text:
    Hess versus Herrington.
    1. Assessors did not value unseated land returned by them, and the com- . missioners assessed a tax at a valuation of $1 per acre, which was the uniform valuation of all unseated lands in the county. Held, that this was at most an irregularity which was cured by the Act of 1815.
    2. Unseated land may be sold for taxes on an assessment without the intervention of the assessor.
    3; Tho curative provisions of the Act of March 13th 1815, do not apply to a sale by commissioners of unseated land bought by them at treasurer’s sale.
    ' 4. The act does not require that the book to be kept by the commissioners of lands bought by them at treasurer’s sale, shall be a separate book without other entries.
    ' 5. A plaintiff in ejectment must show a primé facie title, whether his claim be by a tax sale or otherwise; or whether against an intruder or one setting up a right of possession.
    6. Land surveyed as 111 acres was assessed in the warrantee name in three tracts, one of 60 acres and two 40 each; one 40 acre tract was sold for taxes and conveyed as a tract of 40 acres, giving township, &c., surveyed to J. Coleman; there was no evidence that the other two parts were seated or any evidence of distinct identification. Held, that there was no evidence of identity for the jury.
    7. Coxe v. Blanden, 1 Watts 533, distinguished.
    March 27th 1873.
    ' Before Read, 0. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: Of January Term 1872. No. 285.
    This was an action of ejectment, brought August 6th 1869, by James Herrington against Reuben Hess, “ for 40 acres of land, part of a tract in the warrantee name of John Coleman.” The writ was returned “summoned.”
    The case was tried.November 1st 1871, before Gamble, P. J.
    The plaintiff gave in evidence, — Warrant, March 25th 1794, to John Coleman, for 100 acres, and survey, March 31st 1797, for lllf acres and allowance.
    The plaintiff, under objection and exception, gave in evidence the assessment books of Lycoming county, showing assessment of 60 acres in Clinton township, J. Coleman warrantee, no owner’s name, valued at $60, with county, state, road and school taxes for 1858 and 1859; 40 acres, Clinton township, J. Coleman warrantee, no owner’s name, valued at $40, same kind of taxes, and for same years; 40 acres, J. Coleman warrantee, Clinton township, no owner’s name, valued at $40, same kind of taxes and for same years. The 60 acres was marked in pencil, “ Seated, P. Berger.” One of the 40-acre tracts was marked in pencil, “Seated, R. Hess.” Also sale of unseated land for taxes, June 23d 1860, “ 40 acres, J. Coleman, Clinton township, sold to commissioners.”
    Also assessment of school directors of Clinton school district for 1859.
    The clerk of the commissioners testified that the pencil-marks were not put there by the authority of the commissioners.
    The plaintiff testified that they were not there for some time after January 26th 1869.
    The plaintiff then gave in evidence the treasurer’s deed to the commissioners, dated November 10th 1860, for the same tract sold at treasurer’s sale; and deed of the commissioners to the plaintiff, dated February 17th 1869, for the same tract.
    The clerk of the commissioners testified that the sales of the commissioners in 1869 were public sales to the highest bidder; he also gave evidence that the sales were advertised as required by the Act of Assembly.
    The defendant gave in evidence the assessment books of Clinton township, for the purpose of showing that this land was not returned by the assessors for the years 1856, 1857, 1858, and that tract was assessed on the seated list in 1859.
    The clerk of the commissioners testified that there were no other assessments in the commissioners’ office for 1856, 1857, 1858 and 1859 than those in evidence:—
    “ There is no book kept in the commissioners’ office wherein is entered the name of the person, as whose estate the land so purchased by the commissioners has been sold, the quantity of land, the amount of tax sold for, so long as the land remained unredeemed, and for five years next following such sale to them. The commissioners have not charged the taxes assessed upon said land, as required by the Act of March 13th 1815. No such book kept. The commissioners’ assessment book, already in evidence, is the book in which the unseated lands are assessed, for both the treasurer’s sales and the commissioners’ sales, and are charged up by the commissioners every two years. This assessment book is kept the same after a sale to the commissioners as before — the assessments are continued against the lands after the sale just as before — and there is no book keeping such account other than this. After a sale to the commissioners it is noted in this book, after the warrantee name, by the word ‘ Commissioners.’ That entry denotes that the tract thus marked is sold to the commissioners. When application is made for the redemption of such lands, the taxes, &c., are made up from this book. The amount necessary to effect a redemption is ascertained from this book. These assessments are made upon the uniform valuation of unseated lands in the county, at $1 per acre.”
    The defendant requested the court to charge:—
    1. That there is no such assessment as will support the treasurer’s sale to the commissioners.
    2. That the prerequisites to the treasurer’s sale have not been complied with, and that the sale by the treasurer was unauthorized and void.
    3. That the prerequisites to the sale by the commissioners to the plaintiff have not been complied with, and that the sale by them to the plaintiff was unauthorized and void.
    4. There being evidence that the tract of land in warrantee name of J. Coleman has been severed, and no evidence to identify the land claimed by the plaintiff as that sold by the commissioners to the plaintiff and claimed by him in this suit, the plaintiff cannot recover.
    5. That if the jury believe the evidence, the plaintiff cannot recover.
    The court declined to answer the five points as requested by the defendant, and submitted the cause to the jury upon the charge.
    Judge Gamble, after stating the evidence of the plaintiff, said:—
    * * * “ Is this evidence of a legal assessment of these several parcels of land ? The commissioners are the officers authorized by law to fix the rate of taxation and assess the same upon the taxable property of the county. The assessors of the several townships are required by law to furnish a list of such taxable property with a valuation annexed to the same, to enable the commissioners to equalize taxation and make it general. This is a part of the system of taxation, and includes the unseated lands as well as the other taxable property of the respective townships. But it is not the only mode by which the county commissioners may obtain a list of the unseated lands for the purpose of taxation. They may require the deputy or district surveyor to return such a list, and may assess them with their proper proportion of the public taxes, according to their own discretion and judgment. In this county, it is in evidence by the clerk for the commissioners, that the uniform valuation of unseated lands for the purposes of taxation is one-dollar per acre.
    It does not appear to the court, therefore, to be essential to the validity of an assessment of taxes upon unseated land, that they-should be returned by the assessors to the county commissioners, for the years for which they are assessed. The essential and material, facts, upon which the validity of the assessment depend, are whether they are properly taxable, and whether a tax, authorized by law, has been assessed upon them by the commissioners. The return of the assessor without a valuation, or his omission to return them at all, should not exempt them from taxation, and cannot, in our judgment, render invalid a lawful tax assessed upon them by the commissioners. It is, at most, a mere irregularity which falls within the curative provisions of the Act of 1815. We say to you, therefore, that if you are satisfied from this book, that these taxes were actually assessed on these several pieces of land, by the county commissioners, and by the school directors of the Clinton school district, for the years 1858 and 1859, or either of them, and that they remained unpaid for one year, the sale by the treasurer was legal and valid, if the land sold was in fact unseated.] It was assessed and sold as unseated, there is no evidence in the cause to the contrary, excepting the pencil marks found on the commissioners’ assessment book, and the circumstance that 40 acres in the same warrantee name, and probably a part of the same tract, are assessed to the defendant, as seated land for the year 1859. If you should be satisfied that these 40 acres are the same part of the survey, sold to the plaintiff, it could have little or no bearing upon the question of whether it was unseated in 1858. As to the pencil marks it is not known when, nor by whom they were made, and the plaintiff swears that they were not there for some weeks after the commissioners’ deed was made to him, which would he more than eight years after the treasurer’s sale. If this tract of land were in fact seated either by residence or cultivation in 1858, when taxed as unseated, it must have been known in the neighborhood, and was therefore susceptible of positive proof, none such having been produced, the inference is very strong that no such fact existed and there is therefore but little importance tobe attached to these pencil entries.
    [“ If you are satisfied from the evidence that these taxes were assessed by the county commissioners, that the land was unseated, and that one or more of the taxes assessed remained unpaid for one year, then the land was subject to sale, and the treasurer’s. deed vested the title in the county commissioners, in trust for the county.]
    .[“We will next consider the regularity of the sale by the commissioners ; and as the curative provisions of the Act of 1815, are applicable only to sales by the treasurer, a substantial compliance with all the prerequisites of a sale by the commissioners must be shown. The Act of 1815 requires the commissioners to hold the title for a period of five years, unless sooner redeemed by the original owner; and to provide a book wherein shall be entered the name of the person as whose estate the land was sold, the amount of taxes for which it was sold, and the amount of taxes charged against it for each succeeding year whilst the title remains in the county; and at the expiration‘of five years, to sell the land at public sale, provided the full amount of these charges, interest and costs were bid. The Act of 1824 modified this regulation, by requiring the land to be advertised in all the newspapers published in the county, at least thirty days preceding the sale, and then authorizing a sale for the best price that can be obtained for the same. This is still further modified by a special act relating to such sales of lands in this county, approved the 6th of March 1868, by which the advertisement is limited to two or more newspapers having the largest circulation in the county.”] * * *
    The judge then stated the evidence of the clerk as to the manner of keeping the commissioners’ books, the advertisements, sale, &c., and proceeded:
    “ The evidence is for you, and if you are satisfied from all the evidence in the cause that there was thirty days notice of the sale, published in two of the newspapers having the largest circulation in the county, that the sale was public, and to the highest bidder, and that an account of the taxes for which the land was sold, and those afterward assessed against it were charged to the tract designated by the warrantee name in the commissioners’ assessment book, then we think the prerequisites of a sale have been substantially complied with.
    “ Although the provisions of the Act of 1815, requiring this account to be kept in a book provided for the purpose is not repealed by the Act of 1824, yet it is manifest that at least one of the reasons for it is removed by repealing the restriction of the sale, unless a sum equal to these charges were bidden, and authorizing a sale for whatever sum might be bidden without regard to these charges. And perhaps the only remaining reason for keeping such an account at all, was to enable the original owner to redeem his land by paying these charges, with interest, within five years. The original owner did not offer to-redeem within that period, nor does it appear that he is here now to complain. Nevertheless we think the account, if kept, as testified to by tbe clerk of tbe commissioners, was substantially as required by law.
    [“ The only remaining point to which we will call your attention, is the question of identity. Are the forty acres of land sold by the commissioners to the plaintiff part of the warrant and survey in the name of John Coleman, given in evidence, and the same described in the plaintiff’s writ? This is a question of fact for you to determine from the evidence.] Unseated lands are generally identified and distinguished by the warrant. The owner is often unknown even in the vicinity where land lies. * * *
    “An assessment of three pieces of land in the warrantee name of J. Coleman, in Clinton township; one containing sixty acres and two containing forty acres each. A deed from the treasurer to the commissioners, and from the commissioners to the plaintiff for forty acres, part of J. Coleman, situate in Clinton township. There is no other evidence of any division of this survey, nor is there any evidence of any other survey in the same name in Clinton township.
    , [“ Under this title the plaintiff seeks to recover the possession. of forty acres of land, part .of the survey in the name of John Coleman, situate in Clinton township, and described by particular boundaries. The defendant, by his appearance and plea, admits that he is in possession of the land described in the writ. He has not shown any title in himself, nor that this land was seated, or the taxes paid, and therefore, not subject to sale. Under such circumstances, we think, the plaintiff would be entitled to recover the possession of any forty acres, part of John Coleman, in Clinton township, which was unseated, and upon which the taxes were unpaid for either of the years for which it was sold.]
    “ But the question of the identity of the land described, in the plaintiff’s writ, with that assessed, sold and conveyed to the plaintiff, we leave, as a fact for you to determine from the evidence in the cause.” * * *
    The verdict was for the plaintiff.
    The defendant took out a writ of error.
    He assigned twelve errors:—
    1, 2, were as to the rulings on the admission of evidence.
    3-7. Declining to answer the defendant’s points.
    8-12. The parts of the charge in brackets.
    ■ S. Lynn (with whom were J. J. Metzgar and W. S. Armstrong), for plaintiff in error.
    The authority given to the assessor to place a valuation on lands cannot be usurped by the commissioners, save in the excepted eases provided by statute: Bratton v. Mitchell, 1 W. & S. 310; Hubley v. Keyser, 2 Penna. Rep. 501; Laird v. Hiester, 12 Harris 463; McCall v. Lorimer, 4 Watts 355. The presumption, of regularity may be rebutted: Morton v.
      Harris, 9 Watts 324. They cited also Heft v. Gephart, 15 P. F. Smith 510; Wheeler v. Winn, 3 Id. 131; Troutman v. May, 9 Casey 455.
    The curative provisions of the Act of 1815 do not apply to a sale by commissioners after a purchase by them at treasurer’s sale: Jenks v. Wright, 11 P. F. Smith 410.
    The plaintiff had not the right to elect, and the burden of proof is upon him to show that he bought the land for which he has brought suit. Evidence of identification must be given for the purpose of rendering the assessment valid, and of showing the territory covered by the sale: Philadelphia v. Miller, 13 Wright 440; Lyman v. Philadelphia, 6 P. F. Smith 499; Russel v. Werntz, 12 Harris 337. The plaintiff must recover on the strength of his own title, and the burden is on him to show the identity of the land claimed in the writ with that conveyed by the treasurer’s deed: Hoffman v. Danner, 2 Harris 28; Scott v. Sheakly, 3 Watts 50; Hyskill v. Givin, 7 S. & R. 369 ; Spang v. Schneider, 10 Barr 193; Buchanan v. Moore, 10 S. & R. 280; 1 Greenleaf on Ev., sect. 74; Fisk v. Fisk, 12 Cush. 150 ; St. Clair v. Shale, 8 Harris 105; Miller v. Smith, 9 Casey 391.

      J. M. Gfamble and R. P. Allen, for defendant in error.
    There is nothing to which the maxim, omnia prcesumuntur rite esse acta, applies with so much force as a tax title: Heft v. Gephart, 15 P. F. Smith 510. The assessment is good whether or not it be shown that the assessors returned the valuation : Hubley v. Keyser, 2 Penna. R. 501; Devinney v. Reynolds, 1 W. & S. 333 ; Crum v. Burke, 1 Casey 377.
    Identity is a question for the jury: Woodside v. Wilson, 8 Casey 54; Stewart v. Shoenfelt, 13 S. & R. 360; Strauch v. Shoemaker, 1 W. & S. 174; Burns v. Lyon, 4 Watts 363; Thompson v. Fisher, 6 W. & S. 520; Dunden v. Snodgrass, 6 Harris 151; Russel v. Werntz, 12 Id. 337; Miller v. Hale, 2 Casey 436.
    All that is requisite for a plaintiff in ejectment, in the first instance, after showing title out of the Commonwealth, where the land is sold for taxes, is to exhibit the deed from the commissioner or treasurer. This is such a primá facie title as is sufficient to put the defendant on proof of a better title: Foster v. McDivit, 9 Watts 344; Shearer v. Woodburn, 10 Barr 511; Dikeman v. Parrish, 6 Id. 210; Troutman v. May, 9 Casey 455; Foust v. Ross, 1 W. & S. 501; Wheeler v. Winn, 3 P. F. Smith 122.
   The opinion of the court was delivered, May 17th 1873, by

Sharswood, J.

The twelve assignments of error may be disposed of by the consideration of three questions.

The first relates to the assessment of the tax upon which the land alleged to be that described in the writ, was sold by the treasurer to the county commissioners and conveyed by deed dated November 10th 1860. The plaintiff in error contends that valuation is essential to an assessment; and that the only officers competent by law to make a valuation are the assessors. It appearing that the tract in question was not returned by the assessors for the year, for the taxes for which it was sold, the commissioners, it is said, had no right to put a valuation upon it, and that, as a consequence, there was in law no .assessment, and the sale by the treasurer was invalid. It seems that there is a usage of long standing in Lycoming county, to put a uniform valuation of one dollar per acre upon all unseated lands, in consequence of which the assessors have fallen into the practice of making no return of valuation in such cases. It is certainly malus usus et abolendus. How the assessors can reconcile it with the terms of their official oaths, it is not easy to comprehend. But because they have failed in. the performance of their duties, it does not follow that the land was not subject to taxation, and the title of the commissioners, by the treasurer’s sale, a perfectly good one. The learned judge below instructed the jury that “the return of the assessor without a valuation, or his omission to return them at all, should not exempt the lands from taxation, and cannot, in our judgment, render invalid a lawful tax assessed upon them by the commissioners. It is, at most, a mere irregularity, which falls within the curative provisions of the Act- of 1815.” In this instruction we think that he was entirely right.

There was evidence by a record from the office of the county commissioners that the taxes in question were assessed by them. The twenty-first section of the Act of April 12th 1842, Pamph. L. 266, enacts that “ all records of the county commissioners charging lands as unseated with arrears of taxes, shall be evidence of an assessment.” By the fourth section of the Act of March-13th 1815, 6 Smith 301, it is declared that ’“ no alleged irregularity in the assessment, or in the process, or otherwise, shall be construed or taken to affect the title of the purchaser; but the same shall be declared to be good and legal.” The Act of 1842 makes the record of the county commissioners evidence of an assessment in fact, and the Act of 1815, to. support the title of the purchaser, cures all irregularities in it. The county commissioners were the officers competent to assess the tax. That no valuation was made or returned, was a mere irregularity. The county commissioners are the board of revision, with power to revise, correct and equalize the valuation of all property taxable by law: Act of July 27th 1842,. Pamph. L. 445; Act of April 29th 1844, Pamph. L. 501. It would be no violent presumption if it were necessary to resort to it, that the valuation upon which the assessment was made, was settled by them in their capacity as a board of revision. But it is not necessary. In Hubley v. Keyser, 2 Penna. Rep. 502, Mr. Justice Huston, speaking of the Act of 1815, says: The object was to make the sale and deed confer a title without proof of any one prerequisite, except that the land was unseated, and that-a tax was charged by the commissioners, regularly or irregularly; that this tax was unpaid, and the land sold and not redeemed within two years.” In that case, the objection to the sale was, that there was proof that the assessors had not valued or returned the land as unseated for assessment. It was argued there, as here, that the valuation by the commissioners was unauthorized, and the assessment a nullity; but it was held otherwise by the court. Indeed, in citing this case after-wards, in Fager v. Campbell, 5 Watts 288, Chief Justice Gribson gaid: “ The tax-book was an official document, and according to Hubley v. Keyser, it was both competent and sufficient to show that the land had been assessed.” Both these cases were prior to the Act of 1842. It was, indeed expressly decided in Devinney v. Reynolds, 1 W. & S. 328, that a tract of unseated land maybe sold by the treasurer for the non-payment of taxes upon an assessment made by the commissioners, without the intervention of the assessors. “ The assessors,” said Mr. Justice Rogers, “ value the lands, but the commissioners make the assessment; from which it follows that you cannot avoid a sale for taxes, merely because you are unable to prove that the assessors had performed this ministerial duty.”

The second question is, as to the validity of the commissioners’ sale. It has been decided that the curative provision of the Act of 1815, does not apply to these sales : Jenks v. Wright, 11 P. F. Smith 410. It is objected to the validity of the commissioners’ sale in this case, that they did not follow the provisions of the fifth section of the Act of March 13th 1815, 6 Smith 301, which declares that “ it shall be the duty of the commissioners to provide a book wherein shall be entered the name of the person as whose estate the same shall have been sold, the quantity of land, and the amount of taxes it was sold for, and every such tract of land, shall-not thereafter, so long as the same shall remain the property of the county, be charged in the duplicate of the proper collector; but for five years next following such sale, if it shall so long remain unredeemed, the commissioners shall in separate columns in the same book, charge every such tract of land with reasonable county and road tax, according to the quality of the said land, not exceeding in any case the sum of six dollars for every hundred acres.” Without stopping to inquire whether a failure on the part of the commissioners to observe these directions ought to invalidate the sale, as it forms no part of the process, but is a mere direction as to book-keeping, we are of opinion with the learned judge below, that “ the account, if kept as testified by the clerk of the commissioners, was substantially as required by law.” The clerk stated: “ This assessment book is kept the same after a sale to th& commissioners as before, the assessments are continued against the' lands after the sale just as before, and there is no book for keeping such account other than this. After a sale to the commissioners, it is noted in this book after the warrantee’s name, by the word ‘ commissioners,’ that the tract thus marked, is sold to the commissioners.” The act does not in terms require that the book shall be a separate book, containing no other entries. It is enough if there is a record of the entries, as required by the act, made in some book.

The remaining question is, whether the case was properly submitted to the jury as to the identity of the tract assessed and sold with that described in the writ of ejectment. The plaintiff in ejectment must show at least a primd facie title — by prior possession or papers — in himself, for the land described in the writ, whether the claim be a tax sale or otherwise ; whether against a mere intruder, or one setting up some right of possession. No man can be lawfully ejected from lands by less than this. In this case, on the assessment books of the commissioners of unseated lands, there were three separate tracts assessed in the warrantee name of-J. Coleman: one of sixty, and two of forty acres each, One of these tracts of forty acres was that assessed and sold and conveyed in the treasurer’s deed by the general and vague description, “a tract of land containing forty acres, situate in the township of Clinton, in the county of Lycoming, surveyed to J. Coleman.” The title from the Commonwealth produced by the plaintiff, showed a warrant to John Coleman, for one hundred acres, and a return of survey for one hundred and eleven and three-quarter acres and allowance. We may assume that the three assessed tracts made up this survey, though they overrun it in quantity. How the whole tract came to be divided into three parcels did not appear. There were, indeed, some pencil marks on the assessment that two of the tracts were seated, by whom or when made was unknown, except that they were not there at the time of the commissioners’ sale. They were therefore' properly disregarded. Had there been evidence that the other two tracts were seated at the time of the sale, it would certainly have been ■ sufficient to have identified the remaining one as the subject of the sale. There was no evidence whatever to show which of the two tracts was the one assessed and sold, nor of their relative position, nor any other fact which could- possibly lead to identification. The learned judge then left the question of identity to the jury without evidence, which, we think, was an error. He accompanied it, however, with an instruction which throws light upon the ground upon which he made this submission. “ Under such circumstances, we think the plaintiff would be entitled to recover the possession of any forty acres, part of John Coleman, in Clinton township, which was unseated, and upon which the taxes were unpaid for either of the years for which it was sold.”

It is contended that this instruction of the learned judge may be sustained by the ruling of this court in Coxe v. Blanden, 1 Watts 533, in which it was held that a, treasurer’s sale for taxes of part of a tract, and a conveyance of that part designating the quantity but not the locality, is good; and an unrestricted choice of locality to the purchaser is a necessary incident of the sale and the consequence of a reasonable interpretation of. the statute. But in that case.there was an assessment upon an entire tract of four hundred and thirty-seven acres, and a sale of three hundred and eighteen acres of it for a sum sufficient to pay the taxes and costs on the whole. It is clearly distinguishable from this case. There was no doubt there that the assessment upon which the sale was made, fastened upon every part of the tract, and a foundation for the sale of every part existed. But not so here, where the parts were severally assessed. The cases abundantly show that there must be evidence to identify the tract assessed with that sold and described in the writ: Russell v. Werntz, 12 Harris 337; City of Philadelphia v. Miller, 13 Wright 440; Lyman v. City of Philadelphia, 6 P. F. Smith 488; Glass v. Gilbert, 8 Ibid. 266; Brotherline v. Hammond, 19 Ibid. 128.

Judgment reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author: Mercur, J.

license: Public Domain

text:
    Butler’s Appeal.
    j. An Act of Assembly must violate some prohibition of the State or Federal Constitution, expressed or clearly implied, before it can be declared unconstitutional.
    2. The legislative power of taxation may be delegated to a municipal corporation, to be exercised within its corporate limits.
    3. The legislature may exempt classes of property as well as classes of persons from taxation.
    4. The Act of April 2d 1872, supplement to the charter of Wilkesbarre, is constitutional.
    5. An act authorized the councils of Wilkesbarre to impose a tax for police purposes “ on bowling alleys, and billiard tables, * * * and also auctioneers or other vendors of merchandise or articles by outcry, * * * and all other places of business or amusement conducted for profit.” This did not authorize a tax on merchants, bankers, brewers, &c.
    6. "Other places of business or amusement,” should be of the character of those specifically designated.
    7. The ordinance of councils enacted that after notice and failure to pay in ten days, the party should “ upon conviction pay a fine not exceeding ¡glO’O, or imprisonment not exceeding thirty days or both at the discretion of the mayor.” This being without'authority in the act could not be enforced.
    March — 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.

      Appeal from the decree of the Court of Common Pleas of Luzerne county: In Equity : No. 261, to January Term 1873.
    An Act of Assembly was passed April 2d 1872 (Pamph. L. 740) entitled “A supplement to an Act to incorporate the city of Wilkesbarre.”
    By the second section it was enacted, that “ in addition to the corporate powers heretofore granted, the council of said city shall be authorized:— * * *

      “ 3. To require by ordinance or other general regulation that the owners or lessees of cars, carts, drays, wagons, carriages, omnibuses, coaches, sleighs, sleds, or other vehicles of burden or pleasure let for hire, or employed or used in carrying articles or persons for pay; and also the owners, occupants, or lessees of bowling-alleys and billiard-tables for the use of which pay is demanded; and also auctioneers or other venders of merchandise or articles by outcry or bidding; and also all other places of business or amusement conducted for profit, shall be annually registered and licensed, and required to pay into the city treasury, for police purposes, such sums respectively for such licenses, as may be established in the ordinance or any other general regulation.”
    On the 2d of September 1872, the councils of Wilksbarre, for the purpose of exercising the powers conferred by the act, passed the following ordinance:—
    “ Sec. 1. The owners or lessees of cars, let for hire or employed or used in carrying articles or persons for pay, and also the owners, occupants or lessees of bowling-alleys and billiard-tables, for the use of which pay is demanded; and also auctioneers or other vendors of merchandise or articles by outcry or bidding, and also the owners or occupants of all other places of business or amusement conducted for profit, shall be annually licensed and shall be required to pay into the city treasury for police purposes, such sums respectively, as follows to wit:”—
    The ordinance then enumerates: — auctioneers; billiard-tahle keepers; bowling-alley keepers; banks, bankers and brokers; book and stationery store-keepers; brewers and distillers; butchers; coal dealers; daguerrean galleries; drug store-keepers; express companies; gift enterprise store-keepers; hotel-keepers; insurance agents; jewellery store-keepers; livery-stable keepers; liquor dealers; lumber dealers; merchants and dealers in merchandise ; millinery store-keepers; real-estate agents or brokers; saloon keepers; street-car companies; sewing-machine dealers; stands for sales of drink or eatables, sample dealers; telegraph companies; and all other places of amusement for profit, not herein enumerated.
    After providing for the determining who are required to take out license, giving notice by the mayor, issuing duplicates, &c., the ordinance provides:—

      “ Sec. 6’. All persons liable to pay any of tbe annual license fees aforesaid, who shall fail or neglect for the period of ten days after notice by the mayor of the amount of the license fee required to be paid, to pay the proper fee and procure the proper license, shall, upon conviction thereof, pay a fine not exceeding $100, or undergo imprisonment not exceeding thirty days, or either or both, at the discretion of the mayor.
    “ Sec. 7. All persons liable to pay any of the license fees aforesaid, other than annual, who shall fail or neglect upon demand from the mayor to pay the proper fee and procure the proper license, shall upon conviction be liable to the same penalties as imposed in preceding section.”
    At January Term 1873 of the Court of Common Pleas of Luzerne county, C. E. Sutler and a large number of others filed a bill against the city of Wilkesbarre; it set out:—
    1. They were citizens and tax-payers of Wilkesbarre, many • of them merchants or venders of merchandise, all business men- and owners of places of business in that city.
    2. They had paid for and procured according to law the proper licenses for carrying on their business.
    3. 4, 5. The councils of Wilkesbarre had passed the ordinance above set forth, claiming the right to enact it under the above said Act of Assembly, and a notice had been served on them to pay the tax within ten days.
    6, 7. They believed the Act of Assembly to be unconstitutional, and the ordinance not in accordance with the act.
    The prayers were for an injunction restraining the city from proceeding to enforce the payment of license tax assessed upon them, and for further relief.
    A preliminary injunction was granted November 25th 1872.
    The defendants answered that the act was constitutional and that the ordinance was legal, &c.
    After argument on bill and answer, the court (Dana, J.) being of opinion that the Act of Assembly was constitutional, and that the ordinance was in accordance with the act, dissolved the injunction and dismissed the bill.
    The plaintiffs appealed to the Supreme Court, and assigned for error the dismissal of their bill.

      S. Woodward (with whom was P. S. Osborne), for appellants.
    —The court has power to set aside unequal and unjust legislation: Philadelphia Association v. Wood, 3 Wright 73; Durach’s Appeal, 12 P. F. Smith 493; Hammett v. Philadelphia, 15 Id. 146.

      E. M. Hoyt (with whom was P. H. Ohase), for appellee.
    The tax is not a local tax for general purposes. In the legitimate exercise of the power of taxation persons and things always have been and may constitutionally be classified: Durach’s Appeal, supra; Speer v. School Directors, 14 Wright 161; Kirby v. Shaw, 7 Harris 258. The exercise of *the taxing power by the legislature must become wanton and unjust, be so grossly perverted as to lose the character of a legislative function before the judiciary will feel themselves entitled to interpose on constitutional grounds: Schenley v. Allegheny City, 1 Casey 130; Sharpless v. The Mayor, &c., 9 Harris 164.
   The opinion of the court was delivered, May 17th 1873, by

Mercur, J.

We cannot review the wisdom or the expediency of legislative enactments. They must violate some prohibition, expressly declared or clearly implied, of the constitution of this state or of the United States, before we can pronounce them to be unconstitutional.

Whatever power of taxation the legislature possesses, it may delegate to a municipal government, to be legitimately exercised within its corporate limits.

The right of the legislature to exempt certain classes of property, as well as classes of persons from taxation, has always been recognised in this state. Thus, churches, meeting-houses, burial-grounds, universities, colleges, academies, school-houses, courthouses and jails, have been exempted “from all and every county, road, city, borough, poor and school tax:” Act of 16th April 1838, Purd. Dig. 1368, pl. 77. So all lands granted to officers and soldiers of this state for services in the armies of the Revolution, were exempted during the lifetime and ownership of the grantee: Act of 1st March 1780, 1 Sm. Laws 479. So, during the late war for the suppression of the rebellion, volunteers who were in service or who had been honorably discharged therefrom, were in many cases excepted from taxes laid to pay bounties to volunteers: Act of 14th April 1863, Pamph. L. 443, § 4; also from a per capita tax, Act of 25th August 1864, Pamph. L. 987. In the exercise of the power of taxation, persons and things may be classified. Some classes may be. taxed, other classes may be exempted. Thus, the Act of April 29th 1844, Pamph. L. 497, imposed a state tax upon “ all professions, trades and occupations, except the occupation of farmers.” Again some species of property may be taxed for one purpose and not for another. If the taxation is upon all of a class, either of persons or things, said" Justice Sharswood in Durach’s Appeal, 12 P. F. Smith 494, “it matters not whether those included in it be one or many.” We are unable to see anything in the Act of 2d April 1872, which conflicts with the prohibitory clauses in the constitution, and the learned judge was correct in so holding.

The remaining question is, does the Act of 2d April 1872, support the ordinance of September 2d 1872 ? We think it does not for two reasons.

First. The act authorizes the city authorities to require the payment, by ordinance or other general regulation, of license fees, for police purposes, from the owner or lessees of certain vehicles of burden or pleasure, let for hire or used in carrying goods or persons for pay: also, from auctioneers or other vendors of merchandise, or articles by outcry or bidding; also, from the owners, occupants or lessess of bowling-alleys and billiard tables, for the use of which pay is demanded; and also of all other places of business or amusement conducted for profit. We have changed the relative position of some of the paragraphs in order to present more clearly the different classes of persons and things, subject to the payment of licenses. It will be seen they are: 1st. Persons using vehicles for certain purposes: 2d. Persons pursuing their occupations in a particular manner: 3d. Persons keeping for pay, certain places of amusement; the act specifically designating “bowling-alleys and billiard-tables,” only. Then follows the clause: “ also, all other places of business or amusement conducted for profit.” Under this, the ordinance in question, has imposed license fees or taxes upon merchants, bankers, brewers, druggists, hotel keepers and upon persons engaged in many other branches of industry, some of whom have filed this bill. We do not think the act is broad enough to cover these classes. They are not within its scope and object. If the design of the law had been to impose this tax upon every person engaged in carrying on any branch of industry in the city, more certain and specific language would have been used. The fair import of the words used, taken in connection with the kind of property specifically designated and charged is, that “ the other places of business or amusement” should be of purpose and character, similar to bowling-alleys and billiard-tables.

The ordinance therefore should have been so limited — such, we conceive, being the true intent and meaning of the act, the ordinance has no basis upon which to rest, and is necessarily invalid.

Secondly. The penalties imposed by section six of said ordinance, for a failure to pay the license fee, cannot be sustained by authority, nor by sound reason. The ordinance makes no provision for the collection thereof, either by the recovery of a judgment, and execution thereon, nor by warrant of distress. It gives Ho authority to levy upon, seize, or sell the property of the delinquent for its collection. In case of a failure or neglect to pay, and to procure the proper license, within ten days after notice from the mayor, of the amount of the license fee required, it provides only for the imposition of a fine not exceeding one hundred dollars, and of imprisonment not exceeding thirty days, or either, at the discretion of the mayor. Thus, not only without any effort to collect the license fee out of the property of the delinquent; but also, without the issuing of any process to collect the fine imposed, he may be incarcerated in prison. If the unfortunate citizen has permitted the ten days to run past without paying his license, the ordinance closes upon him; no alternative writ issues against him; his offence has been consummated; no payment will save him from prison.

There is nothing in the Act of Assembly authorizing the imposition of such a sentence, without an indictment and without a trial by jury. No authority was cited, no precedent has been found to warrant such action, or to sustain such a proceeding, under any similar grant of power. Except for contempt, a trial by jury should precede a sentence to imprisonment.

Holding then, that the ordinance is unwarranted by the statute, • its enforcement should be enjoined; the decree must be reversed, and the relief asked for in the bill be granted.

And now, to wit: May 17th 1873, this cause having come up by appeal from the decree of the Court of Common Pleas of Luzerne county, dissolving the injunction which it had previously granted, and dismissing the appellant’s bill, and having been argued by counsel at Philadelphia; after due consideration thereof, it was ordered, adjudged and decreed as follows, to wit: that the said decree of the Common Pleas be reversed and set aside; and that the said defendant be restrained from proceeding to enforce the payment of the sums of money claimed to have been assessed upon said plaintiffs respectively, as a special tax or license fee to enable them to prosecute their business in the city of Wilkes-barre; and it is further ordered, that the appellees pay the costs.


text:
    Boynton versus Housler.
    1. Where a parol contract for purchase of lands has been carried on maid fide, there is a resulting trust and equity will decree a conveyance.
    2. Equity will not permit one to hold a benefit which he has obtained by fraud, either of himself of another.
    3. A decedent’s estate was to be sold on execution, the widow having an interest to the extent of her exemption ; her friends agreed to purchase the land for her; the execution-creditor agreed with her that if they would not bid against him he would convey a portion to her ; they refrained from bidding and he bought the property at an undervalue. Held, that he was p, trustee ex malefioio for the widow.
    4. The widow having an interest in the land under the exemption laws, the agreement was not void as to the creditors of the decedent.
    5. Beegle v. Wentz, 5 P. F. Smith 369 ; Seichrist’s Appeal, 16 Id. 237, approved ; Slingluff v. Eckel, 12 Harris 472, distinguished.

      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 Cameron county: Of January Term 1872, No. 308.
    This was an action of ejectment for 200 acres of land in Shippen' township; it was brought December 22d 1870, by A. H. Boynton against Elizabeth Housler and others.
    Merrick Housler died seised of the real estate mentioned in the writ; it was sold after his death under executions against his administrators, his widow Elizabeth Housler (defendant) and children; and was sold by the sheriff to W. A. Simpson, the plaintiff, for $110, and by him sold to Boynton, the plaintiff in this ejectment.
    Mrs. Housler resisted a recovery, alleging that some of her friends proposed to buy the tract for her, and that Simpson agreed that if they would not bid against him he would buy the property and convey to her the “ homestead,” a part of it containing about 18 acres ; this he afterwards refused to do.
    The cause was tried January 24th 1872, before Wilson, J.
    Under objection of defendant and exception, the plaintiff testified: “I saw Simpson the day before the sale. I spoke to him about it, and wanted to know if I had not better get some one to bid it up. This was before Mr. Boynton’s store door: I asked him if he could do anything to save me a home. I spoke about getting some one to bid and run the . property up; He said he thought it was not best. He thought it had best be sold as privately as it could be, and he would get some one to bid it off and deed me the homestead. He said he would get Mr. Newton to bid it off for him. He said he would have it sold as low as it could be sold. My friends were there to bid it up; they said they would bid it up as high as $1200. I don’t recollect of anything more being said between him and me. He said it was best for me not to get any bidders. On that agreement I did not get any bidders. I had a contract for the land from Aden Housler. The first conversation I had with Simpson was the day before the sale, before Boynton’s store. I went in and called him out. He áent for me to come down and meet him at Mr. Newton’s office. I told him I had come to see him; I had made arrangements with Aden Plousler for some one to bid on the property. They (my friends) said they would attend the sale and see that the property did not go for nothing. I don’t recollect that I saw my friends after this conversation and told them not to bid.”
    Aden Housler testified: “Mrs. Housler employed me to see Mr. Simpson about the sheriff’s sale. I went down to see him in June 1868. I asked him what he would do about it. I told him I had bought it, and found he had some little judgments on it, and I did not know it at the time I bought. He said he had two or three judgments against Housler. He agreed for me to go back and tell Mrs. Housler that she should have the homestead, and that he would press his claims far enough to give her a homestead. He said he had learned I had bought it, and I told him I had. He asked me what I intended to do. I said I had bought it with an understanding with her, and I had given her a contract, that if I held it on that I should give her a deed. He said he would give her a deed, and if I would, it would be all right. The mes-. sage he sent her was for me and her not to interfere, and have it bid off as low as possible, and that she should have the homestead, and not to get any bidders, that he would get some one to bid it off, and that would be better than for her to bid it off. He said, let it be sold as low as it could. If she could not make this arrangement I was to bid off all the property, and she should have the homestead. I would have bid $1250 for the property. I saw Mrs. Housler the day before the sale, or day of the sale, and she told me not to bid. I did not bid. I forbid the sale at Simpson’s request, he saying if I showed my deed the sale would go low. About the time I heard Mr. Boynton was going to buy it I had a talk with him, and I told him that by an arrangement with the widow, and Simpson, she was to have the little homestead. Her title was not to interfere with the mill property. Simpson knew the situation of the homestead. * * * I spoke to him about a deed I had got of S. P. Davis. When I got my deed I was told the judgments of Simpson were not a lien. I was not employed to see Simpson but the once, until after the sale. At the sale I gave notice that I owned the property under the Davis title. Mr. Simpson was not here on the day of sale, and was not at the courthouse that I know of. I had a conversation with Boynton before he purchased of Simpson, he said he would not buy unless he could arrange with the widow.”
    Joseph Housler testified: “I was at Lock Haven with my brother; was at Simpson’s office. My brother spoke to him about his own title; Simpson asked him if he wanted to take any advantage of the widow. My brother replied, that he had made a contract with the widow for the homestead. He sent word to Mrs. Housler that she should give herself no uneasiness, that she should have the homestead. I think I heard him say he had made arrangements for Mr. Newton to bid it off.”
    The homestead lot contained about 18 acres ; there was evidence as to its boundaries.
    H. H. Boynton, defendant, testified: “ I had a conversation with Aden Housler; I never had any knowledge that Mrs. Housler had any claim to this property until to-day. I told Aden Housler that I did not want to buy the property if any of the Houslers wanted to buy it. I never heard that Simpson agreed to convey to Mrs. Housler till this day. I supposed Mrs. Housler lived on the property. Mr. Housler never talked of her claim to me before I bought.”
    It was agreed that Merrick Housler died insolvent.
    The plaintiff submitted these points:—
    1. If the jury believe that the plaintiff, A. II. Boynton, received the conveyance of the land in dispute from W. A. Simpson, without any notice of the alleged agreement between Simpson and Elizabeth Housler, he is entitled to recover.
    2. The fact that Elizabeth Housler and the children of Merrick Housler, deceased, continued in possession of the land in dispute after the death of Merrick Housler, and up to the time of the sale of the land by Simpson to Boynton, does not amount to constructive notice to Boynton of any equities, or equitable trust that Elizabeth Housler might have in the land.
    3. Even if the jury believe, that W. A. Simpson did agree with Elizabeth Housler, before the sheriff’s sale of the land in dispute to him, that in case she would not procure bidders for said land at the sheriff’s sale, he would bid it in and convey the homestead to her, that such contract is without consideration, in fraud of creditors of the estate of Merrick Housler, and therefore void, and the plaintiff is entitled to recover.
    4. Under all the evidence in the case the plaintiff is entitled to recover.
    The court affirmed the first two points of the plaintiff, negatived the third, and affirmed the fourth, except as to the eighteen acres; saying, this “is to be disposed of by the jury under the general charge.”
    The defendants’ point was :
    “ The possession of the defendant at the time when Boynton purchased of Simpson, was notice to Boynton of the extent of her right, and he finding her in possession, was bound to make inquiries of her under what right she claimed possession.”
    The point was negatived.
    The court, in the charge, after giving a synopsis of the evidence, and referring to the alleged agreement between Mrs. Housler and Simpson, said: * * *
    “ The evidence to sustain the agreement is contained in her own testimony, and the testimony of Aden Housler. If the jury are satisfied that they have testified truly in relation to the agreement alleged to have been made by Elizabeth Housler with W. A. Simpson, and that Elizabeth Housler had in good faith carried out her part of the agreement, then we instruct you that under the ruling of the Supreme Court in the case of Beegle v. Wentz, 5 P. F. Smith 369; and Seichrist’s Appeal, 16 Id. 237, Elizabeth Housler is in position to have that contract enforced as between herself and W. A. Simpson, and the present plaintiff stands in no better position, provided the evidence satisfies the jury that A. H. Boynton had notice prior to his purchase of the claim of Elizabeth Housler, or such notice as would put an ordinarily prudent man upon inquiry.” * * *
    The verdict was for the plaintiff “ for the land described in the writ, with the exception of that part known as the ‘ Homestead,’ containing 18 or 20 acres.”
    The plaintiff took out a writ of error ; he assigned for error:
    1. Admitting the evidence objected to.
    2, 8. Not affirming the plaintiff’s third and fourth points.

      JR. P. Allen (with whom was J. B. Newton), for plaintiff in error.
    Agreements by bidders to prevent competition cannot be enforced: 1 Story’s Eq. J., sect. 293; Slingluff v. Eckel, 12 Harris 472. No money having been paid by Mrs. Housler, the contract cannot be enforced: Barnet v. Dougherty, 8 Casey 371.

      O. B. Qurtis, for defendant in error,
    cited Beegle v. Wentz, 5 P. F. Smith 369; Seichrist’s Appeal, 16 Id. 237.
   The opinion of the court was delivered, May 17th 1873, by

Mercur, J.

The plaintiff claims to recover this land under title acquired at a sheriff’s sale, when it was sold as the property of the estate of Merrick Housler, deceased. The defendant, who is the widow of Housler, made defence to a portion of land called “ The Homestead,” containing about eighteen acres. Prior to, and at the time of, the sheriff’s sale, the defendant and her minor children were in the actual possession of the whole property. She had entered into a contract to purchase it from Aden Housler, who held a deed for it subject to the payment of the judgments. While thus holding whatever interest passed to her under this contract, as well as her right of dower, she made the arrangement with Simpson, under which he purchased at sheriff’s sale.

The evidence given by the defendants, which the jury found to be true, was substantially this, to wit: Prior to the sheriff’s sale the defendant had agreed with Aden Housler to bid off the whole land, provided it was not run up higher than $1200 or $1250, which was the value of the property, and if he became the purchaser he was to deed “ The Homestead ” to her. Upon the day next preceding the sale Simpson, who was the plaintiff in the execution, was informed of this arrangement between Aden Housler and the defendant. He then said to them if they would not interfere or bid at the sale, and have it bid off as low as possible, that she should have the homestead; she should not get any bidders, and he would get some one to bid it off; that would be better than for her to bid it off. The defendant and Aden agreed to this proposition. Relying upon it they did not interfere nor bid at the sale; nor did she get any other person to bid for her. Simpson bid it off for $110. The plaintiff bought of him with full knowledge of this arrangement.

Under these facts the court below held that a trust ex maleficio arose in favor of the defendant as to the homestead.

All the errors assigned are substantially to this conclusion.

Where a parol contract for the purchase of land has been carried on malá fide, there is a resulting trust implied by law, and equity will decree a conveyance according to the terms of the contract: McCulloch v. Cowher, 5 W. & S. 427. Equity will not permit one to hold a benefit which he has derived through the fraud even of another, and much less will it do so if he has acquired if by means of his own fraud: Sheriff v. Neal, 6 Watts 540. In Morey v. Herrick, 6 Harris 128, Justice Bell said, “ It is equally well settled that if one be induced to confide in the promise of another, that he will hold in trust, or that he will so purchase for one or both, and is thus led to do what otherwise he would have forborne, or to forbear what he contemplated to do, in the acquisition of an estate, whereby the promissor becomes the holder of the legal title; an attempted denial of the confidence is such a fraud as will operate to convert the purchaser into a trustee ex maleficio.” Where one holding an article of agreement for one hundred and sixteen acres of land, upon which he had paid five dollars only, and was liable to be turned off, surrendered his title under a parol contract that ten acres thereof should be conveyed to him so soon as the person for whose benefit he gave up his title acquired a deed for the legal title, it was held to create a trust ex maleficio in his favor as to the ten acres: Plumer & Crary v. Reed, 2 Wright 46. Nor does it make any difference that the title was acquired by Simpson through a judicial sale : Beegle v. Wentz, 5 P. F. Smith 369, and cases there cited. The case of Beegle v. Wentz was one in which a debtor was induced to relinquish his claim to the $300 exemption, and consented that the whole of his land be sold, under an agreement that the plaintiff was to take a sheriff’s deed for the same and make to the debtor a deed for the part agreed upon. It was held that if the debtor was induced to surrender his right on the false assurance that the part should be left to him, the plaintiff refusing, was a trustee ex maleficio. This was since the Act of April 22d 1856, and was held to be such a trust or confidence as was not affected by that act. The same principle is affirmed in Seichrist’s Appeal, 16 P. F. Smith 237.

It is contended, however, that inasmuch as the agreement between the defendant and Simpson was that she and her agent and friends should not bid at the sale, it was contrary to public policy, and therefore void. In support of this principle the case of Slingluff v. Eckel, 12 Harris 472, is cited. We assent to the correctness of the law there declared, as applied to the facts in that case. That was an agreement between two persons, neither of whom had any possession of or interest in the land. The court there said: “ What we do decree is, that one bidder cannot legally buy off another with money, or the promise of money.”

The distinction in this case is, that the defendant had an interest in the land in reference to which the contract was made, and she was to retain a portion of that land. This is a distinction clearly taken and recognised in Beagle v. Wentz, and in Seichrist’s Appeal, supra.

Judgment affirmed.


author: Agnew, J.

text:
    Frow, Jacobs & Co.’s Estate.
    1. Foresman sold out his interest in a firm to the remaining members, who covenanted jointly and severally to pay the debts, and indemnify him against them; the remaining members continued in the same business as a partnership, took all the first firm's assets and took upon themselves the debts, without any division of Foresman’s interest. Foresman paid debts of the first firm, the second firm afterwards assigned for the benefit of creditors. Held, that Foresman was entitled to come in as a creditor.
    2. The distribution of firm assets is governed by the equities of the partners not the rights of creditors.
    3. In insolvency the firm assets go to discharge the firm creditors before the individual property of the members can be taken.
    4. The other partner, having bought Foresman out and indemnified him, he became their surety, and having paid debts was subrogated to the rights of the creditors.
    5. Cottrell's Appeal, 11 Harris 294 ; Kyner v. Kyner, 6 Watts 221 ; McCormick v. Irwin, 11 Casey 111; Snodgrass’s Appeal, 1 Harris 471, followed.
    March 28th 1873.
    Before Read, C. J., Agnew, Sharswood and Merour, JJ. Williams, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Lycoming county: Of January Term 1872, No. 288.
    In the distribution of the estate of Frow, Jacobs & Co., under a voluntary assignment for the benefit of creditors.
    On the 17th of December 1868, Thomas J. Frow, F. S. Jacobs, T. U. Parker and Seth T. Foresman, by articles of agreement of that date entered into partnership in “ a general planing-mill business” in Williamsport, under the firm name of Frow, Foresman & Co.; the land on which the mill was erected to be owned by them in equal fourth parts as tenants in common; the capital to be fur-' nished by the partners in equal proportions of one-fourth each, and the profits and losses to be shared in the same proportions; if either of the partners should at any time desire to sell his interest in the partnership, the remaining partners to have the first privilege of purchasing.

      By articles of agreement of August 20th 1869, between Thomas J. Frow, F. S. Jacobs and Thomas U. Parker of the first part, and Seth T. Foresman of the second part, Foresman sold all his interest in the “planing-mill,” and “all his interest in the partnership of Frow, Foresman & Co., in the manufacture and sale of lumber and general planing-mill business heretofore lately subsisting and this day dissolved; the interest of said Foresman in all debts due said firm being hereby transferred to the party of the first part, as well as anything else pertaining to or held by said Foresman, and the said Foresman hereby relinquishes all claim to participate in the same in any way. In consideration whereof said Frow, Jacobs and Parker, parties of the first part, hereby agree jointly and severally to pay to said Foresman the sum of $4126.96” (for which notes were to be given), * * * “the party of first-part shall assign to said Foresman their policy of insurance on said planing-mill to an amount covering their liabilities to said Foresman, to be held by him as collateral security on the notes above-mentioned until the same.are paid.”
    The party of the first part also relinquished “ their right to and they do hereby transfer and assign to said Foresman the account of Frow, Foresman & Co., against Charles Lord of Pottsville, amounting to $1835.61, * * * to be held as additional collateral security on the notes of the party of the first part. Witness our hands and seals, &c., Thomas J. Frow, [seal/
    F. S. Jacobs, [seal/
    Thomas U. Parker, [seal/
    S. T. Foresman, [seal.]”
    Attached to this agreement was a “ supplement,” which H. T. McCormick, Esq., who drew the paper, testified, was an inadvertent omission of his and was “ afterwards added at the same time.”
    This supplement was :—
    “ It is further stipulated by the party of the first part and made a part of the above agreement, and of the consideration of the above transfer, that we do jointly and severally covenant and agree that the existing debts of Frow, Foresman & Co., shall be liquidated by the party of the first part, and that the said Seth T. Foresman shall be indemnified by ns for any payment of same or-any part thereof that may be enforced against him. Witness our hands and seals, &c..
    Thomas J. Frow, seal.
    F; S. Jacobs, SEAL.'
    Thomas U. Parker,
    On the 20th of January 1870, by articles of agreement between F. S. Jacobs of the first part and Thomas J. Frow and Thomas U. Parker of second part, Jacobs agreed to sell and transfer to Frow and Parker his interest “being one-third” in the planing-mill, “ including the land appertenant and adjacent thereto, and belonging to and part of said mill property, * * * and all his interest in the personal property in and about said mill or elsewhere, belonging to the late firm of Frow, Jacobs & Co., and all his interest in the accounts, notes, &c., of that firm; the consideration was $4000 in money and their notes,” said Frow and Parker agreeing to pay all the outstanding indebtedness of Frow, Foresman & Co., and Frow, Jacobs & Co., of which said firms said Jacobs was a member, and for ever keep clear and harmless the said Jacobs for any sums he may be compelled to pay for or on account of said indebtedness. The partnership of Frow, Jacobs & Co., being this day dissolved by force and virtue of the terms of this agreement,” &c.
    This agreement was signed by the parties individually with their seals.
    On the same day an agreement was entered into between Thomas J. Frow and Thomas U. Parker of the first part and Seth T. Foresman of the second part, by which Frow and Parker agreed to sell to Foresman “the undivided one-fourth interest in the planing-mill, * * * and when the deed is made for said property, it shall be made to the parties hereto as tenants in common and not as copartners, the undivided three-fourths to be held by the party of the first part, and the remaining one-fourth by said Fores-man.” The sale to include not only the interest in the land but also an undivided one-fourth of the personal property of Frow, Jacobs & Go. In consideration Foresman agreed to deliver to the party of the first part all the unpaid notes in his possession, of which Frow and Parker and F. S. Jacobs are the makers, and which were given to him by them on the 20th of August then last past, for his interest in the mill then sold to them and by him now purchased; Foresman to pay Piper & Lyon $1676.75, one of two notes held by them against the late firm of Frow, Foresman & Co., which Frow and Parker had theretofore in writing bound themselves to pay; Foresman not to be liable for any indebtedness of the firms of either Frow, Jacobs & Co., or Frow, Foresman & Co., except as before excepted, and except further, a note of Tompkins, &c., for $480.65, which the firm of S. T. Foresman & Co. agree to pay, and against the payment of any such indebtedness, “ Frow and Parker jointly and severally agree to indemnify the said Fores-man.” The parties further agreed to associate themselves as partners in the planing-mill business under the firm name of S. T. Foresman & Co., the parties to furnish capital in the proportion of three-fourths by Frow and Parker and one-fourth by Foresman, and the gains and losses to be shared in the same proportions.
    The firm of S. T. Foresman & Co. continued in business until March 15th 1870, when T. J. Frow and T. U. Parker, two of the firm, and previously members of the firm of Frow, Jacobs & Co., made an assignment to H. C. McCormick, Esq., of all- their property for the benefit of the creditors of Frow, Jacobs & Co.
    On the 1st of May 1871, the account of the assignee was confirmed ; it showed a balance of $9891.44 in his hands; it was referred to Herbert T. Ames, Esq., for distribution.
    The principal question in the distribution was, whether Seth T. Foresman was entitled to a dividend of the assigned estate, under the articles of dissolution of August 20th 1869, of the firm of Frow, Foresman & Co., or whether the contract for indemnity in those articles bound Frow, Jacobs and Parker only as individuals.
    Parker testified that at the time Frow, Jacobs & Co. bought the interest of Foresman, that firm assumed the liabilities of Frow, Foresman & Co. Frow, Jacobs & Co., received all the assets of Frow, Foresman & Co.; Frow, Jacobs & Co., paid nearly all the indebtedness of Frow, Foresman & Co., between the time Fores-man sold his interest and the time he again purchased. Foresman was to assume some accounts, one was Piper & Lyon, which he paid; this account was against Frow, Foresman & Co.
    There was other evidence of the payment by Frow, Jacobs & Co., of the liabilities of Frow, Foresman & Co., and also of payments by Foresman of liabilities of the latter firm.
    H. W. Watson, Esq., testified that Piper & Lyon, after the dissolution of Frow, Foresman & Co., placed in his hands for collection two notes amounting to about.$3300. After suit was brought, Piper & Lyon, Foresman and Frow came to his offi.ce; one of the notes was taken up by a note of Frow, Jacobs & Co., to the order of Foresman for about $1600, the other was disposed of by giving two notes “ payable down country,” amounting to $900, the balance by note of Frow and Parker, endorsed by Foresman; he paid the costs. Piper took one of the notes and Lyon the other. Witness advised Piper and Lyon that if they wished the notes to be endorsed by Foresman, they should be made payable to him; the notes were drawn in accordance with that advice; the consideration of these notes was the indebtedness of Frow, Foresman & Co. Piper & Lyon had taken notes of Frow, Jacobs & Co., and held the original notes of Frow, Foresman & Co. as collateral; and when the notes of Frow, Jacobs & Co. went to protest, the suit was brought on the original notes. “ The notes of Frow and Parker endorsed by Foresman, cancelled the original notes of Frow, Foresman & Co., they were taken in payment.”
    Piper, of the firm of Piper & Lyon, testified, that through Mr. Watson they had sued out the two notes of Fi-oay, Foresman & Co., and that Foresman paid one of them $1600.
    Foresman testified that the notes to Piper & Lyon were given for the original indebtedness of Frow,’Foresman & Co., he afterwards paid it to Piper. He Avas notified to pay it, “ Mr. Piper called my attention to it and of,course I had to pay it;” he Avas compelled to pay a debt of Frow, Foresman & Co., to Young, Finley & Co. Foresman objected to endorsing the notes as long as he could, and finally endorsed them ; at the time Foresman sold his interest to Frow, Jacobs & Parker, they purchased with a view to continue the partnership, to consist of Frow, Jacobs and Parker.
    Mr. McCormick testified that at the time of the agreement of August 20th 1869, by which Foresman sold out his interest to his partners, the whole business was talked over by the partners; as consideration they agreed to repay him the amount of his investment in the concern at 10 per cent, interest: it was also agreed that Frow, Jacobs & Parker would form a new firm, take all the assets of Frow, Foresman & Co., and pay all their indebtedness; the new firm to be composed of Frow, Jacobs and Parker was not then formed; they did form a partnership afterward, and called it Frow, Jacobs & Co., and carried on the planing-mill business the same as the old firm.
    There was evidence also, that the books of the firm of “Frow,. Jacobs & Co.” were opened the same day of the agreement, and the notes given to Foresman w'ere appropriately entered on them.
    The auditor found the facts substantially as stated in the foregoing testimony, he also found that $831.84, the balance of the $900 notes, was arranged by Frow & Parker giving their note payable to Foresman, endorsed by him ; and afterward paid him; and that this note was part of the original indebtedness of Frow, Foresman & Co. to Piper & Lyon.
    Foresman submitted to the auditor the following propositions:—
    1. If the auditor finds as a fact, that the firm of Frow, Jacobs & Co. agreed, for a valuable consideration, to indemnify Fores-man against the payment of the indebtedness of the firm of Frow, Foresman & Co., and if the firm of Frow, Jacobs & Co. received that consideration, and Foresman was afterwards compelled to pay any part of said indebtedness, Foresman is to that extent a creditor of the firm of Frow, Jacobs & Co., and entitled to participate in this distribution.
    2. If the auditor finds as a fact, that Frow, Jacobs & Parker or either of them agreed, for a valuable consideration, to indemnify Foresman against the payment of the debts of Frow, Fores-man & Co., and if the firm of Frow, Jacobs & Co. received said consideration, Foresman then becomes a creditor of Frow, Jacobs & Co. to the extent of whatever amount- of said indebtedness he was compelled to pay.
    3. If the auditor finds as a fact, that Foresman was compelled to pay, as endorser, a note of any individual member of the firm of Frow, Jacobs & Co., he is a creditor of said firm to that extent, if said note W'as given for an original indebtedness of Frow, Fores-man & Co.
    4. If the auditor finds as a fact, that the note of Frow, Jacobs & Parker to Piper & Lyon, and Eoresman, as endorser, was compelled to pay it, lie is a creditor of the firm of Erow, Jacobs & Co., to that extent, whether it was originally a debt of Erow, Eoresman & Co., or not.
    The auditor reported his opinion as follows: * * *
    “ The primary question to be settled, is whether there was an assumption by the firm of Erow, Jacobs & Co., or was it an individual assumption by Erow, Jacobs and Parker. If it was the intention of the parties when they gave that bond of indemnity to bind the firm of Erow, Jacobs & Co., and if that firm was then in existence, then notwithstanding its form, they would be bound by it, and Seth T. Eoresman would be entitled to claim as creditor of the firm of Erow, Jacobs & Co., and entitled to participate in this distribution. * * *
    After discussing the evidence and the law at some length, the auditor says:
    * * * “ Believing Eoresman to be an individual creditor, he has his remedy upon the separate funds of Frow, Jacobs and Parker, and a preference in that to which the partnership creditors are not entitled.”
    * * * “ There is one other feature of this case which should receive some consideration, and that is the note given by Erow & Parker to Piper & Lyon. There is no question but that Eoresman is liable on his endorsement, the note being payable to his order, and endorsed by him. But the learned counsel for the claimant insists that the original indebtedness being that of Erow, Eoresman & Co., and the consideration being that indebtedness, that they have a right to participate in the distribution. But I cannot accede to this proposition, for the evidence is clear that Piper & Lyon took this note of Erow & Parker in payment of their indebtedness.”’
    The auditor decided that Eoresman was not entitled to participate in the distribution of the estate of Erow, Jacobs & Co., and accordingly reported a distribution excluding his claim.
    Eoresman filed exceptions to the report, that the auditor erred in thus excluding him.
    The court sustained the exception, and referred the matter again to the same auditor, with instructions to allow the claim of Eoresman.
    The auditor made a second report, awarding a dividend to Eoresman on his claims.
    C. E. Banstead, and other creditors of Erow, Jacobs & Co., filed exceptions to the report, viz.:
    1. Allowing the claim of S. T. Eoresman.
    2. Allowing that part of his claim composed of the note of Frow & Parker, endorsed by him, and received by Piper & Lyon in payment of the indebtedness of Erow, Eoresman & Co.

      The court overruled the exceptions and confirmed the second report of the auditor.
    The excepting creditors appealed to the Supreme Court, and assigned the confirmation of the auditor’s report for error.

      Maynard, Eutermarks Parker; Armstrong Linn and 21. 0. Parsons, for appellants.
    The creditors of Frow, Foresman & Co. were not creditors of Frow, Jacobs & Co.: Ex parte Ruffin, 6 Ves. 119; Ex parte Fell, 10 Id. 347; Collyer on Partnership 807, 89 ; Story on Partnership, sec. 146; Baker’s Appeal, 9 Harris 76; Parsons on Partnership 421.

      J. J. Metzgar and S. T. MeQormick, for appellees. —
    Taking a joint and several bond from members of a firm, does not discharge the liability of the firm: Wallace v. Fairman, 4 Watts 379; Bowers v. Still, 13 Wright 72; Schollenberger v. Seldonridge, Id. 83.
   The opinion of the court was delivered, May 17th 1873, by

Agnew, J.

Thomas J. Frow and Thos. U. Parker, who had been partners in the firm of Frow, Jacobs & Co., having made a voluntary assignment for the benefit of the creditors of Frow, Jacobs & Co.; the true question is, whether the debts claimed by Seth T. Foresman are debts of the firm of Frow, Jacobs & Co. If they are, they fall within the terms of the assignment, and must be paid out of the fund. If the answer to the question depended solely on the covenant of Frow, Jacobs & Parker, contained in the agreement of August 20th 1869, to indemnify S. T. Foresman, the conclusion of the learned auditor would have been correct, as that covenant created only a joint and several obligation. But Frow, Jacobs and Parker were already liable for these debts as partners in the firm of Foresman & Co., which they took upon themselves when Foresman retired from the firm, and they continued the business. The evidence is clear, that, when Foresman sold out his interest to his partners and retired, they proposed to continue the business, and did so. When he went out they took all the assets of the firm into the business and took upon themselves all the debts. There was no separation of Fores-man’s interest or share in either assets or debts. These assets became the capital of the new firm, and the debts, already partnership, as it regards them, became its debts. In short, it was but a dropping out of Foresman, leaving the others partners in all respects.

Clearly Frow, Jacobs and Parker did not intend, as among themselves, that the debts which they thus assumed, should change their character, and become claims against themselves as individuals, and not to follow the partnership assets. The effect of such an intention would be to throw the burthen, in case of insolvency of one or more, upon them or him who remained, and to let the partnership assets go free. Such an intent is inferable from no facts in the case, and is disproved by their • subsequent ■ acts in paying off debts of Frow, Foresman & Co., out of the means of Frow, Jacobs & Co., by entries in their books, and by the express testimony of Parker, one of the last firms, and of H. C. McCormick, Esq. Parker swears that the firm of Frow, Jacobs & Co. assumed these debts, and McCormick states that at the time of writing the agreement between Foresman & Frow, Jacobs and Parker, “they talked over the indebtedness of Frow, Foresman & Co., and they agreed that they, Frow, Jacobs and Parker, would form a new firm, take all the assets of Frow, Foresman & Co., and pay all the indebtedness of the old firm.” That these debts were assumed by the new firm is manifest from the nature of the business, the attending circumstances, the declared intention of the parties, their subsequent acts, and their interests.

It is the equity among the parties themselves which governs, in the distribution of partnership assets, and not the mere rights of creditors: Snodgrass’s Appeal, 1 Harris 471. “ This equity, (says Judge Bell), springing from their community of interests in the capital stock and assets of the partnership, is to have the avails of these applied in discharge of their mutual liabilities, before any individual of the number is permitted to apply joint property to his private use.” And I may add, the same equity, in the case of the insolvency of the partnership, requires its effects to go in discharge of the firm debts, as far as they will reach, before the individual property of any one of the partners shall be taken to pay the excess.

The equity of these debts to participate in the fund being established, Foresman’s right to receive the money follows. When the other partners bought him out and assumed payment of the debts in consideration of his interest in the firm property he stood in the attitude-of a surety to his former partners, who undertook to indemnify' him against payment. When he paid any of the debts he became entitled to be substituted in equity to the rights of the creditors: Kyner v. Kyner, 6 Watts 221; Cottrell’s Appeal, 11 Harris 294. “ The doctrine (says Judge Strong) does not depend upon privity, nor is it confined to cases of strict suretyship. It is a mode which equity adopts to compel the ultimate discharge of the debt by him, who in good conscience ought to pay it, and to relieve him whom none but the creditor could ask to pay. To effect this the latter is allowed to take the place of the creditor and make use of all the creditor’s securities, as if they were his own: McCormick’s Administrator v. Irwin, 11 Casey 111.

It is contended that, at all events, Foresman is not entitled to be paid the sum of $831.84, the residue of a note held by Piper & Lyon against Frow, Jacobs & Co., on the ground that by a settlement between Frow & Parker, and Lyon, the holder of the note, the latter took a new note of Frow & Parker in payment, and cancelled the note by Frow, Jacobs & Co., and thenceforth that debt was gone. But this is not a full statement of the facts. The note of Frow, Jacobs & Co. was taken for a debt of Frow, Foresman & Co., one of the debts assumed by Frow, Jacobs & Co., and at the time of' taking it Piper and Lyon retained the note of Frow, Foresman & Co., as collateral security for the payment of the debt; and they still retained it when Frow & Parker gave their note for the balance of $831.84. Therefore, when Foresman, who was compelled against his wish to endorse this note of Frow & Parker, for $831.84, because of his continued liability on the original note of Frow, Foresman & Co., to Piper & Lyon, paid the note as endorser, he became entitled to stand in the room of Piper and Lyon, and to a cession of their security, viz., the original note of Frow, Foresman & Co., and according to the principles already stated he became entitled to come in upon the fund in place of Piper and Lyon. We think the learned judge below was right in his conclusion, and the decree is affirmed with costs to be paid by the appellant.