author: — Per Curiam:

text:
    BERKS COUNTY.
    January Term, 1881.
    No. 38½.
    February 27th, 1882.
    In re Cross Keys Tavern Road.
    1. There is nothing illegal or irregular in the appointment of road reviewers, whilst exceptions are pending to the report of viewers, though a rule of Court provides that, “ where a petition for a review is filed, and exceptions to the proceedings of the view are taken, the petition for a review will be marked held under advisement, and will be so held until the exceptions are disposed of.”
    2. The confirmation of a report of reviewers laying out a road is necessarily a dismissal of exceptions to the report of viewers grounded upon alleged want of necessity for the road, and inadequacy of damages.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Certiorari to the Court of Quarter Sessions of Berks County.

    Exceptions to the report of viewers laying out a road from Ci’oss Keys Tavern to Schaefferstown.
    Rule VI. of the Court below provided that, “ where a petition for a review is filed, and exceptions to the proceedings of the view are taken, the petition for a review will be marked held under advisement, and will he so held until the exceptions are disposed of.”
    June 5th, 1876, Joseph Wilhelm, Jacob Gerhart, and other citizens, presented a petition asking for a road from Cross Keys Tavern to Schaefferstown, and the Court appointed viewers. June 23d, 1876, the viewers reported laying out the road, and fixing the damages, which report was confirmed nisi, August 21st, 1876.
    November 10th, 1876, Sarah Radenbach filed exceptions to the report of viewers, that, 1st, the road was unnecessary; 2d, the damages awarded the estate of John Radenbach •were inadequate; 3d, the road would be burdensome ; 4th, the jury were entertained by the petitioners; 5th, insufficient notice.
    Depositions were taken and filed December 17th, 1877.
    On the 11th of November, 1876, Jacob Stupp, Elias Standt, and others, presented a petition fora review, which was filed, and indorsed, “Held under advisement.” October 7th, 1878, the court appointed reviewers, who reported, October 21st, 1878, laying out the road, and assessing the damages. Exceptions were filed to this report.
    September 4th, 1880, the Court dismissed the exceptions and confirmed the report.
    The appellant then took out a writ of certiorari, assigning, that the Court erred in appointing reviewers whilst exceptions were pending to the report of viewers, and that the Court erred in confirming the report of reviewers while such exceptions were pending.

      Jacob S. Limngood and Edwin Shatter, for the appellant:
    The judgment of the Court was contrary to Rule VI. of the Court of Quarter Sessions, which expressly requires that the petition for review shall be held under advisement, until the exceptions to the report of viewers are disposed of.
    This rendered it legally impossible for the Court to appoint reviewers until Sarah Radenbach’s exceptions could be disposed of in a regular way.
    The Court inadvertently and illegally appointed reviewers during the pendency of the exceptions. The order to review ought not to have been issued until the Court could have disposed of the exceptions.

      J. George Seltzer and Gyrus G. Derr, for the appellee:
    The only exceptions raised by the testimony were as to the necessity of the road, and the inadequacy of the damages, and as to these a review was the only means of informing the Court
    The rule was, therefore, not violated. Its construction was for the Court: Gannon v. Fritz, 29 P. F. Smith, 307.
    The order for review is ipso facto an overruling of the exceptions.
    March 13th, 1882.
   — Per Curiam:

There was nothing illegal or irregular in the appointment of reviewers whilst exceptions were pending to the report of viewers, and the confirmation of the report of the reviewers was necessarily a dismissal of the exceptions to the report of the viewers.

Proceedings affirmed.


source: Caselaw Access Project

author: — Per Curiam

license: Public Domain

text:
    January Term, 1881,
    No. 12.
    February 27th, 1882.
    Elkins et al. versus Griesemer.
    1. An inspector of oils, appointed under-the Act of May 15th, 1874, P. L. 189, is an officer “ acting in his office under the authority of the State,” within the provisions of the Act of April 3d, 1779: 1 Sm., 470. And- a writ of replevin, issued to recover possession of oil seized by him, is therefore irregular, erroneous, and void.
    2. The proper remedy for an illegal seizure by such an inspector is an action of trespass.
    Before Sharswood, C. J., Gordon, Paxson, Sterrett, and Green, JJ. Mercur and Trunkey, JJ., absent.
    Error to tbe Court of Common Pleas of Berks County.

    Replevin by William L. Elkins and William G. Warren, trading as William L. Elkins & Co., against Charles A. Z. Griesemer, to recover possession of a tank of petroleum.
    The defendant filed a special plea avowing the taking, and setting up that he was appointed August 6th,-1877, by the Court of Common Pleas of Berks County, inspector of oils, etc., under the Act of May 15th, 1874; that he had filed his oath and bond; and “ that it was in the performance of his duties as inspector of oils, etc., as aforesaid, that he found the said tank, containing refined petroleum, in the hands of a certain firm, to wit, the firm of Miller & Kerper, a party who then and there sold oil in less quantities than one barrel ; and the said tank of refined petroleum being subjected to the fire-test, as directed in the second section of the said Act of 15th May, 1874, did not come up to the fire-test that was indicated by the mark of inspection. Therefore the said defendant seized the said tank of refined petroleum for the purpose of selling the same for redistillation, as tbe said defendant was required to do under the seventh section of the Act of Assembly of 15th May, 1874, and this he, the said defendant, is ready -to verify.”
    To .this plea there was a general traverse.
    Upon the trial in the Court below, before Hagenman, P. J., property in the plaintiffs was admitted. They then proved the value of the oil, 4500 gallons, amounting to $310, and rested.
    The defendant proved his appointment as an inspector of oil by the Court, his oath of office,'the filing of his bond, and offered in evidence his commission. He testified: “I took possession of the oil as inspector, and seized it as inspector, because it did not come up to the fire-test. The only reason why I seized the oil was because it did not come up to the fire-test. I seized the oil some time in January, 1879, about the second or third. . . . The oil was bran iron tank-car, in a single tank-car ; I judge about 4500 gallons in one tank.” The plaintiffs then offered to prove “ that, at the time and before the bringing of this suit, they were engaged in carrying on the business of refining and selling petroleum oil in the city of Philadelphia; that, while carrying on said business, they did not sell such oil in less quantities than- one barrel ; and that the oil, which is the subject of this action, was in bulk in a tank containing about 4500 gallons at the time of its seizure by the defendant.”
    This evidence is offered for the purpose of showing that the defendant had no authority to inspect the oil in question, and that his„acts in the matter were not done as inspector.
    The defendant objected that the legality and regularity of seizure cannot be inquired into in this issue.
    The Court overruled the offer and granted an exception.
    The plaintiff's then offered to prove “ that, at the time and before the bringing of this suit, they were engaged, in the city of Philadelphia, in the business of manufacturing, refining and selling petroleum oil in bulk, in quantities not less than one barrel; that the oil which was seized by the defendant was in bulk in a.tank containing about 4500 gallons ; that, before said oil was seized by the defendant, it was inspected in Philadelphia by a competent inspector, and the test found the oil to be 110 degrees and over; that, after the oil was replevied and returned to the possession of the plaintiffs, it was again tested with the same result; that, after its seizure, and before the writ of replevin was issued-, the same oil was inspected by the defendant in his office in the city of Heading, but such inspection was made with imperfect instruments, and not in the manner directed by the act of Assembly; that, at the time of said inspection in Heading, the defendant proposed and offered to the plaintiffs that if they would pay him $25 he would release the oil, which the plaintiffs refused.”
    This evidence is offered to prove that the defendant had no authority to inspect the oil in question; that his acts were not done for th e bona fide purpose of selling the oil, if under 110 degrees, for redistillation, as required by the act of Assembly. The defendant objected that—
    1. It is irrelevant.
    z. The legality and regularity of seizure cannot be inquired into in this suit..
    The Court overruled the offer under exceptions, and directed the jury.to find a verdict for the defendant.
    October 15th, 1879. Verdict for the defendant, upon which judgment was afterward entered.

      The plaintiffs then took out a writ of error, assigning that the Court erred in rejecting the evidence as offered, and in directing a verdict for the defendant.

      C. II. Buhl, J. H. Jacobs, and Samuel L. Young, for plaintiffs in error.
    Under the common law and the Act of 1705, replevin will lie in Pennsylvania in all cases where one man claims personal property in the possession of another: Weaver v. Lawrence, 1 Hallas, 156 ; Bower v. Tallman, 5 W. & S., 556, 561; Iiarlan v. Harlan, 3 Harris, 507.
    The Act of April 3d, 1779, was passed in a time of war, and its purpose was to protect—
    1. Officers having authority to execute wrrits of execution.
    2. Officers acting under the authority of the State for the collection of the public taxes and fines and penalties due the Commonwealth.
    The preamble clearly expresses the mischief to be remedied, —the issuing of writs of replevin “ for goods and chattels taken in execution, and for fines and penalties legally incurred and due the Commonwealth, to the delay of public justice, and to the great vexation of the officers concerned in taking and levying the same:” Vanhorne v. Horra nee, 2 Dallas, 305; Mulholm v. Cheney, Addison, 301.
    The act mentions the officers to be protected, — “ sheriff, naval officer, lieutenant or sub lieutenant, of the city of Philadelphia, or of any county, constable, collector of the public taxes, or other officer, acting in their several offices under the authority of the State.”
    Under his appointment, under the Act of May 15th, 1874, the defendant was not a sheriff, naval officer, lieutenant, nor sub-lieutenant, constable or collector of the public taxes. This is clear.' The expression in the Act of 1779, “or i/n? other officers acting in their several offices under the authority of the State,” cannot apply to the defendant. ' He is a county officer. No goods and chattels can be taken in execution by him; he has nothing to do with the collection of public taxes or fines and penalties legally incurred and due the Commonwealth, and he does not aet under the authority of the State.
    No part of the fines imposed for violation of the Act of 1874 goes to the Commonwealth.

      Peter D. Wanner, Jefferson Snyder, and George F. Baer, for defendant in error.
    This case comes within the spirit, and is covered by the very words of the Act of 1779.

      If the sheriff, by a writ of replevin, can take from an inspector the oil seized for sale and redistillation, the act of Assembly will afford little security to life and property from the dangers of coal oil and petroleum.
    The inspector gives ample bond; the act provides for his punishment in the criminal courts for violations of the provisions of the statute. Besides, for anywrongful seizure that may be made, the aggrieved party has his remedy by a common-law action.
    It is true that the money realized on the sale of the condemned goods does not go into the State treasury, but this objection was raised and disposed of by the Supreme Court in the case of Pott v. Oldwine, 7 Watts, 178: Stiles v. Griffith, 3 Yeates, 82; Zaue v. Cowperthwaite, 1 Dallas, 313.
    March 13th, 1882.
   — Per Curiam

:

There can be no doubt that the defendant was an officer, “ acting in his office under the authority of the State,” within the provision of the Act of April 3d, 1779,1 Sm., 470, and the writ of replevin, therefore, issued in this case, was irregular, erroneous, and void: Pott v. Oldwine, 7 Watts, 173. The plaintiff cannot set up that the seizure was illegal. His proper remedy was an action of trespass: Stiles v. Griffith, 3 Yeates, 82.

Judgment affirmed.


author: — Per Curiam :

text:
    January Term, 1881,
    No. 197.
    March 1, 1882.
    Evans versus Leis et al.

    A. executed and delivered to B. a bond for seventeen hundred pounds upon the condition that, Whereas, the said A. is intermarried with 0., the daughter of the said B., and the said B. hath this day paid and advanced to the said A. the sum of eight hundred and fifty pounds, to be retained upon the following conditions, to wit: The said A. and wife shall hold the same without interest during the lifetime of his said wife C., but in case she should die before her husband, then the same shall be paid to her heirs as in case of intestacy; provided always, nevertheless, that if the said O. shall have a child at any time during the continuance of the marriage with her present husband, that immediately thereupon, if the child be living, the said whole sum of eight hundred and fifty pounds shall be considered as paid to her as part of her portion due to her out of the estate of her said father; and provided, also, that if the said C. should die before her husband without having any children, that in one year after decease, he shall repay to the said B. the sum of six hundred and sixty-six pounds, thirteen shillings, and four pence, part of the said sum of eight hundred and fifty pounds, and the residue thereof to be retained by the said A., as part of his wife’s portion due out of the estate of her said father. The mortgage to secure the bond recited that it was “ to be paid'.if certain events in the condition of said bond mentioned shall take place.” C. never had a child, survived her husband and died. Held, in a scire facias upon the mortgage by the administrator of B., that the contingencies upon which the money was to be paid never arose, and that plaintiff could not recover. -
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterretx, and Green, JJ.
    Error to the Court of Common Pleas of Berks County.

      Scire facias sur mortgage by Charles V. R. Evans, administrator de bonis non cum- tes'amento annexe of John Van Reed, deceased, against Henry Leis and Daniel Schell, terre tenants.
    Upon the trial in the Court below, before Hagenman, P. J., the following facts appeared:
    On the 10th of April, 1820, Henry Leis entered into a bond to John Van Reed, Senior, in the following form:
    “ Know all men by these presents, That I, Henry Leis, of Alsace Township, Berks County, and State of Pennsylvania, miller, am held and firmly bound unto John Van Reed, Senior, of Heidelberg Township, county and State aforesaid, in the sum of seventeen hundred pounds, lawful money of the United States, to be paid to the said John Van Reed, Senior, his certain attorney, executors, administrators, or assigns, to which payment, well and truly to be made, I do bind myself, my heirs, executors, and administrators, and every of them, firmly by these presents.
    “Sealed with my seal, dated the tenth day of April, in the year of our Lord one thousand eight hundred and twenty.
    “ The condition of this obligation is such, that, -whereas the said Henry Leis is intermarried with Hannah, the daughter of the said John Van Reed, Senior, and the said John Van Reed, Senior, hath this day paid and advanced to the said Henry Leis the sum of eight hundred and fifty-pounds, to be retained upon the following conditions, to wit: The said Henry Leis and wife shall hold the same without interest during the lifetime of his said wife Hannah, but in case she should die before her husband, then the same shall be paid to her heirs as in case of intestacy, provided always, nevertheless, that if the said Hannah shall have a child at any time during the continuance of the marriage with her present husband, that immediately thereupon, if the said child be living, the said whole sum of eight hundred and fifty pounds shall be considered as- paid to her as part of her portion due to her out of the estate of her said father. And provided, also, that if the said Hannah should die before her husband without having any children, that in one year after her decease he shall repay to the said John Van Need, Senior, the sum of six hundred and sixty-six pounds, thirteen shillings, and four pence, part of the said sum of eight hundred and fifty pounds, and the residue thereof to be retained by the said Henry Leis as part of his wife’s portion due out of the estate of her said father. That then this obligation to be void and of none effect, or otherwise to be and remain in full force and virtue.”
    To secure this bond he gave a mortgage upon a grist-mill, saw-mill, and tract containing about fifty acres of land in Alsace Township, Berks County, and a tract of about four acres of woodland in the same township.
    The mortgage recited that it was “ to be paid if certain events in the condition of said bond mentioned shall take place, as in and by the said obligation and condition thereof, relation being thereunto had, more fully and at large appears.”
    Hannah Leis survived her husband, Henry Leis. She died in 1864, never having had a child.
    The plaintiff after giving these facts in evidence, rested.
    The Court entered a judgment of nonsuit.
    A motion to take off the nonsuit was then made, which the Court, January 31 st, 1881, overruled, filing an opinion as follows:
    “Henry Leis was married to a daughter of John Van Eeed, Senior. On the 10th day of April, 1820, his father-in-law ‘paid and advanced’ to him the sum of eight hundred and fifty pounds. It is apparent that the reason of this advancement was that Henry Leis was a husband of his daughter Hannah. This is made perfectly clear by the recital in the bond: ‘ Whereas, the said Henry Leis is intermarried with Hannah, the daughter of the said John Van Eeed, and the said John Van Eeed, Senior, hath this day paid and advanced to the said Henry Leis,’ etc.
    “At the time he ‘paid and advanced ’ to Henry Leis this sum he took a bond and mortgage from him. The administrator d. b. n. c. t. a. of John Van Eeed issued a scire facias on the mortgage. The mortgage says: ‘ Conditioned for the paymenNof eight hundred and fifty pounds, to be paid if certain events m the condition of said bond mentioned shall take place.’ What were the conditions of the bond ? The money was to be retained upon the following conditions :
    “ 1. Henry Leis and his wife were to hold it without interest during the lifetime of the wife.
    “ 2. In case of her death before her husband, it was to be paid to her heirs as in case of intestacy.
    « 3. If Hannah shall have a child with Henry Leis, then if the child be living, the whole sum shall be considered as paid to Hannah on account of her portion in her father’s estate.
    “ 4. If Hannah should die before Henry Leis, without leaving any children, in one year after her death he was to pay six hundred and sixty-six pounds, thirteen shillings, and four pence, and to retain the balance as part of his wife’s portion had out of the estate of her said father.
    “ Instead then of the words ‘ held and firmly bound unto,’ which are those contained in a bond for the loan of money, the words ‘ paid and advanced ’ are here used, clearly indicating that the transaction was not a loan to Henry Leis, but an advancement to him in right of his wife. The object of the mortgage was to protect the wife’s estate in the event of her death in the lifetime of her husband, but nothing is said about a repayment of the money in the event of his death in the lifetime of the wife without children. Henry Leis died over forty years ago without children. Hannah, the wife, died in 1864, without children. In 1878, an administrator was raised on the estate of John Van Reed, and he attempts to collect this money. In the judgment of the Court the contingencies under which the money was to be paid never arose, and as it was to be ‘ retained ’ on every other contingency than those expressly enumerated, the plaintiff cannot recover.”
    The plaintiff then took out a writ of error, assigning as error the refusal of the Court to set aside the nonsuit.

      & B. Wiegand and Richmond L. Jones, for plaintiff in error.
    The error upon which the Court below proceeded, in the matter of this bond, was in looking to the condition and not to the obligation for the promise to pay. The learned judge says: “Instead then of the words ‘held and firmly bound unto,’ which are those contained in a bond for the loan of money, the words ‘ paid and advanced ’ are here used,” whilst a reference to the obligation shows, as a simple matter of fact, that the words “ held and firmly bound unto” are used, and that the words “ paid and advanced ” are not.
    These words, “ paid and advanced,” are found neither in the obligation nor in the condition proper, but in a preamble to the condition.
    The recital of the marriage of his daughter to Leis, in connection with which the words “paid and advanced” are used, has plain reference to the contingency of her having a child with Leis, in which event it is stipulated in one of the conditions that “ the said whole sum of eight hundred and fifty pounds shall be considered as paid to her as part of her portion due to her out of the estate of her said father.” N ow, in the face of this express declaration that the eight hundred and fifty pounds, which the mortgage was given to secure, shall only be considered as part of her portion, or as an advancement in the event of her having a child, the Court below says that these words “ paid and advanced ” “ clearly indicate that the transaction was not a loan to Henry Leis, but an advancement to him in right of his wife,” although she never had a child, and although the very condition upon which it was to be treated as an advancement was not fulfilled. Again, the presumption of its being an advancement to Leis is as plainly rebutted in the other condition, which provides that if Leis should survive his wife (there being no child!, he should, one 3-ear after her death, pay six hundred and sixty-six pounds of this debt to Van Reed, and retain the balance as part of his wife’s portion out of her father’s estate. The reasoning of the Court leads to the most improbable conclusion, that Van Reed, the mortgagee, intended that, after the death of his daughter, the mortgaged premises if in the hands of Leis, his son-in-law, should pay three-fourths of this debt, but if in the hands of strangers should pay nothing at all.
    The meaning of the whole transaction is obvious. Van Reed having loaned to Leis eight hundred and fifty pounds, took a bond and mortgage to secure the payment of the loan • upon the death of his daughter, Mrs. Leis, and then provided that, if in the meantime a child should be born to them, his daughter might keep the money, and failing of issue— if she should die before Leis — he should pay six hundred and sixty-six pounds, and keep the balance. Neither of those exceptions happened, and, of course, the mortgaged premises must pay the debt.
    Where a bond is conditioned for the payment-of a certain sum, and no time is fixed in it for payment, it is in law a covenant for immediate payment: Rhoads v. Reed, 8 N., 436; Tuckey v. Hawkins, 56 E. C. L. R., 655.

      George F. Baer and Ii. Van Heed, for defendants in error.
    In the mortgage itself, the intention of the parties as to the repayment of the money is clearly set forth. It says: “Conditioned for the payment of eight hundred and fifty pounds, to be paid if certain events in the condition of said bond mentioned shall take place as in and by the said obligation and condition thereof, relation being thereunto had, more fully and at large appears.”
    Now, the force of the obligation was that the money was to be paid only on the happening of certain events. What were those events, and did they happen ?

      First: “ The said TIenry Leis and wife shall hold the same without interest during the lifetime of his said wife Hannah, but in case she should die before her husband, then the same shall be paid to her heirs as in case of intestacy.”
    . She did not die before her husband, and under this condition the money is not to be repaid.

      Second: “ If the said Hannah shall have a child at any time during the continuance of the marriage with her present husband, that immediately thereupon, if the said child be living, the said whole sum of eight hundred and fifty pounds shall be considered as paid to her as part of her portion due to her out of the estate of her said father.”
    The event provided for here did not happen, and the clause is only of importance as fully confirming the fact that it was intended as an advancement and not as a loan.

      Third: “If the said Hannah should die before her husband without having any children, that in one year after her decease, he shall repay to the said John Van Reed, Senior, the sum of six hundred and sixty-six pounds, thirteen shillings, and four pence, part of the said sum of eight hundred and fifty pounds, and the residue thereof to be retained by the said Henry Leis as part of his wife’s portion due out of the estate of her said father.”
    Hannah did not die before her husband, and therefore the events herein provided for do not make the bond payable.
    As neither of the events mentioned took place, by the very terms of the bond and mortgage it is not payable.
    March 13th, 1882.
   — Per Curiam :

The bond showed that the amount secured by it was really an advancement to the wife of the obligor, and the condition very clearly indicates that it was to be paid only if one of the events mentioned should take place. Now the event which has taken place, namely, the death of Henry Leis before his wife without leaving any children, is not among these events. It is evident, then, that the charge of the Court below was right.

Judgment affirmed.


text:
    January Term, 1882,
    No. 287.
    March 4th, 1882.
    Appeal of John Gravenstine, Administrator of Horace H. Walter, deceased.
    1. A testatrix gave and devised the residue of her estate to her son, and directed that if lie should die before attaining the age of twenty-one years, the principal should go to her nearest relatives. The son died a minor, and his guardian, who, by decree of the Court, in the settlement of her estate, had obtained possession of the bequest, filed an account. Held, that the administrator of the minor claiming the fund by virtue of an alleged gift from the testatrix to the minor during her lifetime, had no standing in the Orphans’ Court, or in the Supreme Court on appeal.
    2. His claim was adverse to the estate in settlement, and his remedy was elsewhere.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal of John Gravenstine, administrator of tbe estate of Horace H. Walter, deceased, from tbe decree of the Orphans’ Court of Berks County, dismissing exceptions to the auditor’s report, upon tbe account of Joseph M. Feger, guardian of tbe said Horace H. Walter.
    Horace H. Walter died in 1879, aged about nineteen years. His testamentary guardian, Joseph M. Feger, then filed bis account, charging himself with, inter alia, a certificate for $3000 in the loan of the city of Philadelphia. The account was referred to Jefferson Snyder, as auditor, before whom the amount of the city loan was claimed by John Gravenstine, administrator of the decedent, and by the legatees under the will of Frances E. Walter. The auditor found the facts in regard to this loan as follows:
    “ On August 2d, 1865, Mrs. Fanny E. Walter, the mother of Horace H. Walter, was the owner of $4000 Philadelphia City loan, which she had received from her father’s estate, and which stood in her maiden name (Housum), on the city’s books. On that day she transferred $3000 of this loan to the name of‘Fanny E. Housum, trustee of Horace II. Walter,’ and received a new certificate in that form. There is no other written evidence of the character or terms of the trust thus proposed to be created. Her further intention, however, appears from the testimony of her mother, whom she consulted at the time of the transfer, in reference to it, and who says that Mrs. Walter, being apprehensive lest her husband, Thomas L. Walter, who was not living with her, might enforce his marital rights to her estate after her death, made this transfer for the purpose of certainly securing this fund to her son ; but with the view of having it continue subject to her disposal in case of his death, so that her husband could not inherit it from him, she transferred it to herself as trustee for him, instead of placing it simply in his name as absolute owner. It does not appear that Horace ever knew of the transfer during Mrs. Walter’s lifetime, or that she ever specifically appropriated to his use the interest on the loan, which she regularly received till her death. Mrs. Walter afterwards died during the minority of Horace, leaving a will, in which she bequeathed, after providing for the payment of her debts, as follows:
    “ ‘ Item. — The residue of my estate I give and devise to my son, Horace H. Walter. If he should die before attaining the age of twenty-one years, then the principal hereby devised, or so much thereof as may be left after maintaining him and giving him a good education, shall go to my nearest relatives, excluding my husband, Thomas.
    “ '■Item. — I appoint Joseph M. Feger to be the guardian of the person and estate of my son, Horace. ’
    “ On the settlement of the account of her executor, the auditor determined that her husband had forfeited Iris marital rights by desertion, and her whole estate, including the $3000 loan, was turned over to the guardian of Horace, by decree of the Court, pursuant to the directions contained in her will.

      “ There is no contention as to the balance of her estate, which, it is conceded, passed, by her will, on the death of Horace under twenty-one, to her nearest relatives, Abbie C. Housum, and Mary L. Yan Reed, who were her half sisters.”
    The auditor found that under this state of facts, the gift to Horace was not completed, that the bonds were Jhe property of Mrs. Walter at the time of her death, and passed, under her will, to her legatees. He made distribution, awarding the same to Abbie C. Housum and Mary L. Yan Reed.
    The administrator filed an exception, inter alia, to this distribution, which the Court, Sassaman, J., dismissed.
    The administrator then appealed, assigning as error, inter alia, that the Court erred in dismissing the exceptions, and confirming the report.

      W. P. Bard and A. Sydney Biddle, for the appellant.

      Isaac Hiester, for the appellees.
    The administrator of Horace H. Walter could not claim any part of the estate adversely to the testatrix, in this forum: McBride’s Appeal, 22 P. F. Smith, 480; Braman’s Appeal, 8 Norris, 78.
    His alleged rights can only be considered in the Common Pleas.
    March 13th, 1882.
   — Per Curiam :

The appellant had no standing in the Court below, nor has he any better standing in this Court. His claim was adverse to the estate in settlement, and his remedy was elsewhere. The best thing we can do for him is to quash his appeal.

Appeal quashed.


author: Green, J.

text:
    January Term, 1881,
    No. 199.
    March 1st, 1882.
    The Junior Steam Fire Engine Company of the City of Reading versus Douglas et al.

    1. Where the only evidence of an acknowledgment of the debt was a request by the defendant to the plaintiffs, within the six years, not to push their claim, and a postponement by the plaintiffs of suit in consequence, it was error to leave it to .the jury to determine whether the claim had been barred by the statute of limitations.
    2. The Court ought to have instructed the jury that the claim was barred by the statute.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Berks County.

    Assumpsit by James Douglas and Henry Conuard, trading • as Douglas & Connard, against The Junior Steam Fire Engine Company of the City of Reading, to recover the amount of a bill for fixtures and repairs to a steam fire engine.
    The defendant pleaded, inter alia, the statute of limitations.
    Hpon the trial in the Court below the following facts appeared: The claim of the plaintiffs was made up of four items, viz.: August 13th, 1872, for fixtures and putting up a pump, $102.40; October 21st, 1872, for repairing steamer and material, $273.68; January 3d, 1873, for repairing steamer, labor and material, $87.12; and January 15th, 1873, for repairing engine, labor and material, $27.17. Suit was commenced January 8th, 1879.
    In the summer of 1872, the supply of water in the city of Reading having failed, the Water Board of the city, June 11th, resolved, “ That, as a matter of temporary relief, until arrangements can be made, the Junior Fire Company be employed for the purpose of forcing water from the Schuylkill Eiver into the main water pipes.” After the pumping had been done it was found that the engine had been pretty well wrecked. On the 28d of July, 1872, the Water Board resolved, “That the Junior Fire Company be instructed to take their steam fire engine to the shops of Messrs. Douglas & Connard, for the purpose of having repaired the damages done to the same while in the service of this Department, in pumping Schuylkill water into the main water pipes of the city.” The secretary of the board sent this resolution in a letter to Henry A. Brown, President of the Fire Engine Company. Brown went to the plaintiffs and showed them the letter, whereupon Mr. Connard said, “ All right, send her down.” The plaintiffs did the work, and on the 7th of July, 1873, the Water Department of the city paid on account of the bill $73.68.
    Henry Connard, one of the plaintiffs, testified that in 1874 and 1875, he presented the bill to a representative committee of the defendant company.
    “ Q. What was said when you presented the bill ?
    “ A. As far as I recollect they did not have any money to pay it with, and at one time they wanted to wait until they got their appropriation from Council to pay it; at another time they .wanted the city to pay it for us. Those were the only objections to paying it. They did not have any other objection that I know of.
    “ Q,. The bill was made out against the fire company itself?
    “ A. Certainly, we did not recognize anybody else but the fire company; we were willing t6 take it from anybody else who chose to give it to us.
    “Q. If anything else was said, state it.
    “ A. They wanted it put off. A man by the name of Flickinger was one of them. I met Brown on the street at different places, and he talked to me about the bill. The letter that I wrote was in 1875, and afterwards I met him on the street and talked to him about it.”
    James Douglas, one of the plaintiffs, testified, inter alia:

      “ The company officials told me that we should present the bill to the Water Department of the city, and they would pay it. . ■. . .
    “ Q. You gave the amount to Mr. Mengel to collect?
    “ A. Yes, sir.
    “Q. And then he notified the defendants?
    “ A. Yes, sir.
    “ Q. What did they do ?

      “ A. There was a committee called upon me to see what settlement or what arrangement could be made, and they did not want us to push them.
    “ Q,. When was that?
    “ A. I cannot tell; it was after the bills had been presented ; it was in 1875 or 1876, probably.
    “ Q,. Who came ?
    “ A. Mr. Flickinger and Mr. Henry Brown, here.
    “ Q,. And on the strength of that you went to Mengel not to bring the suit ?
    “ A. I went to Mengel to postpone that suit; I was anxious to settle with the company rather than go to law about it.”
    Henry Brown, for the defendant, on' cross-examination testified:
    “ Q. Didn’t you get a copy of the account against the company, made out against it ?
    “ A. Not the first bill; the first bill was made out against the city as far as I know; at least the city paid a portion of the bill.
    “ Q. Did you ever see a bill made out against the city ?
    “ A. No, sir.
    “Q. Why do you say that account was made out against the city?
    “ A. Because a part of the bill was paid; I saw it on the minutes.”

      * % ‡ * ;}c
    “Q. When you.got down there didn’t you tell him that they charged this against the wrong party ?
    “ A. Why, yes, that they knew.
    “ Q. What did you tell them?
    “ A. That the bill did not belong to us ; we always told them that the bill did not belong to us.
    “Q. Did you tell Mr. Connard that?
    “ A. Yes, sir; we told him the bill did not belong to us; we told him this — I recollect saying this, that we would try and influence the Water Board or Council to pay it; that we would use all effort we could, so that they would get their money. The engine was all torn to pieces and had to be overhauled ; and we told him we would get the city to pay it for him; we promised that and we will do it to day. We cannot afford to pay it, because it did not belong to us.”
    The Court left it to the jury to ascertain whether the work was done for the city of Reading under the resolution of the Water Board and letter, whether there was any evidence in the cause that the city was the agent of the defendant company, and charged, inter alia :

    “You have the testimony of Mr. Brown, who says he believes he was president of the company at the time he received Mr. Mengel’s letter, and that he went to see Douglas & Connard! [If you find, as testified to by Mr. Brown, that he was the president of the company, and that he with Mr. Elickinger was a committee appointed by the company to wait upon Douglas & Connard, and asked them to postpone the pushing of that claim, that is a recognition of the claim, and the statute of limitations would not run until you start from that period and make it six years beyond, for it would be a monstrous doctrine to suppose that a committee could go to a firm, which had a claim against a company, and say to them, ‘ Do not push us, but wait,’ and when the party complies with that request, after that to say: ‘Well, six years have gone by since you first did the work, and you now have no claim upon us ’] If the jury find that there was a committee who waited upon Douglas & Connard, authorized by this company, and that they at that time asked that this claiin should not be pushed, the fact that time was given by Douglas & Connard before they brought their suit to pay this claim, the statute of limitations did not run until from that time, whenever that was. There is no pretence that the statute would run against that. That was shown to be either in 1874, 1875 or 1876, and the suit was brought January, 1879. If this committee came there and induced the plaintiffs to wait for their claim, then the question arises, how much did the company owe on that day, and whatever was the legal claim against the company at that time, the statute of limitations has no application thereto.”
    Counsel for defendant excepted to so much of the charge as submitted to the jury the evidence of acknowledgment of indebtedness, offered to take it out of the statute of limitations.
    November 3d, 1880. Verdict for the plaintiff $499.38, on which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning as errors that:
    1. The Court erred in leaving to the jury the evidence offered in this case to prove an acknowledgment of indebtedness within six years, to take the case out of the statute of limitations.
    2. The Court erred in not instructing the jury that the whole of plaintiffs’ claim, excepting $27.17, was barred by the statute of limitations, and that the evidence offered was not sufficient to remove the bar.
    3. The Court erred in not charging the jury that the acknowledgment, if any, was qualified and would not justify them in presuming a promise to pay, under all the evidence in the cause.
    4. The Court erred in charging the jury as above, in brackets.
    5. The Court erred in not instructing the jury that there could be no recovery under all the evidence, except for the charges of $27.17.

      Richmond L. Jones, for plaintiffs in error, cited Bank v. Patton, 2 Harris, 479; Hogan v. Bear, 5 Watts, 111; Suter v. Sheeler, 10 Harris, 808; Forney v. Benedict, 5 Barr, 225; Weaver v. Weaver, 4 P. F. Smith, 152.

      II. Willis Bland and Matthias Mengel, for defendants in error.
    The constructive acknowledgment of a debt arising from part payment within six years before suit brought is sufficient from which to infer a promise to pay: Burr v. Burr, 2 Casey, 285 ; Shaffer v. Shaffer, 5 Wright, 51.
    That the payment was made by the city for the company is evident, because the company’s minutes contained a note of the credit.
    Acting under the direction of the company, plaintiffs presented the bill to the city, July 3d, 1873, and the city then paid (for the company) on account of the claim the sum of $73.68.
    But that the conduct of the company was sufficient to prevent the operation of the statute of limitations, is apparent from: Cowan r, Magauran, Wall, 65; Fries v. Boisselet, 9 S. & R., 128; Eckert v. Wilson, 12 S. & R., 893 ; Bailey v. Bailey, 14 S. & R., 195; Gilkyson v. La rue, 6 W. & S., 213; Johns v. Lantz, Í3 P. F. Smith, 326; Davis v. Steiner, 2 Harris, 275 ; Hazlebaker v. Reeves, 2 Jones, 264.
   The opinion of the Court was delivered by

Green, J.

It is difficult to account for the verdict of the jury in this case. The learned judge of the Court below indicated with extreme plainness in his charge, that there was no sufficient evidence that the work was done at the instance of the defendant, and in this he was undoubtedly right.

It is beyond question that the principal work on the engine, for which recovery is sought against the Fire Engine Company, was ordered to be done by the Commissioners of Water of the city of Reading, by a positive resolution to that effect. The resolution was given in evidence, a copy of it was shown to the plaintiffs before the work was done, and they thereupon directed the defendant to send the engine to them, in order that they might do the repairs. Work was done at different times and the claim for the whole of it, except the last item, $27.17, was barred by the statute of limitations at the time suit was brought. As to that item, we do not understand that the liability of the company was disputed But as to all the rest, the statute of limitations was pleaded, and the case comes before us chiefly on assignments of error which question the correctness of the charge as to the operation of the statute. The learned judge left it to the jury to say whether there was sufficient proof of an acknowledgment to take the case out of the statute. We have read the whole of the testimony printed in the paper-books, and are constrained to say we regard it as entirely insufficient for this purpose. In point of fact, the officers of the company, with whom the plaintiffs communicated, uniformly denied the liability of the defendant. Thus, Henry Brown, the President of the company, and the person with wffiom the conversations, testified to by the plaintiffs, were had, said in reply to questions :

“ Q. When you got down there, didn’t you tell him (Connard) that they charged the wrong party ?
“A. Yes, sir ; that they knew.
“ Q. What did you tell them ?
“ A. That the bill didn’t belong to us. We always told them that the bill didn’t belong to us. We told him this. I recollect saying this, that we would try and influence the Water Board or Council to pay it; that we would use all efforts we could so that they would get their money.”

T.he foregoing is some of the language relied upon by the plaintiffs as evidence of an acknowledgment’ of the debt. The same witness also testified: “We never acknowledged the bill; we always told them we were trying to help them get it through Council; I don’t know that we ever acknowledged that the company ought to pay the bill.”

The other language, upon which the plaintiffs relied as proof of-an acknowledgment, was the following:

“ Q. What was said when you presented the bill ?
“ A. As far as I recollect, they did not have any money to pay it with, and at one time they wanted to wait until they got their appropriation from Councils to pay it, at another time they wanted the city, to pay it for us ; those were the only objections to paying it; they did not have any other objection that I know of.”

And the following:

“ Q. What did they do ?
“ A. There was a committee which called upon me to see what settlement or what arrangement could be made, and they did not want us to push them.”

It is almost needless to say, or to cite authorities to prove, that none of this language fulfils the requirements of the decisions. It contains neither a promise to pay nor any acknowledgment of the debt consistent with a promise to pay.

It is unnecessary to quote the numerous decisions of this Court on this subject, as a reference to one or two of the most recent will fully express the meaning of them all.

In Weaver v. Weaver, 4 P. F. S., 152, we said “ that in order to take a case out of the statute of limitations, the acknowledgment of the debt must be clear and unequivocal, otherwise it is not equivalent tó a promise to pay, and it ought to be so distinct in its extent and form as to leave no room for doubt or hesitation.” In Wesner v. Stein et al., 10 W. N. C., 480, Mercur, J., said: “ It is settled that the acknowledgment or admission must be by a clear and unambiguous recognition of an existing debt, and so distinct and expressive as to preclude hesitation as to the debtor’s meaning, and as to the particular debt to which it applies, and must be consistent with a promise to pay.” See also Watson’s Exrs. v. Stem, 26 P. F. S., 121, and Palmer v. Gillespie, 9 W. N. C., 535. In the present case the learned judge of the Court below laid great stress upon the testimony that the plaintiffs were requested by the committee of the defendant not to push the claim, and charged directly that this would constitute a recognition of the debt, and would stop the running of the statute. We cannot agree to this. The testimony given in the same connection, proves clearly that it was not intended to recognize the claim as the debt of the defendant, but independently of this, a mere request to delay bringing suit is not at all inconsistent with a denial of liability. A person may be willing to buy his peace, even though he may not consider himself liable to a claim made against him, and for that purpose may request a temporary delay of proceedings, without thereby admitting his liability.

In this case the suggestion to delay suit is abundantly explained by the other testimony, to the effect that the committee of the defendant were anxious that the plaintiff’s bill should be paid by the city, and were endeavoring to get the city Council to agree to it. It is, moreover, perfectly manifest that it was constantly declared by the persons representing the company, that the defendant was not liable for the debt, and that the city alone was responsible for it. In these circumstances we are of opinion that the learned Court below was in error in leaving to tbe jury the question of the sufficiency of the testimony, to take the case out of the operation of the statute of limitations, and the assignments of error are all sustained.

Judgment reversed.


text:
    January Term, 1881,
    Nos. 206, 207.
    March 1st, 1882.
    Appeal of Jacob S. Livingood.
    A guardian who invests his ward’s money in real estate in his own name, and pays the interest regularly for the ward’s support, is a debtor to the ward, and is not entitled to commissions on the payments.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterreit and Green, JJ.
    Appeal of Jacob S. Livingood in the matter of the estate of Mary C. Ringler, from the decree of the Orphans’ Court of Berks County, reducing his compensation as guardian, and confirming the report of the auditor upon his account.
    October 6th, 1863, Livingood was appointed by the Court, guardian of the person and the estate of Mary C. Ringler, a minor child of Jerome Ringler, deceased.
    The minor having reached fourteen years of age, selected as her guardian, June 30th, 1879, James K. Getz. Livingood filed an account August 22d, 1879, showing a balance due the estate of $1719.49, and claiming as compensation $400. The account was referred to C. H. Ruhl as auditor, who reported the facts substantially as follows :
    The ward lived with her mother, who boarded, clothed and sent her to school, and the guardian had no care of her person, and had no trouble in that respect. Livingood was attorney for the heirs of Jerome Ringler, drew a petition in partition, and conducted the subsequent legal proceedings, for which he never received any compensation. The auditor allowed, as the proportion of the ward, for these services, $40. The guardian received of the ward’s estate, altogether $4027.37, and had it in hand for fifteen years and nine months. The guardian did not'invest this fund separately, gave it no earmark, but invested it in his own name in the purchase of real estate along with his individual funds. There were no profits realized by the guardian from the investment of. this fund. There was no evidence to show that the guardian speculated with this money for his own profit, or that he subjected it to the risk of any hazardous business or undertaking, and there was no evidence of bad faith in the investment or management of the fund. He paid the interest to the mother for the support and maintenance of the ward semi-annually. There was no evidence to show that he was guilty of negligence or tardiness in filing his account and making settlement.
    The auditor found that the guardian having done his duty in all other things, the fact that he had invested the trust funds in his own name in the purchase of real estate, did not deprive him of commissions, and he allowed the compensation claimed.
    To this finding the subsequently appointed guardian James 3L Getz excepted.
    The Court below, Hagenman, P. J., ordered and decreed as follows:
    “Under all the circumstances in this case, two hundred dollars would be a fair compensation to the accountant for his risk and care of the estate. The simple fact that he retained the money in his own hands, charging himself with full interest, does not deprive him of the right to all compensation. The exception is sustained to the amount exceeding two hundred dollars, and the report thereupon confirmed.”
    From this decree Livingood appealed, assigning as errors that the Court erred in reducing the compensation and in confirming the report after reduction. .

      Gyrus G-. Derr, for the appellant.
    Wernle’s Estate, 8 W. N. C., 289 ; McElhenny’s Appeal, 46 Penna. St., 347 ; bluffer's Appeal, 2 Grant, 342.

      W. D. Horning, for the appellee.
    A guardian who mingles the trust fund with his own, and invests the same in his own name, sustains the relation of a borrower to his ward, and is not entitled to compensation while sustaining such relation : Farwell v. Steen, 46 Vermont R., 678.
    The investment of trust funds in the trustee’s business is such an improper discharge of the duties of the trust as not to entitle the trustee to commissions on the amount so invested, even though he be able to make good the amount: Sharpe’s Estate, 2 Phila. R., 280; Landis et al. v. Scott, 8 Casey, 495.
    Investment of trust funds in a trustee’s individual name is always concealment: Norris’s Appeal, 71 Penna. R., 106.
    The use of trust, funds for private purposes is such a mismanagement of tbe estate, as will entitle tbe parties in interest to demand security: Estate of Lilly Green, 3 Brewster, 427 ; McKennan v. McCahan, 2 Phila. R.,- 215.
    March 13th, 1882.
   — Per Curiam:

The appellant used his ward’s money and paid her the interest from time to time. He was her debtor, and it would be a very novel decision to allow him commissions upon his payments under such circumstances.

Decree affirmed and appeals dismissed at the costs of the appellant in each case.


text:
    January Term, 1882,
    Nos. 339, 340.
    February 28th, 1882.
    Appeal of Daniel Miller.
    1. A court is bound to protect parties from the negligence, mistakes, and errors of its officers, and the power should be liberally exercised where the rights of others do not intervene.
    2. Where, in issuing a writ of scire facias upon a mortgage, which was a lien upon several properties, by mistake of the prothonotary one of them was omitted, and judgment was obtained, and under execution the properties described in the writ were sold, the sale did not discharge the lien of the mortgage upon the omitted property, so as to give priority to a subsequent judgment-creditor of the mortgagor.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal of Daniel Miller, assignee for the benefit of creditors of Joshua Keely,'from the decree of the Court of Common Pleas of Berks County, distributing the proceeds of the sheriff’s sale of the real estate of Frederick S. Boas.
    The facts, as agreed upon in the Court below, were as follows:
    John E. Hook v. H. D. Green, Administrator, etc., of John Boas, Jr., deceased, with notice to F. S. Boas, ierre tenant.

      Lev. fa.

    No. 21, Aug. Term, 1881.
    Premises sold for.......... $2000 00
    Deduct costs,........... 67 99
    $1932 01
    Decreed to Hook mortgage,........ 1360 72
    Balance for distribution,.........$571 29

      In 1864, John Boas, Jr., owned the property No. 318 South Third Street, Reading, by the sale of which by the sheriff, the fund for distribution was realized. On the 4th of April, 1864, Boas, then being owner, mortgaged the property to John E. Hook for $1000. In August, 1875, Boas died, having previous to his death conveyed the above property (subject to the TIook mortgage) to Frederick S. Boas in fee.
    On the 31st da}r of January, 1876, Frederick S. Boas, then being the owner, gave a mortgage (with bond accompanying) to the Neversink Building and Savings Association for $12,500. Included in the mortgage were four properties of F. S. Boas, viz., Nos. 318, 320, 322 and 324 South Third Street, on each of which was erected a two-story brick house, except No. 324, which was a vacant lot. A writ of sd.fa. was directed to be issued on this mortgage to August Term, 1879, No. 202, but by the mistake of the prothonotary the writ was issued only against properties Nos. 320, 322 and 324 South Third Street. In the writ of sd. fa. issued and served, property No. 318 was omitted. F. S. Boas did not make any defence, and on August 23d, 1879, judgment by default for want of an affidavit of defence was duly entered against the defendant for $3709.67. Upon this judgment a writ of lev. fa. to No. 17, December Term, 1879, was issued to the sheriff, the three properties described in the sd. fa. were duly advertised, and on November 29,1879, were sold by the sheriff to Louis Kremp for $1000, subject to prior mortgages, and a deed for the premises was duly acknowledged 'and^delivered to the purchaser. On the 21st day of July, 1879, a judgment was entered against F. S. Boas by Joshua Keely for $8000, to No. 204, June Term, 1879.
    To April Term, 1880, a sd.fa. was issued on the Hook mortgage above described and judgment entered de terris for $1240. To 97, June Term, 1881, an alias sd.fa. was issued, and after making the administrator of John Boas, Jr., the defendant, judgment by default was taken for $1350 against the administrator de bonis testatoris, and judgment de terris by default for want of an appearance against the ierre tenant. Under the lev. fa. issued to August Term, 1881, No. 21, on this judgment, the property No 318 South Third Street was duly advertised and sold to the Neversink Building and Savings Association for $2000, and a deed duly acknowledged and delivered to the purchaser. Of the fund in Court, ' amounting, after deducting costs, to $1932.01, the sum of $1360.72 was distributed to the owner of the Hook mortgage. The balance of the fund, to wit, $571.29, is contested by the Neversink Building and Savings Association and by the assignee of Joshua Neely, each claiming to have the prior lien.
    August 20th, 1881. The Cop.rt decreed the balance of $571.29 to the Neversink Building and Savings Association.
    August 29th, 1881. The Court granted a rule to show cause why the decree in favor of the association should not be vacated and stricken off, and the same day a rule to show cause why the said sum of $571.29 should not be distributed to Daniel Miller, assignee of Joshua Neely.
    The Court below, Üagenman, P. J., discharged the rules, saying, inter alia:

    “ By the sale of Nos. 320, 322 and 324 there was still a balance due and owing on the Neversink mortgage, and so long as that balance remains unpaid, it continues a lien on lot 318, or until discharged by a judicial sale, and when so dischai’ged the money stands in place of the land, and no junior lien can interpose its right to it. The mere omission of the prothonotary to put lot 318 in the sci.fa. does not affect the lien of the mortgage. A mistake of an officer has never yet been held to invalidate or destroy a lien properly entered. Even the entry of satisfaction of a mortgage or judgment by mistake has been stricken off. A court is bound to protect parties from the negligence, mistakes and errors of its officers, and the power should be liberally exercised where the rights of others do not intervene. The proceeds, arising from the sale of lot No. 318 are in Court for distribution, and it would be a great wrong to the Never-sink Building and Savings Association to give the money to the Neely judgment.”
    From this decree Miller appealed, assigning that the Court erred in (discharging the rules, and in not making them absolute.
    ■ A. G. Green and Frank R. Schell for appellant.
    1. The test , of lien is the power to enforce its collection. If there is no process incident to the mortgage, after judgment has been duly entered thereon, by which the omitted property can be forced to execution and sale, its validity as a lien is gone. This principle' has been repeatedly recognized in cases of mechanics’ liens against county buildings, schoolhouses, and the necessary buildings of public corporations, such as railroads and canals: Wilson v. Commissioners of Huntingdon County, 7 W. & S., 199; see, also, Williams v. Controllers, 6 IT., 275 ;• Foster v. Fowler, 10 Sm., 27 ; Evans v. Railroad Company, 11 Pitts. L. J., 4.
    2. After a judgment has been recovered on a mortgage by sci. fa., the mortgage is merged in the judgment: Butterfield’s Appeal, 27 Sm., 200 ; Hartman v. Ogborn, 4 Sm., 120. While it is true that an action of debt, sci. fa. or ejectment can be brought on a mortgage, nevertheless, when one of the remedies is pursued, it is an abandonment of the others. So, debt or assumpsit may be brought on a promissory note; but when a plaintiff elects one remedy, he cannot adopt the other.
    3. A judgment having been regularly entered on writ of sci. fa. issued on the mortgage, it is conclusive on the parties and cannot be inquired into collaterally except for fraud: Hartman v. Ogborn, supra ; Billings et al. v. Bussell, 11 H., 189; Yaple et al. v. Titus et al., 5 Wr., 195; Thompson’s Appeal, 7 Sm., 175.
    That a Court will relieve a party from the mistakes of its officers is not the question in this case. Such relief will undoubtedly be granted on proper cause shown. But what is not asked for the Courts do not grant, and to take that for granted which might be granted is a simple petitio principii. Had the Neversink Building and Savings Association asked the Court, even after judgment, to open the judgment with a view to amend the sci. fa., it would, no doubt, have been done. After a sale of the property sur lev. fa. on the judgment and delivery of deed to purchaser, it seems to be too late: Byan v. Casey, 3 Luz.L. Obs., 158. •

      Daniel Ermentrout and James N. Ermentrout for the appellee.
    The mortgage being a lien by express provisions of the statute, has any one, either officer or holder, cancelled the lien ? It admittedly was not paid. No process of court has cancelled it; nor can its cancellation be procured. By the Act of May 28,1715, section 9,1 Sm., 95, the mortgagee can only be required to cancel after he has received full satisfaction and payment. And by the Act of April 11,1856, section 1, P. L., of 1856, p. 304, it is only “ where amount due on any mortgage or judgment .entered of record, together with interest and cost, shall have been paid to the legal holder, and the judgment and mortgage and accompanying bond duly indorsed in the presence of two witnesses that the same are satisfied and discharged,” shall be produced to the proper officer, and after special certificate of the president judge, that the proper officer can satisfy the lien.
    Was the lien discharged by reason of the scire facias and levari facias of No. 17, December Term, 1879 ?
    The proceeding upon a mortgage is a proceeding against the property itself, not against the individual. The judgment is and can be only against the property set forth in the writ. So far as affects Boas, the terre-tenant, the judgment is de terris against the land. The sci. fa. as issued did not warn him as against this No. 318 property. Judgment was, therefore, only against the rest of the property. There could be neither judgment, nor merger of the mortgage into any judgment, as to No.- 318.
    what was there to prevent an alias scire facias in this same proceeding so as to reach No. 318? When one of two defendants has not been served, judgment is rendered against one, and an alias writ issues until requisite service and judgment be obtained against the other.
    March 13th, 1882.
   — Per Curiam:

This decree is affirmed upon the opinion of the learned judge in the Court below.

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


text:
    January Term, 1881,
    No. 191.
    March 1st, 1882.
    Philadelphia and Reading Railroad Company versus The Commonwealth.
    1. A ward who accepts, after he becomes of age, land adjudged to the guardian in proceedings in partition, takes it subject to the lien of a recognizance given by the guardian for owelty, and his alienee is bound though the guardian at the time of the partition was also guardian for the other heirs interested in the land.
    2. In a proceeding to charge the terre tenant, who purchased from the ward after he became of age, with the recognizance given by the guardian, it is not necessary to make the guardian a party.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Berks County.

      Scire facias sur recognizance by the Commonwealth of Pennsylvania for the use of Mahlon Mengel against Harrison Mengel, with notice to the Philadelphia and Reading Railroad Company, terre tenant.

    Upon the trial in the Court below, before Sassaman, J., the facts appeared as follows:
    Benjamin Schaeffer was the guardian of Harrison, Achatias, and Amalias Mengel, three children of Daniel Mengel, deceased. In 1867 the widow and guardian joined in proceedings in the Orphans’ Court for the partition of the real estate of the decedent. On the 26th of March, 1867, one of the purparts was adjudged to Benjamin Schaeffer, guardian of Harrison Mengel. On the same day the guardian entered into a recognizance to the Commonwealth conditioned for the payment “ to the said Elizabeth Mengel, the widow, as aforesaid, her yearly interest, and to the other heirs and legal representatives of the said deceased, respectively, their equal and proportionable shares, respectively, of and in the said valuation-money.” The bond was signed “Benjamin Schaeffer, guardian of Harrison Mengel.” April 3d, 1873, Harrison Mengel, then become of age, and his wife conveyed the property to the Philadelphia and Reading Railroad Company, who entered into possession June 18th, 1880. Judgment was entered against Harrison Mengel by default.
    ' The defendant objected to the offer of the recognizance in evidence on the following grounds:
    “ 1. Benjamin Schaeffer, guardian of Harrison, was also guardian of all the heirs, w hen he accepted the property, he became personally responsible to his other wards for their shares; the recognizance therefore to secure their shares was unnecessary, and the remedy of his wards was to charge him with the amounts in his guardian account.
    “2. The recognizance having been given by Benjamin Schaeffer, guardian, the scire facias must issue against him, and be proceeded on to judgment, before the defendant, the Philadelphia and Reading Railroad Company, can be held as terre tenant.”
    The Court admitted the offer under exception, and charged the jury:
    “In this case the defendants ask us to say to you that, under all the evidence offered by the plaintiff in the trial of the cause now before us, he cannot recover. This we answer by saying to you that the plaintiff may recover his proportionate share of the recognizance, so far as it secures the share of the said Amalias, alias Mahlon Mengel. This disposes of the legal part of the case, and you may make up your verdict accordingly.”
    January 17th, 1881. Verdict for the plaintiff for $514.21, upon which judgment was afterward entered.
    The terre tenant then took out a writ of error, assigning as errors the admission of the evidence and the charge.

      George F. Baer, for plaintiff in error.
    Benjamin Schaeffer was the cognizor, and it was necessary to make him a party for the sake of the terre tenant, because-possibly he might have satisfied the plaintiff’s demand: Kean v. Eranklin, 5 S. & R., 155 ; Reigart v. Ellmaker, 6 S. '& R., 45.
    When the guardian accepted the lands, he made himself personally responsible to the other heirs for the owelty: Grelbach’s Appeal, 8 S. & R., 210; Woodward’s Appeal, 2 Wr., 322.
    Now, as Benjamin Schaeffer was the guardian of all the heirs, by his acceptance of the purpart he became personally liable to pay the moiety of his other wards to himself as guardian. Their only remedy against him to recover their shares was to charge him in his guardian account. They could not sue out the recognizance against him, because, as their trustee, he could at any moment satisfy his own recognizance.
    . As the record stood, the purchaser had a right to assume, when he found that Benjamin Sehaeftez’, the eogziizoz’, was the guardian of all the childi’en, that the only possible effect of the recognizance was to secure the widow's interest.

      A. B. Wanner and Samuel L. Young, for the defendant in erroz\
    After a ivard comes of age, he is bound by the acts of his guardian done during his minority. Some of those acts may be voidable, but if the 'ward, after attaining majority, confirms those acts, he is bound by thezn and they az’e then his acts, the same as if oi’iginally done by him.
    The railroad company cannot dispute the validity of the act of Schaeffer as guai’dian of Harrison Mengel, for two reasons: First, they recognized the act by taking a conveyance from Harrison Mengel; second, they assented to the ratification of the act done by Schaeffer as guardian of Harrison Mengel in accepting the real estate.
    After the majority of Harrison Mengel, suit could not be brought against his guaz’dian. All the authority and responsibility of a guardian ceases on the majority of his ward, except as to the settlement of his account with his ward. With the personal responsibility of the guardian to his wards, the ierre tenant has nothing to do.
    March 13th, 1882.
   — Per Curiam:

Without inquiring into the question of the personal responsibility of the guaz’dian, it is abundantly clear that the ward, having accepted the land after he came of full age, took it subject to the lien of the recognizance given to secure the respective shares of the minors.

It was not necessary to make Schaeffer a party in this proceeding to charge the alienee of the ward. If the guardian had discharged the lien, it was competent for the terre tenant to plead and prove that fact.

Judgment affirmed.


text:
    January Term, 1881,
    No. 198.
    March 1st, 1882.
    Sayer to use versus Schroeder.
    1. Where the Court below was not requested to charge in any particular way there can be no reversal for a mere omission to charge.
    2. The defendant in a judgment, which was a lien on real estate, by amicable action revived the judgment April 2d. He had made an agreement to sell the real estate December 3d preceding, and had executed and delivered a deed for it March 26th; but the deed was not recorded until April 3d. The purchaser had no notice of the revival. There was evidence that the holders of the judgment knew in December of the agreement of sale, and then received, on account of their judgment, some of the purchase-money, with knowledge that it came from the purchaser. The purchaser paid interest on the judgment for three years after his purchase. In a sci. fa. to again revive the judgment the Court charged, “ If the jury find that M. and D. [owners of the judgment] had actual notice that B. [the purchaser] had purchased the property from S. [the defendant], and also find that the deed was executed and delivered on the 26th of March, the defendant is entitled to a verdict.” The verdict was against the defendant, but in favor of the terre tenant. Held, that this charge was not such an error as did the plaintiff any harm.
    3. In order to continue the lien of a judgment by an amicable revival the terre tenant is a necessary party.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Berks County.

      Scire facias to revive and continue the lien of a judgment for $1850, entered April 6th, 1868, by Daniel Sayer, Sr., against Benneville Schroeder. November 8th, 1870, the death of the plaintiff was suggested, and Moses É. Sayer, his administrator, was substituted. The judgment was assigned by him, December 5th, 1870, to Henry H. Maurer, David S. Baer, and Daniel L. De Turk. April 2d, 1878, a sci. fa. to revive was issued, and an amicable revival, by agreement of the defendant, indorsed on the writ.
    January 4th, 1878, the present sci. fa. to revive was issued. It was served upon the defendant Schroeder, and notice was given to John Becker, terre tenant, who came in and made defence.
    On the trial in the Court below before IIagenman, P. J., the terre tenant gave in evidence a deed from Benneville Schroeder and wife to John Becker for the property in question, in consideration of $15,000, dated March 26th, 1873, acknowledged the same day and recorded April 3d, 1873; also the agreement for the sale, dated December 3d, 1872, showing payments on account by Becker from December 3d, to December 10th, 1872, amounting to f¡2261.83.

      John Becker, the terre tenant, testified, inter alia:

    “I got this deed March 26th, 1873, from Schroeder and wife. ... I drew the rents from April 1st, 1873. ... A part of the purchase-money was paid at Bard’s office. Think De Turk was there, but can’t say particularly. Paid money to Bard. . . . Bard knew that the money was part of purchase-money. Told him. . . . Bard, Maurer, and De Tui’k knew I bought the property. ... I told Levan (the tenant in possession) right away when I got the deed. . . . Told him he could stay.”

      William P. Bard testified, inter alia :

    “ I was acting for De Turk particularly, he being jointly interested. I represented H. H. Maurer and Baer. . . . Did not know that money was on account of the purchase-money. . . . Knew the parties were negotiating about the property. Can’t say whether before or after I got the money; think before.....Don’t think any of my clients were .present.”

      Henry H. Maurer, one of the use plaintiffs, testified, inter alia:

    “Am one of the plaintiffs. Bard paid me part of the money he got from Becker as interest. Schroeder owed me the money. ... I understood the money I got from Bard was paid by Becker. I knew at the time that Becker had bought by agreement. Knew the money I got from Bard was on account of purchase-money of the property. . . . After agreement was made, Bepker asked me if we would leave our money stand if he paid up backstanding interest of Sehroeder’s. Told him I was only partuer in money. He then said I should see De Turk about it. Told him I would. Saw De Turk. Told him what Becker said. We agreed, then, that the money might remain on the premises if he would pay up interest that was back by Schi’oeder.”

      Z. H. Maurer testified, inter alia:

    “This deed was executed and delivered March 26th, 1873, and left there in my office for Becker. Think I was present when Becker paid Bard interest; were together. Think Becker stated what it was for.”
    Becker had no notice of the revival. .
    Indorsements on the judgment bond showed the payment of interest by the terre tenant up to April, 1876.
    The Court charged the jury as follows:
    “This is a scire facias to revive a judgment to continue the lien on real estate. The evidence discloses that in 1868 Benneville Sehroeder was the owner of real estate in this county and gave a judgment bond to Daniel Sayer for $1850, which was entered' of record in the prothonotary’s office on the 6th of April, 1868, and became a lien on the real estate then owned by Sehroeder. This judgment was assigned, and is now held by Henry H. Maurer and Daniel De Turk, who are the interested parties and real plaintiffs in this action. In December, 1872, Sehroeder entered into an agreement with John Becker, wherein he agreed to sell him one-half of the real estate bound by the judgment, and subsequently the other half, the deed to be delivered on or before the 1st day of April, 1873. The deed was duly executed and acknowledged on the 26th of March, 1873, and put in the recorder’s office for record on the 3d of April following. On the 2d of April, 1873, Benneville Sehroeder, Daniel De Turk, and Henry H. Maurer, according to the recollection of De Turk, went to the prothonotary’s office and revived the judgment by what is known as an amicable scire facias. Becker was not present and had no notice of the revival.
    “The plaintiffs assume two positions and claim that the revival was legal, and continued the lien of the judgment against the land in the ownership of Becker:
    “ 1. Although the deed was executed on the 26th of March, 1873, it was not delivered before the 3d day of April following.
    “2. That even if it was executed and delivered on the 26 th of March, the plaintiffs had no knowledge of the sale of the property to Becker, nor had they actual or constructive notice of the execution and delivery of the deed before the 3d of April, when it was entered for record. • On both or either of these grounds they claim a verdict, and the Court are so asked to charge.
    “The defendant, Becker, maintains that Maurer and De Turk had actual notice that he had purchased the property from Sehroeder, and that the deed having been executed and delivered to him on the 26th of March, 1873, and not having been made a party of the record in the revival of the judgment, the lien was lost, and that he is entitled to a verdict.
    “There are two modes to revive a judgment to continue the lien, one by an amicable scire facias, confessing judgment on the back of the writ, and the other by adverse process, the writ being served by the sheriff, and judgment recovered in court. Where land, bound by a judgment, is sold, and the lien is sought to be continued, the owner must be made a party on the record, and this whether by amicable proceedings or adverse process. There are circumstances, however, since the Act of 16 April, 1849, where a revival will be good, and the owner not named as terre tenant. Thus, a man being the owner of land gives a judgment, and then sells the land and continues in possession. Until the new owner puts his deed on record, or the judgment creditor has actual notice that the land has been sold, a revival of the judgment between the original parties will continue the lien. One Joseph Levan was the tenant under Schroeder, and continued in possession of the land after the 1st of April, 1873. There being no evidence to show that Maurer and De Turk knew of' a change in the tenancy, the possession of Levan was the same as if Schroeder had been in possession.
    “ The jury will consider all the evidence in making up their verdict.
    “ If the jury find that the deed; although executed on the 26th of March, 1873, was not delivered before the 2d of April following, the verdict must be for the plaintiffs.
    “ Again, if the jury find that the deed was executed and delivered on the 26th of March, but that the plaintiffs had no knowledge of the sale of the property to Becker and no actual or constructive notice of the execution and delivery of the deed before the 3d of April, when it was entered for record in the recorder’s office, the verdict must be for the plaintiff's.
    “ On the other hand, if the jury find that Maurer and De Turk had actual notice that Becker had purchased the property from Schroeder, and also find that the deed was executed and delivered on the 26th of March, the defendant is entitled to a verdict. This answers all the points on which the Court was requested to charge, and the theory on which the case was tried on both sides.”
    May 21st, 1879. Verdict for the plaintiffs against Benneville Schroeder for $2198.75, and in favor of defendant, John Becker, terre tenant. Judgment was afterward entered on the verdict.
    The plaintiffs then took out a writ of error assigning that the Court erred:
    1. In charging the jury as follows: “ If the jury find that Maurer and De Turk had actual notice that Becker had purchased the property from Schroeder, and also find that the deed wa3 executed and delivered on the 26th of March, the defendant is entitled to a verdict.”
    2. In not instructing the jury that the revival of the judgment between the. original parties, before the plaintiffs had either actual or constructive notice of the conveyance of the legal title, was sufficient to bind the land in the hands of the terre tenant to the extent of the unpaid purchase-money, notwithstanding the plaintiffs knew at the time of the revival thát the terre tenant had bought by articles of agreement, but had not paid the purchase-money.
    3. The Court erred in not instructing the jury that Becker, the terre tenant, having agreed to pay the judgment in suit as part of the purchase-money, and having requested the plaintiffs in said judgment to suffer the same to continue a lien upon the premises in his hands, and having continued to pay the interest upon said judgment after its revival between the original parties, is presumed to have had notice of such revival (if he was entitled thereto), and is estopped from alleging now that he had not.

      Richmond L. Jones, for plaintiffs in error.
    Becker did not- take actual possession, nor put in a new tenant. It was a secret transfer. Possession to be constructive notice must be clear, open, and notorious: Meehan v. Williams, 12 Wr, 238.
    When the judgment was revived there was no notice of the conveyance by record or by actual possession. • The transactions were not notice to the plaintiffs of the sale to Becker, but notice to Becker of the lien of the judgment: Jaques v. Weeks, 7 Watts, 270; Garrard v. Railroad Company, 5 Casey, 154; .York Bank’s Appeal, 12 Casey, 458.
    Becker’s payment of interest up to April, 1876, rebuts any presumption of defence, which is the object of notice; at all events, the plaintiffs having had no notice of the conveyance of the legal title, that title is bound: Geiger v. Hill, 1 Barr, 511; Zerns v. Watson, 1 Jones, 261.

      H. Willis Bland, for defendant in error.
    I. Becker was in possession by tenant at the time of the revival, and the case is within the proviso of the Act of 16th April, 1849: See. 8, P. L., 664 ; Br. Purd. 1, p. 821, pi. 10.
    2. It was not necessary for Becker to show in defence to the sci. fa. that his deed was recorded April 2d, 1873, because a record would have furnished the plaintiffs in the sci. fa. wnth no knowledge they did not already have in contemplation of law. They had knowledge of Becker’s agreement of purchase; they had received on account of the consideration, mentioned in that agreement, $1013, and that made it their duty before reviving their judgment with a knowledge of Becker’s equitable title to look into the agreement for the purpose of ascertaining when the legal title was to pass. 'Ey a reference to the agreement they would have learned that the deed was to be delivered April 1st, 1873, one day before the revival. “ Whatever puts a party on inquiry amounts to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, where the inquiry,if pursued, would lead to knowledge of the requisite facts:” Parke v. Neeley, 9 Norris, 59; Mulliken v. Graham, 22 Smith, 490 ; McCray v. Clark, 1 Norris, 461.
    An omission to charge upon a particular point, for which there was no request, cannot be assigned for error: Lilly v. Paschal, 2 S. & R., 394; Poorman v. Smith, Idem, 464, 469 ; Dawson v. Robinson, 3 W. N. C., 449; Davis v. Bigler, 62 Penna. Stat., 242.
    If no particular instructions are prayed, the Court is responsible only for the general effect of the charge: Reeves v. R.R. Co., 30 Penna. Stat., 454.
    March 13th, 1882.
   — Per Curiam :

The Court below were not requested by the plaintiff: to charge the jury in any particular way, and the second and third assignments must fall on that account. There can be no reversal for a mere omission to charge. As to the first assignment, it did the plaintiff'in error no harm. The revival of the judgment, April 2d, 1873, was by amicable action. To such an agreement, by the Act of 26th March, 1827, P. L., 129, the terre tenant is a necessary party to continue the lien: Armstrong’s Appeal, 5 W. & S., 352.

Judgment affirmed.