text:
    Pittsburg versus Cluley.
    1. An ordinance authorized the grading, &e., of Centre avenue from Dinwiddie street to Kirkpatrick street, which was east of the east line of Dinwiddie street. At the passage of the ordinance Centre avenue had keen graded, &c., from the west to about the middle of Dinwiddie. Held, that the ordinance authorized the grading of the ungraded part of Dinwiddie.
    2. “ Worn a street” does not necessarily mean from its nearest line, hut may mean from any part of the street, according to existing circumstances.
    October 13th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: No. 144, to October and November Term 1873.
    This proceeding was a scire facias, issued April 15th 1869, by The City of Pittsburg against John E. Cluley, on á municipal claim ($440.20) for grading and curbing opposite sixty feet of defendant’s lot on Centre avenue.
    On the 10th of March 1868 the councils of Pittsburg passed, an ordinance:—
    “ That the city engineer be and he is hereby authorized and directed to advertise for proposals for the grading, paving and curbing of Centre avenue, from Dinwiddie street to Kirkpatrick street; and to let the same in the manner directed,” &c.
    In accordance with this ordinance, a contract was made and Centre avenue was graded from about the centre of Dinwiddie street eastwardly to Kirkpatrick street. In this grading, &c., there were about thirty-two feet of the defendant’s lot west of the east line of Dinwiddie street and about twenty-eight feet east of that line, which were graded and paved. Centre avenue had previously been graded and paved from beyond the west line of Dinwiddie street to its centre, and in this way the thirty-two feet above mentioned, being in front of defendant’s lot and opposite Dinwiddie street, were left ungraded and unpaved previously to this contract.
    The contention of the defendant was that, as Kirkpatrick street was east of Dinwiddie street, under the ordinance, the grading, &c., should commence from the east side of that street, and therefore would not cover any portion of the grading west of the east line, although within the lines of Dinwiddie street.
    The court was requested by the plaintiff to instruct the jury:—

      “ That the ordinance in evidence authorized the city officers to grade and pave the street to a line drawn from the extreme line of Dinwiddie street at right angles to Centre avenue.”
    The court answered: “We decline to charge as requested in this point. We are of opinion, and so instruct the jury, that the plaintiffs are entitled to recover for grading and paving Centre avenue twenty-eight feet in front of the defendant’s property, which distance is ascertained by running a line from the line opposite the mouth of Dinwiddie street at right angles with the inner line of Dinwiddie street.”
    The jury found for the plaintiffs $268.29, the amount for grading, &c., the twenty-eight feet, and excluding the thirty-two feet within the lines of Dinwiddie street.
    The plaintiffs removed the record to the Supreme Court, and assigned for error the answer of the court to the point.
    X>. F. Watson (with whom was J. F. Slagle), for plaintiff in error.

      P. Read, for defendant in error.
   The opinion of the court was delivered, March 2d 1874, by

Williams, J. —

The ordinance of the 10th of March 1868, under which the work was done for which the assessment in'controversy was made, authorized the grading, paving and curbing of Centre avenue from Dinwiddie street to Kirkpatrick street. Under the direction of the city engineer, who was authorized to advertise for proposals and let the work, the contractors graded, paved and curbed Centre avenue from or near the point where its south line is intersected by the west line of Dinwiddie street to Kirkpatrick street. If, instead of commencing the work at this point, they had commenced it at the point where it is intersected by the east line of Dinwiddie street, it would have left a gap in the avenue of ’about thirty-two feet in length, in front of the defendant’s property, ungraded and unpaved. Did the ordinance, then, under which the work was done, authorize the grading, paving and curbing of that portion of the avenue lying between the points where its south line is intersected by the east and west lines of Dinwiddie street ? If it did, the defendant’s property is liable for the assessment made to defray the cost and expense thereof; but if it did not, there was no authority to do the work and make the assessment. The ordinance must have a reasonable construction; and in order to ascertain its meaning and the intention of its framers, as deduced from its language, the court may look at the circumstances under which it was passed: Cox v. Freedley, 9 Casey 124. The evidence shows that, prior to its passage, Centre avenue had been graded, paved and curbed from Fulton street to a point a few feet beyond the west line of Dinwiddie street — a fact which must have been well known to the councils by whom the ordinance was passed. If they intended that the work should commence at the east line of Dinwiddie street, they must have intended to leave that portion of the avenue in front of the defendant’s property, opposite the mouth of Dinwiddie street, without being graded, paved and curbed. Can it be that they intended to leave'-such‘a gap between the old and new work? We cannot impute to them an intention so unreasonable and absurd, if the language of the ordinance will admit of a different construction. Manifestly it is broad enough to include that portion of the avenue opposite the mouth of Dinwiddie street, on which the work in controversy was done.. From a street may mean from any part of the street, and does not necessarily mean from its inner or nearest line. The Erie and North-East Railroad Company was authorized by its charter to build a railroad from the borough of Erie to some point on the east boundary of the township of North-East.’* It was conceded by the court that the word from should be taken inclusively, and that a road from any part of the borough to the proposed terminus ad quern, was a compliance with the law: Commonwealth v. Erie and North-East Railroad Co., 3 Casey 339. The word from, as used in the ordinance here, may well have as broad a meaning. If the city engineer had given to the ordinance the construction for which the defendant contends, it would, as already suggested, have left about thirty-two feet of the avenue in front of his property ungraded and unpaved; and in that case he might have objected with good reason to an assessment for the grading and paving of the avenue in front of the remaining twenty-eight feet of his property, on the ground that the work had not been done in conformity with the true intent and meaning of the ordinance ; and that the grading and paving of only a portion of the avenue in front of his property, leaving a gap of thirty-two feet ungraded and unpaved, instead of being a benefit, was a nuisance. But there is no need of further argument. It is manifest that the councils intended that the new work should be so connected with the old as to make the grading and paving of the avenue uniform and continuous. It follows that the court below erred in declining to charge as requested by the plaintiff.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Williams, J. —

license: Public Domain

text:
    Pittsburg versus Cluley.
    1. A law provided that before any street in Pittsburg should be'opened, the councils should appoint thrw. freeholders to assess the damages, their report to be approved by councils, and on appeal, by the Quarter Sessions. Viewers made their report, which was approved by councils and the court. On a scire facias on a municipal claim for the amount assessed, the jury found that one of the viewers was not a freeholder. Held, no defence to the action.
    2. The appointment was not void, and the mistake was in the confirmation of their report, which had the effect of a judgment, and could not be inquired into collaterally.
    October 13th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: -Of October and November Term 1872, No. 145.
    This was a scire facias upon a municipal claim for $333, filed November 8th 1870, by the City of Pittsburg, against John E. Oluley, for opening Devillier street. The scire facias was issued November 19th 1870.
    The councils of Pittsburg directed the opening of Devillier street, and appointed James Black and two others as viewers, “ to assess damages and benefits in accordance with the Acts of Assembly.” The viewers made a report, which was approved by the councils January 31st 1870. An appeal was taken to the Court of Quarter Sessions of Allegheny county, by John Beatty, a party interested. This appeal, after hearing, was dismissed, and the report of the viewers confirmed. On this scire facias, Oluley made defence that J ames Black, one of the viewers, was not a freeholder. The jury rendered a verdict for the plaintiff for $224.89, reserving the question hereafter stated for the opinion of the court.
    By Act of January 6th 1864, the councils of Pittsburg were authorized to open streets, and collect the damages by assessment on the property benefited. By the same act it was provided that the councils should appoint “three disinterested freeholders” to assess damages, &c. The act further provided that the councils should hear appeals by any person aggrieved by the report of the viewers, and send the report back for further action or quash the proceedings; when the report of the viewers should have been finally approved by the councils, “their approval shall be final and conclusive,” with a proviso that any person interested may within ten days appeal to the Court of Quarter Sessions for the correction of the report of the viewers. It was further provided that, after the approval by councils or by the court where there was an appeal, the claim should be handed to the city solicitor for collection, &c.
    The reserved point was:—
    “ Whether the fact that James Black, one of the viewers, was not, at the time of his appointment and service as such viewer, a freeholder (which fact we find, viz.: that he was not a freeholder at the time Of his appointment and service as a viewer), is a good and sufficient defence, and vitiates this action ; and if the court shall be of opinion that the fact that James Black was not, at the time of his appointment and service as a viewer, a freeholder, is good and sufficient defence to and vitiates this action, then judgment to be entered for the defendant, non obstante veredicto.”

    The court entered judgment for the defendant on the reserved question, non obstante veredicto.

    The plaintiff removed the record to the Supreme Court, and assigned for error, that the court entered judgment for the defendant on the reserved question.

      JD. F. Watson (with whom was J. F. Slagle), for plaintiff in error.—
    The proceedings are to be presumed to be regular: Fowler v. Jenkins, 4 Casey 176. It is not necessary that it should appear affirmatively that the viewers were freeholders: Schuylkill Falls Road, 2 Binn. 250; App’s Tavern Road, 17 S. & R. 388; Middle Creek Road, 9 Barr 69; Ewing’s Mill Road, 8 Casey 282; Allen Township Road, 6 Harris 463; Collins Township Road, 12 Casey 85; Moore Township Road, 5 Harris 116; Lower Merion Road, 6 Id. 238; Commonwealth v. Woods, 8 Wright 113.

      D. Feed, for defendant in error. —
    Inferior jurisdictions must appear to have pursued their authority strictly: Bloom v. Burdick, 1 Hill 139; Williamson v. Berry, 8 Howard 495. Every requisite of the statute must be complied with where the act is in derogation of the common law: Sharp v. Johnson, 4 Hill 99; Atkins v. Kinner, 20 Wendell 241; Corwin v. Merritt, 3 Barb. 343; Harrington v. People, 6 Id. 610. Want of jurisdiction may be shown: Adams v. Saratoga, &c., R. R., 10 N. York R. 332.
   The opinion of the court was delivered, March 2d 1874, by

Williams, J. —

This was a scire facias on a municipal claim to recover the amount assessed on the defendant’s property for the opening of Devillier street. The assessment was made by viewers appointed by the councils of the city of Pittsburg, under the Act of 6th January 1864 (Pamph. L. 1131), which provides that before any street is opened for public use, the councils shall appoint three discreet and disinterested freeholders of the city, as viewers, to view the premises, appraise the damages and make the assessments. The report of the viewers was approved by the councils and confirmed by the Court of Quarter Sessions. The jury found that one of the viewers was not a freeholder, and the court below held that it was a good defence to the action, and entered judgment for the defendant. If the appointment of the viewers was not a nullity, they were justified in acting under it, and the mistake in their appointment was cured by the approval and confirmation of their report. In appointing the viewers the councils were acting within the scope of their authority, and if so, their appointment was not a nullity, though it may have been erroneously made. There is a plain distinction between an act done without authority and an act erroneously done under authority. In the one case it is void for want of authority; in the other it is voidable for its improper exercise, but not absolutely void. If the viewers were sued for trespass in entering upon the road taken for the street, can there be a doubt that their appointment would be a sufficient warrant to justify their entry for the purpose of appraising the damages and making the assessment ? If it would, they were not trespassers in acting under it, nor were their acts void for want of authority. If, then, the assessment was not void, it can no more be collaterally questioned or impeached, on the ground that one of the viewers was not a freeholder, than a judgment on a verdict because one of the jurors by whom it was found was not qualified to serve. The confirmation of the report has all the legal effects and incidents of a judgment or a decree of a court of competent jurisdiction. One of which is that it must be treated as valid and binding until reversed or set aside, and cannot be assailed except for fraud or collusion. It is not pretended that any injustice was done by the assessment. The defendant had notice of the proceedings and did not appeal to the councils or apply to the Court of Quarter Sessions to have the assessment set aside or abated on the ground that it was inequitable and unjust. It is not alleged that his property is not benefited to the 'extent of the amount assessed upon it, or that the assessment is in any respect unequal or excessive. His only complaint is that one of the viewers by whom it was made was not a freeholder. This objection would have, availed if it had been made in time. .But it comes too late and cannot be set up here. The confirmation of ¡¡the report must be regarded as conclusive of the assessment, and the District Court should therefore have entered judgment for the plaintiff on the verdict..

Judgment reversed, and judgment for the plaintiff on the verdict for the amount found by the jury, with interest from the date of finding.


author: Sharswood, J". —

text:
    Pennsylvania Railroad Co. versus Ackerman.
    1. A traveller, before sunrise on a foggy and dark morning, approached a railroad crossing in a city, stopped about ten steps from it, and looked and listened without getting out of his wagon and going on the railroad. The view of the track was somewhat obstructed by cars standing on a siding ; the train came more rapidly than the city ordinances allowed, and there was snow on the track; there was evidence that the bell was not sounded : the wagon was struck and a horse killed. Held, that under the circumstances the question of contributory negligence was for the jury.
    2. The court charged: “ If under the circumstances an ordinarily prudent and cautious man would have got out of his wagon and approached the ,track at the head of the horses until he was in a position where he could look along the track far enough to see that he was in no danger from an approaching train, it was the duty of the plaintiff’s driver to do so, and if his neglect to do so contributed to the injury complained of, plaintiff cannot recover.” Held to be correct.
    3. Pennsylvania Railroad Co. v. Beale, 23 P. P. Smith 504, distinguished.
    October 15th 1873.
    Before Bead, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common PleasJof Allegheny county: Of October and November Term 1873, No.-103.
    This was an action on the case, brought February 3d 1871, by Christian Ackerman against The Pennsylvania Railroad Company, lessee of the West Pennsylvania Railroad Company.
    The cause of action ivas the striking of the horses and wagon of the plaintiff by defendants’ locomotive, killing one and injuring the other, as they were crossing the railroad track on Pine street in Allegheny City. At the crossing of the street there was a tannery and a siding, on which, at the time of the accident, there were one or more box-cars standing.
    Leonard Brunt testified: “ On 20th of December 1871, I was in employ of the plaintiff, driving team for him. On the morning of that day, about half-past six o’clock, I was driving on Pine street, and wanted to cross the railroad to go to the blacksmith-shop. When I came to the tannery I stopped. I was driving on Pine street, going towards the railroad. When I came to the tannery I halted — stopped my team and looked and listened for the train, and I could not see anything or hear anything. The train approached and threw me out of the wagon. That is all that I can tell. It was a dark, smoky morning. I didn’t hear or see anything before I drove my horses on the crossing. I couldn’t look up all the way on account of coal-cars standing there. There was one coal-car and the rest of the cars were box-cars; don’t know how many box-cars — three or four; can’t say how many; the cars were pretty near the tannery; the coal-ca,r was standing partly on the crossing, and the box-cars were next to the coal-car; I came into Pine street out of the alley, about a square from the railroad-crossing; I was driving an open wagon — coal-wagon ; I was sitting towards the front of the wagon; sitting on the seat; my lines were short; I didn’t drive fast; didn’t come along very lively; the horses were walking, not trotting; it was about ten steps from the crossing that I stopped to look and listen for the cars; about ten steps from the horses’ heads to thfe crossing; I stopped almost a minute or two, not long; I could have looked over the coal-car, but couldn’t see over the box-cars; I couldn’t see far on account of the smoky state of the atmosphere; there is a lamp-post at the crossing, on the left-hand side of the crossing, as you go up on the side of the railroad next the crossing; can’t say how far I was from the crossing when I fell; I did not attempt to jump out of the wagon; was on the wagon when the train struck me; I was in the wagon, pretty near the horses, when I was struck; was sitting; the flat car was about half over the crossing; I mean about half of the car was over the crossing; there was more than one car on the crossing; I heard no bell; there was snow on the track; I could not hear; had been in the habit of crossing there day and night.”
    There was other evidence of the occurrences at the time of the accident. A number of witnesses testified that they were in circumstances'to hear the bell, if it had been rung, and that they did not hear it. They testified also that the morning was foggy and dark, and that there was snow on the track. There was evidence that the train was moving more rapidly than the ordinances of the city allowed.
    The evidence for the defendants was that the bell had been sounded continuously from the time the train had left a former station. They gave evidence also that the engineer and fireman had used due care; and generally in answer to the plaintiff’s case.
    The defendants submitted a number of points. The third point was:—
    If the jury believe that the driver, by reason of the cars standing on the siding, and in the position described by the witnesses, could not see the approach of the train to the crossing, and that the position of the cars rendered- passing over the main track more. dangerous than if they had not -been there, then he was in law bound to use more care and caution; and if, by getting out of his wagon and going on the crossing, he could have discovered the approach of the train, and thereby avoided the collision, and did not do so, then the. plaintiff cannot recover.
    The court (Sterrett, P. J.) answered:—
    “ The first branch of this proposition' is affirmed; as to the latter part of it, we submit to the jury to say whether, under the circumstances, a man of ordinary prudence., and caution would not have got out of his wagon and approached the track at the head of the horses, until he was in a position where he could look along the track far enough to see that he was in.no danger from an approaching train. If, under the circumstances, an ordinarily prudent and cautious man would have done so, it was the duty of the plaintiff’s driver to do so, and if his neglect to dq so contributed to the injury complained of, the plaintiff cannot recover.

      “ As we have said, it is the duty/of a party approaching a railroad crossing to pause, look and listen, in order to satisfy himself that there is no danger from an approaching train.
    “ The point at which he should pause and look and listen will depend on^ circumstances. If the view is unobstructed, he may exercise these precautions without being very- close to the track. If the view from his approach is obstructed, he should place himself in a position where he could satisfy himself that there was no danger.

      “ This -is doing nothing more than an ordinarily prudent and cautious man would do. By this rule it must be determined whether the driver did his duty or not.”'
    The verdict was for the plaintiff for $580.
    On the removal of the record to the Supreme Court by the defendants, they assigned the answer to t'heir third point, for error.

      J. H. Hampton (with whom was J. DalzeTl), for plaintiffs in error. —
    The driver should have got out of his wagon and looked and listened: North Pennsylvania Railroad Co. v. Heileman, 13 Wright 60; Pennsylvania Railroad Co. v. Beale, 23 P. F. Smith 504.

      G-azzam §‘ Gochran, for defendant in .error. —
    The driver was ■not bound to go on the track: Pittsburg, Fort Wayne and Chicago Railroad Co. v. Evans, 3 P. F. Smith 250. When there is evidence of negligence in both parties, the question is for the jury: Pennsylvania Railroad Co. v. McTighe, 10 Wright 319; North Pennsylvania Railroad Co. v. Robinson, 8 Id. 175; Lackawanna and Bloomsburg Railroad Co. v. Chenewith, 2 P. F. Smith 382; Pennsylvania Railroad Co. v. Henderson, 7 Wright 449. Each case is to be decided on its own merits. There can be no inflexible rule for all cases: Philadelphia and Reading Railroad Co. v. Spearin, 11 Wright 300.
   The opinion of the court was delivered, October 20th 1873, by

Sharswood, J". —

-There is no subject which, in my judgment, more loudly calls for legislative regulation than that of railroad crossings at grade. We are far behind Great Britain and the countries on the Continent of Europe in the precautions required to prevent those fearful accidents to passenger trains from collisions which have produced the loss of so many valuable lives, accompanied with such horrible suffering from mangled limbs and bodies. The judicial decisions of the courts, and of this court in particular, have gone as far as they could in requiring the utmost care on the part of the servants of the railroad companies, to give notice of the approach of trains, and the like care and caution to travellers in attempting to cross. More particularly is this true either in approaching or passing through populous towns or cities.

If the evidence given by the plaintiff below was to be believed, the railroad company in the ease before us was guilty of very gross negligence. It was a dark, foggy morning, with snow on the track, which deadened the usual rumbling sound of a moving train. They were going, even according to their own account, at a much greater speed than was allowed by the ordinance of the city of Allegheny, through whose streets they were passing. They sounded no whistle, and if they were ringing a bell, it could only have been at intervals, not continuously. Too many entirely indifferent witnesses testify that they did not hear a bell, to lead the mind to any other conclusion. This particular crossing was at the time so obstructed by cars on a siding that the view of the track could not be had until the traveller was directly upon it. One witness testified that a person could not see up the track without getting out on the middle of it. This resulted, as he said, from a tannery, which stood out in the way, and from the manner in which the cars stood on the siding, one car standing partly out on the street.

On the other hand, the driver of the wagon, the horses of which were killed, according to his testimony, did all he could in the way of precaution, without incurring imminent danger of his own life. He stopped within ten steps of the crossing and listened, but heard nothing. If he had got out and led his horses on the track, the result would have probably been the loss of his own life, as well as that of the horses. It is not to such a case that the opinion and decision in Pennsylvania Railroad Co. v. Beale, 23 P. F. Smith 504, applied. We adhere to that decision, that the fact that the track cannot be seen from the road is no reason why the traveller should not stop and listen, approach the track at a slow walk, and if he has reason to fear from his horses taking fright, get out of his wagon and lead them by the head until he comes to a point where he can be sure that it is safe to cross. It is negligence in a railroad company to have such a crossing so obstructed as this one appears to have been; but this does not dispense with the necessity of extreme precaution by the traveller,, if he was acquainted with the nature of the locality. The same' strict rule cannot be held to apply to a stranger to.the country. Indeed one of the regulations which ought to be made by legislative authority, should be, that the usual notice on country roads, “Look out for the locomotive,” should be at a point where the approaching train on the track can be seen in either direction; and as to streets in a city, there should be a flagman at every crossing. The point which was put by the defendants below to the learned judge, was too broad under the evidence of the ease, and he would have been guilty of error if he had affirmed it without qualification. He left it to the jury to say whether the servant of the plaintiff had done all that a prudent and cautious man could do. If the view from his approach is obstructed, he should place himself in a position where he could satisfy himself that there was no danger. Whether he could have done this was a question of fact for the jury, and was properly left to them. Judgment affirmed.


text:
    Meyers versus Robinson et al.

    1. Robinson made apian of lots numbered on the plan which was recorded; he sold and conveyed lots 271 and 272 and 268 and 269. He brought an ejectment for lot 270, which was between 269 and 271, the owner of the other four lots being in possession of it. Evidence for the defendant that Robinson negotiated for'the sale of 271 and 272 on condition that 270 should be an alley, the purchaser paying an enhanced price for two lots on that account: and that in the deed for 271 and 272 and other lots, 270 was called for as an alley: Held to be inadmissible, there having been no dedication of 270 as an alley.
    2. The intention of the grantor must be gathered from the deed and its construction cannot be varied by parol.
    3. The deed referred to the plan which was made a part of it; the plan was to be treated as if incorporated into the deed.
    4. Robinson v. Myers, 17 P. E. Smith 9, adhered to.
    October 16th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 98, to October and November Term 1873.
    This was an action of ejectment brought July 20th 1867, by Gen. William Robinson, Jr., against Joseph Meyers, for lot No. 270 in the plaintiff’s extension of Allegheny City called “Buena Vista.” The plaintiff having died after the commencement of the suit, John D. Robinspn and others, his heirs and devisees, were substituted as plaintiffs. The title of the lots included in the plan was admitted to have been in the plaintiff. In 1854 he adopted a plan of lots, acknowledged it July 19th, and it was recorded in the recorder’s office of Allegheny in “plan book,” &c., under the name of “Buena Vista.”
    The case had been tried before, when the verdict and judgment were for the defendant. The judgment was reversed by the Supreme Court and a venire facias de novo awarded. The case is reported in 17 P. E. Smith 9, where all the facts are given. It was again tried May 21st 1873, before Stowe, J. The plaintiffs having given their title in evidence rested.
    The defendant then made the following offer of evidence:—
    * * * * *
    2. That Gen. Robinson made John Ramsey his agent for the sale of lots, acting also a,s scrivener; that the bargains for lots were made by purchasers with said Ramsey, he receiving the purchase-money, and delivering the deeds for lots sold.
    * * * íjí ifc -It *

    4. That Gen. Robinson, through his agent, John Ramsey, negotiated with James Morgan for the sale of Nos. 271 and 272 on Taylor avenue, on said plan, upon condition that lot No. 270, adjoining, should he made an alley; he, Morgan, agreeing to pay., in consideration thereof, an enhanced price for said two lots, Nos. 271 and 272; he, the said Robinson, being at the time the owner of all of said lots, Nos. 270, 271 and 272.
    5. That in pursuance of said negotiation, Gen. Robinson did change his recorded plan, so as to make lot No. 270 an alley; the said change being made inartificially through and by his agent, John Ramsey, by calling in his deed, dated February 14th 1857, to said Morgan, for the said lot, as an alley; and that said call was so made in said deed before any delivery of a deed to said Morgan for said two lots; the said deed being accepted by said Morgan, and payment made by him, only upon the fact that the said deed secured the said alley, as an alley for the extent of the said lot; and that said deed was delivered and accepted, and purchase payments made and accepted upon that understanding; the said Morgan having no attorney of his own in the transaction, but relying on the fairness and capacity of said Ramsey in the premises.
    6. That subsequently,' on the 22d of November 1858, by his deed to W. C. Maholm, Gen. Robinson recognised the said plan as changed, by substituting an alley in lieu of lot No. 270, in said plan; the said deed conveying lots Nos. 268 and 269, bounded by an alley, located on said lot No. 270,
    7. That the lots described in the said deed to Morgan, Nos. 271 and 272, and the lots described in the said deed to Maholm, Nos. 268 and 269, were sold to the defendant by deed, dated 21st September 1865, and deed dated December 7th I860.
    8. That Robinson well knew the transaction, having several years afterwards refused to pay the assessment for municipal purposes on lot No. 270, changed into an alley, giving as reason, that he had made an alley of it by arrangement with Morgan.
    9. That said Robinson had previously changed his said plan, by locating an alley on the rear end of these and the other lots fronting on the north side of Taylor avenue in a similar way, by calling ■for the same in the deeds as he sold, permitting his plan to remain unchanged of record.
    That when the sale was made to Morgan, the said alley was and had been enclosed as a lot by Gen. Robinson; that Morgan put a large gate on the alley; that he used and kept it in that condition, travelling in, upon and over the same, by himself, his employees and cattle until the sale to Meyers in December 1866, and that the alley remained in that condition until the vacation of the same by the Court of Quarter Sessions of this county. That Robinson reserved no right to himself, his heirs or assigns, to use the said alley, and that no other parties than Morgan, and those who claim under him, had any right to use the said alley.
    The plaintiffs’ counsel objected to the offer.
    By the court:—

      “ The only question of serious importance here is (as admitted by defendant’s counsel), whether proof, such as offered in sect. 4 of defendant’s offer, followed by such other facts as are suggested and as have already been before the Supreme Court, so changes this case as to make it such as will sustain the possession of defendant. We think not, but are of opinion that such proof, if given, would not prevent the plaintiffs recovering in this suit, and therefore the evidence as offered is refused, and' bill sealed for defendant.”
    The verdict was for the plaintiffs. The defendant took a writ of error and assigned the rejection of his offer of evidence for error.

      S. Schoyer, Jr., for plaintiff in error. —
    -The call in a deed for an alley estops the grantor from denying that there was such alley: Paul v. Carver, 2 Casey 225; Cox v. Freedley, 9 Id. 130; Ball v. Ball, 1 Phila. R. 37.

      M. A. Woodward and M. W. Acheson, for defendants in error,'
    cited O’Linda v. Lothrop, 21 Pick. 292; Union Burial Soc. v. Robinson, 5 Wharton 18; Wasburn on Easements 129, 196; Cooper v. Smith, 9 S. & R. 26.
   The opinion of the court was delivered, March 2d 1874, by

Williams, J. —

This case was before us on a former writ of error, and is reported in 17 P. F. Smith 9. All the questions presented by the defendant’s offer of evidence, the rejection of which is assigned as error, were then considered and decided, with the exception of that which arises on the fourth paragraph of the offer. The ejectment is for lot No. 270 in the plan of lots, called “Buena Vista,” laid out by William Robinson., Jr., under whom the plaintiffs claim title as heirs at law. The defendant offered to prove that General Robinson, being the owner of lots Nos. 270, 271 and 272, in said plan, through his agent, John Ramsey, ne-. gotiated with James Morgan for the sale of lots Nos. 271 and 272, upon condition that lot No. 270, adjoining, should be made an alley; Morgan agreeing to pay, in consideration thereof, an enhanced price for the two lots. It is not pretended, nor was it offered to be shown, that General Robinson ever made a dedication of the lot in dispute to the use of the public as an alley or highway; or that in point of fact he ever laid out and opened an alley over it, or that it was ever used as an alley by the public or by the owners of the adjoining lots. On the contrary, the defendant, in the'ninth paragraph of his offer, “proposed to show that when the sale was made to Morgan the said alley was and had been enclosed as a lot by Gen. Robinson; that Morgan put a large gate on the alley; that he used and kept it in that condition, travelling upon and over the same by himself, his employees and cattle;” (mother words, that he used it for a cattle-pen,) “until the sale to the defendant, and that» the alley remained in that condition until the vacation of the same by the Court of Quarter Sessions of Allegheny county, at March Sessions 1867.” The defendant did, indeed, allege and offer to show in the fifth and sixth paragraphs of his offer, that, in pursuance of the negotiation between Morgan and Ramsey, General Robinson did change his recorded plan so as to make lot No. 270 an alley, by calling in his deed to Morgan for the said lot as an alley; and that he subsequently recognised the said plan, as changed, by his deed to W. C. Maholm conveying lots Nos. 268 and 269, bounded by an alley located on lot No. 270. The deeds speak for themselves, and their construction cannot be varied or changed by parol. The intention of the grantor in making them is to be gathered from the language and not from evidence aliunde, showing a different intent from that expressed on their face. Both deeds refer to the recorded plan and make it a material and essential part thereof, and must, therefore, be read as if the plan was incorporated and copied into them. So far, then, from it appearing that any change was intended in the plan, the legal inference from its recital in the deeds is directly the reverse. It is clear that the deeds were executed for the purpose of conveying to the grantees the lots which they purchased, and not for the purpose of changing the recorded plan by converting the intervening lot. into an alley ; and if they conveyed any right to the use of the lot as an alley, they did it by way of estoppel; and when this right was extinguished, the defendant, as shown in the opinion delivered on the former writ of error, ceased to have, any interest in the lot whatever. Did he then acquire any title to the lot under the contract proposed to be proved ? All that he offered to show, in addition to the facts disclosed by the evidence given on the former trial, was a parol contract for the lot as an alley, in consideration of the enhanced price paid for the adjoining lots, without any proof of its execution or part-performance. The offer admits, as we have seen, that the lot was never opened or used as an alley. It needs no argument to show that such a contract, if the agent had authority to make it, would be void under the Statute of Frauds, and that it could not vest in Morgan any title to the lot which would pass to the defendant as incident or appertenant to the grant and conveyance of the adjoining lots. If Morgan had no title by virtue of the alleged contract, he could convey none, and therefore the evidence was rightly rejected.

Judgment affirmed.


author: Agnbw, J. —

text:
    Leech versus Robinson.
    1. A testator gave to his wife all his property for her life, and willed that “ the entire income of my estate be divided equally amongst all my children.” To. J ames one seventh part of the income to be paid to him during life with power to devise the same to such of his brothers and sisters or their children, as ho might elect: to William and Alexander each one-seventh of said income, with no further power: to John “ in like manner” one seventh part of said income, with the same power as to James; to each of two daughters and “ their heirs in like manner,” one-seventh of said income, in trust; to Frank and his heirs “ in like manner” one-seventh of said income-; and declared the gift to his heirs to be for their personal benefit for their lives and to guard against improvidence and misfortune. He declared it to be his design to invest each of' his heirs with a life estate in the income of his property, with reversion to their heirs. By codicil he revoked the gift to Frank and gave it to trustees for his use, and directed partition “ of the whole of my estate,” to be made when his executors and heirs “ may proceed to the partition thereof.” Each part to be subject to his wife’s life interest. There were other clauses. Held, that the estate was given to the wife for life and to his children in foe.
    2. An obscure will construed.
    •October 16th 1873.
    Before Read, C. J., Agnew, Siiarswood, Williams and Mercur, JJ.
    Error to^ the District Court of Allegheny county: No. 107, to October-and November Term 1873.
    This was an action of covenant, brought to April Term 1873 of the court below, in which John D. Robinson was plaintiff and David E. Leech was defendant. A case stated was filed in the action as follows :—
    Gen.William Robinson, Jr., died on the 25th of February 1868, having made a last will and several codicils. The will was dated March 15th 1861. They were all proved March 6th 1868.
    By his will he gave to his wife “ all my property, estate and effects, real, personal and mixed, of whatsoever kind and nature, and wheresoever situated at the time of my decease. To have and to hold, to use, occupy and enjoy the same fully, freely and absolutely during her life.
    “ I hereby further declare, that it is my will that the entire income of my estate shall be divided equally, share and share alike, amongst or between all my children, as' follows, that is to say
    “ 3. To James Robinson, my eldest son, one-seventh part of the net income of all my estate, to be paid to him and not to any other person, as the same ma.y be collected during his life, with power to devise the same to such of his brothers and sisters, or their children, as he may elect or nominate by his last will.
    u4. To the heirs of my son, William O’Hara Robinson, one-seventh part of said income of my estate.
    “ 5. In like manner to the heirs of my son, Alexander Parker Robinson, one-seventh of said net income.

      “ 6. In like manner to John D. Robinson, one-seventh part of said net income, with power to devise the same by will to such of his brothers or sisters, or their children, as he may elect or nominate to that end.
    “ 7. To my daughters, Anna R. Blair and Mary D. Shoenberger, and their heirs, in like manner one-seventh part of said income each, hereby constituting and appointing their kind friend, John II. Shoenberger, of the city of Pittsburg, trustee for my said daughters above named, with full power to act in their behalf in all matters relating to their interests in my said estate.

      “ 8. In like manner to Frank P. Robinson my son, and his heirs, one-seventh part of said income.
    “ 9. It being my desire in the foregoing clauses of this, my last will and testament to limit the estate hereby devised, in such ■manner and form as to provide for each of my said heirs the income aforesaid for their personal benefit and support during their ^natural lives, and to guard, so far as human foresight may, against improvidence and misfortune, their respective proportions of said income to be paid over to each of my said heirs personally.
    “ 10. It is my will also, that on the youngest child of my deceased son Alexander reaching the age of twenty-one years, then, and in that case, the whole of my estate may be subdivided and separated into seven equal parts, as represented by their respective shares and held by them in severalty, subject to the restrictions and limitations specified in the foregoing clauses as to descent to my heirs.
    ífí ;jí ifc jfc %

      “ I nominate, &c., my wife Mary Rohinson, my son James Robinson, and my son-in-law William II. Shoenberger, executors, &c.
    “ That as little obscurity as possible as to phraseology may rest upon the settlement of my estate, as provided for in this my last will and testament, it is njy design to invest each of my living heirs with a life estate in the income of my property, with reversion over to their heirs as provided for above, on the maturity of the yopngest child of my son Alexander, when and at which time the respective proportions of the heirs of my sons William and Alexander may be set apart and vested in them in fee.”
    By the first codicil he appointed his friend John Morrison another executor.
    Another codicil was: — “I do hereby rovoke and'cancel, annul and render as of no validity or force whatever, the eighth clause of my said will devising to Frank P. Robinson one-seventh part or interest in the income, personal or realty, of my said estate, or in the proceeds or avails of the same, hereby granting, devising and publishing as my last will by this codicil, that I bequeath the said seventh part mentioned in the eighth clause to James Robinson and John Morrison, as trustees, to have and to hold the said seventh part of the income of my said estate, and by them applied, when the same may be received from time to time, in such sum or sums as in their judgment may be expedient and proper to the use of the said Frank P. Robinson and his family, and in case of his 'decease, to his child, in strict conformity with his limited estate, declaring that in this alteration of my last will, the same proceeds from no want of parental affection to the said Frank P. Robinson, but to guard against improvidence on his part, and fearing that in case the same had been bequeathed without limitation, that his family and himself might come to want and poverty.”
    A fourth codicil was : — “ It is also my will and testament by this additional codicil that the 10th section thereof limiting the partition of my estate to the period of the maturity of age of the youngest child of my deceased son, Alexander, be and the same is hereby revoked, made null and void, and that said partition may proceed and be carried out at any time my executors and heirs may proceed to the partition thereof as though no such clause as the tenth, to which this codicil has reference, was inserted in the will aforesaid, my whole property and estate or any partition thereof to my heirs remaining subject to the payment of the income thereof to my beloved wife during her life.”
    At the date of said will the testator had five children living, viz. : the said James Robinson, John D. Robinson, Mrs. Anna R. Blair, Mrs. Mary P. Shoenberger and Frank P. Robinson. Two of his children, viz.: William O’Hara Robinson and Alexander Parker Robinson were then dead leaving issue living.
    James Robinson died in the lifetime of the testator, about January 1st, 1868, unmarried and without issue.
    The testator’s widow died in the year 1868.
    On the 10th day of February 1873, the plaintiff sold and agreed to convey to the defendant the undivided one-sixth part of a lot of ground in the city of Allegheny, of which the testator died seised. By the terms of the agreement the defendant bound himself to pay to the plaintiff for the one-sixth of said lot the sum of $5000, of which $2000 were to be paid on the 10th day of March 1873.
    On the 10th day of March 1873, the plaintiff tendered to the defendant a deed and demanded payment of the $2000 purchase-money due that day. The defendant refused to accept the deed or to pay the said instalment of purchase-money, alleging that under the will of said William Robinson, Jr., and the facts hereinbefore stated, the plaintiff was unable to convey to the defendant an estate in fee in the undivided one-sixth part of said described lot of ground.
    It is admitted that the plaintiff’s deed tendered the defendant was otherwise good and sufficient, if under and by virtue of the said will of his father, William Robinson, Jr., and the facts hereinbefore stated, the plaintiff is seised of and can convey to the defendant an estate in fee simple in and to the undivided one-sixth part of said described lot of ground.
    This action is to recover the instalment of purchase-money, to wit, $2000, payable on the 10th day of March 1873, with interest thereon from that date.
    Judgment is to be entered for the plaintiff for $2000, with interest from the 10th day of March 1873, and costs, if upon the facts the court should be of opinion that the plaintiff can convey to the defendant an estate in fee in and to the undivided one-sixth part of said lot-of ground. Otherwise judgment is to be entered for the defendant, with costs.
    The court below, June 16th 1873, entered judgment for the plaintiff for the sum of $2000, with interest from the 10th day of March 1873, with costs.
    The defendant sued out a writ of error and assigned so entering-judgment for error.

      W. Owens, Jr., for plaintiff in error.

      M. W. Aeheson (with whom was W. D. Moore), for defendant in error. —
    A devise of the rents and profits of land'is equivalent to a devise of the land itself: 2 Jarm. on Wills 534.; Van Rensselaer v. Dunkin, 12 Harris 252; Potts’s Appeal, 6 Casey 168; McKeehan v. Wilson, 3 P. F. Smith 74; Parker’s Appeal, 11 Id. 478. The devising words to the plaintiff following devises in fee to the children of the testator’s deceased sons, William and Alexander, are, “ In like manner to John D. Robinson the one-seventh part of said net income.” This is a devise of the fee, Ogden’s Appeal, 20 P. F. Smith 501; and the superadded words, “ with power to devise the same by will to such of his brothers and sisters, or their children, as he may elect or nominate to that end,” do not cut down the estate of inheritance. The “power to devise” is simply a power, and creates no trust in favor of the “brothers or sisters, or their children:” Kerr v. Verner, 16 P. F. Smith 326; Physick’s Appeal, 14 Wright 128; Yarnall’s Appeal, 20 P. F. Smith 335; Jackson v. Robbins, 15 Johns. 537; McCullough v. Gilmore, 1 Jones 370. Where there is a devise to a person for life, with remainder to his heirs, the first taker or ancestor shall have an estate in fee; and it is immaterial that the testator did not so intend: Criswell’s Appeal, 5 Wright 288; Curtis v. Longstreth, 8 Id. 297; 2 Jarm. on Wills 246; George v. Morgan, 4 Harris 95; Doebler’s Appeal, 14 P. F. Smith 9; Kleppner v. Laverty, 20 Id. 70. The fact that the first taker, or ancestor, is invested with the power of appointment, does not exclude the application of the rule in Shelley’s Case: Kay v. Scates, 1 Wright 31; Potts’s Appeal, 6 Casey 168; Nice’s Appeal, 14 Wright 143. The first taker is regarded as the preferred object of the testator’s bounty, and in doubtful cases the gift is to be construed so as to make it as effectual to him as possible: McKeehan v. Wilson, 3 P. F. Smith 79; Amelia Smith’s Appeal, 11 Harris 9. In the interpretation of .wills, equality among children is favored: Malone v. Dobbins, 11 Harris 296.
   The opinion of the court was delivered, October 22d 1873, by

Agnbw, J. —

This is a difficult will to interpret. Its arrangement is unskilful, and its expressions obscure, and the word heirs used in different senses, oftencr referring to children than to a line of descent. An attentive reading of the will and codicils, however, reveals two leading thoughts of the testator as to his children: First, that his “ whole estate” should be divided into seven equal parts and divided among his living children, and the children of his deceased sons, at the arrival of the youngest child of Alexander Parker Robinson at full age. This is to be found as far down as the tenth section, which, under the act relating to wills (there being no devise over), would ifivest the possessor of each share of the whole estate with a fee in the lands. The second leading thought in orderly arrangement, but first in the order of the will, was that the shares given to his living sons should be so limited and restricted in enjoyment that the income only should he paid to them during their lives. This is to be found in the third clause. He says: “I hereby further declare that it is my will that the entire income of my estate shall be divided equally share and share alike amongst or between all my children as follows, that is to say -.” Then follow the 3d, 4th, 5th, 6th, 7th and 8th sections, that especially dispose of the income among his five living children and all the heirs or children of his sons William 0. and Alexander P. In some of these the bequest of the income is clearly for life, and in others, if the income were the principal, it would be in fee. But this is of no importance, when we discover from other parts of the will that by the word income” the testator meant income in its ordinary sense — the profits or earnings of the principal estate, and that this principal is left to be disposed of by other sections of the will.. This reconciles the ninth and that part of' the twelfth section which relate to the income. They are found to refer to the income only to be paid to his living sons during life, and show clearly that as to the income they were to be contented with that alone during life. After the ninth comes the tenth, which is the first to dispose of the whole estate, and divides it into seven equal parts, to be allotted when the' youngest child of Alexander Parker Robinson should arrive at majority. Having in the previous sections disposed of the income of the estate, the mind of the testator in the tenth section came to the principal of the estate, which he here terms “the whole of my estate,” and disposes of by the partition provided for; but guards against an infringement of the previous sections as to income by saying, “ subject to the restrictions and limitations specified in the foregoing clauses as to descent to my heirs.” The word heirs here means children, and evidently refers to the living children and the children of his deceased children named in the foregoing sections. It is evident that while the writing of the will was in progress the testator turning back to the tenth section, thought there might be some obscurity in its language, and therefore before closing and after appointing executors, he says: “ That as little obscurity as possible as to phraseology may rest upon the settlement of my estate, as provided for in this last will and testament, it is my design to invest each of my living heirs with a life estate in the income of my property, with reversion (meaning remainder) over to their heirs, as provided for above on the maturity of the youngest child of my son Alexander, when and at which time the respective proportions of the heirs of my sons William and Alexander may be set apart and vested in them in fee.” Here he evidently referred to the provisions of the tenth section dividing his whole estate, as being intended to convey the property, that is the principal, to the heirs of the living children, and brings out distinctly the difference in his own thoughts between the income and the principal expressed by the words “ whole estate.”

These impressions of the testator’s meaning are strengthened by the codicils. In the first he adds to the number of executors by appointing a stranger who would be more likely to see that the provisions of the will would be executed strictly. In the second he corrects what he deemed was an qjror bn giving to Frank P. a personal control of his share of the income by appointing trustees to measure it out to him according to the wants of himself and his family. The third relates to a matter entirely independent, and the fourth revokes so much of the tenth section as fixed the time of the partition at the arrival of Alexander’s youngest child at majority, and goes on to say, “and that-said partition may proceed and be carried out at any time. The executors and heirs may proceed to the partition thereof as though no such clause as the tenth, to which this codicil has reference, was inserted in the will aforesaid, my whole property and estate on any partition thereof to my heirs remaining subject to the payment of the income thereof to my beloved wife during her life.” By that codicil the testator, while annulling the tenth section, evidently intended to retain so much of it as related to the partition, for he makes it operative whenever the executors and heirs should choose to proceed to make it. That this partition was to operate on the entire estate including the principal referred to in the tenth section under the terms “ the whole of my estate,” is proved by the concluding clause, which makes the whole property and estate subject to the payment of the income of his wife.

This is made still clearer by reading it in connection with the clause providing for his wife, which gave to her “ all my property, estate and effects real, personal and mixed, of whatsoever kind and nature, and wheresoever situated at the time of my decease, to have and to hold, to use, occupy and enjoy the same fully, freely and absolutely during her life.” The “ whole property and estate” in the codicil evidently covers the property devised to the widow for life, and is greater than it, for the devise and bequest to her are excepted out of it.

From the whole of the will and the codicils we gather the intent of the testator to give his entire estate first to his wife for life, and then to his children in equal shares absolutely and in fee, but to limit and restrict the use and enjoyment of his living children to the income until partition, and to make the concurrence of the executors necessary to determine when it would be prudent to make the partition. This control of the executors is clearly expressed in the fourth codicil, and is the substitute for the provision in the tenth'section — that partition should not be made until Alexander’s youngest child came of full age.

Judgment affirmed.

Sharswood, J., dissented.


author: Mbrcur, J. —

text:
    Hageman et al. versus Salisberry et al.

    1. A bond with warrant contained in the condition a waiver of inquisition and condemnation. The bond and a declaration were filed; the same attorney who filed the declaration appeared for the defendant in the ordinary way and confessed judgment “by virtue of warrant.” All these proceedings appeared on the docket. Land was sold under this judgment on a fi; fa. Held, that the waiver was part of the record and the title passed by the sale.
    2. Evidence that the signature of the defendant to the bond and warrant was a forgery was inadmissible in ejectment for the land.
    3. In contemplation of law a judgment upon warrant is the act of the court.
    4. If judgment be confessed in a suit under terms, they are part of the record of the judgment and qualify it.
    5. If a judgment be confessed by an attorney, neither its regularity or his authority can be questioned in a collateral action.
    6. Buehler «. Rogers, 18 P. E. Smith 9 ; Hope «.'Everhart, 20 Id. 231, distinguished.
    October 16th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: No. 91, to October and November Term 1872.
    This was an action of ejectment, brought July Term of j.869, by Charles Salisberry and others, heirs of Alexander Rowland, deceased, against William Hageman and others, for a lot of ground in South Pittsburg.
    The cause was tried November 17th 1871, before Kirkpatrick, J.
    The plaintiffs gave evidence, showing the title to the lot in Alexander Rowland, his death, and that the plaintiffs were his heirs at law.
    The defendant gave in evidence a bond with warrant of attorney, dated December 1st 1856, from Alexander Rowland to W. 0. Leslie, conditioned for the payment of $300 with interest, “hereby waiving inquisition and condemnation of all real estate, and appraisement on all personal property, chattels, real or personal, taken in execution, issued on any judgment obtained by virtue of this bond; and further, to pay all expenses of collection, including attorney’s commission,” &c.
    The warrant was in the usual form, empowering “ any attorney of any court, &c., to appear for me, and after one or more declarations filed for the above penalty, thereupon to confess judgment,” &c.
    A declaration was filed on the bond by T. J. Bigham, Esq., as attorney for plaintiff. Also a confession of judgment filed December 17th 1866, as follows, viz.:—
    “ By virtue of a warrant of attorney, authorizing me thereto, I appear for the defendant above named, and confess judgment against him for the sum of six hundred dollars, with costs of suit, release of errors; to be released on payment of three hundred dollars, with interest and attorney’s commission, and with leave to take out execution for said sum, with interest from the 1st day of December 1856. Hereby waiving inquisition and condemnation on all teal estate and appraisement on all property, real or personal, taken in execution by virtue hereof.
    “ T. J. Bigham,
    “ Attorney for defendant.”
    Also the following docket entries:—
    “ W. 0. Leslie ( 164, January Term 1857. D. , v. ] S. B., $600. Real debt $300. In-A. Rowland. ( terest from December 1st 1856.
    “And now, December 17th 1856, comes T. J. Bigham, Esq., and confesses judgment in favor of the plaintiff, W. O. Leslie, against the defendant, A- Rowland, for the sum of six hundred dollars, to be released on payment of three hundred dollars on the 1st December 1856, with interest from said December 1st 1856, with waiver of inquisition, and condemnation and appraisement, and with attorney’s commission, &e.
    “John Birmingham, Pro.”
    “ W. 0. Leslie v. A. Rowland. 136, January Term 1857. Fi. fa. on 164, January Term 1857. Penalty $600. Real debt $300. Interest from December 1st 1856.
    “Inquisition and condemnation waived.
    “Appraisement waived.”

      Return:

    “Levy made on the real estate described in the schedule annexed. Sale advertised according to law, and property sold January 26th, to Wm. O. Leslie, Esq., for $32, and applied to costs of this writ. So answers ■ R. Patterson, Sheriff.”
    Also sheriff’s deed to Leslie, acknowledged January 31st 1857. Deed March 15th 1858, Leslie to Mary Ann Daley. And deed September 29th 1866, Mary Ann Daley to the defendants.
    The plaintiffs in rebuttal, under objection and exception, gave evidence that Rowland resided in Illinois in 1856 and 1857, that during those years he was a paralytic and helpless, and was unable to write his name; his memory was good, and he talked sensibly. He died in the spring of 1857.
    The defendants then called Mr. Bigham, who testified, that from the mere signature he could not tell whether the signature to the bond was Rowland’s writing. Several papers were shown to witness which had been signed by Rowland, and which had been in the possession of the witness. He then said, that from all the circumstances surrounding the case, he believed the signature was Rowland’s.
    There was other evidence tending to show that the signature to the bond was genuine.
    The defendants offered evidence that Leslie and his successors in title had made expensive improvements on the premises. The offer was objected to by the plaintiff, rejected by the court, and a bill of exceptions sealed.
    The plaintiffs’ point which was affirmed was
    “If the jury find from the evidence that the bond containing a waiver of inquisition and condemnation, filed at No. 164, January Term 1857, was not executed by Alexander Rowland, the defendant, the sheriff’s sale thereunder being on a fi. fi., without inquisition and condemnation, did not divest the title of said Rowland, and the purchaser at such sale could convey no title to those claiming under him, and their verdict must be for the plaintiffs.”
    The following are defendants’ points, with their answers :—
    2. “ The regularity of the proceedings on which the sheriff’s title is based, as apparent on the face of the record, affords a good title to innocent parties claiming under the sheriff’s vendee, without notice of any latent defects in the judgment, even if there were any such.”
    The court answered:—
    “ Affirmed. But it is not so conclusively good that it may not be attacked and overcome by a better. Whether this has been done by these plaintiffs we leave it to the jury to say, from all the evidence in the cause.”
    4. “Even if the judgment on which the sheriff’s sale took place were improper, and were reversed or set aside as being founded upon a forged instrument, the land which passed by the sale and now in the possession of innocent holders for value, cannot be restored, nor the sheriff’s sale avoided, though the plaintiffs in such case might be entitled to restitution of the money for which the lands were sold at such sheriff’s sale.”
    The court answered:—
    “ This is equivalent to asking us to say that the plaintiffs cannot recover in this action; it being an ejectment for the recovery of the possession of the specific property, we decline to do so, having already told you, upon evidence satisfactory to yourself showing a better title, that they can ; the point is therefore, as presented, refused.”
    The verdict was for the plaintiffs.
    The defendants took a writ of error. They assigned for error—
    1 and 2. Admitting evidence to disprove the execution of the warrant of attorney by Rowland and to attack the integrity of the bond.
    4. The answer to the plaintiffs’ point.
    5, 7. The answers to the defendants’ second and fourth points.

      J. L. Koethen and J. H. Bailey, for plaintiffs in error. —
    Purchasers depend on the records, and they are not bound to look beyond them to discover any latent frauds, of which they have no notice and to which there is nothing to direct their attention. They can only be affected by notice, actual or legal: Hoffman v. Strohecker, 7 Watts 90. A judgment cannot be impeached in a collateral action : Kean v. McKinney, 2 Barr 30; Withers v. Haines, Id. 435; Morris v. Galbraith, 8 Watts 166; Warder v. Tainter, 4 Id. 270; Hays v. Shannon, 5 Id. 550; Hoffman v: Coster, 2 Whart. 474; Tarbox v. Hays, 6 Watts 401; Hazelett v. Ford, 10 Id. 102. An attorney duly authorized by his client has the power to bind the latter by a waiver of inquisition and -condemnation: Lynch v. Commonwealth, 16 S. & R. 369; Flanigen v. Philadelphia, 1 P. F. Smith 493. Where an attorney appears without authority and confesses judgment, the remedy is against him, or in a proper case an application may be made to open the judgment: Cyphert v. McClune, 10 Harris 197; Braddee v. Brownfield, 4 Watts 475. The acts of the attorney will be deemed regular, though a want of authority be subsequently shown: Compher v. Anawalt, 2 Watts 490; Evans v. Meylert, 7 Harris 410.

      Kerr ‡ Gruthrie, for defendants in error. —
    A sheriff’s sale of real estate on a fi. fa., without inquisition or condemnation, is void: St. Bartholomew’s Church v. Wood, 11 P. F. Smith 96, and cases cited in the opinion; Hope v. Everhart, 20 P. F. Smith 231. An attorney at law has not power to waive an inquisition : Macbeath v. Cooke, 4 Bing. 578; Lusk v. Hastings, 1 Hill 659; Stackhouse v. O’Hara, 2 Harris 88; Hadden v. Clark, 2 Grant 108.
   The opinion of the court was delivered, November 10th 1873, by

Mbrcur, J. —

The case has been twice argued. It has received that consideration to which it was entitled. Seven errors have been assigned, but the whole case depends upon whether the waiver of inquisition is a part of the record of the judgment.

The bond contains an express waiver of inquisition, and of condemnation of all real estate which may be taken in execution issued on any judgment obtained thereon. This waiver is a part of the condition. It precedes the warrant which authorizes an attorney to confess judgment. All the terms and conditions are part and parcel of one and the same instrument. The obligation is an entirety. The warrant of attorney is an authority to confess judgment upon the whole instrument.- That undoubtedly means, according to all of its terms, conditions and stipulations. They clearly express and with equal force, declare the sum to be paid, the waiver of inquisition and the condemnation of the obligor’s real estate.

Upon this instrument, so written, the judgment was recovered and the inquisition and condemnation were waived. A declaration in the usual form ivas filed. An attorney appeared for the defendant and executed a written confession of judgment. He therein declared that he did it by virtue of a warrant of attorney authorizing him thereto. In that confession he recited substantially all the conditions of the obligation. With it he filed the original bond, showing full authority for his act. The prothonotary entered upon the docket the filing of the narr., the appearance of the attorney and his confession of judgment, with the waiver of inquisition and condemnation. When the fi. fa. issued, the prothonotary endorsed thereon “ inquisition and condemnation waived.”

Thus in fact the waiver of inquisition and condemnation was blended and interwoven with the record of the judgment. Was it not so in law ?

The waiver was a part of the contract. As such it was as obligatory upon the maker as his agreement to pay the sum therein stipulated. He was bound to the fulfilment of all its terms. Suppose the instrument had not contained any warrant authorizing a confession of judgment, but was otherwise the same, with its waiver of inquisition and condemnation, and suit had been brought upon it; a full copy of the instrument had been set forth in the declaration, the original filed in the case and judgment taken thereon upon a verdict, could it be seriously contended that the waiver was not a part of the record of the judgment ? The record of an action in a court founded on common law, consists of the writ, declaration, pleas and judgment: Erb v. Scott, 2 Harris 20. In case execution should be issued upon such a judgment, arid land be levied upon, I cannot conceive it would be necessary to hold an inquisition thereon. If the legal effect of such a judgment, duly entered upon a verdict regularly obtained, would be to dispense with the holding of an inquisition, then like effect must be given to the record of this judgment, regularly entered upon a warrant of attorney. In contemplation of law, a' judgment on warrant of attorney is as much an act of the court as if it were formally pronounced on nil dicit or a cognovit, and till it is reversed or set aside, it has all the qualities and effect of a judgment on verdict: Braddee v. Brownfield, 4 Watts 474. The judgment by the prothonotary, under a power contained in the instrument, is a judicial act, and may be entered by him under the Act of 1806, or may be confessed by an attorney independently of that act: Cook v. Gilbert, 8 S. & R. 568; Flanigen v. City of Philadelphia, 1 P. F. Smith 491; St. Bartholomew’s Church v. Wood, 11 Id. 96. The rule may be so qualified by the authority of Banning v. Taylor, 12 Harris 289, as to require the warrant of attorney to be filed with the appearance, in order to give full effect to the judgment and to prevent the issuing of a certiorari to bring up the warrant, upon a.suggestion of diminution of record. In the case now under consideration that contingency does not arise.

When a judgment is recovered according to the terms and conditions of a written obligation for the payment of money, and those terms and conditions expressly either limit the lien of any judgment that may be recovered upon it or which waive the benefit of all laws exempting property from levy and sale on any execution, or which waive the right of inquisition upon the delinquent’s real estate, and in the entry of the judgment this is set forth upon the docket, it must be held to be a part of the record of the judgment. Hence it was ruled in Stanton v. White, 8 Casey 358, that effect should be given to a stipulation in bond and warrant of attorney, restricting the lien of the judgment to be entered thereon to certain designated lands. So in a pending suit, if judgment is confessed and entered in pursuance thereof, the terms and conditions of the confession enter into and form a part of the record of the judgment, modifying and qualifying its effect.

In Coleman v. Coleman, 7 Harris 100, it was held that an agreement, and the entry of judgment thereon, in a pending action of partition, stipulating that certain ore-banks and' mine-hills should remain undivided, became the judgment of the court. By that judgment and decree, said Mr. Justice Woodward, in giving the opinion of the court, the covenant was inwrought into the titles of the parties, so that it should remain firm and stable for ever.

The cases of Buehler v. Rogers, 18 P. F. Smith 9, and Hope v. Everhart, 20 Id. 231, have been cited as establishing the doctrine that the inquisition is no part of the record of the judgment. The first of these is clearly distinguishable from the present case, in that there was no agreement, either before or at the time of the rendition of the judgment, to waive the inquisition. The allegation was that an inquisition had been held by the sheriff, but the fi. fa. and return thereon could not be found, and it was uncertain upon what land the writ had been levied. The case of Hope v. Everhart also differs. There the judgment was entered by the prothonotary under the Act of 1806, without the intervention of an attorney. The reasoning of Mr'. Justice Williams is predicated mainly of that act, and the duty and power of the prothonotary under it. The case wholly lacked the superadded appearance of an attorney for the defendant and his confession of judgment therefor, expressly waiving the inquisition and condemnation. That the authority of an attorney is more extensive in Pennsylvania than in other countries, and that his act binds the client, is recognised by numerous cases: Coxe et al. v. Nicholls, 2 Yeates 546; Reinholdt v. Alberti, 1 Binn. 469; Lynch et al. v. Commonwealth, 16 S. & R. 368; Wilson v. Young, 9 Barr 101; Cyphert v. McClune, 10 Harris 195; Flanigen v. City of Philadelphia, 1 P. F. Smith 491. If a judgment he confessed by an attorney, neither his authority nor the regularity of the judgment can be inquired into in a collateral action. Where he appears without authority and confesses judgment, the remedy is against him, or in a proper case the court in which it was entered may open the judgment: Cyphert v. McClune, supra; Evans v. Meylert, 7 Harris 402. The prothonotary, who is the maker and keeper of the records, acts under the supervision of the court. His record is the record of the court, made by the proper officer, and another court cannot say whether the record made by the proper officer was properly made or not. The court of which he is the officer has the sole jurisdiction to examine this, and to correct it if found wrong: Hoffman v. Coster, 2 Whart. 453.

While it is contended that a sale under this fi. fa. is bad, yet it is conceded if it had been made upon a vend. exp. it would be good. We are unable to see much force in the distinction, as the record shows the' waiver. In either case the judgment would have supported the execution, and the record would have shown the authority to sell. There is nothing in the case going to show fraud in the plaintiff in the judgment, nor to impeach the title of the defendants below as good-faith purchasers. The very able argument of the counsel for the defendant in error has failed to satisfy us that the title acquired by a good-faith purchaser upon the faith of the records shall not be sustained. We think the learned judge erred in admitting the evidence contained in the first and second assignments of error, as well as in affirming the point presented in the fourth. The court should have affirmed the point covered in the fifth and seventh assignments. We discover no other error in the record.

Judgment reversed, and a venire facias de novo awarded.