text:
    Berg & Co. versus Abbott et al.

    1. In protesting a promissory note the notary certified that during business hours he had called at the bank and found it closed: Held, that this was sufficient demand to charge the endorsers.
    2. The fact that the notary added that he had made demand of the bookkeeper did not affect the conclusiveness of his certificate.
    3. There was oral testimony in conflict with the notarial certificate that the doors of the bank were closed at the time presentment was made, yet, notwithstanding the court directed a compulsory nonsuitHeld, that' the nonsuit was unwarranted, and the case should have gone to the jury.
    November 22d 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Common Pleas of Qrawford county: Of October and November Term 1876, No. 270.
    Assumpsit by John Berg & Co. against William H. Abbott et al., partners doing business as the Citizens’ Bank.
    John Berg & Co., bankers of Butler, were the holders of a promissory note made by Jenks Budlong to the order of M. H. Collins for $2500, dated June 6th 1878, and made payable at the Citizens’ Bank of Titusville four months from date. The note was endorsed by M. H. Collins, the Citizens’ Bank per I. G. Jackson, cashier, and by John Berg & Co.
    At maturity the note was sent for collection to the Producers’ ■ and Manufacturers’ Bank of Titusville, and being unpaid was placed by them in the hands of a notary for presentment, demand and protest. The Citizens’ Bank failed,' and closed its doors in September 1878. The notary during business hours, on the 18th of October went with the note to the Citizens’ Bank and found the doors closed, whereupon he made ¡search and found L. Jackson, who had been book-keeper of the Citizens’ Bank, upon whom he made demand for payment which was refused. Of such demand and non-payment the notary notified the endorsers, and this suit was brought against the parties forming the Citizens’ Bank.
    At the trial plaintiffs offered the note, the endorsements and the notary’s certificate, and then called Isaac Gr. Jackson, who testified that L. Jackson had been the book-keeper of defendants, but was not a partner or teller, and was not in the employment of defendants on the 18th of October 1873; that the bank was open for business, settling, &c., until February 1874; that it failed near the end of September 1873, and there the plaintiffs rested. Thereupon the defendants moved for a nonsuit, which motion was granted by the court.
    This action of the court was the error assigned.

      Roger Sherman, for plaintiffs in error.
    The notary certified that he presented'the bill at the bank and found the same closed. It was a reasonable presumption in favor of the officer that there was no one there of whom to make demand. Presentment at the place of business is sufficient, and if the doors are found closed further search is unnecessary: Bank v. Hunt, 2 Hill 625 : Wiseman v. Chiappella, 23 Howard 368; Byles on Bills, 5 Am. ed., p. star 197.
    . Unless contradicted the notarial certificate was conclusive upon defendants: Bennett v. Young, 6 Harris 261; Jenks v. Doylestown Bank, 4 W. & S. 505; Brittain v. Doylestown Bank, 5 Id. 87.

      Guthrie & Byles, for defendants in error.
    The notarial certificate cannot avail against positive testimony: Sherer v. Easton Bank, 9 Casey 134.
   Mr. Justice Gordon

delivered the opinion of the court January 2d 1877.

The note in suit was drawn by Jenks Budlong, payable to the order of M. H. Collins, at the Citizens’ Bank of Titusville. It was endorsed by Collins to the Citizens’ Bank, and by the bank to the plaintiffs. When due, it was protested for non-payment; the notary certifying, inter alia, that he had, during business hours, presented the said promissory, note at the Citizens’ Bank, and found it closed, and that he had duly notified the endorsers. This was a sufficient demand to charge the endorsers. It was held in Bumgardner v. Reeves, 11 Casey 250, that a visit to the maker’s place of business, for the purpose of making presentment, and finding it closed, is equivalent to an actual presentment and demand, and that a notarial certificate setting forth such facts might be given in evidence to sustain a oiarr. averring actual presentment and demand. When a note is made payable at a particular place, a personal demand is unnecessary: Byles on Bills, 5th Am. ed. 342-3, note. And it would seem, from the same authority (note to page 346), that if a note is made payable at a particular bank, and such bank before maturity, ceases to exist, a demand, in order to bold an endorser, is excused. In like manner it was considered that demand made at the office of an acceptor of a bill, though closed, was sufficient : Wiseman v. Chiappella, 23 How. 366. That the notary, after finding the bank closed, supplemented the matter by demand on one having no connection with or interest in the transaction, is of no significance; it did neither good nor harm, and may be regarded as surplusage. If the oral testimony was in any degree in conflict with the notarial certificate, as to the fact of the bank being closed at the time of the presentation, the only effect thereof 'was to carry the case to the jury, but it did not warrant a compulsory nonsuit.

Judgment reversed, and a procedendo awarded.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Ferris versus Irons et al.

    1. The admission of a party claiming a right to defend in ejectment under sect. 9 of the Act of 21st March 1772, is an act of the court, whose duty it is to inquire before mating the order whether the applicant really stands in the relation of landlord, or whether his claim of title is consistent with the possession of the occupier.
    2. In ejectment by B., a sheriff’s vendee, against I., the defendant in the execution, it is questionable whether the court ought to allow the landlord or one claiming as such to appear and take defence upon his title.
    3. In such case where L., to whom the land had been conveyed by a deed made before the entry of the judgment under which the land was afterwards sold, was admitted as co-defendant on the day of the trial without objection from the plaintiff, and it did not appear that he was admitted to defend as a landlord: Held, that it must be presumed that he was admitted as a party in possession, and that it was not error to allow him at the trial to put in evidence his deed for the land as a defence to the action.
    4. The plaintiff, to avoid the deed to L., offered evidence tending to show that it was made for the purpose of hindering and defrauding the creditors of I., which evidence was refused by the court: Held, to be error, and that the evidence should have been admitted, and the question of fraud, and whether the deed was for a good and valuable consideration, left to the jui'y-
    5. After the evidence was in the plaintiff’s counsel made a verbal request for a charge to the court which the court refused, but no exception was taken ; this refusal was assigned for error: Held, that there was nothing on the record to support the assignment.
    November 23d 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 269.
    Ejectment by Charles Ferris against William B. Irons. Ferris claimed title under a sheriff’s deed, having bought the land in question at a sheriff’s sale, where it was sold as the property of Irons. On the day of the trial, one Isaac Line filed an affidavit that he was the owner of the land, and was thereupon allowed by the court, on motion of the attorney for Irons, to become a co-defendant, without objection on the part of the plaintiff. At the trial, the plaintiff gave in evidence a judgment against Irons, entered October 3d 1874, a levy and sale of the property in question, and a sheriff’s deed to himself; and also the writ of ejectment in this case, with the sheriff’s return of personal service on Irons. It was admitted that Irons was in possession. The plaintiff then rested. Irons made no defence. Line offered in evidence a deed of the premises from Irons to himself, bearing date January 22d 1874. This was admitted under objection, and the defendant rested.
    It was admitted that Line was Irons’s father-in-law.
    The plaintiff, in order to show that this deed was fraudulent and void as to creditors of Irons, called one Bishop, who had acted as the agent of Line, and had taken the acknowledgment of the deed. He testified that the consideration named in the deed was not paid in money, but was paid partly in old notes which Irons had previously given Line, and partly in a new note; that it was arranged, at the time the deed was made, that Irons should remain on the property, at certain stipulated wages, and receive all the products of it; that at about the time the deed was made to Line, Irons’s personal property was sold by the sheriff, under a judgment in favor of Line, bought in by Line, and left in Irons’s possession, who had since continued to use it as his own.
    The plaintiff then offered to show by another witness that Irons was largely indebted, at the time of this conveyance, to the plaintiff and a number of other persons; that he conveyed all his real estate to Isaac Line, his father-in-law; that he had continued to use it since, and had had, possessed and occupied it just as he did before the conveyance; that on the same day of the conveyance of the real estate, he gave a judgment-note to Line, upon which judgment was entered and execution issued, and all his personal property sold within two or three weeks of the giving of this deed, and purchased by Line; that he had continued to use the personal property since that sale just as he did before; that he had traded it with other people, and'that he had sold it within a very short time after the sale, stating it to be his own; that his indebtedness was contracted only a few months before this conveyance, and to a number of persons. This offer was for the purpose of showing that this conveyance was in fraud of these creditors, to hinder and delay them in the collection of their debts.
    The offer was refused under exception.
    The plaintiff’s'attorney then asked the court verbally to charge the jury that “ if, in this conveyance, any reservation or benefit was reserved to Irons, the deed was fraudulent as to creditors.” The court refused to charge as requested, but no exception was taken to the refusal. The court then charged that there had been a conveyance from Irons to Line, for a good and valuable consideration, long before the judgment to Ferris was entered, and directed a verdict for the defendants. After a verdict so found and judgment thereon, the plaintiff took this writ of error, assigning for error that the court erred: 1. In admitting the deed from Irons to Line. 2. In refusing the plaintiff’s offer as given above. 3. Tn refusing to charge as above requested. 4. In charging that the conveyance to Line was for a good and valuable consideration; and, 6. In not submitting to the jury the question whether the conveyance to Line was fraudulent.

      D. C. McCoy & Son, for the plaintiff in error.

      F. P. Ray, for defendant in error.
   Mr. Justice Sharswood

delivered the opinion of the court, January 2d 1877.

In an ejectment by the purchaser at sheriff’s sale against the defendant in the judgment upon which it is sold, it is only necessary for him in general to show the judgment and proceedings under it: Little v. Lessee of Delancey, 5 Binn. 266 ; Drake v. Brown, 18 P. F. Smith 223. The purchaser under regular process acquires a right to defendant’s possession, whatever it may be founded on, right or wrong: Snavely v. Wagner, 3 Barr 275. It is questionable whether the court ought to allow the landlord, or one claiming as such, to appear and take defence upon his title in such a case. The admission of a party claiming right to defend in ejectment under the 9th section of the Act of 21st March 1772, 1 Sm. L. 372, is an act of the court whose duty it is to inquire, before making the order, whether the applicant really stands in the relation of landlord, or whether his claim of title is consistent with the possession of the occupier : McClay v. Benedict, 1 Rawle 424. It was accordingly held in Boyer v. Smith, 5 Watts 55, that in an action of ejectment by a landlord against his tenant, it was not error to refuse to permit one who claimed title adversely to the plaintiff, to be made a co-defendant. The same reason would be applicable to an ejectment by the sheriff’s vendee against the defendant in the judgment. It was decided in Dunlap v. Cook, 6 Harris 454, that in such a case the defendant cannot set up title under a lease taken by him from a third person after the judgment.

In the case before us, however, it does not appear that Line made application to defend as the landlord, but at the trial on the motion of the attorney of the original defendant, he was made co-defendant. No objection was interposed or exception taken to this order of the court. . We must presume that he was admitted as a party in possession. There was no error then in receiving the deed of Irons to Line — dated before the judgment upon which the land was sold as the property of Irons. The objection came too late. It was not setting up a title inconsistent with the defendant’s possession; for one of the defences which the person in possession may make under the summary proceeding given to the purchaser at sheriff’s sale by the Act of 16th June 1836, § 114, Pamph. L. 782, is that he has come into possession under title derived to him from the defendant before the judgment under which the execution and sale took place. The first assignment of error is therefore* not sustained.

We are of opinion that there was error in rejecting the offer of the plaintiff below as complained of in the second assignment. If the proof had come up to the offer with the other evidence in the case it would have raised a question of actual fraud, to which Line was a party, and that the deed in question was made and accepted for the very purpose of hindering and defrauding the creditors of Irons. In such a ease it matters not whether a full consideration was paid or not, though any failure in this respect will make an important element in the question of actual fraud: Zerbe v. Miller, 4 Harris 488; Gans v. Renshaw, 2 Barr 34. As was said by Chief Justice Gibson in the case last cited, The sale was made when judgments were about to be obtained against the grantor, and though an insolvent debtor may give such preferences to particular debtors as he may see propel-, yet if the motive be not payment of his debts, but in the language of the statute £ to delay, hinder or defraud’ particular creditors, the conveyance, though made on valuable consideration, is not bond fide, and therefore not saved by the proviso.”

Actual fraud is always emphatically a question for the jury, and the evidence is permitted to take a wide range, as in the majority of cases it rests upon circumstances and not upon direct proof. It is concocted in the dark and the perpetrators are careful not to make any open declaration of their design: Zerbe v. Miller, 4 Harris 488; Stauffer v. Young, 3 Wright 455 ; Deakers v. Temple, 5 Id. 234; Simons v. The Vulcan Oil Co., 11 P. F. Smith 202. In view of the fact that the case must go back for another trial it is not advisable to discuss the evidence given and offered. It may or may-not be sufficient to convince the jury of actual fraud. It is enough for us if it had that tendency, and we, therefore, are of opinion that the evidence offered should have been received.

The third assignment of error is that the court erred in refusing to charge the jury as requested by the plaintiff that if any benefit was reserved to Irons in the land it would be fraudulent as to creditors and in saying that there was no evidence to leave to the jury of such reservation. There is nothing appearing on the record to support this assignment. No point or request in writing was made; but in the curious medley returned as the evidence given on the trial — apparently a verbatim report of all that was said by court, counsel and witnesses — there does appear to have been a conversation between the court and counsel, in which a request was made to charge as stated in this assignment and that the court refused for the reason given. But no exception was taken or noted to this refusal, and without an exception no advantage can be taken of it. It is not properly before us for review.

The remaining assignments need not be considered except to say that the question of fact whether the conveyance made by Irons to Line was a good and valuable consideration was for the jury, and even upon the evidence as it stood, the case ought to have been submitted to that tribunal on the question of fraud.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Brooke versus Phillips.
    1. A decree of a court of equity for the payment of money cannot he transferred to another county for the purpose of lien and execution as in the case of a judgment at law.
    2. The 1st sect, of the Act of 29th of March 1859, only gives a decree in equity the force and effect of a common law judgment as to lien and revival when entered in the judgment or lien docket of the proper county and not for the purpose of transfer to another county.
    November 23d 1876.
    Before Agnew, 0. J., Siiarswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Common Pleas, of Lawrence county: Of October and November Term 1875, No. 307.
    This writ of error was taken by Robert L. Brooke and William Barrington, who complained of the decree of the court striking off the exemplification of the record of a decree in equity at Nisi. Prius, against Isaac N., Charles M., Thomas W. and John Phillips, which exemplification had been entered in the Common Pleas of Lawrence county.
    The proceedings are set forth in the opinion of this court.
    The question for decision was, whether a decree in equity for payment of money merely may be transferred to another county for the purpose of lien and execution.

      S. W. Dana, John McMiehael, B. W. Lacy, Edward H. Weil, and William L. Hirst, with whom was John G. Johnson, for plaintiffs in error.
    We submit that the decree was within the provisions of the Act of the 16th of April 1840, Pamph. L. 14, Purd. 821, for these reasons:—
    1. A decree for payment of money merely, though entered on the equity side of the court, is in substance, if not in form, a judgment. It is rendered by the same court, enforced by the same process of execution, and required to be entered in the judgment index on the common law side of the court. See rule 80 of the Rules of Equity Practice adopted in 1844, and rule 80 of the new Equity Rules. Such decrees without this rule were judgments in substance, under it they become judgments inform.

    This court certainly intended and considered that they should have the force of common law judgments so far as lien on land was concerned, or they would not have directed them to be entered in the judgment index. That index is a lien index, amd its sole object is to give notice of liens ; and if a decree is not a judgment for purposes of lien, there is no conceivable reason why it should be placed there.
    Brightly in his Treatise, sect. 744, says, “ the courts which are invested with equitable jurisdiction, being, by the Constitution, courts of record, these decrees have the same effect, as to lien, &c., as judgments at common law.” This was long prior to the Act of 1859, on the subject.
    The Act of 1840, whose provisions were extended to judgments of the Supreme Court by Act of the 2d of April 1841, Pamph. L. 142, Purd. Dig. 822, is said by Church, J., in Reid v. Northwestern Railway Co., 8 Casey 258, to be a “ remedial law and should be liberally construed,” and Chief Justice Agnew cites this expression in Knauss’s Appeal, 2 Grant 423, with approbation. It is submitted therefore that the act included decrees for money merely, and they were transferable like judgments at law before the Act of 1859.
    2. The Act of 29th March 1859, Pamph. L. 289, Purd. Dig., tit. Eq., 68, is a remedial statute, and its plain purpose and intent is, to place decrees in equity for money merely, upon precisely the same legal footing as judgments at law. They “ shall be and constitute a lien,” “in the manner,” “and with the saime force and effect,” “as the lien of judgments.” A part of the force and effect of the lien of a judgment is its liability to transfer to another county. Its entry in the judgment docket, on the law side of the court, renders it to all intents and purposes a judgment on that side of the court. “ The like remedy, by scire facias, or otherwise, for the revival and continuance of the said lien,” disclose the same intention. And when the reason and spirit of the statute is considered, nothing can be thought of as a reason why the power to transfer should not be included. Decrees for money were in like need of such remedy as judgments, and the remedy by transfer must apply alike to both.
    In Groves’s Appeal, 18 P. F. Smith 146, Judge Sharswood, speaking of this act, says: “ Decrees by courts of- equity are put on the same footing as judgments in the common law.”

      D. B. & G. G. Kurtz and S. Schoyer, Jr., for defendants in error.
    — Before the Act of 16th April 1840, judgments had no transferable qualities; they were liens in the county in which they were obtained, but not elsewhere. That act limited the power of transfer to judgment obtained in any District Court or Court of Common Pleas, and the Act of 2d April 1841 extended its provisions to the judgments rendered in the Supreme Court. But the provisions of that statute have never been extended to the judgments rendered at Nisi Prius.
    The Act of 1859 does not give to decrees in equity such transferable quality. It only gives to them the force and effect judgments possessed before the Act of 1840. They shall constitute a lien on the real estate, in the manner, for the Mice period, and with the same force and effect, as the lien of judgments rendered in common-law courts, and shall be entered in like manner in the 'judgment or lien docket of the proper county. Thus far, certainly, the act contemplates the ordinary judgment, and limits the lien of the decree to the county in which the decree is entered. Then can it be said that this act confers by implication an incident to that decree, which it required a special statute to give to a common-law judgment, and in the face of this limitation ? In this statute the lien is expressly confined to the county.
    In Hallman’s Appeal, 6 Harris 311, Judge Lewis says : “ The lien has always been held to be confined to the real estate situate in the county where the award is entered.” It is to be observed that the Act of 1859 does not make a decree in equity a judgment. It is to have some of the incidents which judgments have; only, however, in respect to lien, duration and revival and continuance. It is not deprived of its own characteristics, nor does it acquire any of the incidénts of a judgment not enumerated.
   Mr. Justice Paxson

delivered the opinion of the court, January 2d 1877.

This record presents the single question whether a decree of a court of equity for the payment of money may be transferred to another county for the purposes of lien and execution as in the case of a judgment at law. On the 3d of March 1870, a decree was entered at Nisi Prius against the defendants for the sum of $246,-668.04. On the same day said decree was entered in the usual form of a judgment in the judgment index upon the common-law side of the court. Upon the following day the defendants appealed from the decree at Nisi Prius to the Supreme Court in banc. No bail was entered upon the appeal, bail having been waived by agreement of counsel in writing. The decree was practically pro forma, having been entered by the judge at Nisi Prius without argument. After the appeal was taken, to wit, on the 21st of March 1870, an exemplification of the record was filed in the Common Pleas of Lawrence county. On the 8th day of May 1871, this court reversed and modified the decree at Nisi Prius, reducing the amount thereof to $62,489.53. In March 1875, a writ of scire facias was issued out of the Common Pleas of Lawrence county to continue the lien of the original decree upon the lands of the defendants in that county. In addition a testatum fi. fa. was issued out of the appropriate court in Philadelphia to Lawrence-county for the amount of the final decree. On the 24th of May 1875 the defendants obtained a rule in the Common Pleas of Lawrence county to show cause why the exemplification filed in that county should not be stricken off, and upon the 23d of October 1875 the said court entered a pro forma decree making said rule absolute. This action of the court is assigned for error.-

The first sect, of the Act of 16th April 1840 (Pamph. L. 40, Purd. 821) , provides that “ in addition to the remedies now provided by law, hereafter any judgments in any District Court or Court of Common Pleas in Pennsylvania may be transferred from the court in which they are entered, to any other District Court or Court of Common Pleas in this Commonwealth, by filing of record in said other court a certified copy of the whole record in the case,” &c. The 11th section of the Act of 2d April 1841 (Pamph. L. 142, Purd. 822) extends the provisions of the above act to “judgments rendered in the city and county of Philadelphia, in the Supreme Court for the Eastern District of Pennsylvania.”

Is a decree of a court of equity a “judgment” in the sense in which that word is used in the Act of 1840 ? If not there was no authority for filing this exemplification in Lawrence county. If the right exists it must be by virtue of the Act of 1840. The distinction between the judgment of a court of law and the decree of a court of equity is too obvious to require comment. ' By a judgment at law we understand a judgment for the payment of money. A decree in equity may or may not be for the payment of money. It may be to do, or to abstain from doing a variety of acts having no relation to the payment of money. It is true that a decree for the payment of money is now put upon the footing of a judgment at law so far as relates to lien and revival. The first section of the Act of 29th of March 1859 (Pamph. L. 289, Purd. 601) provides that “ decrees in equity, for the payment of money, shall be and constitute a lien on the real estate of the defendants or debtors named in the said decree, in the manner, for the like period, and with the same force and effect as the lien of judgments rendered by and in the common-law courts of this Commonwealth, and shall be entered in like manner in the judgment or lien docket of the proper county; and the complainant or plaintiff in such decree shall have the like remedy, by writ of scire facias or otherwise, for the revival and continuance of the said lien as is prescribed by existing laws for the continuance of the lien of such judgments,” &c. This Act does not, and was not intended to do more than to give a decree in equity tbe force and effect of a common-law judgment as to lien and revival when entered in tbe judgment or lien docket of the proioer county. It does not become a common-law judgment. It bas only tbe force and effect of one for certain purposes. There is not a word in tbe act to indicate even a glimmering of intention to give such decree tbe force and effect of a judgment for tbe purpose of transfer to another county. Nor can we see anything in the Act of 1840 which could be held by any fair rule of construction to in-, elude a decree in equity. As before observed, a judgment at law is a judgment for money. Hence tbe Act of 1840 says all judgments may be transferred, &c. To bold that this includes all decrees in equity would be a manifest absurdity. If tbe legislature meant to include all decrees for tbe payment of money, they would probably have said “ all judgments and all decrees in equity for tbe payment of money.” But nothing of tbe kind appears either by tbe express terms of tbe act, or by necessary implication. While, as was observed in Reid v. Northwestern Railway Co., 8 Casey 258, “ tbe law is a remedial one in express terms, and should be liberally construed,” we cannot add to the act. That would be legislation, not construction.

A judgment was not a lien at common law. In England tbe lien results from tbe fact of lands being subjected by statute to be taken in execution: Price on Limitations and Liens 276. Decrees in equity, by tbe Act of 1859, are placed upon tbe same footing as judgments, so far as relates to a lien on real estate, in tbe proper county. But it does not say that they may be transferred to another county for tbe purpose of lien or otherwise. In tbe absence of such legislation, tbe transfer of this decree to Lawrence county was wholly without authority of law. This view of tbe case renders it unnecessary to discuss tbe effect of tbe appeal upon tbe lien of tbe judgment.

Judgment affirmed.


author: Mr. Justice Woodward

text:
    Mead versus Leffingwell.
    1. In 1849 A. conveyed land to B. and 0., his brothers, who took immediate and continued in exclusive and uninterrupted possession until 1872. By virtue of a deed given by the sheriff in 1853, in pursuance of a sale of this land on a judgment obtained upon an allegation that the conveyance of A. to his brothers was fraudulent as to creditors, plaintiffs in 1872 brought an action for its recovery, and contended that their claim was not barred by the Statute of Limitations because the statute operated not upon the possession of the occupant but upon the right of entry of the owner, and as this right of entry did not accrue until 1853, the title of the defendants by virtue of the statute was not complete: Held, that the statute would not admit of such a construction and that a possession such as that of defendants for twenty-one years, under a claim of ownership, whether the original entry was with or without color of right, created a perfect title.

      2. It was error to instruct the jury that after such a lapse of time the operation of this deed could only be defeated by clear, positive, direct and undoubted proof that it was given without consideration and to hinder and delay creditors.
    3. Whether if this suit had been brought without unreasonable delay the refusal to hear the evidence of the plaintiff in regard to the declarations of A., to impeach his deed to his brothers, would be right or wrong, undecided.
    November 23d 1876.
    Before Agnew, C. J., Sharsavood, Gordon, Paxson and Woodavard, JJ. Williams and Mercur, JJ., absent.
    Error to tbe Court of Common Pleas of Crawford county: Of October and November Term 1875, No. 93.
    This Avas an ejectment, brought by E. D. Mead and wife against Legrand, Charles, James and William LeffingAvell, to recover certain lots of ground in Woodcock, CraAvford county.
    The facts Avere these: Prior to 1844, Andrew B. and Orsimus LeffingAvell, brothers, were partners in a tavern and store in Woodcock. Orsimus died in that year, and soon after his decease another brother, Alphonso, went into partnership with Andrew B. Under proceedings in the Orphans’ Court, AndreAV B. became the owner of all the property of his deceased brother Orsimus, and the deed to him from the guardian of the minor children of Orsimus was acknowledged April 9th 1847. Besides the tavern stand, other toAvn lots and real estate were bought by Andrew B. and Aljffionso. On the 26th of September 1849, AndreAV B. sold his interest in the tavern and store, and all 'his property, to his brothers James and Alphonso, and shortly thereafter left the county. ' Benjamin DeAvell, the administrator of Orsimus, held a bond of AndreAV B. and his father Andrew, for $939.88, which was given for the interest of Orsimus in the store, which bond the administrator turned over to the guardian, who brought suit thereon to November Term 1849. On the 15th of July 1850, judgment Avas entered for $1196.64, and on this judgment all the real property of Andrew B. Avhich he had conveyed to his brothers was sold by the sheriff to Eliphalet Williams, the grandfather of the children of Orsimus. The sheriff’s deed Avas aclcnoAvledged on the 15th of February 1853. On the 22d of January 1872, Williams conveyed the same property to Mrs. Mead, one of the plaintiffs, who brought this action, claiming that the deed of Andrew B. to his brothers, on the 26th of September 1849, was fraudulent, and intended to hinder, delay and defraud creditors, especially the heirs of Orsimus Leffingwell.
    On the trial before Lowrie, P. J., Mrs. Mead, the plaintiff, was offered to prove certain declarations of Andrew B. Avith reference to the conveyance of the land in dispute. The defendants objected, on the ground that she could not testify as to declarations of said Andrew B. to affect the title of parties claiming under his deed, and the court sustained the objection.

      The defendants submitted the three following points, all of which the court affirmed :—
    3. That if Andrew B. Leffingwell left the state and went to St. Louis shortly after his conveyance of the land in dispute to Alphonso and James Leffingwell, in September 1849, and they took possession immediately or soon after the date of that deed, and held and occupied it exclusively as their own for twenty-one years and more without interruption before this suit brought, the statute of limitation commenced to run from that time; and more than twenty-one having elapsed since the said possession begun to the bringing of this suit, the defendants have a complete title to the premises by virtue of the statute, and the plaintiffs cannot recover.
    4. That the law is exceedingly suspicious of stale demands, and the deed under which defendants claim having been executed and delivered in 1849, and all the parties to the transactions being now dead, the law presumes that it was made for a good and valid consideration and without fraud. And after such a lapse of time, the .operations of this deed can' only be defeated by clear, positive, direct and undoubted proof that it was given without consideration, and to hinder and delay creditors.
    5. The declarations of Andrew B. Leffingwell, after parting with his title to Alphonso and James Leffingwell, were not evidence do impeach their title.
    The verdict was for the defendants, and the plaintiffs took this writ, assigning for error the rejection of the evidence of Mrs. Mead, and the affirmance of the foregoing points of defendants.

      J. B. Brawley and D. M. Farrelly, for plaintiffs in error.
    At the time of the execution of the deed from Andrew to Alphonso and James, neither Williams nor plaintiffs had a right of entry. The 2d section of the Act of Limitations of March 26th 1785 refers to the time when the real owner may make entry or bring his action. Nothing is said as to the possession of the occupant. The statute does not operate on the possession of the intruder, disseisor or trespasser, but operates on the right of entry and the right of action residing in the owner: Hinman v. Cranmer, 9 Barr 40. The statute does not begin to run until a right of entry exists : Shepley v. Lytle, 6 Watts 500; Hall v. Mathias, 4 W. & S. 331. The statute will not receive a liberal construction to protect fraud.
    The instruction of the court as to the degree of proof to defeat the deed was erroneous. No case can be produced nor principle of law invoked to show that with the lapse of time the piroof to establish fraud must grow clearer, more direct and positive. The lapse of time may make it more difficult to prove fraud, but has no effect on the degree or character of the proof: Abbey v. Dewey, 1 Casey 413 ; Reinhard v. Keenbartz, 6 Watts 93 ; Rogers v. Hall, 4 Id. 361; Stauffer v. Young, 3 Id. 455.

      So far as the declarations of Andrew went to prove fraud they were competent evidence.

      W. R. Role, for defendants in error.
   Mr. Justice Woodward

delivered the opinion of the court, Januuary 2d 187T.

Andrew B. Leffingwell was the owner of the land in dispute, subject neither to trust nor lien, on the 26th of September 1849, when he conveyed it to his brothers Alphonso and Jamos. The title of his deceased brother, Orsimus Leffingwell, had been divested and acquired by himself by the deed of the guardian of the children of Orsimus, made on the 9th of April 1847, under an order of the Orphans’ Court. It may be taken to have been established by the verdict, under the charge of the court below, that “ Alphonso and James Leffingwell took possession of the land immediately or soon after the deed to them, and held and occupied it exclusively as their own for twenty-one years and more before this suit Avas brought.” In the transfer of the title no concealment Avas attempted. The deed Avas placed on record on the 11th of October 1849, fifteen days after its execution. This suit was not commenced until the 6th of November 1872, when more than twenty-three years had been suffered to go by.

At the time of the conveyance Andrew B. Leffingwell wag indebted to the estate of his brother Orsimus in the sum of $939.88, for which the administrator held his bond. This, hoAvever, had no connection AYith the purchase-money for the land bought at the guardian’s sale. The bond was given for the interest of Orsimus in a store which had been jointly OAvned. Suit Avas brought on the bond to November Term 1849, and judgment was entered on the 15th of July 1850, for $1196.64. On the allegation that the deed from AndreAY B. to Alphonso and James LeffingAYell had been made for the purpose of hindering and defrauding creditors, the land conveyed by that deed Avas levied on and sold to Eliphalet Williams, the grandfather of the children of Orsimus. The sheriff’s deed Avas made to Mr. Williams on the 18th of February 1853. He transferred the title to Mrs. Mead, one of the plaintiffs, on the 22d of January 1872.

NotAYithstanding the lapse of time betAveen the conveyance under Avhich the defendants claimed title and the commencement of this suit, the plaintiffs insisted on the right to recover on the ground that the right of action of Eliphalet Williams did not accrue until he received his deed from the sheriff, and that the Statute of Limitations only then began to run. In support of this view reliance Avas placed on principles decided by this court in Shepley v. Lytle, 6 Watts 500, and Hall v. Mathias, 4 W. & S. 331, and on the ruling of Coulter, J., in Hinman v. Cramer, 9 Barr 40, that the statute does not operate on the possession of the intruder, disseisor or trespasser, but on the right of entry and the right of action residing in the owner, and provides that either or both shall be used within twenty-one years after the same first descended or accrued.”

It is believed that the acceptance of the views of the counsel for the plaintiffs would be the introduction into the construction of the Statute of Limitations of a principle equally novel and unsafe. The actual, visible, notorious, hostile, exclusive, continuous and uninterrupted possession of land for twenty-one years, under a claim of ownership, whether the original entry was with or without color of right, creates a perfect title, sufficient not only to support a defence, but to support a recovery in ejectment: Watson v. Gregg, 10 Watts 295; Hollingshead v. Nauman, 9 Wright 140; Pederick v. Searle, 5 S. & R. 240; and Hole v. Rittenhouse, 7 Harris 306. This rule was made subject to a provision for then existing rights by the 3d section of the Act of the 26th of March 1785, and the provision in favor of persons feme covert, non compos mentis, imprisoned, beyond the seas, and without the United States, by the 4th section of that act. When possession of this land was taken by Alphonso and James Leflingwell, there was no right subsisting in any persons to be protected by the saving clauses of the statute. The legal title was vested in the grantees by a deed duly executed and promptly recorded. The claim growing out of the fraud alleged to have been practised was in full force then. While, if the deed was indeed executed in bad faith, Andrew E. Leflingwell, as a particeps criminis, could not have set it aside,'the law had vested in his creditors the right by substitution to annul the conveyance, and pursue the land of the fraudulent grantor in the hands of the fraudulent grantees. Eut they were bound to act at least with reasonable vigilance and vigor. It has been said over and over again by all the courts, that the interest of the community demands that some line shall be drawn where litigation shall stop, and that statutes of limitation are statutes of repose. In this instance the action was brought twenty-three years after the deed attacked was made, and the suit by the administrator of Orsimus against Andrew B. Leflingwell was begun more than twenty-two years after judgment in that suit was obtained, and nearly twenty years after the sheriff’s deed was made to Eliphalet Williams. At the time of the trial the original parties were all dead. They were charged with a conspiracy to defraud Andrew B. Leffingwell’s creditors. It can readily be conceived that after the lapse of twenty-three years the means of meeting such a charge would, in great part, have ceased to exist. By the destruction of papers, and by the death, removal and forgetfulness of witnesses, it must always happen, in so long a period, that grave havoc will be made of the instruments of evidence. If personal property had been the subject of controversy between these parties, the plaintiffs would have been barred after six years from the discovery of the fraud. And yet the allegations here could only be made out by the parol proof that would he given in an ordinary personal action. . The very purpose in view was to upturn a sale and conveyance of land, followed by notorious possession, upon the testimony of witnesses as to their recollections of conversations and declarations they had heard twenty-three years before. There is no law to warrant a construction of the Statute of Limitations that would subject the title of these defendants to such a hazard. In Hinman v. Cramer, supra, the only question was whether the entry that had been made on the land was sufficient to toll the statute. In Shepley v. Lytle, a party in possession of land avowed his possession as against a tenant in common with him to be adverse as early as 1814. But he held under his father, from whom the land descended, by a lease which did not expire until 1817. Suit was brought in 1836, and it was held that but nineteen years had run from the time when the right of action accrued. All that Hall v. Mathias decided was that the mere entry by a widow into the land of her deceased husband, claiming it, and taking the rents and profits for twenty-one years, is no disseisin of the heirs at law. In Kribbs v. Downing, 1 Casey 399, it was ruled that “ when a person against whom a fraud has been perpetrated, lies by for twenty-one years without causing it to be investigated, he will not be permitted to show it.” Lynch v. Coxe, 11 Harris 265, presented the question of a resulting trust. In entering the judgment, Black, C. J., said : “ We cannot decide on remote transactions without the aid of presumptions. After witnesses are dead and papers lost, it is impossible to know what were the true original merits of the case. Such presumptions are in favor of the legal title, when neither party is in possession; but when the cestui que trust occupies the land, they are wholly against the trustee.” These defendants are entitled not only to the benefit of all presumptions arising from a recorded deed accompanied by an uninterrupted and unchallenged possession, but to that absolute protection which it was the very purpose of the Statute of Limitations to afford.

The remaining assignments of error need but brief discussion. It • is not worth while to inquire whether, if the suit had been brought without unreasonable delay, the refusal to hear the evidence of Mrs. Mead in regard to Andrew B. Leffingwell’s declarations to impeach his deed to his brothers, and the Avithdrawal of the testimony as to those declarations by other Avitnesses, Avould have been right or wrong. The element of time Avas inherent in the cause in every aspect, and could not be disregarded. As a mere abstract proposition, the answer to the fourth point of the defendants Avas erroneous. Fraud could probably never be established to the satisfaction of a jury, if “ clear, distinct, positive and undoubted evidence” were required to make it out. The Avork of conspirators is not done in the light of the open day. They do not proclaim their purpose nor record their movements. Their practices are secret and concealed, and can be uncovered only by a resort to such evidence of the circumstances, relations, acts and motives of the parties as will serve reasonably to disclose the nature of the transaction charged against them. But the element of time was involved in this, as in all the other branches of the case. All presumptions were in favor of a conveyance in due form of land from which there had been no eviction and to which there had been no counter claim; and after twenty-three years of acquiescence, the attempt to overbear those presumptions was made too late.

Judgment affirmed.


author: Per Curiam.

text:
    Croasdell versus Tallant.
    G., 0. and S. made an instrument which read, “ Six months after date for value received, we or either of us promise to pay to T. or order $832 money borrowedand continued “ and we empower any attorney to appear for us and confess judgment against ms for the above sum, &c., &c.” G. having died T. treated the warrant of attorney as joint, and entered judgment against the two survivors. 0. asked the court below to strike off the judgment, for the reason that the power to confess judgment was a joint power, and after the death of G. did not authorize the entry of judgment against 0. and S., or either of them as survivors, which was refused. Held, that this was not error.
    Per Curiam. — But treating this power as joint, as the plaintiff did, we are not disposed to follow the English case of Gee v. Lane, 15 East 592. The theory of judgments, according to the English law, has been so greatly changed in Pennsylvania by legislation (in number of acts cited), it will not do to follow English precedents too implicitly, and we must treat this case as one to be governed by the intent of the warrant rather than by English decisions.
    November 23d 1876.
    Before Agnew, 0. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Merour, JJ., absent.
    Error to the Common Pleas of Crawford county: Of October and November Term 1876, No. 40.
    This was a proceeding upon a judgment entered by virtue of the warrant of attorney contained in the following note:—
    “$>832. Meadville, Pa., Dec. 6th 1873.

      Six months after date, for value received, we, or either of us, promise to pay to Miss Jane Tallant, or order, eight hundred and thirty-two dollars, with interest, money borrowed, and in case of default of payment at maturity, an additional five per cent, for the attorney’s fees for collection of the same. And we empower any attorney of record in this Commonwealth, or elsewhere, to appear for us and confess judgment against us for the above sum, together with the 5 per cent, additional, with costs of suit, release of errors, and without stay of execution ; and for value received do waive the 'right and benefit of any law of this or any state exempting property, real or personal, from sale, and if levy be made on land, do also Avaive the right of inquisition, and consent to the condemnation thereof, Avith full liberty to sell the same on fi. fa., with release of errors thereon.
    “ The words ‘ either of us’ interlined before signing.
    Geo. Gray,
    Witness, Joseph Deuch. John T. Oroasdell,
    “ Due June 6th 1874. E. B. R. Sacket.”
    The italics represent the writing in the note.
    Gray, one of the parties to the note, died in April 1874, and judgment was entered on 11th of May following, by virtue of the power of attorney, against Oroasdell and Sacket. Oroasdell obtained a rule to show cause why the judgment should not be stricken off, for the reason “ that the power to confess judgment was a joint power, and, after the death of Gray, did not authorize the entry or confession of judgment against Oroasdell and Sacket, or either of them, as survivors.”
    The court discharged the rule and refused to strike off the judgment, which was the error assigned.
    H. L. Richmond & Son, for plaintiff in error.
    The note and power to confess judgment, though embodied in one instrument, are separate and distinct. The note says “we or either of us promise to pay,” making it joint and several. The language of the power is, “ we empower any attorney * * * to appear for us and confess judgment against us.” This power is joint and not several and authorizes the confession of a joint and hot a several judgment. The death of Gray worked a revocation of the power, and there was no authority to enter judgment against the survivors, or either of them: 1 Tr. & H. Pract. 401; Row v. Alderson, 7 Taunt. 453. It differs not that the note is several as expressly decided in Gee v. Lane, 15 East 592.
    In that case Lane and William Gee gave their joint and several bond to Thomas Gee,, in the sum of 2400?., conditioned for the payment of 1180?., and also their joint warrant of attorney, authorizing the attorney “ to appear for us, John Lane- and William Gee, and to receive a declaration for us in an action of debt * .* * and thereupon to confess the same action, or else suffer judgment nil dicit to pass against us in said action. Abbott moved for leave to enter judgment, on this joint warrant of attorney, against the surviving party, Lane, only.” Lord Ellenborough refused leave, saying, “ An action to be brought against us, must mean a joint action; an authority by tAvo, to enter judgment against us, will not warrant a judgment against one alone. The authority must be pursued; we cannot violate it.”

      Thomas Roddy and J. B. Brawley, for defendants in error.—
    The obligation and the power are one instrument, and the parties are jointly and severally liable. It is evident the intention of the parties was that the power should read “ we or either of us,” or why-interline “we or either of us promise to pay,” in the promissory part of the instrument ? . Taking the instrument in its entirety, we may fill the ellipsis wherever it occurs, and if after the word “us” we insert the words “ either of us,” we reach the true intent of the makers : Geddis et al. v. Hawks, 10 S. & R. 38. In Gee v. Lane, 15 East 592, supra, the bond and warrant of attorney were separate ■instruments, and the case is not analogous. An agreement to pay money, signed by two, but which in the body of it provides for the payment by one of them only, is joint and several: Klapp v. Kleckner, 3 W. & S. 519; Krusely v. Shenberger, 7 Watts 193; Leith v. Bush et al., 11 P. F. Smith 395.
   The judgment of the Supreme Court was entered November 24th 1876,

Per Curiam.

The warrant of attorney in this case was treated as joint by the plaintiff, and judgment entered against the two survivors. The obligation, however, was joint and several, and the warrant of attorney a part of it and a mere continuation of the instrument before the signatures. It would scarcely be a departure from its true intent to construe the warrant to be several as well as joint. But treating it as joint, as the plaintiff did, we are not disposed to follow the English case of Gee v. Lane, 15 East 592. The theory of judgments according to the English law has been so greatly changed in Pennsylvania by legislation, it will not do to follow English precedents too implicitly. The Act of 21st March 1872 required the 'day of the month and year, to be noted by the person signing judgments, and gave them effect only from that time, contrary to the custom by which they related to the first day of the term. By the Act of 6th April 1830, judgments against one of several joint obligors, copartners, promising, &c., shall not bar suits against those not served, nor those amicably confessing bar. By the Act of August 2d 1842, § 6., judgments against defendants at different times are made valid, and a scire facias may be issued to revive them as of the day of the last entry. And by the Act of 11th April 1848, § 5, a judgment recovered against one of several co-partners, joint and several obligors, &c., without a plea in abatement, shall not bar a subsequent suit against others not parties; and by the 3d section the death of one of the defendants shall not discharge his estate. Looking then to the wide departure of our law from the English rules affecting judgments, and also to the fact that the prothonotaries may, under the Act of 1806, enter judgment on a bond and warrant of attorney, and without the intervention of an attorney and confession of judgment, we must treat this case as one to be governed by tbe intent of the warrant, rather than by English decisions.

Judgment affirmed.


text:
    Fisk versus Duncan.
    1. Where one purchased three tracts of ground for a round sum, but secured all the unpaid purchase-money by a-mortgage upon only one of the tracts, talcing title thereto under a separate deed, Held, that although the original purchase was an entire contract, yet the parties to it by conveying the title under two separate deeds, and by securing all the unpaid purchase-money upon one tract, had severed it.
    2. Held, in an action upon this mortgage, that the purchaser could not set up as a defence thereto that the title to the other two lots, which were not included in the mortgage, had failed.
    November 23d 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 153.
    Scire facias by Eisk, to the use of Humphrey, against Duncan, upon a purchase-money mortgage of a tract of eighty acres sold by Eisk to Duncan, purporting to be “made for the better securing the purchase-money” of the said tract. Under a plea of payment with leave, &c., the defendant set up an alleged defect in the title to two other tracts of land, containing one and ten acres respectively, which he had bought from the plaintiff and which were together conveyed to him by a separate deed of special warranty. The defendant testified that the purchase of all three tracts was a single transaction, that the price agreed upon was a round sum, without regard to the price of each particular tract, that the property had been conveyed to him by two separate deeds at his own request, and that the mortgage in suit was given to secure the unpaid purchase-money on all the tracts. The two deeds bore date the same day. It was not disputed that Duncan’s title to the two smaller tracts was defective.
    It was agreed that the jury should find the damages sustained by the defendant by reason of the defect in the title to the one and ten acre tracts and that if the court should be of opinion that the defendant might show the failure of his title to those tracts as a defence to this action, then judgment should be entered for him for costs ; if otherwise, then judgment should be entered for the plaintiff for $500, with interest from August 9th 3871, together with five per cent, attorney’s commission. After argument the court below (Lowrie, P. J.) ordered a judgment on the reserved point for the defendant for costs; the plaintiff then took this writ of error.

      Gr. D. Davenport, for the plaintiff in error.

      G-uthrie Byles, for the defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court January 2d 1877.

It is well settled that a vendee of real estate may set up as a de-’ fence to a scire facias upon a purchase-money mortgage that the title has failed in whole or in part. Where, however, the purchase-money has been paid, and the title proves defective, the vendee in the absence of fraud can recover it back only upon the covenants in his deed.' If his deed contains no apt covenants for that purpose he ha's'no remedy: Steinhauer v. Witman, 1 S. & R. 438; Kerr v. Kitchen, 7 Barr 486 ; Cross v. Noble, 17 P. F. Smith 721. In this case the plaintiff sold to the defendant eighty acres of land on the 9th of August 1870, and upon that day took a mortgage upon the same to secure the sum of $2000, in which it was expressly stated that it was made for the “ better securing of the purchase-money of the above-described land.” It was not alleged as a defence to the scire facias issued upon this mortgage that there had been any failure of title to the eighty acres of land described therein. But the defendant sets up a failure of title to two other tracts of land, one containing ten acres and the other one acre, sold by the plaintiff to the defendant by another and separate deed of special warranty. It is very evident that if the purchase-money of the last-named pieces of land has been fully paid, the remedy of the defendant is upon the covenants in his deed, provided there are apt covenants therein. The contention of the defendant was, however, that the purchase-money on said lots had not been fully paid; that the three tracts were all purchased at the same time for the round sum of $3300, on which $1300 was paid in cash, and a mortgage given for the balance of the purchase-money on the eighty acre tract only; that the two smaller lots were conveyed to the defendant by a separate deed at his own request. The defendant was admitted to testify to this state of facts without- objection. Assuming the facts to be as stated by him we are unable to see how he is to be benefited thereby. The previous negotiations and understanding of the parties were merged in the deeds and mortgage. If the contract was originally entir.e it was competent.for the parties to divide it. When they came to close it up they did divide it. The defendant accepted a separate deed for the smaller lots, clear of any charge for purchase-money, and secured the entire balance of the purchase-money upon the eighty acres. This left nothing due upon the smaller lots. ‘If the title has failed as to these, and there are no apt covenants in the defendant’s deed to sustain a suit to recover back the purchase-money, it is his misfortune. The mortgage upon the eighty acres has been made by his own act a separate transaction, and be cannot now defend against it on the ground of a failure of title as to the smaller lots. It follows from what has been said that the learned judge of. the court below erred in entering judgment for the defendant upon the reserved question.

And now, January 2d 1877, the judgment is reversed, and judgment is entered in favor of the plaintiff upon the point reserved, for the sum of $500, with interest from August 9th 1871, together with five per cent, attorney’s commissions.


author: Mr. Justice Gordon

text:
    Appeal of the American Sewing Machine Co.
    1. Hershberg sold a lot to W. and took from the latter a mortgage for a balance of $2000 of the purchase-money. W. sold the same lotto Hall & Bosley and took from them a mortgage for a like amount. Both the morfcSiges were for the same debt and the payments were made to correspond. all & Bosley paid $1000 directly to Hershberg, it appeared, by direction of W. and the understanding was that the other $1000 was also to be paid to Hershberg. Hall & Bosley were indebted to the Second National Bank, and in pursuance of a settlement by them with the bank, the latter paid the remaining $1000 and took an assignment of the judgment from W. which he had entered on the bond accompanying his mortgage. The lot was sold under a subsequent j udgment of the bank against Hall & Bosley, and in the distribution of the fund the auditor allowed the bank the amount of the W. judgment, $2000, with interest. The bank had no notice of any arrangement that the payments on the mortgage were to be made to Hershberg. Held, that the judgment of W. was a valid obligation, as against Hall & Bosley, and when the bank, under its agreement with them, paid the money to W. and took his assignment of the judgment it was entitled to hold the same until paid; and it was not its duty to see that W. applied the money which he received to the payment on the Hershberg mortgage, as it had not so contracted and had no notice of such an arrangement.
    2. There can be no set-off on account of usury when the amount received by the bank is no more than the amount actually loaned.
    3. Where the debt and usurious interest have been paid and an action brought under the Act of Congress for the penalty, and an assignment been made of the suit, neither the assignor nor his creditors have any right to set off the usurious interest so paid against judgments obtained by a bank against the assignor where the usurious interest complained of was not on the judgments in controversy, but on other and antecedent notes.
    4. The costs in this controversy imposed upon the appellant, as they resulted from its own motion.
    November 23d 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Appeal from the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 126.
    This was the appeal of the American Buttonhole, Overseaming and Sewing Machine Company, from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of E. T. Hall and II. C. Bosley, on a fieri facias issued by H. M. Hall to the use of the Second National Bank of Titusville.
    The proceedings were as follows:. E. T. Hall and H. C. Bosley were partners in the sewing machine and real estate business in Titusville, in 1871-72, and part of 1873. Their commercial notes, endorsed by H. M. Hall, were discounted by the Second National Bank, and were renewed from time to time, with the same endorser. To secure II. M. Hall, on account of these endorsements, Hall & Bosley gave him two judgment-notes, one at sixty days, dated March 12th 1872, on which judgment was entered August 27th 1872, to No. 448, August Term, and the other at sixty days, dated June 10th 1872, for $1000, on which judgment was entered the same day to No. 449, August Term 1872.
    Judgment was also entered May 9th 1873, to No. 688, April Term 1873, for $404, on a judgment-note at sixty days, to secure H. M. Hall on account of his endorsement of the note of E. T. Hall, which was discounted by the bank on the individual account of the latter.
    ' On the 18th of July 1873, in pursuance of an agreement of all the parties with the bank, H. M. Hall assigned said judgments to the Second National Bank, and at the same time, as a part of the same settlement, two suits which E. T. Hall had brought against the bank, one in his own name and ohe in the name of Hall & Bosley, to recover usurious interest paid to the bank, were assigned to one of the directors of the bank.
    When this agreement was made, E. T. Hall was indebted to the bank in the sum of $9074.36, and the firm in the sum of $6532.16.
    Under the fi. fa. of II. M. Hall to the use of the bank, the sheriff sold two lots, one for $4100, and the other for $1100, to which he made a special return, setting forth the sales and certifying that the bank was a lien-creditor of said E. T. Hall and H. C. Bosley, and as such was entitled to the sum of $5200, for which he had taken the receipt of the bank, less costs, &c.
    The receipt accompanying the return was as follows:—
    On judgment No. 447, August Term 1872 (balance) $64.70
    On judgment No. 448, August Term 1872 . . . 1605.90
    On judgment No. 449, August Term 1872 . . . 1071.60
    On judgment No. 633, November Term 1872 . . 2073.30
    On judgment No. 688, April Term 1873 . . . . 321.55
    $5137.05
    Exceptions were filed to this special return by the defendants in the writ and the American Sewing Machine Company, who had a judgment to August Term 1873 against said defendants for $2000.
    Hall & Bosley bought the east lot from J. F. Wikoff, L. L. Lamb & Y. M. Hunter, who had purchased the same from H. L. Hershberg, giving him a mortgage thereon for $2500, for part of the purchase-money. It was dated August 10th 1871, recorded August 14th 1871, $500 of the amount to be payable November 10th 1872, $1000 August 10th 1872, and $1000 August 10th 1873, with interest on all sums unpaid. When Hall & Bosley bought this lot the $500 had been paid, and they gave Wikoff, Lamb & Hunter a purchase-money mortgage for $2000, payable in two instalments of $1000 each, on the same days as the Hershberg mortgage. This mortgage was made in the names of E. T. Hall and fl. C. Bosley. It is dated May 4th 1872, and was recorded December 27th 1872. This Hall & Bosley mortgage was for the same debt as judgment No. 633, November Term 1872.
    When Hall & Bosley bought the east lot from Wikoff, Lamb & Hunter,' and gave the mortgage to them, it was arranged that they (Hall & Bosley) should pay the money directly to H. L. Hershberg, to apply on the mortgage held by him, in satisfaction of the Hall & Bosley mortgage; and when the first instalment of $1000 became due, August 10th 1872, Hall & Bosley paid it, with interest on both instalments, to H. L. Hershberg, taking his receipt therefor, which they afterwards exchanged for a receipt from Wikoff, Lamb & Hunter. The Hall & Bosley mortgage was purposely made to correspond with the times of payment and balance ($2000) of the Hershberg mortgage, and to take care of said balance.
    The said payment of $1000 and interest was made to H. L. Hershberg, by direction of Wikoff, Lamb & Hunter. The records of said mortgages do not show said payment. The record of judgment No. 633, November Term 1872, shows an entry on the 8th of August 1873, assigning the second instalment of $1000 and interest of said judgment to the Second National Bank of Titus-ville, and setting forth that the first instalment had been paid. This assignment' was made in pursuance of the agreement heretofore alluded to, which contained this stipulation: “ Said bank is to assume, pay and take an assignment of the balance due on a bond and mortgage given by E. T. Hall and Henry C. Bosley to John E. Wikoff, L. L. Lamb and Y. M. Hunter, for balance of purchase-money due on a piece of land on West Spring street, Titusville, and being $1000 with interest from August 10th 1872.”
    Before the auditor it was contended, on behalf of the appellant, 1. That judgment No. 633, November Term 1873, was not entitled to any of the proceeds of sale in this audit, it being for the same debt for which the Hall & Bosley mortgage was given, said mortgage being a purchase-money mortgage on one of the lots sold by the sheriff in this case, and being for the same debt represented and secured by the Hershberg mortgage, which was prior to all other liens on the lot sold, and was not divested by the sale. 2. That if judgments Nos. 448 and 449 are entitled to be paid out of this fund, the amounts paid thereon by way of interest and discounts over and above legal interest should be credited upon the principal of said judgments.
    On the part of the bank it was argued:—
    1. That any arrangement about the payment by Hall & Bosley to Hershberg to apply on the mortgage held by him in satisfaction of the mortgage that said Hall & Bosley gave to Wikoff, Lamb & Hunter, cannot interfere with the rights of the bank, there having been no notice thereof. 2. That the lien of the second mortgage, viz., from Hall & Bosley to Wikoff, Lamb &. Hunter, was divested by the sheriff’s sale; and, 3. That two suits are pending, one by E. T. Hall and one by Hall & Bosley, against the said bank for double the amount of all the interest that E. T. Hall and H. C. Bosley paid to said bank, for two years before the beginning thereof, under Act of Congress of June 3d 1864, and usurious discounts cannot be deducted from any judgments in this audit.
    The auditor was of opinion that the bank was entitled to the amount of the judgment assigned to it, viz., $1000, and interest, and upon the question of illegal interest reported as follows:—
    “ The contention of the Sewing Machine Company assumes that usurious interest and discount were paid on the judgments ; but this is not correct. The evidence was that usurious discounts were paid on the commercial notes. The judgments were not usurious. The suits for double the amount of discounts were assigned to F. W. Ames at the time of the settlement of July 18th 1873. If he took the assignments for the bank it would be equivalent to a release of the claims; if for himself, and he has not settled with the bank, he holds whatever rights were legally transferred to him as against the bank. The auditor is not satisfied that he has power to reduce the judgments under the facts, and he declines to deduct the usurious discounts.”
    The auditor also reported that the costs ought to be paid by the company and the bank in equal proportions.
    To this report the Sewing Machine Company filed the following exceptions:—
    1. The auditor erred in applying any part of the fund to judgment No. 633, November Term 1872, that judgment being for the same debt secured by a first mortgage held by H. L. Hershberg, and subject to which the Second National Bank must be held to have purchased the property.
    2. In not applying the usurious interest found by him to have been received by the bank on the notes secured by the judgments assigned to it by H. M. Hall, to the reduction of said judgments in this distribution.
    3. In reporting that any part of the costs of this audit should be paid by the American Sewing Machine Company, exceptant.
    The court confirmed the report of the auditor and from that decree this appeal was taken.

      B. J. Reid, for appellant.
    Had the bank acted upon what it knew or was bound to know, and seen that the money was applied in satisfaction of the encumbrance created by Wikoff & Co., it could have taken the assignment of the Wikoff lien against the property, and it would then have been good and available in its hands. The sheriff’s sale would have brought an enhanced price, representing the unencumbered valué of the property ; the-bank would have got its money back out of the bid, and no injustice would have been done to the defendants or junior lien creditors. But by taking a different course, the bank got the property at $1073.50 less than its value at an unencumbered sale ; and if it is allowed to retain the entire bid ($1100) a great wrong will be done the defendants and their other creditors.
    In equity, as we have shown, the debt represented by the bond and mortgage assigned to the bank must be regarded as the same debt with that represented by the prior mortgage. How then can one be treated as not divested and the other as divested and entitled to come in upon the fund ? And if Wikoff & Co. could not have claimed this fund, how can junior lien creditors be prejudiced by their assignment of their lien to another party ?
    The usurious interest paid the bank ought to be applied in reduction of the principal in this distribution on the authority of Bachdell’s Appeal, 6 P. F. Smith 386; Building Association, 3 Phila. 453; Woodward v. Schmitt, 5 Id. 152; Borland’s Appeal, 15 P. F. Smith 470.

      Roger Sherman, for appellee.
    These mortgages were not for the same debt. One was the debt of Wykoff, Lamb & Hunter to Hershberg; the other the debt of Edward T. Hall & II. C. Bosley to Wikoff, Lamb & Hunter. There was no priority or agreement concerning it, except that Hall & Bosley would have declined paying Wikoff, Lamb & Hunter, unless they satisfied the mortgage they had given. A sale having been made upon a subsequent judgment, the lien of the judgment of Wikoff, Lamb & Hunter was divested. If divested, the proceeds of the sale applied to it.
    By the sheriff’s sale the bank sought to realize by application - of its bid $5137.05, being a deficiency of $395.11. It is conceded by the appellant that the bank, as assignee of the judgments, was entitled to avail itself of this to the extent of the debt. If all the alleged usury, $310.65, is deducted the bank will still not receive what is due to it.
   Mr. Justice Gordon

delivered the opinion of the court, January 2d 1877.

In this case we sustain the finding of the auditor and decree of the court, except so far as the disposition of the costs of audit are concerned; inasmuch as the appeal of the Second National Bank of Titusville from this same decree has been sustained, the appellant in this case should pay all costs,' as they result from its own motion.

Though judgment No. 633, Nov. Term 1873, the one in controversy, was the debt secured by the mortgage of Hall & Bosley to Wikoff and others, and was in fact security for the payment of the purchase-money mortgage of Wikoff et al. to Hershberg, it was, nevertheless, a valid obligation as against Hall & Bosley, and when the bank, under its agreement with them, paid the money to Wikoff, Lamb & Hunter, and took their assignment of this judgment, it was entitled to hold the same until paid. It may have been the duty of Wikoff, Lamb & Hunter to have applied the money which they received in relief of the property by payment of the Hershberg mortgage, but it was not the duty of the bank to see to such application, for it had not so contracted, neither had it knowledge that such application was either proper or possible.

As to the question of the defalcation of the usurious discounts, we have but to say : if the amount received by the bank was no more than sufficient to cover the amount of money actually received by Hall & Bosley, then no interest of a usurious or any other character has been paid and there can be no set-off on that score. If, however, the several debts and interest have been paid, they have themselves determined' their remedy by the suits which they brought, under the Act of Congress, for the recovery of double the amount of the alleged usurious interest, and as they have assigned all their rights in such suits to F. W. Ames, neither they nor their creditors have anything to set off. Had the usury complained of been paid on the judgments in controversy, the case would be different, for then it must be treated as payment fro tanto ; but as the auditor has found that such is not the fact, but that the unlawful interest, if paid at all, was paid on notes negotiated in 1872, it is clear to us that the conclusion arrived at in the court below is the correct one.

Decree affirmed and it is ordered that the appellant pay all costs.


text:
    Appeal of the Second National Bank of Titusville.
    1. Where real estate was purchased with partnership property and was used for partnership purposes, but the deeds by which the partners held the property were executed to them as tenants in common, the deeds, as to creditors, fixed the status of the property and that status could not be changed by parol.
    2. The Second National Bank held several judgments against II. & B., jointly, and one against H. individually. The fund arising from the sale of certain real estate belonging to II. & B. sold at sheriff’s sale was referred to an auditor for distribution. Although the deed for the property sold was to H. & B., as tenants in common, it was contended’ before the auditor that as it was in evidence the property was partnership property and that the bank had notice thereof, therefore the individual judgment of H. should not be allowed to participate in the distribution, which contention the auditor and court sustained : Held, that this was erroneous.
    3. The bank could not be affected by knowledge that the property was purchased with partnership funds or was partnership property, for as to its character the deeds which were of record determined that unalterably.
    November 23d 1876.
    Before Agnew, C.'J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Appeal from the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 166.
    This was the appeal of the Second National Bank of Titusville from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of E. T. Hall and H. C. Bosley.
    Before the auditor appointed to distribute the fund in this case, it appeared that on the 1st of July 1870, Edward T. Hall and Henry C. Bosley entered into partnership under the firm name of Hall & Bosley. They were engaged in the sewing-machine business at first, and afterwards partly in that business and that of dealing in real estate. Their office was in Titusville. One lot sold by the sheriff on the writ in this case was bought by said Hall & Bosley, about' January 1872, and upon this the firm afterwards erected a building. Another lot sold by the sheriff was bought by them in or about April 1872. The said lots were bought and the improvements made with partnership funds, and the lots and buildings were held and used for partnership purposes, but the deeds for said lots were made out to Henry C. Bosley and Edward T. Hall, in their individual names and without any reference to a partnership between them, and were recorded prior to August 27th 1872.
    When Hall & Bosley concluded to build on the west lot, an arrangement was made by which the Second National Bank of Titusville loaned them money for said improvement on their notes, endorsed by H. M. Hall. Said H. M. Hall and the cashier of said bank, G. C. Hyde, it was alleged, knew for what purpose this money was to be used, and that the lots were partnership property, and who composed the firm of Hall & Bosley.
    One of these notes, endorsed by H. M. Hall, ivas the individual note of E. T. Hall, and before the auditor it was contended, on behalf of the American Sewing Machine Company, a judgment-creditor of the partnership, that no part of the proceeds of this should be applied to any individual judgment against E. T. Hall, in preference to the Sewing Machine Company’s judgment against E. T. Hall and IT. C. Bosley as partners, the property sold having been partnership assets, and that the actual notice of the partnership received by the bank estopped it from making any claim upon the fund.
    The contention on the part of the bank was, that as the deeds for the two lots of land sold by the sheriff in this case are in the names of E. T. Hall and H. 0. Bosley, and were recorded before August 27th 1872, and nothing is said in them as to the land being partnership property, the deeds control in this distribution.
    The auditor was of the opinion that the bank had notice that the property was partnership property, and therefore was not entitled to any of the proceeds of the sale on the judgment against E. T. Hall.
    Exceptions were filed to this report, which were overruled by the court and the report confirmed.
    From this decree this appeal was taken.

      Roger Sherman, for appellant.
    The ruling of the court was in conflict with the principle of Ebbert’s Appeal, 20 P. F. Smith 79.

      R. J. Reid, for appellee.
    As to the effect of actual notice, McDermot v. Laurence, 7 S. & R. 441; Lancaster Bank v. Myley, 1 Harris 550; Vandike’s Appeal, 7 P. F. Smith 13; Overholt’s Appeal, 2 Jones 222; Nice’s Appeal, 4 P. F. Smith 201; Speer v.' Evans, 11 Wright 144; M. & M. Bank v. Bank of Penna., 7 W. S. 335; Magaw v. Garrett, 1 Oasey 322; Garrard v. Railroad Co., 5 Id. 158.
   Mr. Justice Gordon

delivered the opinion of the court, January 2d 1877.

This appeal is from the decree of the Court of Common Pleas of Crawford county, confirming the auditor’s report making distribution of «the proceeds of the-sheriff’s sale of real estate of E. T. Hall and H. C. Bosley.

The defendants, previously, and up to to the time of the sheriff’s sale, had been, and Avere, doing business under the name of Hall & Bosley. The appellant owned several judgments against these parties jointly, and one against E. T. Hall alone. This latter judgment Avas entered to April Term 1873, on a note to H. M. Hall, dated August 30th 1872, and was assigned to the bank July 18th 1873. The auditor finds, that the partnership was formed July 1st 1870, that the real estate, from which the money now for distribution was made, was purchased, and that the buildings thereon erected were paid for with partnership funds, and that said property Avas used for partnership purposes. He finds, however, that the deeds by Avhich they held the premises were executed to Henry C. Bosley and EdAvard T. Hall as tenants in common, without any reference to the partnership, and that they were recorded prior to the 28th of August 1872; that, at the time when Hall & Bosley determined to build on the lots thus deeded, the appellant loaned them money on their notes, endorsed by H. M. Hall; that said endorser and G. C. Hyde, the cashier of the bank, knew for what purpose this money was to be used, and that the lots were used as partnership property.

The auditor, thus -finding that the bank had notice that the premises were held and used as the property of the firm of Hall & Bosley, refused to allow the individual judgment against .E. T. Hall to participate in the fund, but gave preference to a subsequent one of The American Buttonhole, Overseaming & Sewing Machine Co. against Hall & Bosley. This was erroneous. As to creditors the deeds fixed the status of the property, and that status could not be altered by parol. As was said by Mr. Justice Agnew, in Ebbert’s Appeal, 20 P. F. Smith 79, “Partners, being the owners of the money which pays for the title, have the power of directing its application to suit their own purposes, and can, if they choose, always secure the identity of its character in the kind of title they ‘take for it. If, therefore, they take title to themselves, as tenants in common, instead of as partners, they, by their own election, stamp the character of the title as to those1 who afterwards deal with them.”

We cannot see, therefore, how the bank could be affected by knowledge that this property was purchased with partnership funds or used for partnership purposes; for, as we learn from the case cited, whether it shall bear the character of partnership or individual property, depended not on the funds or purposes with or for which it was purchased, but upon the will of the partners themselves. When, therefore, they took the conveyances to themselves as tenants in common, they did that which it was lawful for them to do, and so it mattered not whether their creditors knew or did not know that the property was purchased with partnership funds, for, as to them, the deeds, which were of record, determined its character unalterably.

Decree reversed and a re-distribution ordered. It is further ordered that the appellee pay all costs.


author: Chief Justice Agnew

text:
    The County of Lawrence and Overseers of North Beaver Township versus Eli Leonard et al.

    1. Testator directed the balance of his estate to be put at interest, in the county treasury, for ten years and the interest thereof yearly to be applied to the support of the poor of a certain township, and at the expiration of that time the interest to stop and the. principal to remain in the treasury for the use of the county forever. The court below being of the opinion that there was no trustee of the fund held that the legacy was too vague to be sustained and decreed it void'for uncertainty. Held to be error.
    2. It was clearly the intent of-the testator that the county should become the trustee, and as such it had the power to take and hold the property and administer the trust.

      3. The county being competent to take the fund as a trustee of the testar tor’s own appointment the vagueness of the trust or uncertainty of the subject of the charity is not material.
    November 23d 1876.
    Before Agnew, C. J., Sharsavood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Appeal from the decree of the Common Pleas of Lawrence county. In equity. Of October and November Term 1876, No. 48.
    This Ayas a bill in equity filed by the County of Lawrence and the Overseers of the Poor of North Beaver Township against Eli Leonard.
    The case was thus:—
    Abner Leonard, a citizen of North Beaver township, Lawrence county, about seventy years of age, died June 1st 1868, at his residence in said township, where he had lived for many years.. He left neither wife nor children. His estate consisted of real estate in the township and some personal property. His will, made in 1864, contained this provision:—
    “Whatever money may remain after the legatees are paid and the claims of the Commonwealth, if any, and my just debts, and the expenses of settling of my estate are all paid, the balance shall be put to interest in the county treasury, for ten years, of Lawrence county, and the interest yearly of it to bé applied to the support of the poor of North Beaver township. Then at that period they stop the interest, and keep all that is in treasury for the use of.the county forever.”
    Commencing in April 1870, the executors of said will paid, at different .times, into the county treasury the residue of said estate, amounting in the aggregate to about $4000, and for several years the county of Lawrence paid the interest on said money to the overseers of the poor of North Beaver township, who made claim to the same under the provisions of the will.
    In February 1875, Eli Leonard for himself and others Avho claimed to be the next of kin to Abner Leonard, deceased, filed this bill in equity, praying that the ahove clause in said will might be declared void for uncertainty and that the interest on the money paid into the county treasury from the time it was so paid for a period of ten years, should be paid to the plaintiffs.
    The county and the overseers of the township filed an answer, admitting the facts set forth in the bill, but averred,
    “ That at the time of the making of said will, there were poor persons in the said township of North Beaver, having a settlement therein, being public paupers, and a legal charge upon said toivnship, for whom the duly qualified overseers of poor of said toAvnship were providing and were supporting according to law, and that the said Abner Leonard, at the time of making his said will, ay ell knew these facts; and that at all times since the making of said will, there have been and now are poor persons, paupers, in the said township having a settlement therein, for whom the duly qualified overseers of the poor of said township have been providing.”
    The ease was argued on bill and answer, and the court decreed that the bequest was void for uncertainty and that the interest on the money for ten years should be paid to the next of kin of Abner Leonard.
    In an opinion the court said: “We think this bequest void for uncertainty as to its objects and the beneficiaries intended. The poor of the township are not described by the testator, and cannot be defined or ascertained with sufficient certainty to take or show in the testator’s intended bounty. The bequest is not vested in any one or anywhere. There is no trustee appointed by the will. Nor is there any trustee even designated by implication anywhere in the will to take the bequest and apply it. There is no discretionary power given to any one or vested anywhere to have control over the bequest or to carry it into effect by applying it to the support of the poor of the township.”
    After a review of the cases of Pickering v. Shotwell, 10 Barr 23; McGirr v. Aaron, 1 P. & W. 49; Witman v. Lex, 17 S. & R. 93 ; Zeiswess v. James, 13 P. F. Smith 465; Martin v. McCora, 5 Watts 495; Brown v. Filson, 8 Barr 335, and Missionary Society’s Appeal, 6 Casey 425, the court proceeded: “From these authorities we conclude that a charitable bequest may be sustained where the objects or beneficiaries of it are uncertain and incapable of being rendered certain, provided there is a trustee appointed or designated by the will capable of taking, with discretionary power, either express or implied, to carry the bequest or donation into effect; or where the objects and beneficiaries are defined and certain, and no trustee appointed or designated by the will, a trustee may be appointed by the court and directed by the same to carry the bequest into effect. But where the objects or beneficiaries are uncertain, and cannot in any way be rendered certain, and no trustee capable of taking the bequest or donation has been appointed or designated by the testator or donor, and. clothed with discretionary power over the bequest, gift or donation, a court of equity, will not in the exercise of arbitrary power undertake to appoint a trustee and define, describe or designate the objects, purposes or beneficiaries of the donation.
    “ The bequest is to be applied to the support of the poor of North Beaver township. Who are they ? There are degrees in poverty even. What class shall take, and who can draw the line and separate from the rest those entitled to share in the bequest; with whom begin to apply the support, and with whom leave off? This uncertainty in the beneficiaries of the bequest will render it void, unless according to the authorities cited, there is a trustee appointed or designated by the testator competent to take the bequest and clothed with discretionary power to apply it. We can find no such trustee named in the will. The executor of the will has no power over the bequest. The county treasurer has no control over it, nor have the county commissioners. Since there is no trustee, there can be no discretionary power vested anywhere by anything express or implied in the will, over the disposition of the bequest.”
    From the decree of the court this appeal was taken.

      Oscar L. Jackson, for the County of Lawrence, and L. L. McGruffin, for North Beaver Township.
    In Pennsylvania the poor of a township are a certain and well-known class. They are the paupers supported by the towmship. This is not only the meaning among the people generally, but is a common expression in our Acts of Assembly. Webster defines “ poor” in law to be those entitled to maintenance from the public.
    Charitable bequests lacking a trustee, and being indefinite, are provided for by Act of Assembly of April 20th 1855, sect. 10, Pamph. L., p. 331; Purdon 207, sect. 18. Besides this, the principles of the statute of 43 Elizabeth, c. 4, obtain- here: Witman v. Lex, 17 S. & R. 88. Bequests to the poor of any township are available and pass to the overseers of poor of such township: Act of Assembly of -March 9th 1771, sect. 15, 1 Sm. Laws 338 ; Purdon 1160, sect. 42.
    This bequest is entitled to the benefit of the rules relating to charities, and on general principles should be sustained: 1 Redfield on Wills 688, sect. 38; Id. 695, sect. 50; Gregg v. Irish, 6 S. & R. 210; Pickering v. Shotwell, 10 Barr 23.
    If this devise could be sustained in no other way, the county of Lawrence might be a trustee to carry out the purposes of the will: Mayor of Philadelphia v. Elliott, 3 Rawle 170. See also Cresson’s Appeal, 6 Casey 437 ; Domestic Missionary Society’s Appeal and the numerous authorities therein cited.

      Dana and Long, for appellees.
   Chief Justice Agnew

delivered the opinion of the'court, January 2d 1877.

The learned judge of the Common Pleas believing that there was no trustee of the fund in question was of opinion that the legacy of Abner Leonard for the support of the poor of North Beaver township was too vague to be sustained, and therefore that it failed. But he overlooked the effect of the will, which substantially gave the fupd to the county of Lawrence, and made it the trustee of the interest. The language is this: “ Whatever money may remain after the.legatees are paid, and the claims of the Commonwealth, if any, and my just debts and the expenses of settling up my estate are all paid, the balance shall be put to interest in the county treasury, for ten years, of Lawrence county, and the interest, yearly, of it to be applied to the support of the poor of North Beaver township. Then at that period they stop the interest, and keep all that is in the treasury for the use of the county forever.” The will was evidently written by an unlearned person. We must therefore search for the true meaning of the language used. The money was to go into the county treasury, the place where county moneys are kept. It clearly was not for the benefit of the treasurer, nor was it intended he should dispose of it, for at the end of ten years “they” were to stop the interest — that is, those persons who controlled the moneys of the county — then they were to “keep” the money for the use of the county for ever. Clearly the intent was to place the fund under the control of those who manage the county affairs, and these were the commissioners. The county, therefore, became the owner of the fund, and through its officers was to put it at interest, and apply the interest for ten years to the support of the poor of the designated township, and at the end of that term to become the full owner. Thus a trustee was appointed by the testator and the only question remaining is as to the capacity of the county to take as a trustee. On this point we perceive no difficulty. By the 3d section of the Act of 15th April 1834, counties and townships have capacity as bodies politic for certain purposes, the second enumerated being, “ to take and hold real estate within their respective limits, and also personal property.” Before the passage of this act it had been held in Vankirk v. Clark, 16 S. & R. 286, that the commissioners could buy in lands to secure a debt due to the county, and also could maintain suits in the name of the county. The Act of 1834 gave certain express powers to the county, one of which is the acquisition of property. A proviso to the words above quoted contains the following limitation: “ Provided, that such real and personal estate shall be taken and held for the benefit of the inhabitants of the respective county or township, and for such objects and purposes, and none other, as county and township rates are now or hereafter may be authorized by laAV to be laid and collected, and for such other objects and purposes as may hereafter be expressly authorized by law.” That the poor of a township or a county are proper objects of the public care, and may be supported by taxation, it needs no argument to prove. They stand much nearer to the public heart than many other charities do, determined to be valid when held by municipal corporations. Eor example, a bequest to a city to expend the income in planting shade trees : Cresson’s Appeal, 6 Casey 437. The charity being public in its character, and such as a municipal corporation may serve, the extent of it is immaterial. The township is a district of the county for the support of the poor, and the legacy to tbe county is in ease of that portion of the people of the county. The mere naming of the class of persons to whom the charity is to be given does not change its nature, which is one that may be administered by the larger or smaller municipality, as convenience may dictate. The legacy, therefore, falls within one of the objects for which a county or a township may take and hold property, and therefore is not outside of the proviso limiting the power of the county. In addition to this reasoning the principle of the case is sustained by the following authorities maintaining the power of a municipal corporation to administer a trust: Philadelphia v. Cresson, 3 Rawle 170; Vidal et al. v. Philadelphia, 2 How. 127; Philadelphia v. Non, 14 P. F. Smith 170; Girard v. Philadelphia, 7 Wall. 14; Oresson’s Appeal, 6 Casey 437. The county being competent to take the fund as a trustee of the testator’s own appointment, the vagueness of the trust or uncertainty of the subjects of the charity is not material. This is well settled by authority: Witman v. Lex, 17 S. & R. 88; Pickering v. Shotwell, 10 Barr 23; The Domestic and Foreign Miss. Soc.’s Appeal, 6 Casey 425; Zeiswess v. James et al., 13 P. F. Smith 425.

Decree reversed, and the plaintiffs’ bill dismissed with costs to be paid by them.