author: Mr. Justice Trunkey

text:
    Roth’s Appeal.
    1. Where on its face a writ of attachment embraces nothing but the defendant’s interest, or his- distributive share in the personal assets in an administrator’s hands, and the return of service shows no attachment of lands or interest therein, and it was admitted the administrator was not in possession of the land, the writ and service do not bind the defendant’s interest in the real estate of the decedent..
    2. Per Teunkey, J. — “The Statutes of June 13th 1836, June 16th 1836, April 13th 1843 and April 10th 1849, have not confounded legacies and ■ devises, nor the respective interests of one in the realty and personalty of an intestate, but have made each and all liable to attachment upon execution in satisfaction of a judgment. . ‘Legacies given’ and ‘lands devised’ are artistic phrases meaning different things, and neither includes the other. And so an interest in the goods and chattels of an intestate is quite different from an interest in his lands.”
    3. Stradley’s Appeal, 7 Wright 89, and Neely v. Grantham, 8 P. P. Smith 433, reviewed.
    March 29th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. -Green, J., absent.
    Appeal from the Court of Common Pleas of Northampton county:' Of July Term 1879, Nos. 75.
    Appeal of Jeremiah Roth, trustee for Barbara Harwi, from the decree of the court confirming the report of the commissioner appointed to distribute the fund arising-from a sheriff’s sale of the interest of Jacob Harwi, Jr., in the real estate of his father, Jacob Harwi, Sr.
    The commissioner, Richard Brodhead, Esq., found the facts substantially as follows: Jacob Harwi, Jr., the defendant, made a general assignment in the beginning of May 1877 for the benefit of his creditors. The judgment docket in Northampton county stood,, at the time of the assignment, against Jacob .Harwi, Jr., as follows:

      Name. No. Term. Entry. Amount.

    Samuel Riegel, 556 Sept. T. 1875. Nov. 29th 1875 $4500
    Jeremiah Dundore, 392 Apr. T. 1876 May 5th 1876 900
    The real debt due Reigel was $2050 and interest from April 1st 1874, and the real debt due Dundore was $900 and interest from May 15th 1876. The said assigned real estate was duly sold by the assignee, but the judgment-creditors above were not reached.
    Jacob Harwi, Sr., father of Jacob Harwi., Jr., died in November 1877, intestate, leaving certain real estate in Northampton county, to wit: three farms of 75, 94 and 77 acres respectively,, all occupied by tenants who farmed them on shares, and personal estate .amounting to $16,000. The defendant, Jacob Harwi, Jr., was one of eight children of the said Jacob Harwi, Sr. John Harwi, one of said sons, in January 1878, took out letters of administration. On January 7th 1878, Samuel Riegel and Jeremiah Dundore issued writs of attachment-execution, Nos. 54 and 55, February Term 1878, upon their judgments in Northampton county. The praecipe of Riegel reads as follows: “ Issue writ of attachment directed to the sheriff of Northampton county, commanding him to attach all moneys, property, legacies or right, title and interest of defendant in the hands of John Harwi, administrator of Jacob Harwi, Sr., deceased, and summon him as garnishee.” The praecipe for the second attachment of Dundore is in the same words, except “and summon said John Harwi, adm’r, as garnishee.” The writ in each case commands the sheriff to attach all the goods and chattels, debts, credits, effects, legacies, distributive shares, sum or sums of money of him, the defendant, in the hands, possession or custody of said John Harwd, administrator of Jacob Harwi, Sr., deceased.
    The writ was served in each case on January 7th 1878, and return made by the sheriff, as follows, to wit: “Attached as within commanded, all the goods and chattels, debts, credits, effects, legacies, distributive shares of the defendant, Jacob Harwi, Jr., in the hands, possession or custody of John Harwi, administrator of Jacob Harwi, Sr., deceased, and summoned him as garnishee, by giving him a true and attested copy of this writ, personally, on February 7th 1878.”
    Both the above judgments were transferred to Lehigh county January 22d 1878, and the same day attachments were issued to attach the interest of the defendant, Jacob Harwi, Jr., in the estate of his father, Jacob Harwi, Sr., in the administrator’s hands. To these writs the sheriff made return Jan. 23d 1878. The praecipes with returns were substantially the same as in Northampton county.
    Interrogatories to John Harwi, administrator, were duly filed in Lehigh county, in the cases of Riegel and Dundore, which were served March 23d 1878, and answers filed by the administrator, wherein it appeared that the defendant, Jacob Harwi, was entitled to a distributive share in the estate, real and personal, of Jacob Hawri, Sr., deceased.
    On the 27th of February 1878, Jacob Harwi, Jr., confessed judgment to Jeremiah Roth, in trust for Barbara Harwi, for the amount of $8600, which was duly entered in the Common Pleas of Northampton county, as of No. 269, February Term 1878, and on which judgment an attachment execution was issued March 4th 1878, of Ño. 54, April Term 1878.
    Jeremiah Roth, trustee, &c., thereupon issued a fi. fa. to April Term 1878, and a vend., ex., under which the interest of Jacob Harwi, Jr., was sold August 17th 1878, for $1800, to the plaintiff in the writ, and the fund, less the costs, was ruled into court for distribution.

      The fund was claimed by Riegel and Dundore, by virtue of the liens created upon the interest of the defendant in the estate, both real and personal, of his father, Jacob Hawri, Sr., by the said attachment executions issued under the act of April 13th 1843, upon the judgments, in manner stated.
    This claim was resisted and the fund claimed by Jeremiah Roth, trustee, for the reason that the praecipes, writs and sheriff’s return were not in accordance with the mode- of procedure set forth in the said act, in that they did not specifically describe the real estate in which the interest of the defendant was sold under the subsequent judgment of the plaintiff, and, further, that the said attachment executions are invalid against the said judgment-creditor, Jeremiah Roth, trustee, because the requirements of the Acts of Assembly have not been complied with.
    In a supplemental report the commissioner found the following facts: That the personal estate of the decedent, Jacob Harwi, Sr., was more than sufficient to pay his debts; that the occupants of the realty of the decedent’s estate were not served with process under the attachments; that the sheriff omitted to file a description of the realty alleged to have been attached within five days after service of the writ; that the judgment index did not show that the attachments were liens on the realty.
    The commissioner allowed the claims of Riegel and Dundore, and awarded to them 'the fund in court. Roth excepted and the court, Meyers, P. J., on the authority' of Straley’s Appeal, 7 Wright 90, and Neely v. Grantham, 8 P. F. Smith 433, overruled the exceptions and confirmed the report. Erom this decree Roth took this appeal.

      Edward Harvey and M. O. Kline, for appellant.
    The real estate was not in the possession or occupancy of the administrator. The occupants were not served with process under the attachments. No description of the realty was filed. And no real estate was attached or described in the return; and no reference to realty was to be found in the judgment index. The Act of 1843 merely enlarged the writ of attachment in- execution so as to include legacies, lands or interest in real or personal estate while they are in the hands or possession of some one other than the defendant.
    An analysis of the several acts will clearly show that it is necessary to issue the writ against the legacies, lands or interest in real or personal estate held for the defendant by some one, whether he be executor, administrator or some one else; that person holding or occupying the thing attached must be summoned as garnishee ; he must, of necessity, hold the-thing attached for the use of or under the defendant in the judgment; if lands be attached, it is essential that the person holding them or occupying them be made the garnishee; that they be levied on and return thereof made by the attaching officer; that a description of them be made and filed with the prothonotary whose duty it is to enter it in the judgment index; and if no occupant is found or no one holding the possession or having in his hands the thing attached, then publication must be made. It is a proceeding quasi in rem. in which the thing, against which the process is directed, must he levied upon.
    In Kase v. Kase, 10 Casey 130, it is said : “ It is an execution against the effects of the defendant in the hands of the garnishee, rather than action against the garnishee/’ Accordingly, the property must be actually or potentially ivithin the custody, posses-' sion or control of the garnishee. He must have the possession of it.
    It is admitted that the personal estate is more than sufficient to discharge all debts. “ Lands are assets for the payment of debts in Pennsylvania, hut they are only so when the persona] estate is insufficient for that purpose. In the meantime, and until the administrator takes the proper steps to make the lands of the deceased available for that purpose, they descend to the heir, who is entitled to the rents and profits.” Per Coulter, J., in Bishop’s Estate, 10 Barr 471. The administrator had no interest or possession, actual or possible, in the undivided one-eighth interest of Jacob Ilarwi, Jr., in the lands of his father. If he had no such interest — if he was not holding the lands for or under the defendant — if he was a stranger to his title and to his possession, then no lien was acquired on the land under the attachment. And if no lien was acquired, the appellant was entitled to the fund in court.
    But this is not the only ground upon which we ask that the decree be reversed. The law contemplates that more must be done than merely issue the attachment. If it is proposed to acquire a lien on real estate, the writ must be served on the party in possession; it must be ievied upon by metes and bounds; it must be returned as levied upon; the process must issue in the county wherein the lands are situate; a description of the property must be filed with the prothonotary, within five days, and that officer must note it in the judgment index.
    Land is not mentioned either in the writ or the return. In order to attach real estate, the prescribed form of serving the writ must be strictly pursued: Hayes v. Gillespie, 11 Casey 156. The first thing is to seize the property, the next the person in whose hands it is found: Lambert v. Challis, 11 Casey 156. The return on its face must show a legal service : Lehigh Valley Ins. Co. v. Fuller, 31 P. F. Smith 398. In Straley’s Appeal, relied upon by the court, the land was within the actual control of the administrator, and the personalty was insufficient to pay the debts. In Neely v. Grantham, 8 P. F. Smith 433, there was a conversion, and the court was not unanimous.

      W. E. Doster and B. F. Baclcenthall, for appellees.
    In point of time there is no dispute as to our priority. The question therefore is, were the attachments of Riegel and Dundore liens upon the defendant’s interest in his deceased father’s real estate. It is objected that they are not, because the attachments do not specially describe or refer to land or interest in land, as the subject of the attachment. We contend that such a description or reference is not necessary in a case like this where the interest of the defendant in the estate of a deceased person is sought to be charged. If the subject of the attachment were the specific land of a living person, being the defendant in a judgment, the case would be different. In the Foreign Attachment Act 27th July 1842, sect. 1, 1 Purd. Dig. 717, pl. 5, this new subject of attachment is described as follows : “ All legacies given and lands devised to any persons or persons, by will or testament, and any interest which any person or persons may have in the real or personal estate of any decedent whether by will or otherwise,” &c., &c. Three things are, described, viz. : (1) Legacies (2) lands devised (both of these are in cases of wills), and (3) any interest in the real or personal estate of any decedent. As Jacob Harwi died intestate the subject-matter which we claim to have attached is “ any interest” of Jacob Harwi, Jr., “ in the estate, real or personal,” of'a person who died intestate. The foregoing act makes such an interest amenable to process of foreign attachment. A similar state of things is found in the legislation in relation to attachments in execution. The original act was passed in 1835 (1 Purd. Dig. 639, et seq.), but the act which made this new species of property right the subject of such attachment was not passed till April 1843 : 1 Purd. Dig. 640, pl. 37. With a few trifling verbal differences the language is the same as in the foreign attachment act, viz.: “ And any interest which any person or persons may have in real or personal estate of any decedent, by will or otherwise, which are subject to foreign attachment by the Act of 27th July 1842,” &c.
    The subject-matter of the attachment is thus made practically the same in both classes of attachment. The interest which a person has or may have in a decedent’s estate is not any defined and specific property. It is not so many acres of land, or such and such articles of personal property. It may not amount to anything at all, because all the property of the decedent may be required for payment of his debts, or all of the personal property and a part of the real estate may be thus required, and in such a ease the interest in question would be nothing more than the share of the party in the money which is left after all the debts of the decedent and expenses of the administration are paid. It is entirely analogous to the interest which a member of a firm has in the partnership.
    Now the interest being attachable “ in the same manner as debts due are made subject to execution,” and tbe most comprehensive expression of the interest of a person in the estate of a decedent being “ distributive share,” it is evident that where the subject attached is described as debts, credits, effects, legacies, distributive shares of the debtor in the bands or possession of the garnishee as administrator or executor of the decedent, it is a sufficient description to indicate that whatever may be found to be due to the debt, or from the administration of the particular decedent, is the subject of the'attachment.
    May 3d 1880.
    There is no especial degree of certainty required in such writs if the object is fairly indicated so that the garnishee may know how to frame his answer and the court to make a decree.
    The case is ruled by Straley’s Appeal, and Neely v. Grantham, supra.

   Mr. Justice Trunkey

delivered the opinion of the court,

Section 10, Act of April 13th 1843, Pamph. L. 235, subjects all legacies given and lands devised to any person, and any interest which any person may have in real or personal estate of any decedent, by will or otherwise, in the hands or possession of the executor or administrator, or in whosesoever hands the same may be., except legacies and distributive shares due married women, to attachment and levy in satisfaction of any judgment in the same manner as debts due are made subject to execution by the twenty-second section of the Act of June 16th 1836, Pamph. L. 765. Said twenty-second section makes debts due to any defendant liable to execution like other goods and chattels. As debts cannot be taken in same mode as a house or leasehold, the thirty-fifth section declares, “ the same may be attached and levied in satisfaction of the judgment in the manner allowed in the case of a foreign attachment.” In the case of personal property, a foreign attachment is served by the officer going to the person in whose hands or possession the defendant’s goods or effects are supposed to be, and then and there declaring, in the presence of one or more credible persons of the neighborhood, that he attaches the said goods or effects : Act June 13th 1836, sect. 48, Pamph. L. 580. The forty-ninth section directs how the writ shall be executed; ahd the fiftieth, what the sheriff shall do after the service, in case of real estate. By Act of 1849, sect. 11, Pamph. L. 620, process in the nature of attachment may be issued at any time after the interest of the defendant in the real or personal estate shall have accrued by reason of the death of the decedent.

The statutes have not confounded legacies and devises, nor the respective interests of one in the realty and personalty of an intestate, but have made each and all liable to attachment upon execution in satisfaction of a judgment. “Legacies given” and “ lands devised” are artistic phrases, meaning different things, and neither includes the other. And so an interest in the goods and chattels of an intestate, is quite different from an interest in his lands.

Immediately after the death of a decedent his heir takes the real estate in possession, and, as if he held by purchase, he may sell and convey, or encumber it, or his judgment-creditor may cause it to be seized in execution. The administrator of an intestate has no right of possession or custody of his lands. The possibility that the primary fund may be insufficient for payment of the decedent’s debts, does not prevent possession and control of the land by the heir until adjudication and conversion by proceedings in the proper court. One who acquires the title of the heir stands in his place and holds subject to liability for debts of the intestate, if there be not enough personalty to pay them.

Here the praecipe directed an attachment of the moneys and interest of the defendant in the hands of the administrator, and the writ rightly followed the praecipe. Obeying his writ, the sheriff attached “ all the goods and chattels, debts, effects, credits, legacies, distributive shares of the defendant” in the hands, possession or custody of the administrator of Jacob Harwi, deceased. Upon the admitted facts the administrator was not in possession of the lands, and no service was made on the occupants. The personal estate of the decedent is more than sufficient for payment of his debts, but this fact matters little, if anything. On its face, the writ embraces nothing but the defendant’s interest, or his distributive share, in the personal assets in the administrator’s hands ; and the return of service shows no attachment of lands or interest therein. Clearly, the writ and service did not bind the defendant’s interest in the real, estate, and it is unnecessary now to decide how the writ for such purpose should be executed. The record fails to show an attachment or levy on lands or interest therein, and consequently there is not a semblance of notice to subsequent purchasers or encumbrancers.

The decree of the court below seems to rest mainly on the authority of Straley’s Appeal, 7 Wright 89, and Neely v. Grantham, 8 P. F. Smith 433. The former was not referred to in the latter, though at variance with the views of a majority of the court. In Neely v. Grantham, supra, two of the five judges dissented, holding that the writ, not having been served in the manner directed in a foreign attachment, did not create a lien; and the present chief justice agreed in the judgment expressly on the ground that the interest of the defendant in the estate was personalty ; but if realty, the strong inclination of his mind was to unite with the dissenting judges. Therefore, that case cannot be regarded as ruling that the defendant’s interest in the real estate of a decedent, is bound by an attachment of his interest only in the personal estate; or that the real and personal estates are so blended in the statute, that words exclusively applicable to one include the other.

Decree reversed, and it is now considered and decreed that the fund, $1549.32, be appropriated to the judgment in favor of Jeremiah Roth, trustee for Barbara Harwi, No. 269, February Term 1878. Costs to be paid by appellees.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Commonwealth ex rel. Drum versus Gaige.
    1. The 11th section of the Act of April 17th 1878, known as tho“New County Act” provides that, “ the governor shall immediately appoint and commission for the new county the necessary county officers as provided hy law, who shall perform the duties, have the power and be subject to the like qualifications as have county officers of this Commonwealth, and shall continue in offiee until the next general election and until their successors shall be duly elected and qualified.” Sect. 7, art. 14, of the Constitution pi-ovides that, “three county commissioners and three county auditors shall be elected in each county where such officers are chosen in the year 1875, and every third year thereafter.” On August 21st 1878 the new county of Lackawanna was erected under the provisions of the above act. On the 22d of August 1878, the governor commissioned respondent as commissioner of said county. At the general election, on the first Tuesday of November in 1878 and 1879 the relator was elected and re-elected to said office: Held, that the time for filling the ofiices of county commissioners had not arrived at either of said elections, and the relator was not duly elected, and that the proper time for electing was in 1881, being the same year when the other counties of the state were to elect the same officei's.
    2. The proper time for an election was at the second triennial period, from 1875, when, as here, the first general election was within three months of a vacancy.
    March 30th 1880.
    Before Sharswood, C. J., Mercur, Gorrón, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Lackawanna county: Of January Term 1880, No. 234.
    Quo warranto at the relation of R. O. Drum against H. L. Gaige to show by what warrant he held the office of county commissioner of Lackawanna county.
    On the 21st of August 1878, the governor of this Commonwealth,, in pursuance of the Act of 17th April 1878, issued his proclamation declaring that a majority of the votes cast at an election held; on the 13th of August 1878, in accordance with the above recited act, were in favor of the erection of the new county of Lackawanna; and thenceforth the said new county was established, with all the' rights, powers, and privileges of other counties of this Commonwealth.

      Vacancies thus happened in the office of county commissioner, and to fill these vacancies the governor, on the 22d of August 1878, in accordance with the provisions of the Constitution and laws of this Commonwealth, appointed and commissioned three county commissioners until the end of the next session of the senate. As one of these county commissioners he appointed H. L. Gaige, the respondent, who accepted the appointment and commission, and immediately qualified according to law, and entered upon the discharge of the duties of his office.
    At the next session of the senate, the governor nominated the said H. L. Gaige as a county commissioner, and by and with the advice and consent of two-thirds of all the members of the senate, appointed and commissioned him as a county commissioner of Lackawanna county until his successor should be duly elected and qualified. The respondent also accepted this appointment and commission, qualified according to law, immediately entered upon the discharge of the duties of his office, and continued to discharge the same when this writ issued.
    On the 5th of January 1880, R. C. Drum, the relator, claiming that he had been elected to the office of county commissioner of Lackawanna county on the 4th day of November 1879, filed his suggestion, and obtained a rule from the Court of Common Pleas of Lackawanna county on the respondent to show cause why a 'writ of quo warranto should not issue against him commanding him to appear and show by what authority he exercises the office of county commissioner of Lackawanna county.
    Upon the return day of the rule, the respondent filed his reasons (called an answer by the relator) why a writ of quo warranto should not issue in this case. Upon due consideration, on the 26th of January 1880, the court adjudged that the relator was not entitled to the writ of quo warranto prayed for. On the 27th of January 1880, however, at the suggestion of relator the court directed a writ of quo warranto to issue, and thereupon judgment to be entered in favor of the respondent.
    Hand, A. L. J., delivered the following opinion:
    “ This is a proceeding to test the title of Henry L. Gaige to the office of county commissioner of Lackawanna county. On the 5th of January 1880, we granted this rule, returnable 19th January 1880. At that time the evidence was adduced on a hearing and full arguments made on the merits. The facts are as follows: Suggestions were filed January 5th 1880. The election returns for the election held 4th November 1879, show that H. F. Barrett received 5334 votes; R. C. Drum received 5233 votes; Dennis Tierney received 2729 votes, which were the highest number of votes cast for any persons for the office of county commissioner.
    The election returns for election held 5th November 1878, show that H. F. Barrett received 4417 votes; R. G. Drum received 4497 votes ; M. Boland received 3142 votes, which were the highest number of votes cast for any persons for the office of county commissioner at that election.
    “April 17th 1878, the New County Act was passed, Pamph. L. 17, being a general law under which Lackawanna county was erected.
    “August 21st 1878, the proclamation of the governor was issued establishing the new county.
    “August 22d 1878, the governor appointed and commissioned all the county officers, inter alia, Henry L. Gaige, H. F. Barrett and Dennis Tierney to be county commissioners until the next session of the senate and until their successors are duly elected and qualified. These commissioners were confirmed by the senate, have since that time filled the office and are now in office.
    “We have presented by the foregoing facts the issue which we are to decide, viz: The defendant claiming to hold his office by virtue of his appointment and commission until a successor is duly elected and qualified, and the relator claiming to have been duly elected and qualified on the 5th day of January 1880.
    “ ‘Due election and qualification could only result from action in accordance with the Constitution and existing laws Evans v. Walsh, 1. Lack. Leg. Rec. 342. We address ourselves to the construction of these from the best light we can gather. The respondent must hold his office, if at all, under the 7th section of article 14 of the Constitution, and the clause in the New County Act of 1878, sect. 11, Pamph. L. 19, which provides that the appointees of the governor shall continue in office until ‘ the next general election, and until their successors shall be duly elected and qualified.’ The respondent may hold his office, 1. If he can show a positive right under the Constitution and laws; or, 2. In the absence of this, if he can show that this relator is not a successor duly elected and qualified. We are aware of the importance attached to these questions; that they involve not only the rights between these two contestants, but indirectly the terms of the other commissioners of the county. We are, however, to dispose of them irrespective of results, and only as we conceive the law to govern.
    “The 7th section of article 14 of the Constitutipn is new to our constitutional law. It makes what were before mere statutory offices constitutional ones. It puts upon the offices of commissioner and auditor the character to which they are entitled under the lawS and usages of the Commonwealth, and the importance which really attaches to them, as they affect both the citizen and the state. Prior to this the commissioners were changed partially, one member retiring each year. Now the whole are changed at the end of three years. Prior to this the dominant party controlled the whole board; now a minority representation is provided for. Casual vacancies are now filled by the Court of Common Pleas by the appointment of an elector of the proper county who shall have voted for the commissioner whose place is filled. It is evident in order to preserve this minority representation that this appointment must he to the end of the whole triennial period for which the commissioners, as a board, were elected, and not to the next election ; nor, if within three months, to the second succeeding general election, as provided in sect. 8, art. 4. That section, therefore, cannot give us any light upon this subject as regards this question, as it could in regard to other offices which by law may be filled by the governor. It is clear, therefore, that in each county the term of county commissioner is a fixed term of three years, and that while under sect. 2 other county officers may begin a term within a period that would have belonged to their predecessors if they had continued in office, it is not so with county commissioners and county auditors. A vacancy in other elective offices may be filled by an election taking place over three months after the vacancy exists, or at farthest the second election after, but not so with county commissioners. We have then this fact within sects. 2 and 7 of art. 14, of the Constitution, about which there can be no dispute, that a term of county commissioners once commenced in a county, they are to be elected at each successive period of three years thereafter.
    “Now the next question is, does sect. 7 of art. 14 preserve this period uniform throughout the state, so that all commissioners throughout the state are to he elected at the same -time. On this question it seems to us hangs the merit of this controversy. If we err here, our error is' vital. We have no light to guide us but the common rules of interpretation governing constitutional questions. The debates of the convention are referred to. These are often deceptive, for while sometimes they may guide, the Constitution was the article of the people, and how they understood it is what courts of law look at. We think that construction is to be adopted which accepts the natural and necessary result produced by the language used. This no more than the rule that ‘ every word employed in .the Constitution is to he expounded in its plain, obvious and common-sense meaning:’ Dwar. on Stat. and Const., Now let us apply this principle to this section. ‘ Three county commissioners and county auditors shall' be elected in each county where such officers are chosen, in the year one thousand eight hundred and seventy-five,'and every third year thereafter.’ The first meaning that would be attached to this clause by the people, members of the convention, or any one who reads it would be gathered from the result produced by its operation. What would be that operation ? Most clearly that in all counties throughout the state where county commissioners are chosen, the elections would be in the same year, viz., 1875, and every third year thereafter; in other Words, the election of county commissioners would be_ uniform as to time throughout the state. Any different interpretation than this would place this county of Lackawanna in a different category from the other counties in the state, and that against the plain and obvious meaning of this section, which relates especially to county commissioners. That there' are reasons why this election should be uniform and why the year 1875 was selected, will be obvious on a moment’s reflection. The year 1875 occurs immediately before the year of the triennial assessment, which, since 1846, has become a fixed fact in our tax system, so that the commissioners and auditors are now in office during the existence of the assessments over which they have control and with which they have to do. Again, the county commissions are officers with whom the state has an immediate business connection, and it is a matter of convenience for the state officials to know when their terms expire and who are elected, through a uniform system. An examination of the New Constitution, and of the debates in the convention, at once shows that throughout the instrument an effort has been made to produce uniformity in all possible matters throughout the state. In the schedule ■ the year 1875 is again made emphatic as the one in which these triennial elections were to begin throughout the state by the provision in sect. 28, that the previous terms of all county commissioners shall expire on the first Monday of January 1876, thereby depriving officers of a portion of their terms against the general spirit of the instrument, when it could have easily preserved the terms of those already elected to the expiration of the term of the youngest in office. This uniformity is in no way essentially connected with the system of limited voting and minority representation introduced in the seventh section, because, as will be seen in this present case, it can now begin with this year in Lackawanna county if we hold that these commissioners were properly elected at the last election, and yet this uniformity, as we have shown, is a necessary result of the language used.
    “ Again, suppose we transpose the words of the 7th section as far as may be, and read it thus: “ The county commissioners * * * shall be elected in each county every third year after the year 1875.” It will hardly be doubted what the import of the words are. This being so, is there anything in the Constitution to restrain or control this meaning? We fail to discover it. It is argued that under section 8, art. 4, the election shall be held at the second succeeding general election. It is a question whether under the Constitution the office of county commissioners is an office which the governor has power to fill. Evans v. Walsh does not decide that question, as it was not raised in a case where vacancies are directly provided for in the Constitution. Vacancies in the office of county commissioners are by the Constitution filled by the court. But it is clear that the Act of 17th April 1878 does give power to the governor to fill this vacancy at the erection of the new county. That power, however, provides that the appointees shall “ continue in office until the next general election and-until their successors shall be duly elected and qualified.” It was held in Evans v. Walsh by Judge Woodward, that “ next general election ” was qualified by the three months clause of sect. 8, art. 4 of the Constitution, or in other words, that next general election meant the next legal general election. We have seen that this clause and principle must necessarily bend to sect. 7, art. 14, in filling a vacancy in the office of county commissioners in order to preserve the minority representative principle. We therefore think that the “next general election” as it relates to county commissioners must be qualified by sect. 7, art. 14, instead of the 8th section of article 4.
    “ This construction does no violence to any clause, but gives force to all. In truth, it is 'not a forced construction, but perfectly in harmony with the language to interpret sect. 8, art. 4, by saying that the second succeeding general election would in the case of county commissioners and auditors (triplicate officers) be complied with exactly at the second triennial period when the first was within three months of a vacancy. .It is urged that we thereby continue in office county commissioners for two years without an election by the people. It is true, but so the law provides.
    “The people ask only to fill their offices according to law, and if that is a fair interpretation, the spirit and letter of our law is fulfilled and the rights of the people preserved. Again, it is no more than often occurs. In this very office of county commissioner a vacancy occurring a few days after an incumbent enters upon his duties would be filled by the court for nearly three years without an election by the people; and, under the decision of Broom v. Hanley, where a person elected dies before entering upon the duties of his office, many officers are continued merely by the clause in the law, or their commissions, that provides they shall hold till their successors are duly elected and qualified. In the case of People v. Whitman, 10 Cal. 44, it was held that this clause in a commission was as much a part of a term as the term itself of the office. The same principle is recognised in York County v. Small, 1 W. & S. 315. If these principles of construction are correct, then the time for filling the offices of county commissioners had not arrived in November 1879, and this relator was not duly elected, and the proper time for electing is in 1881, being the same year when other counties of the Commonwealth elect the same officers.
    “ It is urged that if we give a technical interpretation to art. 7, sect. 14, that then an election must take place in Lackawanna county in 1878, and that Drum, being then elected, is entitled to take his seat against Gaige by virtue of that election. The answer to that position is that the Constitution must be construed together, and that effect given to it which meets and harmonizes all its requirements. A principle is prominent in its provisions, and the one upon which Evans v. Walsh turned, that the people shall have at least three months’ notice of a vacancy to be filled before any election can take place. This is a wholesome provision emphasized by our Supreme Court, and effect was first given to it in an Act of Assembly in the election of judges against the want of the provision in the Constitution of 1838. We hold, therefore, that an election could not take place in 1878, and believe this was settled in the case of Evans v. Walsh. It could have taken place if the county had been organized over three months before an election.
    “ We are again urged to allow the election of Mr. Drum to be effective from the time of his election until 1881, when the Constitution provides that all commissioners are to be elected. We answer that this would be to allow the people to fill a vacancy which is “ casual,” when the Constitution provides it shall be filled by the courts.
    “ It is argued, by way of analogy, that the Constitution of 1838 provided that the first election of prothonotaries, clerks, &c., should be at the election of representatives in 1839, and that it will not be pretended that that created fixed periods throughout the state. This is true, but the case is in no way analogous. That article (of the schedule of 1838, sect. 10) provided that they should be “ elected in such manner as may be prescribed by law,” not at a certain year, and every three years thereafter. The Act of 1839, Pamph. L. 559, passed in pursuance of this, states at the outset that these officers shall be elected at the next general election, and whenever it becomes necessary for an election, and then provides, in filling vacancies (sect. 4), that they shall be filled by election at the next general election after the vacancy, for three years.
    “We think that the respondent is entitled to hold his office: First, under his commission, which gives him the office until his successor is duly elected and qualified; second, that the relator cannot disturb him in the possession of that office, not having been duly elected.
    “ In so holding, w.e violate no principle of sect. 8, art. 4, of the Constitution. We fulfil the letter and spirit of sect. 7, art. 14, and sect. 28 of the schedule and the Act of 17th April 1878. It is in favor of the view that we have taken that it permits Lackawanna county to take its place among the counties of the state without presenting any different period for the election of commissioners and auditors, and it is no injury to the public weal that the same commissioners who have begun the work of formation should be allowed to complete the work they have begun during the first triennial period. This cause has been argued before us on a rule to show cause and the facts pertinent to its disposition adduced as if upon its merits. In order to conform to the practice as laid down in Murphy v. Farmers’ Bank, 8 Harris 420, we will deny this motion, but with leave, if counsel for the relator deem it necessary to preserve their rights for a review in the highest court, to move at any time for such further action as under the practice may be necessary. We think, however, under that decision, that inasmuch as we decide the case upon a full hearing on its merits, a denial of the writ will be sufficient. The writ in this case is therefore denied.
    “Now, 27th January 1880, at the request of relator, and in order that the record may be in proper shape for review, it is directed that a writ of quo warranto be issued in the above entitled case, and thereupon judgment to be entered ,in favor of the respondent, with right to relator to writ of error.”
    The relator took this writ, and alleged that the court erred in entering judgment for the respondent.

      F. L. Sitohcoeh and I. H. Burns, for plaintiff in error.
    The whole object of sect. 7, art. 14, of the Constitution was evidently to introduce the system of minority representation in boards of county commissioners and auditors. To do so, it was necessary that the terms of auditors and commissioners in office at the time of the adoption of the Constitution should all ■ expire at some definite time, and to accomplish this was the object of sect. 28 of the schedule, fixing the 'first Monday of January 1876 as that time. Any other time might have been selected as well, but this happened to have been the particular time adopted. The system of minoi’ity representation was the object aimed at, and to which the matter of particular dates was entirely subordinate and in itself of no importance. Said section was, by the very language of the section itself, designed to be limited, so far as dates are concerned, to the counties then in existence. Certainly, it could not have been intended by the framers of the Constitution that an election for county commissioners should be held in the county of Lackawanna in the year 1875, for the county then had no existence, and if not in 1875, then not in 1878 or in 1881. This section prescribes a mode in which county commissioners shall be elected, and whenever they are elected they must.be elected in the manner provided, because the system itself was designed for new counties, as well as for those in existence at the adoption of the Constitution. The office of the provision to “hold until his successor is duly elected and qualified” is simply to bridge over a chasm caused by some occurrence unforeseen and out of the usual order of events In this case there has been no such occurrence.

      Lemuel Amerman, for defendant in error.
    When, under this act and the Constitution, could a successor to the respondent, appointed on the 22d of August 1878, be elected ? On the 5th of November 1878, and on the 4th of November 1879, is the relator’s answer, at both of which elections he claims to have been elected. But the next general election after the 22d of August 1878, at which a county commissioner can be elected under the Constitution, will be in 1881. The next general election after the appointment of the respondent was, it is true, on the 5th of November 1878, but this must be qualified by the Constitution. In the election of county surveyor in Lackawanna county in 1878, this court held that “ the next general election” in the section now under consideration did not mean absolutely the next general election, but the next general election at which an election for county surveyor could be held under the Constitution and laws: Walsh v. Com. ex rel. Evans, 8 Norris 419.
    May 3d 1880,
    Though the 5th of November 1878 was strictly the day of the next general election after the 22d of August 1878, this court held that. under the laws and the 8th section of the 4th article of the Constitution it was not the next general election, but that the 4th day of November 1879 was the day of the next general election for the election of county surveyor. By a parity of reasoning, the 5th day of November 1878 was strictly the day of the next general election after the 22d day of August 1878, yet under the 7th section of the 14th article of the Constitution it was not the next general election, but the general election in the year 1881 will be the next general election for the election of county commissioners. By this interpretation, and by this alone, the law and the Constitution are in harmony.
   The judgment of the Supreme Court was entered,

Per Curiam.

It is unnecessary to decide whether the judgment of the court below, without a service of the writ upon the defendant, was regular, as upon the merits we are of opinion that the relator showed no right under the Constitution and laws to the office held by the defendant, and we affirm this judgment upon the opinion of the learned judge below.

Judgment affirmed.


text:
    City of Scranton versus Catterson.
    1. The city of Scranton is an incorporated city. C., while driving through its streets, struck a water plug, projecting from the ground in the middle of the street, and he was thrown from his wagon and injured. The plug was placed in the street by a water company that was incorporated prior to the incorporation of the city. As originally placed, it only projected about two inches from the ground, but a few months previous to the accident the street had been lowered, and the plug was thus left to project about six inches from the ground. The street commissioners had frequently seen the plug, and knew of its existence at the time of the accident. C. brought an action for damages against the city, and the defendant asked the court to chai'ge that if the obstruction was placed in the street by the water company, under authority from the state, the city was not liable: Held, affirming the court below, that it mattered not who placed the obstruction in the street, provided the city had notice of its existence and failed to remove it.
    2. The water company had the right to put in the plug but it had no authority to place and maintain an obstruction on the street. Should they construct a dangerous public nuisance on the highway, the duty of the city, after notice, is plain. And where, as here, the plug was properly placed, and afterwards the city lowered the grade of the street, causing the obstruction, it was an .inexcusable neglect.
    March 30th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Lackawanna county: Of July Term 1879, No. 57.
    Case by John M. Catterson against the city of Scranton, to recover damages for injuries received from the alleged negligence of the city in allowing an obstruction on one of its streets.
    From the testimony on behalf of the plaintiff, it appeared that in December 1877,. he was driving a wagon with two horses on a slow trot up Penn avenue, in the city of Scranton, and in turning into Mulberry street the left front wheel of the wagon struck the head of an iron water-plug, which projected about six inches from the ground, and which plaintiff did not see,.and that by reason thereof he was thrown from the wagon and injured. The plug was about the middle of the street, and had been placed there by the Scranton Gas and Water Company before the incorporation of the city. It had originally only projected about two inches from the ground, but some few months before this occurrence the city had lowered the level of the street, and it was thus made to project several inches more. The plaintiff gave in evidence the Act of Assembly incorporating the city of Scranton in 1867, wherein it was authorized to open streets, and the duty imposed upon it of regulating them.
    Several witnesses for the defence testified that they knew of the plug, that wagons had gone over it without accident, but that knowing its whereabouts they avoided it. The street commissioner, on cross-examination, testified that lie lived near the point of the accident; that he had frequently observed the plug; that when he saw it he thought it projected about five inches from the ground.
    The defendant offered in evidence the charter of the Scranton Gas and Water Company: Pamph. L. 1856, p. 599. Offered for the purpose of showing that the legislature authorized the Scranton Gas and Water Company to put the plug in at the point of the accident; that the city has no control over it; that the said company is not the servant or agent of the city in this matter, and is not responsible to the city, but to the state. Objected to and objection sustained. (1st assignment of error.)
    The following is one section of the charter:
    “ The said company shall have power to provide, erect, and maintain all works, machinery, fixtures, or engines necessary or proper for making, raising, and introducing into the village of Scranton, Luzerne county, a sufficient supply of gas and pure •water; and for that purpose may provide, erect, and maintain all proper buildings, cisterns, and reservoirs for the reception of the gas and water to be introduced, and for this purpose they are authorized and empowered by themselves, their agents, engineers and -workmen, to take water from any stream, and with their tools, carts, -wagons and horses, to enter upon lands and enclosures, streets, lanes and alleys, roads, highways and bridges, as may be necessary to occupy or to obtain necessary materials for the construction of the said works, and to occupy, ditch and lay pipes, and from time to time to repair the same; and if any injury be done to private property, the said company shall make- compensatiqn therefor in the manner hereinafter provided.”
    .The defendant, inter alia, submitted the following points to which are appended the answers- of the court, Handley, P. J.
    2. Plaintiff was bound to use ordinary care and caution, and if he could by such care have avoided the accident he cannot recover. The least contributory negligence will prevent a recovery.
    Ans. “ This point we affirm; but, as we said to you in our general charge, if you find that there was the least contributory negligence on the part of the plaintiff, and there was also negligence on the part of the city, it is not for you to balance the scales of justice and say -which one of these parties is to blame. The law casts the responsibility upon this plaintiff of using ordinary care in passing over the public highways; if he failed to use that care he must suffer the consequences and cannot recover.”
    3. If the jury believe that the obstruction in the street was placed there under .authority of the state, and independent of the city authority, then the action should be against the authority guilty of the obstruction.
    Ans. “ This point we cannot affirm.” (2d assignment.)

      4. A person driving over a road with which he is unacquainted should carefully examine the way ahead, especially when turning corners, and a non-compliance with this is negligence.
    Ans. “ This point as presented we cannot affirm.” (3d assignment.)
    6. The city of Scranton is not liable for injuries resulting from obstructions placed in the street by the Scranton Gas and Water Company, in the pursuance of its lawful 'business under the authority given by its charter from the state.
    Ans. “This point we cannot affirm. We have no hesitation in saying to you that the Scranton Gas and Water Company no doubt had the right to construct such works as the law-making power of this state authorized her to do; but neither the Scranton Gas and Water Company nor any other company can put a structural obstruction in the public highways. If the Gas and Water Company did put this obstruction there, and the attention of the city was called to it, and she failed to compel the company to remove it, and it remains there, and an injury of this kind occurs, without any contributing negligence on the part of the defendant, it is the city that must first answer, although the Gas and Water Company may afterwards have to answer. (4th assignment.)
    Verdict for plaintiff, and after judgment thereon defendant took this writ and alleged that the court erred in rejecting the testimony and in the answers to the points as set forth in the above assignments of error.

      I. H. Burns, for plaintiff in error.
    The charter privileges granted to a private corporation by the state, constitute a contract which cannot be impaired either by the state or a municipality deriving power therefrom: Fletcher v. Peck, 6 Cranch 87; Dartmouth College v. Woodward, 4 Whart. 519; Bank of Pennsylvania v. Commonwealth, 7 Harris 151; Southwark Railroad Co. v. Philadelphia, 11 Wright 314. The authority of the state over highways and streets is absolute, and she may obstruct, alter or control them as she may deem proper, and where such obstruction or alteration is duly authorized. A municipal corporation cannot interfere or control it, and is not liable for damages caused thereby: Philadelphia and Trenton Railroad Co., 6 Whart. 44; Young v. The Inhabitants of Yarmouth, 9 Gray 386.

      Edward B. Sturges, for defendant in error.
    There certainly is no authority given by the legislative grant to create and maintain any permanent obstruction in any streets. Even if much stronger language had been used, the city would still have retained the control of the use of its streets, so far as to compel a use of them which would not destroy them as public highways, where such use was not absolutely essential to the corporation holding the prior right. But the gas and water company did not place this obstruction in the street. Under the undisputed evidence in the case —when this pipe and cap was put in by the water company, its top was only one inch above the grade of the street at that point. It became an object of danger by the direct action of the city of Scranton in lowering the street, and it remained for months in this dangerous position with the full knowledge of the city officials. The offer of the charter was, therefore, immaterial.
    May 3d 1880.
    The plaintiff below had the right in this case to look first to the municipal corporation, who in turn might seek to recover from the water company. The party injured by an obstruction or nuisance in the highway has his option to proceed against the municipality, or against the direct author of the obstruction: Angeli on Highways, sects. 298-300; Dillon on Municipal Corporations, p. 927; Birmingham v. Dorer, 3 Brewster 69; Add. on Torts, p. 1316; Philadelphia v. Weller, 4 Brewster 24.
   Mr. Justice Trunkey

delivered the opinion of the court,

That the city of Scranton is clothed with the power and duty of keeping her streets in repair is conceded. No' question was made but that the Scranton Gas and Water Company is a corporation, with right to enter upon the highways to occupy, ditch, lay and repair pipes when necessary; and the court charged, in answer to defendant’s sixth point, that the company had the right to construct such works as the law-making power had authorized, but that the company could not put a structural obstruction in the public highway, and, if they.did, and the attention of the city was called to it, followed by neglect to remove it, the city would be liable for an injury caused by the obstruction, in absence of concurrent negligence by the person injured. In answer to the fourth point, the jury were instructed that “ it matters not who put the obstruction there, provided you find from the evidence the city had notice that the obstruction was there and permitted it to remain.” There was no evidence to warrant the jury in finding the facts on which defendant’s third point was based. In view of the evidence, the second, third and fourth assignments cannot be sustained, but it would be otherwise if the charter of the company vested them with power to erect and maintain the obstruction.

The evidence warranted a finding that the company placed the plug a long time before the accident, leaving its top about an inch above the grade, and afterwards the city lowered the grade of the street, leaving the top of the plug a number of inches above. •Hence, this is wholly unlike a case where an accident occurred during the progress, or immediately after completion, of ditching. and laying pipe, and before the city had notice of the construction of a nuisance.

The first alleged error, and the one mainly relied on, is the rejection of the charter of the Scranton Gas and Water Company, offered for the purpose of showing their right to put the plug in at the point of the accident; that the city has no control over it, and that they are not the servants or agents of, nor responsible to, the city. The right of the company to put the plug in at that place, or any other which they deemed necessary, was not denied; but the real question is, have the company authority to place and maintain an obstruction on the street ? If so, the offer was admissible, and it was a fatal error to deny it. The charter might well have been received, and, had it been, the court would have declared its meaning. But if, on inspection, the court saw it contained nothing to the purpose of the offer, no harm was done by its rejection. The plaintiff in error has failed to point to any thing in the charter that authorizes the company to maintain a dangerous obstruction on any highway in the city. They may occupy the streets, for the necessary time, to ditch, lay and repair pipes and place plugs, but no testimony, or offer of testimony, shows that they may leave the top of a plug so far above the grade as to be dangerous to persons travelling the streets. Should they construct a dangerous public nuisance on the highway, the duty of the city, after notice thereof, is plain. If the plug was properly placed, and afterwards the city lowered the grade, thereby causing the obstruction, it was inexcusable neglect. We are of opinion that the charter contained nothing to relieve the city from liability for its sufferance of the nuisance.

Judgment affirmed.


author: Mr. Justice Sterrbtt

text:
    Sellers versus Benner.
    1. In a petition under the Act of June ilth 1879, to procure the satisfaction of a mortgage, the terre-tenant alleged that when the property was conveyed by the mortgagor to him, he had paid the mortgage debt to the mortgagee. In his answer, the mortgagee denied the payment, and the assignee of the mortgage alleged that she was the assignee for value without notice. The court directed an issue to try the question of payment, and the petitioner, who was plaintiff in the issue, testified that the mortgagee had undertaken to procure a conveyance of the property to him clear of encumbrances for a certain consideration; that plaintiff had accepted the conveyance on these terms, and the consideration was paid, but the mortgages were not satisfied. It was admitted that the mortgages were subsequently assigned for value to one of the respondents, the defendants in the issue. The court below directed a verdict for the defendants on the ground that there was no evidence of payment by the mortgagor to the mortgagee: Held, that this was error ; that the testimony of the plaintiff should have been submitted to the jury, as in the absence of any evidence on the part of the defendants, the plaintiff was entitled to the full benefit of his testimony, and any inferences of fact.which the jury might be justified in drawing therefrom, and that they might have found such a payment.
    2. Where a terre-tenant has procured the payment of a mortgage, although he has neither obtained possession of the mortgage nor had it satisfied, his equity is superior to that of an assignee of the mortgage who, at the time of the assignment, made no inquiry of the mortgagor who had sold the property to the terre-tenant in a deed that contained no reference to the mortgage.
    3. Jeffers v. Gill, 20 Norris 290, distinguished.
    March 30th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Northampton county: Of January Term 1880, No. 226.
    This was an issue directed by the court wherein Henry S. Sellers was plaintiff and James F. Benner, Susan Bodder, wife of Charles Bodder, and Charles. Bodder were defendants.
    The issue was framed under the Act of Assembly of June 11th 1879, entitled “An act regulating the satisfaction of mortgages, when payment of the same has been made in full, and the mortgagees or legal holder or holders thereof have failed to enter satisfaction upon the record.”
    The petition of Sellers set forth that on April 1st 1867, Lewis Benner, being the owner of a house and lot in Bethlehem, gave a mortgage thereon to his son James F. Benner for $500, and that on April 1st 1868, he gave another mortgage to his son on the same property for $722. Both of these mortgages were recorded.' That on September 29th 1877, Lewis Benner conveyed the said property to the petitioner, and that on the same day the petitioner paid the principal and interest due on said mortgages to the mortgagee James F. Benner, and that on the 26th of June 1879, James F. Benner assigned the said mortgages to Susan Bodder.

      The petitioner then prayed the court “ to direct notice of the facts set forth in this petition to be given to the said James F. Benner and Susan Bodder to require them to appear at the next term of said court to answer said petition, and, upon due proof that the full amount for which the said mortgages were given has been paid, to order satisfaction to be entered on the record of said mortgages.”
    The answer of J. E. Benner set forth “ that the said two mortgages in said petition described have never been paid by H. S. Sellers or any one else. That the father of this deponent sold the said premises to H. S. Sellers, subject to the said mortgages, and it was expressly understood and agreed at the time that the mortgages were not to be cancelled by the sale, but that they should be paid by the said H. S. Sellers. That since that time he has in good faith assigned the two mortgages to Mrs. Charles Bodder, who is now the owner, for a good consideration.”
    Mrs. Bodder in her answer alleged, “she found that the mortgages were standing open on the records of this county, that they rested on property which was worth a good deal more than the amount of the mortgages, and she was not aware of any question about their payment or of any dispute existing between James Benner and II. S. Sellers, or she wmuld not have taken them and conveyed her property for them, and she claims that she is a bona fide assignee, for value, and without notice, and cannot be affected by any secret arrangements between the mortgagee and the present owner of the premises, if any such existed, and that the mortgagee cannot legally satisfy said mortgage to her prejudice.
    “ That she recently turned her mortgages over to an attorney for collection, who, she is informed, gave Sellers notice to pay, whereupon he began the present proceeding, although he was the owner of the mortgaged premises for nearly two years previous.
    “That since she has been notified of the present proceeding, she has inquired of James Benner into the nature of the quarrel between himself and Sellers, and learns from him that Sellers sold or exchanged his livery stools: for the margin in said house and lot, over and above the mortgages and $500 note, which has since been paid; that the said mortgages were never paid by Sellers or anybody else, and that if the ‘mortgages were now satisfied Sellers would be paid for his stock twice over.”
    The court directed an issue “ to try whether or not said mortgages have been paid, and that the said Henry S. Sellers be the plaintiff in said issue, and that the said James E. Benner and Susan, wife of Charles Bodder, be the defendants therein, and that the petition and answer stand as pleadings in said issue.”
    The following facts disclosed by the evidence together with those set forth in the opinion of this court sufficiently state the case.
    On the 1st of April 1867, and on the 1st of April 1868, Lewis Benner executed and delivered two bonds to James F. Benner, one of the defendants; one for $500 and the other for $720, the payment of which was secured by two mortgages on a house and lot in the borough of Bethlehem. Both mortgages were duly recorded. On the 29th of September Lewis Benner by deed conveyed the house and lot to Henry Sellers, the plaintiff. The consideration mentioned in the deed was $3000. The deed was recorded on October 8th 1877. The evidence was that the sale and conveyance by Lewis Benner to Henry Sellers was in consequence of an arrangement entered into between James F. Benner the mortgagee and Henry Sellers by which the latter agreed to transfer and deliver, and did transfer and deliver the stock of a livery stable to James F. Benner at a valuation of $3500, the consideration of which was that Henry Sellers should have a conveyance of the house and lot of Lewis Benner, and a note of James F. Benner for $500; that James F. Benner was to give the mortgages on the house and lot to Henry Sellers; that the mortgages should be cancelled, and that the house and lot should be free of all encumbrances. The note was given but the bonds and mortgages were never transferred, nor satisfied on the recsrd. There was no evidence that Lewis Benner, the mortgagor, had any knowledge of this arrangement between Henry Sellers and James F. Benner. It was also admitted that the bonds and mortgages in question were, on the 26th of June 1879, in writing and for a valuable consideration assigned by James F. Benner, the mortgagee, to Susan Bodder, wife of Charles Bodder, one of the defendants, and that the assignment was recorded on the 2d of July 1879. There was no evidence that Susan Bodder, at the time of the assignment of the bonds and mortgages, had either notice or knowledge of the arrangement between Henry Sellers and James F. Benner, the mortgagee, at the time of the conveyance of the mortgaged premises by Lewis Benner to Henry Sellers.
    The defendants offered no evidence.
    In the general charge the court, Meyers, P. J., inter alia, said: ■
    “ It is, however, contended on behalf of the plaintiff that at the time when the bonds and mortgages were assigned by James F. Benner to Susan Bodder, the deed of Lewis Benner to Henry Sellers of the mortgaged premises was on record, by which Susan Bodder had constructive notice of the sale and conveyance by Lewis Benner, the mortgagor, to Henry Sellers, that this circumstance imposed upon Susan Bodder the duty of making inquiry of Henry Sellers, the vendee, as to any subsisting equity between him and James F. Benner in respect to said mortgages, and that her failure to make such inquiry entitles the plaintiff to a verdict. In other words it is' contended that in consequence of such constructive notice, the equity of Henry Sellers, the plaintiff, is superior to that of Susan Bodder a purchaser of the bonds and mortgages for value without actual notice or knowledge of the arrangement between James E. Benner, the mortgagee, and Henry Sellers. We do not so understand the law. There is no doubt that Susan Bodder is bound by all the equities subsisting between Lewis Benner, the mortgagor, and James E.- Benner, the mortgagee, at the time of the assignment of the bonds and mortgages to her. But as there is no evidence of a prior payment by Lewis Benner to James F. Benner, the rule requiring her to make inquiry of the former does not apply to the vendee of the mortgagor of his equity of redemption. Holding these views we are of the opinion that under the evidence the defendants are entitled to a verdict.”
    Verdict for defendants, and after judgment thereon, plaintiff took this writ, and alleged that the court erred in directing the jury to find for defendants.

      George W. Geiser and W. W. Schuyler, for plaintiff in error.—
    The court below directed a verdict in favor of the defendants upon the authority of Mott v. Clark, 9 Barr 399, and kindred cases, which rule that the assignee of a mortgage takes it subject to the equities of the mortgagor alone, and not to the secret equities of third parties. This principle we do not question; we only deny its applicability. The equity which Mr. Seilers, the plaintiff below, set up on the trial, was the equity of the mortgagor growing out of the fact, as we contended, that he had paid the mortgages. All that Mr. Sellers claimed was the right, by devolution, to set up the mortgagor’s equity in defence of his own title. At the very outset of the trial, therefore, the question as to who had paid the mortgages. became one of the first importance; it was, moreover, a question of fact for the jury. It is alleged that plaintiff, by allowing the bonds and mortgages to remain in the hands of the mortgagee long after they had been paid, neglected a precaution requisite to protect those who came after him from imposition; that Mrs. Bodder was deceived thereby, and that plaintiff should bear the loss because his was the default. We contend that it was not necessarily negligence for him not to obtain possession of the mortgages : Horstman v. Gerker, 13 Wright 288. A party setting up an equitable estoppel is himself bound to the exercise of good faith and due diligence to ascertain the truth: 2 Story’s Eq. Jur., sect. 1533, b; Moore v. Bowman, 47 N. H. 494. Did Mrs. Bodder exercise due diligence to ascertain the truth before she took the assignments of these mortgages ? It is true, the mortgagor was dead at the time of the assignments, but this did not preclude inquiry of and notice to his legal representatives. Moreover, it does not appear that she knew of the death of the mortgagor, nor does it appear that she made any inquiry whatever as to whether there was any defence to the mortgages or note.
    The assignee of a mortgage, unless the mortgagor has estopped himself, holds it subject to all the equities to which it was liable in the hands of the assignor: Ashton’s Appeal, 23 P. F. Smith 153.
    The want of notice to, and inquiry of, the mortgagor or his legal representatives, on the part of Mrs. Bodder, was sought to be justified in the court below by the allegation that such notice and inquiry would have been useless, on the theory that the mortgagor had no equities to be guarded against, and that therefore he would have no motives to disclose the truth.
    Although the mortgagor had parted with his title to the mortgaged premises, non constat that these premises were worth the amount of the mortgages, and that he would not still be liable upon the bonds assigned for the deficiency. Besides, by giving a deed of bargain and sale to Mr. Sellers, he rendered himself liable over to Sellers, in case he (Sellers) should be compelled to pay the mortgages over again. The words, “grant, bargain and sell,” in a deed, imply a covenant against encumbrances: Blossom v. Van Court, 34 Mo. 390; Cathcart v. Bowman, 5 Barr 317.
    Between equal equities, priority of time will prevail: Bishp. Eq. 178. Jeffers v. Gill, 10 Norris 290, is clearly distinguishable from this case.

      W. E. Doster, for defendants in error.
    The plaintiff gave no evidence whatever that the secret arrangements he said he had with Benner had ever been in any way brought home or communicated to Mrs. Bodder. On the other hand, he admitted that he had allowed Benner to keep and hold the bonds and mortgages, and had made no effort, during nearly two years, to have them satisfied. He absolutely took no precautions to prevent any innocent person from buying the mortgages, according to their tenor, as they stood on the record and the mortgage index. His attitude, when he closed his case, was that of one who has by his supine negligence caused others to buy as a good security, and then defends himself by proving a secret arrangement had between himself and the seller that the security was in fact bad! He was at once confronted with the ordinary rule that. the assignee of a mortgage is not affected by the secret equities of third parties — i. e. parties who are neither mortgagor or mortgagee, obligor or obligee — and again with the rule that, where the loss must be borne by one of two innocent parties, he by whose fault the loss occurs must suffer it. As the equities interposed were only those of third parties, not mortgagor and mortgagee, and as there was no claim that Lewis Benner ever paid anything on account, the court was clearly right in directing a verdict in favor of defendants.
    If there were any doubts on the question whether a terre-tenant was a .third party, or on the question whether Mrs. Bodder was bound to go'to Sellers and inouire whether the mortgage was paid, they have been judicially settled by the late case of Jeffers v. Grill, supra.

    May 3d 1880.
   Mr. Justice Sterrbtt

delivered the opinion of the court,

The Act of June 11th 1879, under which this issue was directed, provides in substance that if' the holder of a mortgage fails from any cause to enter satisfaction upon the record of the same for six months after the debt secured thereby has been paid, the mortgagor, his heirs or legal representives, or the terre-tenant of the mortgaged premises, may present a petition to the court, setting forth the facts, and obtain an order for notice to the parties interested to appear and answer the petition ; and if due proof be made that the debt has been paid, the court shall direct the recorder to enter satisfaction; “ but if either of the parties shall desire any matter of fact that is affirmed by the one and denied by the other, to be tried by a jury, an-issue shall be framed, and the same shall be tried accordingly, and if the jury shall find that the full amount for which the said mortgage was given has been paid, then satisfaction shall be entered on the record as aforesaid:” Pamph. L. 141.

The petition was presented by the plaintiff, alleging, among other things, that the premises were duly conveyed to him September 29th 1877, at which time the mortgages were fully paid. The defendants, in their answers, denied that they were paid; Benner, the mortgagee, alleging that the plaintiff had purchased subject to the mortgages, and assumed the payment of the debt secured thereby, and that the mortgages were subsequently assigned, for value and in good faith, to Mrs. Bodder; she in her answer claims that they were assigned to her in June 1879, without notice of payment or of any arrangement between the plaintiff and the mortgagee, and that she has since been informed by the latter that the plaintiff sold or exchanged his livery stock for a note of $500, and a conveyance of the premises subject to the mortgages. The court thereupon ordered an issue between the plaintiff and defendants, to determine whether or not the mortgages had been paid, and directed that the petition and answers should stand as pleadings.

On the trial of the issue, plaintiff introduced testimony which it is claimed was sufficient to establish all the material allegations in his petition; but the court thought otherwise, and directed a verdict in favor of defendants, thus sustaining the validity of the mortgages in the hands of Mrs. Bodder, the assignee. This is assigned as error, and the only question is, whether the testimony should have been submitted to the jury.

In the absence of any evidence on the part of the defendants, the plaintiff was entitled to the full benefit of his testimony, and any inferences of fact which the jury would have been justified in drawing therefrom. It cannot be doubted that they could have justly found that on or about September 29th 1877, the plaintiff sold and transferred to James F. Benner his livery stock consisting of stock on hand, horses, carriages, &c., valued at $3500, in consideration of which he was to receive an endorsed note for $500, and a conveyance of the premises described in the mortgages at a valuation of $3000, clear of encumbrances. This, of course, involved the satisfaction of the mortgages held by Benner against his father, and • the plaintiff testified positively that they were to be satisfied on the record. At first it was proposed to procure a conveyance from the father to the son, and then from the latter to the plaintiff, but upon the suggestion of the scrivener that it would avoid unnecessary expense, the conveyance was made directly from the father to the plaintiff. The deed shows the date of the transaction, expresses the consideration named, and contains a special warranty against the grantor, his heirs and all persons lawfully claiming under him. This covenant as between the vendor and vendee would be available to the latter in case of eviction under the mortgages. The words, grant, bargain and sell also imported a covenant against encumbrances : Cathcart v. Bowman, 5 Barr 317; Shaffer v. Greer, 6 Norris 370. So that it was to the interest of Lewis Benner that the mortgages should be satisfied in the transaction, otherwise he might be liable on his warranty as well as implied covenant. There is no evidence that the conveyance was under and subject to the mortgages; on the contrary, the testimony is all the other way, and the jury would have been fully justified in finding as a fact that the conveyance was intended to operate and did operate as a payment to the extent of $3000 on account of the livery stock, and at the same time as a payment in full of the mortgage debt, or what amounts to the same thing, that the plaintiff, by transfer of the livery stock to the mortgagee, discharged the mortgage debt, and to that extent was reimbursed by the conveyance from the mortgagor. Viewing it in either light, it was a payment and extinguishment of the mortgage debt, and the plaintiff had a complete defence against the mortgages in the hands of the mortgagee. Why has he not an equally good defence against the assignee who subsequently accepted the assignment without making any inquiry ? The plaintiff who derived title from the obligor had an equal right with the latter to interpose the defence of payment, unless he did or omitted to do something that might be set up as an estoppel as to him. It is said that he permitted the bonds and mortgages to remain in the hands of the mortgagee, and thus enabled him to impose on Mrs. Bodder. This is all that can be truthfully urged against an otherwise valid and meritorious defence; and there might be some force in it if she had inquired of the obligor or his personal representatives and endeavored to ascertain whether the debts were unpaid, or there was any defence to the mortgages. That this was a duty which the law imposed on her cannot be doubted: Eldred v. Hazlett, 9 Casey 307; Ashton’s Appeal, 23 P. F. Smith 153. It is not a sufficient answer to say that the mortgagor, having parted with his title, had no equities which he or his personal representatives were interested in asserting. We have already seen that recourse might be had against him or his estate on the warranty, and, moreover, the land might not be worth the mortgage debts, and in that event there would be a personal liability on the bonds for the deficiency. These equities were of sufficient importance to-render the usual inquiry necessary, and if it had been made before the assignments were accepted, it would doubtless have led to a discovery of the fact that the mortgages were paid and should have been satisfied at least it is fair to presume that such would have been the case.

The learned judge in his charge conceded that Mrs. Rodder having failed to make inquiry was bound by all the equities subsisting between the mortgagor and mortgagee at the time the mortgages were assigned, but he instructed the jury that as there was “no evidence of a prior payment by Lewis Benner to James E. Benner, the rule requiring her to make inquiry of the former does not apply to the vendee of the mortgagor of his equity of redemption.” In this we think there was error. There was testimony from which the jury might have fairly found a payment. No other consideration than the payment of the mortgage debts was shown for the conveyance to the plaintiff. The testimony tended to prove that the mortgagee procured the conveyance, and that to the extent of the mortgage debts at least he received the consideration in the form of a credit on his purchase of the livery stock. Nor did the testimony justify the inference that nothing more than the mortgagor’s equity of redemption was conveyed or intended to be conveyed; on the contrary, in connection with the deed, it tended to prove that the conveyance was intended to be clear of encumbrances, and that the mortgages were to have been satisfied. It was not a secret equity of a third party that was attempted to be set up. It was the equity of the mortgagor against the mortgagee, based on the allegation of payment, that the terfetenant was seeking to enforce. If he had accepted a conveyance under and subject to the mortgages, or had assumed their payment, a very different case would have been presented. The case of Jeffers v. Gill, 10 Norris 290, on which defendants in error rely, is essentially different from the present case. There the terre-tenant had assumed the payment of the mortgage, had actually paid part of it, and gave his negotiable note for the residue, and renewed the same several times under a collateral agreement with Gill that the bond and mortgage were to be held as security for the note and its renewals. The mortgage was also accompanied with a certificate of no defence. In view of these and other circumstances it was truly said in that case that the terre-tenant had been “ grossly negligent. He gave his note for the balance due on the mortgage when it was yet in the liands of McCullough, and when it came into Gill’s possession he took no steps to have the arrangement endorsed either on the papers or upon the record. The mortgage bond and certificate of no defence were left in Gill’s possession as security for the note ; in other words they were to be of full force until the note was paid.”

In the present case, if the position which the plaintiff’s testimony tended to sustain be correct, the mortgages were actually paid at the time the property was conveyed, and they should have been satisfied on the record and delivered to the mortgagor. The mortgagee in fraud of the rights of the mortgagor, as well as his vendee, afterwards assigned these paid securities to one of the defendants who took them without resorting to sources .of information from which, in all probability, she would have learned the fact of payment. Where inquiry becomes a duty the party who neglects to perform it should be visited with at least constructive knowledge of the facts which probably would have been revealed.

Judgment reversed, and a venire faeias de novo awarded.


author: Mr. Justice Paxson

text:
    Jones versus The National Building Association.
    Where one is induced to become surety on a promissory note by the representations of the secretary of a building association, the association cannot allege a want of authority in the secretary to make such representations when the surety makes defence on the terms of the agreement. The association cannot have the benefit of the security, and at the same time repudiate the contract by means of which they obtained it.
    March 31st 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Lackawanna county: Of January Term 1880, No. 235.
    Feigned issue, wherein the National Building Association was plaintiff, and David L. James and David T. Jones, defendants, to determine the’liability of the latter as surety on a promissory note given by James to the association.
    On the 16th of May 1870, James borrowed of the National Building Association, then an unincorporated association, $680, and gave as security for the same to said association his judgment note for $1000. On this note Jones became surety, upon the secretary of the said association representing to him that he would only be security on the same for about three months, or until the principal could get a policy of insurance on his house and deposit it with the association. About ten weeks after this, James, the principal, procured a policy of insurance on his house and deposited it with the association. When Jones, the surety, demanded of the secretary of the association a release of his obligation as surety, the secretary then assured him he should be released. ■ Subsequently, Jones, finding that he had not been released, demanded of the secretary of the association a release as surety, and notified him that he must no longer look to him as surety, but must look to James, the principal, for the money. In the meantime, on the 27th of June 1870, the National Building Association was incorporated under the provisions of the Act of Assembly of 12th April 1859, by a decree of the Court of Common Pleas of Luzerne county.
    The secretary of the association failed to release Jones and issued a scire facias to revive and continue the lien of the judgment against both James and Jones. Jones immediately made application to the court, and upon affidavit setting forth the facts, obtained a rule to show cause why the judgment should not be opened as to him and he be let into a defence. This rule was made absolute, an issue was framed, and the case was referred to a referee, James H. Torrey, Esq., under the Act of 1869 and supplements, Pamph. L. 725.
    The referee found the facts substantially as they are set forth above, and among his conclusions of law found “ that D. T. Jones, the surety, is estopped to set up as a defence to this action the fraudulent representations of the agent of the association. ■ Perhaps this would not be the case if the association had been incorporated. The relations between a corporation and her members are nardly intimate enough to make the representations of her agents affect the members’ private interests. But being unincorporated, the members of the association stood toward each other in the relation of partners. As a partner Mr. Jones is estopped to set up the representations of the agent and a member of the partnership.” He then found for the plaintiff. Jones assigned this finding for error, and the court, Hand, A. L. J., confirmed the finding of the referee, saying: “ The defendants must all, in contemplation of law, have had notice of the authority, whatever it was, of the secretary to bind the association. They were all members. The referee practically finds that the secretary had not authority to make the arrangement he did, as he finds it to have been fraudulent, which it would not have been if authorized. This is not the cáse of an agreement to exchange securities at a definite time, made with authority and clearly proved. The judgment in this case is affirmed.”
    The defendants took this writ, alleging that the court erred in this action.

      Lemuel Amerman, for plaintiffs-in error.
    The contract of Jones to become surety cannot be separated from that by which it was induced, viz.: the promise to release him upon James furnishing other security. The association must adopt the whole contract, including the statement and representations which induced it: Hunt v. Moore, 2 Barr 105; Mundorff v. Wickersham, 13 P. F. Smith 87; Keough v. Leslie, 11 Norris 424. She cannot have the advantage of the security desired and retain the price of it, viz.: the security of Jones: Mundorff v. Wickersham, supra, and cases there cited.
    May 3d 1880.
    A man cannot take any benefit under a false and fraudulent representation made by his agent, although he may have been no party to the representations, and may not have distinctly authorized them. No matter how innocent he may be, he cannot reap the fruits of his agent’s fraud: Hern v. Nichols, 1 Salk. 288; Musser v. Hyde, 2 W. & S. 314; Bennett v. Judson, 21 N. Y. 238; Elwell v. Chamberlain, 31 Id. 611; Southern Express Co. v. Palmer, 48 Ga. 85.
    Though the plaintiff below is a company or corporation, she is as much bound by the false and fraudulent representations of her agent as an individual: Angell & Ames on Corporations 249; Custer v. Titusville Gas Co., 13 P. F. Smith 381. Even though Jones, the surety, were a member of the association, he must be discharged. The rule that a company cannot retain any benefit which it may have obtained through the false and fraudulent representations of its agents, applies to the case of a member of the company who was induced by such representations to enter into a contract with the company: Western Bank of Scotland v. Addie, L. R., 1 S. C. Ap. Cas. 163; 1 Am. Law Review (N. S. No. 3) 181; Oakes v. Turquand, L. R., 2 H. L. 325.
    No counsel nor paper-book, contra.

   Mr. Justice Paxson

delivered the opinion of the court

The learned referee found as matter of fact that at the time the note in controversy was executed, J. M. C. Ranch, the secretary of the building association, represented to David T. Jones, the surety in said note, that he would only be security on the loan for about three mofiths, or until Mr. James, the principal, could get an insurance policy on his house and deposit it with the association; that about ten weeks after, Mr. James procured a policy of insurance on his house, and deposited it with the association ; and that soon after, Mr. Jones demanded of Mr. Ranch a compliance with his agreement and a release of his (Jones’s) obligation as surety, and that Mr. Ranck again assured him that he should be released.

The referee’s finding of the law is not so satisfactory. It was That D. T. Jones, the surety, is estopped to set up as a defence to this action the fraudulent representations of the agent of the association.”

The court below sustained, the finding of the referee upon the law. No exceptions were filed to his finding of facts.

The contention on the part of the association, plaintiff, is, that the secretary had no authority to make the representations by which Jones was induced to sign the note as surety; that it was therefore a fraud and not binding on said association — that is to say, the latter could repudiate the fraud, and yet hold on to its fruits. This cannot be done. Common honesty and the law of the land alike forbid it. Whether the association was incorporated or unincorporated, whether the secretary was or was not authorized to make the representations to Jones, it is clear the association cannot have the benefit of the security and at the same time repudiate the contract by means of which they obtained it. N.o principle of law is better settled than that a man cannot reap the fruits of his agent’s fraud: Musser v. Hyde, 2 W. & S. 314; Hunt v. Moore, 2 Barr 105; Mundorff v. Wickersham, 13 P. F. Smith 87; Keough v. Leslie, 11 Norris 424. The association took this security cum onere, and the maxim qui sentit commodum sentire debet et onus applies.

The judgment is reversed as to David T. Jones, the surety.


author: Mr. Justice Mercur

text:
    Leonard versus Duffin.
    The debt of a married woman,whereby she is not bound but which she is under a moral obligation to pay, is a sufficient consideration to support an obligation under seal by a third person to pay it.
    March 31st 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. -Green, J., absent.
    Error to the Court of Common Pleas of Northampton county: Of January Term 1880, No. 173.
    Feigned issue wherein Catherine Leonard, administratrix of Elizabeth Murtaugh, deceased, was plaintiff, and John O. Duffin and Mary Duffin defendants, to inquire into the consideration of a judgment for $1065, entered on a judgment-note with a warrant to confess judgment, which judgment the court opened and let the defendants into a defence.
    At the trial it appeared that in 1866, Samuel Duffin borrowed of Mrs. Elizabeth Murtaugh $300. Between 1866 and 1870, Jane Duffin, wife of Samuel Duffin, borrowed of Mrs. Murtaugh money to the amount of $600. In 1871 or 1872, she borrowed of Mrs. Murtaugh $100 more. In 1870, Jane Duffin gave a promissory note to Mrs. Murtaugh for $900; and on June 18th 1877, the money being unpaid, and Mrs. Murtaugh desiring to have security for her money, John O. Duffin and Mary Duffin, two of the children of Jane and Samuel Duffin, executed a bill single for $1065, with warrant of attorney to confess judgment, to secure the payment of the loans make by Mrs. Murtaugh to Samuel Duffin and Jane Duffin on which judgment was entered, No. 181, June Term 1877. In 1878, Mrs. Murtaugh having died, and Catherine Leonard, her administratrix, having been substituted as plaintiff, an execution was issued on this judgment. The defendants then presented their petition, asking the court to set aside the execution and to open the judgment and let the defendants into a defence. The court upon the hearing made the rule absolute and granted this issue.
    The third point of the defendant, which the court affirmed, was as follows: “ Any money borrowed by Mrs. Jane Duffin, and included in the- judgment-note, in suit, must be deducted from the amount named in the judgment in suit.”
    In the general charge, the court, Meyers, P. J., inter alia, said: “ If you find that the consideration of the bill single was the note of $900, the loans of $100 and $65, then we charge you that the bill single by the defendants to Mrs. Murtaugh, to the extent that it included the alleged indebtedness of Jane Duffin, a married woman, to Mrs. Murtaugh, contracted during coverture, is void and not binding on the defendant.”
    Verdict for plaintiff for $345, the amount of the indebtedness of Samuel Duffin, with interest. The plaintiff, after judgment, took this writ, and alleged that the court erred in the answer to the above point, andTn the foregoing portion of the charge.

      Fdtvard J. Fox and A. S. Kneolit, for plaintiff in error.
    The non-liability of a married woman is a personal privilege, not to be extended to her husband, or a stranger, who unites with her in the contract. "While she is not liable upon her contracts, one who joins with her in signing a bond or note, whether as principal or surety, is bound: Hope Building Association v. Lance, 6 W. N. C. 219; Unangst v. Fitler, 3 Norris 135; Shallcross v. Smith, 31 P. F. Smith 132. There can bé no doubt from these decisions that if Jane Duffin had been a co-obl'igor with these defendants, they could have made no defence. If her name had been upon 'the paper, the court would have treated it, as to her, as if it had not been there at all. "Her signing would have been a nullity, and her contract void; and yet the court have decided to hold a surety, although the principal being a married woman was not bound at all. If her execution would have been a nullity, and would be treated as if she had not signed at all, and yet the defendants would then be held liable, why is it that they are discharged from this liability, which was for the payment of her debt ? While she may not bo legally liable, there certainly was a moral obligation on her part to repay the money borrowed.

      May 3d 1880.

      Wm. Beidelman, for defendants in error.
    A moral obligation is valuable as a consideration for an express promise in those cases only where a prior legal obligation has existed: Cook v. Bradley, 7 Conn. 57; Jones v. Asburnham, 4 East 455; Pearsol v. Chapin, 8 Wright 15; Paul v. Stackhouse, 2 Id. 304; Lee v. Muggridge, 5 Taunt. 10.
    The moral obligation which entered into the consideration of the bill single executed by the defendants having been absolutely void, and as it could at no time have been enforced at law, no promise to pay founded thereon can be upheld, and defendants are therefore exempted from all legal liability.
   Mr. Justice Mercur

delivered the opinion of the court,

This contention arose on a note executed by the defendants under seal with warrant of attorney to confess judgment. The judgment entered thereon was opened and the defendants permitted to defend. They were children of Samuel Duffin and Jane Duffin, his wife. The father and mother had each borrowed money of the plaintiff. The mother had given her individual notes for the amount of her indebtedness. The notes were due and unpaid. The one in question was given in payment of the sums due by both father and mother. The court held that, to ' the extent the indebtedness of the mother formed a part of the consideration, there could be no recovery by reáson of her coverture. This is assigned for error. It is true, as a general rule, the contract of a married woman is void, so that no action will lie against her for its breach. To'this, however, there are some exceptions. Although no recovery may be had against her, it by no means follows that the equity of the claim may not be sufficiént consideration to support the express promise of a third person to .pay it.

It has been held to be a sufficient consideration to support the promise of the wife herself made after her coverture has ceased and she had become sui juris: Brown v. Bennett, 25 P. F. Smith 420; Trout v. McDonald, 2 Norris 144. The tendency of the authorities is to treat the disability of a married woman as a personal privilege, which does not extend to any person who unites with her in a contract. Thus, if she execute a note jointly with her husband she may not be bound, yet he shall be bound for the whole: Unangst v. Fitler, 3 Norris 135; Hope Building Association v. Lance, 6 W. N. C. 219. If then the indebtedness of a married woman is a sufficient consideration to support a promise made by her after the coverture is removed, we cannot see why it may not support the promise of a third party, 'especially when coupled with the additional consideration shown in this case. The note in question extended the time of payment of the whole indebtedness for one year for money past due; and a further consideration is imported by the note being under seal. The learned judge, therefore, erred in holding the coverture of the mother, when the note was given by the defendants, constituted a defence to the extent of her indebtedness. The second and third assignments are sustained. We cannot say there was any error in opening the judgment. All the grounds alleged are not now before us.

Judgment reversed, and a venire facias de novo awarded.