text:
    Paige et al. versus Wheeler.
    1. In an action of ejectment to recover the purchase-money appearing to be due on a contract for land made between plaintiff and P. one of the defendants, the latter offered to show that the instrument, in form an agreement for the sale and purchase of the land, was in law only the defeasance of a deed absolute on its face, but in fact a mortgage executed by P. to the plaintiff, and that the sum mentioned in the contract given in evidence contained excessive and usurious interest. The court below refused to admit the evidence. Beld, that this was error.
    2. A defeasance is properly recorded in any book kept by the recorder of deeds.
    3. Glading v. Frick, 7 Norris 460, followed.
    November 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Qrawford county: Of October and November Term 1878, No. 134.
    Ejectment by Silas Wheeler against James B. Paige and Ezra Cooper for sixty acres of land.
    At the trial defendants offered in evidence deed from James B. Paige and wife to Silas Wheeler, dated December 11th 1871; acknowledged same date; recorded in Deed Book “A,” No. 4, p. 319, for the land in dispute. Also the following:
    “ Article of agreement made and entered into on the 12th day of December 1871, between Silas Wheeler of LeBoeuf, in the county of Erie, and state of Pennsylvania, of the first part, and James B. Paige of Bloomfield, in the county of Crawford, and state of Pennsylvania, of the second part, as follows :
    “ The said Silas Wheeler agrees that if the said James B. Paige shall pay him, by the 12th day of December 1872, the sum of $435, and by the same day in 1873, the sum of $480, and by the same day in 1874, the sum of $381, and by the same day in 1875, the sum of $354, and by the same day in 1876, the further sum $327, and shall also pay taxes or assessments, which are or shall be assessed on the farm lying in said township of Bloomfield, which was conveyed to the said Silas Wheeler on the — day of December 1871, by the said James B. Paige and Cynthia Paige, his wife, previous to the 12th day of December 1876, then on the foregoing conditions the said James B. Paige may have the possession of said farm and be entitled to the use, income and profits thereof, until such time as he, the said Paige, shall have failed to fulfil the foregoing conditions on his part, and immediately after all of said conditions shall have been fulfilled on the part of said Paige, the said Silas Wheeler agrees to convey the said farm to the said Paige by as good and perfect title as he has received. And the said James B. Paige agrees that he will purchase the said farm of the said Wheeler at the price and upon the terms and conditions hereinbefore stated, and that if he shall fail or neglect so to do, this agreement shall become void on the part of said Wheeler, and it is further understood and agreed between the said parties, that the foregoing agreements and stipulations shall apply to and bind the heirs, executors and administrators of said parties respectively.
    “In witness whereof, the said parties have hereunto interchangeably set their names and seals, on the day and year first in this instrument written.
    In presence of ) F. E. Tucker, j
    Silas Wheeler, SEAL.
    James B. Paige, SEAL.’

      (Rev. Stamp.)

      ‘ Payments:
    On the 12th day of December 1872, $435.00
    “ “ “ “ 1873, 408.00
    “ “ “ “ 1874, 381.00
    “ “ . “ “ 1875, 354.00
    “ “ “ 1876, 327.00
    $1905.00
    “ October 9th 1872, received the first payment mentioned this contract in a note executed by Fisher and Paige.
    Silas Wheeler.
    “ County oe. Craweord, ss :

      (Seal.) Recorded in Agreement Book
    B, page 599. Witness my hand and official seal at Meadville, Pennsylvania, December 12th 1871.
    A. M. Smith,
    Recorder.
    “ This agreement is cancelled and annulled by the execution of another agreement between the undersigned extending the time of payment, and the said James B. Paige agrees to cancel this agreement on the records at Meadville.
    October 24th 1873. Silas Wheeler.
    James B. Paige.
    “ In connection with the deed offered in evidence from Paige to Wheeler for the land in question, for the purpose of showing that such a deed was a mortgage. To be followed by other evidence in the case showing that, at the date of the deed, Paige obtained a loan from Wheeler and secured him for the same by conveyance of the land, taking back at the same time the article of agreement mentioned in this offer above. To be followed by evidence that the deed from Paige to Wheeler was given to secure a loan, that Paige has continued in occupancy of the land ever since. To be followed by the records, showing that these articles of agreement are improperly recorded. This to be again followed by evidence that Ezra Cooper obtained a judgment, to No. 1042, August Term 1874, in the Court of Common Pleas of Crawford county, against James B. Paige. That afterwards the land in dispute was sold at sheriff’s sale, by execution issued upon this judgment, and purchased by Cooper, and that the article offered in evidence by the plaintiff, and upon which he seeks to recover, was a substitute for the one of December 11th 1871, embraced in this offer.”
    By the court. — Offer overruled, because it is not responsive to the plaintiff’s claim — it being an equitable ejectment to recover a balance of purchase-money due. (First assignment of error.)
    Defendants also offered to prove that there was included in the consideration mentioned in the contract, offered in evidence by plaintiff, excessive and usurious interest, amounting to nine per cent, per annum; that the deed was’ given to secure the loan of $1500, and that the balance was usury. Offer overruled. (Second assignment.)
    The jury found “for the plaintiff the land described in the writ, to be released upon the payment of $1458.59, with interest from this date, to be paid in three equal payments in six, twelve and twenty-four months respectively from this date, with costs.”
    After the entry of judgment, on this verdict, defendants took this writ, assigning for error the rejection of the evidence in the foregoing offers.

      Win. R. Bole and J. W. Sproul, for plaintiffs in error.
    Where a deed absolute and a defeasance are executed or agreed upon at the same time, and the deed alone is recorded, the two instruments have the effect of an unrecorded mortgage and are postponed to a judgment of subsequent date; Corpman v. Baccastow and Wagner, 3 Norris 363; Friedley v. Hamilton, 17 S. & R. 70; Kerr v. Gilmore, 6 Watts 405; Jaques v. Weeks, 7 Id. 261; Wilson v. Schoenberger’s Ex’rs, 7 Casey 295; Manufacturers’ & Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 335; Guthrie v. Kahle, 10 Wright 331; Reitenbaugh v. Ludwick, 7 Casey 131. Notwithstanding the Act of 1866, an absolute deed can be shown by parol to have been a mortgage: Maffitt’s Adm’rs et al. v. Rynd et al., 19 P. F. Smith 380; Kunkle v. Wolfersberger, 6 Watts 126; Kerr v. Gilmore, Id. 405; Brown v. Nickle, 6 Barr 390.

      The deed and defeasance of Wheeler were an unrecorded mortgage, for the reason, that both papers were not recorded in the mortgage-book. The first agreement or defeasance, could not legally be recorded, as it was not acknowledged. It was, however, recorded in the agreement-book, while the deed was recorded in the deed-book. This did not make it a recorded mortgage : McLanahan v. Reeside, 9 Watts 508; Luch’s Appeal, 8 Wright 519. An unrecorded mortgage is postponed to a subsequent judgment: Burke v. Allen, 3 Yeates 359; Semple v. Burd, 7 S. & R. 290; Friedley v. Hamilton, 17 Id. 70; Jaques v. Weeks, 7 Watts 261; Hibberd v. Bovier, 1 Grant 266. The second agreement, the one offered in evidence by plaintiff, was not recorded until over three years after the recording of the deed. Then it was recorded in the agreement-book. The taking of this deed and giving back the defeasance was a mortgage, and was evidently resorted to for the purpose of evading the statute against usury.

      Joshua Douglas, for defendant in error.
    An ejectment may be supported on a mortgage: Smith v. Shuler, 12 S. & R. 240; Fluck v. Replogle, 1 Harris 405; Martin v. Jackson, 3 Casey 504. A mortgage conveys an estate as security for the payment of a debt, and, even though unrecorded, it is good against the mortgagor himself or his alienee, or mortgagee, with actual notice or a judgment-creditor with notice, before - his debt is contracted: McLaughlin v. Ihmsen, 4 Norris 317 ; Britton’s Appeal, 9 Wright 172; Nice’s Appeal, 4 P. F. Smith 200; Tryon v. Munson, 27 Id. 250, 262.
   Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

This action of ejectment was brought by the defendant in error to recover the purchase-money appearing to be due on a contract for the land made between him and Paige. The object of the evidence offered by the plaintiffs in error and rejected by the court, was to show that the instrument, in form an agreement for the sale and purchase of the land, was in law only the defeasance of a deed absolute on its face, but in fact a mortgage executed by Paige to the defendant in error ; and that the sum mentioned in the contract given in evidence by the latter, contained excessive and usurious interest. The rule that a deed absolute on its face may be shown, by parol, to have been intended as a mortgage, is too well established in Pennsylvania to need the citation of authorities. If then the deed from Paige to the defendant in error was a mortgage, and the article of agreement entered into between them was intended as a defeasance, and a device to secure the payment of usurious interest, and the defendant in error now claims to recover a sum which includes that usurious interest, the rejected evidence should have been received.

Cooper, one of the plaintiffs in error, claims title by virtue of his purchase at sheriff’s sale as the property of his co-plaintiff, Paige. The judgment on which it was sold was entered after the deed from Paige to the defendant in error and after the contract of defeasance were recorded. Inasmuch, however, as the defeasance was not recorded in the mortgage-book, but in the agreement-book, it is claimed that it was improperly recorded, and, therefore, if in fact a mortgage, the sheriff’s sale passed a title discharged therefrom. It may be conceded that this was the correct view under the authority of Luch’s Appeal, 8 Wright 510. That case, however, has been expressly overruled by Glading v. Frick, 7 Norris 460. It is there held that such an instrument of writing is properly recorded in any book kept by the recorder of deeds. Cooper then bought subject to the claim óf the defendant in error, conceding the conveyance to have been a mortgage. If a mortgage, the latter can recover no more than the sum loaned, which it was given to secure, with legal interest thereon. The assignments are substantially sustained.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Duffield et al. versus Miller.
    M. agreed to loan to the Titusville Savings Bank §9000 in U. S. bonds, which were to be returned to M. in.sixty days, and for the performance of this contract a number of the shareholders of the bank became jointly and severally liable. The bank was to hypothecate the bonds for the purpose of raising money to meet its liabilities, and the bank did hypothecate them by depositing them as collateral security in a bank in New York. Certain overdrafts of the Titusville Bank being unpaid, the New York bank sold the bonds, and placed the proceeds to the credit of the Titusville Bank. M. brought an action of trover against the shareholders of the latter bank. Held, that as the Titusville Bank did not authorize the sale of the bonds by the New York bank, further than an authority to sell may be implied from the pledge itself, there was no breach of trust or tortious conversion by defendants, and the bonds having been sold, and the plaintiff’s right thereto divested, he owned nothing that could be the subject of an action of trover. All that was left to him was an action upon his agreement.
    November 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, No. 241.
    Trover and conversion by Robert Miller against C. C. Duffield and others.
    The following point and answer of the court below thereto, together with the facts as set forth in the opinion of this court, state the case: If the jury find from the evidence that plaintiff loaned the bonds in controversy to defendants for the purpose of hypothecating or raising money upon them as security for the uses of the bank, and that defendants did in good faith use the bonds for that purpose, this action cannot be maintained.
    Ans. “ Had the defendants merely hypothecated in place of converting the bonds, this point would have been affirmed. But they had no right to convert the bonds into money. Thus explained the point is negatived.”
    Verdict for plaintiff for $12,307.50. Defendants took this writ, their first assignment of error being the answer to the foregoing point.

      D. C. McCoy, F. B. Guthrie and F. L. Seely, for plaintiffs in error.
    We contend that the contract between the parties constituted a loan of the bonds from Miller to the defendants; that a failure to return the bonds under the terms of the contract was but the violation of a contract for which Miller might, in a proper form of action, recover against the defendants; but that it was not a tor-. tious breach of the contract, for which the action of trover will lie.
    Miller had parted with the bonds for a specific time and purpose, and at the time they were sold had neither an actual or constructive possession thereof, nor was he entitled to the immediate possession, and therefore cannot maintain trover: Mather v. Trinity Church, 3 S. & R. 512; Purdy v. McCullough, 3 Barr 466; Castor v. McShaffery, 12 Wright 437; Hilliard on Torts 592 and 693; Kelsey v. Griswold, 6 Barb. 436; Gordon v. Harper, 7 Term Rep. 9; Horsefield v. Cost, 3 Alden’s Condensed Rep. 427-28.

      John J. Henderson, for defendant in error.
    Admitting that the plaintiff might have sued on the contract, he also has a right to this action. A bailor may maintain trover against a bailee, if conversion is proved, though assumpsit or case may also be maintained: Lockwood v. Bull, 1 Cowen 322; Murray v. Burling, 10 Johns. 175. It is often desirable to sue in trover, rather than in assumpsit: 1 Saund. Pl. 167. The defendants had no right to make any disposition of the bonds, which would deprive the plaintiff of them. They were bound to- protect his title, and any other use of them than that contemplated, was a conversion: Work v. Bennett, 20 P. F. Smith 484; Homer v. Thwing, 3 Pick. 492; Wheelock v. Wheelwright, 5 Mass. 104; Green v. Sperry, 16 Vt. 390. Every assumption of property in, or exercise of authority over the goods of another, inconsistent with the title of the rightful owner, or in exclusion of his right is a conversion : Commonwealth v. Chathams, 14 Wright 181; Bristol v. Burt, 7 Johns. 254; Murray v. Burling, 10 Id. 175; Baldwin v. Cole, 6 Mod. 212; Work
      v. Bennett, 20 P. F. Smith 484. If, after the party has received goods, though legally, he sell or otherwise dispose of them tortiously, no demand is necessary, for his subsequent act is in itself a conversion : 1 Chitty 158 ; Grant v. King, 14 Vt. 367 ; Work v. Bennett, 20 P. F. Smith 484; Neiler & Warren v. Kelly, 19 Id. 403.
   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

The defendant’s first point goes to the bottom of this case. It denies the right of the plaintiff to recover in this form of action. The court below denied the point as applied to the facts, and ruled that the plaintiff had a right to sue in trover.

The action was brought to recover damages for the conversion of $9000 of United States bonds. The defendant Duffield was the cashier of the Titusville Savings Bank, an unincorporated association. The other defendants were shareholders. The plaintiff had made a special deposit of the bonds in question with the bank. The latter, becoming embarrassed, entered into negotiations with the plaintiff for the use of his bonds to assist it in raising money which resulted in the following agreement:

“ Titusville, Pa., October 10th 1878.

Received from Robert Miller nine thousand dollars in United States bonds, which we hereby agree to return to the said Miller within sixty days from this date.* And we hereby jointly and severally bind ourselves for the faithful performance of this agreement. Witness our hands and seals.”

This agreement was signed by each of the defendants. The defendant Duffield took the bonds to New York and deposited them with the Importers’ and Traders’ Bank as collateral, in consideration of which the latter bank allowed the Titusville Bank to overdraw its account to the value of the bonds. The account not being made good, the Importers’ and Traders’ Bank sold the bonds and credited the Titusville Bank with the proceeds. The defendants having failed to return the bonds, as specified in the agreement, the plaintiff brought this action of trover to recover damages for their conversion.

It is not denied that the defendants borrowed these bonds for the very purpose of using them as collateral to raise money. The plaintiff says in his testimony : “ The bank had suspended when they got the bonds. They got them to raise money. They said they wanted the bonds to hypothecate; to put them up and get money.” It thus appears, from the plaintiff’s own showing, that the defendants were authorized to do just what they did, that is, to hypothecate the bonds for the purpose of raising money. They did not sell them, nor authorize their sale by the New York bank further than an authority to sell may be implied from the pledge itself. There was, therefore, no breach of trust in the case, nor any tortious act committed by the defendants, unless the failure to redeem and l'eturn the bonds can be so considered.

We do not so regard it. When the plaintiff authorized the managers of a failing bank to use his bonds to raise money, he must have known that it might not be in their power to return them. At any rate there was a risk, and he assumed it. Having been pledged by his authority, the pledgee has a right to sell for non-payment of the money borrowed, and such sale passed the title. At the time this suit was brought the bonds had been sold, and the plaintiff’s rights divested. He owned nothing that could be the subject of an action of trover. All that ivas left him was a right of action upon his agreement. It is well settled that to maintain trover the plaintiff must have a property in the chattel, general or special, and the actual possession or the right to immediate possession: Mather v. Trinity Church, 3 S. & R. 509; Castor v. McShaffery, 12 Wright 437; 1 Chitty on Pleading 148, and cases there cited.

As what has been said is decisive of the ease it is unnecessary to discuss the remaining assignments of error.

Judgment reversed.


author: Mr. Justice Gordon

text:
    Stebbins versus The County of Crawford.
    1. A moral obligation is sufficient to support an assumption to pay a debt barred by a report of county auditors which was properly filed and had become a judgment, and from which no appeal was taken.
    2. S. was the county treasurer of Crawford county for the year 1874. He settled his accounts, and the auditors’ reports thereon were properly filed in the prothonotary’s office on the 3d of February 1876, and became a judgment which was not appealed from by any of the parties interested. In January 1878 it was discovered that there were errors in these accounts to the extent of §1717.76, and S., who had no knowledge of these errors prior thereto, admitted them and acknowledged the mistake to that amount to the clerk of the county commissioner, and to the county treasurer, and promised to them to pay the same. The county brought assumpsit upon this promise. Held, affirming the court below, that she could recover.

      3. It was objected that the promise being made to the clerk of the commissioners and the county treasurer, it was therefore not binding on the defendant. Held, that as both were county officers, there was no reason why the assumption to either of them would not be good, especially to the latter, who was the only, one who had power to receive the money and receipt therefor.
    November 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunicey, JJ. Sterrett and Green, JJ., absent.

      .Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, No. 324.
    This ease is stated in the following opinion of the court below, Church, P. J.:
    “ This was an action of assumpsit, brought by the County of Crawford against Benjamin F. Stebbins, a former treasurer of the county, to recover a balance of $1717.76 of public moneys remaining in his hands at the end of the year 1874. The action is founded upon an alleged express promise to pay the same, after a discovery had been made by the county officials and the treasurer, in January 1878, that the county auditors had made a mathematical error in settling the account of the treasurer for the year 1874, by neglecting to carry over against the treasurer $1000 in one place, and $717.76 of road and school funds in another place. After the suit was brought, plaintiff entered a rule of reference under the compulsory arbitration law. Whereupon the defendant, under the provisions of the Act 6th April 1870, Pamph. L. 948, 1 Purd. Dig., p. 80, pi. 20, et- seq., elected to have a legal arbitration, and the cause was then submitted to an arbitrator learned in the law, and the cause was then proceeded with, tried, and an award made thereon in full accordance with the provisions of that act, for the plaintiff, for the sum of $1975.32, being the amount of the above-mentioned errors with interest thereon. Judgment nisi was entered on the award, and within the time allowed by the act, exceptions were filed to the decision and ruling of the law in the case, and these exceptions are now heard in this court, as in the nature of a writ of error to it.
    “ There are fifteen separate exceptions filed to the reception of evidence, answers to points and rulings of law, but they can readily be resolved into one, or at the most,'two, which will be noticed together. It will be perceived that this is not an action of debt or for money had and received, or on an implied promise to pay, but as was before said, an express, promise to pay a specified sum. On the trial, plaintiff offered, in evidence the auditor’s reports for the years 1874 and 1875, for the purpose of showing that error was committed against the county, and in favor of the treasurer, of $2056.06 for the former year, and of $2011.75 for the latter year. These offers' were proposed to be followed by evidence of an admission of the errors, and a promise by defendant to pay the same. To these offers defendant objected on the ground that the auditors’ -reports had passed into judgment, and were final and conclusive, and not having been appealed from, could not be attacked by the kind of evidence offered, nor in this form of action, and the promise, if ma le, had no binding effect, because there was no legally existing debt, and it is not binding for want of consideration.
    “The legal arbitrator overruled the objection, with the understanding that no evidence was to be introduced of any errors, except such as could be followed with proof of an acknowledgment and promise to pay the same' by the defendant. There was no error in admitting these offers, with the qualifications annexed, by the arbitrator to his ruling, and when" he comes to make up his award in the form of a special verdict, he expressly ‘rejects from the case all evidence of errors in auditor’s reports offered in this case not followed by evidence of a subsequent acknowledgment and promise to pay the same by the defendant.’
    “It will thus be seen, that the legal arbitrator was not unmindful of the Act of 15th of April 1834, defining the functions of county auditors, and giving legal effect to their respective reports, but kept the same steadily in view, together with the adjudication of the courts thereon, as' found in Blackmore v. Allegheny Co., 1 P. F. Smith 160; Northumberland County v. Bloom, 3 W. & S. 542; Northampton County v. Yohe, 12 Harris 305, and many kindred cases. This sufficiently appears in the legal arbitrator’s answer to defendant’s first and second points, wherein is affirmed the doctrine, that county auditors’ reports are conclusive and binding upon the parties; and that the Act of 1834, in its ’provisions for the settlement and adjustment of the accounts of county treasurers, must be strictly pursued; and that no action at common law can be maintained, to re-settle said accounts or to correct errors therein. That the legal arbitrator based his aw.ard upon other and different grounds, also appears from the fact, that he only gave an award, to plaintiff for about half her claim ; that is, for the errors of one year upon which the express promise to pay was made, and rejected entirely the claim for errors for the year that lacked such promise. The Act of the 6th of April 1870, hereinbefore noted, defining the duties of the legal arbitrator, provides, inter alia, that ‘ it shall be the duty of the arbitrator to conduct the trial, and at the conclusion thereof, find and report the facts of the case in the form of a special verdict, together with the exceptions taken during the trial to the admission or rejection of evidence, and the points of law made by the parties ; and his decisions or rulings thereon,' and his award or finding in the case.’ This has been very fully and completely done by him. In the special verdict he finds as facts, that the auditors, in their report of 1875, committed two errors, which appear upon the face of the reports in evidence, to wit: A mistake of $1000 against the county, in carrying over the balance remaining in the hands of the treasurer at the end of the year 1874; and also a mistake of $717.76, in not carrying over .and in not charging the amount of road and school funds in the hands of the treasurer, at the end of the year 1874 ; by which two mistakes, the defendant, then treasurer of Crawford county, was charged with $1717.76 less than was in his hands at the beginning of 1875, and was enabled to retain that amount of the money justly belonging to the county; and that the auditor’s report of 1875, containing the said errors, was properly filed in the prothonotary’s office on the 3d of February 1876, and became a judgment, which was not appealed from by any of the parties interested; and the defendant paid over to his successor in office, the full amount shown by that auditors’ report to be in his hands at the expiration of his term of office, to wit: the sum of $20,553.61, and took receipts for the same; that some time in January 1878, the errors above mentioned having ' been discovered, the defendant, who had no knowledge of the errors prior thereto, admitted the said errors, acknowledged the mistakes of the amounts above named, and promised O. H. Hollister, clerk to the commissioners, and J. (x. Foster, the treasurer of the county, that he would pay the same; that the admission was definite and specific as to the items and amounts; and the promise, as shown by the evidence, was positive and unconditional.
    “ These are the facts reported in the form of a special verdict. By the act is undoubtedly meant that the finding of the facts should have all the force and effect of a special verdict, and then the cause could be ultimately decided upon these facts, according to law. In so deciding, the court is confined to the facts found by the special verdict, and its judgment must be confined to that verdict : Wallingford v. Dunlap, 2 Harris 31 and cases there cited.
    “ It may be proper here to say that we cannot pass upon the fifth exception, which goes to an alleged error in the legal arbitrator reporting as a fact that the promise of the defendant was unconditional. If that be error, it must be reached by an order on the arbitrator to return his testimony taken, which order must be founded upon motion, supported by affidavit, stating explicitly wherein the alleged error consists, and then for a motion as in nature of motion for new trial, to refer the case back to the legal arbitrator for a new finding. The Legal Arbitration Act, under which these proceedings were had, makes no provision for returning the evidence, and it is not a part of the record. In this case ho has returned it, and from an examination of it we cannot say that he has erred in his finding of the facts proven. We come now to the material point in this case.
    “ The facts are that two years after the auditor’s report was filed, and which was unappealed from, and hence final and conclusive, and binding as a judgment upon all parties, the defendant, upon the discovery of two important clerical and mathematical errors, admitted the errors, and promised to pay the same definitely, specifically and unconditionally. Was there a moral obligation restT ing on the defendant to pay this money, sufficient for a consideration to support this promise, or was it void as being mere nudum pactum ? From an examination of the authorities, we find the rule to be this: A moral obligation is sufficient to support an express promise, where there has been a pre-existing obligation which has become inoperative by positive law. Express promises, founded on preexisting equitable obligations, may be enforced as founded on good consideration. They merely remove an- impediment erected bylaw to the recovery of debts honestly due, but which the statute law and public policy protect the debtors from being compelled to pay.
    “ The case of debts barred by the Statute of Limitations, of debts incurred by infants, of debts of bankrupts, are illustrations of this rule. In all these cases there was originally a quid pro quo, and according to the principles of natural justice, the party receiving ought to pay, but the legislature has said he shall not be coerced. Then comes the promise to pay the debt that is barred; the debt of the infant, the debt of the discharged bankrupt, to restore to his creditor what by the law he had lost. In all these cases there is a moral obligation founded upon antecedent valuable consideration. Such promises, therefore, have a sound legal basis. They are not promises to pay something for nothing, not rfaked pacts, but the voluntary revival or creation of obligations which before existed in natural law, but which had been dispensed with, not for the benefit of the party obliged solely, but principally for the public convenience: per Parker, C. J., in Mills v. Wyman, 3 Pick. 207. To the same effect is Willing v. Peters, 12 S. & R. 177 ; Hemphill v. McClimans, 12 Hands 367; Kennedy v. Ware, 1 Barr 445 ; Paul v. Stackhouse, 2 Wright 302. Now, applying this rule to the facts in this case, wdiat do we have ? An actual pre-existing debt owing by this defendant to the plaintiff — a debt for trust moneys, which in foro conscientice is of a higher character than the ordinary debts ■which arise on account of dealings between individuals. This debt is barred by positive law by a judgment entered, in which the debtor is unwittingly but none the less positively released. According to the common sense and feeling of mankind, the debt exists until it is actually paid; the mind of the defendant assented to this principle. He felt the obligation of the unsatisfied debt, and in the language of the verdict, specifically and definitely admitted it, and positively and unconditionally promised to pay it. There can be no doubt, therefore, that this moral obligation was a sufficient consideration upon which to base this promise of the defendant to pay the debt, and the legal arbitrator did not err in applying these principles and answering defendant’s points as he did.
    “ The defendant’s seventh point was correctly answered. The clerk to the county commissioners and the county treasurer are both functionaries recognised by law, and the promise of defendant might with propriety be made to them, or at least to the treasurer. The^were not engaged in the settlement or adjustment of the affairs of the county, and even if they were, it is difficult to see why the treasurer could not receive the defendant’s promise. It is made the duty of the treasurer by law to receive all moneys due or accruing to the county.

      “ This money in the hands of defendant was due and accruing to the county, and if it could or would have to be paid to him he could certainly receive a promise of defendant to pay it. As well say the cashier of a bank, or the treasurer or receiving officer of any corporation could not receive the promise of a debtor to the bank or corporation to pay a debt owing, as to say the county treasurer cannot receive the promise of a debtor to the county to pay a debt justly due it. In this case the treasurer is not an> actor; he is but the passive recipient of the promise to pay. In this respect he was the agent of the political corporation, the county, and this political body has the right to reap the benefit of the defendant’s promise made to pay them through its agent, the county treasurer, and to maintain this suit to enforce performance of that promise.
    “ This cause was well decided by the legal arbitrator, and there is nothing in the judgment of which the defendant has any right to complain, either In law, morals or good conscience.
    “ The exceptions filed to the award of the legal arbitrator are all dismissed, the award is affirmed, and final judgment directed to be entered on the same against the defendant for the amount of the award with interest from the filing thereof, together with costs of suit.”
    The defendant took this writ and alleged that the court erred in' dismissing defendant’s exceptions and in affirming the report and award of the arbitrator, and entering judgment for the plaintiff thereon.

      D. C. MoCoy & Son, for plaintiff in error.
    The settlement of Stebbins’s account by the county auditors and their reports duly filed in the Common Pleas and not appealed from, are final and binding on all parties; Northampton County v. Yohe, 12 Harris 305; Northumberland County v. Bloom, 3 W. & S. 542; Brown v. White Deer Township, 3 Casey 109 ; Commissioners of Lycoming County v. The County of Lycoming, 10 Wright 496; Blackmore v. County of Allegheny, 1 P. F. Smith 160; Siggins v. Commonwealth, 4 Norris 278.
    Again, a promise made to pay where there is no legal obligation, and in ignorance of the parties’ rights, or under surprise, is not binding: Logan v. Matthews, 6 Barr 417.
    A promise made to another not the agent of the plaintiff to pay a debt barred by the Statute of Limitations, or to do some act or pay a sum of money resting upon a moral obligation alone, is not binding: Gillingham v. Gillingham, 5 Harris 302; Kyle v. Wells, Id. 286.
    Neither Hollister nor Foster were in any sense the agents of the county for the transaction of any business with the defendant respecting those reports or any errors contained in them. They both acted upon their own motion and responsibility. There is not a particle of evidence nor a hint in the report of the. arbitrator that either of them was ever authorized by the county commissioners to do anything in the matter. If it is pretended that they acted as agents of the county, the agency must be shown by the party alleging it. The corporate powers of the county are exercised by the commissioners.

      Thomas Roddy and S. Newton Pettis, for defendant in error.
    —A moral obligation to pay money or to perform a duty is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the duty, which was enforceable at law but for the interference of some rule of law : 1 Parsons on Contracts 361; Chitty on Contracts 48; Willing v. Peters, 12 S. & R. 177; Paul v. Stackhouse, 2 Wright 302; Lee v. Maggerdge, 5 Taunt. 36, 44; Miles v. Wyman, 3 Pick. 209. The clerks of the county commissioners and the county treasurer were both officers of the county to whom with propriety such a promise could be given.
   Mr. Justice Gordon

delivered the opinion of the court, January 5th 1879.

To the well-written and carefully considered opinion of the learned judge of the court below, we can add but little, except the approval of this court. That a moral obligation is sufficient to support an assumption to pay a debt, which cannot be collected by reason of the intervention of some positive law, as the Statute of Limitations, the operation of a judgment, or a discharge in bankruptcy, is a doctrine now so well established, that a discussion of it would be mere waste of logic. In Anspach v. Brown, 7 Warts 140, it is admitted that there is an obligation in morals, to pay a debt barred by a judgment, which will support an express promise to that effect. Such a debt, it is true, is put upon higher footing than one barred by the Statute of Limitations, for, it is said, there must be not only an acknowledgment of the debt, but a distinct and formal promise to pay; nevertheless, when these conditions are complied with, the promise is binding. What then though the auditor’s report was equivalent to a judgment ? That there was a clear mistake in it of some $1700, is not denied; and that Stebbins acknowledged that mistake, and clearly and unconditionally promised to pay the amount thus discovered to be due the county, is found by the legal arbitrator.

But it is objected, that this promise was made to the clerk of the commissioners and to the county treasurer, and is therefore not binding upon the defendant. But, as both these persons were county officers, we cannot see why the assumption to either of them would not be good, especially to the latter, as he was the only one who had power to receive the money and receipt for it. As was well observed by the court below, as well might you' say that the cashier of a bank, or the treasurer of a corporation of any kind, could not receive the promise of a debtor, to pay a debt due to such bank or corporation. But the officers above named, are not more nearly connected with the interests of their several institutions, than are the county clerk and treasurer with the interests of the county; there is, therefore, quite as much reason that a promise to the latter, to pay a debt due the county, should be binding, as to the former, to pay a debt due a bank or other corporation.

The judgment is affirmed.


author: Mr. Justice Mercur

text:
    Foss versus Bogan, for use &c.
    1. The transcript from the docket of a justice of the peace showed a judgment was rendered on a note, but did not show that it contained any waiver of the right of appeal. The defendant in the judgment appealed therefrom. The court below, on parol evidence that the right of appeal had been waived, struck off the appeal. Meld, that this was error, as the court had no authority to look beyond the record of the justice.
    2. Wherever a justice’s transcript shows the cause of action, it cannot be supplemented or changed by parol evidence, so as to deprive a party of a trial by jury.
    November 25th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 82.
    This was an appeal from the judgment of a justice of the peace, wherein Michael Bogan, to the use of Wright & Smith, were plaintiffs, and John Foss defendant. The material facts are stated in the opinion of this court.

      Neill & Ileywang, for plaintiff in error.
    Parol evidence is not admissible to vary or contradict records, and it is held that this applies to the transcript of the judgment of a justice of the peace. The transcript of the justice is conclusive: Coffman v. Hampton, 2 W. & S. 377; Seibert v. Kline, 1 Barr 38; Delaware & Hudson Canal Co. v. Loftus, 21 P. F. Smith 418.
    The transcript in this case showed that the plaintiff’s attorney was present and that the note was produced, and the defendant had a right to presume that the waiver clauses were not in the note or that the plaintiffs were not insisting on them. Such an application might he allowed to obtain the right to appeal when it has been denied, but never to take away such right where it exists prima facie. Courts should be- ingenious in discovering reasons in support of the right of appeal but not to take away that right.

      When a defendant voluntarily confessed judgment before a justice he was nevertheless allowed to appeal from the judgment so confessed: Rowen v. King, 1 Casey 409. The maker of a promissory note may waive the right of appeal by his contract but not as to subsequent matters of defence: Kerlin v. Russell, 1 Pitts. L. J. 82.

      C. M. Boush, for defendants in error.
    The statement of the plaintiff’s attorney upon which this rule was granted, gives a copy of the note in question and simply states that the appeal was obtained before the justice without notice to, in the absence and without the knowledge of, plaintiffs and their attorney. Nothing of this varies or contradicts the records of the justice, neither is it contradicted by the appellant. The record of the .justice shows that the defendant below was regularly summoned to appear on July 31st 1878, between one and two o’clock p. m. ; fhat the plaintiffs appeared by their attorney with the evidence the defendant’s note containing a waiver of the right of appeal. The defendant choose not to appear to investigate the plaintiff’s evidence, but preferred to evade the condition of his contract and to obtain an appeal by an ex parte proceeding before the justice. .
   Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

That the .maker of a note may, by his contract therein, waive the right of appeal, so as to be bound by the waiver, is well-settled: Rheem v. Allison, 2 S. & R. 114; Pritchard v. Denton, 8 Watts 372.

In the present case, the transcript from the docket of the justice of the peace, showed the judgment was rendered on a note, but did not show that it contained any waiver of the right of appeal. The defendant in the judgment appealed therefrom. The court below, on parol evidence that the right of appeal had been waived in the note, struck off the appeal. This is the error assigned.

As the right of appeal is given by Act of Assembly, a party cannot be deprived thereof, except by his express agreement. How may that agreement be shown ? How shall the Common Pleas, when no fraud or want of jurisdiction in the justice is alleged, inquire into the cause of action before him ? Shall it be by inspection of the transcript, or by parol evidence? Manifestly by the former. A court of error cannot look beyond the record. A paper does not become a part of the record merely by being filed. It required an express statute to put depositions on the record, and that can be done only by bill of exceptions.

An inquiry by the court as to the proceedings before the justice is wholly different from an inquiry into the execution of its own process. Wherever the justice’s transcript shows the cause of action, it cannot be supplemented or changed by parol evidence for the purpose of depriving a party of a trial by jury: Dawson v. Condy, 7 S. & R. 366; Delaware & Hudson Canal Co. v. Loftus, 21 P. F. Smith 418.

Judgment striking off the appeal is reversed, and the case ordered to be reinstated, and to be proceeded in according to law.


text:
    Irwin versus Cooper et al.
    1. A party claiming to hold land under a parol sale may set up the Statute of Limitations to protect his title.
    2. The statute is not so inconsistent with an equitable defence as to render it inadmissible. The statute is applied with the same effect in a court of equity as in a court of law.
    3. After a lapse of twenty-seven years, it is unreasonable to require the same strictness of proof in establishing^ parol sale of land as is requisite where the transaction is recent.
    4. The court below required the defendant to elect whether he would defond under a parol purchase or the Statute of Limitations and said : “To defend under a merely equitable defence, such as a parol purchase, is, as a defence, inconsistent with a defence under the Statute of Limitations, which is purely legal.” Held, that this action and instruction of the court were erroneous.
    November 25th 1879.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Mercer county: Of October and November Term 1879, No. 170.
    Ejectment brought July 25th 1878, by Samuel L. Cooper, Abraham P. Cooper, John A Cooper and William B. Cooper, heirs and legal representatives of William Cooper, deceased, against James 0. Irwin, for one-third of ninety-six acres of land in French Creek township, Mercer county, Pennsylvania. In 1839 Samuel Cooper, grandfather of plaintiffs, owned this land, and on April 10th 1839, made his last will, which was duly proven and recorded May 21st 1839, in which he made this provision: “I will that the place be equally divided among my three sons, William, John and Abraham, when Abraham comes of age, if they stay at home and work the place till they respectively come of age, and that their mother have her living off the proceeds of the place as long as she remains in her widowhood.”
    William Cooper, the eldest son, and father of plaintiffs, was born on June 28th 1821, and attained his majority on June 28th 1842. Abraham, the youngest son, under whom defendant claimed the land, was born on November 13th 1828, and attained his majority November 12th 1849, which, according to the father’s will, was the time when the place was to be divided among the three sons, William, John and Abraham. Soon after the father’s death, in 1839, the sons all left home to learn trades. William learned the cabinetmaking trade, and he was never on the farm until after he acquired his trade. After acquiring his trade he married and settled in Utica, three miles distant, and there remained until he died in 1857. Though William attained his majority in June 1842, three years after his father’s death, he never resided on or took any interest in the farm after that date, but worked at his trade and provided for his own family.
    Abraham, the youngest son, became a blacksmith, and worked at his trade at various places until 1851, when he was in his twenty-third year. From 1839 till 1851, the mother remained on and managed the farm as best she could, and tried to make a living for herself and two daughters. The place wag in miserable condition, only twelve or fifteen acres cleared, and that poorly done, fences poor, and having no suitable buildings.
    Such being the condition of affairs, the mother, William and Abraham, all being anxious and willing to do something to change this condition, met at the house of James Lee, a neighbor, some time in 1851 to make some family arrangement, or amicable agreement or contract, about the place, to carry out the father’s will, and provide the mother a living from the proceeds of the farm. At this neighbor’s house the two sons met and, in the presence of their mother and James Lee, and according to the wishes of the mother and of William himself, Abraham agreed to take the mother and provide for her during her life for William’s' interest in the farm, and William agreed to give Abraham a quit-claim deed for his interest in the place for so keeping his mother. Whether or not the quit-claim deed was ever executed and delivered, could not be shown, as both William and Abraham were dead, but the contract was distinct and positive in its terms and subject-matter. Under and in pursuance of this contract, Abraham immediately took exclusive possession of the farm, occupied and improved it until 1865, when he sold it to James C. Irwin, the defendant. He also supported and provided for the mother from 1851 till the time of her death, which occurred in 186-.
    At the time this contract was made in 1851, William resided in Utica, three miles distant, and there remained until his death in 1857; and during these years no word of dissent or of dissatisfaction was ever heard from, nor was any claim ever made by him to the land, but, on the contrary, he repeatedly expressed his entire satisfaction with his contract with Abraham.
    On May 2d 1852, John, the other brother, conveyed his interest in the farm to Abraham for a small sum, thus vesting in Abraham the entire title to the farm.

      William lived at Utica till 1857, six years, and his family have resided there ever since, and his sons, the plaintiffs, came of age respectively: Samuel L., in March 1868, Abraham P., in July 1870, John A., in March 1873, and William B., in July 1875.
    At the trial, the court charged the jury as follows :
    “ The plaintiffs’ title is perfect in this case, for the recovery of .one undivided one-third part of the premises described in the writ; and we do not feel warranted in permitting you, from the evidence in the case, to find that there was a parol sale by William Cooper to Abraham Cooper; therefore, your verdict will be in favor of the plaintiffs for the one undivided one-third part of the land described in the writ.”
    The verdict was for plaintiffs accordingly.
    The following assignments of error by defendant, will show the questions raised in the case.
    The cSurt erred ¿
    1. In the order requiring defendant’s counsel to elect his defence, which order was as follows:
    “The defendant’s counsel, in their opening, having substantially stated, that if the defence of a parol purchase failed, they would then set up the Statute of Limitations as a defence; the court demands of the defendant, that he elect to defend either under a parol purchase by him or his grantor, or under an adverse possession of twenty-one years before suit brought by him or those under whom he defends.
    “ To defend under a purely equitable defence, such as a parol purchase, is, as a defence, inconsistent with a defence under the Statute of Limitations, which is purely legal.”
    Defendant, under this direction from the court, elected to defend under a parol purchase of the land in controversy, by his grantor from William Cooper.
    2. In answering plaintiffs’ point in the affirmative, which point and answer are as follows :
    That under the law and the evidence in this case plaintiffs are entitled to recover. •
    •Ans. “ The aboye point is affirmed.”
    3. In answering the defendant’s point in the negative, and refusing to submit the question to the jury, which point and answer are as follows:
    That if the jury believe from the evidence of James Lee and others, that William Cooper and Abraham Cooper, made a contract or agreement in 1851 or in 1852, by which Abraham was to support and maintain their mother until her death; and that in consideration of such support and maintenance, said William Cooper was to quit-claim to Abraham, all his interest in the land in controversy ; and that in pursuance of such contract and agreement, Abraham did support and maintain his mother until her death; and did take actual and exclusive possession of said land, and claim it as his own, and made valuable improvements thereon; and did continue such actual and exclusive possession and claim by himself and his tenants, until he sold it to defendant in 1865; and that the' defendant continued such actual and exclusive possession and claim ever since, making a period of more than twenty-five years from the time said contract was made before suit was brought; then that would be such a parol sale and purchase of William’s interest in said land, and carrying out and completing of the same by the parties, as would be enforced by a chancellor, and would be so far executed by the parties, that it would be unjust and inequitable to rescind the same, and the plaintiff cannot' recover.
    Ans. “ The law is correctly stated in this point, but there is-not sufficient evidence to warrant the jury in finding the facts necessary to support it. Thus explained, we refuse to affirm it, so as to leave the question to the jury.”
    4. In the instruction contained in the above charge.

      Grriffith Son, for plaintiffs in error.
    Where a parol contract of sale is precise as .to its terms and subject-matter, and the vendee has taken possession in pursuance of it, and made valuable improvements with the assent of the vendor, it is not within the Statute of Frauds: Hart et al. v. Carroll, 5 Norris 510.
    The order of the court requiring the defendant’s counsel to elect to defend under the parol purchase and excluding all consideration and effect of the Statute of Limitations on the defence set up, was error; it did manifest injustice to the defendant, and precluded him from presenting his defence to thejuryinthe way he was entitled to. If the proceeding or action is an equitable one, a substitute for a bill in equity for specific performance, then, as we understand the Statute of Limitations, equity follows the law, and this court has said in Bull v. Towson, 4 W. & S. 557, “ In equity courts, twenty years is a bar to any claim.” In Hamilton v. Hamilton, 6 Harris 20, “ The’ Statute of Limitation is applied with the same effect in a court of equity as in-a court of law,” and in Bock v. Lauman, 12 Harris 439, “In relation to lapse of time equity follows the Statute of Limitations.” See also Richards et al. v. Elwell et al., 12 Wright 361; Willey et al. v. Day et al., 1 P. F. Smith 51.
    It was the duty of the court to have submitted the cause to the jury, with proper instructions as to the effect of the lapse of time or the Statute of Limitations, either as a complete bar to the plaintiffs’ claim, or as raising a presumption of a deed or quit-claim from the vendor to the vendee, especially as the parol sale had occurred more than twenty-seven years before. There was positive proof by one witness (who saw the parties face to face) of the contract, its terms and subject-matter, and that the vendee took immediate possession of the land, and that the contract had been made more than twenty-seven years before suit brought, and proof by another witness, who had heard the vendor recite the contract and express his approbation with it and the terms of sale; and proof by these and many other witnesses, of the continued, exclusive and notorious possession of the land maintained by the vendee and the defendant from 1851 to the present time; and taxes paid by them all those years, and no dispute about the subject-matter or boundaries of the land; yet the court compelled the defendant and his counsel to ignore the Statute of Limitations, and applied to the parol contract the rigid and exact rules applicable only to contracts of a recent date, and outside of the operation of the Statute of Limitations.

      Stranahan Mehard, for defendants in error.
    The defendant’s proofs do not meet the requirements of the rules laid down in Hart et al. v. Carroll, supra. Applying the principles laid down in the rules in the above case, it is not possible to sustain the defendant’s claim of a parol contract for the purchase of the land in dispute, or for a chancellor to decree specific performance thereof.
   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

If*the evidence offered by the defendant below of the parol sale by William Cooper to his brother Abraham Cooper, of the interest of the former in the land in controversy had been in reference to recent events, it may be the court below would have been right in declaring it insufficient, and directing a verdict for the plaintiffs. But time is an important factor in such transactions. Abraham Cooper and those claiming under him, had been in peaceful possession of the property about twenty-seven years before this suit was commenced. It would be unreasonable, after such a lapse of time, to require the same strictness of proof' in establishing a parol sale as is requisite where the transaction is recent.

Richards v. Elwell, 12 Wright 361, was a case of a parol sale of lands, and the question of the effect of lapse of time upon the proof of the contract was fully considered. It was said, by Agnew, J., “If the rule which requires the proof to bring the parties face to face, and to hear them make the bargain or repeat it, and to state all its terms with precision and satisfaction, is not to be relaxed after the lapse of forty years, when shall it be ? After the lapse of fifty or sixty years it is not probable that any witness can be found above ground to state anything. Shall we wait for that period before we begin to relax ? In the ordinary course of human affairs forty years are almost as likely to carry the proofs beyond the memory of living witnesses. It is contrary to the presumptions raised in all other cases, presumptions which are used to cut off and destroy rights and titles founded upon records, deeds, wills and the mofet solemn rights of men. Based upon a time much shorter than in this case, we have the presumptions of a deed, grant, release, payment, survey, abandonment and the like. . Indeed, all our Statutes of Limitation are founded on this principle, with this difference, that the presumption which was before inconclusive becomes absolute by the statute.” To the same point are Read v. Goodyear, 17 S. & R. 350; Strimpfler v. Roberts, 6 Harris 298; Webb v. Dean, 9 Id. 29; Brock v. Savage, 7 Casey 410, and 10 Wright 83, cited in the above opinion. The same reasoning that was applied to a possession of forty years, may be invoked for a possession of twenty-seven years. It differs only in force. Presumptions of this character are the creatures of time. At first weak and inconclusive, they gather strength with each succeeding year, until at last they acquire a force upon which a title may be safely rested.

The farm for which this action of ejectment was brought at one time belonged to Samuel Cooper. He devised it to his three sons, William, John and Abraham, with a provision “ that their mother have her living off the proceeds of the place as long as she remains in her widowhood.” At that time the farm was of little value, a few acres only of it cleared, and the buildings miserable. It was not in a condition to support the widow in comfort. Such being the state of affairs, William, Abraham and their mother met at the house of James Lee, a neighbor, some time in 1851, to make some arrangement for the mother’s support. James Lee was examined as a witness on behalf of the defendant. I give substantially his account of the interview : “ To the best of my recollection it was in about 1851, I think Abram and William and the mother came to my house for to make a fix about the land — see which one would keep the mother and take the farm. * * Abram wanted William to take the mother, and he objected; he said he had a small family of his own ; he would rather not do it. * * After he objected and they talked a considerable Abram agreed to take-the mother, and take the farm and keep her. * * I told them that they ought to have writings to this effect. They all three just spoke up and said it was not necessary; whatever they agreed upon wmuld be just so. William just stated he could give them a quit-claim deed at any time. Abram agreed to take out timber on the place and help William build his house in Utica.” The witness further said that Abraham took out timber and delivered it in Utica for William ; that shortly after this arrangement Abraham took possession of the farm and held it until he sold it to Irwin, the defendant; that he built a new house, barn and blacksmith’s shop on the farm, and that he supported his mother up to the period of her death. This witness tvas corroborated by Joshua F. Davis, another witness for the defendant, who testified to declarations of William admitting a sale of his interest in the farm to Abraham. We thus have the parties brought face to face; a contract, and a subject-matter .sufficiently described; a possession, evidently under the contract, for a period of twenty-seven years; a sufficient consideration fully paid, and valuable improvements made upon the property. While the terms of the arrangement, and the contract itself are not as clearly defined as could be desired, they are as much so as we have a right to expect from witnesses who are speaking of events of twenty-seven years ago. The outlines are there distinct enough, if some of the filling up has become dimmed with age, the defendant is entitled to the benefit of all the presumptions which lapse of time affords. There was certainly enough to carry the case to the jury, and it was error to withdraw it from their consideration.

The court below required the defendant to elect, whether he would defend under a parol purchase or the Statute of Limitations. By this means, the defendant was deprived of the latter defence. The reason given by the learned judge for this order was: “ To defend under a purely equitable defence, such as a parol purchase is, as a defence inconsistent with a defence under the Statute of Limitations, which is purely legal.” By the new rules in England, inconsistent pleas may be pleaded, if intended bona fide to support different substantial grounds of defence : Chitty 564. The same rule prevails in this state, and is constantly followed in practice. We see no sufficient reason why a party chiming to hold under a parol sale may not set up the statute to protect his title. It might be a great hardship if he could not do so. He may fail to make out his parol title by the death, or the failure of memory on the part of his witnesses. Nor is the statute so inconsistent with an equitable defence as to render it inadmissible. The Statute of Limitations is applied with the same effect in a court of equity as in a court of law: Hamilton v. Hamilton, 6 Harris 21. In relation to lapse of time, equity follows the analogy of the Statute of Limitations: Todd’s Appeal, 12 Harris 429. The remarks of Mr. Justice Strong in Harris v. Richey, 6 P. F. Smith 401, are not in point. There the defendant held possession of the farm, claiming it not adversely, but under a parol contract of sale which he alleged was to be perfected by a deed. Such was not the case here. There was no agreement for a deed. When told by the witness Lee that “they ought to have writings to this’effect,” they all three spoke up and said it wasn’t necessary; whatever they agreed upon, would be just so.” The mere fact, that William stated that he could give them a quit-claim deed at any time, is not important. It was not asked for, and the transaction was completed without it. An adverse holding by Abraham after he went into possession, is not inconsistent with his parol title. It was error for the court to put the defendant to his election.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Trunkey

text:
    Hofius versus Hofius.
    1. No presumption of an intent to die intestate as to any part of his estate is to be made when the words of the testator will carry the whole.
    2. Testator died seised of three farms, of one hundred, one hundred and thirty and forty acres respectively. By his will, after making various specific devises and bequests of real and personal property to his wife, children and grandchildren, including the two largest farms to his sons, subject to a life-estate in his widow, he provided as follows: 11 The residue of my estate, after paying all just debts and the above bequests, it is my will that said residue shall be put out at interest by my executors, with ample security, and the interest thereon paid annually to my said wife, Maria, during her natural life, or so long as she shall remain my widow; and in one year after her death be equally divided betwixt my children, Laura and Julia, the two youngest heirs. And I hereby appoint my said wife Maria and son George executors of this my last will and testament.” Held, reversing the court below, that the forty acre farm was included in said residue.
    November 26th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Mercer county: Of October and November Term 1879, No. 376.
    Case stated for the opinion of the court, where John J. Hofius was plaintiff, and Maria, Laura and Julia Hofius, by their guardian, O. G. Hofius, were defendants. The facts as stated were substantially these: John Hofius died July 17th 1874, leaving a widow, nine children and eight grandchildren, the children of three deceased daughters. He died seised of three farms, one of one hundred acres in Hocking township, one of one hundred and thirty acres in Rymahoning township, and the other of forty acres in Hocking township.
    It was admitted that John Hofius, after making various devises and bequests of real and personal property in his said will, made the following: “The residue of my estate, after paying all just debts and the above bequests, it is my will that said residue shall be put out at interest by my executors, with ample security, and the interest thereon paid annually to my said wife, Maria, during her natural life, or as long as she remains my widow, and in one year after her death be equally divided between my children Laura and Julia, the two youngest heirs.” It was admitted that there was no specific devise or disposition made of the above-mentioned forty acres, unless it was embraced in the last clause of said will recited above.
    It was contended by the plaintiff that John Hofius did not dispose of said forty acres in his will, but died intestate' as to the same. On the other hand, it was contended by the defendants that the testator did dispose of the said forty acres in his said will, and that the same was embraced in the residue of his estate and belongs to the said Maria for life, and to the said Laura and Julia after her death.
    If the court should be of the opinion that said testator died intestate as to the forty acres, then judgment to be entered for the plaintiff. But, if of the opinion that the land was embraced in the will as recited above, then judgment for the defendants.
    The court entered judgment for the plaintiff, and in an opinion, inter alia, said :
    “ It should not be, and never is, presumed that a testator intended to die intestate of any portion of his estate, if a contrary intention can be fairly deduced from the language of his will. Although the testator specifically devises his other two farms, he does not name or allude to these forty acres, unless he intended to embrace them in said residuary clause.
    “We must presume the testator was of at least ordinary intelligence, and if so, he knew the difference between rent and the proceeds of a farm, and the interest which would or might be realized from putting the proceeds of the sale of it on interest, but he does not say it should be sold, or rented, or farmed, or used in any mode or manner. He simply says, ‘ the residue of my estate shall be put out at interest,’ &c. Surely he understood the use of language better than to direct his executors to put a farm out at interest. Had he intended them to sell or rent it, he would have said so; or had he intended his widow, or any of his children, to have had the use of it during her life, nothing was easier than for him to say so. We are forced to conclude either that the testator forgot the forty acres entirely, or intended them to be disposed of under the intestate laws, or that the scrivener omitted to insert in the will his disposition of them, and which omission was unnoticed by the testator when the will was read to him.”
    The defendants took this writ, and alleged that the court erred in entering judgment for the plaintiff.

      Samuel Griffith Son for plaintiffs in error.
    The legal presumption is that a testator does not intend to die intestate: Raudenbach’s Appeal, 6 Norris 51. A presumption of an intent to die intestate as to any part of his estate, will not be made when the words of the testator are sufficient to convey the whole estate: Id. See also Stehman v. Stehman, 1 Watts 466 ; Little’s Appeal, 31 P. F. Smith 190. Estate is a comprehensive word, and conveys whatever the testator has. The residue of a man’s estate means whatever is not specifically devised or bequeathed: Willard’s Appeal, 18 P. F. Smith 327. Under this principle we contend the forty acres were included in this residue. And the fact that the will itself does not make provision for the mode or mariner of carrying out the testator’s intention, or that the executors have to call in the aid of the law to do so, is no argument against the construction we claim, if the testator’s intention is clear from all the will; and unless the whole will, taken together, shows clearly that it was not so intended (see Willard’s Appeal, supra, 332), the presumption is in our favor and the onus probandi on our opponents. They must show from the whole will, taken together, and that clearly, that it was not the intention of the testator.

      Stranahan $ Mehard, for defendant in error.
    No mention is made in the will of the forty acres of land in controversy, and the question is, does the residuary clause in the will dispose of this land? We contend that it did not, and that this piece of land was either overlooked or forgotten by the testator; or that it was to descend to his heirs equally, or in other words, that the testator died intestate as to these forty acres.
    The word “ estate,” as used in this residuary clause, is used in a restricted and not in its general and comprehensive sense, and means the balance of his personal estate after the payment of his just debts and the pecuniary legacies. The law can give it no other meaning.
    Again, this must mean the personal estate, because the executors have no control of any other to put out at interest. The will does not, by express terms, convert this land into personalty, and we contend that it does not by implication. It does not authorize the executors to sell the real estate or in any manner to manage or control it. The heir is not to be disinherited by anything less than a clearly apparent-intention to pass the estate in another line of succession: Cowles v. Cowles, 3 P. F. Smith 175.
   Mr. Justice Trunkey

delivered the opinion of the court, January 5 th 1880.

The learned judge of the Common Pleas truly said, “It should not be, and never is, presumed that a testator intended to die intestate of any portion of his estate, if a contrary intention can be fairly deduced from the language of his will.” And he might have added, “ No presumption of an intent to die intestate, as to any part of the estate, is to be made, when the words of the testator will carry the whole:" Raudenbach’s Appeal, 6 Norris 51; Stewart’s estate, just decided, opinion by Gordon, J. “Estate” signifies the property a person possesses, both real and personal; “ property of all kinds which a person leaves to be divided at his deathand in its more limited sense, especially property in lands. “ The residue ” of an estate, in testamentary language, means whatever is not specifically devised or bequeathed, and it ought to have that meaning, unless the whole will taken together shows clearly it was not so intended: Willard’s Estate, 18 P. F. Smith 327. John Hofius’s will contains this item: “The residue of my estate, after paying all just debts and the above bequests, it is my will' that said residue shall be put out at interest by my executors, with ample security, and the interest thereon paid annually to my said wife, Maria, during her natural life, so long as she shall remain my widow, and in one year after her death, be equally divided between my children, Laura and Julia, the two youngest heirs.” “Bequest” is sometimes, though improperly, used as synonymous with devise. It may be applied to the real or personal estate, according to the intent apparent in the will: Ladd v. Harvey, 21 N. H. 514.

The first object of this will is, provision for the testator’s wife; the last, his wife and two youngest daughters. It contains specific devises or bequests to all his children who were living, and to the heirs of those who were dead. The whole will taken together, so far from showing an intention of the testator to die intestate as .to part of his estate, is a well constructed and plain disposition of all his property. It is devised and bequeathed in direct and positive terms — there is no obscurity. In the residuary clause, the words, in their technical and popular sense, carry all the estate that is left after paying his debts, devises and bequests. This disposition cannot be set aside for want of direction to convert realty into money, nor for inaccuracy of expression as to putting said residue at interest. No obstacle is in the way of carrying out the will. If need be, the land can be converted under the order and direction of the Orphans’ Court. There is no room for interpretation to defeat the passing of the residue of the estate; nor is there occasion to suppose reasons for the omission to direct his executors to sell the land; but if there were, we would rather surmise that the testator made his wife one of the two executors, intending that to avoid difficulty between her and the young daughters about the use of the land.

With reference to a case cited by defendant in error, it may be remarked, it does not apply; for here, subject to the life use of the widow, the estate is given to the testator’s heirs.

Judgment reversed, and now, on the case stated, judgment for defendants below.


text:
    Stella C. Moore's Appeal.
    1. Where fractional parts of the same judgment debt are successively assigned to different persons, and the proceeds of the sale of the property bound by the judgment are insufficient to pay them all, they takeywo raía, and not in the order of their assignment.
    2. After the plaintiff in a judgment had assigned certain portions thereof to different persons he assigned the residue to the appellant, in these words, “ February 9th 1878, for a valuable consideration I hereby assign the balance of this judgment unassigned to Stella C. Moore, being the amount due and unpaid after the above and foregoing assignments.” The court below construed this language to mean that the sums previously assigned should be fully paid before the appellant was entitled to any of the proceeds. Held, that this was error: that the plain import of the language was to assign all that part of the judgment not previously assigned, and that the appellant was entitled to share pro rata in the distribution.
    3. Donley v. Hays, 17 S. & K. 400; Perry’s Appeal, 10 Harris 43; Hancock's Appeal, 10 Casey 155, followed.
    November 26th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Mercer county: Of October and November Term 1879, No. 297.
    Appeal of Stella C. Moore from the decree of the court in the distribution of the proceeds of the sheriff’s sale of the real estate of James D. Moore.
    At No. 32 of August Term 1878, in the Common Pleas of Mercer county, a writ of fieri facias was issued against James D. Moore upon a judgment in said court in favor of James D. Moore, Jr., and James A. Stranahan, for the use of M. A. Mehard and against said James D. Moore, upon which the real estate of the defendant was sold by the sheriff on the 8th of August 1878, for the sum of $4970, and an auditor was appointed to make distribution of this fund. After the payment of costs the balance of the fund for distribution was $4861.25. The first lien upon the fund was a judgment in favor of Oliver Alexander for the sum of $375.19. The remainder of the fund was shared pro rata by the following three judgments, viz. : judgment in favor of Johnson Pearson and J. D. Moore, Jr., use of First National Bank of Mercer, at No. 849 Januai-y Term 1876, which took $945.44; judgment in favor of J. D. Moore, Jr., and James A. Stranahan, at No. 864 January Term 1876, which took-$802.50, and judgment in favor of J. Dun Moore, Jr., at No. 848 January Term 1876, which took $2735.62, applied to debt and interest, and $2.50 applied to costs, in all $2738.12, and which exhausted the fund.
    The last-mentioned judgment, in favor of J. Dun Moore, Jr., which took $2735.62 of the fund, amounted to $7641.73, and was by the plaintiff, at different times prior to the sheriff’s sale assigned in fractional parts to various persons, and the question of this appeal was as to the rights of Stella C. Moore, one of the assignees and the appellant. These assignments were as follows :
    April 7th 1876, To Noah Shipler . . . . $ 800.00.
    “ Elmira Roberts . . . 239.35 a a
    “ Charlotte Lees .... 160.00 a a
    “ Mrs. Thomas Walker . . 754.40 a a
    “ Thomas Walker .... 318.00 a u

    “ Misses E. &. E. Alexander . 220.00 u u

    Richard Amon .... 106.96 a a a

    Margaret Amberson . . . 74.00 a a u

    J. G. Perry . . . .175.00 u « cc

    J. F. Wheeler .... 74.00 u u u

    Minor children of B. S. Sill, dec'd 203.00 u íí u

    Farmers’ and Mechanics’ National Bank of Mercer. . . . 1000.00 a u u
    “ O. L. Munger, cashier . . 748.37 April 8th 1876,
    “ Charles Lees ..... 110.00
    R. R. Miles . 28.00 April 12th 1876,
    21.00 Jan. 18th 1877, First National Bank, Mercer
    On the 12th of April 1877, at No. 53 April Term 1877, a writ of execution-attachment was issued at the suit of Thompson, Fry & Co., use of T. A. Courtney v. J. D. Moore, Jr., et al., defendants, and James D. Moore, garnishee, upon which judgment was obtained for the sum of $279.78.
    On the 9th of February 1878, the plaintiff assigned the balance of the judgment at No. 848 January Term 1876, to the appellant, Stella C. Moore, which balance amounted to $1829.24, at that time, and which balance, deducting the amount for which judgment was afterward obtained upon the execution-attachment mentioned ($279.78) amounted to $1549.46. The assignment to Stella O. Moore was in these words: “February 9th' 1878, for a valuable consideration, I hereby assign the bal. of this judgment unassigned to Stella C. Moore, being the amount due and unpaid after the above foregoing assignments.
    J. D. Moore, Jr. [seal.]”
    The auditor found as a fact upon the testimony, that all the words in said assignment following the words “ Stella C. Moore ” were added by a clerical error of the prothonotary’s clerk, and were carelessly overlooked by the parties at the time.
    The auditor also found as a fact that at the time said last-mentioned assignment was made, the said Stella C. Moore had knowledge of the prior assignments by the plaintiff as herein above stated.
    The auditor appropriated to the assignment of Stella C. Moore $765.86, its pro rata share of the money applicable to the judgment. Exceptions to the report were filed by the appellees.
    Upon argument, the court below overruled the auditor; held that Stella C. Moore took no part of the fund until all previous assignments were paid in full and decreed distribution accordingly, in an opinion, inter alia, saying :
    “The relative rights of lien-creditors are determined by the record as it was when the sale was made. They are, in law, presumed to have bidden, or refrained from bidding, on the faith of its then absolute verity. To hold that a lien-creditor can be raised by parol evidence after the sale of real estate, would render every known record lien-creditor insecure. Secret liens, like secret trusts, are abhorred by the law.
    “ Mrs. Moore’s assignment, as shown by the record, was subject to the payment in full of all prior assignments of the judgment. That the prior assignees had any knowledge of the alleged clerical mistake of the scrivener in adding the following twelve words to her assignment, to wit: ‘ Being the amount due and unpaid after the above and foregoing assignments,’ is not claimed by her, her attorneys or witnesses.
    “ The auditor ruled in her favor, not on what the record showed her assignment to be, but on what the parties intended it to be. As between her and her husband, his ruling was right, but as between her and the former assignees of her husband, it was wrong. With this view of the law, it is unnecessary to review the question as to whether the alleged clerical error was committed by the scrivener or not.
    “ Much as we regret it, we are compelled to decide that Mrs. Moore’s assignment must be postponed until all the former ones and the Courtney attachment have been paid in full.”
    From this decree this appeal was taken.

      Edwin W. Jackson, for appellant.
    The judgment of this court in the case of Donley v. Hays, 17 S. & R. 400, rules that where fractional parts of the same mortgage-debt are successfully assigned to different persons if the proceeds of the mortgaged property be insufficient to satisfy them all, they take pro rata, and not in the order of the assignments. This ruling has been expressly reaffirmed in Perry’s Appeal, 10 Harris 45; Hancock’s Appeal, 10 Casey 156, and other cases, and is unalterably established as the law. By these authorities, it is decided that the assignments made by J. D. Moore, Jr., to the appellees, on the 7th of April 1876, vested in each of them a certain fractional part of the judgment in question, and the right to receive a like part of the money distributed to it. It must be conceded that until the 9th of February 1878, the title to that part of the judgment now claimed by the appellant remained in the plaintiff, J. D. Moore, Jr., and had no assignment to the appellant been executed, the money now claimed by her would have belonged to him — it could never have gone to the appellees. We cannot conceive how the assignment to the appellant can be construed an assignment to the appellees; how the law can write their names where hers now stands.

      Johnson Pearson and S. H. Miller, for appellees.
    We think that neither the case of Donley v. Hays, supra, nor any of the series of cases following it, rules the present one. In those cases the assignees took what was assigned to them. For instance, in Donley v. Hays, each assignee took that part of the money raised on the mortgage which answered to the bond which he held. No more being assigned to him he could take no more; and the assignment, in equity, of the one part of the mortgage through the assignment of one of the bonds, could not operate as an assignment of another part of the mortgage answering to another of the bonds. In the same way, in Perry’s Appeal, the assignment of one of the several mortgages could not operate as an assignment of any other of the four mortgages, nor interfere with it in the distribution of the money made by the sale of the land which was held equally by all. And so of all the series of cases following Donley v. Plays. In all of them the portions assigned were separated and distinguished from one another, either by operation of law or the acts of the parties, and consequently partook of the fund as if they had been claims of entirely different parties.
    In the present case the circumstances are essentially different. James D. Moore, Jr., held a judgment against his father, James D. Moore, Sr., for one entire sum of money. Different portions of this he assigned to different persons on the 7th day of April 1876, among others $1000 to the Bank of Mercer. By this assignment, which was filed of record on the day of its date, the bank became equitably entitled, by the act of the assignor, to receive that sum out of the moneys which should be made on the judgment. Mrs. Moore had actual notice of this assignment, and consequently of the equity existing in the bank. The assignment to her was made a year and a half after that to the appellees. It is submitted that she could not come in at that late date, and by collusion with her husband, divest the equitable rights granted to the former assignees.
   Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

This is a case of distribution. The fund was raised by a sheriff’s. sale of real estate. The contention is between persons who by assignments hold a part of the same judgment. The portion held by the appellant is the part that was transferred last by the plain tiff in the judgment.

It was held in Donley v. Hays, 17 S. & R. 400, that when fractional parts of the same mortgage-debt were successively assigned to different persons and the proceeds of the mortgaged property were insufficient to pay them all, they take pro rata, and not in the order of their assignments. The authority of that case was recognised and affirmed in Perry’s Appeal, 10 Harris 43, and again in Hancock’s Appeal, 10 Casey 155. We see no reason for applying a different rule in ease of the assignment of different parts of the same judgment. Every equitable principle in regard to the application of the fund applies with equal force, whether the lien divested be a judgment or a mortgage.

If we understand the opinion of the court below the case was ruled on the language of the assignment made to the appellant. After the plaintiff m the judgment had assigned certain portions thereof to different persons, he assigned the residue to the appellant by the following assignment: “February 9th 1878; for a valuable consideration, I hereby assign the balance of this judgment unassigned, to Stella C. Moore, being the amount due and unpaid after the above and foregoing assignments.” The court construed this language to mean that the sums previously assigned should be fully paid, before’ the appellant was entitled to any of the proceeds. This we think was error. We discover nothing in the letter or in the spirit of the assignment reasonably leading to that conclusion. Describing the part assigned as “being the amount due and unpaid after the above and foregoing assignments” conveys no idea that the sums previously assigned shall first be paid. Its plain import is to assign all that part of the judgment not previously assigned. The reference to previous assignments is not to give them any preference in lien or payment, but merely for the purpose of declaring that the assignor transfers to the appellant all his remaining property in the judgment. The auditor found substantially as a fact, from parol evidence, that such was the intention of the parties to the assignment. We do not, however, think the case needs the aid of parol testimony to give the appellant a right to share, pro rata, with the persons who hold the parts previously assigned. The learned judge therefore erred in decreeing otherwise.

Decree reversed, and distribution directed to be made conformably with this opinion.


text:
    Allison versus Johnson et al.
    1. The notice required by the Act of April 9th 1872, Pamph. L. 47, which gives a lien for all moneys, not exceeding $200, due for labor and service rendered by any miner, mechanic, laborer or1 clerk, from any person engaged in any of the described kinds of business, upon “ the property in and about or used in carrying on the said business or in connection therewith,” should set forth such facts as make a case within the act, so that the officer and interested persons may know that the labor was done within the time limited by the act, in a business defined therein, the sum due, and that the property subject to the lien is embraced in the levy made.
    2. A notice given to a constable, after the sale of the goods, but while the proceeds was still in his hands, was too late.
    November 26th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent. •
    Error to the Court of Common Pleas, of Crawford county: Of October and November Term 1879, No. 381.
    Case stated as follows: Hamilton Stewart et al. obtained a judgment against Robert McKnight before a justice of the peace, for $288 and costs, and execution was issued ther'eon, and the said McKnight’s goods were seized and levied upon by W. T. Allison, the constable, under said execution. McKnight was a merchant tailor doing business in Titusville, Pennsylvania. The stock levied upon and sold, consisted of cloths, out of which suits and garments were made to order, trimmings, buttons, thread, &c., and a sewing-machine, mirror, stove and all the furniture and fixtures, on and within the premises occupied by said McKnight, as set forth in the levy, except household goods, piano, &c., which were not on the premises. All the other articles mentioned in the levy, were upon the premises occupied by said McKnight in carrying on his business as a merchant tailor.
    The plaintiffs, together with three others, were in the employ of McKnight, engaged in sewing and making up suits and garments for customers, and worked in a rear room of the same premises.
    There were no garments or any other articles sold on which the plaintiffs had bestowed any labor.
    The sale took place on Thursday, August 28th 1879, and the proceeds thereof, after deducting rent, -which was undisputed, and costs, were about $100. .
    Before the sale took place the plaintiffs handed in to the constable their various Claims, as the same appear in the notices hereto attached (also one further notice served on the constable after the sale, hereto attached) and which in the aggregate amounted to $59.75.
    The defendant, who was the constable, refused to pay the amount of said claims, either to the' plaintiff’s claimants, or to plaintiffs, in the execution, but holds the same for the use of the party in favor of whom this issué may determine.
    Plaintiffs aver that they are within the provisions of the Act of Assembly of April 9th 1872, Pamph. L. 47,.giving preference to claims for wages, which averment is denied by the plaintiffs in the execution upon which the goods of said McKnight were sold.
    If the court be of the opinion that the said plaintiffs as claimants, by reason of said notices and the facts above set forth, are entitled to the sum of $59.75, out of the fund proceeding from said sale as against the plaintiffs in the said execution, then judgment to be entered for the plaintiffs for said sum, together with costs of bill, if not, then judgment for defendants with like costs.
    The following was the notice given at the sale:
    To W. T. Allison, Constable,
    In the matter of the sale of the goods and chattels of R. McKnight, by virtue of an execution to you directed, you are hereby notified that I have a claim for labor against said McKnight to the amount twenty (20) dollars, and that I shall claim the same out of the proceeds of the sale. • Nils. Johnson.
    Titu'sville, Pa., Aug. 28th 1879.
    Like notices were given to the constable by Albert Staub, E. Dowding, Alfred Johnson and John Cederquist.
    After sale the following notice was given:
    To W. T. Allison, Constable,
    Sir: — The claims of Albert Staub, Alfred Johnson, John Oederquist, Nils. Johnson and E. Dowding, against R. McKnight, notice of which was served on you before the sale of said McKnight’s goods and chattels, at the suit of Stewart et al., are claims for labor done for McKnight by said claimants, as journeymen tailors, within six months previous to said sale, and they, the said claimants, demand the amount of their wages under the Act of Assembly of April 9th 1872. S. L. G-ilson,
    Attorney for A. Staub et al., Claimants.
    The court entered judgment for the plaintiffs, which action was assigned for error by the constable who took this writ.

      Neill Heywang, for plaintiff in error.
    The notices served on the constable, were clearly not sufficient- under the Act of 1872, and he would have made himself liable to the plaintiffs had he paid the money to these claimants. Some of these notices do not even state for whom the labor was done, or by whom the debt was owing. None of them state when the work was done, or the nature and character of the labor: Peiffer’s Estate, 6 Luz. Law Reg. 101; McMillen v. First National Bank of Corry, 1 W. N. C. 55. The notice after the sale was too late to give a lien.

      S. L. Grilson and J. W. McCloshey, for defendants in error.—
    The notices to the constable are sufficient. They call the attention of the officer to the fact that plaintiffs had claims against McKnight for labor, and that they would claim payment out of the fund. The notices are very different from that in McMillen v. Bank, supra, which was a mere memorandum of the names of the claimants and the amount due each, not signed by any person, and did not set out that the amount mentioned was due for labor, or that it was a claim against the defendant in the execution, all of which facts are set out in the notices in this case.
    Even if the first notices were incomplete, the defects are fully cured by the supplemental notice served on the constable, while the money was still in his hands.
   Mr. Justice Trunkey

delivered the opinion of the court, January 5th 1880.

The Act of April 9th 1872, Pamph. L. 47, gives a lien for all moneys, not exceeding $200, due for labor and services rendered by any miner, mechanic, laborer or clerk, from any person engaged in any of the described kinds of business, upon “ the property in and about, or used in carrying on the said business, or in connection therewith,” where the labor was done within a period not exceeding six months immediately preceding the sale of said property. Notice is required to be in writing, and given to the officer before the actual sale on judicial process; and, when he shall have been so notified, he shall pay to the claimant the amount he is justly and legally entitled to receive, not exceeding $200. Notice, therefore, should set forth such facts as make a case within the act, so that the officer and interested persons may know that the labor was done within the time limited, in a business defined in the act, the sum due, and that the property subject to the lien is embraced in the levy: McMillen v. First National Bank of Corry, 1 W. N. C. 55. It is immaterial in what form these things are sot out, but it is essential that they appear.

The notice given to the constable after the sale, was too late. Those given before, contain no indication of the business of R. McKnight, or that the goods and chattels seized by virtue of the execution were “pi’operty in and about, or used in carrying on the said business, or in connection therewith,” or the kind of labor and when done. Nearly every essential was omitted, except the sum claimed to be due and owing from the debtor.

Whether the business of R. McKnight was wdthin the act, is a question not reached, because of the defective notices of claims.

Judgment reversed, and now, on the case stated, judgment for defendant below.