author: Mr. Justice Gordon

text:
    Winpenny versus Winpenny.
    1. A., who was indebted to B., verbally agreed to give him a lot and to furnish a deed therefor. B. entered upon the lot, made improvements, and lived thereon for many years, but A. never gave him the deed. In a second action of ejectment for the lot: Held, that evidence of the above facts set up.an equitable, not a legal title, and that a verdict and judgment upon the same evidence in the former action of ejectment were conclusive.
    2. An action of ejectment upon an equitable title is a substitute for and equivalent to a bill in equitv, and the verdict and judgment thereon have all the conclusive effects of a decree in equity.
    3. Taylor v. Abbott, 5 Wright 352, criticised, and Treftz v. Pitts, 24 P. F. Smith 343, followed.
    January 13th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia comity: Of July Term 1879, No. 25.
    Ejectment by Bolton Winpenny, surviving trustee under the will of John Winpenny, deceased, against Joseph Winpenny, to recover a house and lot in Manayunk.
    John Winpenny died in 1858, leaving a will which was proved February 25th 1858. Plaintiff, who claimed under the will, alleged that defendant was in possession as tenant of his father, while defendant claimed to own the land by virtue of a parol sale from his father.
    The defendant put in evidence the record of a former action of ejectment brought in the District Court in 1869, for the property in dispute by the same plaintiff against the same defendant. He then proved by the testimony of several witnesses what evidence he had offered on the former trial, at which a verdict was rendered in his favor. This evidence, in effect,- was, that in 1848, by a parol arrangement, defendant had agreed to accept the land in question from his father, John Winpenny, to satisfy a debt of $500, which he owed to defendant, and the father was to execute a deed for the land. Defendant immediately thereafter entered upon the land, and has remained in possession ever since, but the father never gave him the deed. The plaintiff, in rebuttal, offered to show that the father had never made such an arrangement, and that he had exercised ownership over the property after the date of the alleged agreement. The court rejected this evidence, and directed the jury to find for defendant if they believed the testimony of the defendant as to the grounds on which he had obtained the former verdict and judgment, as in that event they were a bar to a subsequent action. The verdict was for defendant, and after judgment plaintiff took this writ, and alleged that the court erred in rejecting the above evidence in rebuttal and the instruction to the jury.

      John Dolman and Benjamin Harris Brewster, for plaintiff in error.
    The title here set up has been expressly decided to be a full legal title, and not a mere equitable title in Pennsylvania, in the case of Taylor v. Abbott, 5 Wright 353, which case decides plainly and broadly, that a purchaser, who has paid all the purchase-money, and has had possession delivered to him, has, in Pennsylvania, the full legal title, notwithstanding the contract stipulates for a deed, and in that case the sole question before the Supreme Court was, whether the first ejectment was a bar. It will not avail the defendant to offer evidence of improvements or length of possession. If the facts alleged by him be true, he had the legal title, and these elements will not change it into an equitable title. Nor can he qualify his legal title by calling the transaction the part execution of a parol contract.

      Charles Davis,- Wayne MaeVeagh and Joseph J. Lewis, for defendant in error.
    Defendant’s title is an equitable one, and the verdict and judgment in the first trial work an estoppel against the plaintiff, and bar his right to recover in a second action: Seitzinger v. Ridgway, 9 Watts 496; Peterman v. Huling, 7 Casey 432; Church v. Ruland, 14 P. F. Smith 441; Bolin v. Connelly, 23 Id. 336; Treftz v. Pitts, 24 Id. 343; Ballentine v. White & Donaldson, 34 Leg. Int. 232. After the Statute of Frauds no legal or even equitable title to a fee passed by livery, unaccompanied by writing and without more; and even if possession were taken, only an equitable, not a legal title passed.
    But in point of fact there was no technical livery, or any pretence of it, in the present case. There was simply the ordinary fact, of almost daily occurrence, of the vendee’s going into possession without getting his deed. In such a case the purchaser would have no standing at all, whether as plaintiff or defendant, in a common-law court. His only remedy would be a bill for the completion of the contract by the conveyance of the legal title, on the ground of part performance. And this is just the case now presented to the court. Taylor v. Abbott, supra, only decides that articles of agreement sometimes operate as a deed of bargain and sale. But see the criticism of that case in Treftz v. Pitts, supra.

   Mr. Justice Gordon

delivered the opinion of the court, January 26th 1880.

By the present plaintiffs, against the same defendant and for the same property, an action of ejectment was instituted, in the year 1869, in the former District Court, which resulted in a verdict and judgment for the defendant. In that suit, Joseph Winpenny claimed, as he does in the present one, the premises in dispute, under and by virtue of a parol contract with his father, John Winpenny. The substance of the terms of that contract was as follows: the father owed the son some five hundred dollars, and in payment thereof agreed to sell and make him, the son, a deed for the property in controversy. Joseph accepted this proposition, went into possession and has continued that possession ever since, but he never received the promised deed. On trial of the present suit, the defendant put in evidence the record of the former case, together with the evidence, substantially as above stated, upon which it was tried.

Thereupon the court below directed a verdict for the defendant, on the ground that the former judgment, having been rendered for Joseph Winpenny upon an equitable title, was conclusive and a bar to a second suit.

Exception is taken to this ruling for two reasons: 1. That the title interposed by the defendant was not an equitable one; and 2. Admitting it to be such, it was not of such' a character as to make one judgment in ejectment upon it conclusive. But if this is not an equitable title, we know not what name to apply to it, for it is certainly not a legal title, since that yet remains in the vendor or his heirs. Had John Winpenny sold to his son Joseph by articles of agreement, at the same time receiving the purchase-money in hand, then, beyond controversy, Joseph’s title would have been only equitable, and enforcable only on the equity side of the court. But in this respect the character of the agreement was not changed, because it was in parol, and because it required proof of partial performance in order to rescue it from the Statute of Frauds and Perjuries. It was still but an equitable title, which none but a chancellor could enforce; John Winpenny still continued to hold the legal title, and that legal title could be enforced in an action of ejectment only by the destruction of this outstanding equity.

The equitable character of the contract being thus established, it only remains to consider whether a single action of ejectment is conclusive of the rights of the parties. If, however, the establishment of the legal title, and its enforcement by the action of ejectment, must, under our system, be effected by what is equivalent to a decree determining the invalidity of the equity, this is not an open question. In such case the only inquiry would be, has Joseph the right to set up his equitable title as a defence ? If he has such right, upon that’title a court must pass, as would a court of chancery, and its judgment must be equivalent to a decree. We need not add that such a decree by a chancellor would be final and conclusive.

We regard Treftz v. Pitts, 24 P. F. Smith 343, as conclusive of the case in hand. Mr. Justice Sharswood, in delivering the opinion, says: “It was settled in Seitzinger v. Ridgway, 9 Watts 496, that in this state an action of ejectment upon an equitable title is a substitute for, and equivalent to, a bill in equity, and that the verdict and judgment have all the conclusive effect which the decree of a chancellor would have. It was determined in Peterman v. Huling, 7 Casey 432, that this rule includes all equitable titles, and that it stands unaltered by any act of the legislature, the resolution of May 5th 1841 having been repealed by the 5th section of the Act of April 30th 1850.”

It is true, that in Taylor v. Abbott, 5 Wright 352, it was held, that one verdict in ejectment was conclusive only in cases where the verdict was conditional, as for the payment of purchase-money. This rule was, therefore, held not to apply to a title under articles of agreement where the purchase-money had been fully paid. This, however, is a mistake, for it limits the rule to actions for purchase-money, and in effect reinstates the resolution of the 5th of May 1841, which, as Mr. Justice Strong has shown, in Peter-man v. Huling, was repealed by the Act of April 30th 1850.

Moreover, it is not necessary that a verdict should he conditional in order that it may have the effect of a decree, for this effect is produced rather by the subject-matter of the suit than by the form of the judgment.

Where an equitable title is the subject of controversy, that can only be disposed of through the equitable powers of the court, and its judgment, in such case, must necessarily have the force of a decree.

It is true, where the purchase-money has been fully paid, full specific performance cannot be enforced by a verdict, nevertheless that is done thereby which a chancellor must do before he decrees the execution of a deed, the rights of the parties are ascertained and determined, which by ejectment, at common law, cannot he done. But none the less is this defect exhibited in a conditional verdict, for the vendor may refuse to comply with it, and if he does, that is an end of the matter, for the court has no compulsory power over him. It thus appears that the defect resides not in the nature or character of the judgment of the court, but in its executive power. The judgment determines and settles all that a chancellor could determine a;nd settle, but the judge has not the process to enforce his judgment that the chancellor has to enforce his decree.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Auer versus Penn.
    1. The fact that a lease is for a longer term than three years does noi prevent a rescission thereof by a parol agreement of the parties when accom
    Íianied by a surrender of the lease and possession by the tenant to the land ord, and the acceptance thereof by the latter. It is not like a sale and transfer to a stranger of an interest in land greater than a term of three years, and is not, therefore, within the Statute of Frauds.
    2. By such acceptance and surrender, the relation of landlord and tenant is ended; and the landlord, having taken possession of the promises, either personally or by another tenant, is estopped from collecting rent.
    January 13th 1880.
    'Before Shabswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 208.
    Covenant upon a lease by Joseph Penn, landlord, against John Auer, the surety for the payment of rent by Jacob Brown, tenant.
    The lease was dated October 15th 1875, and was for a term of five years from date, the rent being payable monthly. The plaintiff filed a copy of the lease and a statement of claim, in which latter was one item for “difference between rent agreed to be paid and rent obtained.”
    The defendant, who was surety for the tenant, filed an affidavit of defence, in which he averred that Brown occupied said premises for about the space of one year; and that he then went to plaintiff and delivered to him the possession of said premises, which plaintiff agreed to take, and did take, and released Brown and deponent as security.
    A supplemental affidavit was filed, in which the defendant averred that Brown, “ on or about the 15th of October 1876, and previous to the falling due of the amounts claimed in this case, did surrender to the plaintiff the term of years of him, the said Jacob Brown, then to come and unexpired, of and in the demised premises under said lease, which surrender the said plaintiff there and then accepted, and the said plaintiff thereby released the defendant from all further liability under said lease, and that the surrender and release stated in the previous affidavit filed, were made before the claim for rent in this case fell due, and before the commencement of the time for which the said rent is claimed.”
    The court made absolute a rule for judgment for want of a sufficient affidavit of defence, w'hen defendant took this writ, and assigned this action for error.

      Thomas B. Price and M. Arnold, for plaintiff in error.
    It would be impossible to make a more explicit statement of a surrender of a lease, and its acceptance by the landlord than that made-in this case. By the plaintiff’s statement, wherein it appears that in one instance a claim is made only for the difference between the rent agreed on and the rent received, it is manifest that he reserved possession of the premises or again leased them.
    The court below said that if the term had been for less than three years, an oral surrender of it would probably have been sufficient; but that as the lease was for five years, the surrender and acceptance are insufficiently averred. But there does not appear to be any authority for such ruling. The question is, can a lease which is in writing be surrendered and the term merged in the fee by an oral agreement executed by the acceptance and resumption of possession by the lessor ? It is well settled that a parol contract for the sale of lands under which possession has been taken, and the price paid or improvements made, will be enforced, notwithstanding the Statute of Frauds. This rule of law frequently works a transfer of the fee simple of real estate. Why should not a similar principle of law be invoked to support the surrender of a term of years where possession has been taken under a parol contract ?

      William Grorman, for defendant.
    Had the term been for less than three years, an oral surrender would probably have been sufficiently set out to send the case to a jury, but being for five years, there must be enough to satisfy the conscience of a chancellor, and to induce him to grant specific relief: Moore v. Small, 7 Harris 461.
    The Act of March 21st 1772, sect. 1; Purd. Dig., vol. 1, 724 ; pi. 2, prohibits a term of years or other interest in lands to be surrendered, unless by deed or note in writing. Consequently, no verbal agreement or arrangement between the parties can effect such a surrender or cancel a lease for five years: Taylor on Landlord and Tenant, page 374, sect. 509, and cases cited; Brown on Statute of Frauds, sect. 37; Rowan v. Lytle, 11 Wend. 616; Roberts on Frauds 248.
    In Schiefflin v. Carpenter, 16 Wend. 400, it was held that a parol agreement between landlord and tenant, that the tenant should surrender his interest in the demised premises (a term of six years), in order that the landlord should execute a new lease for eight years to a third person is not a surrender by operation of lato, and this, although the first tenant quits the premises and a third person enters and remains in possession a year, and pays rent to the landlord. The original lease still remains in force, and the landlord may sue thereon in covenant, and recover the rent subsequently accruing from the original lessor.
   Mr. Justice Mercur

delivered the opinion of the court, March 22d 1880.

This was an action by a landlord against the surety of his tenant for the recovery of rent. The lease was for a term of five years, payable in monthly instalments. The affidavit of defence averred the tenant occupied the premises for about one year, and then he went to the landlord and delivered to him possession of the premises, which the latter agreed to take and did take, and released the tenant and the affiant as security. In the supplemental affidavit it is averred substantially, that said surrender and release were made before the rent fell due, which is now claimed, and before 'the commencement of the time for which said rent is claimed. It further affirms that, previous to the same falling due, the tenant did surrender to the landlord the term of years of him, said tenant, then to come and unexpired, of and in said demised premises under said lease,, which surrender the said landlord then and there accepted, and thereby released said surety from all further liability under said lease. Thus the affidavits declare there was, by the tenant, a surrender of the unexpired portion of the term, and a surrender of the premises and delivery of possession thereof, that the landlord agreed to take and did take and accept the same, and release the tenant and his surety from all further liability under the lease.

If these facts be found by a jury, they will constitute a good defence against a recovery in this case. Articles of agreement for the sale and purchase of .land may be waived or rescinded by parol when accompanied by giving up possession to the vendor. Boyce v. McCulloch, 3 W. & S. 429; Raffensberger v. Cullison, 4 Casey 426. The fact that a lease is for a longer term than three years, does not prevent a rescission thereof by agreement of the parties when accompanied by a surrender of the term and possession by the tenant to the landlord, and the acceptance thereof by the latter. It is not like a sale and transfer to a stranger of an interest in land greater than a term of three years, and, therefore, is not within the Statute of Frauds. It is a yielding up to the reversioner the limited estate derived from him, whereby the future tenancy is rescinded. The relation of landlord and tenant is thereby ended. Hence it was held in Magaw v. Lambert, 3 Barr 444, if the landlord took possession of the ruins for the purpose of rebuilding without the consent of the tenant, it was an eviction; if with his assent, it was a rescission of the lease; and in either case the rent was suspended. Thenceforth the former tenant has neither term nor possession to impose on him an obligation to render a certain profit. His former landlord having taken possession of the premises, and using and occupying the same either personally or by a subsequent tenant, will be estopped from collecting rent for the same period of time, from the former tenant, unless otherwise agreed: Pratt v. Richards Jewelry Co., 19 P. F. Smith 53. The learned judge, therefore, erred in entering judgment for want of a sufficient affidavit of defence.

Judgment reversed, and a procedendo awarded.


text:
    Shisler versus Vandike et al.
    1. Where a fraud is of such a character as to involve a crime, the ratification of the act from which it springs is opposed to public policy and cannot be permitted.
    2. When the endorsement of a note is forged, such endorsement cannot be ratified by the person whose name is forged, as the act is criminal and against public policy.
    3. McIIugh v. Schuylkill Go., 17 P. F. Smith 391, followed.
    January 13th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error 'to the Court of Common. Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 149.
    Assumpsit by George H. Vandike and Theophilus G. Vandike, trading as George II. Vandike & Co., against John A. Shisler, as endorser of a promissory note, dated July 2d 1875, at four months, I for $1500, drawn by Catharine Shisler to the order of George A. Shisler, and endorsed by George A. Shisler, Charles Shisler and John A. Shisler.
    At the trial it appeared, both by the evidence of plaintiffs and of George A. Shisler, who was called for the defendant, that the note in suit was given by George A. Shisler to pay an indebtedness of said George to plaintiffs. The latter testified that they had sent for John A. Shisler and showed him the note, and that he denied that it was his endorsement, but said that he had authorized his brother to endorse for him, and that he considered himself liable under that name, and declared that his name was not John A., but John V. Shisler. A salesman of Vandike & Co. testified that he was present at this interview, and heard one of the Shissler brothers say that they did not sign the note, but authorized their signatures to be put thereon. The defendant testified that he did not endorse the note nor authorize any one to do so for him, and that he had never admitted that he had authorized George to endorse for him. George Shisler, called for the defendant, testir fied: “I brought my two brothers to Mr. Vandike’s to get the note; they both knew of this note before this interview ; I did not endorse the names on the back of the note; never told Vandike that I was authorized to endorse the note; I thought they were genuine signatures. At the interview in Vandike’s store, heard my brother John distinctly state to George Vandike that he authorized the signature to that note.”
    The defendant, inter alia, submitted the following point: “ If you believe that the name of John V. Shisler was endorsed by another person without his authority, and that he subsequently, without any new consideration, ratified or confirmed it, your verdict must be for the defendant.”

      The court declined to affirm this point, and in the general charge, inter alia, said, “ that the theory of the plaintiffs was that George signed the note as his brother’s agent, either with his previous authority or a subsequent ratification, and if the jury believe that view of the evidence, the act was capable of ratification.”
    The court also charged; “ I instruct you that you may disregard the matter of consideration, the evidence being that the plaintiffs took the note in satisfaction of the debt.”
    The verdict was for plaintiffs. After judgment, defendant took this writ, and alleged that the court erred in the answer to the above point, and in the portion of the charge noted.

      Fdwin S. XHclcson and Nathan JB. Sharpless, for plaintiffs in error.
    The court, in saying that the plaintiffs received the note in satisfaction of a d§bt, took the question of fact from the jury. The court was asked to charge, in substance, that if the endorsement was a forgery, and the ratification or confirmation relied on by the plaintiffs was without any new consideration, the plaintiffs could not recover. That this proposition is sound in law is distinctly ruled in McHugh v. County of Schuylkill, 17 P. F. Smith 391. The court should have simply affirmed defendant’s point.
    N. F. Rothermel, for defendants in error.
    To sustain the position that the doctrine, “ a subsequent ratification is equal to a prior command,” does not apply in this case, the defendants cite a single authority: McHugh v. County of Schuylkill, a case standing by itself, unsupported by any decision, and since overruled. The opinion therein was based upon three cases: Duncan v. McCullough, 4 S. & R. 483 ; Chamberlain v. McClurg, 8 W. & S. 31, 36, and Goepp’s Appeal, 3 Harris 428, all of which were expressly overruled in Negley v. Lindsay, 17 P. F. Smith 217, a case decided a few months previous to McHugh v. County of Schuylkill, and reported in the same volume of reports.
    In Negley v. Lindsay, supra, it was held, “ Where a contract is void on the ground of public policy, or against a statute, its confirmation is affected with the original taint.” “Where a contract is void on account of fraud practised on the party, it may be confirmed or ratified without a new contract, founded on a new consideration.”
   Mr. Justice Gordon

delivered the opinion of the court, January 26th 1880.

There was no error committed by the court in saying to the jury, “ I instruct you that you may disregard the matter of consideration, the evidence being that the plaintiffs took the note in satisfaction of the debt.”

There seems to have been no dispute about this on the trial; the whole evidence most clearly proves that the note was intended to apply upon the indebtedness of George A. Shisler to the plaintiffs, and for that purpose it was endorsed, if indeed it were endorsed at all. It was not a pledge of the note as collateral security for a precedent indebtedness, but was given to apply in payment of such indebtedness, and hence was similar to a check drawn for that purpose.

The remaining question is, if George A. Shisler, or any one else, fraudulently endorsed the name of John V. Shisler, would an after ratification render such endorsement good and available in the hands of good-faith endorsees ? The court below thought it would, and so instructed the jury. This instruction seems to us, in the first place, wrong in this, that we can find no evidence to warrant it. There was testimony, and abundance of it, that John had authorized the putting of his name upon the paper, but none whatever that he had subsequently ratified the endorsement, either by word or deed.

The question, however, remains, could the forged endorsement, conceding it to he such, be ratified and thus made good ? This question must be answered in the negative, if we accept as authority the case of McHugh v. Schuylkill County.

This case is in point; there, as here, the question was whether there could be an after ratification of a forged obligation, and it was held that there could be no such ratification. It is true, the dicta of this case, going as they do beyond the point ruled, would indicate that no Contract, vitiated by fraud of any kind, is the subject of subsequent ratification. But this cannot be sustained, as it is opposed to those decisions now regarded as law, notably, Pearsoll v. Chapin, 8 Wright 9, and Negley v. Lindsay, 17 P. F. Smith 217. The distinction between these cases seems to be this, where the fraud is' of such a character as to involve a crime, the ratification of the act from which it springs is opposed to public policy, and, hence, cannot be permitted, but where the transaction is contrary only to good faith and fair dealing; where it affects individual interests, and nothing else, ratification is allowable. It is indeed, conceded, in the cases last above cited, that if the original contract be illegal, or void for want of consideration, no subsequent ratification will help it. If, however, the endorsement under consideration was forged, it was not only void for want of authority, but it was also illegal, and so, comes under the condemnation of all authority.

In Garrett v. Gonter, 6 Wright 143, the question was, whether a mortgage, executed under the authority of a forged power of attorney, was the subject of ratification, and it was held that it was. But here there was no forgery of the mortgage itself, for it was executed under a supposed power. Mr. Justice Stroms, who delivered the opinion, says: “It is hardly accurate to speak of ratifying a forged instrument. It may be adopted, but adoption does not relate back and validate prior acts. If the letter of attorney was forged in 1854, no act of Mrs. Gonter in 1859, after her return from Europe, could make it efficient from its date. But she could confirm the mortgage, for that was executed in her name by a professed agent, acting under a real or pretended authority.” Now, if we properly understand what is here said, it amounts to this: the mortgage, executed without a fraudulent intent, by a professed agent, under a supposed power, was susceptible of rati-fication, whilst, on the other hand, the forged letter of attorney was not susceptible of such ratification. This, of course, presupposes the innocency of both the agent and mortgagee, otherwise the mortgage itself would have been a fraud, and hence no more the subject of ratification than was the power. It is possible this case was strained in favor of the mortgagee, for it is very clear from the evidence, the verdict of the jury to the contrary, notwithstanding, that the power of attorney was genuine. However, be this as it may, this case does not conflict with that of McHugh v. Schuylkill County, and we must therefore consider the latter as of binding authority. We conclude, then, that as, from the evidence, in the case in hand, the doctrine of ratification could have no place except as operative upon a forged instrument, it should have been wholly excluded, since being admitted, it amounted to the ratification of an illegal and criminal act. This sustains the fourth and fifth assignments of error.

Judgment reversed and a new venire awarded.


author: Mr. Justice Trunkey

text:
    Smith versus The Hestonville, Mantua and Fairmount Passenger Railway Company.
    A mother brought an action against a passenger railway company to recover damages for the death of her child, alleged to have been caused by the negligence of the company’s servants. It appeared, by the plaintiff’s evidence, that the child was only seven years of age, and that it had been in the habit, for a small compensation, of serving the drivers and conductors of the cars with water to drink, and was so employed when injured. This employment was with the knowledge and consent of the mother. Held, that it was contributory negligence per se for plaintiff to permit her child to engage in so dangerous an employment, and that a nonsuit was properly entered.
    January 14th 1880.
    Before Sharswood, C. J., Merour, Gordon, Paxson, and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the' Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 264.

      Case by Elizabeth J. Smith against The Hestonville, Mantua and Fairmount Passenger Railway Company, to recover damages for the death of her son, alleged to have been caused by the negligence of defendant.
    Mrs. Smith was a widow, and was employed in cleaning the cars of the Pennsylvania Railroad Company, which necessarily took her from home during the day. Her son Willie, a lad about seven years of age, was in the habit, with other boys of the neighborhood, of getting water at a pump in the vicinity, and of supplying the conductors and drivers with water to drink, who encouraged them to do so by giving them pennies. In order to thus furnish them with water they would mount the platforms of the ears, and there was no evidence that they were ever warned away from the cars by policemen or the drivers or conductors. Plaintiff knew that her son was in the habit of thus carrying water to the cars, and she allowed him to take a cup and pitcher from her house for that purpose. She also saw the money the child made, and cautioned him to be careful in getting on and off the cars. On the afternoon of August 6th 1876, Willie, with two other boys, somewhat older than himself, went to the corner of Thirty-third and Spring Garden streets with a view of thus serving water, as they had done several times before at this point. A car of defendant came slowly up Spring Garden street, and Willie Smith jumped on the front platform, which had no fender, and gave the driver a drink. Two or three minutes thereafter the child was seen on the street between the front and hind wheels of the car, the first wheel having run over him. Two days thereafter he died in the hospital from the injuries thus received.
    The defendant asked for a nonsuit, on the ground that the plaintiff had contributed to the accident by permitting the boy to be thus employed at his tender age. The court, Allison, J., in granting the nonsuit, said:
    “ If this case went to the jury, I should certainly say that it was contributory negligence on the part of the mother to send or permit her child, of seven years of age, to take upon himself the risks of a business of this kind; that is, that no child of seven years of age has discretion enough to be trusted under such circumstances with its own protection, and going with the permission is equivalent to going with the direction of the parent. The parent knew it; furnished it with her own pitcher in which to carry the water; sent it, and sent it even with a caution to be careful, but sent it with these risks upon itself. I cannot, as at present impressed, regard under any circumstances the fact that a parent takes upon itself to permit or to direct her child to go and carry on such a business as that, otherwise than that it is per se negligence, on the part of the parent, to subject a child of seven years of age to all the risks incident to such a business. I will grant the motion.”
    The court in banc subsequently refused to take off the nonsuit, when plaintiff took this writ, and alleged that the court erred in this action

      A. Sidney Biddle, for plaintiff in error.
    The defendant was negligent in allowing so young a child to ride upon the platform. So also in not having a guard to the platform, and in not stopping the car to allow the child to alight: Fairmount & Arch Street Passenger Railroad Co. v. Stutler, 4 P. F. Smith 375; P. A. & M. Passenger Railway Co. v. Caldwell, 24 Id. 421; Crissey v. Hestonville Railroad Co., 25 Id. 83; Philadelphia City Passenger Railway Co. v. Hassard, Id. 367; Gray and Bell v. Scott and Wife, 16 Id. 348; Drew v. Sixth Avenue Railway Co., 26 N. Y. 49; Colgan v. West Philadelphia Passenger Railway Co. 4 W. N. C. 401; Kay v. Penna. Railroad Co., 15 P. F. Smith 276. There was no proof of contributory negligence on the part of the child, and if his negligence had contributed to the accident, his youth was sufficient to prevent the inference of contributory negligence against him: Rauch v. Lloyd, 7 Casey 358 ; Johnson v. The West Chester & Philadelphia Railroad Co., 20 P. F. Smith 357. Nor was there contributory negligence on the part of the mother. She knew the child was in the habit of carrying water to the driver, but she could not have foreseen an accident which could not have happened except for the gross carelesness of defendant: Pennsylvania Railroad Co. v. Ogier, 11 Casey 72 ; Gray et al. v. Scott et ux., 15 P. F. Smith 345. The permission of the mother to the child to carry water was not the proximate cause of an accident which resulted from defendant’s negligence : Drew v. Sixth Avenue Railroad Co., 26 N. Y. 49; Cosgrove v. Ogden, 49 Id. 245; Pennsylvania Railroad Co. v. Lewis, 29 P. F. Smith 33.
    The Act of April 26th 1855, Pamph. L. 309, was a supplement to the Act of April 15th 1851, Pamph. L. 674. It was the purpose of the Act of 1855 to substitute the personal representatives of the deceased for him, and the sum to be recovered being theoretically part of the estate of the deceased, which the law then proceeds to distribute according to the directions of the statute, it is difficult to see how any contributory negligence on the part of the statutory plaintiff can have any effect in debarring the recovery.

      Samuel Cfustine Thomfson, for defendant in error.
    The presumption is that proper care was exercised by the company, and that -presumption must be overcome by him who asserts otherwise. A person who asserts he has received an injury from defendant’s negligence, must prove it, and if no such proof be adduced the presumption of innocence remains, and it is error to submit to the jury whether there was negligence or not: Railroad Co. v. Heil, 5 W. N. C. 93; Clark v. Railway Co., Id. 119; Wiebrand v. Eighth Avenue Railroad Co., 3 Bosw. 313. It was negligence, per se, to permit a child of such tender years to engage in an employment attendant with so many risks: Kay v. Pennsylvania Railroad Co., 15 P. F. Smith 276; Railroad Co. v. Hummell, 5 Wright 376; Philadelphia & Reading Railroad Co. v. Long, 25 Id. 257; Glassey v. Hestonville Passenger Railroad Co., 7 Id. 172; Smith v. O’Connor, 12 Wright 223; P. A. & M. Railroad Co. v. Pearson, 22 P. F. Smith 171; Pennsylvania Railroad Co. v. Lewis, 29 Id. 33.
   Mr. Justice Trunkey

delivered the opinion of the court, February 2d 1880.

Previous to the accident which caused the death of the plaintiff’s son, he and older boys had been in the habit of supplying with water to drink, the drivers and conductors, who encouraged them to do this by giving them pennies. At the time, the plaintiff’s child was at the defendant’s cars for .that purpose. The plaintiff not only had knowledge of this habit, which began before the summer vacation of the public school and was continued in the vacation, but she permitted it. She saw the money her child made, furnished him with cup and pitcher, and cautioned him to be careful in getting on and off the cars.

The child was not seven years of age. He was incapable of negligence, and could not use the care required of a mature person under like circumstances. His business was with the defendant’s employees — to give them water and receive a reward. This is not the case of a child having occasion to cross the track in going to school, or for other purpose; nor of one that had wandered into the street without the parent’s knowledge; nor even of one permitted to play on the street. If it be that the plaintiff’s testimony warrants an inference of negligence by the defendants, because their drivers and conductors encouraged this child with others to furnish them water, the admitted fact that the child’s act was with the plaintiff’s permission, authorized the judgment of nonsuit, for the reason given by the learned judge of the Common Pleas.

The argument of counsel certainly is ingenious in support of his proposition, that “the negligence of the statutory plaintiff, arising from knowledge or direct act, cannot preclude recovery where there has been no contributory, negligence on the part of deceased.” However, this is not an open.question. In Smith v. O’Connor, 12 Wright 218, it was held, that it is not unjust to require a defendant to answer for the mischief done by his wrongful conduct, in favor of one who was not in concurrent fault; and that an infant seven years old could not be in such fault. This was in reference to an action by the infant himself, and, respecting an action by a father for an injury to his infant son, Strong, J., said: “In such a case, it may be that the father should be treated as a concurrent wrongdoer. The evidence may reveal him such. His own fault may have contributed as much to the injury of the child, and consequently to the loss of services due him, as did the fault of the defendant. He owes to the child protection. It is his duty to shield it from danger, and his duty is the greater, the more helpless and indiscreet the child is. If by his own carelessness, his neglect of the duty of protection, he contributes to his own loss of the child’s services, he may be said to be in pari delicto with a negligent defendant.” These remarks were pertinent to the point decided in Glassey v. Railroad Co., 7 P. F. Smith 172, that a father cannot recover for an injury to his infant son, which was partly caused by his own imprudent act in failure to perform his .paternal duty; and it makes no difference whether the injury of which he complains, was to his absolute or relative rights. Referring to that case, the present Chief Justice said, it very properly settled, “ that if the parents permit a child of tender years to run at large without a protector, in a city traversed constantly by cars and other vehicles, they fail in the performance of their duties, and are guilty of such negligence as precludes them from a recovery of damages for any injury resulting therefrom. If the case is barely such, the negligence is a conclusion of law, and ought not to be submitted to the determination of the jury :” Railway Co. v. Pearson and Wife, 22 P. F. Smith 169. The principle was repeated in Railroad Co. v. Long and Wife, 25 P. F. Smith 257, where it was said: “To suffer a child to wander on the street has the sense of permit." If such permission or sufferance exist, it is negligence.”

Most frequently, in trials, the question whether there was reasonable care on the part of the parent is a fact for the jury ; but where the testimony of the plaintiff directly shows his contributory negligence, it is the duty of the court to pronounce the law.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Simons versus Kern.
    1. Where an owner of real estate in the city of Philadelphia registers his deed therefor in compliance with the requirements of the Act of March 29th 1867, a sheriff's sale of said real estate passes no title where it was made under an execution in a suit in which the original writ was not served as directed by said act.
    2. It is the duty of a purchaser at a sheriff’s sale to see that the authority to sell exists. Where an examination of the registry bureau would have informed a purchaser that a lot sold had a registered owner, and the record of the proceeding on which he based his title admonished him that there was no such service of the writ as the law required, and without which the sale was expressly forbidden, he was visited with notice that the sale was unauthorized and void, and had no reason to complain that he took nothing by his purchase.
    3. The absence of authority in the sheriff may be taken advantage of in an action of ejectment brought by the sheriff’s vendee to obtain possession, although the sheriff’s deed has been acknowledged to said vendee.
    4. Certain premises were duly registered in the name of the proper owner. A scire facias upon a municipal claim issued against said premises, which was returned: “ Made known by posting a true and attested copy of the within writ on the premises within described, September 11th, ’75, and by advertising twice a week, for two weeks, in the ‘Evening Bulletin,’ a daily paper published in this city, agreeably to the Act of Assembly in such case made and provided. Nihil habei as to Samuel Simons.’’ Held, that this return was not according to the provisions of the Registry Act, and was further defective, inasmuch as it did not set forth the place of posting and the time and manner of publication: Wistar v. City, 5 Norris 215.
    5. Shields v. Miltenberger, 2 Harris 76, and Soullier v. Kern, 19 P. F. Smith, reviewed and followed.
    January 15th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia, county: Of July Term 1879, No. 115.
    Ejectment by Walter R. Kern against Samuel Simons for a messuage and tract of land on the northeast corner of Thirty-second and Pearl streets, in the city of Philadelphia.
    At the trial the plaintiff offered in evidence the record of a suit in the Court of Common Pleas, No. 1, by the City of Philadelphia to the use of Joseph W. Maull against Samuel Simons on a claim for work done on a culvert in front of the premises in dispute. A prsecipe for a seir.e facias issued on the lien filed, and was accompanied by the affidavit of Maull, which set forth that Simons was the owner of the lot in question, and had a known residence in the city, and that defendant had served notice on said owner by giving to him personally notice of the claim, and making known the contents to him. That a scire facias issued against Simons, to which the sheriff made return :
    “ Made known by posting a true and attested copy of the within writ on the premises within described, September 11th ’75, and by advertising twice a week, for two weeks, in the ‘ Evening Bulletin,’ a daily paper published in this city, agreeably to the Act of Assembly in such case made and provided. Ñihil habet as to Samuel Simons.”
    Judgment was entered for want of affidavit of defence. A levari facias issued, and the property was sold to the plaintiff, to whom the sheriff executed a deed. This deed duly acknowledged and recorded was also offered in evidence.
    Defendants offered in evidence:
    1. The deed from John Shedwick and wife to Samuel Simons and his heirs, dated June 8th 1870, and duly recorded for the premises in question. 2. The certificate of the Survey Bureau of the Department of Surveys of the city of Philadelphia, endorsed upon said deed: “ Registry Bureau, Survey Department, June 21st 1870. Entered.” 3. A certificate of search from the survey bureau aforesaid, showing that the premises in suit stood, on the 1st of July 1870, registered as the property of “ Samuel Simons, present owner.”
    The defendants requested the court to charge as follows: “That the Court of Common Pleas, No. 1, had no jurisdiction over the cause of the city to the use of Maull v. Samuel Simons, December Term 1874, No. 49, under the execution in which Walter R. Kern, plaintiff in the present cause, claims title to the real estate here in dispute, subsequently to the return to the sci. fa. sur municipal claim therein, and that the judgment and execution in the said cause of the city to the use of Maull v. Simons were and are null and void, and that the said Walter R. Kern took no title thereunder; all by reason of the operation of the Act of Assembly approved March 14th 1865, sect. 9, Pamph. L. 32, entitled, an act to promote the more certain and equal assessment of taxes in Philadelphia, as amended by the Act of March 29th 1867, sect. 1, Pamph. L. 600, Purd. Dig. 1379, pi. 137.”
    The court, Finletter, J., refused so to charge, and instructed the jury to find a verdict for the plaintiff, subject to the said point of law reserved for the consideration of the court in banc. Verdict for plaintiff, and afterwards judgment for plaintiff on the point of law reserved, when defendant took this writ, and alleged that the court erred in thus entering judgment.

      John Bellangee Cox and Win. Henry Bawle, for plaintiff in error.
    By the Act of March 14th 1865, Pamph. L. 1030, Purd. Dig. 1376, a registry bureau was established, and the city divided into sections for the registry of every lot; and, under penalty, every buyer or seller was required to present his deed for registration. By the Act of March 29th 1867, Pamph. L. 600, Purd. Dig. 1378, pi. 137, it is made the duty of the purchaser to register his deed, and after such registration the act declares, no sale for taxes or other municipal claims shall be made, except after recovery by suit and service of the writ upon the registered owner, as in the case of a summons. While it is true that a sheriff’s vendee is not affected by mere defects or irregularities in the process, it is equally well settled, that no title passes by a sale made without authority or under illegal process, or where the objections touch the foundation of the proceedings, by impeaching the authority of the officer who makes the sale. A sale expressly prohibited by statute, does not constitute, as against the owner, amere irregularity; it is made without authority and is clearly a nullity: Shields v. Miltenberger, 2 Harris 78; Wistar v. City, 5 Norris 215; Mortimer v. Piggott, 2 Dowling Prac. 616; Porter v. Neelan, 4 Yeates 108; Glancey v. Jones, 4 Id. 212; Allison v. Rheam, 3 S. & R. 139; Kintz v. Long, 6 Casey 501. Sheetz v. Wynkoop, 24 P. F. Smith 198, and Soullier v. Kern, 19 P. F. Smith 16, rule this case. The first case arose under the Act of April 18th 1861, Pamph. L. 409, Purd. Dig. 1061, pl. 183, which provides that: “ No civil process shall issue or be enforced against any person mustered into the service of this state, or of the United States, during the term for which he shall be engaged in such service, nor until thirty days after he shall have been discharged therefrom.”
    The second, under the Act of 16th April 1840, section 10, Pamph. L. 413, Purd. Dig. 1088, pl. 23, which provides, “no property owned by minors, shall be sold under the provisions of mis act, until the expiration of two years' from the time the said minor shall have become of age.”
    The effect of these statutes is, that under the first act, no title passes if the owner is actually in military service — under the second act, no title passes if the owner is a minor; and under the act of 1867, no title passes if the owner is registered. In fact, both Sheetz v. Wynkoop and Soullier v. Kern, are much less strong than this case. In those cases the purchaser could not possibly protect himself, while here he had but to examine the records of the registry department.

      Hood Gilpin and Charles Gilpin, for defendant in error.
    The form of return in City v. Simons, is identical with that used from the time of Delaney v. Gault, 6 Casey 63, in 1858, down to that of Wistar v. The City, 5 Norris 215, in 1878. It has always been the law, in this state, that an irregularity or defect in the record of a suit was cured by judgment therein, and the acknowledgment of the sheriff’s deed to a bona fide purchaser for value, and that such purchaser took a good and valid title to such property.
    The most that may be said of the judgment in the suit of City v. Simons, is that it is voidable only, and not void absolutely; and being so, may only be taken advantage of by proceedings in the original suit, and is good to pass a title to a bona fide purchaser for Value, if not so impeached and avoided.
    Such a construction as is demanded would prevent the collection of the city taxes, should the owner of vacant and unoccupied premises leave the county and remain away; and throw such obstacles in the way of their collection, by the municipal authorities, as would render the expense of the collection of the duty, greater than the duty was worth. It would be at variance with the settled doctrine of this court, regarding the collection of taxes and duties, by placing the right of the community beneath that of the individual, and making the person and not the land itself liable to the burden.
    In Wistar v. The City, supra, we have a recognition by this court, of the old mode of procedure practiced under and sanctioned by the laws of this state, and decisions thereunder for the last twenty years. Hundreds of titles have become vested thereunder, and this court is asked here to upset the entire law and practice, because the defendant neglected for six months, after he was notified, to attend to the suit of the city, until his title was divested by the sheriff’s sale.
   Mr. Justice Sterrett

delivered the opinion of the court, January 26th 1880.

The question in this case is, whether the sheriff’s sale, on which the defendant in error bases his claim to the lot in controversy, was valid or void. The plaintiff in error contends that it was void, for want of authority, and consequently his title was not divested thereby. If this be so, there was error in entering judgment against him on the question of law reserved.

It appears that in June 1870, immediately after he acquired title to the lot, his deed was duly registered in the registry bureau of the survey department of the city, and, on the following day, recorded in the office of the recorder of deeds. He had thus complied strictly with the requirements of the law, and had a right to rely on such statutory provisions as were intended for the benefit and protection of property owners who were not in default, in returning their property for registration. The supplement to the registry law, approved March 26th 1867, Pamph. L. 600, makes it the duty of purchasers, devisees and persons to whom allotments in partition are made, to present their deeds or title papers at the registry bureau, so that they may be endorsed in accordance with the act, and imposes a penalty for neglect to do so. It then provides that “no property so returned shall be subject to sale for taxes or other municipal claims thereafter to accrue as a lien of record thereon, except in the name of the owner as returned, and after recovery by suit and service of the writ on him as in the case of a summons.” The lien was filed and proceedings thereon conducted in the name of the plaintiff in error as owner of the lot, and in this particular the provisions of the act were complied with ; but neither the writ of scire facias nor any other writ vm served “on him as in the case of a summons,” or in any other form. The sheriff's return to the writ of scire facias was “made known by posting a true and attested copy of the within writ on the premises within described, September 11th 1875, and by advertising twice a week, for two weeks, in the ‘ Evening Bulletin,’ a daily paper published in this city, agreeably to the Act of Assembly in such case made and provided. Nihil habet as to Samuel Simons.” Even if the plaintiff in error had not brought himself within the provisions of the registry act, above quoted, this return would have been defective, as was shown in Wistar v. The City of Philadelphia, 5 Norris 215. The Act of March 23d 1866, Pamph. L. 303, was intended to remedy the then existing grievances, fully recited in its preamble, among which were the oppressive costs and expenses to which property owners were subjected, and especially the sale of their property without notice to them; but the provisions of this act were deemed an inadequate remedy, and the following year the supplement above cited was passed. It provides, as we have seen, that no registered real estate shall be subject to sale except after service of the writ on the owner as in the case of a summons. The obvious purpose of this and previous legislation on the subject was to secure a complete record of real estate in the registry bureau of the city, so that it might be more readily subjected to taxes and other municipal burdens, and at the same time to render registered owners more secure in their titles by prohibiting sales for taxes or other municipal claims without the prescribed form of notice. It cannot be doubted that a sale made in direct violation of this statutory prohibition is void. It is not a mere irregularity that would be cured by the acknowledgment of the sheriff’s deed. The omission to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time or improper manner, and the like, may properly be regarded as irregularities which do not strike at the foundation of authority for the proceedings in which they occur, and will, therefore, be cured by subsequent judicial approval. As is said in Shields v. Miltenberger, 2 Harris 76, all the cases “ distinguish between those objections that touch the foundation of the proceeding, by impeaching the authority of the officer or establishing the existence of fraud, and those which simply suggest irregularities in the process or sale. The absence of authority or the presence of fraud utterly frustrates the operation of the sale as a means of transmission of title, and avoids it from the beginning. Either may be insisted on, even after the formal acknowledgment of the conveyance; but mere irregularities, whether of omission or commission, which do not render the officer powerless, or taint the transaction with turpitude, may be cured by the tacit acquiescence of those who ought to speak in time.”

Prior legislation as to the mode of service on registered owners, so far as it is inconsistent with the supplement of 1867, was in effect repealed thereby, and where it appears of record, as it does in this case, that the writ was not served “as in the case of a summons,” there is clearly a want of authority either to issue or execute the writ. The purchaser at such unauthorized sale cannot claim protection. The maxim, caveat emptor, is applicable to him. It is his duty to see that authority to sell exists. In this case an examination of the registry bureau would have informed the purchaser that the plaintiff in error had registered his lot, and the record of the proceeding, on which he bases his title, admonished him that there was n'o such service of the writ as the law required, and without which the sale was expressly forbidden. He was, therefore, visited with notice that the sale was unauthorized and void, and has no reason to complain that he took nothing by his purchase.

In Soullier v. Kern, 19 P. F. Smith 16, construction was given to the tenth section of the Act of April 16th 1840, Pamph. L. 314, which enacts, inter alia, that “no property owned by minors shall be sold under the provisions of this act, until the expiration of two years from the time said minors shall come of age.” A municipal claim for paving was filed against a lot owned by tenants in common, one of whom was a minor. After service of the scire facias, by posting and publication, judgment was obtained, and at a sale thereunder, the premises were purchased by the defendant, Kern, against whom an action of ejectment was brought by the owners. It was held, that while the sheriff’s sale transferred the title of the adult owners, who were not within the protection of the statute, it did not divest the interest of the minor. Mr. Justice Williams, delivering the opinion of the court, said, “ The object of the legislature in passing the act was to protect the estates of minors and prevent their sacrifice at judicial sales. * * * There was evidence tending to show that one of the plaintiffs was a minor; and if so, under the provisions of the act, his interest was not divested by the sale; and the court should have submitted the ease to the jury with instructions that if they found he was a minor, at the time of the sale, then the sale, as respects his interest, was void, and he was entitled to recover.”

In Sheetz et al. v. Wynkoop et al., 24 P. F. Smith 198; Kuntz v. Long, 6 Casey 501; Burd v. Dansdale, 2 Binn. 80; Allison v. Rheam, 3 S. &. R. 139, and Berry v. Hamill, 12 Id. 211, principles somewhat analogous to that involved in the present case were recognised. It has been repeatedly held also, that a sheriff’s sale, under a writ of fieri facias, without inquisition or waiver thereof, is simply void and passes no title to the purchaser: Baird v. Lent, 8 Watts 422; McLaughlin v. Shields, 2 Jones 283; Shoemaker v. Ballard, 3 Harris 92; Wolf et al. v. Payne, 11 Casey 97 ; Gardner v. Sisk, 4 P. F. Smith 506, and St. Bartholomew’s Church v. Wood, 11 Id. 96. The main ground of these decisions is, that the law requiring an inquisition to be held was intended for the benefit of the debtor.

It has been suggested that great inconvenience and loss must result from inability to obtain service of the writ on non-resident owners, if it is required to be served as a summons. This may be so; but, if a remedy be needed, the power to provide it belongs to the legislature and not to the courts. Arguments from inconvenience should not be permitted to prevail against the positive prohibition of the statute.

Judgment reversed, and judgment on the question of law reserved, is now entered here in favor of the defendant below, non obstante veredicto.


author: Mr. Justice Paxson

text:
    Hacker versus Cozzens.
    A property which was subject to two successive ground-rents was sold under a subsequent mortgage. Held, that the arrears on the first ground-rent due at the time of the sheriff’s sale were not discharged thereby, the intervening estate of the second ground-rent preventing such a result.
    January 14th 1880.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 181.
    Covenant by William Hacker against Henry D. Cozzens, the original covenantor, in a ground-rent deed, to recover arrears of ground-rent.
    By indenture dated the 31st of December 1841, William Martin and others, trustees, conveyed to Henry D. Cozzens, a lot of ground on Seventh street, south of Fitzwater street, Philadelphia, reserving thereout, by the same indenture, a yearly' ground-rent of $42.50, payable semi-annually.
    This ground-rent by several mesne conveyances, subsequently became vested in the plaintiff, William Hacker. The land after-wards became vested in Thomas Stewart, who, by deed dated the 27th of June 1874, conveyed it to Stephen W. Smith, reserving thereby, a yearly ground-rent of $47.50. On the 28th of August 1874, Smith executed a mortgage upon the premises (subject to both ground-rents), to Samuel N. Gould, to secure the payment of $1100. Gould’s assignee brought suit on the mortgage, and on the first Monday of April 1878, the sheriff sold the property, under these proceedings, to Jacob Moore for $800, and conveyed the premises to him. The fund arising from the sale, after paying costs and taxes, was paid by the sheriff on account of the mortgage.
    The plaintiff subsequently brought this action of covenant, to recover arrears of the first ground-rent which were due at the time of the sale, and also for the six months arreai’s which fell due July 1st 1878.
    Moore, the purchaser at sheriff’s sale under the mortgage, and terre-tenant, filed an affidavit of defence, in which he set forth the facts as above stated, and averred, that the arrears of ground-rent accruing before the sheriff’s sale, were payable out of the proceeds of sale, and consequently were discharged by it. The plaintiff took a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, which the court discharged, Allison, P. J., delivering the following opinion :
    “ The premises concerning which this controversy arose, were encumbered by two ground-rents of different dates anda subsequent mortgage. The sale of the land under the mortgage realized $800. This suit is brought to recover arrears upon the first ground-rent, due and payable at the time of the sale. The owner of the ground-rent contends, that they were not thereby discharged; and that the effect of the Act of April 6th 1880, Purd. Dig. 478, sect. 104, is to preserve prior liens where any fixed estate in the land, or lien intervened between the prior lien and that under which the sale took place. In Devine’s Appeal, 6 Casey 348, it was ruled, that a purchaser at a sheriff’s sale of a property, subject to a mortgage and a prior ground-rent, takes subject to the arrears of the groixndrent due at the time of the sale. In Wertz’s Appeal, 15 P. F. Smith 306, where the owner of land charged with a widow’s thirds had mortgaged it, and a judgment was afterwmrds recovered against him under which the land was sold; it was also held, that the purchaser took it subject to the arrears of interest due to the widow. On the other hand, in Dickinson v. Beyer, 6 Norris 274, where instalments were due and payable to the widow, at the time of a sheriff’s sale made on a subsequent judgment, there being no mortgage intervening between it and the charge of the widow’s thirds, it was held that the arrears were discharged, and became payable out of the proceeds of the sale. Mr. Justice Woodward, in a very carefully considered opinion, reviews the question in the light of all the cases which have been decided by the Supreme Court, and with clear discrimination, distinguishes the authorities which might seem somewhat to conflict with one another; he explains their true bearing and application to the question, of the effect of judicial sales upon prior estates in the land, and upon liens which are fixed liens, and are definite and certain in their amount; and also in what instances the arrears due thereon at the time of the sale, are either protected or discharged. Mather v. McMichael, 1 Harris 301, is cited with approval, and Judge Bell is quoted as saying the cases in 2 Binn. 146; 8 W. & S. 381; 9 Id. 189, and 2 Barr 96, settle the doctrine that arrears of ground-rent, being a lien on the land charged, are to be paid out of the proceeds when sold by judicial process. They are likened to widow’s annuity or dower charge on land, the arrears of which, if due at the time of the sale are discharged, ‘ and as a necessary consequence, the owner is turned on the proceeds in exoneration of the land.’ The statement of Chief Justice SharSWOOB, of the same principle in Wertz’s Appeal, supra, is also quoted in Dickinson v. Beyer, in which the learned judge says, that though the charge be a fixed lien, incapable of divestiture, the rule is different as to any arrears, either of rent, annuity or interest, which may be due at the time of the sheriff’s sale, because such arrears are ascertainable with certainty in amount, and therefore payable out of the fund.
    “ After citing the cases, the distinction was stated to consist in the fact, that in none of them was there a mortgage immediately following the fixed lien. Much of the obscurity which seems to attach to some of the cases, arises from the fact, that the distinction is not always clearly taken between a fixed lien in the nature of a ground-rent, or a widow’s dower right or charge upon land, and a mortgage, which is protected under the Act of 1830. When a fixed lien is spoken of, it usually refers to such a mortgage; and when thus applied, there is little or no conflict of decision. This is the distinction clearly taken in Wertz’s Appeal, supra, which holds, that when a mortgage is prior to all other liens except a fixed charge on the land, not itself divested by a sale, the lien of the mortgage is not divested by a sale under a subsequent lien, and arrears on such prior charge are not to be paid from proceeds of sale. Such mortgage, being protected by the Act of 1830, the sale is subject to all prior encumbrances. Lauman’s Appeal, 8 Barr 473, may also be referred to as supporting the doctrine, that where there is no mortgage upon the land, which is covered by the Act of 1830, but which was subject to the charge, first, of the widow of A. and afterwards to that of the widow of B., the land having been sold under a judgment against a subsequent owner, though the charge is not disturbed by the sale, the arrearages of interest thereon are payable out of proceeds of sale.
    “ For the reasons stated, we are of the opinion that the arrears due on the ground-rent now sought to be recovered, were discharged by the sale under the mortgage; and we, therefore, discharge the pending rule for judgment.”
    Plaintiff took this writ and alleged, that the court erred in refusing to enter judgment for plaintiff.

      E. ir. Clay, for plaintiff in error.
    It never seems to have been even doubted that an estate, anterior in date to the lien under which the land was sold, and to other liens, was preserved. “A judicial sale extinguishes liens, not estates:” Catlin v. Robinson, 2 Watts 473. And, to the same effect, Irwin v. Bank of United States, 1 Barr 349; Schall’s Appeal, 4 Wright 170; Cadwalader on Ground-Rents, sect. 251.
    The case of D ckinson v. Beyer, 6 Norris 274, cited by the learned judge below, as well as the analogous cases of Reed v. Reed, 1 W. & S. 235; Mohler’s Appeal, 5 Barr 418; Klein v. Bowman, 7 Harris 24; Schertzer’s Executors v. Herr, 7 Id. 34, do not rule the present case. They all hold, that the arrears of interest due to a widow from a charge imposed on the land in her favor, are discharged by a judicial sale: but in every one of these cases, the judicial sale was upon a lien immediately succeeding the charge on the land, or estate in the land, for the benefit of the widow. The principle decided by them is that of Bantleon v. Smith, 2 Binn. 145.
    If the second ground-rent had never been reserved, then, undoubtedly, the arrears of the first rent would have been discharged by the sale; but the moment the estate of the second ground-rent holder was carved out of the land, and became the next charge in order, the plaintiff could rest assured that no sale on any lien subsequent to it, could injure or affect his arrears. He was then made as fully as secure, as if the second rent were a mortgage, and protected by statute: Sower’s Appropriation, 9 W. & S. 104; Mix v. Ackla, 7 Watts 315; Swan’s Appeal, 1 Barr 92; Devine’s Appeal, 6 Casey 357; Wertz’s Appeal, 15 P. F. Smith 306; Cadwalader on Ground-Rents, sects. 251, 276. Lauman’s Appeal, 8 Barr 473, did not raise the question at bar. Devine’s Appeal and Wertz’s Appeal, supra, are more recent authorities.

      Charles C. Lister, for defendant in error.
    This case is ruled by Bauman’s Appeal, supra, and Dickinson v. Beyer, supra. We rely also upon the opinion of the court below, and the cases therein cited.
   Mr. Justice Paxson

delivered the opinion of the court, March 1st 1880.

This was an action of covenant to recover arrears of ground-rent.' An affidavit of defence was filed by the terre-tenant, who was the purchaser at sheriff’s sale of the premises out of which the ground-rent had been reserved, setting forth that said arrears had been discharged by the sheriff’s sale. The court below held the affidavit sufficient, and refused to enter judgment.

At the time of the sheriff’s sale, the encumbrances upon the property stood in the following order: 1. Ground rent of $42.50, upon which this suit was brought; 2. Ground-rent of $47.50; and 8. Mortgage of $1100. The property was sold upon the mortgage, and the proceeds, after paying costs and taxes, were paid by the sheriff on account of the mortgage. The simple question for our determination is whether the sale discharged the arrears of the first ground-rent.

The question of the effect of a judicial sale upon liens-and encumbrances was so thoroughly discussed in the recent case of Dickinson v. Beyer, 6 Norris 274, that we may well be excused its repetition. It was held in that case that where land charged with a widow’s dower was sold upon a judgment which was immediately subsequent thereto in point of lien, the arrears of such dower were discharged by the sale. The charge itself remains, but the arrears being ascertainable with certainty in amount, are payable out of the fund, and therefore discharged. It is very clear that if the mortgage upon which the property in dispute was sold, had been the next lien in point of time to the first ground-rent, the arrears of such ground-rent would have been discharged. But there was a second ground-rent intervening between it and the mortgage. This was not only a fixed lien, which could not be disturbed except as to the arrears thereof, but it was also an estate, and of greater dignity than a mere lien or a mortgage. As a necessary result, the arrears of the prior ground-rent were not payable out of the proceeds. A judicial sale extinguishes liens, not estates: Catlin v. Robinson, 2 Watts 373 ; Irwin v. The Bank of the United States, 1 Barr 349; Schall’s Appeal, 4 Wright 170; Cadwallader on Ground-Rents, sect. 251. It is apparent that if the second ground-rent had been a mortgage, the arrears of the first ground-rent would not have been divested. This is settled by Devine’s Appeal, 6 Casey 348. The Act of 1830, by which mortgages are protected, was only declaratory of the law as it had long existed in regard to fixed liens, and its effect was to extend to mortgages the protection which such liens had before enjoyed. The cases of Dickinson v. Beyer, supra; Reed v. Reed, 1 W. & S. 235; Mohler’s Appeal, 5 Barr 418; Kline v. Bowman, 7 Harris 24; and Sherzer’s Executors v. Herr, Id. 34, decide that the arrears of a widow’s dower are payable out of the proceeds of a judicial sale, but in each of them the sale was upon a lien next in point of time to the dower. On the other hand, Wertz’s Appeal, 15 P. F. Smith 306, rules that when a mortgage is prior to all other liens, except a fixed charge on the land not itself divested by the sale, the lien of the mortgage is not divested by a sale under a subsequent lien, although there may be arrears due on the prior charge, whether accrued before or after the date of the mortgage; and that such arrears, being part of the fixed charge, are not to be paid from the proceeds of sale.

We do not regard Lauman’s Appeal, 8 Barr 473, as in conflict with the foregoing views. In that case there were two widows, each having a dower in the land sold at sheriff’s sale, and each was allowed her arrears of dower out of the proceeds, under the authority of Reed v. Reed and Mohler’s Appeal, supra. It appears to have been conceded that both widows were entitled to the arrears out of the proceeds of the sale, and the point now made was not discussed, and for anything that appears was not considered. I see no trace of any objection to the payment of the arrears due the first widow.

It was said by Chief Justice Gibson, in Tower’s Appropriation, 9 W. & S. 103, that “ if a junior creditor is compelled to leave a particular encumbrance standing on the land, he is necessarily compelled to leave standing any other encumbrance which precedes it; and on a judgment subsequent to a fixed lien the sheriff consequently sells the estate subject to encumbrances which the proceeds might not satisfy, nor the sale dissolve. In other words, a judgment-creditor shall not turn the land into money, where he cannot do it as beneficially for a paramount encumbrance as that paramount encumbrance could do it for himself, and he, consequently can sell no more than the contingent or resulting interest.” If we apply this principle to the case in hand, it will be seen that if the arrears of the first ground-rent are discharged by the sale, the paramount encumbrance is left without protection. Eor if the arrears may be paid out of the proceeds, they must be so paid, as they are discharged. Hence, if the second ground-rent carved out of the land should happen to exceed its value, so that a sale under a junior encumbrance would produce no fund wherewith to pay the arrears of the first, yet they would nevertheless be discharged by the sale. It is also difficult to see how the second ground-rent-can stand as a charge if the arrears of the first are payable out of the proceeds of the sheriff’s sale.

We are of opinion that the plaintiff below was entitled to judgment.

The order of the court below discharging the rule for judgment for want of a sufficient affidavit of defence is reversed; and it is now ordered that the record be remitted to the said court, with directions to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be so entered.


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    Sharpless versus Ziegler. Good versus Same.
    1. An affidavit for an attachment, under the Act of March 17th 1869, is sufficient, if made in the words of the act without setting out specific acts of fraud.
    2. Under the act, such an affidavit is a sufficient warrant to the prothonotary to issue the writ, as the act is not designed so much for the satisfaction of his mind as to the rectitude of the application, as to commit, on oath, the applicant to the truth of his allegations, in order that he may he legally liable therefor, if false.
    January 15th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1880, Nos. 48 and 49.
    These were attachments under the Act of March 17th 1869, Pamph. L. 8, the one issued by Sharpless & Sons against George W. Ziegler, and the other by Good & Wilson against same defendant.
    The following was the affidavit in Sharpless v. Zeigler, on which the attachment issued:
    “ William M. Wylie, of the city of Philadelphia, state of Pennsylvania, salesman and buyer for George W. Ziegler, having been duly sworn according to law, deposes and says: that the said Ziegler is indebted to the firm of Sharpless & Sons, plaintiffs herein, in the amount of $897.15 for goods sold and delivered by said Sharp-less & Sons to said Ziegler, since the first day of January, a. d. 1879, and that deponent appearing on behalf of the said plaintiffs, deposes that the said debt is a just debt, and that the said goods were dry goods; and that the said defendant, George W. Ziegler, is now the owner and possessor of about $7000 worth of goods, among which are some of the identical goods in question, and that the said gobds are now held by defendant in his store, No. 50 North Eighth Street, in said city; and that said Ziegler is about to assign and dispose of his said property and goods and chattels, at his store aforesaid, with the intent to defraud these said plaintiffs, and his, the said Ziegler’s creditors, and that the said property constitutes all the property of any kind owned by said Ziegler to the knowledge of this deponent.
    (Signed,) William M. Wylie.”
    The following was the affidavit in Good v. Ziegler:

      “ William M. Wylie having been duly sworn according to law, deposes and says, that he is the buyer for George W. Ziegler, the defendant, and is of the city of Philadelphia, and state of Pennsylvania, and that he appears for the plaintiffs, Good & Wilson ; and that the said Ziegler is justly indebted to the said plaintiffs in a sum exceeding $100, and that the nature of the said indebtedness is as follows, namely, for and on account of dry goods sold and delivered by said Good & Wilson to said Ziegler, and amounts to the sum of $774.81; and that Ziegler, party defendant thereto, is about to assign and dispose of his property with intent to defraud the said plaintiffs, and his, the said Ziegler’s other creditors; and that the said Ziegler’s property consists of certain goods and chattels of the value of about $7000, now in his possession at his store, No. 50 North Eighth Street, in said city, and of personal property at his residence, No. 805 Arch Street, in said city, and that said Zeigler has no other property to the knowledge of this deponent.
    “ (Signed,) William M. Wylie.”
    Ziegler made the following affidavit:
    “ That he is indebted to the said plaintiffs, but that he has not committed, nor contemplated committing any of the acts alleged in the affidavit filed in this case; and that ho has not assigned nor disposed of his property or any of it, with the intent to defraud the plaintiffs, or any of his creditors ; nor has he removed, disposed of, or concealed any of his property and goods with such intent.”
    Wylie made another affidavit wherein he deposed:
    “That what he meant to say in the affidavit filed in this case, was, that said George W. Ziegler was about to make a general assignment for the benefit of his creditors, to some irresponsible party, and that he did not mean to impute any fraud or concealment of property. That Mr. ITunn, the attorney for the plaintiffs, stated to the deponent, that the only object was to prevent the making of a general assignment to such a party, and that a meeting of the creditors was to be called; that deponent has no knowledge of any contemplated fraud on the part of said defendant.”
    Like affidavits were filed in each case. The prothonotary issued attachments in pursuance thereof, and the sheriff seized the goods of the defendant. The defendant, by his attorney, obtained a rule to show cause why the attachments should not be quashed. The court upon argument without hearing testimony, quashed the attachments, on account of the insufficiency of the affidavits whereon they were grounded.
    The plaintiffs took these writs and alleged, that the court erred in this action.

      P. Sunn, Jr. and J. B. Townsend, for plaintiffs in error.
    The affidavits upon which the attachments issued, followed strictly the words of the statute. There was no act of fraud to set- out; the act was in expectancy. Affidavits in this form were held to be good in several of the Common Pleas courts throughout the state: Ferris v. Carleton, 8 Phila. 549; Richards v. Donaughey, 34 Leg. [nt. 98 and 24; Dodge v. Redington, 2 Luz. Law Reg. 115; Hepler v. Kehler, 1 Leg. Ch. 47. Probable cause is sufficient upon which to issue the attachment: Commonwealth v. McCabe, 10 Harris 450; Hall v. McKnight, 3 Am. Law Jour. 380. The court should have heard depositions before deciding the case: Dallett v. Feltus et al., 7 Phila. 627; Gillingham v. Kiehl, 1 W. N. C. 146; Wightman v. Henry, 1 Id. 74; Kaine v. Weigley, 10 Harris 179. The quashing the attachment was in the nature of a final judgment, and a writ of error lies.

      Thomas J. Diehl, for defendant in error.
    Under the Act of 1869, the action of the court in relation to these attachments is an exercise of discretion, and it is not reviewable. It has been repeatedly held, and without serious questioning, that an attachment, under the Act of 1869, will not be sustained, if the affidavit on which it is granted is in the words of the statute: Moyer v. Kellogg, 1 W. N. C. 134; Bond v. Wheeler, Id. 282; Waldman v. Fisher, Id. 360; Teneyck v. Hoffman, 2 W. N. C. 82; Born v. Zimmerman, 8 Phila. R. 233; Miller v. Smith, 34 Leg. Int. 68. It is even said in Ferris v. Carlton, 8 Phila. R. 549, by Harding, P. J., that an affidavit in the words of the act, will suffice to found the attachment upon. “But,” he says, “the attachment will be dissolved or quashed by the court on motion and hearing, unless the plaintiff proves specific acts of fraud, or acts indicating a fraudulent intent.”
   Mr. Justice Gordon

delivered the opinion of the court, February 9th 1880,

By the first section of the Act of March 17th 1869, it is made the duty of the prothonotary to issue a writ of attachment upon the filing, by the plaintiff, of the affidavit in said act prescribed. This attachment is in the nature of an original writ, for not only may goods and chattels be attached by it, but in case of personal service, or in case the defendant resides in the county, “ the court shall proceed in the case in like manner as in the case of a summons for debt regularly issued and duly served.” When, therefore, the plaintiff has filed an affidavit in the language, or substantially in the language of the act, and has executed the required bond, this writ issues of right and not of grace. In this it differs widely from the Act of 1842, for in the first place, the application under that act is for a wai’rant of arrest; and in "the second place, this application must be made to a judge of the court, who, before he issues the warrant, must be satisfied of the truth and accuracy of the charges preferred. His acts and proceedings are judicial, and so a critical examination of the affidavits may be had, which is not possible before a mere executive officer. But even under the Act of 1842, it is sufficient that the affidavit sets forth a case of fraud in general terms ; it is enough, in the first instance, that it shows probable cause to the satisfaction of the judge : Gosline v. Place, 8 Casey 520; Berger v. Smull, 3 Wright 302. Surely, then, under the Act of 1869, it is a sufficient warrant to the prothonotary to issue the writ, if the affidavit, as in the case in hand follows the language of the statute. As he is not a judicial officer, this part of the act could not have been designed so much for the satisfaction of his mind as to the rectitude of the application, as to commit on oath, the applicant to the truth of his allegations, in order that he might thereafter be legally liable therefor.

That we thus give the true intention of the act, is the more obvious in that, the Court of Common Pleas, or a judge thereof, may, at any time after the attachment has issued, dissolve it on proper cause shown, whether that cause appear from the face of the original affidavit, or from evidence dehors that paper. But in such case, where there has been a service, or the defendant resides in the county, the suit proceeds to judgment as upon summons in ordinary cases. In the case in hand, however, the plaintiff was turned out of court by the quashing of his writ, and in this manner an end was put to his case, a result which was equivalent to a final judgment. This action of the court was erroneous, and for this cause the judgment is reversed and a procedendo is awarded.

Let a like judgment be entered in the case of Good v. Sharpless.


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    Laird versus Campbell.
    1. A composition agreement between a debtor and several of his creditors is valid and binding on all parties thereto, unless it appears that the agreement was contingent upon all, or a certain number of the creditors uniting therein, or the debtor has failed to comply with the terms of the composition.
    2. The consideration which supports the agreement of each creditor, in such case, is the undertaking of the other compounding creditors to release their common debtor from a portion of their respective claims.
    3. In the absence of a provision in such a composition agi'eement that all must sign, it is fair to infer that it is intended to be binding on as many as may sign, without regard to the refusal of others.
    4. A court has no power to enforce an order to file supplemental affidavits of defence.
    5. After filing an affidavit of defence, an objection that the copy of the account was not valid, nor marked filed, nor noted on the docket, has no force.
    January 16th 1880.
    Before Sharswood, C. J., Merger, Gordon, Paxson, Trunkex and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 142.
    Assumpsit by William Campbell against W. W. Laird, on a promissory note drawn by defendant, for $253.13, dated July 2d 1877, to the order of Campbell, and payable five months after date, and upon a book account with entries from September 24th 1877, to October 5th 1877, aggregating $147.
    The copy of the note and book account were filed when defendant filed an affidavit of defence, setting forth that Laird, about November 26th 1867, finding himself financially embarrassed, called a meeting of his creditors, and agreed with the majority as follows:
    “We, the undersigned, creditors of William W. Laird, hereby agree with him and with each other, that whereas he has become financially embarrassed, and is not able to pay all of his debts in full, and whereas, both he and we are desirous that he should continue to carry on business in the city of Philadelphia, with a view to paying as great a percentage as possible on the debts now due from him to us; and whereas, we recognise the fact that if he should now turn his available assets into cash in order to pay the said debt, we would each and all of us receive less upon our respective claims, and thereby suffer damages, now we, the creditors as aforesaid, do hereby agree with him and with each other, to accept from said Laird, in full of said claims, respectively thirty per centum of the same respectively, namely, as the amounts are hereinafter set forth opposite are names, and to release said Laird upon the payment of the said thirty per centum, from all further liability on said claims: said thirty per centum to be paid to us in the manner hereinafter set forth, namely, ten per cent., without interest, to be paid within six months from the date hereof; ten per cent, in one year from the date hereof, and ten per cent, in eighteen months from the date hereof, the same to be secured by delivering to uS the promissory notes of said Laird, endorsed by a satisfactory endorser for the amounts and the terms hereinbefore expressed.
    “ Witness our hands and seals this twenty-sixth day of November, A. D. one thousand eight hundred and seventy-seven (1877).”
    This agreement was signed by twenty-four creditors, the ninth in the order of signing being Campbell.
    One creditor failed to sign, but promised Laird publicly, with the knowledge of the other creditors, that he would not pursue him for his debt, and said that he did not care if he did not receive the same for forty years. The notes were executed according to the agreement, and were accepted by all those who signed, except Campbell, who, when they were tendered to Rim, according to the terms of the. agreement, refused them without remark.
    Campbell took a rule for judgment for want of a sufficient affidavit of defence, and the .court after argument ordered a supplemental affidavit to be filed as to whether all the creditors had released or not, and subsequently, in response to a further order of the court that “ deponent should state upon oath whether all the creditors signed the agreement,” a second supplemental affidavit of defence was filed, wherein defendant stated that one of his creditors had refused to sign, alluding to the one who had made the above-mentioned public promise. The court made the rule absolute, when defendant took this writ, and alleged that the court erred:
    1. In ordering that a supplemental affidavit be filed as to whether all the creditors had released or not. 2. In making absolute the rule for judgment for want of a sufficient affidavit of defence. 3. In entering judgment for want of a sufficient affidavit of defence. 4. In entering judgment for plaintiff.

      S. Sunn, Jr., for plaintiff in error.
    No copy seems to have been filed, according to the docket entries, and the court could not according to practice give judgment for want of an affidavit of defence, nor for want of a sufficient affidavit of defence; because the docket entries are the notice, and as the paper called a copy, appearing among the filed papers, is not marked filed or dated, non constat it was filed in time. Notice of rule to plead should be dated. The court said the rule prescribed eight days’ notice in writing, which rule was necessarily violated if the notice was not dated: Stokes v. Kyle, 2 W. N. C. 427. Judgment cannot be entered for want of a plea unless the rule to plead had been entered upon the docket: Bisbing v. Albertson, 6 W. & S. 450. See also Gottman v. Shoemaker, 5 W. N. C. 381; Laird v. Potts, 6 Id. 56; Rand v. Lore, 5 Id. 236.
    If several creditors agree to give a discharge on receiving so much per cent., it binds all, for the agreements of all are a consideration : Reay v. White, 3 Tyrrwhitt 596. When the plaintiff had, by his undertaking to discharge the defendant, induced any other creditor to accept a composition and discharge the defendant from further liability, he could not afterwards enforce his claim, since it would be a fraud upon that creditor: Wood v. Roberts, 2 Starkie 368; 3 English Common Law Rep. 411; Good v. Chessman, 2 B. & Ad. 328; Butler v. Rhodes, 1 Esp. 236; Smith’s Leading Cases, vol. 1, pt. 1, p. 600. A creditor cannot bind himself by a simple agreement to accept a smaller sum, in lieu of an ascertained debt of a larger amount, such an agreement being nudum pactum. But if there be any benefit, or even legal possibility of benefit to the creditor thrown in, that additional weight will turn the scale and render the consideration to support the agreement: Smith’s Leading Cases, supra, and the cases there cited: Steinman v. Magnus, 2 Camp. 124; Bradley v. Gregory, 2 Id. 383; Boyd v. Hind, 1 Hurlst. & N. 938; Hearn v. Kiehl, 2 Wright 147; Rising v. Patterson, 5 Whart. 319; Cutter & Co. v. Reynolds, 8 B. Mon. 596. A composition need not be signed by all the creditors unless so stipulated: Lehigh Coal & Navigation Co. v. Hibbs, 2 W. N. C. 96.

      John Gr. Johnson, for defendant in error.
    1. The composition agreement is inoperative, inasmuch as it is sealed by partnership firms : Schmertz v. Shreeve, 12 P. F. Smith 457.
    What we contend for here is, that a consideration of the alleged agreement shows, that it was intended to be signed by all the creditors; and the affidavit discloses, that there was one creditor who refused to sign. The whole defence is to be gathered from this agreement, because what is averred in the second supplemental affidavit as to the agreement by other creditors upon the faith of Campbell’s signature, is simply averred, as shown by- the agreement itself.
    In support of our construction we urge: Knowing, as we must, by reading the agreement, that unless all were bound, the whole object of the compromise would be fruitless, can it be held that the signers meant their agreement to be binding until all, who could interfere with the continuance of the business, were bound not to do so ? In Robbins v. The Church, 2 W. N. C. 592, the affidavit of defence set up, that the plairftiff said, that if the creditors of the church would release their claims, he would do so; that this proposition was accepted by the creditors, who, in good faith, then cancelled the debts due them. It was held, however, by this court, that because one of the creditors was paid in full, “ it certainly destroyed the very purpose of the offer to release, to wit, that all the creditors should forego their claims.”
   Mr. Justice Sterrett

delivered the opinion of the court, January 26th 1880.

The second supplemental affidavit of defence, filed by the plaintiff in error, disclosed the fact that one of his creditors refused to sign the composition agreement in which all the others united. The learned court below considered the defence presented in the three affidavits insufficient, and appears to have based its judgment in favor of the defendant in error solely on the fact above stated. Indeed, it is conceded that in all other respects the defence was full and complete. Assuming then, as we must for the purpose of the present contention, that the allegations of fact, contained in the affidavits, are true, did the refusal of the creditor to sign the agreement render it so far inoperative as to permit the defendant in error to proceed and collect the full amount of his original claim? We are of opinion that it did not. While the bare agreement of a single creditor to accept from his insolvent or financially embarrassed debtor a smaller sum in lieu of an ascertained debt of larger amount is nudum pactum — void for want of consideration— it is now well settled that a composition agreement between such debtor and several of his creditors is valid and binding on all parties thereto, unless it appears that the agreement was contingent upon all, or a certain number of the creditors uniting therein, or the debtor has failed to comply with the terms of the composition. The consideration which supports the agreement of each creditor, in such cases, is the undertaking of the other compounding creditors to release their common debtor from a portion of their respective claims. The agreement of each creditor with the others and the debtor constitutes a good and valid consideration. After a creditor has thus agreed to relinquish part of his claim and induced others to become parties to a composition, it would be a fraud on them to permit him to ignore the agreement and collect the full amount of his claim. If authorities in support of this principle be needed, they may be found in 1 Sm. Lead. Cas. 600; Wood v. Roberts, 3 E. C. L. Rep. 411; Good v. Chessman, 22 Id. 91; Boyd v. Hind, 1 Hurlst. & N. 938; Steinman v. Magnus, 2 Camp. 124.

But, we do not understand that the correctness of the general principle, as above stated, is questioned by the learned counsel for the defendant in error. His contention mainly is, that the agreement in this case, properly construed, contemplated signing by all the creditors ; that inasmuch as one of them refused to sign there never was a valid and binding agreement. He insists that the expression, “We the undersigned, creditors of William W. Laird,” means all and not a portion of his creditors; that other recitals and expressions, contained in the agreement, as well as its expressed object, indicate that it meant to include all creditors. We cannot assent to this as the correct construction of the paper. Full force and effect may be given to every recital and expression it contains by holding that such of the creditors only as would actually sign the agreement were contemplated as parties thereto. If it had been designed to embrace all creditors, some expression clearly indicative of that intent would have been employed. Nothing is more common than to insert in such agreements a provision that they shall not be binding until all or a specified number of creditors shall sign the same. In the absence of any such provision, it is fair to infer that it is intended to be binding on as many as may sign, without regard to the refusal of others. Indeed, it is impracticable in many cases to secure the joint agreement of all the creditors, and in practice it is seldom attempted.

The view we have taken of the agreement, on which the defence is based, renders a consideration of the remaining assignments of error unnecessary; but, in regard to the first, it may be added, that while we entertain no doubt as to the right" of the court to grant leave to file supplemental affidavits of defence, whenever.the original is obscure or otherwise defective; we think it is contrary to well-established practice, under the Affidavit of Defence Act, to require it to be done. If the defendant chooses to stand upon his affidavit, the court may pass upon its sufficiency, but it has no power to enforce an order to file supplemental affidavits. In this case the order was complied with, and no harm resulted to the plaintiff in error. The last assignment is not sustained. After having recognised the note and copy of book account, which accompanied the praecipe, by filing an affidavit of defence, an objection so purely technical at best, loses all its force.

Judgment reversed and a procedendo awarded.