author: Sharswood, J. Agnew, J.

text:
    Bussman et al. versus Ganster.
    1. Under a lease of land on which there is a building, with an express covenant to pay rent, the destruction of the building by fire, although the lessor may have received the insurance-money, is no defence for the lessee against the payment of the rent.
    2. An agreement with B. was that G-. would erect a store-house on his lot, furnish it with counters and other fixtures to the satisfaction of B., to be ready by August 1st, “ at a rent of $600 per annum, until April 1st, and thereafter for five years at the rate of $800 per annum, payable monthly.” Held, that this was a lease of the land as well as the building, with a covenant by the lessee to pay the rent.

      3. No form of words is necessary to create a lease.
    4. The requisites to a lease are a term of years,with an estate beginning and ending, granted by the lessor to the lessee.
    November 4th 1872.
    Before Thompson, C. J., Read, Agnew, Sears wood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 135, to October and November Term 1871.
    This was an action of covenant, commenced September 2d 1870, by Joseph Ganster against Frank H. Bussman, Henry Rahe and John Rahe, partners as Bussman, Rahe & Co.
    The plaintiff’s affidavit of claim was: that the defendants “ are justly indebted to affiant in the sum of $133.33, with interest from September 1st 1870; the same being two months’ rent, to wit, the months of July and August 1870, of a lot of ground 24 feet by 68 or 70 feet, situate in East Liberty, &c., which this affiant, on the 9th day of April 1868, demised and let unto the said F. H. Bussman, Henry Rahe and John Rahe, partners, &c., at the annual rent of $600, until the 1st day of April 1869, and thereafter for the term of five years at the rate of $800 per annum, payable monthly, with the option to said lessees of continuing said lease for five additional years at the same rent, payable as aforesaid ; a true copy of which said lease is hereto annexed and made part of this affidavit. Affiant further says, that the said lease iras duly signed and sealed and delivered by this affiant on his part and behalf, and the same was signed, sealed and delivered by the defendants, by the said Henry Rahe on the part and behalf of the said defendants, and at the instance and request of the said Frank H. Bussman and John Rahe, and for himself, the said Henry Rahe. And in pursuance of said demise the said defendants, Bussman, Rahe & Co., entered into and took possession of said premises, and said defendants have at sundry times since paid to affiant the rent thereof up till July 1st 1870; and on the said 1st day of September 1870, two months’ rent thereof became and was due and payable, and still in arrear and unpaid.”
    The agreement was as follows:—
    “ This agreement, made the 9th day of April 1868, between Joseph Ganster of the one part, and Bussman, Rahe & Co., of the other part, witnesseth, that the party of the first part has agreed to erect a store-house in front of his own house, on the Negley lot in East Liberty, of the following dimensions, calculated for a storehouse for groceries, dry goods, &c., and furnish the same with counters, shelving and other fixtures, to the satisfaction of the parties of the second part, viz.: twenty-four feet by sixty-eight or seventy feet, as may suit said Ganster, two stories high; * * * and to be ready by the first of August, or as much sooner as practicable, at the rent of six hundred dollars per annum, until the first of April 1869, and thereafter, for the term of five years, at the rate of eight hundred dollars per annum, the rent to be paid monthly; and to have stable-room during the term for two horses ; and the parties of the second part to have the option of continuing in the said premises for five additional years, at the same rent, payable as aforesaid. The parties of second part to give the party of the first part three months’*notice of their option ; and if the party of the first part wish to sell the property, the party of the second part to have the first offer and preference, on equal terms to any other purchaser.
    “Witness our hands and seals the day and year first above written. “ Joseph Ganster, [l. s.]
    “ Attest: “ Bussman, Rahe & Co., [l. s.]
    “ Thomas Davison,
    “ Frank Henry Bussman,
    “ Henry Rahe,
    “John Rahe.”
    The affidavit of defence made by Henry Rahe was :—
    “ That this affiant (for himself as well as for the other parties sued) has a just and true defence to the whole of plaintiff’s claim (with the exception of four days’ rent), in this, to wit, that said defendants were induced by plaintiff and by his agreement to give the high rent of $800 per annum in consideration of the long term specified in said contract, and by his agreement to build said store-house and to give them the use and occupancy thereof from and after the first of April 1869, for the term of five years, and to have stable-room during said term for two horses, in plaintiff’s own stable on adjoining premises, and to have the option of five additional years’ use and occupancy of said building and premises, at the said increased and high rent of $800 per annum.
    “ 2. That although the plaintiff did erect said store-house, and this affiant' did use and occupy the same, from about November or December 1868, until the 4th of July 1870, and did carry on his business therein, paying the stipulated monthly rent, yet on the said 4th day of July 1870, the said store-house was burnt and destroyed, whereby the plaintiff is prevented from justly demanding the said rent, as claimed, and has therefore, as specified, no lawful or just demand upon this affiant, or said defendants, and until the plaintiff rebuilds said store-house, according to his agreement, promises and undertakings.
    “ 8. That plaintiff also, by his implied agreement and covenant as aforesaid in consideration of the increased and high rent of $800 was and is bound to give this affiant (or said defendants) the use, occupancy and enjoyment of a store-house, as specified in said contract, for the term of five years from and after the 1st of April 1869, with the option of five additional years, with stable-room as aforesaid, and is also justly bound to rebuild said storehouse before he can recover said rent, as claimed.

      4. That plaintiff had received $6000 or about that amount, as affiant has been informed, believes and expects to prove, of insurance upon the said store-house, shelves, counters, &c.
    “ 5. That after the fire the insurance agent, as affiant has been informed, believes and expects to prove, offered to the plaintiff to rebuild said store-house and to reconstruct the same as good as it was before the fire, which proposal the plaintiff unjustly refused.

      “ 6. That this affiant also offered to plaintiff to reconstruct thej. said store-house and to make it as good and useful as before the fire, if plaintiff would pay therefor the money he received from the insurance company or companies, to wit, about $5100, the full rent in that event to be paid to plaintiff without any deduction from the 4th of July 1870, which proposition the plaintiff unjustly refused.
    “ 7. That this affiant and said defendants are perfectly willing, and offer now to pay to plaintiff a just and fair proportion of said rent, as ground-rent.
    “ 8. That plaintiff, contrary to his covenants and agreements, unjustly withholds the amount, as aforesaid, received by him for the insurance, and utterly refuses to rebuild or to give defendants the use, occupancy, benefit and enjoyment of a store-house for his business, as honestly agreed upon.”
    On the 8th of March 1871, judgment was entered for plaintiff for want of a sufficient affidavit of defence, and liquidated at $188.20.
    This was assigned for error on the removal of the record to the Supreme Court by the defendants.

      A. M. Brown, for plaintiffs in error.
    The consideration upon which the obligation to pay rent rests has wholly failed, and the lessees not being bound to rebuild or restore the premises, should not, in equity and good conscience, be compelled to pay rent. When the subject-matter of' the demise is entirely destroyed, the lease perishes with it: Taylor’s Landlord and Tenant, sec. 520; Kerr v. The Merchants’ Exchange Co., 3 Edwards’ Chancery Reports 316; Graves v. Berdan, 29 New York Reps. 498. We concede that if the contract was the lease of a lot of ground with a building upon it, and contained an express covenant to pay the rent, or a covenant to repair, the rule would be different. But where, as in this case, the lease is of a store-room upon the premises occupied by the lessor as a residence, and the lessees have not covenanted to repair the premises, the law will excuse them from the payment of rent, upon the accidental destruction of the property demised.

      S. A. McQlung, for defendant in error.
    No particular words are necessary to constitute a covenant to pay rent. It is sufficient if they show an intention of the parties to bind themselves to the performance of the matters stipulated: Smith’s Land, and Tenant 96; Royer v. Ake, 8 Penn. R. 461; Giles v. Hooper, Carth. 135. John Rahe and Frank Bussman were present at the execution and delivery of the lease, and they signed it as subscribing witnesses. Henry’s execution is therefore good for both, though only sealed by one: Ball v. Dunsterville, 4 Term 313; Bond v. Aitken, 6 W. & S. 165: Bowman v. Robb, 6 Barr 302. The lessees are not released from the payment of the rent after the destruction of the demised premises by fire; Magaw v. Lambert, 3 Barr 444; Platt on Covenants 197; 1 Story’s Eq. Jur., secs. 101, 102.
    November 15th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

It has not been and cannot be controverted that if the instrument of writing, a copy of which was filed ,in the court below, was a lease of the land with the building erected thereon, and contained an express covenant to pay the rent, the destruction of the building by fire, even though the lessor had insured the building and had received the insurance-money thereon, constituted no defence, either in law or equity, to an action of covenant to recover the stipulated rent; Pollard v. Shaaffer, 1 Dall. 210; Magaw v. Lambert, 3 Barr 444; Fisher v. Milliken, 8 Id. 121; Dyer v. Wightman, 16 P. F. Smith 427. Even in the case óf a lease of chattels with a house, where the chattels are all destroyed without any fault of the tenant, the better opinion seems to be that it affords no ground of defence pro tanto. For in Taverner’s Case, 1 Dyer 55-6, there was a lease of land and a flock of sheep at a certain, rent, and all the sheep died, though the point was not actually decided, the doctrine was asserted that such loss of enjoyment did not relieve the tenant. This is cited with approbation by Mr. Justice Strong in Workman v. Mifflin, 6 Casey 870, and many other authorities, both in law and in equity, adduced in support of the general principle. Indeed in Fisher v. Milliken, 8 Barr 120, Mr. Chief Justice Gibson lays it down broadly that nothing but a surrender, a release or an eviction can in whole, or in part, absolve the tenant from the obligation of his covenant to pay the rent.

That the agreement in question was a lease of the land as well as of the building thereon, we think is very manifest. It would be a mere refinement to escape the application of a clear rule of law, which may operate hardly on these plaintiffs in error in this instance, to hold otherwise. We are bound to stand super antiquas vias, and not to stray aside into unknown by-paths which may lead we cannot tell where. No form of words is required to constitute a lease: Moore v. Miller, 8 Barr 272. “It is not necessary,” says Mr. Justice Coulter, “that the term lease should be used. Whatever is equivalent will be equally available. If the words assume the form of a license, covenant or agreement, and the other requisites of a lease are present, they will be sufficient.” These requisites are a term of 'years with a certain beginning and ending granted by the lessor to the lessee.

By the agreement in suit, Gfanster agreed as the party of one part, with Bussman, Rahe & Company as parties of the second part, to erect a store-house in front of his own house, on the Negley lot in East Liberty, and to furnish the same with counters, shelving and other fixtures, to be ready by the 1st of August 1868, or as much sooner as practicable, at the rent of $600 until the 1st of April 1869, and thereafter, for the term of five years, at the rate of $800 per annum. It is true that there are here no formal words of demise, but it is very manifest that after the erection of the building, there was created a term of years in the premises with a certain commencement and a certain termination; in short with all the requisites of a demise. Ought there to be any doubt that if this was a demise of the buildings when erected it was also a demise of the ground upon which it stood ? Had the goods on the premises been distrained by the lessor for arrears of rent, would the tenants have been heard for a moment to allege that the distress was unlawful because the rent did not issue out of the land? We think not. Not only does the instrument expressly recognise “ the Negley lot in East Liberty,” or at least so much as the house would occupy as part of the premises demised, but can there remain any doubt of it when it goes on expressly to provide that “ if the party of the first part wish to sell the property, the party of the second part to have the first offer and preference, on equal terms to any other purchaser ?” Wfia-t property ? Certainly the demised premises, and certainly not the building without the lot on which it was erected. The plaintiffs in error expressly recog: nise and admit that they continued to be tenants of the land after the fire, for they offer in the affidavit of defence to pay to the defendant a just and fair proportion of the rent reserved as ground-rent. The consideration of the acceptance of the lease originally, undoubtedly was the erection of the store-house, and furnishing it with shelves, counters and other fixtures, in the manner prescribed, and had this not been done the lease would never have gone into effect, and the lessees would not have been bound to pay rent. It was a condition precedent. But the house was erected and furnished with fixtures to the satisfaction of the lessees, and they took possession and paid the rent up to the time of the fire. It is not easy to perceive how the case would have been different, if the house had actually been built and furnished before the agreement for the lease was made.

Nor can it, we think, be successfully maintained that there was not in this lease an express covenant by the lessees to pay the rent during the term. It is well settled by authority that in the case of an indenture or deed executed by both the lessor and lessee, which this was, a. covenant to pay the rent therein reserved arises on the words yielding and paying: Royer v. Ake, 3 Penna. Rep. 464. It is expressly said in this lease, the rent to be paid monthly. To be paid by whom ? Surely by the lessees, the parties of the second part executing the instrument. When therefore they as such parties accept the demise of the premises at a certain annual rent, the rent to be paid monthly, it is an express covenant by them to pay the rent, quite as much so as would have been the words yielding and paying, which do not say expressly by the lessee, and are therefore no stronger than the words used in this case.

As to the point made, that the agreement appears to have been executed under seal in the firm name, it is enough to say that all the partners sign individually as attesting witnesses, which necessarily implies that they were present assenting to and authorizing the execution; and nothing is better settled than that in such case the partnership is bound: Bond v. Aitkin, 6 W. & S. 165. Besides which the affidavit of defence did not aver that the execution by one partner had been without express authority from the others. Judgment affirmed.

Agnew, J.

— I dissent. I think the-true purpose of the contract was the building of the house and its occupancy.


source: Caselaw Access Project

author: Ágnew, J.

license: Public Domain

text:
    Stewart, Mulconnery & Co.’s Appeal.
    1. An Act of Assembly provided that if the railroad of the P., F. W. & C. Railroad Company should be sold under mortgages, &c., the purchaser should become a corporation. The property, &c., of the Railroad Company were sold; the purchasers, who were bondholders under the mortgage, were organized as the P., F. W. & C. Railway Company. Held, That they were not liable, under the facts in the ease, for the obligations of the Railroad Company.
    2. The Railway Company derived its existence under the Act of Assembly, passed before the sale, and their coming into existence was on the contingency of the sale. Held, that there was no privity between the two companies.
    3. Stockholders in the original company, by an arrangement subsequent to the purchase and before the organization of the new company, were allowed, under the Act of Assembly, to become stockholders of the new company, without payment of any money. Held, that this did not impose on the new company the debts of the old.
    4. Creditors of Broad attached his securities held by the old company; judgment was had against the company as garnishees. The officers of the company having charge of the securities, not being parties to the attachment, were not liable to the plaintiffs.
    5. Their possession and acts were those of the company, and their liability, if any, was to the company, and not to the plaintiffs.
    November 6th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

      Appeal from the District Court of Allegheny county: In Equity: No. 183, to October and November Term 1871.
    On the 10th of April 1866, and the 13th of April 1867, respectively, Robert Stewart,. Maurice Mulconnery and John Fleming filed a bill and an amended bill against The Pittsburg, Fort Wayne and Chicago Railroad Company; The Pittsburg, Fort Wayne and Chicago Railway Company, and George W. Cass, T. D. Messier and J. P. Henderson.
    The bill averred:—
    1. The incorporation of The Pittsburg, Fort Wayne and Chicago Railroad Company in 1865, by the legislatures of Pennsylvania, Ohio, Indiana and Illinois.
    2, 3, 4. On the 19th of October 1856 the plaintiffs in this bill sued out in the District Court of Allegheny county a foreign attachment against Lewis Broad, in which the railroad company were made garnishees. On the 15th of April 1863 the plaintiffs recovered judgment in that attachment against Broad for $56847.73. A scire facias was issued against the railroad company as garnishees, and on the 14th of January 1864 there was recovered against them a judgment, finding that there were in their hands at the service of the writ certain notes belonging to Broad, and at that day the garnishees owed Broad $19,633.09;. and that the plaintiff should have execution against the garnishees, to be levied of the notes of Broad in their hands to the amount of the plaintiffs’ judgment, and if the garnishees should refuse to deliver the notes or pay the amount of the judgment, that it should be levied of the garnishees’ own goods.
    5. The garnishees refused to deliver the notes, and the sheriff could find no goods, &c.
    6. The notes of Broad, in the hands of the railroad company, were three in number, amounting in all to $17,643.39, they were known as freight-warrants, and were not embraced in any mortgage of the company but were entitled to priority of payment from the company’s assets, and were unaffected by any sale of the road or property.
    7. In March 1860 proceedings to foreclose a mortgage of the company having been commenced in the Circuit Court of the United States, of the Western District of Pennsylvania, auxiliary to similar proceedings in the Circuit Court of the United States of Ohio, tbe railroad company procured an Act of Assembly of Pennsylvania, of March 31st 1860, entitled, “ An Act to provide for the re-organization of The Pittsburg, Fort Wayne and Chicago Railroad Company: in pursuance of that act and of private agreement between the mortgage bondholders and the stockholders of the railroad company, the said company was re-organized under the name of “ The Pittsburg, Fort Wayne and Chicago Railway Company, and all the assets and property of the railroad company, including the notes or freight-warrants of Broad, and subject to the lien of the plaintiff’s attachment, went into the possession of the railway company.
    8. By reason that the stock and franchises of the railroad company were not covered by the foreclosed mortgage; and by reason of an agreement and understanding to that effect between the bondholders, the stockholders and the purchasers of the mortgaged premises at the marshal’s sale; the stock of the railroad company became the stock of the company as re-organized under the name of “ The Pittsburg, Fort Wayne and Chicago Railway Company.”
    9. By reason of the re-organization effected under the aforesaid understandings and the Act of Assembly the railway company became and were subject to the liabilities of the railroad company, and to. the plaintiffs for their judgment against the railroad company.
    10. Whether the railway company are liable or not for the debts of the railroad company, they are liable to the plaintiffs on their judgment/because they took into their possession the notes or freight-warrants of Broad.
    11. The defendants refuse to account to the plaintiff for the freight-warrants or pay their judgment.
    12. (Amended bill.) On the 19th of Octobep 1858, G. W. Cass was president, John P. Henderson was treasurer, and T. D. Messier comptroller or auditor of the railroad company. They were in possession, custody, &c., of the papers and other valuables of the railroad company, including those in custody of the railroad company as trustees; amongst which papers, &c., were the notes or freight-warrants of Broad, attached as beforesaid; under the new arrangement, Cass, Henderson and Messier continued to hold the same positions in the railway company as they held in the railroad company. The plaintiffs “ seek to discover what became of the freight-warrants, notes, &c.,” belonging to Broad, and whosoever, whether the railway company or Cass, Henderson or Messier, “ may be found chargeable with the possession of the said warrants, ” &c., shall be ordered to produce and surrender the warrants, &c., for the use of the plaintiffs, or account for their value to the extent of the plaintiffs’ claim.
    The prayers of the bill were for a decree: — ■
    1. That the railway company are liable for the debts of the railroad company, and for the plaintiffs’ judgment against the railroad company.
    2. If such decree be not made, that the railway company be declared to be “ the trustee and bailee for the use of the plaintiffs of the said notes or freight-warrants,” of Broad, and be ordered to produce and deliver these warrants for the. use of the plaintiffs, or pay the amount of their judgment against the railroad company.
    The defendants answered:—

      1. Admitting the incorporation of the railroad company, denied that they were ever known by that name or that the two corporations were identical.
    2. They had no corporate existence on the 19th of October 1858, having been incorporated long afterwards by the legislatures of Pennsylvania, Ohio, Indiana and Illinois, and all the matters charged in paragraphs 2, 3 and 4 in the bill, took place before their incorporation, and defendants had no knowledge of them.
    3. They have no knowledge of the matters in the 5th paragraph of the bill.
    4. They have no knowledge of the notes mentioned in the 6th paragraph of the bill, or whether they were embraced in any mortgage of the railroad company, but if such notes existed they were a debt of the railroad company and were cut off, if not before paid, by the sale of the property and franchises of the railroad company under the mortgages of that company, by virtue of the decree of foreclosure before mentioned.
    5. They admit the proceedings mentioned in the 7th paragraph of the bill, and that the property and franchises of the railroad company were sold under decrees of foreclosure of the mortgage, to certain gentlemen for $2,000,000; that afterwards the railway company was incorporated by the states of Pennsylvania, Ohio, Indiana and Illinois, and became the purchaser of the property, and has since owned it. They denied that the notes of freight-warrants of Broad ever came into the possession or control of the railway company.
    6. To the 8th paragraph of the bill. They deny that the franchises, &c. of the railroad company were not covered and conveyed by the mortgages (admitting that the stock was not covered), they aver that the mortgages were a first lien on franchises and property of the railroad company, and the sale passed to the purchaser a clear title and free from all claims of creditors of the railroad company, but by an arrangement afterwards made, the stockholders of the railroad company were upon certain conditions allowed to convert their stock into the stock of the railway company.
    7. They denied in answer to the 9th paragraph of the bill, that the railway company was by agreement or law liable for the debts of the railroad company, or for the amount of the judgment against the railroad company.
    8. To the 10th paragraph of the bill. They deny the liability to plaintiffs on account of their judgment by reason of their receipts of the freight-warrants, and that the warrants were ever in their possession.
    9. They deny upon information, &c. that on the 19th of October 1858, the railroad company were indebted to Broad, or held any freight-warrants or other securities belonging to him, but on the 9th of July 1858, and before the attachment, Broad assigned to S. A. Taylor and N. Gleason, all his claims, &c., against the railroad company, including the freight-warrants, and the railroad company was before October 19th 1858 notified of the assignments. Taylor and Gleason brought suit in the Circuit Court of the United States for Illinois, against the railroad company, to recover their indebtedness to Broad, and recovered judgment against the railroad company for $41,468.18, which was the whole amount due to Broad, and which by1 agreement with Broad was to have been paid in bonds and freight-warrants. This was all the railroad company owed Broad. Soon after the judgment, it was compromised by payment of the railroad company to Taylor and Gleason for $17,500 in freight-warrants, which were delivered to Taylor and Gleason before the railway company existed. There were no freight-warrants of the railroad company in favor of Broad when the plaintiff’s suit was commenced, nor at the time of the judgment ; the freight-warrants were payable to bearer in freight on the railroad, and were sold by Taylor and Gleason to other parties.
    Messier and Cass answered:—
    1. That Cass, Messier and Henderson were respectively president, auditor and treasurer of the railroad company, and had possession of the money, ehoses in action, papers and other valuables of the company, but did not know of the company holding anything as trustees for others.
    2. There were not amongst those articles any freight-warrants, or notes belonging to Broad, nor were such articles ever in their possession: the facts in relation to them are before set forth in paragraph 9th of the answer.
    8. Cass, Messier and Henderson, hold the same positions in the railway company, which they held in the railroad company, except that the title of Comptroller was substituted for that of Auditor. On the 30th of April 1864, Messier ceased to be comptroller and became assistant-president; the other two continued in their offices.
    A replication was filed and an examiner appointed. Afterwards B. F. Lucas was appointed master to take further testimony, &e., and report the facts together with the form of a decree.
    The master found the allegations of the 2d, 3d and 4th para-' graphs of the bill to be true; and that the three notes to Broad, mentioned in the 6th paragraph, were not embraced in any mortgage of the railroad company, were the property of Broad, and were unaffected by the sale of railroad company’s property.
    Referring to the Act of March 31st 1860, he said:—
    “ The purpose and object of this act are, in the opinion of the master, clearly indicated by its title. It was not for the purpose of creating a new, separate and independent corporation, but to re-organize one already in existence.
    “ Although the title to an act of the legislature was no part of the act itself, prior to the amendment to the Constitution of 1864, yet it may well serve to shed light upon the true intent of the act. Besides, the object of the act as indicated in the title, seems to be as clearly indicated in the fourth section of the act itself. It is there denominated a re-organization of the Pittsburg, Port Wayne and Chicago Railroad Company. Similar legislation was procured in the states of Illinois, Indiana and Ohio.
    “The mortgages against the railroad companies having been foreclosed on the 24th of October 1861, the trustees sold the road, property and franchises of the railroad company to James E. D. Lanier, John Edgar Thomson, Samuel J. Tilden, Samuel Hanna and Louis H. Meyer, as trustees for various persons whose names do not appear upon the record. This sale was confirmed’ by the Circuit Courts of the United States, in the several states of Pennsylvania, Ohio, Indiana and Illinois, and on the 18th of February 1862, the trustees executed a deed to the purchasers.
    “ On the 26th day of February 1862, a meeting was held in the city of Pittsburg, at the office of the Pittsburg, Fort Wayne and Chicago Railroad Company, for the purpose of organizing, or rather of reorganizing, under the Acts of Assembly herein before mentioned. That re-organization was then effected, directors elected, and the name of the company changed from ‘The Pittsburg, Fort Wayne and Chicago Railroad Company,’ to ‘The Pittsburg, Fort Wayne and Chicago Railway Company.’ The board of directors then met and proceeded with the transaction of the business pertaining to their office.
    “ On the 2d day of March 1862, John F. D. Lanier, Samuel J. Tilden, Louis H. Meyer, J. Edgar Thomson and Samuel Hanna, executed a deed to the Pittsburg, Fort Wayne and Chicago Railway Company, for the road, property and franchises of the Pitts-burg, Fort Wayne and Chicago Railroad Company.
    “ In the organization of the Pittsburg, Fort Wayne and Chicago Railway Company, the stockholders of the Pittsburg, Fort Wayne and Chicago Railroad Company became the stockholders in the reorganized company upon the same stock held by them in the old company, or in other words, their stock in the old organization was held and treated as stock in the new. * * *
    “Then is the Pittsburg, Fort Wayne and Chicago Railway Company, but the re-organization of the Pittsburg, Fort Wayne and Chicago Railroad Company?,
    “ The master has gone into a very careful review of all the facts found by him, which, in his judgment, bear either directly or remotely on this question, and, as the result of the review, he has been led to the conclusion that this question must receive an affirmative answer.
    “ In determining this question the evidence must be considered as a whole and not in isolated parts. Thus considered, we have the following summary of the facts:—

      “The Pittsburg, Fort Wayne and Chicago Railroad Company became largely indebted, some of its indebtedness was secured by bonds and mortgages, while other portions of it were not so secured. Of the latter class of indebtedness was a debt of about $41,000 to Lewis Broad. Lewis Broad was indebted to the present complainants in a sum exceeding $6000. He being a non-resident of the state, the present complainants brought a suit in this court, which was commenced by writ of foreign attachment, in which the said company was made a garnishee, and the debt due by them was attached in their hands. A judgment was subsequently recovered by these complainants, first against Lewis Broad, the debtor, and afterwards against the said company garnishee. The company, acting through its officers, when the proper execution was issued, and the proper demand made by the sheriff, in the language of the law, ‘ neglected and refused ’ to deliver up the securities which had been admitted by them and adjudged by the court to be in their hands, and to belong to the defendant Lewis Broad.
    “ In the meantime proceedings were commenced and prosecuted in the Circuit Courts of the United States of the various districts through which the road passed, to foreclose the mortgages given by said company as well as those given by other companies for the payment of which the said company was liable.
    “ Pending these proceedings the said company applied to the legislature of Pennsylvania, and subsequently to the legislatures of the states of Ohio, Indiana and Illinois, for the passage of acts to provide for the re-organization of the said company, which acts were passed by the respective legislatures named.
    “ The proceedings to foreclose the said mortgages were prosecuted, no defence of any kind having been made by the said company, and were finally consummated by a decree of foreclosure, an order of sale and a sale made to five parties, in trust for some person or persons, but who the cestui que trust was is not disclosed except by what was subsequently done.
    “ After the said sale had been made to the said five trustees, and a conveyance made to them, an organization or re-organization of the company took place, and a conveyance was made by the said five trustees to the company re-organized under the name of the Pittsburg, Fort Wayne and Chicago Railway Company.
    “ In this re-organization the stockholders of the. company under the.old organization became stockholders without purchasing any new stock, and the officers of the old organization had charge of the company and its affairs through and during all these proceedings, and were elected and continued to be such officers under the new arrangement.
    “From all these facts taken together the master is .of opinion, and so finds, that the present company is but a re-organization of the former one, and not a new and independent corporation ; that all this machinery was used but as a device to avoid the payment of the debts of that company, and that therefore the said company is liable for the amount of complainants’ judgment and costs.
    “ But even if this were otherwise, still if the securities for the indebtedness of the Pittsburg, Eort Wayne and Chicago Railroad Company to Lewis Broad, which were attached in the hands of the said company, went into the possession of the Pittsburg, Eort Wayne and Chicago Railway Company by its recognised officers or agents; and if the latter company was a new creation, a new corporation created and existing separate from and independent of the former company, the latter company held the said securities in trust for the present complainants, and if the said securities were permitted to go out of their hands and out of the jurisdiction of the court so that they could not be reached by the attaching creditors, or made available for the purpose of satisfying complainants’ judgment, then the said company is liable to the complainants for the amount of their judgment and costs.
    “ This then brings us to the consideration of the second question raised by the allegations contained in the seventh paragraph of complainants’ bill, and the denial thereof as contained in the fifth paragraph of defendants’ answer; and that question is, whether the said securities ever did go into the custody, control and possession of the'Pittsburg, Eort Wayne and Chicago Railway Company. * * *
    “ Upon this question the master finds record evidence of the fact that these securities did go into the custody, possession and control of the Pittsburg, Eort Wayne and Chicago Railroad Company.
    “ The answer of Thomas D. Messier to the interrogatories filed in No. 365, of April Term 1863, Stewart, Mulconnery & Co. against the Pittsburg, Eort Wayne and Chicago Railroad Company, admits the custody and possession of the notes or freight-warrants attached by complainants. This answer was sworn to by Mr. Messier on the 21st day of November 1863, and was filed in the cause and became a part of the record, and upon that answer the court rendered judgment in favor of the present complainants against the Pittsburg, Eort Wayne and Chicago Railroad Company.
    “Thomas D. Messier'was, at the time of the swearing to and filing of that answer, the comptroller of the Pittsburg, Eort Wayne and Chicago Railway Company, and, as he proves in his testimony taken in this case, the custodian of the securities in the possession of the said company.
    “But if the theory of the defendants in this case be the correct one, if the Pittsburg, Eort Wayne and Chicago Railway Company be a new and independent corporation and not a re-organization of the former company, then Mr. Messier did not hold the said securities as an officer of the former company, for that was dissolved. He could therefore hold the securities only as an officer of the company then in existence, as he himself proves that he held them in his official character.
    “ From the evidence in the cause as before referred to and the testimony of John P. Henderson, the treasurer of the company and one of the present defendants, the master is of opinion, and so finds, that the notes or freight-warrants which belonged to Lewis Broad, and which were attached by the present complainants in the hands of the Pittsburg, Fort Wayne and Chicago Railroad Company, did come into the control, custody and possession of the Pittsburg, Fort Wayne and Chicago Railway Company, and that the latter company did hold them in trust for the said complainants, as under all the circumstances disclosed in this case the law would imply such a trust, although none was expressed.
    “ But there is another view of this case which, in the opinion of the master, would render the Pittsburg, Fort Wayne and Chicago Railway Company liable to the present complainants for the amount of their judgment against the Pittsburg, Fort - Wayne and Chicago Railroad Company.
    “The stockholders of the Pittsburg, Fort Wayne and Chicago Railroad Company were entitled to nothing from their stock, upon the sale and transfer of the road, property and franchises of the company, either as dividends or otherwise, until the general creditors of the company were paid. It cannot be doubted that that company was insolvent.
    “We have then the case of the stockholders of an insolvent corporation entering into an agreement or arrangement with the parties who are to, and do, purchase the road, stock and franchises of their company in trust for a company which is to be organized whether that company is to be a new company or a re-organization of the old one.
    “ The nature and terms of that agreement or arrangement are not disclosed by those who had it in their power fully to disclose them.

      “ But it is clear from the allegations contained in the bill, the answer of the defendants and the testimony in the cause, that the result of that agreement or arrangement was either to admit the stockholders of the Pittsburg, Fort Wayne and Chicago Railroad Company to become stockholders in the Pittsburg, Fort Wayne and Chicago Railway Company upon their stock in the old company, or else to exchange their stock in the old company for stock in the new. In either case the stockholders are permitted to realize- the amount of their stock in whole or in part, while the general creditors are wholly unprovided for. And here it is to be observed that this arrangement or agreement is fully ratified by the Pittsburg, Fort Wayne and Chicago Railway Company, when its organization is effected.
    “ This being so, the transaction was fraudulent as against the general creditors of the Pittsburg, Fort Wayne and Chicago Railroad Company, and being fraudulent, neither the mediate nor immediate purchasers of the road, property and franchises are to be regarded as standing in the light of bonfi fide purchasers, and they hold the property in trust for the old company, and the general creditor can enforce his claim against such property. * * *
    “ The master is of opinion, and so finds, that the Pittsburg, Fort Wayne and Chicago Railway Company hold the property of the Pittsburg, Fort Wayne and Chicago Railroad' Company in trust for the latter company for the purpose of paying the debts due to its general creditors, if indeed it be not a mere re-organization of that company, and that therefore the said railway company is liable to the complainants for the amount of their judgment, with interest and costs.

      “ Then, as to the liability of the other defendants, George W. Cass, the president of the company, John P. Henderson, the treasurer, and Thomas D. Messier, the auditor under the old organization and the comptroller under the new, or re-organization.
    “ The master finds that the notes or freight-warrants attached by the complainants in the hands of the Pittsburg, Fort Wayne and Chicago Railroad Company were sent or taken by these defendants last named out of the jurisdiction of this court, so that they could not be forthcoming to answer the exigencies of the writ issued and placed in the hands of the sheriff for the purpose of collecting the amount of the judgment, if recovered by the present complainants, against the Pittsburg, Fort Wayne and Chicago Railroad Company.
    “ It appears from the answer of the defendants and the testimony of Mr. Henderson, that there was a reissue of the freight-warrants in 1861, after the re-organization of the company had been provided for, and that Mr. Cass, Mr. Henderson and Mr. Messier participated in this change or reissue and in the asportation of the said securities. It cannot be doubted that these parties had full knowledge of the existence and pendency of the attachment of the present complainants, for they were the very officers upon whom that attachment was served, and one at least of them had made answer to the interrogatories filed in that case.
    “ Under these circumstances it was the duty of thes-e parties to retain these securities to answer the exigencies of any writ of execution which might be issued upon a judgment recovered in the attachment suit, and not to permit them to be carried out of their possession and out of the jurisdiction of the court; and having done so they are, in the opinion of the master, and he so finds, liable to the complainants for the amount of their judgment and costs.
    “It is no objection to their liability that they acted under the direction of the company of which they were officers, any more than it is an objection to the liability of the company that the action was that of the officers. If the officers were in fault they may be liable to the company, or if the company was in fault it may be liable over to the officers, but both are liable to the parties injured by the act. * * *
    “ There was no evidence of assignment of the securities to Taylor and Gleason, or to any one else. Neither was there any competent evidence of any suit having been brought in the Circuit Court of the United States for the Northern District of Illinois, for the recovery of the indebtedness of the Pittsburg, Fort Wayne and Chicago Railroad Company to the said Lewis Broad. If such a suit was brought, and if such a recovery was had, and if it constituted any defence in this case, the facts alleged should have been proved by the record. That was the proper, and in the absence of an agreement to the contrary, the only evidence of the alleged facts.
    “ But if these allegations had been properly proved or admitted, they would, in the opinion of the master, constitute no defence which could avail any of the defendants here.
    “ The suit alleged to have been brought by Taylor and Gleason in the Circuit Court for the Northern District of Illinois is alleged to have been instituted only on the 22d day of February 1860, one year, four months and three days after the institution of the suit by complainants in the District Court.
    “ Although the District Court. of Allegheny county and the Circuit Court of the United States for the Northern District of Illinois may originally have had concurrent jurisdiction, yet the suit having been commenced in the District Court on the 19th of October 1858, the jurisdiction of that court became at once exclusive, and the Circuit Court of the United States had no jurisdiction on the 22d of February 1860.
    “ It was the duty of Taylor and Gleason, if they claimed to have a prior assignment of the securities attached, to intervene in the attachment suit in the District Court, and have the right determined there. Failing to do that, they would be concluded by the judgment.
    “It is therefore, in the opinion of the master, a matter of no consequence whether the allegations contained in the ninth paragraph of the defendants’ answer be proved or not, as they constitute no defence for any of the defendants in this proceeding.
    “Upon the whole case the master is of the opinion, and so finds :—
    “1. That the said defendants, the Pittsburg, Fort Wayne and Chicago Railway Company, are liable for the debts and defaults of the Pittsburg, Port Wayne and Chicago Railroad Company, and therefore for the payment of complainants’ judgment against the Pittsburg, Eort Wayne and Chicago Railroad Company;
    “2. That the Pittsburg, Fort Wayne and Chicago Railway Company, and the said George W. Cass, John P. Henderson and Thomas D. Messier, are the trustees and bailees, for the use of the complainants, of the said notes or freight-warrants belonging to the said Lewis Broad, and attached at the suit of complainants; and that the Pittsburg, Fort Wayne and Chicago Railway Company, and the said George W. Cass, John P. Henderson and Thomas D. Messier, ought to be decreed and ordered to produce and deliver the said notes or freight-warrants to and for the use of the present complainants, or in default thereof to pay to the said complainants the amount of their said judgment against the Pittsburg, Fort Wayne and Chicago Railroad Company, together with the interest and costs which have accrued thereon, and the costs of this present suit.” * * *
    The Pennsylvania Act of Assembly provided :
    “ Sect. 1. In case the railroad of The Pittsburg, Fort Wayne and Chicago Railroad Company should be sold by virtue of any mortgage or deed of trust, * * * the' persons on account of whom the purchase * * * shall have been made * * * are constituted a body corporate,” &c. That, after notice as provided in the act, the purchasers shall meet to elect directors, and at the election “ the persons for whom the purchase shall have been made shall be entitled to vote in proportion of one vote for each $100, of par value, which they may have contributed in bonds, entitled to distributive shares in the proceeds of such sale, or in cash towards the purchase * * * all persons holding bonds * * * prior in lien to those by virtue of which such sale shall have been made shall be entitled to one vote for every $100 of the par value of the said bonds.” * * * The corporation created by the act to have power to “ acquire by purchase or otherwise, and hold, &c., The Pittsburg, Fort Wayne and Chicago Railroad * * * and all equipment * * * all lands, property, franchises,” &c., * * * and to operate it.
    “ Sect. 8. The said corporation, formed pursuant to this act shall, within six months after its organization, likewise have power to assume such debts, liabilities and claims against the said Pittsburg, Fort Wayne and Chicago Railroad Company, and make such settlements or adjustments with any of the stockholders, or other parties interested therein, as it may deem proper, and for the said purposes to use such portion of the stock or bonds hereby authorized to be created, and in such manner as it may deem necessary.
    “ Sect. 4. Full authority is hereby given to the corporate authorities of the several county, township, city, village or other municipal corporations, owning or holders of stock in the said company, and to all persons holding the same in any fiduciary capacity, to accept and receive, under the re-organization, such portion of the new stock as may be apportioned to the stock so owned and held.”
    The evidence by Messier was that Q-. W. Cass, T. D. Messier and J. P. Henderson held substantially the same offices in the railway company as they had in the railroad company, Messier having some time subsequently to the organization of the railway company been elected their assistant president; whatever papers had been in their possession as officers of the railroad company, remained in their possession under the organization of the railway company. Immediately after the execution of Broad’s freight-warrants, they were sent, by order of the president, under the advice of their attorney in Chicago, to be deposited with the clerk of the Superior Court at Chicago, in pursuance of an order of that court. These warrants were executed early in 1861, in the form of a drafijj. drawn by the auditor, accepted by the treasurer, and payable in money due the company for the transportation of freight, and amounted to between $17,000 and $18,000. The land bonds were secured by mortgage on special real estate of the company not covered by the general mortgage; $19,000 of those bonds were sent to Chicago in the latter part of 1860, through the president; they had been previously in J. Edgar Thomson’s possession, who was chief engineer; the freight-warrants have since been paid.
    “ Upon the re-organization of the new company, the stock of the old company — such part of it as the holders thereof had assented to a certain agreement for a re-organization of the affairs of the old company — was converted into the stock of the new company. The great majority of the stock agreed to a re-organization. By this agreement the stockholders of the old company were not to pay any money in consideration of the new stock.”
    J. P. Henderson testified:—
    “I was treasurer of The Pittsburg, Fort Wayne and Chicago Railroad Company; am now treasurer of The Pittsburg, Fort Wayne and Chicago Railway Company. Lewis Broad was a contractor and creditor of The Pittsburg, Fort Wayne and Chicago Railroad Company. I became treasurer of the railway company immediately upon its organization. The freight-warrants were in the custody of the auditor; the real estate bonds were in the hands of the treasurer. The freight-warrants were evidences of indebtedness issued by the auditor, and did not come into the possession of the treasurer. My duties as officer of the company did not make it necessary for me to have any knowledge of any freight-warrants that might have been in the custody of the company. These freight-warrants were acknowledgments of indebtedness in favor of the person named therein.

      “ A freight-warrant, as used by that company, was an evidence of indebtedness in favor of a person named therein or bearer, for a specified sum, and payable out of freights earned by the company. The sum so engaged to be paid was not considered as covered by the mortgage of the company, but was a substitute for ready money which the company' might not have, and to give the holder of it something that he might dispose of for money. I presume this to be the object of the issue; it is an extraordinary issue.”
    Exceptions were filed to the master’s report, and after argument it was “ decreed that the complainants’ bill be dismissed out of this court, and that the complainants pay the costs in this case.”
    The complainants appealed to the Supreme Court, and assigned for error:—
    1. Dismissing complainants’ bill.
    2. Not decreeing as prayed for in complainants’ bill.
    3. Not decreeing that The Pittsburg, Fort Wayne and Chicago Railway Company were liable to complainants for the amount of their claim against The Pittsburg, Fort Wayne and Chicago Railroad Company.

      4. Not decreeing that George W. Cass, T. D. Messier and J. P. Henderson were liable to complainants, as alleged in their bill.

      Gr. Shiras, Jr., for appellants,
    cited Railroad Company v. Howard, 7 Wallace 392 ; Mumma v. The Potomac Co., 8 Peters 281; Curran v. State of Arkansas, 15 Howard 304; Minor v. Mechanics’ Bank, 1 Peters 46.

      J. A. Lowrie and A. M. Brown, for appellees.
    An agent is responsible to his principal, and he to third persons injured: Denny v. Manhattan Co., 2 Denio 115; United States v. Bevan, Crabbe 324; Costigan v. Newland, 12 Barb. 456; Colvin v. Halbrooke, 2 Comstock 126; Shearman & Redfield on Negligence, sect. 111.
    January 6th 1873,
   The opinion of the court was delivered, by

Ágnew, J.

George W. Cass, T. D. Messier and John P. Henderson, the president, auditor and treasurer of the Pittsburg, Fort Wayne and Chicago Railroad! Company, and afterwards the president, comptroller and treasurer of the Pittsburg, Fort Wayne and Chicago Rail wag Company, were in no "way liable to the plaintiffs as attaching creditors. The attachment was not- served on them and no judgment was had against them as garnishees. Nor were they trustees of or for the debts attached or the securities representing these debts. So far as they were connected with these' debts, or in possession of the securities, they were acting as officers and agents of the rail road company and not of the railway company, and all they did was in their official capacity and in subordination to the railroad company. Their position and acts were those of the railroad company, and were not individual either in their own right or their own wrong. No negligence is charged to make them individually responsible ; and if any were, the liability would be to their own principal, and not to the plaintiffs, with whom they were in no privity, and who have not charged them by attachment. The liability for the debts and securities attached was, therefore, wholly upon the rail road company. It is not denied that the railroad company is liable. The liability was fixed by the judgment in the attachment, and the return to the execution which followed the judgment.

The liability of the other defendant, the rail way company, is attempted to he founded upon its alleged privity with its predecessor, the railroad company; and its possession of the assets of the railroad company as trustees for the stockholders of the latter. Neither position is sustained. The Pittsburg, Fort Wayne and Chicago Rail way Company is a new, original and distinct corporation, deriving its existence and franchises under and pursuant to the Act of the 31st March 1860, Pamph. L. 498, and was by the terms of the act dependent for its existence upon the sale in law or equity of the railroad of the Pittsburg, Fort Wayne and Chicago Railroad Company. It was upon this contingency involving the extinction of the railroad company that the law itself placed the incorporation of the rail way company. The term “reorganization” in the title of the act, which was passed before the adoption of the constitutional amendment of 1864, cannot overcome the very facts of the case, and the language and intent of the law. Nor could the organization of the company precede the contingency of sale, made by the act the basis of the organization of the new company. Nor is the position sustained by the facts in evidence that the new company is the trustee for the stockholders of the old company of any of its assets, and consequently it is not trustee for the creditors, whose equity, in case of assets, would be superior to that of the stockholders. It is not proved as charged in the bill that the re-organization, as it is termed, was in pursuance of certain private agreements between the mortgage bondholders and the stockholders whereby the new company became possessed of assets or property belonging to the old company. On the contrary the proof is that the road, property and franchises of the old company were sold under judicial proceedings to every appearance' adversary; and the sum bid, two millions, paid to a receiver before the sale was confirmed, and the deed ordered to be made, vesting the title and franchises of the old company in the individual purchasers, through whom the new company derives its title. In this connection it is to be noticed that there is no charge of collusion or fraud alleged in the bill to subvert the judicial proceedings under which the property and franchises of the old company passed to the purchasers and from them to the new company. The whole case of the plaintiffs, in this branch of it, is rested on the fact that the new company came into possession of the assets and property of the old company under such a voluntary arrangement with the stockholders of the old company as would leave the property liable to the creditors of the old company. This liability is expressly denied in the seventh paragraph of the answer, while in the sixth paragraph, not only is it alleged that the sale and foreclosure under the mortgages passed a free and unencumbered title to the new company, but it also alleged that the rights of the old stockholders were acquired under an arrangement subsequently made ; and this accords with the power conferred upon the new company by the third section of the Act of March 31st 1860. Taking all the facts and evidence found properly in the record, we discover no proof of a preliminary agreement, or such an arrangement with the stockholders of the old company, or such admissions of liability, as would charge the new company with a trust of any of the assets for the creditors of the old company. This is the difference between the present case and that cited from 7 Wallace 392: Railroad Company v. Howard. There not only was there a preliminary agreement to sell the property of the Mississippi and Missouri Railroad Company to the Chicago and Rock Island Company, and to make the proceeding to foreclose the mortgage and sell the roads of the former, ancillary to the agreement; but after all this had been done, and the property vested in the latter company, the latter admitted the possession of sixteen per cent, of the fund in hand to belong to the stockholders of the former company, and the real question was whether the stockholders or the creditors of the Mississippi and Missouri Railroad Company should be entitled to this surplus fund ? It was held of course that the equity of the creditors was superior to that of the stockholders. Finding no error in the decree dismissing the bill with costs, it is affirmed, and the appellants are ordered to pay the costs of this appeal.


author: Thompson, C. J.

text:
    Wilson et al. versus Coursin.
    A woman decreed a feme sole trader, under the Act of May 4th 1855, during the life of her husband, convey her real estate by deed in ^yliich her husband does not join.
    November 11th 1872.
    Before Thompson, C. J., Read, Agnew, Shakswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 54, to October and November Term 1872.
    This was an action of ejectment brought to March Term 1871, of tbe court below, by Benjamin Coursin against Susan Wilson and Bichri Wilson, to recover a lot in McKeesport.
    The title of the premises was in Susan Wilson, one of the defendants, on the 18th of July 1858. On the 15th of April 1861, Susan Wilson, being then the wife of Benjamin Wilson, was by virtue of the Act of May 4th 1855, Pamph. L. 430, 1 Br. Purd. 692, pi. 56, decreed to be a feme sole trader, under the Act of February 22d 1718, 1 Sm. L. 99, 1 Br. Purd. 692, pi. 1, and it was decreed that her property “ shall be subject to her free and absolute disposal during life, or by will, without any liability to be interfered with or obtained by her husband, Benjamin Wilson,” and the court decreed that a certificate issue to Mrs. Wilson, authorizing her to act and have the power to transact business, &c.
    On the 25th of April 1861, Mrs. Wilson, her husband being still living, conveyed the premises by deed from herself alone to Sarah D. Hammer.
    On the 13th of June, Sarah D. Hammer, with her husband, executed a mortgage of the premises to Benjamin Coursin, the plaintiff. A scire facias was issued on the mortgage, and judgment recovered September 10th 1868. Under a levari facias the premises were sold by the sheriff to Coursin, and sheriffs deed made to him February 6th 1869.
    On the trial, February 19th 1872, before Sterrett, P. J., the foregoing facts were given in evidence, under objection and exception:—
    The court charged: * * *
    “ The question then arises, whether Mrs. Wilson, under the decree of the court declaring her a feme sole trader, had power to convey title to Mrs. Hammer ? If she had, then the plaintiff, Coursin, acquired such title as Hammer and his wife had in the lot. This is a question of law, which we will reserve for future consideration.
    “ For the present, we instruct you, pro forma, that under and by virtue of the proceedings and decree of the Court of Common Pleas, Susan Wilson was empowered to convey title to Mrs. Hammer, by her deed of April 25th 1861, without her husband joining therein, and that such title as Mrs. Hammer acquired by said conveyance passed to the plaintiff, Coursin, by virtue of the sheriff’s sale and conveyance under the mortgage of Hammer and wife, and consequently the plaintiff is entitled to your verdict, which will be entered, subject to the opinion of the court in banc on the following question of law reserved, viz.:—
    “ Whether, under and by virtue of the proceeding and decjtle of the Court of Common Pleas, Susan Wilson was enabled to pass title to the lot in question to her vendee, by deed in which her husband, Benjamin Wilson, did not join ?
    “ And if the court shall be of opinion that the law is with the plaintiff, then judgment to be entered in his favor on the verdict; but if the court shall be of a contrary opinion, then judgment to be entered in favor of the defendants, non obstante veredicto.”

    The verdict was for the plaintiff.
    The court afterwards entered judgment on the verdict in favor of the plaintiff, on the question of law reserved.
    The defendants took a writ of error', and assigned for error the rulings on the evidence, and entering judgment on the reserved point.
    The Act of 1855 is as follows : — ■
    “ Sect. 2. That whensoever any husband, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader, under the Act of the 22d of February 1718, entitled 11 An Act concerning feme sole traders,’ and be subject as therein provided, and her property, real and personal, howsoever acquired, shall be subject to her free and absolute disposal during life, or by will, without any liability to be interfered with or obtained by such husband, and in case of her intestacy shall go to her next of kin, as if h'e were previously dead.
    “ Sect. 4. That creditors, purchasers and others may with certainty and safety, transact business with a married woman under the circumstances aforesaid, she may present her petition to the Court of Common Pleas of the proper county, setting forth under affidavit the facts which authorize her to act as aforesaid, and if sustained by the testimony of at least two respectable witnesses, and the court be satisfied of the justice and propriety of the application, such court may, upon such notice as they may direct, make a decree and grant her a certificate, that she shall be authorized' to act, have the power and transact business as herein-before provided; and such certificate' shall be conclusive evidence of her authority, until revoked by such court for any failure on her part to perform the duties of this act made incumbent upon her, which may be ascertained upon the petition of any next' friend of her children.”

      R. Woods, for plaintiff in error.

      J. M. Kennedy and M. W. Acheson, for defendants in error.
    November 14th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

The learned judge was right in holding that Mrs. Wilson had power, after the proceedings declaring her a feme sole trader, to convey her own estate without being joined by the husband.

We have no doubt in regard to this point, and therefore the judgment is

Affirmed.


author: Williams, J.

text:
    Burns and Stevenson versus McCabe.
    1. B. contracted for the purchase of oil-laud from S. and sold shares with the purpose of obtaining an incorporation of a company. The vendor conveyed to “ The Middletown Oil Company,” no such company having been incorporated. The deed passed no title.
    2. M. bought a share of B., who gave a receipt for $250, “ first instalment one share on oil-land purchased by B., in St. Clair, on Beaver Creek, Smith’s Ferry.” Held, M. obtained no title to any part of the land.
    3. M. sued B. to recover the $250 paid by him, on the ground of misrepresentation. Held, that tender of a reconveyance by B. before action was not necessary.
    4. M., having rescinded the contract, and the jury having found it invalid, he had no title to any of the land, and had therefore nothing to reconvey.
    5. M., by his rescission and recovering the money, was estopped from asserting title to the land.
    6. The acts and declarations of one of several parties acting in concert in an illegal transaction for their joint benefit are the acts and declarations of all.
    7. Several persons subscribed and paid for stock as M. did, and at the same time. Held, the individual contract of each, and on rescission each must sue alone.
    8. Babcock a. Case, 11 P. F. Smith 427 ; Simons v. Vulcan Co., Id. 202, followed.
    November 11th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 46, to October and November Term 1872.
    This was an action of assumpsit brought to August Term 1867, by William P. McCabe against John Burns and Samuel Stevenson.
    The declaration was that the defendants represented to the plaintiff that they had entered into an agreement with Daniel Smith to purchase from him a piece of oil-land, of 8 acres, in Columbiana county, Ohio, for $26,000, and that they desired to form a company to pay for said land and complete said purchase, the terms of which were one-half cash and one-half in seven months; that on these representations the plaintiff agreed to become a purchaser with the defendants, and others, of the said land, and to take one share of $500 in the company so formed, one-half to be paid in cash, and the other half in seven months; in pursuance of this agreement the plaintiff paid the defendants $250, and gave his note for $250, payable in seven months. The plaintiff averred that the representations were untrue; that the land was not good oil territory, was not situated in the place represented, and that defendants had not agreed to pay Smith $26,000, but only the sum of $4000, and therefore an action had accrued to the plaintiff to have from the defendants the said sum of $250.
    The case had been before tried and the judgment reversed in the Supreme Court. It is reported as McCabe v. Burns, 16 P. E. Smith 356.
    On the trial of the case, November 20th 1871, before Kirkpatrick, J., the plaintiff gave evidence by Alfred McCabe, that about the 17th of January 1866 there was a meeting, at a school-house, of certain persons of Moon township, at which Burns, one of the defendants, was present; the plaintiff also was present, and a number of other persons. Burns represented that he and Stevenson had a piece of property at Smith’s Eerry, bought from Daniel Smith. He said it lay on Little Beaver creek, “ opposite the tree derrick.” He said they were to pay $26,000 for it, $3200 per acre; they had got it for their neighbors, and were getting up a company, and did not want any one in but their friends, and they gave it at the cash price of the property; the plaintiff then agreed to subscribe. There was a meeting on the 27th of January, at the school-house, for the purpose of getting up the Middletown Oil Company; both Bunis and Stevenson were present; the $250 was then paid. A committee was appointed to examine the property; it was not located where it had been represented, and was not on the creek. Burns afterwards said they had given but $16,000 for the property. There were to be 52 shares. .
    Richard Gracey testified that Burns said the land had been sold to the Middletown Oil Company.
    W. P. McCabe, plaintiff, testified, that he subscribed for a share of stock in the Middletown Oil Company, and paid $250 at Middletown, at the school-house, and gave a note for $250. The money was paid to Burns, who handed it to Stevenson; he delivered the receipt to plaintiff; the receipt was:—
    “ Moon Township, Jan. 27th, 1866.
    “'Received of W. P. McCabe, two hundred and fifty dollars, the first instalment, one share, on the oil-lands purchased by John Burns and Samuel Stevenson, located in St. Clair township, Columbiana county, state of Ohio, on the Little Beaver creek, Smith’s Eerry.
    “$250.00 John Burns,
    Samuel Stevenson.”
    Much evidence was given on the question of misrepresentation by the defendants.
    The plaintiff proposed to file a quit-claim deed to defendants of any interest he might have in the lands of the Middletown Oil Company, and the deed was filed by leave of the court, under objection and exception by the defendants.
    There was in evidence a deed, dated March 1st 1866, from Daniel Smith to the “ Middletown Oil Company, their heirs and assigns,” for the land in question, the company having never been incorporated, nor having any articles of association.
    There was evidence that the plaintiff gave notice to Burns that he rescinded the contract, and had demanded from Burns the repayment of the money; this was before bringing the suit.
    The defendants gave evidence, that at the meeting at the school-house, January 27th 1866, the persons who had before subscribed for stock organized a company and elected a president, treasurer and secretary and a manager.
    There was evidence also, in answer to the plaintiff’s evidence as to misrepresentation, and generally to the plaintiff’s case.
    There were exceptions to admission of evidence offered by the plaintiff not necessary to notice.
    The following are plaintiff’s points, with their answers:—
    1. The conveyance in evidence from Daniel Smith to Middle-town Oil Company, date March 1st 1866, passed no title for the land described therein from Daniel Smith, if the jury find from the evidence that the said company never was incorporated.
    Answer: “ The first point is affirmed. The land purchased by the defendants was conveyed to the ‘ Middletown Oil Company,’ and if the jury find that this Middletown Oil Company was not incorporated, no estate passed by the conveyance, and the legal title still remains in the grantor.”
    2. If the jury believe, from the evidence, that the Middletown Oil Company never has been incorporated, then, no title to the land described in said deed, in evidence of March 1st 1866, passed by said deed to the plaintiff.
    3. If the jury believe, from the evidence, that it was a share of stock in a company to be formed and incorporated, for which plaintiff subscribed, then, no title passed to said plaintiff by the deed in evidence.
    Both these points were affirmed.
    5. If the jury believe from the evidence that Samuel Stevenson and John Burns joined in the purchase from Smith, and jointly received the money paid by plaintiff and others, and jointly applied it to the payment on the land to Smith, and acted jointly in getting up the company, then, all the acts and declarations of John Burns, made when soliciting the subscription from plaintiff, are as binding upon the other defendant, Samuel Stevenson, as if he had been present assenting thereto.
    Answer: “The fifth point is affirmed, under the state of facts suggested in and by this point the acts of any one of these defendants are the acts of the other, and so binding upon both.”
    8. If plaintiff was induced by fraudulent representations of defendants, or either of them, to enter into the arrangement and pay his money, and no title has ever passed to plaintiff, then he is entitled to recover back his money.

      Answer: “ The sixth point is affirmed, only, however; and if you further find that the plaintiff was prejudiced and injured by these fraudulent representations, and further, that as soon as he discovered fraud or deception, or lie, as you may choose to call it, or within a reasonable time thereafter, he discovered and disapproved the contract, and gave the defendants to understand, and how by words or acts, or both, that he would not be bound by it; in a word, that he did not play ‘fast and loose,’ waiting to see whether his venture was a success or a failure, and promptly upon discovering the wrong that had been put upon him, rescinded the contract, and notified the defendants that he would not stand to or be bound by it; if, and unless you find these additional facts, the point is refused.”
    The following are points of defendants, and their answers:—
    4. If you believe that the plaintiff, McCabe, and others associated with him as the Middletown Oil Company, with the knowledge that they had not been incorporated, accepted the deed of land from Smith, made to the “ Middletown Oil Company, their heirs and assigns,” and with that knowledge on the part of McCabe, and with his assent the said associates, the plaintiff included, continued to exercise ownership over, or to bore for oil on said land, and proceeded to stock out a portion thereof to other parties and to sell stock therefor, or used the money derived from such stocking out in boring on the Smith land, the plaintiff had such an interest in the land as made it his duty to tender to defendants a reconveyance or release of his interest in or right thereto before he could bring this action; and not having done so, your verdict, must be for the defendants.
    Answer: “If the plaintiff took no legal title or estate by the deed of Smith and wife to the ‘ Middletown Oil Company,’ neither one or all of the acts suggested or enumerated in this point could or would give him such title or estate to this land as would render a reconveyance or transfer by him to the defendants necessary before his right to this action could accrue. Provided he had it on. other and substantial grounds — in other words, if his right of action was complete without this reconveyance, the fact that he did not first reconvey under the facts stated in this point would be no legal bar to his right to recover in this action.”
    “ 6. If you believe, from the evidence, that the plaintiff and others associated themselves together as the Middletown Oil Company, for the purpose of purchasing land and boring for oil, and that the defendants were the agents of the said company in the purchase of land from Smith, then any fraud or deception .that may have been practised in such purchase would be a fraud on the company, and not on the plaintiff alone, and all the members of the company should have been joined as plaintiffs in this action; and that this not having been done, the plaintiff cannot recover here, and your verdict must be for the defendants.
    Answer: “ The sixth point is refused.”
    The verdict was for the plaintiff for $337.50.
    The defendants removed the record to the Supreme Court and assigned for error the answers to the points of the parties, and the admission of plaintiff’s offers of evidence.

      J. H. Bailey and T. M. Marshall, for plaintiff in error.

      J. Barton and B,. Woods, for defendant in error.
    January 6th 1873,
   The opinion of the court was delivered, by

Williams, J.

The plaintiff below subscribed for a share in the oil lands purchased by the defendants, “ located in St. Clair township, Columbiana county, state of Ohio, on the Little Beaver creek, Smith’s Ferry,” and paid them one-half of the price in money and gave his note, payable at a future day, for the residue. He refused to pay the note after it became due, and, upon the defendants’ refusal to refund the money which he had paid, brought this action to recover it back, on the ground that they had been guilty of such fraud as justified him in rescinding the contract. Under the instructions of the court, the jury found that the plaintiff was induced to enter into the contract by the false and fraudulent representations of the defendants as to the location, value and consideration paid for the land, and that, upon discovering the fraud, he rescinded the contract and gave them notice that he would not be bound by it; and in accordance with this finding they returned a verdict in his favor for the amount paid the defendants. It was insisted on the trial that the plaintiff was not entitled to recover, because he did not make or tender a reconveyance of his interest in the land to the defendants before bringing the action. But the court below, being of the opinion that the plaintiffs had no title to the land, instructed the jury in substance that he. was not bound to make, or tender a reconveyance. Whether the plaintiff had such title, and was bound to tender a reconveyance of it, or not, is the main question presented by the assignments of error. It is clear that no title to the land vested in the plaintiff under the written contract between the parties. It does not purport to convey a definite interest in the land; it does not designate the price or quantity, nor does it describe its location with sufficient certainty. Both the consideration and subject of the contract are undefined. Where either is left uncertain the contract is legally incomplete, and therefore void: Soles v. Hickman, 8 Harris 180. If then no title passed to the plaintiff under the contract, had he any such interest in the land under the deed of Daniel Smith to the Middleton Oil Company, as made it necessary for him to tender a reconveyance before commencing the action? The defendants purchased the land from Smith, and at their request he conveyed it, by deed duly acknowledged, to “ The Middleton Oil Company of Allegheny county and state of Pennsylvania, their heirs and assigns.” The company never had any articles of association, or charter of incorporation. It was composed, as the evidence shows, of the defendants and those to whom they sold shares or interests in the land. The learned judge instructed the jury that if the company was not incorporated, no title passed to the plaintiff by the deed. This instruction was in conformity with the opinion of this court when the case was here on a former writ of error: McCabe v. Burns, 16 P. F. Smith 356, and is supported by the following authorities: Jackson v. Sisson, 2 Johns. Cases 321; Jackson v. Cory, 8 Johns. 385; Hornbeck v. Westbrook, 9 Id. 73; Humble v. Glover, Cro. Eliz. 328; Tho. Co. Litt. 316, 3 a, among others which might be cited. In delivering the opinion in Jackson v. Sisson, Kent, J., said: “ There was no legal estate created by the patent, but what vested in the three patentees named. The description of the association, by the words, ‘ a settlement of friends on the west side of the Seneca Lake,’ was too vague and uncertain to constitute a competent grantee at law, or a cestui que use, whose estate the statute would transfer into possession : Saunders on Uses 63, 128. This would be like a grant to the parishioners, or inhabitants of a dale, or to the commoners of such a waste, or to the churchwardens of a parish, which are held to be void grants: Shep. Touch. 235, 236.” It is not easy to discover any real difference or distinction in principle between that ease and the present. But even if the deed to the Middleton Oil Company is sufficient to vest the title in the members of the company, as tenants in common, on the principle, id cerium est quod cerium reddi potest; Huss v. Stephens, 1 P. E. Smith 282 ; Stephens v. Huss, 4 Id. 20; the question recurs whether the plaintiff had such title under the deed as he was bound to release or convey. A re-conveyance or return of the property is only required in order to prevent the party from holding the thing paid for, and recovering the price: Babcock v. Case, 11 P. F. Smith 427. The deed on its face conveys no title or interest whatever to the plaintiff. If he is not a member of the company, he has no title under the deed. Whether he is a member of the company, or not, depends upon the validity of his contract with the defendants. If it was invalid by reason of fraud, and has been rescinded, then all his rights under it, including his rights as a member of the company, fell with its rescission. He has no title or claim to membership independently of his contract, and he has no title to the land independent of his membership. Having rescinded the contract on which his membership depended, how can he have, or claim, any rights incident to such membership ? It is not pretended that he is, or that he ever has been in the actual possession of the land, or that he has received any of its rents and profits.

If then the contract was fraudulent and void, and the plaintiff has rescinded it, as the jury have found, he has, as it seems to us, no more title to the land conveyed to the company, than if the contract had never been made. He is estopped by its rescission, and by the recovery of the money from asserting any title or claim to the land. Of what avail to the defendants, then, would it be if the plaintiff had executed to them a conveyance or release before bringing the action ? If the deed vests in the defendants and their vendees, as members of the company, a valid title to the land, the defendants have a good title to all the estate therein, except the shares or interests held by their vendees. A conveyance from the plaintiff, therefore, would not enlarge their interests, or make their title more secure. But if the plaintiff has some shadow of title or possible interest, it seems to us that under the circumstances of this case, the deed of release and quit claim, which he filed in court, for the use of the defendants, is sufficient to entitle him to recover. In support of this view, we need only refer to the opinion of Thompson, O. J., in Babcock v. Case, supra, in which he says: “If equity requires a reconveyance to precede suit, it will be so administered; if it can be protected on the trial, as it may in almost every possible case, it will be so administered. If there be no equity in the case, but only an assumption of it, it ought to be disregarded.” Whatever equity the defendants in this case may have had, we think that it was fully protected by the deed filed for their use on the trial. If they had asked for a reconveyance when the plaintiff demanded his money, doubtless it would have been executed. As it is they have suffered no loss by the delay. It follows from what we have said, that there was no substantial error in affirming the plaintiff’s first, second and third points, and refusing the defendants’ fourth point.

Nor was there error in affirming the plaintiff’s fifth and sixth points. It is well settled that where parties to an illegal transaction are shown to have acted in concert for their joint benefit, that the acts and declarations of one are to be regarded as the acts and declarations of all: Peterson v. Speer, 5 Casey 478. This is the principle underlying both points, and they were rightly affirmed: Simons v. Vulcan Oil and Mining Company, 11 P. F. Smith 202.

There was no evidence upon which to base the defendants’ sixth point, and it was properly refused. The other subscribers were not parties to the contract which the plaintiff made with the defendants. It was his individual contract, and, upon its rescission, he alone was entitled to recover back the money he had paid on the footing of it.

There is nothing in the other assignments that requires discussion. The evidence contained in the bills of exception was properly admitted, and the plaintiffs in error have no. reason to complain of the instructions or of the manner in which the case was submitted to the jury.

Judgment affirmed.


text:
    Robinson et al. versus The West Pennsylvania Railroad Company et al.

    1. An Act of Assembly, for making the state canals, enacted that darn-ages for taking land should be assessed by an inquest, as specified, and that, after confirmation of the inquisition, the assessment should be paid by the canal commissioners and the state be seised of such land “ as of an absolute estate in perpetuityby another act, assessments of damages might be made through the Quarter Sessions, on application of the owner, in a year after completing the work on his land, and the canal commissioners might urdíase the land for the state. Robinson granted to the state, land occupied y the site of the canal, “ excepting therefrom ground for a basin," the canal and basin were constructed over the land released and no assessment was made through the Quarter Sessions. Held, that the Commonwealth took an absolute estate in perpetuity.
    2. The Commonwealth sold the canal and basin, and the vendee abandoned them. Held, that the land did not revert to Robinson.
    3. The exception of the “ basin” from the grant excluded that ground, and left it in the same situation as if no grant at all had been made.
    4. The right of the Commonwealth was not affected by the owner’s .right to have damages assessed.
    November 8th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 184, to October and November Term 1871.
    This was an action of ejectment, brought to October Term 1869, by William Robinson, Jr., against The Pennsylvania Railroad Company, for a piece of land in the city of Allegheny, formerly occupied as the basin or part of the state canal.
    William Robinson having died, John D. Robinson and others, his devisees, were substituted as plaintiffs.
    The West Pennsylvania Railroad Company were added as defendants.
    The case was tried, March 17th 1871, before Judge Kirkpatrick.
    The plaintiff gave evidence, showing his title originally to the land in question.
    The defendants exhibited the Act of April 25th 1826 (Pamph. L. 55), providing for the construction of the Pennsylvania Canal.
    Sect. 8, provided that the canal commissioners might agree with the owner of land through which the canal would pass for “ the purchase, use and occupation thereof on behalf of the stateif they could not agree, on application to a justice of the peace, he should issue his warrant to eighteen inhabitants of the county, who should “value the land and all damages,” the owner might sustain; the inquisition taken by the men to be returned to the prothonotary, and if no exceptions were filed, it should be confirmed, but if not, the court might direct another inquisition, the inquisition to describe the land taken “ and the quality and duration of the interest and estate in the land required by the board for the use of the state, and their valuation shall be conclusive and shall be paid for by the board to the owner, and on payment thereof, the state shall be seised of such land as of an absolute estate in perpetuity, or with such less quantity and duration of interest or estate in the same * * * as if conveyed by the owner.” . Also, Act of April 9th 1827 (Pamph. L. 192), which provided that any person aggrieved by the canal passing through his land, might apply within one year after the completion of the work to the Court of Quarter Sessions of the proper county, who should appoint five citizens, who were to report the amount of damages sustained by the applicant, and upon the court approving of the report, the canal commissioners should pay the amount of damages assessed. The act gave power to the canal commissioners to purchase land, if they should think it more advantageous to the Commonwealth than to pay damages, and to sell any portion of the land purchased, which they did not need for the canal. Also, deed of release, William Robinson, Jr., and others, reciting several Acts of Assembly, and “ in consideration of the benefits which will result to the community in general, and to us in particular, * * * grant, cede and for ever transfer to the Commonwealth * * * the privilege of taking water * * * and also all land belonging to us, which shall be necessarily occupied by the site of the said canal, excepting therefrom ground for a basin; and also site for towing-paths * * * and * * * all claims for damages * * * in consequence of the site of the said canal passing through land.” * * *
    Defendants gave evidence that the land in question which was called “ the basin,” was dug out about the time of digging the canal, under the direction of the canal commissioners. They gave in evidence deed of July 31st 1857, from the Commonwealth to The Pennsylvania Railroad Company, for the canals, &c., of the state, including that occupying the land in question: also, deed, May 15th 1867, from the Pennsylvania Railroad Company to the West Pennsylvania Railroad Company, for the part of canal, including the land in question, with evidence that Robinson had not applied within one year from the completion of the work for damages by reason of the occupancy of the land in question by the canal or basin.

      It was admitted that the canal and basin covering the land in question had not been used since February 17th 1865.
    The plaintiffs requested the court to charge:—
    4. That the title to the soil of the “ground for abasin’’ in Robinson’s release remained in him notwithstanding the release, and the basin having been disused before bringing this action, the plaintiffs were entitled to recover.
    5. That on the whole evidence the defendants had not shown title to the property in dispute, and the plaintiffs were entitled to recover.
    These points were refused by the court.
    The defendants requested the court to charge:—
    1. Under Robinson’s release, an absolute estate in fee passed to the Commonwealth in the land belonging to him taken in constructing the Pennsylvania Canal through the premises in question; and the defendants claiming under the state, the verdict should be in their favor.
    2. If the jury find that the ground described as “ a basin,” was the property of Robinson at the time the Pennsylvania Canal was constructed, and that the canal and basin were dug and excavated about the same time by the Commonwealth, and that the ground taken for the “ basin ” was used permanently in connection with the canal, and that Robinson did not within one year after the taking of the ground, apply to the Court of Quarter Sessions for the assessment of damages resulting from taking the ground for a “basin,” the plaintiffs could not recover.
    These points were affirmed.
    The court charged further:—
    “ That if the jury find from the evidence that the Pennsylvania Canal, through the lands of Gen. William Robinson, Jr., and the ‘basin’ were dug and excavated at and about the same time, by the agents and engineers of the state, and that the ground taken for paid ‘ basin ’ was used permanently in connection with the canal, so long as the latter was used by persons generally boating on the canal, and Gen. Robinson did not within one year of the taking of the ‘ground for a basin,’ and the construction thereof, apply to the Court of Quarter Sessions for the appointment of viewers and assessment of damages for taking of said ground, the jury should find for the defendants.”
    The verdict was for the defendants.
    The plaintiffs took a writ of error and assigned for error, the answers to the points of the parties and the charge.

      M. W. AtoJieson and II. Burgwin, for plaintiff in error.

      Hampton $ Dalzell, for defendants in error,
    cited Comm’th v. Snyder, 2 Watts 418; Comm’th v. McAllister, Id. 190; Haldeman
      v. Penna. R. R., 14 Wright 425 ; Downing v. McFadden, 6 Harris 338; Craig v. Allegheny, 3 P. F. Smith 477; Cooley on Const. Limitations 561; People v. Green, 3 Mich. 496; Charlestown Br. R. R. v. Middlesex, 7 Metc. 78; Rexford v. Knight, 11 N. Y. 308; Taylor v. Marcy, 25 Ill. 518; Collison v. Hedrick, 15 Gratt. 244 ; Gilmer v. Limi Point, 18 Cal. 229 ; Harper v. Richardson, 22 Id. 251; Albany Street, 11 Wendell 149; Brown v. Worcester, 13 Gray 31.
    May 17th 1873,
   The opinion of the court was delivered, by

Williams, J.

It wrns decided in Craig v. The City of Allegheny, 3 P. F. Smith 477, that, under the deed of Wm. Robinson, Jr., the Commonwealth took an absolute estate in perpetuity to the land thereby granted for the construction of the Pennsylvania Canal, and that it did not revert to the grantor or his alienee on the cessation of its use, or abandonment as a canal. But the question as to the proper construction of the clause in the deed “ excepting therefrom ground for a basin,” did not arise in that case. What then was the effect of the exception as it respects the land which was taken and used for the purpose of constructing the basin ? It undoubtedly excepted the land out of the operation of the grant, and was so intended. But did it, as the plaintiffs in error contend, recognise and permit its use as a basin, and subject it to such servitude as long as it might be so used ? And did the right to its possession revert to the grantor discharged of the servitude, when the canal was abandoned and it ceased to be used ? There is nothing in the language of the exceptional clause taken by itself, or in connection with the terms of the grant, which countenances such a construction. Why should the Commonwealth consent to take and hold a less estate or interest in the basin than in the bed of the canal or towing-path ? The basin was as necessary a part of the improvement as either, and its use was intended to be as permanent. There was then the same reason for taking an absolute estate in one as the other. Besides, why should an exception out of a grant of land to the public receive a different construction from that which would be given to it, if the grant had been made to a private person ? It would be a strange construction to hold that a clause excepting part of that which is granted, is the grant of the use of the part excepted. If it had been intended to grant the use of the land, can there be a doubt that it would have been granted in express terms and by apt words ? It is too plain to admit of argument that, in excepting the ground taken for a basin, it was not intended to grant its use. The whole purpose and effect of the exception was to exclude the ground so taken from the operation of the grant, and to leave it in the same condition as it would have been, if no grant had been made. There can be no doubt of the right of the Commonwealth, under the Acts 25th February 1826, Pamph L. 55, and 9th of April 1827, Pamph L. 192, to take the land for the purpose of constructing the basin; nor of the owner’s right to have the damages which he sustained by reason thereof, assessed under the provision of the latter act. But the right of the Commonwealth to the land so taken, was an absolute estate in perpetuity; Commonwealth v. McAllister, 2 Watts 190; Haldeman v. Pennsylvania Railroad, 14 Wright 425; and could not be defeated or impaired by the owner’s neglect or refusal to make application for the assessment of his damages within the time limited by the act. It follows that there was no error in the construction given to the exceptional clause in the deed by the court below, and that the plaintiffs were not entitled to recover.

Judgment affirmed.