author: Sharswood, J.

text:
    Reading et al. versus Finney et al.

    1. Unseated land is the debtor for taxes and may be sold no matter who may be the owner or in whose name assessed.
    2. If the owner be not in default in the payment of taxes demanded of him his title cannot be divested.
    3. Payment of the tax, whether by the owner or any one else, will avoid the sale.
    4. Neither assessors nor a stranger can by the division of an entire tract without the knowledge of the owner affect his title.
    5. The unseated land acts contemplate taxation,by single tracts following the title of the owner.
    6. Where an entire tract is divided and returned without the consent of the owner, and both parcels are taxed, it is 'a double assessment.
    7. A mis-statement of the number of acres in a tract will not vitiate a sale of the whole.
    8. A warrant was originally assessed as 990 acres, afterwards it was assessed in two parcels as 559 and 150 acres ; it was sold to the commissioners as 559 acres. Held, that by this sale the commissioners acquired title to the whole warrant.
    9. An_ intruder had the 150 acres marked off without the consent of the owner ; it was assessed as such and sold for taxes. JSeldj that the purchaser acquired no title.
    10. Biddle and Noble, 18 P. F. Smith 279, distinguished; Brown v. Hays, 16 Id. 235, followed.
    March 28th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.

      Error to the Court of Common Pleas of JElh county: Of January Term 1873, No. 22.
    This was an action of ejectment, brought December 17th 1870, by John G. Reading and Charles Bartles against A. C. Einney and others, for a tract of land in Jay township, containing 154 acres more or less.
    The tract is part of warrant No. 4896 to Wilhelm Willink, surveyed July 18th 1794, as 990 acres, in Clearfield county. The survey was interfered with by other warrants surveyed in 1785, known as the “ Creek Surveys,” so that warrant and survey No. 4896 could hold but 790 acres. The plaintiffs claimed the 154 acres under one Joel Woodworth, who they alleged had marked off from the east side of the 790 acres and occupied this tract which he estimated to contain 150 acres; it was sold for taxes in 1852, in Elk county, in which it then was; Elk county having been erected in 1844 and this part of Clearfield county included in it, the plaintiffs claimed under that sale.
    Warrant No. 4896 had been assessed as 559 acres in Clearfield county, sold for taxes in 1832, bought by the commissioners of that county; in 1838 the commissioners sold it to Josiah W. Smith, by metes and bounds, describing the whole of warrant No. 4896, except that part covered by the “ Creek Surveys.” The defendants claimed the 150 acres as part of warrant No. 4896, and as included in the tax sale to the commissioners, and the sale of the commissioners to Mr. Smith.
    The question was whether the 150 acres were so separated from the rest of the survey, as to exclude them from the operation of the tax sale of the warrant as 559 acres in 1832.
    The case was tried August 6th 1872, before Vincent, J.
    The plaintiffs gave in evidence the warrant and survey to Willink, of No. 4896; assessment in Clearfield county for 1826, No. 4896; 150 acres to Joel Woodworth and for 1829, same. They gave evidence that this 150 acre tract was sold for taxes for the years 1845 and 1846 in the name of Peter Clark, and treasurer’s deed to Selah Morey, acknowledged September 25th 1847. Deed, November 22d 1847, Selah Morey to Erasmus Morey; assessment 1846, 1847, in the name of Peter Clark, 150 acres, No. 4896; taxes paid by Erasmus Morey. Assessment 1850, 1851, Erasmus Morey 150 acres, No. 4896, sold for taxes June 14th 1852, and treasurer’s deed October 8th 1852, made to William P. Luce; assignment May 6th 1854, Luce to Charles W. Blake. Deed, December 29th 1854, Blake to John Gibson, all for the same 150 acres. Will of Gibson proved March 21st 1865, authorizing his executors to sell his land in Elk county. Deed, July 11th 1866, executors of Gibson to plaintiffs for same land.
    The assessments given in evidence in Clearfield county of No. 4896, were as follows:—

      1813. No. 4896 990 acres Owner unknown. Val. $125.
    1821. “ Wilhelm Willink. “ 249.
    1823. a k ii “ 742.
    1826. 159 Joel Woodworth. “ 119.
    559 Gilliam Demorest. “ 137.
    1829. 350 Joel Woodworth. “ 54.
    559 Alexander Boyd. “ 205.
    1832. 150 (No name.) “ ' 37.
    1833. 150 Joel Woodworth. 37.
    1838. 150 Peter Clark. 38.
    1841. 559 Wilhelm Willink. 278.
    1842. 150 Peter Clark. “ 150.
    1843. Il It “ 150.
    (I It “ 150.
    Plaintiffs gave evidence further, by the deposition of Oliver Gardner that Woodward claimed to own the 150 acres about 1820; a man named Gellatt claimed to own afterwards and sold to Clark. Erasmus Morey’s testimony was about the same; he testified also that he did not know from whom Woodworth bought.
    Charles Webb testified that between 1823 and 1831, he met Woodworth, who said he was going to make an improvement in the north-east part of No. 4896; witness had not heard of his claiming the land before that time.
    Plaintiffs gave evidence that Woodworth whilst he claimed to own the land said it had been surveyed off. They gave evidence also, of a survey counting from 1822, which contained 157 acres strict measure.
    The defendants gave in evidence, assessment 1813 of No. 4896, in Clearfield county, “ owner unknown” 990 acres. Deed, Alexander Boyd to Gilliam Demorest, of No. 4896, 1050 acres. Assessment in 1821, 1823 in the name of Willink, 990 acres, 1826, No. 4896, 559 acres; “Demorest,” 1829,No.4896, 559 acres, “Alexander Boyd.” From treasurer’s unseated land book from 1822 to 1832 inclusive: “ 1830 Alexander Boyd, No. 4896, 559 acres, Gilliam Demorest.” Sold to county commissioners at sales of 1832, Gilliam Demorest, No. 4896, 559 acres and conveyed to them by treasurer’s deed, acknowledged January 2d 1833.
    Deed, commissioners of Clearfield county dated February 3d 1838, to Josiah W. Smith; the boundaries in the deed include all No. 4896, except the part cut off by the “ Creek surveys” ; the recital was, “ being part of a larger tract of land which was surveyed 18th of July 1794, in pursuance of a warrant dated February 3d 1784, granted to William Willink and known by No. 4896, containing 990 acres, &c.
    Assessment, 1838. No. 4896 559 acres Willink.
    “ 1841, 1842, 1843. “ “ J. W. Smith.
    Taxes paid by J. W. Smith March 19th 1844. No. 4896, 1841, 1842,1843 — “ Willink.” “Taxes paid by J. W. Smith, 559 acres.” Elk county, 1844, No. 4896, 559 acres “paid in full March 9th 1848, by J. W. Smith.”
    Smith conveyed to William Woodman, June 14th 1847, all the tract No. 4896 as described in the deed from the county commissioners to him. The title of Smith was admitted to be in the defendants.
    The defendants gave in evidence also surveys of the whole of No. 4896, as claimed by them.
    The plaintiffs, in rebuttal, gave evidence by 0. Gardner, that he had lived near the property since 1828; the first owner of the 150 acres of whom he had knowledge was Potter Goff; he conveyed to Joel Woodworth; he to Richard Gellatt; he sold to Clark, and the land for several years was called Clark’s land; witness did not recollect any survey of the 150 acres; had no pfersonal knowledge of the boundaries; Woodworth exercised acts of ownership over the 150 acres and paid taxes on it.
    The following are points of the parties with their answers:—

      Plaintiffs’: “5. If the jury believe that the hemlock, and line running south therefrom of 1822 (or 1828) were marked for the western boundary of the 150 acres, assessed successively to Wood-worth, Clark and Morey, the plaintiffs are entitled to recover all the land east of said boundary.”
    Answer: “This is correct, if you believe that Woodworth had any title from the original warrantees, or that he could assert against them, and that Smith did not acquire by deed from the commissioners their title to the whole, as we have explained in our general charge.”
    • “ 6. If the jury believe that Joel Woodworth’s claim to 150 acres, was designated by marks on the ground severing it from the remainder of the warrant, leaving 559 acres and upwards remaining, and that the assessment of warrant 4896, in two parts, of 150 acres and 559 acres respectively, prior to 1852, as well as since, had reference to such a division, then defendants have no title to the land in controversy, and the plaintiffs must recover.”
    Answer: “ It does not follow that plaintiffs can recover even if you find the facts as stated. It may be that defendants have no title to this 150 acres, but it does not follow that plaintiffs have; and in such a case, the defendants being in possession, have the best position, as we have explained in our general charge.”

      Defendants’: “ 2. The deed from the commissioners to Josiah W. Smith gave to him and to those holding under him, such a title as entitled them to be treated by the assessors and commissioners, as owners of said lands within said boundaries, and entitled them, so far as respected taxation of said land, to all the rights of owners, and especially so as against the present plaintiffs, whose title originated by tax sale long after the Smith title had been acquired and put on record.”

      Answer: “ This is correct, unless the plaintiffs have a title good as against original warrantee, as we have explained to you.”
    “ 4. The assessors and commissioners of Elk county, could not under the circumstances in evidence, lawfully make a separate assessment and sale of 150 acres out of the piece which was assessed as 559 acres, without the knowledge and consent of the owners of that piece, and such assessment and sale, if made, conferred no title.”
    Answer: “ This is correct, but we leave to you as a fact who was the owner of the 150 acres as explained in our general charge.”
    In charging the jury the court said: * * *
    “ The whole title held by Smith to the land in dispute, by virtue of his deed from the commissioners of Clearfield county, is now vested in the present defendants, and it is a good prima; facie title against anybody, except, perhaps, the original warrantees, or their heirs or grantees. * * *
    4< The plaintiffs must recover on the strength of their own title, and not on the weakness of the defendants’, and until they show such a title in Woodworth as could be asserted against the real owner of the land, they cannot recover.”
    The verdict was for the defendants.
    On the removal of the record to the Supreme Court, the plaintiffs assigned for error the answers to the points and the foregoing portions of the charge.

      J. Gf. Mall, for plaintiffs in error.
    Sale of unseated land for taxes passes the title to the purchaser in whose name soever taxed: Strauch v. Shoemaker, 1 W. & S. 166. It was the duty of the owner to return the correct amount of his land, and he cannot complain that the part omitted is taxed separately and sold: Williston v. Colkett, 9 Barr 38. There was an actual separation of the 150 acres; it could therefore be taxed and sold by itself: Biddle v. Noble, 18 P. F. Smith 279.

      J. M. Orvis and J. Linn (with whom was J. £. MoLnally), for defendants in error.
    Woodworth was an intruder and could not question the validity of the treasurer’s or commissioners’sale: Troutman v. May, 9 Casey 455; Dikeman v. Parish, 6 Barr 210; Shearer v. Woodburn, 10 Id. 512. The severance must be by the owner of the tract: Brown v. Hays, 16 P. F. Smith 229.
   The opinion of the court was delivered, May 17th 1873, by

Sharswood, J.

It is certainly true, that under the Acts of the General Assembly, providing for the sales of unseated lands for taxes, the land is the debtor, and is subject to sale without regard to the ownership; no matter in whose name it may be assessed: Strauch v. Shoemaker, 1 W. & S. 166. Rut it is also true that these acts, and the decisions of this court in the construction of them, have not neglected to look to the protection of the rights of the owner, so that if he is not in default in the payment of the taxes on the land demanded of him, his title cannot be divested. Hence, proof of the actual payment of the tax avoids the sale. Nay, if the tax be paid, though not by him, it will avail him; for if two men have surveys which interfere with each other, and he whose warrant and survey are junior, pays the tax on all the land included in his survey, and he who has the senior warrant and survey, does not, and the land surveyed to him is sold for taxes, such sale will pass no title to the interference on which the tax has, been paid by the other: Hunter v. Cochran, 3 Barr 105. Hence, also, it is not in the power of the assessors — much less of a mere stranger or trespasser — by the division of an entire tract without his knowledge and consent, to jeopard his title. “The acts relating to the assessment of lands,” says Mr. Justice Agnew, “are plain, and require the assessor to assess and return the lands in his township in single tracts, according to their ownership. He may follow the sale or division of the tract by the owner; but he has no power himself to cut up the property of a single owner and return it in parcels. The acts on the subject are collated by Huston, J., in Morton v. Harris, 9 Watts 326, showing conclusively that the entire process of assessment, from the beginning to the end, contemplates taxation and sale by single tracts, following the title of the owner:” Brown v. Hays, 16 P. F. Smith 235. Where an entire tract is divided and returned without the act or consent of the proprietor, and both parcels are charged with taxes, either by the number of the warrant or the name of the original warrantee or subsequent owner, it is a case of double assessment; for nothing is better settled than that a misstatement of the number of acres contained in a tract will not vitiate a sale of the whole. In Williston v. Colkett, 9 Barr 38, a tract was originally assessed in the name of the warrantee for nine hundred and ninety-nine acres'. During subsequent years the amount was reduced as sales were made. It was finally assessed as two hundred acres, when in fact it contained six hundred. A treasurer’s sale, made under such an assessment, was held to pass the title to the whole six hundred. Brown v. Hays, already cited, is a remarkable illustration of the same doctrine. There was an assessment of a tract of one thousand and twenty-six acres by the original number of the warrant, and the name of the warrantee in Polk township, Jefferson county. By the division of the township, a part of it was thrown into a new township, named Heath, and there separately assessed as three hundred acres. The taxes on the entire tract in Polk township, though assessed as only seven hundred and twenty-six acres, were paid by the owner. It was held that the purchaser, at a tax sale of the three hundred acres assessed in Heath township, took no title. “ The number of acres,” says Mr. Justice Agnew, is simply descriptive, and would not overturn the number of the tract, the name of the warrantee, and the duty of the assessor.” It seems to follow logically from these premises, that the return and assessment of warrant No. 4896, in this case, without the knowledge and consent of the owner to such division, was wholly without warrant of law. The tract was assessed at first in the name of Wilhelm Willink, for nine hundred and ninety acres. From 1826, it appears on the book in two parcels ; one of one hundred and. fifty acres, in the name of Joel Woodworth, and the other of five hundred and fifty-nine, in the name of Gilliam D’emorest. Demorest paid the taxes for 1826-7-8. In 1829 and 1830, it was assessed in the name of Alexander Boyd. In 1832 the treasurer sold it to the commissioners of the county for unpaid taxes of 1830 and 1831, and a deed was duly made to to them for the said tract as five hundred and fifty-nine acres. The entire tract, including both parcels, was omitted from the assessment list from 1832 until 1838, that is, during the period of time that the title was in the county. The cases cited, I think, show that the commissioners, by the treasurer’s deed, acquired title to the whole tract No. 4896. They so considered, and when in 1838 they sold to Josiah W. Smith, they conveyed to him by metes and bounds the entire tract, as it was claimed by the owner. It was less, indeed, than the amount returned in the original survey, because there were older warrants and surveys, which cut off a part of it by interference. Hence, the deed to Josiah W. Smith, after describing the land by metes and bounds, recites it as “ being part of a larger tract of land which was surveyed July 18th 1794, in pursuance of a warrant dated 3d February 1794, granted to Wilhelm Willink and others, and known by No. 4896, containing nine hundred and ninety acres.” There is certainly nothing in this recital which limits the previous description of the land. Subsequent to 1838, Smith and his assigns paid the taxes on the whole tract as five hundred and fifty-nine acres, including the taxes of 1850 and 1851, for non-payment of which the parcel assessed as one hundred'and fifty acres was sold to Luce, under whom the plaintiff below claimed. Upon this evidence, the instruction of the learned judge to the jury was right. If you believe that Woodworth had the boundaries of his claim of one hundred and fifty acres actually marked on the ground, and returned to the assessor as his land, with the knowledge of the real owner, a sale of it for taxes would give the purchaser a good title. But an intruder, such as Woodworth, appears to have been, cannot by such separate claim and assessment acquire a title against the real owner who does not assent to such division, and who pays taxes on the whole tract.” We think the plaintiff in error has no right to complain of the charge of the learned judge.

It has been strongly urged, however, that an actual line run on the ground by any claimant, with or without title, was sufficient authority to the assessor to return such survey as a separate tract. The assessor, it is said, has nothing to do with the title. He returns the tracts as he finds them on the ground. Perilous, indeed, would be the condition of the owner if such were the law. The assessor finds a line marked by trees in the wilderness, and is told that somebody claims that part of what he knows to be one entire tract, under an original survey. He returns it as a separate tract for taxation. The owner, ignorant of this transaction, pays all that he is charged with for the tract he holds. He assumes the number of acres described in his deed to be the true content of his survey. He sleeps in security, but wakes up to find that, perhaps, the most valuable part of his property has been swept from him, without his default. It is supposed that Biddle v. Noble, 18 P. F. Smith 279, supports the contention, that all that is required to sever a tract of unseated land for taxation, is a line actually marked on the ground. But this is a misapprehension of that case. The entire tract there was seated, in consequence of a settlement upon part. The owner sold to the settler, two hundred acres where the improvement was, so as not to interfere with the claim of any other settler. It was held that in the absence of a line on the ground, made with notice to the vendor, there was no severance, and that a sale of the remainder of the tract as unseated was void. Judgment affirmed.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Dundas’s Appeal. Lippincott’s Appeal.
    1. The Orphans’ Court alone has authority to ascertain the amount of a decedent’s property and order its distribution.
    2. The Orphans’ Court in the distribution of an estate amongst legatees, next of kin and heirs has power to inquire into and determine all questions standing directly in the way of distribution.
    3. The Orphans’ Court has jurisdiction for the recovery of a legacy although not charged on land.
    4. A residuary legatee before the amount of his share was ascertained, assigned it to the wife of an executor for a sum much less than was ascertained to be its value. He petitioned the Orphans’ Court for a decree against the executors to pay him Ins legacy, setting out the assignment and alleging that it was obtained by fraud. Meld, that the Orphans’ Court had jurisdiction.
    5. In the distribution of an estate in the Orphans’ Court, each must be heard in support of his claim and in opposition to every claimant interfering with it; the power to decide all questions, essential to distribution follows the power to distribute.
    6. Kittera’s Estate, 5 Harris 416 ; Whiteside v. Whiteside, 8 Harris 473, followed.

      March 31st 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Appeals from the decree of the Orphans’ Court of Philadelphia : No. 164, to July Term 1871, and No. 218, to January Term 1872. In the estate of James Dundas, deceased.
    This proceeding commenced April 15th 1871, by the petition of William Oswald Dundas, a legatee under the will of James Dundas, the decedent.
    The petition set out, that the decedent died about July 4th 1865, having made his will which was proved July 10th 1865, and letters testamentary granted to Joshua Lippincott, James Dundas Lippincott and Richard Smethurst, the executors named in it; that the petitioner was one of the residuary, legatees under the will, and that his share would be about one thirty-second of said estate; the executors filed an inventory of the personal estate, amounting to $366,455.08, and an inventory for collateral inheritance tax purposes, of both real and personal estate, in which the real estate was appraised at $655,871.28, the whole amount of the valuation after allowing for debts, expenses, &c., amounted to $886,814.15, exclusive of an interest which the decedent had in the estate of Henry Pratt, deceased; that about the 6th of July 1866, the petitioner having then received about $5000 of his legacy, was informed by Joshua Lippincott, one of the executors, that it would be many years before he could receive any material benefit from the estate, by reason amongst other things of embarrassments in working the coal-mines belonging to the estate, &c., and that it would take a great while before any accurate valuation of the estate could be made; that the petitioner at the time was in very necessitous circumstances, and in great want of money, and influenced by these discouraging representations by the executor, he wrote to him on the subject of purchasing his (the petitioner’s) interest in the residue of the decedent’s estate; that the executor replied in writing to him that as executor he could not make the purchase, but that the owners of the other portion of the residue might purchase the interests of the petitioner and his sisters, who each had an interest equal to his own; the executor invited a further correspondence; the owners of the other portion of the residue were the wife of the executor and his •son and daughter; the sisters of the petitioner declined to sell their interests; the executor wrote again to the petitioner saying, that he had the papers prepared for the conveyance of petitioner’s interest to Mrs. Lippincott, and the petitioner’s necessities continuing, he ágain opened negotiations with the same executor for the sale of his interest; that the executor represented to him that the executors had made an estimate of his share in the estate of the decedent; that it would be $13,842.57, and after deducting what had already been paid to him, would leave a balance of $8870.30 still due him; that the executors represented that the valuation mentioned was a full, just and equitable valuation, but that Mrs. Lippincott, from regard to petitioner’s' wife, had agreed to make the sum $10,000 ; the petitioner relying wholly on the executors’ representations, agreed to accept $10,000 for his interest, and on the 17th of November 1866, delivered a deed, assigning his interest- to Mrs. Lippincott; he averred that he was entirely ignorant of the value of the estate and had no means of obtaining information except from the executors, and charged that the executors withheld the settlement of the estate for the purpose of inducing the petitioner and his sisters to sell their interests for less than their value; that the $10,000 paid to him was paid from the proper moneys of the estate of the decedent; that Smethurst, one of the executors, afterwards died, and the surviving executors afterwards filed an administration account on the 27th of April 1867; that before the auditor appointed by the Orphans’ Court on that account, the petitioner gave notice that he designed to contest the validity of his conveyance to Mrs. Lippincott, and the representations as to the value of his interest were repeated both by the executors and Mrs. Lippincott; that the executors purchased the shares of the sisters of the petitioner for $20,000 each, in addition to $8203.02 previously paid each of them on account of their shares; that the auditor refused to entertain the petitioner’s claim for the balance of his share in the estate; that he offered to pay Mrs. Lippincott “ the principal, interest and expenses of the conveyance,” if she would reconvey to him his interest in the decedent’s estate; by his petition he continued the offer of repayment with any expense attendant upon the reconveyance.
    The petitioner averred that the conveyance was void by reason of its having been made to the wife of an executor; because the consideration was greatly below the value of the interest sold, and because the petitioner had been induced to execute it “ through misrepresentations, concealments and impositions practised upon him in regard to the value of his interest,” and because the money paid him for the conveyance was the money of the estate of the decedent.
    He further charged that the conveyance, if not void, could be treated only as an acknowledgment of the receipt of $10,000 on account of the petitioner’s share of the decedent’s estate, or as a security for the return of the.money advanced to him.
    The prayer of the petition was that the court would set aside the deed of assignment to Mrs. Lippincott and order it to be given up to be cancelled, and that she be decreed a trustee of the interest of the petitioner, and that she and her husband, the executor, be directed to reconvey the interest to the petitioner, he repaying her the sum of $10,000, expenses, &c., and that the executors pay to the petitioner his full share of the estate, he allowing any sums which have been paid to him; and that the auditor be directed to suspend the settlement of the account until, &c.; and also a prayer for a citation to Mrs. Lippincott, Joshua Lippincott, her husband, and the surviving executors of James Dundas, deceased, to show cause, &c.
    The respondents demurred to the petition on the ground that the court had no jurisdiction of the matters set out in the petition.
    The Orphans’ Court sustained the demurrer, Paxson, J., saying in the conclusion of'his opinion :—
    “ While we do not think we have jurisdiction to entertain the present application, and to grant the relief prayed for, we are not entirely powerless in the premises. We can reach the substantial justice of this case by impounding the share of Mr. Dundas’s estate in controversy, and directing the executors to hold it, properly invested, until the petitioner can be heard in a court of equity. Having our grasp upon the fund, we will hold it until the questions now raised can be decided in the appropriate tribunal.
    “With this qualification we sustain the demurrer, and dismiss the petition.”
    The decree was as follows:—
    “June 24th 1871. Demurrer sustained, executors however directed to hold the shares of the estate in controversy and keep the same properly invested until the further order of the court.”
    The petitioner and Mrs. Lippincott each appealed to the Supreme Court.
    The petitioner assigned for error that the court sustained the demurrer and dismissed the petition.
    Mrs. Lippincott assigned for error that the court directed the executors to hold the shares until the further order of the court.

      A. M. Burton and Black, for petitioner.
    The power of the Orphans’ Court to distribute involves a power to decide all questions necessary to a proper distribution: Kittera’s Estate, 5 Harris 416; 1 Story’s Eq. Jur., sect. 547; Whiteside v. Whiteside, 8 Harris 473; Ashford v. Ewing, 1 Casey 214. A deed may be impeached and shown to be a nullity in any court where it is pleaded or set up, or in any proceeding where it is sought to be established as a ground of recovery: Jackson v. Summerville, 1 Harris 359; Bixler v. Kunkle, 17 S. & R. 298; Rankin v. Porter, 7 Watts 387; Dean v. Fuller, 4 Wright 474; Delamater’s Estate, 1 Wharton 362; Mechling’s Appeal, 2 Grant’s Cases 157; Parshall’s Appeal, 15 P. F. Smith, 224. The acknowledgment of a deed for the wife’s land may be shown by evidence to have been obtained by fraud and duress of the wife, and thus avoided: Louden v. Blythe, 3 Casey 22; McCandless v. Engle, 1 P. F. Smith 313; Schrader v. Decker, 9 Barr 14. Within its orbit the jurisdiction of the Orphans’ Court is exclusive, and, therefore, as extensive as the demands of justice: Shollenberger’s Appeal, 9 Harris 337; Witman & Geisinger’s Appeal, 4 Casey 376. In giving general jurisdiction of a particular subject, the legislature impliedly gives every ancillary power necessary to the exercise of it: Barklay’s Estate, 10 Barr 387; Loomis v. Loomis, 3 Casey 233; Shollenberger’s Appeal, 9 Harris 337; Will’s Appeal, 9 Barr 103 ; Hickman’s Appeal, 7 Id. 464; Anshutz’s Appeal, 10 Casey 375 ; Brinker v. Brinker, 7 Barr 53; Downer v. Downer, 9 Watts 62; Mohler’s Appeal, 8 Barr 26; Sheaffer’s Appeal, Id. 38; Wallace v. Keyser, 1 P. F. Smith 493; Hughes’s Appeal, 7 Id. 181.
    This is a trust under the Wills Act of 14th of June 1836, sect. 15, Pamph. L. 632, 2 Br. Purd. 1417, pl. 15; Saeger v. Wilson, 4 W. & S. 501; Lukens’s Appeal, 7 W. & S. 48; Hunt v. Moore, 2 Barr 105 ; Miller’s and Wilhelm’s Appeal, 6 Casey 478, 491; Shuman’s Appeal, 3 Casey 64; Heager’s Ex’rs, 15 S. & R. 65; Barton v. Hassard, 3 Drury & Warren 461; Fox v. Mackreth, 2 Brown’s C. C. 400; Devoue v. Fanning, 2 Johnson Ch. 252. The conveyance or assignment to the wife of one of the executors can have no greater effect than that of a release directly given to the executors, the validity of which is clearly within the jurisdiction of the Orphans’ Court: Dundas’s Appeal, 14 P. F. Smith 325. Where an estate is purchased in the name of one, but the purchase-money is actually at the time paid by another, a trust results in favor of him who paid the purchase-money: Beck v. Uhrich, 1 Harris 636. If there be any evidence to impeach the bona fides of an assignment under seal the assignee may be required to give full proof of consideration: Hancock’s Appeal, 10 Casey 155. A release obtained by executors from the cestui que trust, by payment of about half the money due, is fraudulent and void: Bixler v. Kunkle, 17 S. & R. 298; Pearsoll v. Chapin, 8 Wright 9, 13-16. This is a case where the transfer is effected through an agent who was a trustee, and the fraudulent acts and declarations of the trustee in procuring the transfer are binding upon the transferee: Ex parte Bennett, 10 Vesey 381; Randall v. Errington, Id. 423; Hill on Trustees, pp. 158, 159, 537. Á decree for a reconveyance may be obtained in the Orphans’ Court: Lewis v. Lewis, 1 Harris 82. The Orphans’ Court has the superintendence of the property of’decedents in almost every respect and may make all persons accountable in that court into whose hands such property came: Wimmer’s Appeal, 1 Whart. 104 ; Musselman v. Bell, 15 P. F. Smith 480.

      S. 8. Hollingsworth and (?. W. Biddle> for Mrs. Lippincott.—
    As to the jurisdiction of the Orphans’ Court, cited Act of 16th June 1836, § 19, Pamph. L. 792, 2 Br. Purd. 1104, pl. 8. While the Orphans’ Court has the powers of a court of equity in the orbit of its statutory jurisdiction, it has not general equity powers: Brinker v. Brinker, 2 Barr 53; Shollenberger’s Appeal, 9 Harris 337 ; Willard’s Appeal, 15 P. F. Smith 265.
    The jurisdiction to distribute the assets and surplusage of the estates of decedents among creditors and others interested does not embrace the present case, because a distribution of the estate of the decedent is not asked for: Acts of April 13th 1810, sect. 1, Pamph. L. 319; 29th March 1832, sect. 19, Pamph. L. 194; 1 Br. Purd. 445, 446, pl. 198, 200; Boyer’s Estate, 5 Watts 50; Kittera’s Estate, 5 Harris 416; Ashford v. Ewing, 1 Casey 213; Dundas’s Appeal, 14 P. F. Smith 332.
    The Orphans’ Court has no jurisdiction “where trustees may be possessed of or are in any way accountable for any real or personal estate of a decedent,” except in cases where the trust is created and exists under and by virtue of a will, or appointment by the Register or Orphans’ Court: Wimmer’s Appeal, 1 Wharton 103; Act of 14th June 1836, sect. 15, Pamph. L. 632, 2 Br. Purd. 1417, pl. 15; Wheatly v. Badger, 7 Barr 459; Brown’s Appeal, 2 Jones 333; Fretz’s Appeal, 4 W. & S. 433.
    The alleged trust in the present case does not arise under or by virtue of a will, or by appointment of the Register or Orphans’ Court, but if there'be one it is by implication of law: Hill on Trustees, pp. 144, 158, 159, and note 2; Id. 536, 537 ; Chesterfield v. Janssen, 2 Ves. Sen. 125.
    The alleged trust in a manner affects the estate of the decedent: Hill on Trustees 536 and notes, 537; Beeson v. Beeson, 9 Barr 279; Coles v. Trecothick, 9 Vesey 247; Delamater’s Estate, 1 Wharton 362; Armor v. Cochrane, 16 P. F. Smith 310; Fox v. Mackreth, 1 L. C. in Eq. 107.
    If the sale be treated as a sale from one distributee to another, then the Orphans’ Court has no jurisdiction: Wickersham’s Appeal, 14 P. F. Smith 67.
   The opinion of the court in each appeal was delivered, May 17th 1873, by

Agnew, J.

Dundas’s Appeal.

The decision of the Orphans’ Court in this case was against its own jurisdiction, and in this there was error. It was said by Black, C. J., in Whiteside v. Whiteside, 8 Harris 473, “if there be anything, besides death, which is not to be doubted, it is that the Orphans’ Court alone has authority to ascertain the amount of a decedent’s property, and order its distribution among those entitled to it.” The exclusiveness of this jurisdiction is sustained by numerous modern decisions, to a few of which I may refer: Shollenberger’s Appeal, 9 Harris 341; Ashford v. Ewing, 1 Casey 213; Black’s Executor v. Black’s Executor, 10 Casey 354; Musselman’s Appeal, 15 P. F. Smith 480. The contest between tbe courts and tbe legislature spoken of by Lewis, C. J., in Bull’s Appeal, 12 Harris 286, as to the extent of this jurisdiction, was settled by the Act of 18th of April 1840, Brightly’s Purdon 300, pl. 167. That act authorized the Orphans’ Court to appoint auditors on the application of the creditors, as well as of executors and administrators, and on the application of legatees, heirs or other persons interested, to make distribution of the estate in the hands of executors and administrators, to and among the persons entitled to the same. In Kittera’s Estate, 5 Harris 416, it was said this embraced creditors, next of kin, and legatees. “ The right of each (says Judge Lewis) to be heard in support of his claim, and in opposition to every claimant who interferes with it, is necessarily involved in the right to demand payment.” Further on he says : “ The power to decide all questions necessary to- a proper distribution of the fund follows the power of distribution and vests in the Orphans’ Court as a necessary incident to the jurisdiction. That court is as competent as the Common Pleas, to determine all questions of law, as the judges of both courts are the same, and the Orphans’ Court has ample authority to send an issue to the Common Pleas for the trial of facts by the jury:” Sect. 45, Act 29th March, 1832, Bright. Purdon, p. 768, pl. 55. This language is repeated with emphasis in Bull’s Appeal, supra, and in Black’s Executor v. Black’s Executor, supra. Thompson, J., repeats the remark of Woodward, J., in Shollenberger’s Appeal, supra, that the jurisdiction of the Orphans’ Court, “within its appointed orbit, is exclusive, and therefore necessarily as co-extensive as the demands of justice.” It is very clear, therefore, that the Orphans’ Court, in a proceeding to distribute an estate among legatees, next of kin and heirs, has ample power to inquire into and determine all questions standing directly in the way of a distribution to these parties.

The specific remedy given to a legatee to recover his legacy comes in here to strengthen the general jurisdiction and puts an end to all question. It is said, in a very excellent treatise on the Intestate System of Pennsylvania, by E. G. Scott, Esq., p. 450, that the Orphans’ Court has no jurisdiction for the recovery of a legacy, unless the same is charged upon or is payable out of real estate. But the learned author probably meant no exclusive jurisdiction. The 47th section of the Act of 24th February 1834, relating to executors and administrators, provides, that “ executors, after one year has elapsed from the granting of administration of the estate, upon the requisition of any legatee, or any other person interested, shall pay and deliver under the direction of the Orphans’ Court having jurisdiction of their accounts, all such legacies as are due and payable by them, &c., &c., and if there shall be a residue, distributable under the intestate laws of this Commonwealth, they shall also distribute the same, and the proceedings, in any such case, shall in all respects, whether of security or otherwise, be the same as hereinbefore provided in the cases of distribution by administrators of the estates of decedents intestate, so far as the nature of the case will admitVide sections 39, 40, 41, Act of 24th February 1834, Purdon by Brightly 302, pl. 176, 177, 178. This act is followed by the Act of 16th of June 1836, relating to the jurisdictions and powers of the courts, which, in the 7th clause of the 19th section, confers upon the Orphans’ Court express jurisdiction, in “ Proceedings for the recovery of legacies;” Brightly’s Purd. p. 765; The jurisdiction being thus beyond doubt, the manner of proceeding is equally clear, and is specifically set forth in the 37th section of the Act of 29th of March 1832, Bright. Purd. 766, pl. 17, 18, et seq. This is by the petition of any person interested, whether such interest be immediate or remote, setting forth facts, necessary to give the court jurisdiction, the specific cause of complaint, and the relief desired, and supported by oath or affirmation. The acts cited were reported by the commissioners to revise the laws, and are to be viewed together, as constituting an harmonious system for the settlement of estates of decedents, and the government of the Orphans’ Court.

Thus it is very'clear, that every legatee has a personal remedy in the Orphans’ Court, for the recovery of his own legacy, and the Act of 29th of March 1832, also furnishes ample means of reaping the fruit of a recovery by execution, attachment and sequestration. Upon this petition, if necessary, the Orphans’ Court would be bound to appoint one or more auditors under the Act of 13th April 1840, supra, to make distribution, or if a proceeding is already in progress, a decree upon the incoming petition of the legatee would await the report. Each legatee or distributee is entitled to proceed for the recovery of his own legacy or share. It is true, that legatees have an additional remedy by action of debt, detinue, account render, or on the case, against executors having sufficient assets to pay the debts and legacies : Act of 24th February 1834, § 50. But the common-law form of action is inconvenient and carries the remedy into a court having no jurisdiction to settle the executor’s account, and hence the act provides, that on a plea of a want of assets the action must be suspended until an account is settled in the Orphans’ Court, and the amount of the legacy, or its pro rata, ascertained: Sect. 53, Purd. by Brightly 3103, pl. 188.

It remains now to inquire, whether this petition conforms .to the 57th section of the Act of 29th March 1832, by setting forth facts necessary to give the Orphans’ Court jurisdiction. It plainly does. It sets forth the will of the late James Dundas, duly proved and registered, the bequest to the children of William H. Dundas, in equal shares, their number, and that the petitioner is one of them, and his proportional share, the issuing of letters testamentary to the executors, the filing of an inventory and settlement of two accounts showing large assets, to a share of which the petitioner is entitled, and prays that the surviving executors shall pay over to the petitioner the full amount of his share and interest in the estate, as soon as the same shall be ascertained, after allowing for, and deducting all sums of money that the petitioner has received. These facts give jurisdiction to the Orphans’ Court, to compel distribution by the executors, and payment of the petitioner’s share to him. Had the petition set forth nothing more the consequence would have been plain. The executors, to protect themselves, would have set forth the assignment in their answer, and cited the assignee to defend pro interesse suo. This would have brought from the petitioner a replication of fraud and deceit, in procuring the assignment. The paper thus standing in the way of distribution, there being two claimants to the same legacy or share of it, the jurisdiction of the Orphans’ Court necessarily attaches, in order to remove the barrier to the payment of the legacy. The language of Judge Lewis, in Kittera’s Estate, directly applies, that each one must be heard in support of his claim, and in opposition to every claimant who interferes with it, and that the power to decide all questions essential to distribution follows the power to distribute.

The Orphans’ Court having power to determine whether the petitioner or his alleged assignee is entitled to payment of the legacy, it is evident the court is not deprived of its jurisdiction, by the setting forth of the alleged fraudulent assignment in the first instance, followed by appropriate prayers to have it set aside, and for a citation to the assignee.

Indeed, the proceeding in this form, is better adapted to decide the controversy at once preliminary to final distribution. The parties are all brought in at once, and the decree will finally dispose of the whole controversy, leaving the executors free from doubt as to the person to receive payment. Nor are we wanting in authority as to the power of a court in a distribution proceeding to determine the title of contesting claimants to the same fund as an incident of the distribution. In Souder’s Appeal, 7 P. F. Smith 498, it was held, that the auditor making distribution of money arising from a sheriff’s sale, had power to determine' the ownership of a judgment between contesting claimants, and that the defeated claimant under the Act of 1886, relative to executions, was entitled to demand an issue: See the cases cited therein. The petition in this case is unnecessarily prolix, and sets forth matters of evidence merely. But substantial facts are set forth, sufficient to give the court jurisdiction to determine the ownership of the legacy and decree payment to the plaintiff, if he be entitled to receive it.

The decree of the Orphans’ Court sustaining the demurrer is therefore reversed, the demurrer overruled, and a 'procedendo awarded, and the defendants are ordered to pay the costs of this appeal, the costs below to abide the event of the proceeding.

Lippincott’s Appeal.

The decision in Dundas’s Appeal, just rendered, makes it unnecessary to discuss this case. The petition of William O. Dundas, being reinstated and a procedendo awarded, the retention of the shares of the estate in controversy in the power of the Orphans’ Court, until the further order of the court, is necessary, to answer the claim of the successful party, when the litigation is ended. So much of the decree of the court is therefore affirmed, with costs to be paid by the appellant.


author: Read, C. J.

text:
    Seventh National Bank versus Cook.
    1. A check was drawn to Cook, Barnes endorsed Cook’s name without his authority and received the money ; the bank deducted the check from the drawer’s account and settled with him on that basis. Held, that Cook could recover the amount of the check from the bank.
    2. The conduct of the bank was an acceptance and bound it as a certified check would.
    April 1st 1873.
    Before Read, C. J., Ag-new, Sears wood and Merour, JJ. Williams, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 1664, to July Term 1871.
    This was an action of assumpsit brought March 16th 1871, by David Cook against the Seventh National Bank; the suit was brought on the following check which the bank refused to pay the plaintiff under the circumstances detailed in the evidence:—
    “ Philadelphia, August 12th 1869.
    SEVENTH NATIONAL BANK.
    Pay to the order of D. Cook, one hundred and seventy-four x%°5 dollars.
    $174t%% James Greenwood.
    (Endorsed) D. Cooke.
    J. C. Barnes.”
    The case was tried April 13th 1871, before Stroud, J.
    James Greenwood, the drawer of the check, testified that he had bought oil from plaintiff through his agent J. C. Barnes; he gave the check in suit to Barnes for a bill of oil; witness received his check back again when his account at the bank was balanced; the bank had paid the check. Witness generally gave checks for oil to Barnes; witness always had sufficient funds in the bank to meet the check.

      The deposition of the plaintiff was read. He testified that he had got the check from Greenwood after it had been cancelled at the bank and returned to Greenwood; he presented it twice at the bank and demanded payment, which was refused; the cashier of the bank knew at the same time that his name as endorser was not written by himself; plaintiff did not know of the check until about a week after it had been given, when he called on Greenwood for payment for the oil sold; the check was not endorsed by plaintiff or by his authority. He gave other evidence that the endorsement was not his signature.
    For the defendant Barnes testified, that he had been employed by plaintiff to sell oil; that he also kept the plaintiff’s books; sometimes when plaintiff was out of town witness received checks and endorsed them for him; plaintiff had told witness to do it; witness received the check from Greenwood, put the endorsements on it, drew the money, credited it on plaintiff’s books to Greenwood and charged himself with it on the book; next day he told the plaintiff that he had done so and demanded a settlement; the plaintiff owed him more money than that; plaintiff had told witness to collect this sum from Greenwood, and if it was paid by a check to endorse it.
    There were a number of points submitted by the defendant, which the opinion of the Supreme Court makes it unnecessary to note.
    The court charged: * * *
    “ The only question is whether Barnes had authority to endorse the check for Cook, the plaintiff, and upon that I leave the case with you.
    “ The check is drawn payable to the order of David Cook, but that is the same as if it were payable to David Cook; the plaintiff is the only one who can maintain an action upon it.
    “ The defendant says the check was paid under the endorsement upon it. If the plaintiff had authorized Barnes to endorse it for ■ him, that would be a good defence, and the only appropriate one. * * * If the jury find from the evidence that J. C. Barnes had either a general authority to endorse the checks which he received in the course of his collections for the plaintiff; or, that the plaintiff afterwards assented to the endorsement of the check now sued on, he is not entitled to recover in this suit.”
    The verdict was for the plaintiff for $174.50.
    The defendant took a writ of error and amongst other things assigned the charge for error.

      W. S. Price, for plaintiff in error,
    cited Bank of Republic v. Millard, 10 Wallace 152.
    There was no argument or paper-book for defendant in error.
   The opinion of the court was delivered, May 17th 1873, by

Read, C. J.

James Greenwood was indebted to David Cook for oil sold, and in payment gave a check on the defendants, The Seventh National Bank, for $174.50, to J. C. Barnes, a clerk of the plaintiff, payable to the order of D. Cook. Mr. Barnes endorsed it with the name of D. Cook, and his own name, drew the money, and appropriated it to pay an amount due him by his employer, and made the proper entries on the books of D. Cook. The plaintiff refused to recognise the acts of his clerk, and obtained the cancelled check from Greenwood, presented it to the bank, was refused payment, and then commenced this suit. The court charged the jury that “ the only question is, whether Barnes had authority to endorse the check for Cook, and upon that I leave the case with you,” and the jury found a verdict for the plaintiff Cook, for the amount of the check. Upon the argument the counsel for the-bank cited but one ease, Bank of Republic v. Millard, 10 Wallace 152, and contended the holder of the check could not recover against the bank. It was in evidence that the bank had paid the check when presented by Barnes, and that upon settlement of Greenwood’s bank-book, the check was returned with other checks, cancelled, and of course charged against the depositor. This brings it within the exception stated by the Supreme Court of the United States towards the close of their opinion in 10 Wallace: “ It may he if it could be shown that the bank had charged the check on its books against the drawer, and settled with him on that basis, that the plaintiff could recover on the count for money had and received, on the ground that the rule ex cequo et hono would be applicable, as the bank, having assented to the order, and communicated its assent to the paymaster (the drawer), would be considered as holding the money thus appropriated for the plaintiff’s use, and, therefore, under an implied promise to him to pay it on demand.”

On the merits, therefore, the case was for the plaintiff.

It is, in fact, an acceptance, and binds the bank as a certified check does. “It is tantamount to an acceptance of the draft.” There is nothing in the other assignments of error.

Judgment affirmed.


author: Sharswoód, J.

text:
    Riesz’s Appeal.
    1. Specific performance of an agreement to sell real estate will not be de- ' creed against a vendor, a married man, whose wife refuses to join in the conveyance, unless the vendee is willing to pay the full purchase-money and accept the deed without the wife; if not, he must resort to his action at law for damages.
    2. No abatement which can be made in the price on the ground of the wife’s right of dower, will be just to both parties without making anew contract for them.
    3. Bitner v. Brough, 1 Jones 127, referred to as to damages.

      April 1st 1873.
    Before Read, 0. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Philadelphia: In Equity, of July Term 1871, No. 218.
    On the 2d of June 1869, Samuel Sailer filed a bill against John Riesz and Margaret Riesz, his wife.
    The bill set out:—
    1, 2. On the 29th of May 1867, Riesz, with the consent and concurrence of his wife, the other defendant, entered into an agreement with the plaintiff to sell him á messuage and lot of ground on Girard street, Philadelphia, for $2125, subject to a ground-rent of $112.50, to be paid when the title should be examined and the deed prepared, and on the same day the plaintiff paid Riesz $50 as part of the purchase-money.
    3, 4. On the same day Riesz and wife delivered to the plaintiff possession of the premises, and the plaintiff then executed to Riesz a lease of the same for three years from May 29th 1867, and Riesz accepted it and entered into possession of the premises and still held the possession under the lease.
    5, 6. As soon as the title was examined and the deed prepared, the plaintiff tendered it to the defendant in accordance with the . agreement, and also tendered him $2075, the balance of the purchase-money, but the defendants positively refused to receive the purchase-money and execute the deed; plaintiff has ever since been willing to pay the balance of the purchase-money and receive the deed; he still tendered the purchase-money and was willing to pay it into court.
    One of the prayers of the bill was that the defendants be directed to execute and deliver to plaintiffs a deed of the premises in accordance with the agreement, upon payment of the purchase-money, &c.
    The answer admitted that Riesz consented to sell the premises as set out in the agreement; that his wife never concurred in the sale, but on hearing that it had been made, expressed her determination not to become a party; that Riesz at the time of the agreement was temporarily of unsound mind, as soon as he got well he tendered the plaintiff the $50, and offered to pay all expenses incurred by the plaintiff, but the plaintiff refused the offer. They denied having delivered possession of the premises to the plaintiff; they admitted that they refused to execute the deed and receive the purchase-money.
    The matter was referred to Thomas K. Einletter, Esq., as examiner and master.
    As master h'e reported the material facts substantially as set out in the bill and answer; that the defendants peremptorily refused to accept the purchase-money and execute and deliver a deed for the premises to the plaintiff; there was no evidence that the wife was consulted about the contract of sale, but with knowledge of it had not expressed opposition to it. The price agreed on was not alleged to be unfair or inadequate.
    The report of the master as to the facts, having, after exceptions, been confirmed by the court, the matter was referred to Joseph A. Clay, Esq., as master, with instructions to report what amount of the purchase-money should be retained by the plaintiff on mortgage as compensation for any claim that the wife might make against the premises for dower as widow.
    He reported: * * *
    . “ The position of the plaintiff is analogous to that of a vendee claiming specific performance in equity, but willing to accept a part performance, from the inability of the vendor to perform the contract in full. In such a case the vendee has a right to demand a performance pro tanto with a compensation for the deficiency by an abatement of the purchase-money: Ervin v. Myers, 10 Wright 96; notes to Seaton v. Slade, 3 Wh. & Tud. Lead. Cas. in Eq. *460, 461, 489; Story Eq. sect. 779, &e. The only difference between cases of this description and that now before the master is, that here, the defect in title, though actual, and rendering it unmarketable, is nevertheless contingent, and such as cannot result in .actual loss to the vendee, unless the wife of the vendor shall Survive him. The deduction from the purchase-money must therefore be contingent, and also the sum retained must be received in such a manner as may insure its payment to the vendor, if he shall survive his wife, or its absolute retention by the vendee, if the wife shall become entitled to her dower and shall recover it. A mortgage of the premises themselves with proper conditions will fulfil these requirements, and it only remains to fix the amount.
    “ The claim of Mrs. Riesz, if it ever accrues, will be for one-third of. the property for her life. Such a claim is very far from being equal in value to the fee of one-third. On the other hand, the plaintiff, if he takes title, will be unable to sell or dispose of the property in any way, except at a sacrifice; while, if the premises appreciate in value in the future, the amount of the claim for dower may be greatly increased.
    “ Upon consideration of these contingencies, the master reports that the plaintiff, on receiving from, the defendant, John Riesz, alone, a conveyance in fee of the premises described in the bill, shall pay to the defendant sixty per cent, of the purchase-money stipulated in the agreement of sale, first deducting the par of the ground-rent of $¡112.50, and shall execute a bond and mortgage of the premises to the defendant for the remaining forty per cent., conditioned for the payment of the principal to the said John Riesz, upon and immediately after the death of his wife Margaretta, if he shall survive her: otherwise, and if the said Margaretta shall survive her said husband, and shall claim, and receive or recover her dower in the premises, then the said bond shall be cancelled and the mortgage satisfied of record, and the sum secured thereby shall belong to the plaintiff, and shall no longer be demandable of him. If the said Margaretta shall survive her husband and release or relinquish her claim of dower, then the said principal sum shall be paid to the legal representatives of the said John Riesz. The interest in the meanwhile is to be paid to the said John Riesz during his lifetime, or until he shall become entitled to the principal by the death of his wife in the said lifetime; but if the said Margaretta shall survive him, then all payment of interest shall cease at his death.” * * *
    After exceptions, the court (Allison, P. J.) confirmed this report and decreed:
    1. That the defendant, John Riesz, alone, do, within thirty days from the date of this decree, execute and deliver a deed of the premises mentioned in the agreement set forth in the pleadings, dated the 29th day of May, A. D. 1867, to the plaintiff, his heirs and assigns, in fee simple.
    2. That the plaintiff upon receiving from said defendant alone such conveyance in fee of said premises, do pay to said defendant sixty per cent, of the purchase-money stipulated in said agreemens, first deducting, &c., * * * and execute a bond and mortgage of said premises to said defendant for the remaining forty per cent., conditioned for the payment of the principal to said defendant upon and immediately after the death of his wife Margaretta, if he shall survive her; and if the said Margaretta shall survive said defendant, and shall recover her dower in said premises, then said bond to be cancelled and said mortgage satisfied of record, &c.; * * * the interest to be paid to said defendaftt during his lifetime, or until he shall become entitled to the principal by the death of his wife in his said lifetime. * * *
    6. That the bill as to defendant, Margaretta Riesz, be dismissed without costs and without prejudice to her as to any claim she may hereafter have against said premises for dower or thirds, as the widow of defendant, John Riesz.
    The defendant, John Riesz, appealed to the Supreme Court, and assigned the decrée for error.

      H. S. Hagert and 6r. W. DedrieJc, for the appellants. —
    Chancery will not aid in any shape to enforce a contract to which the wife’s assent is necessary, but will turn the plaintiff to an action at law for damages: Morton v. Mitchell, 2 Jac. & W. 425 ; Emery v. Wase, 8 Vesey 515; Frederick v. Coxwell, 3 Y. & J. 514; In the matter of Jane Hunter, Edwards’s Ch. Rep. 6; Clark v. Seirer, 7 Watts 107; Riddlesberger v. Mintzer, 7 Watts 142; Shurtz v. Thomas, 8 Barr 363; Bitner v. Brough, 1 Jones 128; Hanna v. Phillips, 1 Grant 253 ; Weller v. Weyland, 2 Id. 104. The court will not enforce specific performance by the husband, with compensation to the vendee, for the wife’s interest: Clark v. Seirer, supra. For a contingent liability with another, the proper compensation is not abatement but indemnity: Milligan v. Cooke, 16 Vesey 12; 2 Story’s Eq. Jur., sect. 779 ; Calverley v. Williams, 1 Vesey 210; Calcraft v. Roebuck, Id. 221; Thomas v. Dering, 1 Keene 746; Halsey v. Grant, 13 Ves. 78. Equity gives no compensation for a defect which was obvious to the senses, or one of which the vendee was in fact apprised: Clark v. Seirer, supra ; Mortlock v. Buller, 10 Vesey 316; Waters v. Travis, 9 Johns. 450 ; Howell v. George, 1 Madd. Ch. 1; Fordyce v. Ford, 4 Bro. C. C. 494; Burnell v. Brown, 1 Jac. & W. 168; Dyer v. Hargrave, 10 Vesey 506; James v. Litchfield, 9 Eq. C. 51; Vigers v. Pike, 8 C. & F. 65; Castle v. Wilkinson, Law Rep. 5 Ch. App. 534; Harnet v. Yielding, 2 Sch. & Lef. 553.
    Specific performance with compensation cannot be decreed when the amount of compensation cannot be satisfactorily ascertained and adjusted: Thomas v. Deering, 1 Keene 747; Thompson v. Morrow, 5 S. & R. 289.
    The decree that vendor shall make a title on the payment of but 60 per cent, of the purchase-money, and to take security for the balance, is to vary the contract: Halsey v. Grant, 13 Vesey 73; Horniblow v. Shirley, Id. 81; Clowes v. Higginson, 1 V. & B. 526; Phila. & R. R. Co. v. Lehigh Coal & Nav. Co., 12 Casey 204.
    To decree specific performance with indemnity would be to inquire, not whether a good title could be made, but how to provide against abad one: Denne v. Cooper, 1 Vesey Jr. 567, note; unless with consent of both parties: Aylett v. Ashton, 1 Mylne & Craige 114; Ridgway v. Gray, 1 Mac. & G. 109; Balmanno v. Lumley, 1 V. & B. 224; Paton v. Bretner, 1 Bligh 66.

      T. E. McElroy and E. 0. Quinn, for appellee.
    If Sailer has a right to a decree for specific performance in the absence of a wife, he has the right to it, notwithstanding her existence, if he chooses to waive her signature to the deed, and this he has done : Corson v. Mulvany, 13 Wright 88; Riddlesberger v. Mintzer, 7 Watts 143; Shurtz v. Thomas, 8 Barr 359; Findlay v. Keim, 12 P. F. Smith 112. In analogy to this rule, that although equity will not compel a husband to procure the wife’s signature, yet it will compel him to execute a deed alone, if the vendee chooses to accept it: Fisher v. Worrall, 5 W. & S. 478; Fry on Specific Performance, §§ 286, 289. Sailer has a right to a decree for a deed from appellant alone, coupled with an indemnity against the wife’s dower: Fry on Specific Performance, §§ 289-306. When the inability of the defendant to fulfil the contract is set up as a bar to the relief sought by complainant, the latter is entitled to have the contract fulfilled as far as practicable, and to obtain compensation or indemnity on those points which do not admit of fulfilment: 2 Story Eq. Juris., sects. 779 and n. 1, 796; Seton v. Slade, 3 L. Cas. in Eq. 71-2, 89 note; Fry on Specific Performance, sect. 299; Adams’s Equity 89; Mortlock v. Buller, 10 Vesey 315 ; Mestaer v. Gillespie, 11 Vesey 661; Paton v. Rogers, 1 Vesey & Beames 351; Todd v. Gee, 17 Vesey 273; Hill v. Buckley, Id. 394, 401; Wood v. Griffith, 1 Swans. *43, *55; Welthorpe v. Holgate, 1 Collyer’s Ch. Reports 203; Milligan v. Cooke, 16 Vesey 1; Erwin v. Myers, 10 Wright 96; Napier v. Darlington, 20 P. F. Smith 64 ; 2 Story Eq. Juris., sects. 794, 799 ; Graham v. Oliver, 3 Beav. 124; Ery on Specific Performance, sect. 810; Parsons on Contracts 414 and note (c); Wollam v. Hearn, 2 L. Cas. in Eq. 700; Seton v. Slade, 3 Id. 89; Wilson v. Williams, 8 Jur. N. S. 810 ; Springle v. Shields, 17 Alabama 295 ; Clark v. Reins, 12 Grattan (Va.) 98; Young v. Paul, 2 Stockton’s (N. J.) Ch. Rep. 401.
   The opinion of the court was delivered, May 17th 1873, by

Sharswoód, J.

It is not proposed to enter upon an examination and review of the cases which have been decided in England and our sister states upon the question presented upon this appeal. Great industry and ability have been exhibited by the learned counsel on both sides, in their printed and oral arguments, and it is but just to say that no suggestion or authority appears to have escaped them. But we consider the point as definitely settled in. this state in the opinion of Chief Justice Gibson, in Clarke v. Seirer, 7 Watts 107, recognised and affirmed as it has been in many subsequent cases: Riddlesberger v. Mintzer, 7 Watts 143; Shurtz v. Thomas, 8 Barr 363; Bitner v. Brough, 1 Jones 138; Hanna v. Phillips, 1 Grant 256; Weller v. Weyand, 2 Id. 102. These cases settle, if any amount of authority can settle anything, that in Pennsylvania, specific performance of an agreement to sell real estate will not be decreed against a vendor who is a married man, and whose wife refuses to join in the conveyance so as to bar her dower, unless, indeed, the vendee is willing to pay the full purchase-money, and accept the deed of the vendor without his wife joining. The policy of these decisions is very manifest. The wife is not to be wrought upon by her love for her husband, and sympathy in his situation, to do that which her judgment disapproves as contrary to her interest; nor is he to be tempted to use undue means to procure her consent. The vendor must be left in such cases to his action at law to recover damages. The principles upon which damages are recovered, and the measure of them, under different circumstances in such an action, are well explained in Bitner v. Brough, 1 Jones 127.

The same sound policy which forbids a decree for the execution of a deed by the husband — to be enforced by his imprisonment if he cannot obey — prevents any decree looking to compensation, abatement or indemnity. The case does not fell-within the principle of those decisions, where the vendor who cannot make title to all he has contracted to convey, is held to be not thereby relieved from specific performance as far as in his power; but shall be compelled to execute his contract with a reasonable abatement in the price. The right of dower of the widow is of such a contingent nature, depending as it does as well upon her surviving her husband, as on her continuance in life after his death, that no abatement in the price can be made which will be just to both parties, without in effect making a new contract for them; a contract which, perhaps in the first instance, neither party would have come into, certainly not the vendor. Receipt of the purchase-money in full may have been the main object of the sale to enable him to pay debts or carry 'out other plans. If he is to be subjected to serious pecuniary loss by his wife’s refusal to join, it will operate almost as- powerfully as the peril of his imprisonment, as a moral coercion and compulsion upon her to yield her consent, instead of that free will and accord which the law jealously requires her to declare by an acknowledgment upon an examination before a magistrate, separate and apart from her husband. The learned master, Mr. Clay, to whom it was referred to report what amount of the purchase-money should be retained by the vendee upon mortgage, as a compensation for him for apy claim the wife might thereafter make against the premises for dower, reported that in his opinion not less than forty per cent, of the price should be left in his hands for that purpose; a result no doubt just as to him, but how as to the vendor, who was personally in no default ? No stronger argument could be adduced to show the impolicy of making any decree. Specific performance is a matter of grace, and these are considerations which address themselves powerfully to the conscience of the chancellor.

Decree reversed. And now it is ordered and decreed that the bill be dismissed without prejudice; the costs in the court below and in this court to be paid by the complainant.


author: Per Curiam.

text:
    Pennsylvania Railroad Co. versus Patterson.
    1. The Act of May 15th 1857, for the sale of the public works, required that “ immediately” after the purchaser should take possession, he should “ thereafter keep up in good repair and operating condition the line of said railroad and canal,” &e., the same to “ be and remain for ever a public highway and kept open and in repair by the purchaser, * * * for all parties desiring to use and enjoy the same.” By Act of May 3d 1864, it was declared that by the Act of 1857, the Commonwealth required the purchasers of the main line to keep the canals “in a condition of repair, &c., which shall be equal to the condition of repair, &e., in which the same were at the time the Commonwealth delivered the same into the purchasers’ possession.” Held, that under these acts the purchasers were bound to keep the canals in good repair and operating condition, although they may not have been in such repair when delivered to them.
    2. The duty was immediate on taking possession as respects its obligation but not as to the time of its performance; the purchasers were entitled to a reasonable time commensurate with the magnitude of the works to make repairs.
    3. If the purchasers did not commence the repair in a reasonable time and pursue it with diligence, they were liable for negligence to the owner of canal-boats for such injury as he thereby sustained.

      4. The purchasers were not responsible for unavoidable accidents by sudden storms or floods, if the canals were repaired as soon as reasonably practicable.
    5. The rule as to the measure of damage stated in this case.
    January 20th 1873.
    Before Read, C. J., Agnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.
    Certificate from Nisi Prius.
    This was an action on the case, commenced August 9th 1866, by Adolphus Patterson against the Pennsylvania Railroad Company. The action was against the company as owners of the canal between Hollidaysburg and Columbia, formerly a part of the “Main Line” of the Public Works of the Commonwealth.
    The declaration averred that the plaintiff “ was the owner of certain boats which he had employed for many years during canal navigation upon the canals from Columbia to the junction at Duncan’s Island, and from thence to Hollidaysburg. That the canals were purchased by the defendants under an Act of Assembly entitled an ‘ Act for the sale of the main line of the public works,’ approved May 16th 1857. That by the provisions of that act it became their duty, as purchasers, to keep the canals in good order and repair and operating condition, and to provide that the same should remain a public highway and be kept open and in repair for the use of parties desiring to enjoy the same. That the defendants, not regarding their duty, did not keep the canals in proper repair; in consequence of which, in the spring of 1860 and subsequently, between that period and the close of the boating season of 1865, three boats belonging to the plaintiff, viz., the ‘Effort,’ ‘Regulator,’ and ‘Neptune’ were necessarily detained; were obliged to carry smaller loads than their capacity, and were often damaged by various accidents, to which, on account of the bad condition of the canals, they were subjected.”
    By the Act of May 16th 1857, for the sale of the public works (Pamph. L. 519), it was provided in the fifth section, “ That immediately after the said purchaser * * * shall take possession of the same, the said purchaser shall be bound ever thereafter to keep up in good repair and operating condition the line of said railroad and canal, extending from Hollidaysburg to Philadelphia * * * with the necessary toll-houses, water-stations, locks, buildings and other appertenances ; and the said railroad and canal shall be and remain for ever a public highway * * * it being the true intent and meaning of this act, that the said sections of canal and railroad, and every part thereof, except as is herein provided,” * * * “ shall be and remain a public highway, and kept open and in repair by tbe purchaser * * * for the use and enjoyment of all parties desiring to use and enjoy the same.”
    By the Act of May 3d 1864, it was enacted: “That it is the true intent and meaning of the fifth section of the act, entitled ‘An Act for the sale of the main line of the public works,’ approved May 16th 1857, and the Commonwealth by said section does require the purchasers of the main line to keep the canals referred to in said section in a condition of repair and fitness for use which shall at all times during seasons of navigation be equal to and not inferior to the condition of repair and fitness for use in which the same were, at the time the Commonwealth delivered the same into the purchasers’ possession.”
    The case was tried at Nisi Prius, January 10th 1872, before Mr. Justice Williams.
    The facts in the case sufficiently appear in the charge of Judge Williams, the principal question being the construction of the Act of 1864, in connection with the Act of 1857.
    Judge Williams charged the jury:
    “ This is an action brought by the plaintiff to recover damages alleged to have been occasioned by the negligence of The Pennsylvania Railroad Company in not keeping in good repair and operating condition, the Juniata division of the canal extending from Hollidaysburg to the junction at Duncan’s Island, near Harrisburg, from the year 1860 to the year 1865, inclusive.
    “ The plaintiff alleges that he was engaged in transporting freight on this portion of the canal, from the opening of navigation in the spring of 1860, to the close of navigation in the fall of 1865; a portion of the time (the first year or two), with three boats, namely: the Effort, the Regulator and the Neptune; and a part of the time (the last two or three years), with two of the boats, the Effort and Regulator. And that he sustained damages to a large amount each year, from detentions at different points, loss of freight from inability to carry more than half a load on some portions of the canal, and injury to the boats occasioned by the want of repair and bad condition of the canal; for all which items of damage he claims that the company is responsible, in consequence of its neglect to keep the canal in good order and proper repair.
    “ The Pennsylvania Railroad Company became the purchaser of the main line of the public works, of which the portion of the canal in question is part, under the Act of 15th of May 1857. By the fifth section of that act, it was provided that ‘immediately,’ ” &c., * * * (as above stated).
    “ The language of this section is plain and intelligible, and it would seem that there could be no doubt as to its meaning. It declares in express terms that ‘ the said railroad and canal shall be and remain for ever a public highway, for the use and enjoyment of all parties desiring to use and enjoy the same,’ and that ‘ the said purchaser shall be bound ever thereafter to keep up in good repair and operating condition, the line of said railroad and canal.’ Can there be any doubt as to the meaning of this language ? Is it not plain to the comprehension and understanding of men of ordinary capacity and intelligence? Was it not intended to make it the duty of the purchaser to keep the railroad and canal open as a highway, in good repair and operating condition, for the use and enjoyment of all parties whatsoever ‘ desiring to use and enjoy the same ?’ Can there be the least shadow of doubt as to the meaning of the legislature in declaring that said railroad and canal shall be and remain for ever ‘ a public highway,’ and that the same shall be kept up in good repair and operating condition, for the use and enjoyment of all parties desiring to use and enjoy the same ? Does it need an Act of Assembly to teach us what these words -mean, and what the legislature intended by their use ? One would hardly think so; and yet, for some reason or other, the legislature of 1864 seems to have thought that there might have been some doubt as to their true intent and meaning; and in order to remove the doubt, to make their true intent and meaning plain, they passed an act entitled, ‘An Act relating to certain canals,’ approved May 3d 1864.” The judge here quoted the act.
    “ Now, what is the meaning of this explanatory act, this ‘ Act relating to certain canals ?’ Does it mean to declare that it was not ‘ the true intent and meaning of the fifth section of the Act of 1857,’ that the purchaser shall be bound to keep up in good repair and operating condition, the line of said railroad and canal, for the use and enjoyment of all parties desiring to use and enjoy the same, or that it should not be and remain a public highway, as provided in the original act ? It does not in terms so declare. Does it mean, as contended, that the purchaser is only bound to keep the canal in the same condition as the company received it at the time of its sale and transfer by the state ? If at that time the canal was, in point of fact, in the condition in which it has been described by the defendant’s counsel, that is to say, ‘ in a bad, dilapidated condition — dilapidated to the last degree,’ does it mean that the purchaser was only bound to keep it in that condition ? [If the canal was wholly out of repair in some portions, and totally unfit for navigation, did the legislature of 1864 intend to declare that the whole duty of the purchaser, under the Act of 1857, would be performed and discharged by keeping the canal in the same dilapidated and ruinous condition, and that their whole and only duty was to prevent it from falling into further ruin and decay? Whatever may have been the purpose and intent of the framer of this explanatory act, I cannot think that it was the intent of the legislature in passing it, or that this is its meaning.} We cannot impute to the legislature any such absurdity as to suppose that they intended that if any portion of the canal was out of repair and unfit for use at the time of its sale and transfer to the company, the purchaser, although "expressly required to keep it open as a highway for the use of all persons desiring to use it, might allow it to remain in that unfit and ruined condition for ever. What then is the meaning of this explanatory act ? Was it intended to lower the standard of duty imposed by the original act, or was it intended to define the duty with more precision and with greater certainty, without lowering the standard ? [It seems to me that if the legislature had intended to lower the standard, and to relieve the company from the duty imposed on it by the original act, they would have said so in plain and express terms, leaving no room for doubt as to their meaning. It would have been easy for ■ the legislature, if they had so intended, to declare that the purchaser shall not be bound to keep the canal or any part of it in a better condition than it was at the time of its sale and transfer by the state. But the legislature did not so declare.] Nor did they declare that the purchaser shall not be bound to keep the canal in good repair and operating condition. If, then, the legislature did not intend to relieve the company from the duty imposed by the original act, of keeping the canal in good repair and operating condition, they must have intended to define more specifically the duties imposed by that act. Whether they have succeeded in making the meaning of the provision more plain and palpable to our understanding and apprehension, or whether they “ have darkened counsel by words without knowledge,’ may perhaps admit of doubt; but as we have seen, the legislature of 1864 does say that the Commonwealth (by the fifth section of the Act of May 16th 1857), ‘ does require the purchasers of the main line to keep the canals referred to in said section in a condition of repair and fitness for use which shall, at all times during seasons of navigation, be equal to, and not inferior to, the condition of repair and fitness for use in which the same were at the time the Commonwealth delivered the same into the purchasers’ possession.’ This is a declaratory act, and taking it in connection with the original, the meaning of the whole would seem to be that it shall be the duty of the purchaser to keep up the canal in good repair and operating condition : that ‘ the condition of repair and fitness for use,’ shall, ‘ at all times during seasons of navigation, be equal to, and not inferior to, the condition of repair and fitness for use in which the same was at the time the Commonwealth delivered it into the purchasers’ possession.’ But ‘the said canal shall be and remain a public highway, and be kept open and in repair by the purchaser, for the use and enjoyment of all parties desiring to use and enjoy the same.’
    “ It was then the duty of the company to keep the canal in good repair and operating condition; and if any portion of it was out of repair and unfit for use, at.the time of its transfer by the state, it was the duty of the company to put it in a proper condition of repair, so as to render it navigable and fit for use. And this duty attached to the company and became binding on it as soon as it received possession of the canal. The duty was immediate as it respects the obligation, though it was not as it respects the time of its performance. If the mechanical structures of the canal, the dams, locks and gates were in the state of decay and ruin described by some of the witnesses, and if the pools and levels were obstructed with mud, gravel and debris, brought down by the flood, it is manifest that the canal could not be put in good repair immediately and at once. A work of such magnitude and difficulty, would require time for its completion; but it was the duty of the company to begin the work as soon as it was reasonably practicable, and prosecute it with diligence and vigor until it was finished. It was their right and duty to employ skilful and competent engineers to examine the canal, in order to ascertain its condition, and, if found to be out of repair and unfit for use, to report the nature and character of the repairs necessary in order to render the canal navigable and fit for use. The company would then be entitled to a reasonable time in which to make the necessary repairs, and it would be their right and duty so to perform the work as to cause as little interruption to the navigation as possible, consistent with reasonable and proper diligence in the prosecution of the work. If, then, the company commenced making the repairs as soon as it was reasonably practicable, if it prosecuted the work with diligence, and completed it within a reasonable time considering its magnitude, the difficulty of procuring the necessary workmen and materials, and the exigencies of the navigation, then the company wras not guilty of negligence, but performed the whole duty imposed upon it by the law, and is not responsible for the loss sustained by the plaintiff in consequence of the bad condition of the canal. The gist of the plaintiff’s action is the alleged negligence of the company in not keeping the canal in good repair and operating condition; and if the company was guilty of no negligence, it is not to be visited with the plaintiff’s losses, though occasioned by the want of repair and bad condition of the canal. Nor is the company responsible for the consequences of unavoidable accidents to the canal, caused by sudden storms and floods (unless they might have been prevented by the exercise of reasonable skill and diligence in keeping the works in proper repair), if they were repaired as soon as it was reasonably practicable. But if the company did not commence the work of repair within a reasonable and proper time, considering all the circumstances of the case, or if they did not prosecute it with reasonable and proper skill and diligence, and if the plaintiff sustained loss and damage by reason of the defendant’s default and negligence in this respect, then he is entitled to recover such damages as he may have sustained.

      “ These instructions embrace the main points presented by the counsel on both sides in this case, and all the points will now be read and specifically answered.
    “ The plaintiff’s 1st and 2d points are:
    “‘ That it was the duty of the Pennsylvania Railroad to keep up the canal purchased from the Commonwealth in good repair and operating condition for the use and enjoyment of all parties desiring to use and enjoy the same.
    ££ £ That if the jury believe that the company failed to perform said duty, the plaintiff is entitled to recover compensation for such damages as he has actually sustained by reason of such default.’
    “ We have already instructed the jury substantially as requested in these points, and they are affirmed.
    “ The defendants’ 1st point is as follows:—
    “ ‘ That the defendants, as the purchasers of the canal between Hollidaysburg and Columbia, were not bound immediately to bring into good operating condition the dilapidated and decayed canal, which had been transferred to them by the Commonwealth under and by virtue of the Act approved May 16th 1857.’
    ££ This point is affirmed. The court have already so instructed the jury in the general charge; which the jury will bear in mind.
    “ ‘ 2d and 3d points: That the defendants were only bound to keep up the canal in as good repair and operating condition as it was at the time it was received by them from the Commonwealth.’
    “‘That the Act of Assembly “relating to certain canals,” approved May 3d 1864, is an act declaratory of the duties of the parties to the contract at the time it was entered into by the defendants ; and the standard of their duties is fixed by the state of the repair and fitness for use in which the canal was at the time the Commonwealth delivered possession of the same to the defendants.’
    “ I have refused so to charge the jury in the general charge: And those points are both declined.
    “ ‘ The 4th point: That the defendants are not liable for any interruption to navigation in consequence of injuries done by the floods of November 1861, or of March 1865, or of any freshets or accidents causing breaks to the canal or to any of the mechanical works or structures thereof.’
    “ This point is affirmed, with the qualifications stated in the charge, namely, that these injuries could not have been prevented by the use of proper skill and diligence on the part of the company, and that the breaches were repaired in a reasonable and proper time.
    “ ‘ 5th. That if the jury believe that the defendants consulted their engineers, and, acting under their advice, made such repairs to the canal and works as in their judgment were from time to time necessary to keep the same in good repair and operating condition, the defendants are not liable for any injury which the plaintiff may have sustained.’

      “ This point is affirmed, if the jury find that the work was done with reasonable care, diligence and skill, and within a reasonable time: which you will determine from all the evidence in the case.
    “ ‘ 6th. That the obligation imposed upon the defendants by the Act of 1857, did not require them to alter, enlarge, deepen or otherwise improve the canal.’
    “ This point is affirmed. The act only required the purchaser to keep up the canal as originally constructed, in good repair and operating condition.
    “ ‘ 7th. That the defendants are not liable for any interruption to navigation caused either by drought or other unavoidable cause.’
    “ This point is affirmed unless the consequences of the drought could have been prevented by the exercise of proper care and skill on the part of the company.
    “ ‘ 8th. That the defendants are not liable to compensate the plaintiff for any additional tonnage which his boats, under any circumstances, might have carried; but only for such tonnage as the evidence shows was offered to him, and which was refused by him in consequence of the neglect of the defendants to keep a sufficient supply of water in the canal.’
    “ That point I affirm.
    “. ‘ 9th. That the defendants are not liable for the-suspension of navigation if and whenever it became necessary for making repairs either to the canal or to any of the mechanical structures thereon.’
    “ This point is also affirmed.
    “ It will be the duty of the jury to apply the law, as laid down by the court-in the charge and in answer to the points submitted by the counsel on both sides, to the facts of the case as you shall find them from all the evidence. If you find that the company commenced the work of repairing the canal as soon as it, was reasonably practicable, considering all the circumstances of the case, and that it prosecuted the work with proper diligence and skill, and was guilty of no default or negligence in this behalf, then it will be your duty to find for the defendant, without reference to the loss sustained by the plaintiff, in consequence of the bad and unnavigable condition of the canal. But if the jury find that the company was guilty of negligence in not making the proper repairs, and that it improperly and wrongfully suffered the canal to be out of repair for an unreasonable time and for a longer period than necessary, and if the plaintiff suffered loss and damage in consequence thereof, then he is entitled to recover such damages as will compensate him for his loss and make him whole. And this would include interest on his losses from the time they were sustained.
    “ Upon the question of damages, the court has been requested to charge the jury as in plaintiff’s third point:
    “ ‘ On the measure of damages, if the plaintiff is entitled to recover, the learned judge is requested to charge; 1st. In cases of' detention, the loss suffered by the expense of hands, horses, provisions consumed, and loss of the use of the boats during the period of detention, would properly be allowed. 2d. In case of damage to the boats and tackle caused by defective locks, shallow water or other defect, producing unusual wear and tear, the damages thus sustained would be properly allowed. 3d. In cases of injuries caused by difficult and delayed navigation owing to the. negligence of defendant, the loss of ability to carry freight, if offered, and extra lengths of voyages, would be the subject of just compensation. 4th. If by such detentions a trip which could, in a proper state of repair, be made in a certain time should be prolonged for some days, the expense of the boats, horses, hands and provisions for this extra time would be properly allowed.
    “ ‘ 5th. If, in consequence of this difficulty of navigation, caused by defendant’s negligence, a boat was compelled to forego a full load, it had offered to it, or certainly could have had,' and to take so much less, the net amount of the freight thus lost would be a proper allowance.
    “ ‘ 6th. If, for the same reason, the plaintiff was compelled to take two boats, to carry a load which otherwise he would have carried in one boat, the expense of the extra boat, horses, hands and provisions, would be properly allowed.
    ' “ ‘ 7th. If, for the same reason, the plaintiff was compelled to hire extra teams of horses, and hands on his boats, to enable them to make their trips, he is entitled to his actual expenses and losses, and all other losses which he has proved were the legal, natural and immediate consequences of the neglect of the defendant.
    “ ‘ 8th. The plaintiff is entitled to interest from the date of each loss which he has sustained, up to this date.’ ”
    “ That point is affirmed. The jury will take all the matters suggested here into consideration, if they find that the plaintiff is entitled to recover. The jury will find their verdict on the evidence in the case, giving to the testimony of each witness its proper weight and value, and also the proper weight or value to the other evidence in the cause.
    “ It is the duty of the jury to find, their verdict on the evidence, and on the evidence alone, in conformity with the principles of law applicable thereto, as laid down by the court, without fear, favor or affection.”
    “ These are all the instructions that the court have to give you on this case. It will be your duty to apply them to the evidence and to the facts as you shall find them. And I do not deem it necessary to recapitulate the evidence. This trial has lasted so long, and been so thorough, you have had so long a time to reflect upon the evidence, that it undoubtedly has made its proper impression upon your minds.
    “ You know the complaint here. You will first ascertain what was the condition of the canal when it passed into the possession of this company. Was it or was it not out of repair? Was it in a dilapidated condition ? If it was, it was the duty of the company to repair it. But if it was greatly out of repair along the whole length of its- line, it was not a work which could be performed in a day or in a Aveek or in a month, and the company had a right to a reasonable time within which to have it first inspected along its whole line by competent engineers, in order to form an estimate of what was necessary to be done; and before they did anything, it was very proper for them to send engineers along the line to examine the state of the canal, and to report its condition, and see exactly what was necessary to be done in order to put it into proper order. Now, did the company do that ? And after the engineers had had sufficient time to ascertain that, to a reasonable time within which to begin the work. Did they commence within a reasonable time afterwards to do the work, considering the difficulty of procuring materials, of procuring workmen, and the state of the season, and all that. Did they commence within a reasonable time to do this work ? And did they prosecute it Avith reasonable diligence and skill ? If they did, then they did all that the law required of them.
    “ It is for you to determine that fact under all the evidence. If you find that the company did prosecute this work with reasonable diligence and skill, why then they did their duty; and, although the plaintiff may have suffered in consequence of losses by reason of the bad state of the canal, it is not a loss which' the law will visit on the defendant. He must bear it himself; because, as I have already instructed you, the gist of this action is the defendants’ negligence, the company’s negligence. And if they were not negligent, then the plaintiff has no right to recover against them. But if you find, looking at the whole of the evidence, that the company did not commence this work as soon as they ought to have done, considering all the circumstances of the case, and that they did not prosecute it with vigor, and that the plaintiff sustained losses in consequence of it, then you will assess those losses according to the evidence as given before you. It is your duty to weigh this case and deliberate well, and to find such a verdict as you think the evidence will justify.”
    The verdict was for the plaintiff for $16,976.19.
    The defendants had the case certified to the court in banc, and assigned for error:—

      1, 2. The refusal of the judge at Nisi Prius to affirm defendants’ 2d and 3d points, and in charging as in the portions of the charge in brackets.
    3. The qualification to the answer to defendants’ 7th point.

      O. Biddle and T. Ouyler, for plaintiffs in error.
    The Act of 1864 is to be taken in its natural construction, Dwarris on Stat. 703, which is that the canals, &c., were to be kept in a condition equal to that in which the defendants found them when they purchased them: Notley v. Buck, 8 B. & C. 164; Horton v. Mobile School Comm’rs., 43 Ala. 598. The intent is to be discovered from the language used: Woodbury v. Berry, 18 Ohio R. 456; Bennett v. Boggs, 1 Baldwin 74. They cited also, Philadelphia v. Gray’s Ferry Railway, 2 P. F. Smith 177; Dequindre v. Williams, 31 Ind. 444. Even if retroactive the Act of 1864 does not violate a contract; it is therefore not unconstitutional: Gault’s Appeal, 9 Casey 94; Schenley v. Commonwealth, 12 Id. 29; Kenyon v. Stewart, 8 Wright 191. The contract created by the Act of 1857 was between the Commonwealth and the Railroad Company exclusively: Mott v. Penna. R. R., 6 Casey 34; Commonwealth v. Penna. Can. Co., 16 P. F. Smith 55.

      J. Thomas and W. L. Hirst, for defendants in error.
    1. In the Act of 1857, the legislature took care to stipulate for the preservation of the rights of the public, to the use of the canal, &c., as a public highway.
    2. It was the common-law duty of the defendants, who owned this canal, and took tolls from boats, to a navigable canal for the passage of boats : Borland v. Nichols, 2 Jones 42.
    In the construction of statutes granting privileges to individuals, where there is ambiguity or inconsistency in the language of the grant, if one construction bear against the public trade and public convenience, and another abridges the grant, that must be adopted which favors the public convenience and trade: Stormfeltz v. Manor Turnpike Co., 1 Harris 560.
    Unless in case of strong repugnancy, one Act of Assembly will not be construed to repeal another: Street v. Com., 6 W. & S. 209. The legislature could not direct the courts how to interpret the Act of 1857: Pennsylvania Railroad Co. v. Canal Commissioners, 9 Harris 21; Reiser v. William T. M. S. F. Association, 3 Wright 143; O’Conner v. Warner, 4 W. & S. 227; Haley v. Phila., 18 P. F. Smith 47; Lambertson v. Hogan, 2 Barr 25; Greenough v. Greenough, 1 Jones 495.
   Judgment was entered in the Supreme Court, January 27th 1873.

Per Curiam.

Judgment affirmed on the charge of the judge at Nisi Prius.