author: Mr. Justice Mercur

text:
    Dale, Trustee versus Knepp.
    An agreement to subscribe for the erection of a church edifice is a work of charity within the meaning of the Act of April 33d 1794 (8 Sm. L. 177), and may therefore be enforced though made on Sunday.
    June 15th 1881. Before Siiarswood, C. J., Merour, Gor* don, Paxson, Trunkey, Sterrett and Green, J J.

      Error to the Court of Common Pleas of Clearfield county: Of May Term 1881, No. 178.
    Debt, by Edmund Dale, trustee of Dale Church, against Benjamin Knepp, to recover $50, the amount of a subscription made by the defendant on Sunday towards the erection of the church building. Judgment was obtained before an alderman, and after appeal to the Common Pleas, the case was referred to arbitrators, who found for the plaintiff, from whose award an appeal was taken. Plea, nil debet.
    On the trial, before Óevis, A. L. J., the plaintiff’s testimony showed the following facts: At one of the regular services at Dale Church, held on Sunday, November 23d 1873, subscriptions were solicited to pay for the church building, then in process of completion. Among others, Knepp, the defendant, subscribed $50. IJis name and amount were announced publicly and taken down by the clerk. The testimony showed that about two months or more prior to this time, while engaged in hauling lumber for the church, he had agreed with Dale, the trustee, that he would subscribe, but did not fix the amount. Also, he was called upon twice within a year after making the subscription and asked to pay the same. His reply the first time was that he was unable to pay so much, and could not afford to pay over half that amount. The second time he said he would be along in a few days and fix it. This claim, with others, was afterwards put in the hands of a justice for collection, when for the first time he disputed it, and denied that he had ever agreed to pay any sum.
    At the close of the plaintiff’s testimony, the defendant moved for a compulsory nonsuit, on the ground that the contract, having been made on Sunday, although for religious purposes, was invalid. The court granted the non suit and subsequently refused a motion to take it off. The defendant took this writ of error, assigning for error this action of the court.

      Murray (Cordon with him), for the plaintiff in error.
    If this contract is void, it must be so by the Act of April 22d 1794, prohibiting worldly employments on Sunday except works of necessity and charity, for at common law it was not void : Shuman v. Shuman, 3 Casey 90, 94. The subscription in this case was a work of charity within the exception to the act. The test is not merely the nature of the contract, but the circumstances under which it was made and the purpose in view : Commonwealth u. Nesbit, 10 Casey 403,; Johnston v. Commonwealth, 10 Harris 111. Gifts for the promotion of religion, in whatever terms expressed, are charities, or, as defined by Mr. Binney in Tidal v. Girard’s Executors, 2 Howard 128, and approved by this court in Price v. Maxwell, 4 Casey 35, a charity is “ whatever is given for the love of God, or for thé love of your neighbor, in the catholic and universal sense — given from these motives ánd to these ends — free from the stain or taint of every consideration that is personal, private or selfish.” See also Howse v. Chapman, 4 Vesey 542; Attorney-General v. Heelis, 2 Sim. & Stu. 67; Going v. Emery, 16 Pick 107. The precise question here raised has been recently expressly decided in the Supreme Court of Michigan, in which state the statute is quite as broad as our own, prohibiting under a penalty “ any manner of labor, business or work, except only works of necessity and charity Allan v. Puffy, 9 Reporter, 646 (1880).

      SmithV. Wilson, for the defendant in error.
    The soliciting and receiving of subscriptions for church purposes on Sunday is a part of the secular worldly business of the church, which, we contend, is neither an act of necessity nor charity within the meaning of the Act of 1794. "While it is common at Sunday services to take up collections, which are executed gifts, the custom of taking subscriptions on Sunday is almost entirely confined to the Methodist Episcopal Church. The Presbyterian, Lutheran, Protestant Episcopal aud Moravian Churches appoint business days to attend to financial matters connected "with the welfare of the church, such as receiving pew rents aud subscriptions, paying salaries, Ac. There is no distinction _ between a subscription and such other financial matters. The making of a promissory note or other executory contract on Sunday is void, and the mere fact that its object was connected with the temporal- matters of the church cannot make it valid: Kepner v. Keefer, 6 Watts 231; Haydock v. Tracy, 3 W. & S. 507; Fox v. Mensch, Ibid. 444. Allan v. Duffy, cited on the other side, was decided under the Michigan statute and is not authority here. A different rule has been adopted in other states : Reynolds v. Stevenson, 4 Ind. 619; Finn v. Donahue, 35 Conn. 216; Pate v. Wright, 30 Ind. 476.
    October 3d 1881.
   Mr. Justice Mercur

delivered the opinion of the court

This contention i§, whether a subscription made on Sunday toward the erection of a church edifice is void ?

A contract made on Sunday is not void at common law: Kepner v. Keefer, 6 Watts 231; Fox v. Mensch, 3 W. & S. 446; Shuman v. Shuman, 3 Casey 90. If then this contract is void it is by reason of the act of 22d April 1794. That Act declares “if any person shall do or perform any worldly employment or business whatsoever on .the Lord’s day commoniy called Sunday, works of necessity and charity only excepted,” and such other exceptions as are mentioned in the proviso, every person so offending shall be subject to a penalty as in the Act prescribed.

It may be conceded that the making of this subscription is not a work necessarily done on Sunday. The question then is whether the raising of money to build a house of worship, is a work of charity within the meaning of the Act, oris the solicitation of contributions for that purpose, from a congregation assembled on Sunday for religious worship, a work of charity ?

No man can legally be compelled to contribute towards the erection of a house for public worship, nor to attend or support religious services therein. The statute imposes no such obligation. It however does recognize Sunday as the proper day for the exercise of public worship. It leaves every one free to use the day for that purpose or refrain from such use. It is designed to compel a cessation of all those employments which will interfere with, or interrupt the exercise of religious services, either public or private, on that day. The right to so worship is protected by its penal enactments. Each person has an indefeasible right to worship Almighty God according to the dictates of his own conscience. Each is at liberty to use Sunday for the purpose contemplated by the statute. If he refrains therefrom, he shall not so use the day as to annoy others who may be engaged in religious worship: Johnston v. Commonwealth, 10 Harris 102. The purpose of the law is to protect the day for the comfort of those conducting or attending religious worship. Charity is active goodness. The means which long .established and common usage of religious congregations show to be reasonably necessary to advance the cause of religion are not forbidden, and may be deemed works of charity within the meaning of the statute. It is not essential that they be purely charitable; it is sufficient if they so far partake of that character as to be recognized by the congregation as part of its active goodness, and are not expressly forbidden by the statute: Commonwealth v. Nesbit, 10 Casey 398.

The inclination of this court lias long been not to permit a person to set up this law against another person from whom he has received a meritorious consideration, or on whom he has inflicted an injury. It was therefore said in Mohney v. Cook, 2 Casey 342, that the law relating to the observance of the Sabbath defines a duty of the citizen to the state and to the state only. It was therefore held that one'who had erected an obstruction in a navigable stream, whereby the boat and cargo of another were wrecked on Sunday, could not, in an action for such injury, set up as a defence, that the plaintiff was unlaw-, fully engaged in navigating his boat on that day. So it was held the hire of a carriage on a Sunday by a son to visit his father created a legal contract, although no reason was shown for visiting him on that day other than flows from a general filial duty and affection : Logan v. Mathews, 6 Barr 417. It is not a violation of the Act for a hired domestic servant to drive his employer’s family to church on Sunday in the employer’s private carriage: Commonwealth v. Nesbit, supra. A will executed on Sunday is not void, although, at the time, the testator be in his usual state of good health and live five or six months thereafter: Beitemnan’s Appeal, 5 P. F. Smith 183.

■ Contracts for services on Sunday of the preacher, the sexton, the organist, and the singers, are not illegal, although these persons may engage in such employments as a means of livelihood. Their services are in furtherance of the same great charity.

The custom of soliciting contributions on Sunday, from congregations assembled for religious worship is very general, and has existed from an early period of time. With some denominations it may be for a greater variety of objects than with others. Sabbath offerings may be for the incidental expenses of the church ; to light and warm the house ; to pay the organist and the sexton; to assist the poor; to repair, enlarge, and rebuild the church edifice; to support foreign and domestic missions. The latter often extends to furnishing aid to poorer congregations towards erecting houses of worship.’ If it be illegal to give or to agree to give for such objects on Sunday, it must be illegal to solicit the giving. We are not aware it has ever been held that the preacher became liable to the penal provisions of the statute by soliciting from the pulpit such contributions, nor any of the officers of the church for taking up the collection. Whether the sum be large or small does not change the principle applicable to the transactions. It is true there is a legal distinction between having given, and agreeing to give; yet inasmuch as we think a subscription towards the erection of a house of public worship is a work of charity, such agreement is not prohibited by the Act of April 22d 1794. ■

The conclusion at which we have arrived is not in accord with the doctrine assumed in Catlett v. Trustees, &c., 62 Ind. 365 ; but in principle it is in harmony with the rule declared in Flagg v. Millburg, 4 Cush. 243 ; Bennett v. Brooks, 9 Allen 118; Doyle v. Railroad Co., 118 Mass. 195, and directly sustained in Allen v. Duffy, decided last year by the Supreme Court of Michigan, reported in 9 Reporter 646.

The support of religious societies is a charity. It is a giving for the love of Glod or the love of a neighbor in a broad catholic sense. Whatever is morally fit and proper to be done on Sunday, in furtherance of the great object, is likewise a charity.. The learned judge therefore erred in ordering a nonsuit and in refusing to take it off.

Judgment reversed and a procedendo awarded.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Philips versus Commonwealth ex rel. James.
    1. The Act of June 14th, 1836. § 3, Pamph. Laws 631, confers no jurisdiction upon the courts of common pleas of this Commonwealth to issue writs of quo warranto to persons holding positions in private corporations, except in questions concerning the exercise of strictly corporate offices. No authority is given to issue the writ against a mere servant, employé or agent of such corporations.
    2. By the Act incorporating the University at Lewisburg, approved February 5th 1846, Pamph. Laws 82,it was provided, that the trustees named therein, and their successors, should constitute a body politic, that they should have power to transact all the business of the university, to elect a chairman, secretary, and other officers to manage its affairs, to enact proper ordinances for its government, to appoint the necessary professors and other instructors, and to remove them, or any of them, on sufficient cause being shown. The powers and duties of the professors thus appointed, were, by the terms of the said act, defined, and they were empowered, inter alia, to grant diplomas upon certain specified terms. Reid, that a professorship in said university was not a corporate office in a private corporation within the meaning of the act of June 14th 1836, § 2, Pamph. Laws 621, and that therefore a writ of quo warranto could not be issued under the provisions of the said Act to any person to show cause why he acted in the capacity of professor in said university.
    June 16th 1881. Before Si-iarswood, C. J., Merour, Gordon, Paxson, Teunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Union county: Of May Term 1881, No. 174.
    Quo Warranto, by the Commonwealth of Pennsylvania, at the relation of Charles S. James, directed to George Morris Philips, requiring him to show by what authority he exercises the office of professor of mathematics and natural philosophy in the Univeraity at Lewisburg, Pa.
    Upon answer and replication filed, issue was joined, and the case was tried before Buoi-ier, P'. J., and a jury, when the-following facts appeared:
    The University at Lewisburg was incorporated by Act of Assembly approved February 5th 1846 (Pamph. L. 32), which provides, inter alia, as follows :
    Article II, Section I. The said university shall be under the management, direction, government, and supervision of a number of trustees, not exceeding twenty, and a number of curators, not exceeding forty, or a quorum of each as hereinafter mentioned.
    Section 2.....Five or more of the trustees shall be a quorum of the trustees, and seven or more of the curators shall constitute a quorum of the curators.
    Article III, Section 1. The trustees of said university shall consist of the following persons, (naming them) which said trustees and their successors .... are hereby created, established, and declared to be a body politic and corporate, . . . . by the name, style and title of “ The Trustees of the University at Lewisburg.” ....
    Section 4.....If a quorum of said trustees meet at the appointed time, or at any time of adjournment, then the majority of the votes of such quorum or board shall be capable of doing and transacting all the business and concerns of said university not otherwise provided for by this act, and particularly of making and enacting ordinances and by-laws for the government and instruction of said university; .... of electing and appointing the president, professors, tutors, and others' teachers of said university; of agreeing with them for their salaries and stipends; of removing them for misconduct, breaches of the ordinances of the institution, or other sufficient cause.
    Article IV, Section 1. The president, professors, tutors, and other teachers, or a majority of them, shall constitute the faculty of the university, and in their respective departments shall have the power of enforcing the rules and regulations adopted by the trustees for the government and instruction of the students ; and the president and professors, with the counsel and consent of a quorum of curators, shall have the power to grant and confirm unto the students of the University, or unto others deemed worthy, such degrees in the liberal arts and sciences or in certain branches thereof, as have been usually granted in other universities; to grant likewise, to said graduates, diplomas under the common seal of the corporation, in order to authenticate and perpetute the memory of such graduation ; and to grant, also, certificates to such students as have duly completed the course of studies prescribed in any subordinate department of the University.
    The by laws of the corporation provide, inter alia, as follows: n. the eaculty.
    2. No member of the faculty, without the consent of the trustees, shall engage in any occupation that interferes with the punctual discharge of his official duties.

      III. THE PRESIDENT.
    7. It shall be his duty to report to the trustees the deficiencies, incompetency, mal-administration or unofficer like conduct of any instructor, when in his judgment the case requires it.
    Charles S. Ja2nes, the relator, was appointed by the trustees professor of mathematics and natural philosophy, about August 19th 1851, and continued to occupy the chair, his salary being annually regulated by the trustees, until June 26th 1877, when the president of the faculty, in a written communication to the trustees, specifically charged him with negligence and inattention in the performance of his duties, and factious opposition toward him, the president, and with giving his time to other business outside the university. Professor James requested to be permitted to present a written answer. After voting to hear the matter upon written testimony only, the board adjourned to meet July 24th, for the consideration of the case. Professor James had notice of the meeting, and presented a written defense, letters, &c., which were heard by the trustees, who thereupon requested his resignation. Professor James refused to resign. No other proceedings were afterwards had, except that the board met again on September 3d 1877, and discharged him from their employment by the following resolution:
    “ Resolved, That the connection of Professor C. S. James with the faculty of the university, in the capacity of professor of mathematics and natural philosophy, be and the same, is hereby determined, for the causes set forth by the president of the university in his special report to the board, submitted on the 26th day of June, A. D. 1877; and that a committee of three members of the board be appointed to inform Professor James of this action, and to likewise inform him that the board of trustees no longer desire his services in that capacity.”
    George Morris Philips, the respondent, was afterwards chosen to, and has since filled, the chair of professor of mathematics, &c.
    Professor James afterwards filed the information on which this writ of quo warranto was issued. The respondent moved the court to quash the writ on the ground, inter alia, that the position of professor in the university was not a corporate office such as to entitle the relator to a writ of quo warranto, and the court therefore had no jurisdiction to issue the same.
    The court in the general charge said, inter; alia :
    “ The issue to be determined by the jury then is whether the plaintiff was legally removed from theprofessorship in this university and the defendant elected to fill, the vacancy. This issue has not been framed with technical accuracy; but this ■ statement of it involves the question for adjudicationhere. The first material inquiry that presents itself is, What is the status of a professor in this university ? This properly involves a question of law for the court, with which the jury have nothing whatever to do. We will first determine as a matter of law the status of a professor in this university, because we have been invited to do so by the motion of the defendant to quash the writ for want of jurisdiction in the court to award it. The learned counsel for the defendant concede that if a professorship in this university be an office, the incumbent could not be removed at the pleasure of the trustees ; but it is denied that a professor in this corporation holds an office. It is insisted with vehemence that he is a mere employé removable at the pleasure of the trustees. ...
    . . . “We gather, then, from the plain language of the charter of this corporation that the trustees and curators are officers of this corporation ; that the trustees choose the professors, and that they, when chosen, are officers of the corporation as well as the trustees and curators; and that as such officers they are intrusted with the dut_y, in conjunction with the curators, in conferring degrees, and granting diplomas. That the granting of these degrees is the exercise of a corporate franchise cannot be doubted. [Even if the authority to confer degrees existed independently of the franchise, it is clear that the charter grants this power. The power being granted by the charter, it is exercised under the sovereign power of the Commonwealth ; and it follows that those who undertake to exercise this power are the officers, and not the employés of the corporation ; we have seen that the professors, being chosen by the trustees under the charter, exercise this power independently of them, and are in no way amenable to them, nor subject to their control.] Indeed, the prime object in creating the University was to afford the youth of the land the benefits and advantages of a polite and refined education, and to enable those who had qualified themselves, in the judgment of the faculty and curators, to receive the degrees usually conferred by such institutions. It is no answer to all this to say, that the trustees are the corporation and the only officers of the same. . . . It is true, the duty of selecting the professors is imposed upon the trustees; but when this duty is discharged and the professors are chosen they become the real motive power of the corporation, and they alone can fulfill the very, and we may say the sole, purpose of its creation. . .■ . .
    “ [We are constrained to hold that a professor in this institution is more than a mere employé', and that, having been chosen by the trustees, he cannot be removed by them ad Ubi

      turn, as could a mere janitor, coal-heaver or other employé; but that the amotion or removal must be for cause shown.] . . .
    . . . “ [Upon all the evidence we instruct you to hnd for the plaintiff.] ”
    V erd ict, accordingly, for the plaintiff. The court, thereupon, entered judgment ousting the respondent from the said office of professor.
    The respondent took this writ of error, assigning for error the refusal of the court to quash the writ, and the portions of the charge inclosed within brackets.

      J. W. Simonton (with him Charles 8. WolfewA George H. Irwi/n), for the defendant in error.
    The jurisdiction invoked is that conferred on the Common Pleas by act of June 14th 1836, section 2 (Pamph, L. ), to issue writs of quo warranto “in case any question shall arise concerning the exercise of any office in 'any corporation created by authority of law, and having the chief place of business within the respective county.” It is settled that in England, and here, under the statute, the writ will lie only when the- question is in reference to a technical corporate office, and will not be granted against a mere servant, agent or employe of a corporation: High’s Ex. Leg. Rem. § 653 ; Commonwealth v. Murray, 11 S. & R. 73 ; Gunton v. Ingle, 4 Cranch C. C. Rep. 438; The King v. Corporation, 6 East 356 ; People v. Hills, 1 Lansing 202; States. Champlin, 2 Bailey 220; Commonwealth v. Dearborn, 15 Mass. 125.
    The position of professor in this university is not such a corjoorate office. The charter declares that the trustees and their successors (alone) “shall be forever hereafter, and they are hereby created, established and declared to be a body politic and corporate, with perpetual succession, by the name, style and title of ‘The Trustees of the University at Lewisburg,’ ” &c. The trustees shall elect or appoint and remove the professors and agree with them for their salaries or stipends. Their discretion is ample to create, modify or abolish any branch of study, and the creation by them of a professorship does not endow it with a iixed term of existence or give any holder of it a tenure as of a corporate office; the charter does not name or require the creation of any particular professorship, or fix any term, for the holding of such position; its only recognition of the professors is of them as a body, for the time being, who are to act, in conjunction with others, in conferring degrees; they are not named, as individuals, nor is any corporate franchise conferred on them and their successors.
    The question what is a corporate office has frequently been judicially determined, and the following authorities support our contention that tlie professorship in this case is not one : Hoke v. Henderson, 25 American Decisions 677 ; Commonwealth v Murray, 11 S. & R. 73 ; Commonwealth v. Cuyler and Agnew, 5 W & S. 275; Field v. Girard College, 4 P. F. Smith 233 ; State v. Kupferle, 44 Missouri 154; People v. Hills, 1 Lansing 202; State v. Champlin, 2 Bailey 220; Commonwealth v. Dearborn, 15 Mass. 125; Queen v. Mousley, 55 Eng. C. L. Rep. 945 ; Commonwealth v. Christian, 9 Phila. Rep. 556. In the last cited case Paxson, J., said: “ An officer of a corporation has certain rights which are incident to his position, and which are not enjoyed by a mere employé. His duties, the mode of his election and his term of office, are defined by the fundamental law of the corporation itself.”
    But this court has already determined that this very professorship in controversy is not a corporate office. In Union County v. James, 9 Harris 525, in which the present relator was defendant, the question for decision was whether Professor James was liable to taxation for State purposes to the amount of two per cent, as the holder of an office, or to only one per cent., the tax imposed on professions or occupations, under the Act of April 29th 1844. The charter was duly considered, and this court held: “ The defendant is not, however, properly an officer of the corporation, but a person in its employment, and his salary ought to be taxed only one per cent., as for an occupation or profession.”

      J. M. Linn (with him A. H. Dill, Charles R. James and S. P. Wolverton), for the defendant in error.
    We contend that a professor in a university is a corporate officer. A corporation is an artificial body to whom the state delegates part of its sovereignty as a franchise; and a corporate officer is one whose right and duty it is, alone or as one of several, to execute the franchise. By the charter the pre-eminent franchise of this university is to grant degrees, and by the same instrument “the president and professors, with the counsel and consent of a quorum of the curators, shall have the power to grant and confirm unto the students of the university, or unto others deemed worthy, such degrees in the liberal arts and sciences as have been usually granted in other universities; to grant, likewise, to said graduates, diplomas under the common seal of the corporation, in order to airthenticate and to perpetuate the memory of such graduation.”
    The corporation may be called by any name, but the franchised the vital thing fixed by the charter; the tras Lees are authorized to set the machinery in motion, and supervise its routine.operation, but they have absolutely no power to execute the real franchise, or to compel or to forbid its execution by those to whom the charter delegates that right and duty. The seal of a corporation can be attached only by an officer of the corporation, not by an employé. If the jprofessors, with the president, and with the consent of the curators (a mere advisory body), had duly awarded a degree, and the trustees had locked up the corporate seal, mandamus would lie to compel them to permit it to be affixed to the diploma by the officers. A degree is valuable property, and the officers who grant the .degree have a property in tlieir corporate office of which they cannot be deprived except goer legem terree, and to inquire into the title of which the Commonwealth’s writ of quo warranto lies. The charter refers to the “ official doings of the faculty'” and provides that no religious sentiments shall debar election to “ any office among the teachers of the institution.” The bylaws also recognize the official character of the professors; section 8 provides for meetings of “ the faculty, at which each officer shall be assigned his part of the course of instruction.”
    The numerous cases cited by the other side as to who are corporate officers generally, or under other charters, are not applicable, because we must be guided by our own charter alone. It is said the status of a. professor in this university has been decided by this court in Union County v. James, 9 Harris 525. The question there was solely one of taxation on compensation. The professor receives compensation for his services as a teacher, but no compensation as a corporate officer, i. he receives nothing that is taxable. The present aspect of his status was not before the court, and an incidental remark by the court from the standpoint of taxation cannot fairly be regarded as decisive of the question as it now arises. Such a distinction was recognized in Commonwealth v. Cuyler and Agnew, 5 W. & S. 215, where it was sought to tax the minister of an incorporated church as an officer of the corporation. Gibson, C. J., said : The minister “is usually a corporate officer by virtue of the charter, yet his services as a corporator are not those which are compensa ed by his salary as a divine; .... and where he receives nothing for his corporate services he receives nothing that is taxable.” His salary as a minister was taxed at one per cent., but not because he was not an officer. In Miller v. Kirkpatrick, 5 Casey 226, at p. 230, the court, referring to this case, and to Union County v. James, said: “Conceding that he may be, in some senses, an officer, it is plain that he is not an officer within the meaning of the law regulating taxation.”

      October 3d 1881.
   Mr. Justice Sterrett

delivered the opinion of the court,

The contention of the relator in the court below was that' the professorship, of which he was formerly the incumbent, is a corporate office, and that he was unjustly deprived of the rights and emoluments thereof by the illegal action of the trustees iu declaring the chair vacant and afterwards electing the plaintiff in error to fill the same. The act of June 14th 1836, by which alone jurisdiction in quo warranto is given to the court of common pleas, provides, inter alia, that the writ may be issued, “ In case any question shall arise concerning the exercise of any office in any corporation created by authority of law and having the chief place of business within the respective county Purdon,. 1206, pi. 2. This clause of, the act is the only warrant the court had for entertaining the relator’s application; and it confers no jurisdiction, except in questions concerning the exercise of strictly, corporate offices. It is only in such cases that the court can inquire by what authority the incumbent claims the office, and determine whether he usurps any right, privilege or prerogative granted by the Commonwealth. No authority is given to issue the writ against a mere servant, employé or agent of the corporation. It. was therefore incumbent ou the relator to show that the professorship of mathematics and natural philosophy in The University at Lewisburg ” is a corporate office, and that he was unjustly and illegally removed therefrom, and the defendant installed therein without authority. If the professorship in question is not a corporate office, within the meaning of the clause of the act above quoted, the relator had no standing, in court, and the motion to quash should have been allowed. This is the vital question in the case, and if decided in favor of the plaintiff in error it will be unnecessary to consider the remaining questions.

An examination of the charter has led us to the conclusion tliat the professorships created by the trustees for the purpose of accomplishing the objects ■ contemplated by the act of incorporation, are not in any proper sense of the term corporate offices, and that the incumbents are merely agents or employés of the coi'poration, whose services, if not regulated by contract with the board of trustees, may be dispensed with whenever the interests of the institution, in their judgment, demand it.

The charter provides that the university shall be under the government and supervision of trustees and curators. The trustees named in the act and their successors are made a body politic and corporate, with perpetual succession and all the incidents of a corporation, by the name, style and title of “ The Trustees of the University at Lewisburg,” by which name they and their successors are declared capable of holding real and personal property, receiving the rents, income, &c., and of doing and transacting all the business of the university, not otherwise provided for by the act, “ and particularly of making and enacting ordinances and by-laws for the government and instruction of the university, ... of electing or appointing the president, professors, tutors and other teachers of said university; of agreeing with them for their salaries and stipends; of removing them for misconduct, breaches of the ordinances of the institution or other sufficient cause; of appointing a chairman, secretary, treasurer and other officers necessary for managing the concerns of the corporation,” &c.

The curators, named in the act, and “ their successors in perpetual succession” are to be forever known by the title of “the curators of the University at Lewisburg.” Their defined duties do not in any manner conflict with the power and authority vested in the trustees.

The authority conferred, in the first section of the fourth article, on the president, professors, tutors and other teachers, who, for the time being, compose the faculty of the university, or on the president and professors in conjunction with the curators, does not make the professors corporate officers. That section of the act merely defines, in certain particulars, the powers and duties of those who, for the time being, may happen to be incumbents of the professorships which may be established by the trustees. The number and character of the professorships to be created under the charter is left solely to the discretion of the trustees. They are authorized to appoint a president, together with such and so many professors, tutors and teachers as in their judgment will best promote the educational interests of the university; and when professorships are established and certain branches of instruction assigned to each, they are not necessarily permanent. They may be modified or even abolished and others created, whenever in the opinion of the trustees it becomes expedient. The mere creation of a professorship does not endow it-with a fixed term of existence or give its incumbent a term either for life or good behavior. Corporate offices are such only as are expressly required by the charter. The professorship in question is manifestly not one of that cháracter. In Union County v. James, the present relator, 9 Harris 525, the controlling question was substantially the same as in the present case. The county authorities claimed that the defendant, in that case, as the holder of an office, was liable to a tax of two per cent, on the amount of his salary as professor in the university. On the other hand, he contended that, if liable at all, it should be only one per cent., the tax imposed on professions and occupations under tbe act of April 29th 1844; and it was held by this court that he was not “ properly an officer of the corporation, but a person in its employment, and his salary ought to be taxed only one per cent, as for an occupation or profession.” This accords with what appears to be the correct construction of the charter, and it therefore follows that the relator had no standing in court.

Judgment reversed, and it is ordered that the writ of x quo warranto issued by the court below be quashed.


author: Mr. Justice Paxson

text:
    Powell's Appeal. Firey's Appeal.
    1. A release executed by a married woman, of a legacy charged upon, land cannot, under the provisions of the Act of April 26th 1850 (P. L. 581), be recorded unless it be separately acknowledged by her in accordance with the provisions of the Act of February 24th 1770 (1 Sm. L. 307).
    2. A married woman may, at her husband’s request, execute to him a valid and effectual release of a legacy charged upon land whereof he is seised, without his joinder and without a separate acknowledgment.
    '3. Where there is no consideration for such a release, and the.married woman does not intend the same as a gift, it is invalid as to her husband, and as to such of his judgmeut creditors as stand on his footing.
    4. As to such of her husband’s creditors as have advanced their money, subsequent to the execution of the release, with knowledge thereof, aud on the faith of the same, the married woman will be estopped from denying its validity.
    5. As to such of- those creditors, however, as do not appear to have loaned their money with knowledge and on the faith of the release, the married woman is not estopped from denying its validity.
    6. A recorded paper, defectively acknowledged, is constructive notice to no one.
    7. Circumstances under which a married woman who has executed a release, such as above described, is not entitled to claim interest ou her legacy as against her husband’s creditors, considered.
    June 16th 1881. Befere Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeals from the Common Pleas of FrcmlcUn county: Of May Term 1881, Nos. 182, 183.
    Appeals of Joanna Powell and of Anna M. Firey, executrix of Solomon Firey, deceased, from a decree distributing the proceeds of certain real estate sold under the order of the court by B F. Winger and Alexander Schafhert, assignees of" Benjamin M. Powell, under a deed of voluntary assignment for the benefit of creditors.
    Before the auditor, F. W. Patton, Esq., the following facts appeared in evidence: Daniel Stahl died November 1st 1853, seised of a certain farm in Antrim township, Franklin county. By his will, which was duly admitted to probate, Stahl directed said farm to be sold by his executors within two or three years after his decease, and further provided as follows:
    “ After the sale of the large farm I allow $3,000 to remain in said.farm, and the interest arising from said $3,000 I allow my wife to receive -annually,.....and after the death of my widow I allow the said $3,000 to be equally between my children.”
    Testator left him surviving a wife and two daughters, Malinda Catherine, .who was unmarried, and Joanna, who had intermarried with Benjamin M. Powell. In 1856 Stahl’s execm tors sold and conveyed the farm to said Powell, charged as directed by the testator. On November 4th 1868 testator’s widow died. ín 1869 Powell paid Malinda Catherine Stahl the sum of $1,500, being her share on the charge upon the farm. He paid his own wife nothing, nor did she demand it of him.
    Powell about this time became- embarrassed financially, and the following judgments were entered up against him, constituting liens upon the farm :
    Elizabeth Powell, No. 171 August T., 1871 . . . $231 00 Rebecca McKee, No. 218 December T., 1874 . . . 500 00 A. L. Irwin’s use, No. 198 May T.,. 1875 .... 550 0Ó H. S. Stoner, N,o. 171 December T-, 1875 . . . 1,000 00
    • After the entry of these judgments Mi’s. Powell, on October 28th 1875, executed a release to her husband of her interest in the charge on the -farm. This release was under seal, was attested by one subscribing witness, and was accompanied by the following cex-tificate of acknowledgment:

      Franldm County, ss.

    Before me, the subscriber, one of the Justices of the Peace in and for said county, personally appeared the within named Joanna Powell, and acknowledged the foregoing written instru•ment of consent signed by her to be her act and deed, and that the same was done without any coercion of her husband, Benjamin M. Powell, and desired that the same might be recorded as such; and I certify that tire same was done and executed before me, before the signing and execution of the written indenture, release or deed of conveyance; and further, the said Joanna Powell acknowledged the release separate and apart from her said husband. In testimony whereof, I have hereunto set. my hand and seal, this twenty-eighth day of October, A. L>. one thousand eight hundred and seventy-five.
    John G. Wallech, J. P. [Seal.]
    Mrs. Powell,testified as to the execution of this release, inter alia, as follows : “ This is my signature to paper. Husband gave me a paper at our house. My husband said I should take the paper to Col. B. F. Winger. Said I should give the paper to him. He gave me no directions about signing the paper. Ho said I should sign it; it would be all right. We went to Greencastle. I gave Col. Winger the paper in his office. I don’t remember signing the paper. I don’t remember Esquire Wallech being in Mr. Winger’s office the same day. I don’t remember of Col. Winger reading the paper over to me. I don’t remember seeing that paper afterwards. If I released my share of that dower that day I know nothing about it. If I did release that day I never understood anything. My husband never paid me any part of that dower. Í never got any money on account of my share of that dower — before I signed the paper — at the time — nor afterwards. My husband did not tell mo who had written the paper. He (my husband) gave me no reason why he wanted me to sign the paper. He did not tell me what was in the paper.”
    Witness also testified with regard to her joinder in a deed to other parties for thirty acres of said farm, that she had signed it because her husband told her that if she did not, she might look out for herself.
    John G. Wallech, Esq., testified with reference'to the execution of the release as follows : “ 1 know Mrs. Joanna Powell. I took her acknowledgment. The acknowledgment is in my hand-writing. She appeared before me personally. She came, I think, to my office and asked me to come to Winger’s office. I am not certain this was the time she came after me. She did come once. Her husband was not with her. I examined her separate and apart from him, and even separate and apart from her attorney. Before taking the acknowledgment I made known tíe contents. I commenced and read to her until I saw the import of the release, and she said to me while I was reading that it was not necessary, that she understood it all. This occurred in Col. Winger’s back office. We came out of the back office and then she signed it in presence of Col. Winger. She said to me, while separate and apart from every one, that she signed stitne of her own free will and accord, and without any coercion or compulsion on the part of her said husband.”

      ' The auditor found as a matter of fact that Mrs. Powell received no consideration for the release and that there was no competent evidence that she had a knowledge of its contents. The release was on October 30th 1875 duly recorded.
    After the execution and recording of the release the following judgments were entered against Powell:
    E. B. Winger, No. 144 September T., 1876, . . . $400 00 John S. Grove, No. 56 September T., 1876, . . . 359 45 James IL Wilson, No. 393 September T., 1876, . . 486 00 Solomon Firey’s ex’rs, No. 51 February T., 1877, . . 992 53 Samuel M'Creery, No. 100 February T., 1877, . . 315 00 Samuel M‘Creery, No. 101 February T., 1877, . . 284 93
    M‘Creery testified that his first judgment No. 100, was entered upon a judgment note, dated April 22d 1875, prior to the date of the release. He testified, however, as to his second judgment, No. 101, that it was entered on a judgment note, dated February 1st 1876, and that he had advanced money to Powell thereon, simply because of Powell’s representation that his wife had released her interest in his land.
    The judgments of Wilson and Firey’s executrix were also entered up for loans made to Powell after the date of the release, but it did not appear, whether said loans had been made in "view of the release or on the faith of it.
    On January 7th 1877, said Powell and wife conveyed said farm to Winger and Schafhert, by a voluntary deed of assignment for the benefit of Powell’s creditors, reserving, however, the wife’s interest in the same. Afterwards said assignees sold the said farm under order of court, free and discharged of all liens, for $5,-971.21, which amount constituted the fund to be distributed.
    Mrs. Powell claimed out of the fund the sum of $1,500, with interest from the date of the death of Stahl’s widow. Upon this point the auditor reported, inter alia, as follows : “From the testimony it appears that Mrs. Powell did not have her own free will in the execution of the release. It is true she signed it out of the presence of her husband, but she swears that her husband told her unless she did sign i she must look out for herself.’ Taking this to be true, we think it negatives the certificate of the magistrate that she executed the same ‘ without any coercion of her husband, Benjamin M. Powell;’ but outside of this, the certificate of acknowledgment is fatally defective, in that it does not set out that the contents were made known to said Joanna Powell. It is held that the fact that the contents were made known to a feme covert must substantially appear on the face of the certificate: Steele v. Thompson, 14 S. & R. 92; also Shaller
      v. Brand, 6 Binn. 438; Evans v. Ooin’th, 4 S. & B. 272; Watson v. Mercer, 6 S. & B. 48; Fowler v. M‘Clurg, 6 S. & B. 143 ; Jourdan v. Jourdan, 9 S. & B. 270.
    “ An attempt was made to supply tlie defect in the acknowledgment by the testimony of the magistrate who took the acknowledgment.. This testimony is ruled out. It is incompetent to supply the defect appearing on the face of the certificate by parol testimony : See Watson and wife v. Bailey, 1 Binney 470; Jourdan v. Jourdan, supra; Barnett v. Barnet, 15 S. & B. 72; Loudon v. Blythe, 4 Harris, 541. Your auditor, therefore, holds that the paper is void for the purpose of release of any interest in real estate. But it is urged that the interest which J oanna Powell had in said farm was not such an interest in lands as required. an acknowledgment. Your auditor thinks that Mrs. Powell, a married woman, could only release this interest in the dower, or whatever it was, by a release acknowledged in accordance with the provisions of the Act of Assembly relating to conveyances of real estate by married women. ' That she could not sell or release to her husband directly, because, this being an interest in land, both must sign, and it is also invalid as a release of her interest, because it is not signed by her husband, who was then living. . . . But it is claimed that Mrs. Powell’s interest in the land was a chose in action, and that she could give it to her husband. We answer that even it was a chose in action, it was not such an article as wouldpass by mere delivery, and therefore the method must conform to the mode prescribed by law, which in this case would be by deed or release, properly acknowledged: Hinney v. Phillips, 14 Wr. 382.
    “ But it was no gift, nor intended to be such, by either husband or wife. . . . But it is urged that the release which she signed should estop her from pressing her claim until all the judgment creditors who loaned money on thq faith of the release are satisfied. We cannot agree to this. A judgment creditor is not a purchaser, and would not be protected by knowledge of the release ; but the only evidence your auditor has that any one judgment creditor loaned their money on the faith of the release, is Mr. Samuel M'Oreery. lie testifies that lie knew of the lien upon the land in favor of the wife, and did not loan money until he was informed by Mr. Powell that rhe wife had released her claim. Now, if Mr. Powell told Samuel M'Oreery that, he acted badly, because the record shows that the money of Mr. M'Oreery wTas loaned, or at least the single bill dated 22cl April 1875, six months before the release was executed, and Mr. Powell’s statement could not have been true. That being so, and the release at that time not being executed, Mr. M'Oreery might have loaned his money on the faith of what Mv. Powell said to him about the release, but not on the faith of the release actually executed. And your auditor holds that what Mr. Powell said, out of the presence of Mrs. Joanna Powell, could not prejudice her claim in any way.”
    The auditor accordingly, after deducting the costs of audit, awarded to Mi’s. Powell the full amount of her claim out of the fund, viz.: $2,317.50. The residue he distributed to the judgment creditors of Powell in the order of their priority, paying Elizabeth Powell, Rebecca McKee, A. L. Irwin, H. S. Stone, E. B. Winger and John Hade in full, and awarding to Wilson on account $65.83, which exhausted the fund. To this report exceptions were iiled on behalf of Wilson and the judgment creditors whose claims were not reached in the distribution, on the ground that the auditor had erred in allowing to Mrs. Powell the amount of her claim with interest.
    The court, Rowe, P. J., was of opinion that the release was good in substance and form, and that is was duly executed a.nd acknowledged,- but that, Mrs. Powell having received no consideration therefor, and not having intended to make a gift, the same was invalid as between her and her husband or his judgment creditors.
    As to M’Creery, the court held, however, that he having advanced the money represented by his second judgment subsequent to the release and on the faith thereof, Mrs. Powell was estopped as to him from setting up its invalidity. As to the other judgment creditors subsequent to the release who were not shown to have so acted, the court held that the principle of estoppel could not be invoked. The court also disallowed Mrs. Powell’s claim for interest.
    The matter being recommitted to the auditor for redistribution in accordance with the views expressed in the opinion of the court, he deducted the sum of $817.50 from the amount previously awarded to Mrs. Powell, being the interest on her claim, and applied $453.36 thereof to satisfy that portion of Wilson’s judgment remaining unpaid. The residue, viz.: $334.14, he applied on account of the judgment of Solomon Firey’s executrix, which was the next in priority of lien. He also deducted from the allowance of $1,500 to Mrs. Powell the sum of $303.67, ■which lie awarded to M‘Oreery in payment of his second judgment with interest. A report embracing the redistribution was filed and was duly confirmed by the court.
    Joanna Powell thereupon took an appeal, assigning for error the deduction of M‘Creery’s second judgment from her claim, and the awarding of the same to him, and also the refusal to allow her interest on her claim.
    Anna M. Firey, executrix, also-took an appeal, assigning for error the action of the court in allowing Mrs. Powell’s claim, and in not awarding the amount of that claim to the judgment of Firey’s executrix.

      J. McD. Sharpe, for Joanna Powell.-The
    release was not good in substance or in form. Appellant’s interest in the land was of such a 'character that she might have brought ejectment: Kensinger v. Smith, to use, 9 W. N. C. 312; Bear v. Whisler, 7 Watts 144; Perry v. Scott, 1 P. F. Smith 124; Soper v. Guernsey, 21 P. F. Smith 220; Watters v. Bredin, 20 P. F. Smith 235. It was in the nature of a mortgage: Moore v. Cornell, 18 P. F. Smith, 320. And could not therefore be released or assigned except by an instrument with a proper separate acknowledgment: Moore v. Cornell, supra; Stoops v. Blackford, 3 Cas. 213 ; Buchanan v. Buchanan, 10 Wright, 186; and with the joinder of the husband: D. L. & W. R. Co. v. Burson, 11 P. F. Smith 369.
    Assuming that it was but a legacy, then under the provisions of the act of April 26th 1850, § 24 (P. L. 581), in order to entitle the release to be recorded, it was necessary that it should be acknowledged as provided by the act of February 24th 1770, § 2 (1 Sm. L; 307).
    In the present case the certificate fails to state that the contents of the release were made known to the appellant. This was fatal. See Watson v. Bailey, 1 Binney 470; McIntire v. Ward, 5 Binney 301; Shaller v. Brand, 6 Binney 438; Evans v. Commonwealth, 4 S. & R 272; Thompson v. Morrow, 5 S. & R. 289; Watson v. Mercer, 6 S. & R. 48; Steele v. Thompson, 14 S. & R. 92; Jourdan v. Jourdan, 9 S. & R. 273; Miller v. Wentworth, 1 Norris 280; Hornbeck v. Building Association, 7 Norris 64.
    Defects in the certificate cannot be supplied by parol evidence. See Jourdan v. Jourdan, 9 S. & R. 274; Watson v. Bailey, 1 Binney 470 ; Barnet v. Barnet, 15 S. & R. 72; Williams v. Baker, 21 P. F. Smith 481; Herter v. Glasgow, 29 P. F. Smith 82; Singer Manufacturing Co. v. Rook, 3 Norris 445; Hornbeck v. Building Association, 7 Norris 64.
    If, then, this release was not properly executed and acknowledged, the appellant cannot be estopped by it: Glidden v. Strupler, 2 P. F. Smith 400; Dunham v. Wright, 3 P. F. Smith 167 ; Kirk v. Clark, 9 P. F. Smith 479 ; Colburn v. Kelly, 11 P. F. Smith 314 ; Graham v. Long, 15 P. F. Smith 383; Williams v. Baker, 21 P. F. Smith 476.
    M‘Creery stood in his creditor’s shoes: Cover v. Black, 1 Barr 493 ; Reed’s Appeal, 1 Harris 478; Morris v. Ziegler, 21 P. F. Smith 453; Ludwig v. Highley, 5 Barr 132; Dimm’s &
      King’s Appeal, 9 Norris 367; Shrewsbury Savings Inst’s Appeal, 9 W. N. C. 166. The release, being void as to Powell, was also void, therefore, as to M‘Creery. There was nothing to estop appellant as against M‘Creery. She did nothing active. M‘Creery relied exclusively on Powell’s representations.
    Under the peculiar circumstances appellant should have been allowed interest on her claim: May v. May, 12 P. F. Smith 213; Hamill’s Appeal, 7 Norris 363.

      Brewer and Winger, for Firey’s executrix.
    The release was not obtained by fraud or duress, but was, in substance, a gift by the wife to her husband. The interest released was a mere legacy, and not an estate in land: Pierce v. Gardner, 2 Norris 211. Therefore the release did not recpiire a separate acknowledgment under the act of 1770: Bond v. Bunting, 28 P. F. Smith 210; Haffey v. Carey, 23 P. F. Smith 431. Brown’s Appeal, 9 W. N. C. 329. A married woman cannot repudiate a gift fairly made: Fryer v. Rishell, 3 Norris 521 ; Dando’s Appeal, 9 W. N. C. 5. The release was a recordable instrument, and being spread on the record gave notice to all parties dealing with Powell that his wife’s claim was released. She is estopped from denying the validity of the release as to such persons Pepper’s Appeal, 27 P. F. Smith 373; Pryor v. Wood, 7 Cas. 142; Pelty v. Struthers, 6 Harris 278; Water’s Appeal, 11 Casey 523; Brown’s Appeal, 9 W. N. C. 329. Mrs. Powell is further estopped by her laches: Coates v. Gerlach, 8 Wright 46.
    The acknowledgment of this release is a substantial compliance with the provisions of the act of April 11th 1848 (P. L. 536). It is not invalidated by the mere want of consideration: Lytle’s Appeal, 12 Cas. 131.
    Mrs. Powell is certainly estopped by her laches from claiming interest: IiamiU’s Appeal, 7 Norris 363; May v. May, 12 P. F. Smith 206.
    October 3d 1881.
   Mr. Justice Paxson

delivered the opinion of the court,

It was contended that the release of Joanna Powmll in her husband’s favor for the one half of the legacy of $3,000 charged upon his land was invalid for the reason that it was not properly acknowdedged. The acknowledgment w’as made before a justice of the pe'ace, who certified that before him personally appeared the within named Joanna Powell and acknowledged the foregoing instrument of . . . signed by her to be her act and deed, and that the same was done without any coercion of her husband Benjamin M. Powell, and desired that the same might be recorded as such, . . . and further the said Joanna Powell acknowledged the release separate and apart from her said husband.” It is true the justice does not certify that the contents of the paper were made known to Mrs. Powell, as required by the act of Febuary 21st 1770. That this omission is a fatal defect in conveyances of real estate, is decided in numerous cases. I cite only two of the recent ones: Miller v. Wentworth, 1 Norris 280; Hornbeck v. The Building Association, 7 Id. 64. This, however, was not the case of a conveyance of land. Mrs. Powell had no dower in her father's estate and could have none. What she held was a mere legacy. That it was charged upon land makes no essential difference. A release of a legacy charged upon land is within the recording acts. The act of 15th of April 1828, authorizing such releases to be recorded, requires that they shall be executed “before at least, two competent subscribing witnesses.” The present release has but one subscribing witness, and does not corno within the act: Hellman v. Hellman, 4 Rawle 440. Section 24 of the Act of 26th April 1850, P. L. 581, authorizes the recording of such releases only when they “shall have been duly acknowledged or the execution thereof proved by the existing laws for the acknowledgment and proof of the execution of deeds or other instruments of writing concerning any lands or tenements,” &c. As the release of Mrs. Powell was not so acknowledged it is manifest the Act of 1850 does not apply, nor is the case affected by the Act of April 11th 1848. The acknowledgment by the wife referred to in said act is when the husband seeks to convey or incumber her separate estate. The ffrst section of the Act of 11th April 1856, P. L. 315, repeals so much of the Married Woman’s Act of 1848 as provides that the acknowledgment of a deed or mortgage conveying the separate estate of a married woman may be made differently from her acknowledgment when joining her husband in conveying his real estate.

This release is not void, however, because not so acknowledged as to bring it within the recording acts. As before observed, it was not a conveyance of an interest in lands. It concerned personal property, was a mere chose in action, and as such within her own control with the consent of her husband. As this release was made to her husband, at his request, aud for his benefit, his consent is to be presumed. It was held in Bond v. Bunting, 28 P. F. Smith 210, that a married woman, her husband joining therein, could assign her dioses in action without acknowledgment of any kind, and the distinction is there pointed out between a ebose in action and a mortgage; the latter, though a security for money, is a conveyance of land.

This release is sufficient in form, however defective the acknowledgment may be. It was said to be invalid, however, for the reason that it was not executed by Mrs. Powell of her own free will; that she did not know what she was signing, and that she received no consideration therefor. And it was urged that if the release was invalid as to her husband it was equally so as to his judgment creditors who merely stand upon the foot of their debtor.

The only wituess called to attack the release was Mrs. Powell herself, who, although - incompetent, was permitted to testify by agreement. Giving entire credit to what she says, she fails to show any fraud practiced upon her in the acknowledgment, or any coercion on the part of her husband prior thereto. The substance of what she says is that she did not receive any money; that her husband told her to sign the release, and that it would be all right. It is true the learned auditor finds that her husband told her if she did not sign it “ she must look out for herself.” In this the auditor made a mistake. The words referred to had reference to a deed of thirty acres of land her husband desired to convey, and not to this release. Mrs. Powell took the release to the justice, unaccompanied by her husband, and executed and acknowledged it in the presence of the former. The justice was examined, and testified that she acknowledged the release voluntarily, and that, when he commenced to explain to her the contents of the paper, she interrupted him and stated she understood it; that it was a release of her dower. Mrs. Powell does not essentially contradict him otherwise than by the convenient “ I don’t know.” There is not a scintilla of evidence to show fraud or coercion on the part of her husband, yet if Mrs. Powell is believed there was no consideration for the release. There certainly is no proof she ever received the $1,500, and the auditor does not find she intended it as a gift. 'We must, therefore, hold the release invalid as to her husband. Is it so as to his judgment creditors ?

We think it very clear that so far as such creditors have loaned their money upon the faith of the release they are entitled_to priority over Mrs. Powell in the distribution of this fund. It is true a judgment creditor stands upon the foot of his debtor so far as title is concerned; but this rule has no application where a third person has misled the creditor as to the condition of the title and thereby induced him to lend his money on the faith of it. . Samuel M‘Creery had actual knowledge of the release, and took one of his judgments and loaned the money on the faith of it. As to him Mrs. Powell ia estopped from setting up her release. It is true she was a married woman, and the general rule undoubtedly is that the doctrine of estoppel does not apply to such persons. But there are exceptions. The rule rests upon the fact that a married woman cannot contract. It follows logically that what alie cannot pass by contract she may not pass by estoppel. But where the law clothes her with the power to contract, to the extent of that power she is bound precisely as other persons are bound. The law gives her the right to dispose of her personal estate with the assent of her husband. In doing so she lias no more right to injure and mislead others than if she were sui juris. To hold otherwise would enable her to continue her operations with her separate estate so long as they were profitable, and then make reprisals for her losses upon those who had trusted her. Brown’s Appeal, 9 W. N. C. 329, distinctly recognized this principle. There a married woman who held a judgment against certain real estate agreed in writing that the lien of her judgment should be postponed to the lien of a subsequent judgment. After the money had been loaned on the faith of her agreement she attempted to repudiate it on the ground of her coverture. This court held that as she had the absolute control of her judgment, could satisfy it at will, she could also postpone, and, as an innocent party had acted upon the faith of her conduct, she was estopped from claiming a first lien.

It does not appear that any of the other creditors loaned their money upon the faith of the release, nor that they had knowledge of it. Not having been duly acknowledged it must be treated as an unrecorded paper. lienee, no question arises as to constructive notice to the creditors, and actual notice is not pretended.

We see no error' in the refusal of the court below to allow interest on Mrs. Powell’s claim. The authorities cited by him are sufficient to sustain his ruling. See May v. May, 12 P. F. Smith 206; Bachman v. Killinger, 5 Id. 414.

The decree is affirmed and the appeals dismissed at the costs of the respective appellants.


text:
    Snyder versus Crawford, et al.
    1. A. was the owner of a tract of land which was subject to the lien of several judgments, one of which was held by B. Being desirous to sell the tract, he applied, through his counsel, to B. for a release. Said counsel stated to B. that he was informed and believed that the property would realize more then sufficient to pay off her judgment, and those prior thereto, and she, by his advice, accordingly executed an instrument by which she agreed that the land should be sold clear of her judgment, provided that the purchase money should be applied to the payment of said judgment, according to its priority of lien. A short time afterwards the land was sold and conveyed to 0., but for a sum insufficient to pay any part of B.’s judgment, according to its priority. It did not distinctly appear whether, at the time of the sale, C. had any knowledge of the contents of B.’s instrument of release or not. A scire facias to revive her judgment having been subsequently issued by B. against A. and C. as terreteuant: Held, that O. having purchased and paid the purchase money in good faith, his title could not be impaired by any verbal declarations made by A.’s counsel to B., without his authority or knowledge, and that therefore he took a title discharged from the lien of B.’s judgment.
    3. Where properties subject to a common incumbrance are successively alienated, the bolder of the incumbrance may, upon the sale of any one of them, release the same from the lien of the encumbrance, without thereby releasing those previously conveyed, even though he may have notice of such prior alienations, unless, indeed, he has received a distinct notice from tho prior vendees, cautioning him against doing anything by which their rights may be diminished.
    3. Taylor’s Executors n>. Maris, 5 Rawle 51; Mcllvain v. Mutual Assurance Oo., 13 Norris 30, and Wilbui's appeal, 10 W. N. O. 183, followed.
    June 16th and 17th 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, J J.
    Error to the Court of Common Pleas of Franklin county : Of May Term 1881, No. 185.
    ■ Scire facias to revive judgment, brought by Margaret Snyder against John E. Crawford, administrator of Martin B. Wingert, deceased, with notice to Isaac Burkholder, Christian "Wingert, Adam Small and Henry Small, terre-tenants.
    The judgment sought to be revived was upon a judgment note for $3,000 given by Martin B. Wingert to his daughter, Margaret Snyder, the plaintiff, and entered in the Common Pleas of Franklin county, December 19th 1874. This scire facias issued December 13th 1879. The terre-tenants, Burk-holder and Christian Wingert, pleaded payment, payment with leave, &c.
    On the trial, before Rowe, P. J., the following facts appeared: "When the plaintiff’s judgment was entered, Martin B. Wingert was the owner of three tracts of land in Franklin county. There were several judgments against him prior to that of the plaintiff. By power of attorney, dated December 8th 1874, Martin B. Wingert appointed Martin lieintzelman and Frederick Byers his attorneys-in-fact, with authority to sell and convey his real estate, by virtue of which power the said attorneys-in-fact, on April 2d 1875, sold and conveyed one of the tracts to Isaac Burkholder for $10,700 in cash; this deed was recorded May 17th 1875; and on September 1st 1875, said attorneys-in-fact conveyed another of said tracts of land to Christian Wingert for $2,900, the bulk of which was paid in cash and the balance secured by judgment. This deed was not recorded. Neither of these deeds was made expressly subject to any liens of judgments existing against the grantor.
    On September 28th 1875, said attorneys-in-fact, being about to sell the remaining tract to Adam and Henry Small, procured from the plaintiff, through their counsel .Judge ELimmell, the following release from the lien of her judgment:—
    “Margaret Snyder v. Martin B. Wingert, No. 35 February Term, 1875.
    “ I have a judgment in the Court of Common Pleas of Franklin county, against defendant, and I hereby agree that the agents shall sell the land’clear of the lien of my judgment, provided that lieintzelman and Byers apply the money to the payment of my judgment according to its priority of lien. Witness my hand and seal, 28th September, A. D. 1875.
    “ Test: Mak&aret Snyder, [seal.]
    “ F. M. Kimmell.”
    On October 2d 1875, four days after this paper was executed, said attorneys-in-fact conveyed the remaining lands of Martin B. Wingert to Adam Small and Henry Small for $20,000, all of which was subsequently paid. The proceeds of this last sale proved insufficient to pay all the judgments against Wingert prior to that of the plaintiff, by reason whereof nothing was paid on the latter.
    The plaintiff claimed that the above release was signed upon the faith of representations made to her by Judge ELimmell, counsel for said attorneys-in-fact, that the proceeds of the sale of the real estate would be sufficient to pay all liens upon the property, including her judgment, and would leave a surplus.
    Judge ELimmell’s testimony on this point was as follows :
    “ The sale of the land to the Smalls was spoken of to Mrs. Snyder.
    “ Q. Was this release prepared by you, and executed by her, with reference to the sale of the lands to the Smalls ?

      “A. Yes sir, for that was the last sale of the property.

      “ Q. Did you explain to her the effect of this release?
    “ A. Yes sir ; . . . The impression left on tny mind by Mr. Heintzelman was that the lands would more than pay the debts, and have money besides for the old man. Under this impression the whole thing proceeded from first to last. This lady spoke to me, and said she would not like to have anything done which would impair her rights ; and I said I would do nothing that would impair her rights at all; that this was intended to operate so as to give the Smalls a title divested of the liens : and I added at the time that I thought it would not only pay the liens, but have something over and above for the old man. I said that to her.
    “ Q. That the effect of her signing it would he to release the lien of her judgment from that property ?

      “ A. Yes; and from what I learned from the agents, it would pay the judgments, and leave a surplus for the old gentleman in liis life-time. I remember that very distinctly, because she demurred at first about it; and as I had been a particular friend of Snyder’s, I did not mean to do anything wrong to his wife under any circumstances.
    “ Q. Did you tell her it was necessary for her to sign, in order that the agents could give a clear title? ‘
    “ A. Yes, that it was intended to enable the agents to give a clear title.
    “ Q. And you said she said she did not want to do anything to impair her rights ?
    “ A. She called my attention to that distinctly.
    “ Q. And you told her it would not do so, and that the money would bo applied according to its priority, and there would be enough to have a sui’plus left ?
    “ A. I told her would be applied according to the priority of the liens and judgments, and that she need have no fears about that; it would pay her judgment also, and I thought it would leave something for the old gentleman.” .
    There was no direct evidence to show that the Smalls knew of the release at the time they bought the land, but there was some testimony that it was spoken of in their presence. It appeared that they obtained from the attorneys-in-fact a personal covenant for a good and unincumbered title.
    There was no evidence to show that the plaintiff had any actual notice or knowledge, at the time of giving the release, of the prior conveyances to Burkholder and Christian Wingert.
    The plaintiff took the following positions: (1) That by reason of the misrepresentations made to her by Judge Kimmell, counsel for the attorneys-in-fact, at the time she signed the release, as between her and the judgment debtor, it was void. (2) That in the absence of evidence that the Smalls knew of the release, and acted upon the faith of its integrity, she was not estopped by it. (3) That she was not precluded from asserting her judgment against Isaac Burkholder and Christian Wingert, the first purchasers of the land, in the absence of proof that she had knowledge of the sales to them at the time she signed the release.
    The plaintiff presented a number of points substantially to to the above effect, all of which were refused by the court, who charged the jury, inter alia, as follows:
    “ This release must be construed in the light of the evidence. Mrs. Snyder says that it was in view of the sale of the mansion farm to the Smalls that this release was executed; that it was a release of the land about to be sold to the Smalls only, and it was upon condition that the lien of Mrs. Snyder’s judgment should be paid according to its priority upon the record. But the record shows that her judgment could not be reached by any appropriation of the moneys derived from the Small lands ; so that if the application by the attorneys-in-fact was not according to priority of liens, still she was not injured thereby. The Small land sold for $20,000, and the judgments prior to hers amounted to $42,000. If she signed the release under the circumstances testified to by Judge Uimmell, the Smalls would not be affected by anything said or done by Judge Kimmell, who was not their agent, but the agent of Heintzleman and Byers. No fraud, no mistake, or misleading can be attributed to the Smalls. Under these circumstances, if she signed the paper, which is not disputed, the Smalls were released.
    “ Then, if the Smalls were released, the prior purchasers, Burkholder and Christian Wingert, must necessarily be released, because they had an equity or a right in equity to demand that the last purchased lands should be first applied to the liens; and if the judgment creditor released the last purchased lands, she also released these parties, too.
    ‘‘ [In the view of the law which we have given in the general charge and answers to the points there is really nothing in dispute as to the facts. Yon will have no difficulty in finding a verdict for the defendants.]”
    Verdict accordingly for the defendants, and judgment thereon. The plaintiff took this writ of error, assigning for error the refusal of her points and the portion of the charge enclosed in brackets.

      J. McD. Sharpe, for the plaintiff in error.
    The court in withdrawing the ease from the jury and directing a verdict for the defendants, virtually ruled, as matter of law, (1) that Mrs. Snyder was estopped by the release, although it was obtained from her by mistake of fact which amounted to fraudulent misrepresentation ; (2) that she was estopped by it, notwithstanding the fact (which we must assume as found), that the Smalls had no knowledge of the release and did not purchase on the faith of it, bnt relied upon the collateral covenant of their grantors for a good and unincumbered title; (3) that the release of the tract last conveyed released by operation of law the two tracts previously successively conveyed, notwithstanding the fact that Mrs. Snyder had no knowledge of such previous conveyances.
    We submit there was error in each of these rulings. If the release was obtained by misrepresentation of the judgment debtor or his agent or attorney, it was voidable as to him and as against every one who would not be defrauded by such avoidance. The Smalls, not having purchased on the faith of the release, were not in a position to assert that the plaintiff should be estopped by it. One who has been defrauded, may always show the fraud, provided, in doing so, he shall not harm one as innocent as himself.
    We do not dispute the general rule that if several parcels of land, bound-by a common incumbrance, are aliened successively, they are liable in the inverse order of alienation, and that, if the incumbrancer, release the parcel lastly conveyed, having notice of the prior conveyances, the parcels previously conveyed are also released. But it is an essential element of such release by operation of law that the releasor should have had actual notice or knowledge of the prior conveyances. In the absence of such knowledge the release of the premises last conveyed does not estop the incumbrancer from enforcing his lien against those previously conveyed. The mere fact that the prior deeds were recorded is not sufficient to affect the incumbrancer with notice, as he is under no duty to search the record for them, as a purchaser is bound to do.
    But in this case the deed to Burkholder for one of the tracts was alone recorded ; that to Wingert of the other tract was never recorded. Yet the court held that both tracts were released by operation of law. The following cases either show directly that notice is necessary to an incumbrancer, about to release, of the existence of a prior conveyance, or they are tacitly consistent with such doctrine : McIlvain v. Mutual Insurance Company, 8 W. N. C. 260; Martin’s Appeal, 1 Out. 85 ; Wilbur’s Appeal, 10 W. N. C. 133 ; Taylor’s ex’rs v. Maris, 5 Rawle 51; Nailer v. Stanley, 10 S. & R. 450; Cowden’s Estate, 1 Barr 268; Mevey’s Appeal, 4 Barr 80; Paxton v. Harrier, 1 Jones 312; Lowry v. McKinney, 18 P. F. Smith 294; Clowes v. Dickenson, 5 John. Ch. Rep. 235; Sanford v. Hill, 46 Conn. 42; Dewey v. Ingersoll, 42 Mich. 7.

      John Stewart (Kennedy with him), for Adam and Henry Small, terre-tenants.
    It is not alleged that there was any actual fraud or misrepresentation practiced on Mrs. Snyder in procuring the release ; at most there was but an honest mistake on the part of Judge Kimmell, the attorney of the vendors. The Smalls had no part in deceiving her by such mistake. As a judgment creditor of Martin B. Wingert, Mrs. Snyder was bound to know what judgments stood upon the record against him prior to hers. If she relied on the statement of Judge Kimmell, as to the amount of such judgments, she cannot visit the consequences of this mistake upon the Smalls. The presumption is that the latter purchased on the faith of the release, and there was some evidence to sustain it. But whether they did or did not is immaterial: Cover v. Black, 1 Barr 493. The release was executed immediately before their purchase, and being in the direct line of their title, legally inured to their benefit. The fact that they exacted an additional warranty of title from the attorneys-in-fact of their grantor does not affefct their right to rely upon the release.

      O. C. Bowers, for Isaac Burkholder and Christian Wingert, terre tenants.
    Assuming that the release was valid to discharge from the lien of the plaintiff’s judgment the land conveyed to the Smalls, we think it is settled law that the tracts previously conveyed to Burkholder and Christian Wingert were released by operation of law. We submit that the cases cited by the counsel for the plaintiff in error fully sustain this position, and that they fail to support the modification of the principle, which he contends for, that actual notice to the releasor of the prior conveyances is essential in order to estop the releasor from pursuing his lien against the lots previously conveyed. Wilbur’s Appeal, 10 W. N. C. 133, is not applicable, as there the prior deeds were made expressly subject to the lieu. No one of the other eases cited makes any such distinction as is claimed, and in Holt v. Bodey, 6 Harris 207, the question was iu substance raised and determined the other way. In this case the plaintiff had notice from the record of the sale to Burkholder, and the release was executed within a month after the sale to Christian Wingert, who had six months within which to record 1ns deed. In such case'a party releasing is bound to search the record or make inquiry: Patty v. Pease, 8 Paige Chan. 277; Guion v. Knapp, 6 Ibid. 35. It cannot be that a purchaser of part of land bound by a judgment must at once, in spite of all obstacles, give actual notice to^ all the lien creditors of his vendor not to release his remaining lands. The case is different from that where a creditor having a lien on tract A. is required to notify another creditor having a lien on tracts A. and B. not to release tract B. If the release is valid as to Smalls’ land, it must be valid as to Burkholder’s and Wingert’s lands; because the right ■of a prior purchaser to have the lands of a subsequent purchaser protect his, is an absolute right inherent m the transaction, and therefore the lien creditor cannot release the last land sold without thereby relieving also the first whether he has knowledge of the first sale or not: Paxton v. Harrier, 1 Jones 312.
    October 3d 1881.
   Mr. Justice Mercur

delivered the opinion of the court

The plaintiff held a judgment against Martin B. Wingert, which was a lien on three tracts of laud. On the 28th September 1875, she executed a writing whereby she agreed that the agents of the owner of the land should sell one of the tracts clear of the lien of her judgment, provided the money produced by the sale be applied to the payment of her judgment according to its priority of lien. On the 2d October following the tract was sold and conveyed to Adam Small and Henry Small, two of the defendants. On distribution of the proceeds according to priority of liens, the money did not reach the judgment of the plaintiff. Thereupon she afterwards issued this scire facias, with notice to all who had purchased lands originally bound by her judgment.

On the trial it appeared that prior to her execution of the writing, Wingert had sold and conveyed the two other tracts of land, one to Burkholder on the 2d April 1875, and the other to Christian Wingert on the 1st September 1875.

The assignments of error present two questions: one, whether the Smalls took the land couveyed to them discharged from the lien of the judgment; the other, whether the instrument she executed operated as a discharge of the lien on the lands previously conveyed by Wingert %

The plaintiff claims she executed the writing relying on representations made to her that her judgment would be paid in full out of the proceeds .of the sale about to be made to the Smalls. The latter, however, made no such representations, nor did any person acting in their behalf. If she was misled by the counsel and opinion of her own friend and adviser, the defendants are not to be prejudiced thereby. The payment of the judgment was not a condition precedent to the'sale or to divesting the lien. The application of the money was intended to be made after the lien was divested. She authorized the sale to be made so as to discharge her lien. The authority to the attorneys to sell existed. The Smalls having purchased and paid the purchase money in good faith their title cannot be impaired by verbal declarations made to her without their authority or knowledge. Nor does it matter whether they had knowledge of the contents of the paper. The vendors having full power to sell, the purchasers took the title discharged from the lien. The first three assignments are not sustained.

The writing clearly indicates an intention to discharge from the lien those lands only thereafter to be conveyed. She expected the judgment to be paid out of the proceeds ; but she did not intend to release, nor did the writing profess to release, any other lien or security she held. She had no knowledge of the previous conveyances. She was under uo obligation tó exr amine or inquire if such had been made. It is claimed that inasmuch as the deed to Burkholder had been recorded on the 17th. May 1875, she had constructive notice of the conveyance. Undoubtedly that would .have been notice to one about to take a conveyance from Wingert, that he' had previously conveyed : but it is not such notice as to prevent her from releasing the lien on some of the lands, and keeping it good on other lands bound thereby. If the vendees under prior conveyances desired to prevent her from releasing the lien .of her judgment on other lands of the defendant, they should have distinctly notified her, before her release, of their purchases, and cautioned, her against doing any act by which their rights might be diminished. Nothing less than this would prevent her from releasing the lien on a part of the lands, and holding it good on others. Taylor’s Executors v. Maris, 5 Rawle 51; McIlvain v. Mutual Assurance Company, 8 W. N. C. 260; Wilbur’s Appeal, 10 Id. 133. Even in case of a judicial sale, when a creditor having a lien on two funds, suffers the proceeds of one to be applied to junior incumbrances, he is not thereby estopped from claiming out of the other fund when converted into money: Addams v. Heffernan, 9 Watts 529.

The right to prevent a judgment creditor from releasing a. part of his security must be invoked before the release is executed, and before the rights of others have been affected thereby.

The view we take of this case in no manner conflicts with the rule applicable in case of a judgment against principal and surety, and the creditor releases the land of the principal and seeks to hold the surety; nor with the right of one who has purchased a part of the lands bound by a judgment to compel a sale of the defendant’s remaining lands before his shall be sold by execution. He cannot, however, remain inactive until after his land is sold and the purchaser has obtained a deed therefor, and then affect the title of the purchaser. The doctrine of subrogation is not applicable to the present case. The remaining assignments are therefore sustained.

Judgment- reversed and a venire facias de novo awarded.