author: Chief Justice Agnew

text:
    Kendig’s Appeal.
    1. Parol evidence is inadmissible to show that the entry of an award of arbitrators in the judgment docket, was interlined at a time subsequent to the time of filing, as it appeal’s of record.
    2. An auditor for distribution cannot go beyond the record of liens, to inquire in what order of time judgments and awards shall have been actually entered and filed, but is bound, by the entries as they are made in the iuda:ment docket.
    3. Upon an application to amend or alter the record, to grant or deny rests within the sound discretion of the court whose rocordi it is, and is not the subject of an appeal.
    May 5th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the decree of the Court of Common Pleas of York county: No. Ill, of May Term 1876, distributing the proceeds of the sheriff’s sale of the real estate of Frederick S. Fry, confirming the report of the auditor distributing said proceeds, and discharging rule on Daniel A. Rupp.
    Eli Kendig, the appellant, obtained a judgment in the Common Pleas, upon a warrant of attorney for the sum of $2396, entered upon the docket on the 1st day of June 1871, which was regularly indexed in the judgment docket.
    Execution issued thereon November 25th 1874, continued by venditioni exponas, January 26th 1875, on which there was sale of the defendant’s real estate on the 27th of March 1875 for $1000, netting $967.50, as applicable to defendant’s indebtedness.
    Daniel A. Rupp, the appellee, claimed $443.38, with interest, of the proceeds, as a prior lien creditor. He had brought suit against Fry and an award of arbitrators was filed in the Common Pleas on the 19th of May 1871.
    This award had not been indexed.by the then prothonotary in the lien docket.
    Before the sale, about the 15th of March 1875, Rupp called on the present prothonotary, who, not finding the award entered in the judgment docket, searched and found it in the appearance docket. The prothonotary called in the former pirothonotary, who, in his presence, interlined in the judgment docket at its place, in the order of time as it was filed, the entry of the award. It seems Rupp was standing by, but not taking any active part in the matter. On the 20th of March 1875, Fry, with the consent of Rupp, the pilaintiff, in writing filed, withdrew his appeal and confessed judgment for the sum awarded by the arbitrators.
    On the 27th of March 1875, the sheriff sold the defendant’s real estate, and the proceeds being ruled into court, on the 20th of May 1875, N. M. Wanner, Esq., was appointed auditor “to distribute the money realized by the sheriff from the sale of the real estate of Fry, defendant, to and among the persons entitled thereto, under the Act of 20th of June 1871.

      The auditor refused to admit the evidence of the interlineation, held the record as verity, and gave precedence to the Rupp judgment. This was excepted to, but sustained by the court below, and this appeal taken by ICendig.
    On the-2d of September 1875, ICendig presented a petition setting forth the entry of Kendig’s judgment, the fi.' fa., sale, that he became the purchaser, Rupp’s claim, the appointment of the auditor, the obtaining of the award, the interlineation by the ex-prothonotary in the presence of Rupp, that there was no other entry of Rupp’s judgment in the judgment docket or entry of Fry’s confession, except the aforesaid interlineation, that these facts were set before the auditor and rejected, and asked a rule on Rupp to answer the petition, and show cause, &c., why the entry on the judgment docket, interlined as of March 1875 of his award, &c., should not be stricken off, and such other relief as the case may require.
    The answer of Rupp, not admitting any of the facts, except so far as they appeared by the record and in the proceedings of the auditor, denied any interlineation made at his instance, or that he adopted the transaction and claimed upon his award. The petition and answer were drawn with some degree of formality.
    The exceptions to the auditor’s report appear to have been taken up with the hearing of this rule, and the one dismissed and the other discharged at the same time.
    The court below, McLean, P. J., held that the question upon the auditor’s report was one of distribution, that the auditor could not alter the order of the liens, that the prothonotary was liable for any injury done by the omission to enter the award or by an alteration, but that parol testimony was inadmissible as against the record, to show that it was in fact entered on another day, and that the actual time as it appears of record should be taken, and not the time of its entry.

      John Gribson, for appellant,
    cited Act 20th March 1810, sect. 10 ; 5 Sm. Laws 135; Act 29th March 1827, sect. 3, Pamph. L. 155; 9 Sm. Laws 319; Br. Purd. 822, pi. 18; Act 16th June 1836, sect. 23, Pamph. L. 722, Br. Purd., pl. 50; Mann’s Appeal, 1 Barr 24; as to immediate entry of award. Acts 3d April 1843, sect. 1, Pamph. L. 127, Br. Purd. 823, pi. 20; and 16th April 1849, sect. 5, Pamph. L. 664; Ibid. pi. 21; confirming judgments not properly entered on lien docket, saving purchasers bond, fide and other creditors whose judgments were properly entered.
    Creditors not bound to look beyond the judgment docket: Hance’s Appeal, 1 Barr 408; Ridgway, Budd & Co.’s Appeal, 3 Harris 177; Wood v. Reynolds, 7 W. & S. 406; Mehaffy’s Appeal, 7 Id. 200; Crutcher v. Commonwealth, 6 Whart. 340. Only docket to be examined: Bear v. Patterson, 3 W. & S. 233; Stephens’s Ex.’s Appeal, 2 Wright 9. Duty of plaintiff in award to see it rightly entered: Wood v. Reynolds, 7 W. & S. 406; Coyne v. Souther, 11 P. F. Smith 455. Should have applied to court for leave to alter: Brotherline v. Mallory, 8 Watts 136; Morris v. Galbraith, 8 Id. 168. Such amendment would not affect the rights of subsequent judgment creditors: Black v. Dobson, 11 S. & R. 97. As to parol evidence of alteration: Gardner v. Humphrey, 10 Johns. Rep. 53; Middleton v. Manucaptors, 1 Sid. 216; Brier v. Woodbury, 1 Pick. 362. Unauthorized, unofficial act of no validity in registration: Kerns v. Swope, 2 Watts 75. As to right to appeal: Springer v. Springer, 7 Wright 518; Horton v. Miller, 8 Id. 256; Steele’s Appeal, 22 P. F. Smith 101; Gordonier v. Billings, 27 Id. 498; Neff v. Miller, 8 Barr 347; Mosier’s Appeal, 6 P. F. Smith 76; York Bank’s Appeal, 12 Casey 458.

      Hdward Chapin, for appellee. —
    The auditor had no right to inquire into judgment: Dyott’s Estate, 2 W. & S. 567; Leeds v. Bender, 6 Id. 318; Thompson’s Appeal, 7 P. F. Smith 177; Edwards’s Appeal, 16 Id. 89; Borland’s Appeal, 16 Id. 472. As to the record: Leighton v. Leighton, 1 Strange 210; Hynde’s Case, 2 Rep. 456; Dickson v. Fisher, 1 W. Black. 664; Garrick v. Williams, 3 Taunt. 544; Reed v. Hopper, 3 Price’s Exch. Rep. 495; Adams v. Betz, 1 Watts 425; Kennedy v. Wachsmuth, 12 S. & R. 171; Selin v. Snyder, 7 Id. 171; Hoffman v. Coster, 2 Whart. 468. As to right to appeal on discharge of rule: Commonwealth v. Judges, 3 Binn. 275; Commonwealth v. Judges, 1 S. &R. 192; Clymer v. Thomas, 7 Id. 180; Ordroneaux v. Prady, 6 Id. 510.
   Chief Justice Agnew

delivered the opinion of the Court, May 15th 1876

These appeals are presented in the same paper-book, and were argued together pretty much as if they were one case. But they are quite distinct. One is an appeal from a decree in a proceeding to distribute the proceeds of a sheriff’s sale of real estate; the other from an application by one judgment-creditor against another, to correct the entry of a judgment .of the latter in the judgment index. In each case the gravamen of the complaint is that the prothonotary had at a late day entered an award of arbitrators of Daniel A. Rupp on the judgment index to the prejudice of Eli Kendig, whereby his judgment became postponed to the award of Rupp.

The question was first raised before the auditor in the distribution proceeding; who was asked to hear the testimony and to postpone the award. He declined on the ground that it was not within his province to correct the record. He was clearly right. He could take the judgment on the award, for such it is in effect under the Act of Assembly, only as certified to him by the prothonotary; and this exhibited it as regularly indexed, and prior in time to Kendig’s judgment. And even if he had sent a subpoena duces tecum to the officer to bring with him the original record, he could not inquire into its correctness. It is argued that he could do so on the ground of fraud. But this is to confound proper distinctions. Undoubtedly the effect of a record may sometimes be avoided by showing fraud in procuring it, but this does not touch the verity of the record itself. The purpose here, however, was to affect the entry on the record, its very verity, as a truthful record of what was done officially. This clearly the auditor could not do. No such power was committed to him by the court.

This brings us then to the second appeal, that from the refusal of the court to correct the entry in the index, on the application of Kendig. If we consider this proceeding as it really is, an application by one creditor to correct the record entry of the officer in the record of the judgment of another creditor, there is in this court no power to review the refusal of the court below. Such an application is to the sound discretion of the court below, from which no appeal lies; and a writ of error does not bring up the evidence. We are bound to presume that the-court below refused the petition on some just and proper ground. But it is argued that the proceeding was- not an ordinary common-law application to the discretion of the court to correct an error in the record, but is in the nature of a bill in equity answered by the defendant, and considered by the court below upon bill, answer and proofs. It is very true that the petition is full and formal, and the answer is likewise; and if they constituted substantially a proceeding in equity an appeal would lie. The decisions on this point regard the substance of the proceeding and not its form. But in such case the petition must set forth substantially an equity, which gives the court chancery jurisdiction, and pray for some relief that a court of equity can give in such a case. Now the petition does not set forth any fraud of the defendant in procuring a falsification of the record, or any such accident or mistake as confers equity jurisdiction on the ground of fraud, accident or mistake. It does not even set forth the unauthorized act of a third person. Nor does it show, as a ground of relief, that the petitioner examined the record before lending his money or doing any act on the faith of the state of the record, which by reason of its then condition misled him; while its only specific prayer for relief is not an injunction to prevent the respondent from using it to his prejudice, but is a prayer that the entry in the judgment index, which he terms the interlineation of the lien, should be stricken from the judgment docket. It is, therefore, not substantially a bill in equity to enjoin the respondent (or appellee) from the benefit of the lien of his award, on the ground of fraud or other head of equity, but is really with all its verbiage nothing more than an application to amend or correct the record of the entry in the judgment index. The proof also fails to connect the appellee (or respondent) with any fraud or unauthorized falsification of the entry. In fact it is apparent, that the act was that of the officer himself (the prothonotary), who also called on the ex-officer to make a correction of a matter happening within the term of office of the latter. Being done with the consent of the prothonotary, it was really his act. His error was in suffering the amendment of the judgment index without the authority of the court. This was a grave misdemeanor on his part. Had the court been applied to, it would, in allowing the correction, have made it so that the interests of a prior lien-creditor would have been protected. But as we said in the beginning on this point, the court having refused the petition to strike off the entry, it was an exercise of sound discretion from which there was no appeal, and it is not our province to correct the refusal, if it were a mistake. We are bound to presume that the court had a good ground for its refusal.

The decree of distribution affirmed with costs, and the appeal therefrom dismissed, and the appeal from the order upon the petition to strike the entry from the judgment index quashed at the costs of the appellant.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Cauffman et al. versus Long.
    1. Where a ease is submitted to a jury upon clearly insufficient evidence, such as no court ought to sustain a verdict upon, this court will reverse.
    2. It is the duty of the court to determine the sufficiency of evidence of testamentary incapacity, and it is error to submit the question to a jury unless it be sufficient.
    3; It is error to submit to the jury matter of which there is no evidence.
    May 8th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Perry county: No. 28. Of May Term 1876.
    This was a feigned issue, upon precept from the register, filed in the Common Pleas, directed to try the validity of the will of Henry Cauffman, deceased, presented for probate by Abraham Cauffman and Benjamin Cauffman, executors named therein, against which Mary A. Long filed a caveat, alleging—
    1. That Henry Cauffman was not competent to make said writing; that he was not in his proper mind.
    2. And the same was induced by undue influence and fraud.
    The executors were made plaintiffs, to sustain the will, and are plaintiffs in error, and Mary A. Long defendant, contesting the will, and is defendant in error.
    The case was tried upon a wager before Junkin, P. J., October 26th 1875. •
    'The will was drawn by Lewis Potter, Esq., a lawyer, specially sent for, on the 6th of February 1873, in the presence of none other than the testator and himself, and left in the keeping of the testator, who died on the 2d of June 1875, more than two years afterward, at the age of seventy-eight. Mr. Potter and the testator left the basement where they had taken dinner with the rest of the family, went up stairs to a sitting room, where, at a table provided with writing material, the testator first submitted a will which had been drawn by Rev. John Snyder, and which Mr. Potter advised him to cancel by reason of some informality. It was cancelled there, and without hesitation the testator dictated, and indicated with pen or pencil, on a skeleton made by Mr. Potter, the dividing lines of the land..
    • When drawn and read to him, the testator, on being told that another witness was necessary, rapped upon the floor and told a lady who answered the summons to bring Jones, and at the testator’s . request Mr. Potter and Jones subscribed as witnesses.
    The testator left two sons, the executors, and three daughters, Sarah, unmarried, Mary Long and Eliza Shellenberger, all of whom survived him except Eliza, who left two daughters, mentioned in his will as granddaughters.
    By this will he gave to Abraham his stock, consisting of horses and cows, all his farming utensils and all the personal property in the house in which he resided, except what he reserved for Sarah; the old farm he then resided on, except the part where Benjamin resided, and all the improvements belonging to the old farm, and the field east of the improvements; that is, Benjamin should have the first field east of his improvements where he resides, above the road that leads to Liverpool; the tract known as the Turkey Valley tract, and the tract known as the Sypher farm, the balance of the Baker tract, after Benjamin had his portion; the balance of the Long tract, after Benjamin had his portion.
    He gave to Benjamin two fields of the Baker tract south of his house to Shellenberger’s line; that portion of the old mansion tract between the Liverpool road and the Strasser road, to extend east as far as the middle fence, and to be a straight line across from the Liverpool to the Strasser road; the tract known as the Tannery tract; that portion of the Baker tract north of the Tannery tract; all that tract of land situate in Liverpool township, purchased from his brother Joseph; excepting the timber of five acres, to be used on the old mansion when needed, a portion of which was to be used on the Sypher tract when needed; a house and lot he owned in the town of Nineva, state of Indiana.
    Also, to Benjamin and Abraham his share in a store, including his share in the books in said store.
    To his daughter Sárak he gave two good beds and bedsteads, one rocking-chair and two other chairs, and one chest out of his household furniture; directed that she should have her home with his two sons Abraham and Benjamin on the farms, wherever she chose to stay, and that she should be kept in a decent and respectable manner during her natural life.
    He gave to Mary Ann Long, the contestant, $300, to be paid her three years after his decease by his executors.
    To his granddaughter Elizabeth E. Shellenberger $300, to be paid four years after his death by his executors.
    And the same to Mary Laura Shellenberger, granddaughter, to be paid five years after his decease.
    This disposition appears to have comprehended all his property. The testator, Henry Cauffman, had in 1841 taken by devise from his father-what was called the mansion farm and the tract in Turkey Yalley, valued then at $2660, and the balance of the executor’s account of his father’s estate, which was $13,000. The value of the real and personal estate that passed by his own will was stated at $60,000, which includes the increased value of the lands he had received by devise and now estimated at $20,000. Of close, careful, saving disposition, unsocial, peculiar by disposition and habit, and in his latter years afflicted with rheumatism, and almost deprived of sight, while his wife lived he referred many matters of business to her, and after her death to his sons Abraham and Benjamin.
    These latter remained with him, worked for him and under him until they were both advanced in life, he living in the family of Abraham on the mansion farm. Eliza married when she was at the age of twenty-four, and had died, leaving her husband and the two children Elizabeth and Mary. Mary Long was taken when but ten days old, at the death of her mother, and raised by a Mrs. Long, married Joseph Long at the early age of sixteen, it seems against the will of the testator, had been subjected to a life of ill-treatment, and in the life of the testator had been driven from her home, and forced to hard daily labor.
    The question of undue influence and fraud was withdrawn from the consideration of the jury by the court below, for want of any evidence to support the allegation.
    That of incapacity was submitted upon evidence in substance as' follows:—
    Kirk Haines: “ I knew Henry Cauffman since 1837, and prior perhaps; I was in the mercantile business part of this time; Cauffman dealt with us in his trucking arrangements. He would come to the store with his wife and she would do the bargaining; he hardly ever interfered. His wife, while she lived, did the business, and after her death, then Benjamin and Abraham Cauffman came in nearly every week with produce. When applied to for what he wanted he would refer to his wife, and he took no part in it. He seemed to be a mere protection to his wife in bringing her i&,*,&c. In latter part of his life I never asked him anything about dealings. This conduct was habitual. From this my opinion is that he was a weak-minded man, but very stubborn, in his opinion, immovable. Yet I know that he was controlled or allowed himself to be controlled. He might have been capable in mind of making a contract, but he would never do it without the advice of his sons Abraham and Benjamin. My opinion is that he could make an advantageous contract, because of his fondness of money; making and keeping money was his leading star. He was not speculative, but kept all he got.”
    Abraham Long: “ Henry Cauffman was my uncle. His habit was to stay at home, visited none; was not once in our house in the last fifteen years; he was crippled with rheumatism during this time.”
    Sheriff Rinehart: “ Knew Henry Cauffman ever since I was a boy; 1860 or 1862 there was a dispute about the control of a church, and during the controversy Shimp, the minister, said this was God’s house. Cauffman replied, ‘ It is not your house nor God Almighty’s house. It is my house. I built it.’ Shimp announced services in the house, and Cauffman said, ‘ You better don’t or you better won’t.’ There was some more conversation, and Shimp again announced preaching, and Cauffman again replied in-the same way, and added, ‘We want one to preach Christ and Him crucified, and not for money, money, all the time, as you do.’ I had no intercourse with him then until I was sheriff, in November 1869. In serving the writ, he asked me what it was about, and I told him, and he got a little excited, cross at me, and then I explained that it was my duty. He remarked there was no justice in this. He said there was no use of a man going to court unless he belonged to a secret organization. I never knew him to have any social habits. When I went there he generally asked me to see Abraham. My opinion is that he was a monomaniac, that he was rational on some subjects, and not on others; that his mind could be influenced, that he would follow a man he had confidence in; that if he disliked a man he could not be reconciled to him; that he was a weak-minded man and could be led astray.”
    Isaac L. Long: “ I went to see my grandfather, met him seated outside on a bench. I asked him if he knew me; said he did not. Told him I was the son of his daughter Mary ; he made no reply. I told him the condition of my mother, that she was driven from my father’s, and had no means of supporting herself except working by the week. He made no reply. Abraham spoke up and said she did not help to earn any of this property, and was not entitled to any of it. The old gentleman called his dog and hissed, him on something, and that ended the conversation.”
    Abraham Long : “ He was sitting on .the porch and I bid him the time of day, and he said ‘ Hunck ?’ Then I asked him where the women were, and he said ‘ Was sag’t ?’ I repeated the question in German, and he made some noise in answer to it. He looked up queerly, jerking himself up. Erom this I formed the opinion his mind was wavering.”
    Isaac Wright: “ Known him for forty years; about twenty-five years ago I went to buy grain. He named a price; I agreed to give it; said he would let me know in a few days; never got it. Next season went after corn; said his wife was not at home ; offered to pay money on it, which he refused; could have it if his wife agreed, and then could pay. Went to him for lime, they were just going to dinner, said I should go with him into his house. Dinner was ready; the family ate, we were left sitting in the same room until they were done, and then he gave the lime. From these facts I think the old man was not sound in mind.”
    Dr. Jacob Ritter: “ Knew him thirty years, saw him frequently, and had special conversations; peculiar in appearance and habits; lacked sociability and confidence in every person. Saw him shortly before his death. He could scarcely discern me, but knew my voice. When I first knew him he was capable of doing business, but during the last few visits in which I conversed with him I am confident his mind and general health had failed. I thought his mind was on the monomania order; I would not like to convey the impression he was insane, nor yet sane, but rather what is intermediate, that is, a partial weakness or derangement on certain subjects.”
    Judge Watts : “I was well acquainted with Henry Cauffman twenty-five years ago. About one year before his death, after Mrs. Long had been driven from her house, I came on her behalf to see Henry Cauffman, and I tried to prevail on him if there was some possibility of providing for her before he died. He declined, and said that it would be grossly wrong to take from the rest of the heirs and give it to her, that she had earned him nothing. This was the only ground or reason that he gave; did not object to it on any other account. I don’t know whether he or the boys said that it was on account of her marrying Long, but I rather think he did not say so, and that it was the boys who said that was the reason. I cannot assail Henry Cauffman’s mind; it was good enough to know what he was doing; his was a peculiar disposition. I saw him twice within one and one-half years of his death.”
    Plaintiffs asked the court below to say that the whole evidence in regard to mental soundness fell far short of that adduced in many cases, in which the testamentary capacity was held to be sufficient by our court of last resort, and the testators’ wills sustained, and would not warrant a jury in setting aside the disposition made by this testator of his estate, which positive instruction the court below refused to give. The court below also submitted to the consideration of the jury, as a fact in the casé, and as showing testamentary incapacity, that the testator was impressed with the idea that his daughters should remain with him until his death, “ to forego the joys of maternity,” in order to entitle them to any portion in his estate, of which there was no evidence in the case. This portion of the charge of the court below, excepted to by the plaintiffs in error, is fully quoted in the opinion of this court.
    The verdict being for the defendant, plaintiffs took this writ and the foregoing refusal of the court and the portion of the charge above noted were the errors assigned by reason of which the judgment is reversed.

      Lewis Potter and Oharles A. Barnett, for plaintiffs in error.—
    The testimony to show testamentary incapacity was not sufficient: McMasters v. Blair, 5 Casey 302; Dickinson v. Dickinson, 11 P. F. Smith 401. There was no evidence of delusion: Graham’s Appeal, 11 P. F. Smith 46. Issue refused for insufficient evidence: De Puy Estate, 1 Weekly Notes 212; Thompson v. Kyner, 15 P. F. Smith 380; Stevenson v. Stevenson, 9 Casey 469. Review of the facts on one side may mislead jury: Parker v. Donaldson, 6 W. & S. 132; Neiman v. Ward, 1 W. & S. 68; Heilbruner & Co. v. Wayte, 1 P. F. Smith 259. It was error to submit to the jury the evidence of delusion, when there is no evidence: Musselman v. E. B. & Waynesburg Railroad Co., 2 Weekly Notes 105 ; Evans v. Mengel, 1 Barr 68 ; Haines v. Stouffer, 10 Id. 363; Sartwell v. Wilcox, 8 Harris 117.

      Sponsler Lyons, for defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court, May 29th 1876.

The growing disposition of courts and juries to set aside last wills and testaments, and to substitute in lieu thereof their own notions as to what a testator should do with his property, is not to be encouraged. No right of the citizen is more valued than the power to dispose of his property by will. No right is more solemnly assured to him by the law. Nor does it depend in any sense upon the judicious exercise of it. It rarely happens that a man bequeaths his estate to the entire satisfaction of either his family or friends. In many instances testamentary dispositions of property seem harsh, if not unjust, the result, perhaps, of prejudice as to some of the testator’s kindred, or undue partiality as to others. But these are matters about which we have no concern. The law wisely secures equality of distribution where a man dies intestate. But the very object of a will is to produce inequality, and to provide for the wants of the testator’s family; to protect those who are helpless ; to reward those who have been affectionate, and to punish those who have been disobedient. It is doubtless true that narrow prejudice sometimes interferes with the wisdom of such arrangements. This is due to the imperfections of our human nature. It must be remembered that in this country a man’s prejudices are a part of his liberty. He has a right to them; he may be unjust to his children or relatives;, he is entitled to the control of his property while living, and by will to direct its use after his death, subject ' only to such restrictions as are imposed by law. Where a man has sufficient memory and understanding to make a will, and such instrument is not the result of undue influence, but is the uncontrolled act of his own mind, it is not to be set aside in Pennsylvania without sufficient evidence, nor upon any sentimental notions of equality.

In this case the question of fraud and undue influence was withdrawn from the jury by the learned judge of the court below for the reason that there was not sufficient evidence upon this point to submit to them. But he did submit the question of testamentary capacity, and upon this issue the jury found against the will. The verdict does not surprise us, in view of the provisions of the will itself, and of the manner in which the case was tried. Henry Cauffman was an old man, with strong peculiarities, living with his sons; to a great extent secluded from the world; a seclusion enforced by rheumatism for several of the last years of his life; reticent and unsocial in his habits. Two of his sons remained at home working for their father until his death, at which time they had respectively reached the ages of forty-seven and fifty-five. They had evidently aided him materially in the accumulation of his fortune. His daughters left home when comparatively young, and one of them at least appears to have married without his consent. It is also probable he inherited the disposition so prevalent in the last century, of favoring the sons at the expense of the daughters.. In any event he does not seem to have had much affection for the latter or their children, and practically disinherited them. Under these circumstances it is not surprising that the jury found against the will upon the question of testamentary capacity, especially in view of that portion of the charge of the learned judge embraced in the tenth specification of error. In referring to the testator’s prejudice against Mrs. Long, one of his daughters, and the defendant in the feigned issue, he said: “ If it arose from the belief in his mind that she should have remained with him and worked year by year (she is now fifty years old), until he was dead, and if she did not, she was entitled to nothing, or but little, this would be such an unreasonable expectation that it excites grave apprehensions for the soundness of the intellect, exacting such devotion as the title to an inheritance, and few would ever receive upon such conditions.” * * * “It is very certain that such expectations would rarely be fulfilled; it would require daughters to dwell with and work for a parent from marriageable womanhood to a period when ‘ The custom of women’ is no longer upon them, violating the primordial law of their being, the love of offspring, to the sex an aspiration so fervent and universal, that from Eve to Rachel the cry never ceased, and is to-day so strong upon her, that she steps fearlessly into the jaws of death, impelled by the joys of maternity. She is so constituted that she leaves father and mother that she may cling to a husband, and no threat, nor promise, nor law, nor decree, nor reward, nor powers, nor principalities, nor angels, nor life, nor death, nor things present, nor things to come, nor height, nor depth will ever change her; for God has made her so — male and female created He them.” Just what effect this rhetoric would have upon the average juryman is perhaps difficult to determine. It would depend to some extent upon his intelligence. But as the verdict of this jury was not only against the weight of the evidence, but without any sufficient evidence of testamentary incapacity, we may safely assume that the language quoted materially aided in producing this result. Our objection is not to its style — that is a matter of taste — but to its substance. There was not a word of evidence in the cause to show that the testator thought his daughter should forego the “joys of maternity,” and remain and work for him until his death, as a condition of her sharing his estate. He did say to Judge Watts, who called upon him to intercede for Mrs. Long, that “ it would be grossly wrong to take from the rest of the heirs and give it to her; that she had earned him nothing.” But this did not justify the learned judge in submitting to the jury that which was not in evidence, and which could hardly fail to inflame their minds, and excite their prejudices. This belongs to a class of cases in which the court should hold the jury to the evidence with stern impartiality.

There was serious error in submitting the question of testamentary capacity to the jury at all. The learned judge should have withdrawn it altogether. At most there was but a scintilla of proof. The evidence of the defendant upon this point amounts to nothing. One witness, Kirk Haines, swears that he thought the testator was a weak-minded man, because when he came to the store with his wife, he allowed the latter to do the bargaining and never interfered. Sheriff Rinehart thought he was a monomaniac, because he told his pastor, with whom he appeared to have had some difficulty, that “ We want one to preach Christ and Him crucified, and not for money, money, all the time, as you do.” Also, that at a church meeting there was a dispute about the control of the church property. During the controversy Shimp, the minister, said, “ This was God’s house.” Cauffman replied, “ It is not your house, nor God Almighty’s house. It is my house. I built it.” This was not perhaps exactly orthodox, but when it is remembered that the testator, as was alleged, gave the lot and materially aided in building the church, it hardly shows testamentary incapacity. Upon another occasion, he expressed to the witness, Rinehart, his aversion to going to law, and thought he could not get justice. Abraham Long, another witness, says he thought his mind was wavering from the fact that when the witness made some remark about the time of day he merely said “ Hunck ?” and that when he asked him where the women were, he said “ Was sag’t ?” and looked queerly. Isaac Wright thought he was not sound in his mind because he would not decide upon selling the witness his crop of grain. These are all the witnesses upon this point whose testimony is worth noting. I have not, of course, given all they said. What I have quoted is a fair specimen. We look in vain through the evidence for anything like insanity or delusion.

A court has a higher duty to perform than merely to answer points of law. It is its duty to see that the law is faithfully administered. Such administration requires that a man’s will, the most solemn instrument he can execute, shall not be set aside without any sufficient evidence to impeach it! There is no redress here for an erroneous or improper verdict. Rut where a case is submitted to a jury upon clearly insufficient evidence, such as no court ought to sustain a verdict upon, it is our plain duty to reverse: Sartwell v. Wilcox, 8 Harris 117 ; Lower v. Clement, 1 Casey 63; Silveus’s Ex’rs v. Porter, 24 P. E. Smith 448.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercur.

text:
    Wright versus Grover & Baker S. M. Co., to use of Smith.
    A co-surety, in a joint and several obligation, in whicb there was a _.warrant to confess judgment, having paid off the whole, may cause judgment i0 be entered upon the obligation in the name of the legal plaintiff to his use, IxHlmd have execution thereon against his co-surety for his proportion.
    May 9th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent. .
    Error to the Court of Common Pleas of Perry county: Of May Term 1876, No. 56.
    R. H. Wright as principal, and Samuel Smith and Charles Wright as sureties, executed three notes in the following form:—
    “$275.00. , New Bloomfield, February 27th 1873.
    Six months after date, for value received, we or either of us promise to pay to Grover & Baker S. M. Co., two hundred and seventy-five dollars, with interest and without defalcation or stay of execution. And we do hereby confess judgment for the above sum with interest and costs of suit, a release of all errors, and waiver of all rights to inquisition and appeal, and to the benefit of all laws exempting real or personal property from levy and sale.
    Witness, II. W. Tecicmeyer. R. H. Wright, Samuel Smith, Charles Wright, seal. SEAL.’ SEAL.’
    The other two notes were similar, except that the one given had written across its face twice “paid,” and the third one was for the sum of $277.95.

      On the first note Smith claimed $137.50 as due from Wright as co-surety ; on the second $54; and on the third $12.37, respectively. Smith had paid the balances left due, and unpaid by the principal, „ It. H. Wright, had lifted the notes, and himself caused judgments to be entered in the Court of Common Pleas of Perry county, to Nos. 219, 220 and 221, October Term 1874, using the name of the payee as the legal plaintiff for the use of him, the said Samuel Smith, and against It. H. Wright, Samuel Smith and Charles Wright, as defendants, and directed executions to be issued thereon, upon which levy was made upon the goods of Charles Wright.
    Charles Wright presented his petition, upon which a rule ivas granted on Smith to show cause why the judgments should not be stricken from the record, and the executions were stayed.
    The court below, Junkin, P. J., afterwards dissolved the injunctions staying the executions, refused to strike off the judgments and discharged the rules.
    The court below held, that a co-surety, before judgment was entered, could pay off the whole, and then use the obligation in the same manner, and just as the obligee could have done before the payments.
    It was assigned for error, that the court dissolved the injunctions staying the executions, refusing to strike of the judgments and discharging the rules.

      Charles A. Barnett, for plaintiff in error,
    argued that the place and rights to which substitution would be made are only such as have been previously occupied within the jurisdiction invoked; that by if the court gives the place on its records of the legal plaintiff, and the legal plaintiff, having never entered the judgments, the co-surety could not do so, but was remitted to his action against his co-surety.

      W. A. Sponsler, for defendant in error. —
    The surety stands in the place of the creditor, as completely as if the instrument had been transferred, and was invested with all the obligee’s powers to proceed against every person bound.
   Mr. Justice Mercur.

delivered the opinion of the court, May 29th 1876.

This case involves a consideration of two questions. One, the rights of a surety, who has paid the debt, against his co-surety; the other, the manner in which he may enforce them.

1. The general rule is well settled that if a surety has paid a debt, he is entitled to all the securities the creditor had against the principal debtor. If the claim, be in judgment, he is entitled to be subrogated of record. Even if the judgment has been marked satisfied on the record, the surety paying is entitled to be subrogated as against all but intervening creditors. He is not only entitled to the creditor’s judgment against the principal, but also to his claim against a subsequent surety who has become bail for the principal, for a stay of execution on the judgment: Burns v. The Huntingdon Bank, 1 Penna. R. 395; Greiner’s Appeal, 2 Watts 414; Kelchner v. Forney, 5 Casey 47 ; Pott v. Nathans, 1 W. & S. 155. Although actual payment discharges a bond, judgment or pther encumbrance at law, it does not in equity, when justice requires that it be kept afoot for the safety of the paying surety: Kuhn v. North, 10 S. & R. 399; Fleming v. Beaver, 2 Rawle 128; Mehaffy v. Share, 2 Penna. R. 378; Morris v. Oakford, 9 Barr 500. It is true, a payment by a surety with intent to discharge the security, extinguishes it in equity as well as at law: Kuhn v. North, supra. - But when the amount of the debt is advanced to procure control of it, equity keeps it afoot to answer the intent of the advancement: Id.

2. If a paying surety is entitled to all the securities of the creditor, it would reasonably follow that he should also have all the remedies. Hence, it was held, in Himes v. Keller, 3 W. & S. 404, that ho is entitled to a cession of the debt, and substitution or subrogation to all the rights and actions of the creditor against the debtor; and the security is treated as between the surety and debtor, as still subsisting and unextinguished. This principle is recognised in numerous cases, among which may be cited Rittenhouse v. Levering, 6 W. & S. 190; Cottrell’s Appeal, 11 Harris 294; Springer’s Adm’r v. Springer, 7 Wright 518. An intent to prevent the extinguishment of the debt will be presumed whenever it is the interest of the paying surety that it be kept alive: Richards v. Ayres, 1 W. & S. 485; Duncan v. Drury, 9 Barr 332; Morris v. Oakford, Id. 498 ; Gossin v. Brown, 1 Jones 527.

It is contended, however, that the rule of subrogation or contribution applies, as between surety and principal debtor only, and not as between co-sureties. Lidderdale’s Ex’rs v. Robinson’s Adm’r, 2 Brockenbrough U. S. C. C. R. 160, arose under a Virginia statute, which declared “all bills of exchange which are or shall be protested, shall, after the death of the draw'er or endorsers thereof, be accounted of equal dignity with a judgment.” The claim was upon four protested bills of exchange, on which there were two joint sureties. They were both dead. One of them had paid more than his proportion of the bill, and his administrator claimed a priority over other creditors, as well against the estate of the co-endorser as against the drawer. He claimed as a judgment creditor against his1 co-surety, by virtue of the legal character given to the bill. The other creditors contended that between co-endorsers, one paying an excess over the other must resort to his action at law to recover it, and this defeated his preference; but it was held by Chief Justice Marshall, that the representatives of the surety who had overpaid, were entitled to rank according to the dignity of the claims on which such excess was paid; that the principle of substitution ápplied equally to cases arising between co-sureties, as to those between a surety and his principal. On a division of opinion the case was certified to the Supreme Court of the United States, and this view was affirmed in 12 Wheaton 594. The application of this rule as between co-sureties has been frequently recognised in this state: Fleming v. Beaver, supra; Croft v. Moore, 9 Watts 451; Lathrop and Dale’s Appeal, 1 Barr 512; Gossin v. Brown, supra; Springer’s Adm’r v. Springer et al., supra; Mosier’s Appehl, 6 P. F. Smith 76. In Hess’s Estate, 19 P. F. Smith 272, it is expressly held that a surety who pays his principal’s debt, is entitled to be subrogated to all the rights and remedies of the creditor, against his co-surety, in the same manner as against the principal.

An actual assignment is unnecessary. The right of substitution is the substantial thing; the actual substitution. is unimportant. The right of substitution being shown and the surety having paid the debt, he succeeds by operation of law to the rights of the creditor: Fleming v. Beaver, supra. It is contended that the original obligation is extinguished, inasmuch as the word “paid” was written on its face. We answer, it had to be paid to the original creditor before the right of substitution could arise. We have shown that the satisfaction on the record of a judgment paid by a surety does not extinguish it as to the paying surety. The same reason applies to the note in this case, and prevents its extinguishment to the prejudice of the surety. Hence, we see no error in the learned judge holding that judgment might be entered on the note in the names of the original obligees for the use of the surety who had paid it. The amount to be collected of the co-surety is subject to the equitable power of the court; that power was properly exercised in this case. Judgment affirmed.


author: Per, Curiam. —

text:
    Senseman et al. versus Hershman and Houser.
    1. To take a case out of the Statute of Limitations there must be an acknowledgment of the debt, as an existing obligation, consistent with a new promise to pay it, or an express promise to do so.
    2. Since an acknowledgment is of less force than a promise, there must be a present intent to pay, fairly to be inferred from the language used, at the time the acknowledgment is made, though the time of payment be not immediate.
    3. A promise to pay the balance, when the pro rata from the principal debtors estate was paid, is not a promise to pay the whole debt, though it was shown that there was no dividend declared.
    May 9th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.

      Error to the Court of Common Pleas of Cumberland county: Of. May Term 1876, No. 89.
    This was an action of assumpsit, brought February 16th 1874,. upon a joint and several promissory note, drawn by John W. Hershman and W. C. Houser, in favor of R. Senseman and others, trustees of Wildey Encampment of the Order of Odd Fellows, dated November 10th 1866, at twelve months.
    Hershman was the debtor and Houser the surety. Hershman, on the 19th of September 1868, made an assignment for the benefit of creditors; and the assignees on the 2d of March 1872, filed an account, by which it appeared that there was not sufficient to pay lien-creditors, and Hershman was insolvent at the time of suit brought.
    Houser pleaded non-assumpsit infra sex annos, and on the trial of the case, upon the testimony of the plaintiff, the court below, Herman, P. J., directed a compulsory nonsuit, and upon motion to set aside the same refused, holding it clearly insufficient to take the case out of the statute.
    The testimony of the plaintiff was that of R. N. Short, who stated “ that he was one of the trustees of the society, and that he and Mr. Palmer were instructed to collect this note; that about the 23d of January 1874, he and Palmer went to see Houser; Palmer said to Houser that the trustees were instructed to proceed to collect this note; Houser said, ‘ Why don’t you see the assignees of Hershman and get the pro rata ?’ and then I understood Plouser to say that he would pay the balance, or, that would be time enough. I remember that Houser said — or it was my understanding of what he said— that as soon as they would get the pro rata from Hershman’s estate he would pay the balance; this is my best recollection; this was-the only note the Lodge had against Houser; I think Palmer had the note along.”
    Reuben Senseman testified “ that being instructed by Encampment to collect, he, on the 25th of June 1869, went to Houser, acquainting him with his instructions ; Houser said we should just hold on, that there was no use making expense, that as soon as he knew what amount was wanting, after the assignees of Hershman would pay out' the pro rata, or dividend,, he would pay the balance; that he held collateral security which was hall and market stock'. * * *
    I understood from Houser that he had $100 or $200 worth of hall and market stock. I reported back to the Lodge.”
    Henry Palmer stated “ that he was a trustee in 1874, and on the 24th of January 1874, met Houser, and told him the trustees,were instructed to collect the note; he told me to see the assignees and see what dividend they would pay; as near as I can recollect, he said he would pay the balance; after that King and myself met him, and the conversation in the presence of King was about the same as I had before with him.”

      Error assigned to tlie entering a judgment of compulsory nonsuit and in refusing the motion to set aside said judgment.

      L. A. G-runder and F. F. JBeltzhoover, for plaintiffs in error.—
    The court can only withdraw a case from the jury where evidence is clearly insufficient: Moore v. Miller, 8 Barr 273. If there be some evidence that should be submitted: Bevan v. Ins. Co., 9 W. & S. 187; Baker v. Lewis, 9 Casey 301. Construction of act relating to compulsory nonsuit: 1 Harris 265. As to acknowledgment sufficient to take the case out of the Statute of Limitations: Hazlebaker v. Reeves, 2 Jones 264; Davis v. Steiner, 2 Harris 275; Suter v. Sheeler, 10 Id. 308; Yaw v. Kerr, 11 Wright 333; Johns v. Lantz, 13 P. F. Smith 326; Patton’s Executor v. Hassinger, 19 Id. 315; McClelland v. West, 20 Id. 187; Same v. Same, 9 Id. 487; Weaver v. Weaver, 4 Id. 152; Shitler v. Bremer, 11 Harris 414; Huff v. Richardson, 7 Id. 388; Hazlebacker v. Reeves, 9 Barr 258; Magee v. Magee, 10 Watts 172; Fries v. Boisselet, 9 S. & R. 131; Eckert v. Wilson, 12 Id. 397 ; Henwood v. Cheeseman, 3 Id. 500; Gleim v. Rise, 6 Watts 44; Hilbert v. Hoffman, 2 Id. 66; Boatwright v. Boatwright, Law Rep. 17 Eq. Cas. 74.

      Joseph Ritner and JR. Newsham, for defendants in error.
   The judgment of the Supreme Court was entered, May 22d 1876,

Per, Curiam. —

To take a case out of the Statute of Limitations there must be an acknowledgment of the debt as an existing obligation consistent with a new promise to pay it, or an express promise to do so. To be consistent with a promise to pay the debt, the acknowledgment must be such as indicates an intention to pay the' debt existing at the time of the acknowledgment. The time of payment need not be immediate, but the intention to pay must be present. Hence any language inconsistent with this present intention must be inconsistent with a new promise; for a promise, if made at the time of the acknowledgment, necessarily imports a present willingness of the mind to enter into it. If the mind do not then intend, or is not then willing to pay, the very essential element of a contract is wanting. An acknowledgment is less in force than a promise, and hence the necessity of scrutinizing closely the extent of meaning the language of the acknowledgment has. In the present case the defendant, Houser, said, “ Why don’t you see the assignees of Hershman, and get the pro rata ? then he would pay the balance.” To another witness he said, Just hold on; that there was no use of making expense; that as soon as he knew what amount was wanting, after the assignees of Hershman would pay the pro rata or dividend hé would pay the balance.” ■ This was an acknowledgment of an existing debt, but does it exhibit an intent to pay the whole note ? This suit is for the entire debt, the whole of the note. Clearly it was not the intention of Houser, when he used this language, to pay the whole debt, but a balance only. His promise, which concluded the acknowledgment, was to pay the balance only, not the whole. It contradicts directly a then existing intention to pay the whole, and without this there is no acknowledgment consistent with a new promise to pay the note. It is argued that the promise was absolute for the whole debt, because no dividend was paid from Hershman’s estate. This might be a cogent argument if we were considering an original undertaking for a sufficient consideration, for then the consideration moving to the promisee would assist to interpret his promise. But we are considering no original undertaking, but an acknowledgment to take a debt barred by limitation out of the statute. To do this the debtor must either promise expressly to pay the debt, a promise which the moral consideration would then support, or he must so unqualifiedly admit the debt to be then in full force, that a present and existing intention to pay it can be fairly inferred from all he said. Now a man cannot fairly be said to intend to pay the whole of a debt who expects and asks that a portion of it shall be collected from another. This is the point of the case, and his intention to pay the whole cannot be drawn from the subsequent fact that there was no dividend to be applied to the debt. It would be a confusion of thought to supplement an existing intent by referring it to a posterior circumstance. The application to the case of the maxim id cerium est quod cerium reddi potesi is unsound, for it begs the question, which requires an acknowledgment or a promise which goes to the whole debt, before a balance can be ascertained. Without a dividend there can be no balance.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Ege et al. versus Medlar et al.

    1. Michael Ege, for the “purpose of promoting the interest of Elizabeth (wife of his son George) separate and apart from that of her husband,” by deed dated June 2d 1815, conveyed certain tracts of land to Miller in trust “ for the said Elizabeth, her heirs and assigns for ever and for her and their sole and separate use and benefit,” and by the deed provided for a sale by the trustee (the wife or her heirs joining in the deed), the proceeds of the sale to be paid to her for her sole and separate use, and to be disposed of as she might think proper, by will, deed or otherwise: Held, that her husband, who survived her, had an-estate by the curtesy therein : Held also, that the power of sale, as it did not of itself work a conversion, did not affect the curtesy.
    2. Where the execution of a deed in evidence has been duly proved, slight and inconclusive evidence, offered to show that it was a forgery, ought not to go to the jury.
    3. In ejectment by the heirs of Elizabeth Ege, who claimed title under this deed, the certified copy of it in evidence showed that the deed was signed, sealed and delivered by the grantor before two witnesses, that it was duly acknowledged and that probate was made of it under oath by one of the witnesses thereto just before it was recorded. It was not recorded till 1848. Eor the purpose of showing it to be a forgery (or that it was never delivered), evidence was admitted in the court below to Show that the “George Ege” tract therein mentioned (and intended to be conveyed thereby) was identical with the “James Love” tract which was subsequently included in cer tain proceedings in partition of the lands of Michael Ege, deceased, as to which he died intestate : Held to be error.
    4. When a disseisor enters upon and cultivates part of a tract, he does not thereby hold constructive possession of the whole tract, unless his entry was by color of title by specific boundaries to the whole tract.
    5. Elizabeth Ege died in 1848 and her husband in 1858: Held that the thirty years limitation provided for by the Act of 22d April 1856, did not begin to run against the heirs of Elizabeth till the death of her husband.
    6. Plaintiffs offered in evidence an abstract of title furnished by defendants under a rule of court, for the purpose of showing admissions by the latter of the title under which plaintiffs claimed : Held, that the evidence was admissible.
    7. A writ of ejectment for 283 acres was served on three tenants in possession and they pleaded not guilty ; when the case was called for trial, more than a year afterwards, the court admitted their landlord to defend for a part of this tract, the landlord filing a draft of the part for which he defended, but n, disclaimer. It seems that this was not error.
    8. In closing to the jury counsel for the plaintiffs offered to read to the jury as part of his argument on the facts of this case the opinion of this court in another ejectment suit on the same title, which offer was refused. It seems that this was not error.
    May 11th and 12th 1876.
    Before Agnew, C. J., Mercur, Gordon and Woodward, JJ. Paxson and Williams, JJ., absent. Sharswood, J., did not sit in this case.
    Error to the Common Pleas of Cumberland county: May Term 1876, No. 65. _
    _ Ejectment, begun August 14th 1874, by Caroline and Emma K. Ege, Joseph B. Haverstick and Emma his wife in her right, S. -Kate and George F. Ege, Robert and Charles Ege by their guardian, Joseph B. Haverstick, and Elizabeth Given, against Frank B. Medlar, Frederick Roberts, Henry Ward and the Mount Holly Paper Co., for a tract of land known as the Moses Foulke tract, situate in South Middleton township, containing 283 acres and 40 perches, more or less. Plea, not guilty.
    The plaintiffs claimed title as children and grandchildren of Elizabeth Ege, wife of George Ege. The defendants claimed under George Ege, by a sheriff’s sale of his property and certain mesne conveyances, and under the Statute of Limitations. Medlar, Roberts and Ward were tenants in possession upon whom the writ was served, and on the day of the trial the Mount Holly Paper Company was admitted as landlord to defend for forty acres and forty-two perches of the land described in the praecipe. The plaintiffs excepted to allowing the company to defend unless on the issue already formed.
    ■ Evidence for the plaintiffs.
    The tract is shown in the annexed draft:—

    (Draft of the Moses Eoulke tract, showiug the line of the old and new fences and the old line of houses at the ore bank.)
    1. Application by Stephen Eoulke for 800 acres of land for Moses Foulke, January 28th 1767, and a survey in pursuance thereof for 283 acres and 40 perches, as- described in the writ in this case.
    2. Deed, Stephen Eoulke and wife to Kittera,Jago and Boyd, dated June 17th 1795, for, inter alia, the same tract. _
    3. Deed, Eobert Grayson, sheriff, to Michael Ege for, inter alia, the same tract, dated June 1st 1803, and as the property of Kittera, Jago and Boyd.
    4. Deed of trust, dated June 2d 1815, and recorded June 7th 1848, Michael Ege to John Miller, for the Moses Eoulke tract and six other tracts, in trust for Elizabeth Ege, wife of George Ege (one of the sons of Michael Ege), “ her heirs and assigns for ever, and for her and their sole and separate use and benefit, with full power in said trustee, together with Elizabeth Ege or her heirs consenting and joining with said trustee, to sell and convey in fee simple, the whole, &c., of said property, &c., the proceeds thereof to be paid to Elizabeth Ege, for her sole and separate use, to be used and disposed of as she may think proper, either by will, deed or otherwise.”
    The certified copy of this deed, which was put in evidence, purported to have been duly signed and sealed, and delivered by Michael Ege, in presence of George D. Eoulke and George Pattison; it bore a certificate of acknowledgment by the grantor, of even date with the deed itself before a justice of the peace, and probate was made of it on affirmation by George D. Foulke, a few days before the deed was recorded. The original deed was not produced at the trial, nor was any attempt made to explain its absence or loss.
    5. Family record, showing that the plaintiffs were the heirs at law of Elizabeth Ege, and that she died December 6th 1848, and George Ege, her husband, died February 11th 1858.
    The plaintiffs (after putting in evidence the writ of ejectment in the case) placed in evidence proceedings in partition of the real estate of Michael Ege, deceased, in 1816, in which fifty-nine tracts were specified by the warrantees’ names, but no mention was made of the Moses Foulke tract in question. In these proceedings the Mount Holly Estate, adjoining this tract and containing over 6000 acres, was awarded to George Ege, by the names of the warrantees and the number of acres warranted to each of them. Plaintiffs then offered the abstract- of title furnished by the defendants under rule of court, to show that the defendants admitted that the title to the lands in dispute had been in Michael and George Ege, and that they claimed title under both of the latter and for a portion only of the Holly Furnace Estate. This offer was refused and a bill sealed for the plaintiffs.
    Plaintiffs proved triennial assessment of Holly Estate in name of Michael Ege, up to 1814.
    The defendants, for the purpose of showing that Michael Ege never executed the deed of trust to John Miller, offered to show that the George Ege tract, purporting to be conveyed by that deed, was not surveyed until 1844 (the survey showing the identical courses and distances, and quantity of land shown by the trust deed), that by a deed dated June 2d 1815, which George Ege refused to accept, and which Avas therefore never delivered, Michael Ege intended to convey to George Ege this latter tract, therein called the James Love tract, and that this latter tract was awarded to George Ege, by the above proceedings in partition, to be followed by other evidence inconsistent with the genuineness of the trust deed. This offer was sustained and a bill sealed for the plaintiffs. Defendants gave evidence to prove these facts, and then offered to show that the James Love tract and the George Ege tract were the same tract. Plaintiffs objected, the evidence was admitted and bill sealed for plaintiffs. (This Avas the subject of the fourth assignment of error.) The defendants then gave evidence tending to show that the James Love tract was the same as the George Ege tract. It further appeared that the same description as that contained in the deed of 1815, with the exception of a single line, appeared in the above deed of Stephen Foulke to Kittera in 1795.
    The defendants then offered a judgment of Farmers’ and Mechanics’ Bank against George Ege, and an amicable agreement thereunder for condemnation of the forge and furnace estate of Mount Holly Iron Works, containing about 7689 acres, by a description including within its exterior lines the Moses Foulke tract, the description being only by outside boundaries of adjoining owners; also, a sheriff’s sale thereunder, and a subsequent sheriff’s deed dated August 20th 1888, to the bank for the lands mentioned in the condemnation.
    They then proved the following deeds: (1) Farmers’ and Mechanics’ Rank to Geisse & Kropff for the Mount Holly Iron Works Estate, as described in the condemnation, July 1st 1846; (2) Kropff to Geisse for' his interest therein; (3) Sheriff to Farmers’ and Mechanics’ Bank for the same (sold as the property of Kropff & Geisse) November 19th 1849; (4) Farmers’ and Mechanics’ Bank to Freedly for the same, September 30th 1851; (5) Freedly’s executors to Given for the same, March 10th 1852; (6) Given to Kempton for about 1000 acres, part of the Mount Holly estate; (7) Kempton to the Mount Holly Paper Co., for the same, August 13th 1858, embracing the lands in controversy, July 14th 1868; (8) Leases by the Paper Co. to the tenants in possession.
    George Ege carried on the Mount Holly Iron Works, of which the Moses Foulke tract constituted a part, during the lifetime of his father, from the early part of 1815 to the date of the sheriff’s sale in 1838.
    Part of the land claimed was situated close to the furnace, and had always been called the “furnace field;” this contained about fifteen acres, partly situated upon the Moses Foulke tract and partly upon the Mount Holly land; it- was enclosed by a fence. There was also a row of small houses partly on this tract (as shown in the draft) usually occupied by the men employed at the furnace. This field was enclosed and cultivated from 1838 down to the bringing of this action, by the owners of the furnace property. There was evidence to show that the owners from time 'to time took out large quantities of ore from the ore-banks west of the “furnace field,” for the furnace, as early as 1846, and from then to 1855. After 1855 the ore-banks were worked by various lessees under Given, and the Paper company. There was also a spring of water west of the “furnace field,” which was used in washing ores.
    Kropff testified that he went into possession of the furnace field in 1846, and cultivated it; and that he took ore out of the western ore-bank, and used the woodland in the rear of the ore-bank for firewood. That the “ furnace field” was kept enclosed and cultivated till he left there in 1848 ; that all the lands within the exterior lines of the map of the above draft were occupied and used by him and his partner when they were there.
    Cross-examined: The fence was east of the row of houses, when I was there; a worm fence; we kept it in repair while we were there. We used ore out of the drift for one and a half years. Cannot say that work was going on every day ; might have been interruptions. When we left, drift was open and work going on. Got ore from different other places. Didn’t know anything about the Moses Foulke survey. Cut timber over the whole estate just as we wanted it.
    In summing up, the plaintiff’s counsel offered to read the opinion of the Supreme Court in Kille v. Ege, 29 P. F. Smith 15, so far as applicable to the facts of this case, admitting that the jury were bound to accept the law as given to them by the court and to apply the facts of the case to the law as laid down by the court.
    Offer refused, and bill sealed for plaintiffs.
    The learned judge (Herman, P. J.) charged at length as to the evidence affecting the validity of the trust deed to John Miller; that the presumption of law was in favor of the deed and that it would require the most satisfactory proof on the part of the defendants to invalidate it. Further, that the Farmers’ and Mechanics’ Bank, and those who claimed under them, were in possession under a color of title and that therefore their possession was co-extensive with the title; but that by the deed from Given to Kempton of a tract including the forty acres and forty-two perches, the possession had been drawn in from the exterior lines to the new boundary, and after that all that part of the Moses Foulke tract outside of the land claimed by the Paper company, passed from the possession of those under whom the defendants claimed.
    [“ But the defendants have assailed the validity of this trust deed and contend that it never was executed and delivered by Michael Ege, Sr., but that it is a fraud and a nullity. Although purporting to have been executed and acknowledged on the 2d June 1815, it was not put upon the record until 7th June 1848 — thirty-three years afterwards — and this, in connection with the fact that the original is not to be found by any one in existence, the defendants say excites suspicion, and they have given evidence to prove certain things which they contend are wholly inconsistent with the genuineness of the deed and irreconcilable with its execution and delivery. There is no living witness to tell us anything about its execution or delivery. * * * On the other hand you have evidence tending to prove that the George Ege tract in the deed of trust, and the James Love tract in the proceedings in partition, are identical, and that the same is assigned to George Ege under the proceedings in partition, and also that a small portion of the Stephen Foulke survey is covered by the Moses Foulke survey, or rather overlaps or interferes with it. And this is relied upon to countervail the corroborating proof in support of the deed — that the whole seven tracts mentioned in the trust deed are omitted from the proceedings in partition. Then-you have the George Ege survey returned to the land office 2d May 1845, by Patrick Davidson, who was not appointed deputy surveyor until in 1883, certifying in his return that he made the survey the 11th and 12th December 1844. Showing that the courses and distances are identical with the description of the George Ege tract in the trust deed. And in connection with this you have the evidence of Esquire Evans and the connected draft made by him from the official surveys of the adjoining tracts to the George Ege tract, tending to show that no return of survey or that no courses and distances identical with those in the trust deed could be made up from them — or, in other words, that no chamber survey identical with that in the trust deed could have been made from drafts of the adjoining surveys.]
    [“ The defendants to prove their title have given in evidence a judgment, fi. fa. and levy by the Farmers’ and Mechanics’ Bank against George Ege, and an amicable condemnation given by George Ege on the fi. fa. of the forge and furnace estate called Mount Holly Iron Works, by a description including the lands in dispute, the description being by outside boundaries of adjoining owners. * * *
    “Although the Moses Foulke tract formed part of the lands described in the amicable condemnation given by George Ege, and seems to have been in his possession, along with the lands assigned to him, under the proceedings in partition, up to the time of the sheriff’s sale in 1838, yet he acquired no title as - against his wife to this tract, and consequently no title prejudicial to the wife’s estate therein passed to the purchaser at the sheriff’s sale ; but being actually a portion of the lands included in the description of the lands condemned by the amicable condemnation, and sold and conveyed by the sheriff’s deed to the bank, whatever possession the bank and the successive alienees under them down to the defendr ants have had, has been under color of title. An entry is by color of title when it is made under a bon& fide and not pretended claim to a title existing in another.
    “ Now the defendants have given evidence to shoAV that they, and those under whom they claim, have held the land in dispute by an enclosure and cultivation for the full statutory period. The furnace field spoken of by so many witnesses, is wholly on the disputed land, and the evidence shows pretty conclusively that they have kept it enclosed with a fence and used it for the ordinary and usual purposes of arable or farm land — cultivating it in grass and grain, taking from it the crops, and keeping it improved year after year, from 1838 down to the time of the commencement of this action. There is also evidence in the cause showing that they mined and took large quantities of iron-ore from the ore-bank west of the furnace field, known as the Wynkoop bank, from an early day, certainly as early as 1846, and used the ore to supply the furnace at such times as it was in operation, on down to 1855, when the furnace was finally closed out; and that since 1855 the ore-bank has been worked by different lessees at various times under Given and the Mount Holly Paper Company. Also that the spring of water West of the field was used by some of the tenants living-in the old log row, which stood on the west side of the field, and that the water from the spring was used at different times for washing ore.
    “ There is sufficient evidence in the cause to submit to you on the question of adverse possession, * * * we say to you that the possession by enclosure and cultivation of that part of the Moses Eoulke survey known as the furnace field was co-extensive with the bounds of the survey; but the very moment new boundaries were defined, by the conveyance of Given to Kempton of the forty acres and forty-two perches now defended for by the Mount Holly Paper Company, and which includes the furnace field, that very moment the possession was drawn in from the outer lines to the lines of the new boundary, and thenceforth all that part of the (Moses Eoulke) survey outside of the boundaries of the land claimed by the Mount Holly Paper Company, passed from the defendants’ possession.”]
    [“ If you find that they have so held the adverse possession, you ' will render your verdict for the plaintiffs against Frank B. Medlar, Frederick Roberts and Henry Ward, three of the defendants, for the land described in the praecipe, except that portion containing forty acres and forty-two perches, contained and embraced within the boundary lines of the Mount Holly Paper Company’s claim, which is described in the application and draft filed in this case by said company at the time they were admitted as co-defendants to defend for the part described in said application and draft.]
    The following are some of the points presented by the plaintiffs and the answers to them:—
    4. Taking all the evidence given by the defendants and admitted by the court, touching the execution of the deed of June 2d 1815, viz.: that upon the warrant of July 30th 1814, to George Ege, the deputy-surveyor made a return, accepted 2d May 1845, that he surveyed the tract on December 11th and 12th 1844; and that his survey is by the same courses and distances, and for the precise quantity of land by which it is described in the deed of trust; that the Love tract and the George Ege tract are located upon the same ground; that the Stephen Foulke tract and the Moses Foulke tract, as described in the two deeds dated July 2d and July 3d 1815, interfere with each other; there is nothing which would warrant the jury in inferring fraud in the execution and delivery of the said deed of trust.
    The evidence of the execution, &e., of the deed being positive and direct; while the inference drawn from the facts above stated are based merely on a presumption.
    'Answer. “ We have submitted this evidence to you and it is for you to determine from all the evidence in the cause the genuineness of the trust deed. But we say to you that the law presumes from the recorded deed as it appears, both execution and delivery, and to overthrow the deed the evidence must satisfy your minds that it is a fraud or that it was never delivered.”
    7. The trust declared by Michael Ege in his deed of 2d June 1815, to John Miller, creates an equitable estate in fee in Elizabeth Ege, and there is nothing in the trust deed to prevent its descent as a fee under the laws regulating descents, and these defendants claiming otherwise must shoiv that they have a written title from Michael Ege, the deceased, by which it came to them; and not having shown any such title, there is nothing to exclude the surviving husband of Elizabeth Ege from his rights as tenant by the curtesy; and as George Ege did not die until 1858, and this suit was brought in 1874, the possession shown by defendants for a portion of the land in dispute amounts to nothing, and plaintiffs are entitled to recover the whole of the land described in the writ.
    ' Answer. “We cannot answer this point as requested. * * * The trust, it will be perceived, is not only for the sole and separate use of the wife, but also for the sole and separate use of her heirs, and confers upon the trustee power to sell and convey — the said Elizabeth Ege or her heirs consenting and'joining — and with power in her to appoint another trustee or trustees, on the death of the trustee named in the deed. The intention of the grantor is apparent to our mind that the husband was to be excluded from all interest as tenant by the curtesy. We therefore refuse to affirm this point, and say to you that under the terms of the deed George Ege had no curtesy.”
    9. The possession shown by the defendants of the old furnace field is not such adverse, continuous and hostile possession for twenty-one years as gives title by the Statute of Limitations; and even if it were, the statute did not commence to run against the plaintiffs in this case until after the death of George Ege, which occurred in 1858, not twenty-one years prior to the bringing of this suit, and therefore plaintiffs are entitled to recover the old furnace field, with the other lands included in the writ.
    Answer. “ This point is refused. Having decided that George Ege had no curtesy in the lands contained in the trust deed, the title of the defendants by adverse possession under the Statute of Limitations, has been' established, if the evidence satisfies you that they and those under whom they claim have been in actual, adverse, visible, notorious and continued possession of the land in dispute, or any part of it, either by cultivation or enclosure, for the period of twenty-one years next preceding the time of bringing this suit. We cannot say, as requested, that the possession shown by the defendants of the old furnace field is not such adverse, continuous and. hostile possession for twenty-one years as gives title by the Statute of Limitations. We think the adverse possession required by the statute of the old furnace field by the defendants and those under whom they claim has been very clearly proved.”

      The jury found a verdict for the plaintiffs against Frank B. Medlar, Frederick Roberts and Henry Ward, three of the defendants, for the land described in the praecipe, except that portion containing forty acres and forty-two perches contained and embraced within the boundary lines of the Mount Holly Paper Company’s claim, which is described in the application and draft filed in the case by said company at the time they were admitted as co-defendants to defend for the part described in said application and draft, and six cents damages.
    Judgment upon the verdict.
    The plaintiffs below took this writ of error, and made twenty-four assignments of error, of which the following are important:—
    The court erred,
    1. In allowing the Mt. Holly Paper Company to appear, when the case was called for trial, to defend as landlords, and to limit their defence to a small portion of the land embraced in the writ.
    2. In rejecting plaintiffs’ offer of the abstract of title furnished by defendants.
    3 and 4. In admitting the evidence given above of the identity of the George Ege and James Love tracts.
    10. In refusing to charge as requested in the plaintiffs’ fourth point.
    12. In the answer to plaintiffs’ seventh point.
    13. In the answer to plaintiffs’ ninth point.
    21, 22 and 23. In the parts of the charge respectively enclosed in brackets above.
    24. In refusing to allow the plaintiffs’ counsel to read to the jury the opinion of the court in Kille v. Ege.

      S. Eepburn and S. Eepburn, Jr., for plaintiffs in error. —
    The landlord was admitted to defend without a disclaimer; this was eiTor: Steinmets v. Logan, 3 Watts 160. A landlord will not be permitted to defend when delay will necessarily ensue: Linderman v. Berg, 2 Jones 301. Acquiescence in the tenant’s, plea of not guilty, for more than a year, and going to trial under it, is equivalent to an admission of possession of all the land claimed in the writ: Ulsh v. Strode, 1 Harris 433; Hill v. Hill, 7 Wright 521.
    There was no evidence to affect the trust deed, and the question should not have gone to the jury: Merchants’ Bank v. State Bank, 10 Wall. 662; Dean v. Fuller, 4 Wright 474; Kille v. Ege, 29 P. F. Smith 15; Douglass v. Mitchell, 11 Casey 445. George Ege clearly had curtesy in this tract: Dubs v. Dubs, 7 Casey 149; Brendlinger v. Brendlinger, 2 Id. 132; Evans v. Knorr, 4 Rawle 72.
    • The estate was a fee simple in Elizabeth Ege, and there was no intention expressed in the deed of depriving her husband of an estate by the curtesy. In Thornton’s Executors v. Krepps, 1 Wright 393, it was held that the question is what the estate intended to be granted was, and whether in law curtesy is incident to such an estate, and not as to the intention of the testator relative to the claim of curtesy. If George Ege ivas entitled to curtesy, this estate was subject to the lien of judgments against him: Bank v. Stauffer, 10 Barr 398 ; McMillan & Crissman’s Appeal, 2 P. F. Smith 434; and the sheriff’s vendees, at the sale in 1838 of this property, held under him, and their possession during that time was not adverse to the heirs of Elizabeth Ege: Kille v. Ege, supra.

    Those under whom the defendants claim did not enter by color of title: Jackson v. Oltz, 8 Wend. 440, 441; Zubler v. Schraclc, 10 Wright 69. The evidence showed that the existence of the Moses Eoulke tract was unknown to those in possession of it as such. Therefore their possession is limited to actual possession: Ament v. Wolf, 9 Casey 331; 9 Wright 448; Fitch v. Mann, 8 Barr 503; McArthur v. Kitchen, 27 P. F. Smith 69; Clark v. Trindle, 2 Id. 495.
    The offer to read the opinion of this court in Kille v. Ege was to read it as an argument on the facts. Good v. Mylin, 1 Harris 530, was an offer to read the opinion in a reversed case on a second trial of the same case. The questions that arose in this case and in Kille v. Ege were substantially the same. Noble v. McClintock, 6 W. & S. 60, is in point.

      John Hays, A. B. Sharpe and Lemuel Todd, for defendants in error. —
    The draft filed by the Mt. Holly Paper Company, when admitted to defend, was in effect a disclaimer. The plaintiffs were not surprised, nor were they injured.
    The abstract of title was not an admission; it is merely notice of a defence.
    The verdict of the jury established the trust deed, and therefore erroneous rulings in this respect, if any, were harmless to the plaintiffs ; for such this court will not reverse.
    If the intention of Michael Ege to exclude his son’s title by the curtesy was clear and express, the latter has no curtesy: Cochran v. O’Hern, 4 W. & S. 99; Stokes v. McKibbin, 1 Harris 268; Rigler v. Cloud, 2 Id. 368. By the power of sale in the trust deed, a purchaser during the wife’s lifetime would have taken a title free from any claim of the husband, and without his joining in the deed. After her death her heirs might have joined with the trustee in alienting the estate. In Dubs v. Dubs, supra, the trust expressly forbid the husband or wife aliening the estate. In Stokes v. McKibbin, supra, it is said that the object of the exclusion is to protect not only the wife, but the children from the husband’s prodigality, and that this object would be but imperfectly obtained if he were allowed to resume his marital rights at her death. The other cases cited can be distinguished. In Thornton v. Krepps, 1 Wright 391, the devise was without the intervention of a trustee, and gave the estate directly to the devisee, and then gave a reversion of it in case of the devisee’s death during minority. In Faries’ Appeal, 11 Harris 29, the devise was without an intervening trustee, and without an express power of sale. In Haines v. Ellis, 12 Harris 255, the conveyance was direct, without a trustee, “ for the only, sole, separate and proper use and behoof of the said Ann Eliza Hutchinson, her heirs and assigns for-ever.” This was rightly held to convey a fee simple, so that the grantee and her husband could alienate the property. It follows that the statute began to run in 1838, at the time of the sheriff’s sale.
    The purchasers at sheriff’s sale in 1838 entered bond fide and in the honest conviction that this tract was their property; they therefore had a color of title: McCall v. Neely, 3 Watts 72; Green v. Kellum, 11 Harris 254; Wilson v. Howser, 2 Jones 109. Where one enters under color of title, cultivation of a part makes his possession coextensive with his claim: Burke v. Hammond, 26 P. F. Smith 172; Susquehanna R. R. Co. v. Quick, 18 Id. 197; Baker v. Findley, 8 Harris 163; Barnhart v. Pettit, 10 Id. 139 ; Young v. Herdic, 5 P. F. Smith 175; Stephens v. Leach, 7 Harris 262; Alden v. Grove, 6 Id. 377. The defendants being thus in possession for thirty-six years, have a title against all the world. The Act of 22d April 1856 limits the right of action to thirty years after a right of entry has accrued, even in cases of disability: Hunt v. Wall, 25 P. F. Smith 416; Pratt v. Eby, 17 Id. 396.
    Section 2 of the Act of 26th March 1785 bars the action; for, as against Mrs. Ege and .her trustee, the statute began to run in 1838. An equitable estate is barred by adverse possession of the legal estate. Under section 4 of the same act, the heirs of Mrs. Ege had ten years after the death of George Ege to bring suit: Henry v. Carson, 9 P. F. Smith 297; Lenhart v. Ream, 24 Id. 59. The sheriff’s vendees in 1838 had no notice of the trust deed, as it was not recorded till 1848; it cannot therefore be said that they held title under George Ege until his death in 1858. They took possession in the honest belief that this tract was part of the iron works and belonged to George Ege.
    As to the 24th assignment, the plaintiffs’ counsel read the opinion of this court in Kille v. Ege, as if it had been delivered in this case,- and in reading it substituted the Moses Foulke tract for the William Cox tract, mentioned in that case.
   Mr. Justice Gordon

delivered the opinion of the court, October 9th 1876.

On the second day of June 1815, Michael Ege, the elder, being then owner of some eighty-seven tracts of land, situated along the South Mountain, in the counties of Cumberland and Adams, executed a deed, in trust, embracing, inter alia, the land in dispute, to John Miller, for the use of Elizabeth, wife of George Ege, one of the sons of the grantor. On the next day (June 3d), he executed for his three sons, George, Michael and Peter, severally, deeds embracing all the land remaining of the said eighty-seven tracts, not included in the trust deed above mentioned. The deed prepared for George was intended to convey all those tracts “ comprising the Holly Iron Works estate.” George and Peter refused to accept of the deeds thus executed to them; hence, on the death of Michael Ege, Sr., August 31st 1815, the lands recited in those deeds remained undisposed of. In September of the following year, partition was made, in due form, of the fifty-nine tracts remaining to the estate of Michael Ege, and those included in and designated as the “ Mount Holly estate ” were accepted by and confirmed to George Ege, under whom the defendants claim title. This estate, so accepted by George, was clearly defined in the proceedings of partition; and, as those proceedings were conducted by parties of intelligence, of full age and under the, direction of eminent counsel, the probabilities of mistake are excluded. Vide Kille v. Ege, 29 P. E. Smith 15.

The Moses Foulke tract, now in controversy, was not one of those included in the partition, and could not, therefore, have been one of those assigned to George Ege. It follows that the sale by the sheriff in. 1838, of the Mount Holly estate, as the property of George Ege, to the Farmers’ find Mechanics’ Bank, did not and could not pass title to the land in controversy, even though the parties to such sale so intended.

■ But, it is argued, and the court so held, that, by the amicable condemnation executed by. George Ege on the 23d of December 1836, this tract, by the designation of outside boundaries, was included in the Mount Holly property; that the sheriff’s deed, purporting to convey all the land within such boundaries, gave the Farmers’ and Mechanics’ Bank and its vendees color of title to the Moses Foulke tract, and, hence, their entry upon part thereof gave them constructive possession of the whole, the continuance of which for twenty-one years made them a perfect title by the Statute of Limitations. This would be correct if (1) the description in the condemnation and deed necessarily include the land in suit, and the party purchasing honestly believed that the sheriff’s sale did pass the title to such land. If (2) the bank, or its vendees, did enter upon and claim this Moses Foulke tract eo nomine. ■ But, in the first place, it was assuming too much to take for granted the first part of this proposition. It is true that this land lay within the outer lines of the Mount Holly estate, as described in the amicable condemnation, but so also did the Michael Ege and William Cox tracts, and, perhapSj several others of the trust estate; it is, however, going- a great way to suppose, in the face of the fact that an accurate description of the Mount Holly property was of record, that the intention of George Ege was to include all this territory in the levy, or that the agents of the bank supposed that, by the sheriff’s sale, they got title thereto. If, however, it was known, or ought to have been known, that that sale did not, in fact, embrace the Moses Foulke tract, then the purchaser acquired no color of title; for, as is said by Gibson, C. J., in McCall v. Neely, 3 Watts 72, “an entry is by color of title when it is made under a bond fide and not pretended claim of title existing in another.” Whether the circumstances warranted the defendants* 'vendors in supposing they had acquired title by the sheriff’s sale, was a question not for the court, but for the jury. But, suppose they had color of title, then, was it definite or.indefinite ? Was it to the Moses Foulke tract eo nomine, or was it general, embracing, without particular definition, all the lands within the Mount Holly property ? If it were the former, then might the possession of the defendants be extended, constructively, to the whole tract; if the latter, that possession must be confined to the actual work on the ground. It is not to be forgotten that mere color of title is valuable only so far as it indicates the extent of the disseisor’s claim; if it fails in this, it fails altogether: Barnhart v. Pettit, 10 Harris 135.

The question then recurs, did those, from whom the defendants derive title, enter upon this land claiming by virtue of their color of title to the lines of the Moses Foulke tract ? . If they did so •claim the evidence fails to show it; oh the other hand, it is said by Frederick C. Kropff, who, at one time, with Paul D. Geisse, owned the Mount Holly estate, that they knew nothing about the Moses Foulke survey, but dug ore and cut timber where it suited them over the whole estate. From this testimony, it is manifest, that the claim was general to all the lands lying within the external lines of the Mount Holly property, without regard to internal tracts or divisions, and that it was under this general claim the bank and its vendees entered into the possession of and held the furnace fields. We need hardly say, that it is not possible for an indefinite claim such as this, .to carry the right of the disseisor beyond his mete pedis possessio. Thus, under the evidénce as we now have it before us, the controversy is narrowed down to that part of the premises which the defendants and their vendors have had in actual possession. Whether they can hold even this depends upon the time when the Statute of Limitations began to run against the plaintiffs’ right of entry. The plaintiffs claim as heirs-at-law of Elizabeth Ege, the wife of George, by virtue of the deed of trust executed to John Miller, for her use, by Michael Ege, Sr.; whilst the defendants claim under George Ege. Now it is obvious that if, as the plaintiffs contend, George Ege had an estate in curtesy in the lands thus conveyed to his wife, the right of entry did not accrue to them until his death, and hence the statute could not begin to run before that period : Gernet v. Lynn, 7 Casey 94 ; Shallenberger v. Ashworth, 1 Id. 152 ; Crow v. Kightlinger, Id. 343. It is alleged that the Act of 1856 has introduced a different rule. Such however is not the case. That act does but affect the former rule as to persons of unsound mind, married women and minors, who, previously thereto, had ten years after the removal of their several disabilities within which to bring suit against such as might have intruded upon their right of entry; now, however, by the statute above mentioned, the lapse of thirty years, from the time when such right of entry accrued, bars their right of action, though the disabilities therein referred to be not removed: Hunt v. Wall, 25 P. F. Smith 413. It will be observed, however, that the right of action in such persons is presupposed, for the time runs from the period when the right of entry begins, but where this right does not exist no action lies, and, hence, the statute can have no effect. So, in the case in hand, to say that the statute shall run from a date when the heirs of Elizabeth Ege had no right of entry, and consequently no right of action, is to say that they might be barred of such right by no default of their own and without the possibility of remedy. If, then, George Ege was tenant by the curtesy, the defendants, holding under him, could not be disturbed in their occupancy of the premises until his death. From that period the right of entry vested in the plaintiffs, and from that period only did the statute begin to run against them.

That George Ege had curtesy in this property is not doubtful.' The estate conveyed to Elizabeth was a fee; whether legal or equitable matters not, as at law, in either case, curtesy attaches as an incident. Unless, therefore, there is something in the grant which clearly exhibits an intent to exclude the husband’s right, equity will not interfere to annul the legal intendment: Cochran v. O’Hern, 4 W. & S. 95 ; Stokes v. McKibbin, 1 Harris 267. We discover no such intent in the deed before us. The expressions therein contained, such as, “ for the purpose of promoting the interest of said Elizabeth, separate and apart from that of her said husband,” and “ to and for her and their sole and separate use and benefit,” are but the ordinary terms used in such instruments, and import no" intention to strip the husband of his curtesy. That no such intent existed in the mind of Michael Ege is further obvious, from the fact that he makes no provision to prevent the management or proceeds of the estate from passing into the hands of George. The duties of the trustee are purely passive except he might be directed to sell by the wife, but, even in that event, he could not control the disposition of the proceeds, for they were to pass to her absolutely and unshackled by any condition or restriction whatsoever. Almost of necessity, the management of this estate passed into the hands of the husband, and had it been sold there was nothing to prevent her making a gift to him of the whole proceeds; so, in case of her death, he would have been entitled to a share thereof under our intestate laws. There being nothing, then, in the deed of trust, impairing the husband’s rights or altering the statutory order of descent, an estate by the curtesy must be taken to have vested in George Ege : Dubs v. Dubs, 7 Casey 149.

It is supposed that the power of sale found in the trust deed operates against this conclusion; but as that, of itself, does not work a conversion or alter the character of the estate granted, we cannot understand how it could be made to destroy one of the incidents thereof. The execution of the power might have had such an effect, but not the power unexecuted.

We think tké plaintiffs’ fourth point should have been affirmed. The evidence of the execution of the deed of trust is direct and positive. The lands which it purports to convey were not included in the proceedings in partition; it appears to have been duly acknowledged before competent authority, and probate was made of it by George D. Foulke, the subscribing witness, only a few days before it was recorded. Without an attempt to impeach, directly, this testimony, we cannot see how the fact that the identity of the George Ege tract, as described in the deed of trust, with the James Love tract, as described in the partition, can have the effect, even remotely, to prove the forgery of the deed of trust. At best it exhibits a mistake made, not, indeed, by Michael Ege, for his deed conveyed the land without regard to whether it was known as George Ege or James Love, but by Peter Ege and those who conducted the partition, and it is rather singular that such a mistake should be used to impeach the deed of the ancestor made in 'the preceding year. The proposition has the effect, not only to cure a party’s own mistake, but to make it evidence in his own favor. So the force of the fact of the identity of the courses and distances set forth in the deed of 1815, with those in the return of survey made by Davidson in 1845, is completely nullified by the other fact, stated in the charge of the court, that the same description, with the exception of a single line, is to be found in the deed of Stephen Foulke to Kittera, Jago & Boyd, in 1795. In view of all the circumstances of this case, we think that the evidence of the fraudulent making of this deed, after the survey of 1845, is so slight that it ought not to have been submitted to the jury.

Ordinarily an abstract of title, filed by either party, under a rule of court, would be evidence; for its principal design is to relieve the case of the proof of such papers and evidences of title as may therein be admitted. Not only are the parties thus relieved of the preparation of unnecessary testimony, but the public business is expedited. Perhaps, as the plaintiffs had in evidence all that by the abstract was admitted, the ruling was harmless; nevertheless it would have been proper to have sustained their offer.

Under the 9th section of the Act of hjarch 21st 1772, the Mount Holly Paper Company, as landlord of the defendants, was properly admitted of record to defend for the land covered by its leases.

It was right to refuse to permit the opinion of the Supreme Court to be read to the jury: Good v. Mylin, 1 Harris 588.

Judgment reversed and a venire, facias de novo awarded.