land on which it was located and without objection by the owners. Afterwards proceedings to assess damages were commenced; they were compromised and released. Held, that the title of the company was not through this proceeding, but by the original occupation without objection by the owners.
    2. The release did not operate as an original conveyance, but as a discharge of the damages for the entry and occupation.
    3. After the construction of the road, but before the release, the tract on which it was located was leased to the defendants. Held that they took it subject to the right of way of the company over the surface.
    June 1st 1875. At Harrisburg.
    Before Agnew, C. J., Si-iarswood, Mercur, Gordon, Paxson and Woodward JJ.
    Appeal from the Court of Common Pleas of Schuylkill county: In Equity: Of January Term 1874, No. 322.
    The bill in this case was filed May 9th 1872, by the Philadelphia and Reading Railroad Company against Jacob S. Lawrence and others, partners as Lawrence, Merkle & Co., lessees, and divers other persons, owners of the land referred to in the bill.
    The bill set forth that the Mahanoy and Broad Mountain Railroad Company, chartered under the General Railroad Law of February 19th 1849, completed their railroad in the year 1860, including an inclined plane, known as the “Mahanoy Plane,” extending from the top of Broad mountain 2800 feet down the slope of the mountain to its foot; the plane was constructed at great expense, and was the main outlet to market of the coal in Mahanoy valley, more than 1,000,000 tons of coal per year being carried over it to market; that it was located on land of William Rohrer and others, named in the bill as owners, and that the land was partly underlaid by certain veins of coal, one of which was the Mammoth vein, whose outcrop crossed under the plane; that the company acquired the right over the land for the plane, under proceedings commenced in the Court of Common Pleas of Schuylkill county to December Term 1862, and release dated November 2d 1868 ; that under certain Acts of Assembly named in the bill, the last of which was approved February 18th 1871, all the rights of this and other companies theretofore consolidated, became vested in the plaintiffs ; that after the entry of the plaintiffs on the land occupied by the plane, Lawrence, Merkle & Company leased the Mammoth vein, including that part underlying the plane, and erected the Lawrence colliery; that said firm were mining coal in said vein, lying under and keeping up the plane, in places specified in the bill, and should it be mined out, the plane would be thrown down, the plaintiffs prevented from using it, and the region depending upon it be deprived of an outlet for its coal; that they had notified the firm to cease; they paid no attention to the notice, but continued to mine coal, and threatened to open other breasts, mine coal from them and to undermine,' let down and destroy the plane.
    The prayers were to restrain the firm from mining, &c., any coal in the places mentioned in the bill, or interfering with the breasts or with any of the Mammoth vein coal, &c., where their gangway would pass under the plane ; and for general relief.
    Affidavits were filed and a special injunction was awarded.
    Lawrence, Merkle & Co. answered, admitting many of the averments, amongst others that the Mahanoy and Broad Mountain Company in 1860, as averred in the bill completed the Mahanoy Plane, which was one of the main outlets for coal mined in the Mahanoy valley, and that it was over lands of William Rohrer and others, as stated in the bill. They denied that the company acquired the right of w7ay under proceedings in the Court of Common Pleas of Schuylkill county, or that they acquired any title to the right of way against-the possession of the respondents by virtue of the release of November 2d 1868, and averred that such possession and its extent were known to the railroad company ; that on the 1st of January 1868 the owners of the land over which the plane was located, leased to Lawrence, Merkle & Co. for fifteen years the exclusive right to dig, &c., coal, and the exclusive possession of a body of land which includes the part on which the Mahanoy Plane in located, and they immediately took possession of the leased premises, commenced to open the Mammoth vein, erect improvements, &c., of which the Mahanoy and Broad Mountain Company had notice before they took the release. The respondents admitted that they took possession of the demised premises after the occupation of part of them by the Mahanoy and Broad Mountain Company for their plane, but denied that their occupation was unlawful ; and they averred that there was no reservation in the demise to the respondents, of any part of the land within the boundaries of the demised premises ; they admitted that they were mining and driving a gangway toward the plane with the intention of taking away all the coal except that immediately under the roadway of the plane, and claiming the right to mine, &cl, all the coal in the Mammoth vein.
    A replication was filed and an examiner appointed, who took testimony, hut no master was appointed. Proceedings were commenced on the 17th of November 1862, to have damages assessed for the owners of the land by reason of its occupancy for the railroad ; the viewers appointed reported February 3d 1863, that they had assessed the damages at $570, but inasmuch as there was dispute about the ownership of the land, they were unable to report to whom the damages were to be paid, but suggusted that they be paid into court to await the determination of the question of the title.
    On the 2d of March 1863, John Gilbert and others of the owners appealed. On the 18th of January 1869, it appearing to the court that the title to the land had been finally settled in favor of Gilbert and others, and that none of the other parties defendants had any claim to the land or the award of $570, the court ordered that the proceedings to assess damages should be discontinued, and satisfaction entered on the award of the viewers, upon said parties filing an agreement to that effect; the agreement was filed and satisfaction entered the same day.
    The release referred to in the bill, recited that the Mahanoy and Broad Mountain Bailroad Co. had fixed, &c., the route for their main line, the Mahanoy city branch, &c., to the colliery of Lawrence, Merkle & Co., through and upon lands of John Gilbert and others, naming them, and occupied or' intended to occupy for the main line, land thirty feet wide on each side of the centre line of their road, &c., and in consideration of the advantage to be derived to them from the location and construction of the road, Gilbert and others, the owners of the land, released the railroad company from all claims, damages, &c., by reason of their entering upon and taking the land and the location and construction of their railroad, and covenanted that no non-user of the land appropriated and no occupation by the releasors by residence or otherwise for any period of time, should affect the right of the railroad company to the entire and exclusive possession of the same.
    The other testimony related principally to the questions of the mining of respondents with reference to the railroad, and the danger to it by continuing the mining.
    The court (Walker, A. J.)_on the 5th of January 1874, decreed that the defendants be perpetually restrained from mining, taking out, or in any manner interfering with the coal now remaining in the top breasts laid down in a draft, &c., being under the plane, beginning, &c. ■
    The defendants appealed to the Supreme Court and assigned the decree for error.

      L. Bartholomew and B. 0. Parry (with whom was O. IV Bumm), for appellants.
    The company did not proceed to condemn in accordance with the Act of Assembly and therefore required no title under the right of eminent domain ; they were trespassers against the owners of the land and those in possession under them : Jarden v. Railroad Co., 3 Whart. 502; Brown v. Powell, 1 Casey 229; Western Railroad Co. v. Johnston, 9 P. F. Smith 290; McClinton v. Pittsburg, F. W. & C. Railroad Co., 16 Id. 404. The discontinued proceeding could not deprive the owner of his title to the land, and any right the company had under the- release was subject to the superior rights of the defendants previously acquired under their lease. The company could not deprive the owner of his property under the right of eminent domain before compensation be paid or secured: Bonaparte v. Camden & Amboy Railroad Co., Baldwin 206; Turnpike v. Brosi, 10 Harris 29.

      J. Bilis and J. B. Growen, for appellees.
    If the landholders stood by and permitted the company to make improvements, they would be estopped: Big Mountain Improvement Co.’s Appeal, 4 P. F. Smith 361. Owners may waive previous payment of damages : McCauley v. West Vermont Railroad Co., 38 Verm. 311; Washburne on Easements 24; W. Penna. Railroad Co. v. Johnston, 9 P. F. Smith 290. By the appeal from the assessment of damages the owners affirmed the company’s title to right of way, and waived any preceding irregularity: Delaware, L. & W. Railroad Co. v. Burson, 11 P. F. Smith 369; Lentz v. Stroh, 6 S. & R. 34; Cunningham v. McCue, 7 Casey 469; Woodring v. Forks Township, 4 Id. 362; Weidner v. Matthews, 1 Jones 340; Cameron v. Montgomery, 13 S. & R. 128; Zeigler v. Fowler, 3 Id. 238. The long acquiescence of the landholders waived any condition preceding the appeal: Mayes v. Jacoby, 8 S. & R. 526; Beideman v. Vanderslice, 2 Rawle 334. The owners could not take chance for the damages, and, if unsatisfactory, claim the land: Wadhams v. Lackawanna & B. Railroad Co., 6 Wright 303. After the appeal, the legal appropriation is presumed: McClinton v. Railroad Co., 16 P. F. Smith 404. The release created no estate; it was merely a relinquishment of damages : Dobbins v. Brown, 2 Jones 75; Groh v. Eckert, 3 Brewster 118. Lawrence, Merkle & Co. were not owners when the plane was constructed, and could not be entitled to damages: Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 421. The compensation is to be estimated to the time when the injury was committed: Zimmerman v. Union Canal Co., 1 W. & S. 354. Damages will not pass with a conveyance of land, and under a conveyance Lawrence, Merkle & Co. would have no standing: Schuyl. & S. Co. v. Decker, 2 Watts 343; Commonwealth v. Shepard, 3 Penna. R. 509; Mann’s Appeal, 6 Harris 253; Boynton v. Railway Co., 4 Cushing 467. If they had any claim they should have applied for viewers: Dyer v. Wightman, 16 P. F. Smith 427 ; N. Penna. Railroad Co. v. Davis, 2 Casey 238.
   Judgment was entered in the Supreme Court, June 8th 1875,

Per Curiam.

We find no error in this decree. The railroad company had actually appropriated the land, and built and used its railway long before any title by lease of the coal mines had vested in the defendants. This is admitted in the answer. Th e owner of the land made no objection to this appropriation, but after a proceeding to assess the damages had been prosecuted, finally compromised and released. The title of the railroad company came not through this proceeding, but by its original entry and appropriation without objection. The release operated not by way of an original conveyance, but by way of a discharge for the damages incurred by the entry and construction of the railway. It is clear therefore that when the defendants obtained their lease they took it subject to the previous easement and right of way of the railroad company over the surface. The railroad was then in lawful existence and use. The owners made no defence to the right of the railroad company to appropriate the land, and their tenants cannot now set up a defence which they waived, if they had any. The Act of 1849 does not compel a railroad company to remove its track, though it gives the authority. A most necessary provision for the security of the company and of the public. To hold the law to be mandatory would result in its being compelled to shift the location, involving perhaps an extensive change of gradients, as often as the mine owner honeycombs the earth beneath the railway.

Decree affirmed with costs and appeal dismissed..