author: Agnew, J.

text:
    Vanarsdale et al. versus Laverty.
    1. The right of petition is not so sacred, that the private purposes and motives of the petitioners may not be inquired into.
    2. A groundless petition, instigated only by malice, is not the night of any citizen, if it results in harm to its object.
    3. Citizens remonstrated to the school directors against appointing the plaintiff teacher, stating no reasons for their objection. They had a right to remonstrate, but the right could not be made the means for gratifying malice and enmity.
    4. The plaintiff was rejected by the board after the presentation of the remonstrance; he at the time had no certificate from the county superintendent : this did not prevent his recovery, if the remonstrance was malicious and did him damage.
    5. After his rejection, the plaintiff obtained another school at a higher salary. This would be in mitigation, but did not bar his recovery. The wrong was complete when he lost his place by the malice of the defendants.
    May 11th 1871.
    Before Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1871, No 81.
    This was an action on the case for conspiracy, brought August 22d 1868, by Jesse Laverty against Joseph Yanarsdale, William Bender, Simon Pratz, John Roth, John M. Epley, Jesse Kurtz, Samuel D. Holtz, George Bowers, Daniel Stouffer, Martin Renninger and Daniel Pratz.
    The declaration charged that the defendants, knowing that the plaintiff’s employment as a teacher enabled him to support his family, but intending to injure him, conspired and combined by false and malicious representations, to petition the board of school directors against him, prevented them from employing him and thus prevented him from obtaining a support for his family by teaching.
    The case was tried before and resulted in a verdict for the defendants ; the judgment was reversed by the Supreme Court and a venire de novo awarded (15 P. F. Smith 507).
    The petition was drawn by Yanarsdale and signed by himself and all the defendants except Simon Pratz; Yanarsdale procured all the signatures. The petition is in these words :
    “August 8th 1868. We, the patrons of school No. 4, take this method to inform the school board of East Pennsborough, that we do not wish them to employ Jesse Laverty as teacher for the coming term, under any circumstances, but we will accept any other teacher that is competent that the board may select. We respectfully subscribe our names, with full confidence that you will grant us our request.”
    The cause was tried November 23d 1870, before Graham, P. J.
    H. Booser, for plaintiff, testified: “In 1867 and. 1868 I was a school director. School-house No. 4 was under my particular care. Jesse Laverty taught in the winter of 1867. Promised him; knew him ten years; he has been teaching all that time. There was no objection at that time. It was left to me by the board to nominate for that house. No complaint was brought to me while he was teaching for 1867. Joseph Yanarsdale’s son handed the request to me at Banks’ store. I opened the paper, looked at it, and put it in my pocket. Mr. Banks and myself went to the school-house where the examination of teachers was. After the examination had been in session awhile, William Sadler asked me if I had an applicant for my school-house, No. 4. I told him that Eshleman and Laverty had made application. Sadler said, ‘Booser, you can’t give it.’ Banks, William Sadler, Swartz, Jacob Bashore, and myself were the members of the Board present. * * * I had control of school No. 4 as far as the nomination of a teacher was concerned. I appointed Laverty in 1867. There was no action taken on his partin 1868. After presenting the paper and hearing the expression on it, I put it in my pocket, and made no nomination; I made no nomination for the school that day. Simon Shumbarger got the school. * * * I think Laverty received forty dollars a month. The county superintendent was present to examine teachers. The day was August 8th 1868. * * * Simon Pratz didn’t live in No. 4 district at the time. Had a few words in the latter end of May or beginning of June 1868, with Simon Pratz concerning Laverty. He said he didn’t hope I would give that school, No. 4, to Laverty again. He said he had met Laverty on the road, and they had an altercation ; Pratz said Laverty wasn’t fit to teach, or something to that effect. Something about the talk in this altercation on the road, was why he wasn’t fit to teach. He told me they disputed something about the passing, that Laverty didn’t give him the road. None of the signers of the paper came to the meeting of the school board on August 8th. Pratz said that he and Laverty had fell out, and L. wasn’t fit to teach. * * * I told Laverty to be down at Eairview at the school-house where the examination was to be held; he told me he would if he could. * * * No certificate from the proper quarter was laid before the board, in reference to Laverty, that day. Between the examination and the school term, the appointment was made for the school. Laverty made no other application for the school. Did not offer himself for examination.
    John Pratz testified: “Vanarsdale brought the paper to my house, and he says, ‘I had a favor done to me the other dayI asked him what. He said Mr. Laverty sent him the sheriff for taxes that was back. Vanarsdale had been tax collector. My woman spoke in and said, 4 Oh, you were the tax collectorand he said, 41 had my pockets picked in Harrisburg, and couldn’t pay the.taxes.’ He pulled the paper out of his pocket and asked me to sign it. I shook my head at it, and told him I thought not. He says, 4 John, one good favor deserves another.’ He said then, 4 if you knew how Laverty used your boy, you would sign this paper.’ I told him the boy stopped off going to school, and the reason we never asked him. He told me that Laverty abused my boy severely, and caught him by the hair of the head and threw him down on the floor. I said then, if Laverty used my boy that way, he should put my name down too. He asked me to write my name down, and I told him I couldn’t, and if he wanted it he should put it there himself. I told him to put the mark there and it would be all right.” * * *
    Charles Zimmerman testified : * * * 44 Last winter a year Bender came to me and said he signed the paper on account of the assessment. I said I had no reason to sign it.”
    The plaintiff offered the record of suit, County v. Vanarsdale, and judgment No. 62, August Term 1868, to show that suit was brought against Vanarsdale by the county, to be followed by evidence that Laverty had nothing to do with the bringing of this suit, and this with the view to show the conduct of Vanarsdale, and that the reason assigned by him, that Laverty sent him the sheriff, was false.
    The offer was objected to by the defendants, admitted and a bill of exceptions sealed.
    The plaintiff gave much other evidence in support of the issue on his part.
    The defendants gave evidence that the county superintendent held an examination of teachers for school No. 4 in August 1868-; that the plaintiff was not examined; that he received no certificate ; he never applied for one.
    They gave evidence also by the school directors to show that they would not have appointed the plaintiff to the school if no remonstrance had been presented; also that the plaintiff had a school at Marysville during the time he was excluded from school No. 4, at a higher salary.
    The defendants called Samuel Hume, who testified as follows: “ At the time I had' the talk with Laverty I thought it was only a little joke between us. Laverty asked me if I attended market, and I told him I did not.”
    The.defendants then offered to prove by witness that before the signing of the petition complained of by the plaintiff, and as a reason for Yanarsdale signing, he objected to Laverty on account of his moral character, as testified to by Daniel Pratz, one of plaintiff’s witnesses — that Laverty' wanted witness to go with him to a house of prostitution in Harrisburg, that he (Laverty) might be with the fancy women, and have a little sport out of them ; and Laverty gave as a reason for this, that his wife treated him like a brute, and that he was tired being with a damned idiot. That witness and Yanarsdale both spoke of this same thing together afterwards, and he told Yanarsdale that Laverty told him the same thing.
    The plaintiff objected.
    [Court: The offer is evidence to repel the presumption of malice. If the facts offered were brought to the knowledge of Yanarsdale before paper signed, he may have signed this paper through proper motives; if after he signed, the offer is not evidence, and as defendant says it was before, and the plaintiff says it was after the paper was signed, we must hear the witness as to the time the offer occurred.”
    “ Witness: I had no conversation with Yanarsdale till after the suit brought.”
    Court: “The offer is rejected, defendants except and bill sealed.”]
    The defendants 6th and 7th points with the answers were :—
    6. Inasmuch as Mr. Laverty was not examined in 1868, and had not received a certificate according to the provisions of the Act of 1867, to qualify him to teach in 1868, he could not lawfully have been appointed to teach school No. 4; and no damage of any kind could therefore arise to him from the remonstrance, by reason of his not getting said school; and therefore plaintiff is not entitled to recover against any of the defendants.
    Answer: “We decline instructing you that the facts stated in this point will defeat a recovery by the plaintiff. The evidence is that school No. 4 was not awarded to any teacher at the meeting of the directors and county superintendent on the 8th August, but a teacher was afterwards appointed. And if the school had been offered to Laverty on the 8th of August, he might have obtained a certificate and qualified himself in that respect before the commencement of the school. If defendants acted maliciously and did prevent Laverty from obtaining the school by their malicious conduct, and thus caused damage to him, they cannot now screen their bad conduct by alleging that the plaintiff on the 8th August had not obtained a certificate.”

      ■ 7. The plaintiff having shown by his own witnesses that, for the period during which he alleges he was kept by defendants out of school No. 4, he was engaged in the same occupation of a school teacher in Marysville, at a higher salary than was paid at school No. 4, he has by his own showing sustained no damage, and therefore cannot recover. An act that has a mere tendency to injure, without actually doing injury, is not actionable.
    Answer : “ We cannot answer this point as requested. If the defendants, or any of them, maliciously and unlawfully caused damage to the plaintiff, they cannot avoid the consequences of their wrongful acts by showing that Laverty obtained employment equally remunerative as that of which they deprived him. An act that has a mere tendency to injure, without actually doing an injury, is not actionable.”
    The court also charged-: * * * “If the defendants signed the paper with a common intent and object in view, and through malice, ill-will or revenge, wrongfully to injure and aggrieve the plaintiff, and it did result in actual damage to the plaintiff, this in law would make it the joint act of those signing; although they may not have met in consultation to devise or arrange any plan to carry out a joint object, nor any two of the defendants signed at the same time.
    [“ The defendants’ counsel insist that the right of petition is a legal right, and there can be no wrong which is actionable committed in the exercise of a legal right. If this position is correct there can be no recovery. This case was tried in this court and in the Supreme Court, and this same ground then relied upon by defendants’ counsel. The Supreme Court have directed another trial, so that we must presume the learned judges of that court considered this ground of defence not tenable when they directed a new trial.]
    [“ The right of petition is a legal right, but like all other legal rights it may be abused. When exercised honestly and from pure motives for proper purposes, the law throws its shield around those thus using it. But it may not be used to gratify bad feelings and angry passions to the injury of our neighbors. If the defendants, or any one or more of them, signed the paper in evidence, or acted in concert with those who signed it, to effect a common object, and in doing so were induced or prompted by feelings of malice, anger, hatred, ill-will or revenge, and this was the ruling motive which prompted their actions, and their conduct resulted in injury and damage to the plaintiff, then the plaintiff may recover such damages as he has sustained, against the defendants who participated in causing the damages. But if the evidence fails to satisfy you that the plaintiff has sustained any loss or damage by reason of the acts of the defendants, or any of them, then he cannot recover. So, too, if defendants acted honestly and were influenced by proper motives in opposing the appointment of the plaintiff as teacher in school No. 4, the plaintiff cannot recover. It is therefore an important inquiry to -ascertain whether the conduct of defendants, or any of them, resulted in damage to the plaintiff.] * * *

      “ How the facts were you must determine from all the evidence. [The important inquiries are, 1st.' Did the defendants, or any of them, act maliciously and from impure motives, as stated in a former part of our charge ? If they did not, but from proper and justifiable motives, then the plaintiff cannot recover. But if you find that their motives were impure and unjustifiable, then you will further inquire whether the acts and conduct of the defendants resulted in injury and damage to the plaintiff, in defeating his appointment as teacher of school No. 4. If the conduct of defendants was not the cause of preventing his appointment, then find for the defendants. But if their conduct, or that of any of them, was prompted' by bad feeling and improper motives, and did defeat the appointment of plaintiff to school No. 4, then find for the plaintiff.”]
    The verdict >vas for the plaintiff against Joseph Yanarsdale, William Bender and Simon Pratz for $50. They took out a writ of error and assigned for error :—
    1. The admission of plaintiff’s offer of evidence.
    2. The rejection of the defendants’ offer.
    3. 4 and 5. The portion of the charge in brackets.
    9 and 11. The answers to the defendants’ 6th and 7th points.

      H. Newsham and S. Hepburn, Jr. (with whom were 8. Hep* burn, 8r., and W. H. Miller), for plaintiffs in error.

      Henderson £ Hays and W. M. Penrose, for defendant in error.
   The opinion of the court was delivered, October 9th 1871, by

Agnew, J.

The bills of exception to evidence are not sustained. We feel bound to notice the second so far as to condemn a flagrant omission of a part of the bill from the paper-book. The part printed for us would imply an error. But in that- omitted the court ruled that the offer would be evidence, if the facts had been communicated to Yanarsdale before he signed the paper, yet as the plaintiff asserted that the communication was made afterward, the judge said he would first hear the witness as to the time, The witness replied that he had no conversation with Yanarsdale till after the. suit was brought, and then the judge properly ruled out the offer. A suppression of so material a part of the bill, if purposely done, would deserve the severest censure; but as the omission may have been accidental, we shall notice it no farther.

A careful examination of the charge and answers discovers no error. The instruction to the jury appears to be clear, consistent, and correct. The paper signed by the defendants was a request to the school directors not to employ the plaintiff, under any circumstances, as a teacher in school No. 4 for the coming term. It preferred no charges and gave no reasons, and was a simple expression only of the wishes of the signers. It was the right of these citizens of the district thus to declare their desire. They had a right to express a preference or to declare their objection to any one applying for appointment. They were deeply interested, and had therefore a-right to speak out. But we cannot recognise the position to which the argument of the plaintiffs in error leads, that such a right of expression can be made a channel through which men may'gratify their malice and enmity. This would be the actual result of the argument that the right of petition is so sacred that the private purposes and motives of the actors cannot be inquired into. If they cannot, and if the real purpose of the .petition be the gratification of ill-will and malice without cause, then men may be borne down by the power of their enemies, especially in numbers and by combination, and their efforts in life to earn bread, and support those dependent on them, may be frustrated merely for the gratification of base and malevolent feelings. The inference drawn by the judge from the awarding of a venire facias de novo by this court on the former writ of error, is not erroneous. The request or petition to the directors was the only ground of the action, and a venire de novo would not have been awarded had this court thought that the right of petition was so sacred no inquiry could be had into the motives and purposes of the defendants. A groundless petition instigated only by malice cannot surely be the right of any citizen where it actually results in harm to the object of its malicious purpose. The third, fourth and fifth assignments of error are therefore not sustained.

We perceive no error in the answer to the sixth point in reference to the plaintiff’s want of a certificate from the county superintendent of schools. Had that been the ground of his rejection, he could not recover. But the testimony of Booser, one of the directors, on that point required the case to be submitted to the jury. School No. 4 was under his particular charge, and it was' left to him to nominate the teacher for it. The plaintiff had been appointed for 1867 on his nomination, and had taught without complaint. Booser promised- the school to him again. He gave his application to Booser to be presented to the board; but after it had been presented and after hearing the discussion of the board upon it, Booser put the paper in his pocket and made no nomination. No objection was made on the score of the certificate. It is evident that it was the objection to the plaintiff himself, and not to his want of a certificate, which prevented his employment. Had he been appointed he might have renewed his certificate and qualified himself to accept of the appointment. We see no error, therefore, in refusing a point requiring the court to charge that no damage arose from the remonstrance by reason of the plaintiff’s not getting the school. Nor do we think it was error to refuse to charge that the plaintiff could not recover because he afterwards got a school at Marysville, at a higher salary. This went in mitigation of damages, but was no bar to recovery. The wrong was complete when the plaintiff lost his place by the malice of the defendants, and it is no small injury to be compelled to change one’s residence, break up his plans for the year, seek employment elsewhere, and remove to a different district to reside among strangers. The other assignments of error need no notice but to say we perceive no error to be corrected.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Overdeer’s Administrator versus Updegraff.
    1. Hinney owning two lots, built on both: on No. 2 he left an alley under the second story of the house, extending beyond both houses, with a gate into the back lot of each. The alley was used for fourteen years by the occupants of both houses, Hinney being the occupant of No. 2. After his death, on petition of his administrator, No. 2, described by its lines, &c., was sold for payment of debts by order of the Orphans’ Court; the alley not mentioned in any of the court proceedings. In the conditions of and the deed it was reserved. Reld, That the purchaser took subject to the easement.
    2. The purchaser having bought under the conditions mentioning the alley, was estopped from claiming to hold it free of the easement.
    3. An administrator selling by order of court, land which is subject to an easement, may sell it so subject, although it be not noticed in any of the proceedings.
    4 The administrator’s deed was not recorded; the purchaser afterwards sold without actual notice to her vendee of the alley, which was apparent, and its use by the occupants of the adjoining lot, indicated by the gate. This was sufficient to put the vendee upon inquiry as to their right to the alley.
    5. The deed of the administrator was a link in the title, and it was the vendee’s duty to examine it, and if he could have procured it by ordinary diligence, he had constructive notice of the reservation.
    6. An orphans’ court sale even after confirmation, does not divest the title of the heir until the deed be delivered; until then it remains in the power of the court.
    7. If the heir die after the confirmation but before the deed, his interest passes as land.
    8. The easement was apparent and continuous, and the purchaser would have taken subject to it, although not mentioned in the conditions or deed.
    9. Demmy’s Appeal, 7 Wright 168 ; Kieffer v. Imhoff, 2 Casey 438; McCarty
      v. Kitchenman, 11 Wright 239 ; Phillips v. Phillips, 12 Id. 178 ; Penna. R. R. v. Jones, 14 Id. 417, recognised.
    May 11th 1871. Before Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 72, to May Term 1871.
    On the 30th of June 1868, William Overdeer brought an action of trespass against Joseph Updegraff.
    The parties occupied houses on adjoining lots. On the lot of the plaintiff was an alley, into which there was an entrance from the lot occupied by the defendant; the plaintiff closed the entrance by boarding it up.; the defendant took away the boarding, for this the action was brought. The question tried was whether the defehdant had a right of passage through and upon the alley.
    The plaintiff having died after bringing the suit, his death was suggested on the record, and Matilda Overdeer, his administratrix, substituted.
    Both lots had been owned by one William Ilinney in his lifetime. They were situated on the north side of Main street, in the borough of Mechanicsburg. The whole front of the western lot, called the Phillips lot, was occupied by two store-rooms in one house. He built on the eastern lot, leaving an alley running back about four feet beyond the back wall of the front buildings, with two gates or openings, one into each lot; the second story of the east house extending over the alley and adjoining the first house; both houses had been built about 1850. During Hinney’s lifetime, he lived in the east (or Overdeer) house, and he and his tenants occupying the Phillips house used the alley in common. He died in 1864, and his administratrix, Sarah H. Phillips, on the 26th of August in that year applied to the Orphans’ Court for an order to sell the east lot for the payment of his debts. The petition described the lot, but mentioned nothing of the alley or right of way. The order of sale, issued on the same day, directed the time of sale, and the terms of payment; possession to be given on the 1st of April 1865, and a deed made, but did not refer to the alley. The administratrix exposed the lot to sale under written conditions signed by her, containing the terms, &c., fixed by order of the court; also the following, viz.:—
    “ This property contains about twenty-eight feet in front and rear, the line of which is marked by stakes on the ground, &c.
    “ For the benefit of the owners of the adjoining property of William Hinney, deceased, a right of way is reserved through the alley between the two houses and for four feet beyond the rear of said houses.”
    To the conditions was attached a draft showing the lots with the alley distinctly marked on it, and the gates opening into the respective lots; and, also showing the line fence between the back part of the lots. The lot was sold to Ann M. Gross, who signed under the conditions the following acknowledgment of purchase :—
    “ I, Ann M. Gross, do hereby acknowledge that I have become the purchaser of the real estate of William Hinney, deceased, at and for the sum of twenty-two hundred dollars, upon the foregoing terms and reservations, &c., with which I will comply.”
    The administratrix returned that she had sold the lot to Mrs. Gross for $2200, but nothing was said in the return as to the alley. The sale was confirmed, October 24th 1864. On the 6th of April 1866, Mrs. Gross conveyed to E. P. Zinn ; he, on the 2d of April 1867, to J. S. Becker; he, on the 10th of May 1867, to T. A. Woods, and he, March 27th 1868, to William Overdeer, the,plaintiff. Mrs. Phillips was the heir at law of Hinney. Updegraff, the defendant, was her tenant in 1868, the time of the trespass alleged. At that time, the defendant after notifying the plaintiff to open the alley “ in two hours,” which the plaintiff failed to do, broke down the gate with an axe.
    The case was tried, January 18th 1870, before Graham, P. J.', when the foregoing facts appeared.
    The plaintiff also gave evidence by Mrs. Gross, that she had received a deed from the administratrix which was lost the spring before the trial; the deed was not recorded, it was not called for by any of the parties till the plaintiff purchased ; when she bought she had been living in the Phillips house two years ; Mr. Hinney allowed her to go in and out through the 'alley when she pleased; after her purchase she made a line fence up to the Phillips house, except room for a door to pass into the alley from their yard ; Over-deer called for her deed in July or August 1868, she handed it to him; he said he was so nervous he could not read it — said he would come again ; when he came she would not let him see it, and declined to give him the deed ; no one came for it afterwards.
    For the defendant, Mrs. Phillips testified: — That her father, Hinney, had made the alley when he built the Phillips house; there was another opening there through the store-room from the inner part of the house out, the alley.had been used uninterruptedly till Overdeer came; Mrs. Gross was living in the Phillips house, and using the alley when she bought the Overdeer house; witness, as administratrix, made a deed to Mrs. Gross; in the deed the use of the alley was reserved for the occupants of the Phillips house; the alley was used after sale to Mrs. Gross as before. There was other evidence of the use of the alley by the occupants of the Phillips’ house.
    The plaintiff gave evidence by other witnesses that the alley was reserved in the deed.
    He gave evidence that Mrs. Gross directed the man who put up the line fence to make it with an opening four feet at the back of the Phillips house; the post at that end of the fence was placed where it was at the time of the trespass ; at the time of putting up the fence Mrs. Gross said there was right of way reserved.
    The plaintiff’s points with the answers were :—
    1. “ The right of way claimed by defendant, in this case, is an encumbrance on the land owned by the plaintiff. To be valid against the plaintiff, in this case, it should have been put on record ; or actual notice of its existence should have been given to him before he purchased the property. The mere use of the alley puts the plaintiff only upon inquiry, and directs him to the recorded title, and to the time- during which the use has existed. The recorded title in this case is perfect. The administratrix had no right'to alter the terms and conditions of sale, without referring them to the court for confirmation and approval, and the purchaser was not bound to look for any other terms and conditions, than those made in the order of court, and confirmed afterwards. Having discovered that a deed had been executed, the purchase-money paid, and possession given to the first purchaser, he had a right to consider, the deed being lost, that the deed recited only the conditions as recorded in the Orphans’ Court docket, and any other conditions, not recorded, and which would create a lien, or encumbrance of any kind upon the premises, cannot bind him, nor affect his title; and therefore the plaintiff has a right to recover in this action.”
    Answer: “ We cannot answer thisdn the affirmative. Although the right of way claimed by the defendant in this case is an encumbrance on the land owned by the plaintiff — we cannot say that to be valid in this case against the plaintiff, it should have been put on record or actual notice of its existence given to him before the purchase of the property — nor can we say that the use of the alley is only notice to the plaintiff to direct him to the record of-title, and to the time during which the use had existed. Nor do we consider the recorded title in this case perfect. There was an important link in the chain missing, the deed from the administratrix to Ann Gross was wanting. The deed to Overdeer, and the prior deeds from Ann Gross down to Overdeer, all recited the sale by order of the Orphans’ Court. The order of court directed a deed to be made to the purchaser by the administratrix — of this the purchaser had record notice by the decree of court. Was it then their duty, in the exercise of ordinary diligence and prudence, to make inquiry for these deeds, and would such inquiry have led to its discovery ? ”
    “ But plaintiff’s counsel further allege that the administratrix had no right to alter the terms and conditions of sale, and that the purchaser was not bound to look for any other terms than those made in the order of court. Having discovered that a deed had been executed, the purchase-money paid and possession given to the first purchaser, he has a right to consider, the deed b,eing lost, that the deed recited only the conditions as recorded in the Orphans’ Court docket; and any other conditions not recorded which would create an encumbrance upon the premises, cannot affect his title.”
    “ In this case the terms on which the property was sold, are the same as directed by the court, as to payment of the purchase-money. It is true the lot was sold subject to an easement not directed by the court, but this applies more properly to what was sold than the terms on which it was sold. The terms of sale apply to the times and manner of payment. No case has decided that where the conditions of sale reserve an easement for the benefit of an adjoining property, and the purchaser takes a deed with such reservation ; if the easement reserved is not mentioned in the return of sale by the administrator that the purchaser, contrary to the terms of his deed, will hold the property clear of such incumbrance. [The point assumes that the deed to Ann Gross was lost, but the evidence is that this deed was not lost until after the purchase by Overdeer, but remained in the hands of Miss Gross and was exhibited by her to Overdeer after his purchase.] ”
    2. “ No actual notice of the existence of the right of way is proved to have been given to the plaintiff, before his purchase; nor is it proved that either he or the person from whom he purchased knew that such a right was claimed, and therefore the plaintiff has a right to recover in this case; the trespass not being denied, but admitted in the pleadings.”
    “In answer to the second point we say that actual notice of the existence of the right of way is not necessary to the purchaser or those under whom he claims, to defeat a recovery by the plaintiff.”
    3. “ The existence of a deed from the administratrix to the purchaser at the sale, is not necessary to pass the title, if all the conditions of sale have been complied with, and possession of the property given, and if notice of the existence of a deed was not brought home to the subsequent purchaser, his inquiries would be satisfied, by the discovery that the conditions of sale were complied with and possession given, and therefore he was not bound to look for a deed.”
    “ The third point we decline answering as requested. A deed from the administratrix to Ann Gross was necessary to pass the legal title. Although the sale and payment of the purchase-money would give the purchaser an equitable title, a deed is necessary to pass the legal estate.”
    “ It is clear that Ann Gross who took a deed from the administratrix, with the reservation of a right of way over the alley, would hold subject to this easement, but plaintiff’s counsel contend that notice of this deed must be brought home to subsequent purchasers, and their inquiries would he satisfied by the discovery that the .conditions of sale had been complied with, possession given, and therefore they were not bound to look for a deed. It is not necessary, under the evidence in this case, that actual notice should be brought home to purchasers claiming title through Ann Gross, that a deed had been executed to her. The decree and order of sale by the court, directed the administratrix to execute a deed to the purchaser on the 1st of April 1865. This was record notice that the court directed a deed to be executed to the purchaser, and its absence in the chain of title, was notice to subsequent purchasers that they were buying but an equitable title, and the legal estate remained in the heirs of William Hinney.”
    In the general charge the judge referred to the facts, and after adverting to the deed of the administratrix said: * * *
    “ [This deed is now lost, but it is clearly proved by Mr. Shearer, the attorney who conducted the proceedings in the Orphans’ Court, and wrote the deed, and by other witnesses who saw and read the deed in the hands of Ann Gross, the purchaser at the sale by order of the Orphans’ Court, that the reservation of the right of way in the alley was in the deed by the administratrix to Ann Gross, and this is not controverted.] * * * '
    “ The question presented is, whether Mrs. Phillips and her tenants had the right of way over the alley. When Ann Gross sold to Mr. Zinn she did not hand over her deed from the administratrix, and she did not record it, and in her deed to Zinn the reservation of the right of way in the alley to the Phillips property is not mentioned, nor is it mentioned in any of the subsequent deeds down to the deed to Overdeer.” * * *
    “ [The facts do not appear to be controverted, and the counsel of the respective parties have declined addressing you, considering the rights of the parties dependent upon questions of law, and both claiming to recover upon the law arising upon the facts of the case.] ”
    “The rule of law which is applicable to and must control this ease is : That whatever puts a party on inquiry amounts to notice; provided the inquiry becomes a duty, as it always is, with a purchaser, and would lead to the requisite fact by the exercise of ordinary diligence and understanding. The question presented in this case is, does the evidence show that there was enough to put Mr. Zinn, the purchaser from Ann Gross, and the subsequent purchasers, down to Overdeer, upon inquiry which would have resulted in ascertaining that Mrs. Phillips, the owner of the adjoining lot, had a right of way through the alley in dispute. This is a fact for the determination of the jury. The defendant insists upon the affirmation of this proposition, and that it is established, first, by the user of the alley from the time the adjoining house was built by Mr. Hinney, by the tenants and owners of both houses, until’ after the' purchase by Overdeer. And second, by the missing ¿ink in the chain of title, which ordinary diligence could not have failed to discover.”
    [“ The further fact of the missing deed is relied upon as sufficient to elicit inquiry, which would have resulted in ascertaining the true state of the title. This was a very important link in the chain of all the purchasers claiming title, through the sale by order of Orphans’ Court. All the deeds refer to sale by order of court. The’order of court directed a deed to be made to the purchasers. Did ordinary diligence require that the different purchasers should inquire, where is this missing deed ? Where is the deed of the administratrix, to Ann Gross? And if this inquiry had been made, would it have resulted in the discovery of the requisite fact ?] Where would ordinary intelligence and prudence require that this inquiry should be made ? Mrs. Phillips lived in the same town. Her tenants occupied the house, and were in the constant use of this alley, and without any other way of access from the dwelling part to the street. Would an inquiry of Mrs. Phillips, or her tenants, have resulted in ascertaining that she claimed a right of way under a reservation in her deed to Ann Gross ?

      “ And if this was not satisfactory, what prevented inquiry of Ann Gross which would have resulted in thf discovery of the missing deed, for the deed was not lost until months after the purchase by Overdeer, and Miss Gross, who was examined as a witness, states that after the dfficulties occurred between Overdeer and Updegraff, about the use of the alley, Overdeer called on her and she exhibited to him the deed to her from Mrs. Phillips, the administratrix. [Had Overdeer been as prudent and diligent in inquiring about the title, before he purchased, as he was after he attempted to close the alley, the present difficulty between the parties would probably not have occurred.]
    “ From the facts stated we submit to you to say whether they were sufficient to put the parties claiming title through the Orphans’ Court sale, upon inquiry, and whether the exercise of ordinary diligence and understanding would have resulted in the discovery of the fact that Mrs. Phillips had reserved a right of way in the alley in dispute. If you determine this in the affirmative, find for the defendant. If otherwise, then find a verdict for the plaintiff.”
    The verdict was for the defendant.
    The plaintiff removed the case to the Supreme Court and there assigned for error that the court refused to read his points to the jury.
    2, 3, 4. The answers to his points.
    The remaining assignments were to the portions of the charge in brackets.

      S. Hepburn (with whom was A. B. Sharpe), for plaintiff in error,
    cited Demmy’s Appeal, 7 Wright 68; Jacobs’s Appeal, 11 Harris 477.

      C. E. Maglaughlin and W. Shearer, for defendants in error,
    cited Leshy v. Gardner, 3 W. & S. 310.
   The opinion pi the court was delivered, May 27th 1872, by

Williams, J.

The main question in this case is whether the plaintiff’s lot is subject to an easement appertenant to the lot occupied by the defendant. Both lots were formerly owned by William Hinney, deceased, who died seised of them in 1864. He occupied one of them in his lifetime, and his tenants the other, and he opened an alley between them, on the lot now owned by the plaintiff, for the use of himself and tenants. After his death his administratrix sold, by order of the Orphans’ Court, the lot on which the alley was opened without any notice, either in the petition or order of sale, that it was to be sold subject to the easement or right to the use of the alley by the owners or occupants of the adjoining lot. But it was sold subject to the easement, and in the conditions of sale, signed by the purchaser, a right of way was reserved through the alley between the two houses, and four feet beyond the rear of said houses, for the benefit of the owners onf the adjoining property belonging to the decedent’s estate. By the terms of sale, as fixed by the Orphans’ Court, possession was to be given on the 1st of April 1865, when a deed was to be made. The sale was made on the 15th of October 1864, and confirmed oh the 24th of October; and about the 1st of April 1865, the administratrix executed a deed to the purchaser in which the right of way in the alley was reserved to the owners and occupants of the adjoining property then owned by the administratrix, the only daughter and heir of William Hinney, deceased. Strictly speaking, it may be true that an administratrix has no power to change the terms of sale, as fixed by the order of the Orphans’ Court, without permission of the court. But' if the property, ordered to be sold, is subject to an easement or right of way, I know of no reason why it may not be sold, subject thereto, though no notice be taken of its existence in the petition or order of sale; and if the property is so sold and conveyed, it seems to me that the purchaser takes it subject to the encumbrance. If the easement had been appertenant to the lot, can there be any doubt that it would have passed by the sale and conveyance, if expressly sold and conveyed along with the lot, though it may not have been described in the petition, order or return of sale ? If the purchaser, in the one case, would have taken the easement with the lot, why should he not, in the other, take the lot subject to the easement ? In this case Mrs. Gross, the purchaser at the Orphans’ Court sale had notice of the easement, and, by the express terms of the sale, bought the property subject to it; and therefore she would be estopped from claiming to hold it free and discharged of the servitude. So too the plaintiff, who claims title under her, holds the lot subject to the easement if he had notice of its existence and reservation when he purchased it. It is conceded that he did not have actual notice that Mrs. Gross purchased the property, and that it was conveyed to her expressly subject to a right of way through the alley reserved for the benefit of the owners of the adjoining property. But if he had notice of such facts as should have put him on inquiry, and which, by the exercise of ordinary diligence, would have led to the knowledge of its reservation, then he had constructive notice of it, which the law regards as equivalent to actual notice. The alley was plainly to be seen en the ground, and its use by the occupants of the adjoining lot was indicated by the gate in the partition fence which opened into the alley from the adjoining lot. This was sufficient to put him upon inquiry as to their right to the alley, and, if duly prosecuted, would doubtless have led to the knowledge that they claimed the right to its use because it had been laid out by the former owner for the use of the occupants of both lots, and because the plaintiff’s lot had been sold and conveyed to the purchaser at the Orphans’ Court sale, subject to the reservation of a right of way through the alley, for the benefit of the owners of the adjoining lot. But apart from this, if the deed of the administratrix formed an essential link in the chain of the title, it was his duty to examine it, and if he could have procured it by the exercise of ordinary diligence, he had constructive notice of the reservation. If the title did not pass to the purchaser by the confirmation of the sale, but remained in the decedent’s heir until the execution and delivery of the deed by the administratrix, as has been repeatedly ruled, then her deed lay directly in the chain of title, and it was the plaintiff’s duty to make the proper inquiry to obtain it. A sale by order of the Orphans’ Court for the payment of the debts of a decedent is not absolute and unconditional. It depends for its validity upon the approval and confirmation of the Court. But, as said by Mr. Justice Strong in Demmy’s Appeal, 7 Wright 168, the sale, even after confirmation, does not divest the title of the heirs of the decedent, for it remains in the power of the court until a deed has been executed and delivered. Until then, their right to maintain ejectment, even against the purchaser, is not gone: Leshey v. Gardner, 3 W. & S. 314. Until then, no conversion takes place, and if the heir of the decedent die, even subsequently to the confirmation of the report of sale, but before the deed, his interest descends as land, and not as money : Erb v. Erb, 9 W. & S. 147 ; Biggert’s Appeal, 8 Harris 17. If, then, the plaintiff by the use of reasonable diligence might have procured the deed, he had constructive notice of the reservation, and took the lot subject to it. Whether the plaintiff had such notice of the existence and use of the alley hy the occupants of the adjoining lot as was sufficient to put him on inquiry, and which, if prosecuted with proper diligence, would have led to the knowledge that they claimed the right to its use under the reservation in the deed of the administratrix to the purchaser of the plaintiff’s lot, was a question which the court helow submitted with great fairness to the jury.

But if there had been no express reservation of the right to the use of the alley in the conditions of sale, and in the deed executed and delivered to the purchaser, the latter would have taken it subject to the servitude imposed upon it by the decedent for the use and benefit of the occupants of the adjoining lot. It was a continuous and apparent easement, and the law is well settled that in such a case the purchaser, whether at private or judicial sale, takes the property subject to the easement: Keeffer v. Imhoff, 2 Casey 438; McCarty v. Kitchenman, 11 Wright 239; Phillips v. Phillips, 12 Id. 178; Penna. R. R. Co. v. Jones, 14 Id. 417. The principles on which the doctrine rests are so fully and ably discussed in these cases that we need do no more than refer to them. Whether the plaintiff, then, had constructive notice of the reservation of the easement or not, is wholly immaterial. If it was continuous and apparent, as it unquestionably was, he took the lot subject to it. His complaint that the court took from the jury the question whether the deed of the administratrix contained a reservation of the right to the use of the alley by the owners of the adjoining lot, comes with bad grace if, as intimated in the charge, there was no controversy in regard to the fact- on the trial. The eouft say: The facts do not appear to be controverted, and thé counsel of the respective parties have declined addressing you, considering the rights of the parties depending upon questions of law, and both claiming to recover upon the law arising upon the facts of the case.” Neither of the points submitted to the court by the plaintiff was based on the assumption that the deed contained no reservation of the alley, nor was any instruction asked if the jury should find that there was no such reservation. Judging from the points put to the court, it would seem that no question was made in regard to the fact of the alleged reservation. But if the court was mistaken in saying that the facts do not appear to he controverted, the attention of the judge should have been called to the mistake at the time, and doubtless it would have been at once-corrected. But whether it was a mistake or not, it did the plaintiff no harm, if, as we have seen, he took the lot subject to the servitude imposed on it for the use of the owner and occupants of the adjoining lot.

What we have said disposes of all the alleged errors with the exception of the first. This involves a question of fact, and is not sustained by anything on the record, nor by any evidence dehors the record. It is time that it was understood that all such assignments will be disregarded. They cannot be inquired into on a writ of error, and should not be made.

Judgment affirmed.


text:
    Thomas’s Appeal.
    1. A waiver of exemption in favor of one creditor is not ipso facto a fraud on others; especially when the waiver is in the'instrument creating the contract obligation of the debtor.
    2. There is no reason for striking down the debtor’s exemption, in favor of a creditor to whom he has made no concession and in a case involving no question of distribution.
    3. When the question is on the distribution of the proceeds of property amongst creditors having existing liens on it, the law regulates the priority and not the will of the debtor.

      4. If in consequence of his waiver, the debtor is not able to take the $300 out of court; the creditors amongst themselves are governed by the priority fixed at law.
    5. Where the lien of the first creditor is superior to the second, but inferior to the' third, and the second superior to the third, the first creditor will take the fund.
    6. The law will not permit the course of distribution to be interfered with by the debtor.
    7. Execution was issued on a judgment as to which the exemption was not waived and goods levied on: the debtor was entitled to his exemption although there was a subsequent judgment in which the exemption was waived ; no execution having been issued on that judgment.
    8. Bowyer’s Appeal, 9 Harris 214; Shelly’s Appeal, 12 Casey 373, remarked on. Wilcox v. Waln, 10 S. & R. 380 ; Manufacturers’ and Mechanics’ Bank v. Bank of Penna., 7 W. & S. 343; Tomb’s Appeal, 9 Barr 61, recognised.
    May 12th 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Appeal-from the decree of the Court of Common Pleas of Cumberland county: Of May Term 1871, No. 104.
    In matter of the appraisement, under the exemption laws, of the goods of B. F. Thomas.
    On the 9th of March 1866, A. D. Meals entered a judgment for $200 on bond with warrant of attorney against B. P. Thomas. The bond was dated September 25th 1865, and contained no waiver of exemption. On the 2d of October 1866, Alfred Harmar entered a judgment against Thomas for $200, on bond with warrant of attorney dated September 27th 1866. This bond contained a waiver of the benefit of the exemption law.
    To August Term 1870, Meals issued an alias fi. fa. on his judgment,,under which the sheriff levied on the defendant’s personal property and also on a lot of land. Thomas claimed the benefit of tbe exemption law, tbe sheriff caused bis personal property to be appraised and set apart to him, tbe appraisement amounted to $183.25. Tbe real estate was condemned by an inquest. No execution bad been issued on Harmar’s judgment.
    On 26th of November 1870, tbe plaintiff obtained a rule to show cause why the appraisement should not be set aside, on the ground that the waiver of exemption under Harmar’s judgment worked a waiver as to tbe prior judgment of Meals.
    Tbe Court of Common Pleas was of that opinion, and on tbe 25th of May 1871, made tbe rule absolute and set aside tbe appraisement.
    Thomas appealed to the Supreme Court and assigned this order of tbe Court of Common Pleas for error.

      J. Cornman and W. M. Penrose, for appellant.

      W. J. Shearer, for appellee.
   Tbe opinion of tbe court was delivered, May 18th 1871, by

Agnew, J.

We cannot agree with the learned judge of tbe Common Pleas that every time a debtor waives bis exemption of $300 secured to him by tbe Act of 1849, and judgment happens to be entered upon tbe bond or note containing the waiver, it disables him from claiming bis exemption against all execution-creditors who levy on bis goods. A waiver of the- exemption in favor of one creditor is not ipso facto a fraud on others; especially where tbe waiver is contained in tbe instrument itself creating tbe contract obligation of the debtor. A waiver may be given for a consideration of tbe utmost importance to tbe interests of tbe debtor. There is, therefore, no good reason for striking down tbe debtor’s exemption, in favor of a creditor to whom be has made no concession, and in a case involving no question of distribution. Expressions such as used in Bowyer’s Appeal, 9 Harris 214, that “ the law does not give tbe debtor tbe power of preferring those whom be chooses to favor at" tbe expense of those whom be liked less, but whose legal rights are superior; ” and that “whateverbe does not claim for himself or bis. family, be leaves in tbe general fund under tbe control of tbe court to be distributed to those who are legally entitled to it, and such distribution is not to be regulated by any wish of bis,” — are not applicable to this case, however they may furnish a key to tbe decision in that and other cases of existing liens. Tbe principle of Bowyer’s Appeal, reaffirmed in Shelly’s Appeal, 12 Casey 380, overruling Johnston and Sutton’s Appeal, 1 Casey 116, is that among creditors having existing liens upon tbe same property, tbe law regulates their priority, and not tbe will of the debtor. Hence, if in consequence of bis waiver be is not able to take tbe fund out of court, but tbe $300 must remain in custody for distribution among tbe creditors, they among themselves must be governed by their priority as fixed by law. The same principle has been applied to liens in other cases, as in Wilcox v. Waln, 10 S. & R. 380; Manufacturers’ & Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 343, and Tomb’s Appeal, 9 Barr 61. Hence, when the lien of the first creditor is superior to that of the second but inferior to that of the third, and the lien of the second is superior to the third, the first creditor will take the fund because of his superiority to the second, by reason of the superiority of the second over the third. So in the case of existing liens on the subject-matter of the exemption of the debtor, though his exemption would prevail against the first liemcreditor, yet being inferior to the claim of the second lien-creditor he is prevented from taking the fund out of court, and the court being called on to make distribution awards the fund to the first lien creditor because it is superior in law to that of the second, and the law will not permit the course of distribution to be interfered with by the debtor. For these reasons the cases referred to afford no guide in the present case. Here is no question of lien. No creditor has levied upon the goods but the one against whom the debtor claims his exemption. The court is called upon to make no distribution among lien-creditors, and the right of the debtor to his exemption is superior to the right of the execution-creditor’. The exemption must therefore prevail if demanded in proper time. The order of the court below, setting aside the appraisement under the exemption act, is therefore reversed and annulled, and the appraisement ordered to be restored, and the record remitted to be proceeded in according to law.


author: Sharswood, J.

text:
    Lefevre’s Appeal.
    1. As to strangers, mortgagees, purchasers and creditors, the agreement of partners, to make real estate part of the common stock, must be in writing ought to be on record.
    2. If, with the acquiescence of the members of a firm, partnership funds are applied to the purchase of real estate in the name of one member, there is no resulting trust.
    3. Partners may agree that any member may withdraw any part of -the common stock; such part will then become his own.
    4. It is because each partner has an equity to insist upon the application of partnership debts, that joint creditors have priority over separate creditors.
    5. It is not competent to show by parol that real estate conveyed to two as tenants in common, is partnership property.
    6. McDermat v. Lawrence, 7 S. & B. 433, recognised.
    7. Erwin’s Appeal, 3 Wright 535; Hale v. Henrie, 2 Watts 143; McCormick’s Appeal, 7 P. F. Smith 54, considered.
    May 12th 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.

      Appeal from tbe Court of Common Pleas of Cumberland county: No. 106, to May Term 1871.
    The proceedings in the court below were in the distribution of a fund arising from a sheriff’s sale of real estate under an execution at the suit of The Goodyear Rubber Belting and Packing Company, against Gilson Smith, John Smith and John Gribble, trading as Gilson Smith & Co. The fund was claimed by the creditors of Gilson Smith & Co. as the proceeds of partnership property of the firm, and by the individual creditors. of Gilson Smith and John Gribble as the individual property of Smith and Gribble.
    The distribution was referred to M. C. Herman, Esq., as auditor, who, reported, “That Gilson Smith and John Gribble in 1846 began the business of manufacturing threshing machines, which they carried on under the name of Gilson Smith & Co.; until 1852, when they rented the property in dispute, having a foundry erected on it.
    “ There they associated with themselves George Tarman, and began and carried on the foundry business, under the name of ‘ Smith & Tarman,’ and here, also, they continued their old business, under the old name of ‘ Gilson Smith & Co.’ George Tar-man never was a member of the firm of Gilson Smith & Co. He was only a partner in the foundry. In 1854, two years after they had rented, Gilson Smith and John Gribble purchased and obtained the fee simple title to this foundry property, for which they were to pay $1500; of which they paid $500 on the delivery of the deed, and the balance in three annual instalments, for which they gave their obligation in writing, and on which judgment was entered to No. 132, of April Term 1854, against ‘John Gribble and Gilson Smith,’ in favor of ‘Barnet A. Wolf.’ On the 19th of June 1857, this judgment was satisfied in full. The deed is dated May 5th 1854, and is from B. A. Wolf and wife, to ‘ John Gribble and Gilson Smith, and their heirs and assigns, &c.’ The deed has never been recorded. George Tarman retired from the firm of ‘ Smith & Tarman ’ in 1855, after which, in the same year, John Smith was admitted as an equal partner in the foundry, and the following year, in all the business, both in that of the foundry and the manufacture of agricultural implements. From the time of the admission of John Smith, the entire business was carried on in the name of ‘ Gilson Smith & Co.,’ until the time of the sheriff’s sale, on the 11th of March 1870. After the purchase of the property, machine-shops were erected on it, improvements made, and the business of the firm of Gilson Smith & Co.’ enlarged and increased.
    “ Some of the money thus expended in building and improvement, came out of the firm business, and part out of the separate estates of Gilson Smith and John Gribble. During the first year of John Smith’s association with the firm, he worked at the manufacture of reapers as a laborer, and received wages for his services ; but after the first year, when he became a full partner in all the business, he received an equal share of all the profits as an equal partner. The balance of the purchase-money, $1000, due on the property, was paid out of the proceeds of the business, the last two instalments of which were paid after John Smith became a member of the firm. John Smith never paid anything for his interest in the partnership. George Tarman paid nothing when he went in, and received nothing for his interest when he went but, except that the remaining members of the firm assumed the firm indebtedness. Improvements to the value of about $300 were made on the property before the admission of John Smith. Gil-son Smith says in his testimony : 4 John talked about purchasing a deed of the real estate; he never did purchase; * * *
    there was never any definite arrangement about John Smith taking a share of the real estate; we never had a final settlement; it was agreed that he-was to have one-third of the property as soon as we had a final settlement, and he paid for it; John Smith never paid any rent, and no rent was asked for it; * * *
    we never had any regular settlement; we just run the business along, kept our families, and kept up the repairs out of this business ; * * * the expenses of keeping up the business, as far
    as they were paid, were paid out of the business.” Again he says: 4 John Smith never paid me any rent for his interest in the property; I think we would have required him to have made up his proportion of the rent, if on a final settlement he would have taken an interest in the real estate; there was no positive contract about him taking a share in the real estate; two years ago he became dissatisfied with the way the business was. being carried on, and he said he wanted to know what he was doing, or going to do, or something to that amount; we told him if he would go on, and we would have a settlement, why of course he could have a one-third interest, if it was coming to him.’ At the first triennial assessment made after the purchase of this property, it was assessed as the property of 4 Smith & Gribble,’ and continued to be so assessed down to the time of the sheriff’s sale.”
    He awarded the fund to the individual creditors of Gilson Smith and John Gribble.
    Upon exceptions the Court of Common Pleas confirmed the report of the auditor.
    David Lefevre, one of the creditors of Gilson Smith & Co., appealed and assigned for error the confirmation of the auditor’s report.

      F. G. Sadler (with whom was L. Todd), for appellants,
    cited Lacy v. Hall, 1 Wright 360; North Penna. Coal Co.’s Appeal, 9 Id. 181; Hoxie v. Carr, 1 Sumner 190; Bank v. Myley, 1 Harris 544; Abbott’s Appeal, 14 Wright 234; Parsons on Contracts, vol. 1., ch. 12, § 2; 3 Kent 38; Smith v. Smith, 5 Ves. 189.

      J. A. MaCune and W. S. Miller (with whom was J. R. Miller), for appellees,
    cited McCormick’s Appeal, 7 P. F. Smith 59; Hale v. Henry, 2 Watts 143; Ridgway, Budd & Co.’s Appeal, 3 Harris 177.
   The opinion of the court was delivered, May 25th 1871, by

Sharswood, J.

The subject of partnership in real estate was before this court in the early ease of McDermat v. Lawrence, 7 S. & R. 438, and the principles of law in relation to 'it, enunciated and explained by Chief Justice Tilghman in a luminous and exhaustive opinion. He examined all the authorities in England and this country, and the conclusion at which he arrived was, that as to strangers, — purchasers, mortgagees and creditors, — the agreement of partners to make real estate part of the common stock, must be evidenced by writing, and that it ought to be put on record, so as to give notice to the world; otherwise, where the deed is in their individual names, they will hold as tenants in common. The decision in this case was affirmed and applied in Hale v. Henrie, 2 Watts 153; Lancaster Bank v. Myley, 1 Harris 544; Ridgway, Budd & Co.’s Appeal, 3 Id. 177; Kramer v. Arthurs, 7 Barr 170. In Lacy v. Hall, 1 Wright 360, and Erwin’s Appeal, 3 Id. 535, the land was bought by one partner in his own name with partnership funds; and it was held that the equitable interest was in the firm, and in the latter case, the proceeds of a sheriff’s sale were distributed accordingly. “ Had the title,” said Mr. Justice Strong, in Erwin’s Appeal, been taken to both Imhoff and Myers without any assertion on its face that it was treated by them as partnership property, under the ruling in Hale v. Henrie, 2 Watts 143, and several subsequent cases, they would have been but tenants in common; the absence of such an assertion would have been evidential that the parties did not intend to bring the property into partnership stock, but that they intended to take separate interests.” The principle of these cases was, that such a purchase by one partner raised a resulting trust which was within the exception of the Statute of Frauds, and that the former cases grounded upon the provisions of that statute did not apply. It would, of course, follow logically, that when a partnership consisted of three or more, a purchase with partnership funds in the names of two or any less number than all, would on the same reason enure beneficially to the firm. It is to be remarked, however, that in these cases there was nothing from which it was to be inferred that the other member of the firm acquiesced in the appropriation of the common funds to the purchase in the name of the individual member. For him to claim to hold it as his private property, without the consent of his associate, was in fact a fraud. Partners have an unquestionable right to deal with the funds of the firm as they please; and, if, with their consent or knowledge and acquiescence, a portion of their funds is applied to the purchase of real estate in the name of an individual member, and as his private property, there is in such case no resulting trust. The partners may agree among themselves, that any one member may withdraw any part of the common stock, and such part will then become his own; and it matters not how he invests it, even though it be in real estate to be used for the purposes of the firm. He is charged or chargeable with what is so withdrawn and appropriated in account. So if, with the knowledge and consent of all the partners, partnership funds are applied to the improvement of the real estate of one or more members of the fu’m. The equity of the joint creditors can only be worked out through the equities of the respective partners. It is because each partner has an equity to insist upon the application of the partnership property in the first instance to the payment of the firm debts, for which each is liable in solido, that the joint creditors have any preference or priority over the separate creditors of each. When the partners, during the continuance of the firm, have all agreed to the appropriation of the funds to the purchase or improvement of real estate in the private name or names of one or more of the partners, no one of them has any equity to have such property applied to the joint debts; and it follows that the joint creditors have no such equity. It is contended, however, that in McCormick’s Appeal, 7 P. F. Smith 54, a different principle is laid down, and that in all cases, when during the existence of the partnership the funds of the .firm are applied to the purchase or improvement of real estate, there is a resulting trust for the firm. If such be the doctrine of that case, it would overrule Hale v. Henrie, and the subsequent cases cited, which it not only does not profess to controvert or even doubt, but on the contrary expressly approves and affirms them. In Hale v. Henrie the purchase was by the two partners during the partnership with the partnership funds; and Mr. Justice Sergeant said: “ No averment of any right by parol, or by, what is still less, the nature of the fund which pays, or the uses or purposes the property is applied to, can be allowed to stamp a character on the title inconsistent with that appearing on the deed and record to the prejudice of third persons.” And again he uses this language, which is directly applicable to the present contention: “The money with which Capp and Henrie purchased the property was their own. They could appropriate it as they pleased, and they chose to appropriate it to a purchase for thems'elves individually, and not as partners. Having done so, it cannot be defeated by proving otherwise than by deed or writing, that they held as partners.” In Ridgway, Budd & Co.’s Appeal, the deed was to the partners in the firm name, but expressly as tenants in common; it was bought during the partnership, and with the partnership funds, and it was nevertheless held, that when partners intend to bring real estate into partnership, their intention must be manifested by deed or writing placed on record; and it is not competent to show by parol evidence, that real estate conveyed to two persons as tenants in common was purchased and paid for by them as partners, and was partnership property. “ This is finally settled,” said Mr. Justice Rogers. “ In all such cases, parol testimony is totally disregarded.” In McCormick’s Appeal, Mr. Justice Strong indeed said: “ Undoubtedly a partnership may hold real estate, and they may have a resulting trust when the partnership funds have paid for land. Such was the case of Erwin’s Appeal, 8 Wright 535. So there may be a constructive trust in favor of a firm, as was held in Lacy v. Hall, 1 Wright 360; but these come within the exceptions to the Statute of Frauds. In both these cases, the lands were acquired after the partnership had been formed, and while the joint business was in progress. But here there is no resulting or constructive trust. The agreement, if there was any, to put the land into the joint stock, was made before the firm had any being, and the partnership funds did not pay for it. A parol agreement to put land into a firm, or to consider it as firm property, made before the firm exists, is wholly ineffectual to pass a title either in law or equity.” Itis clear that he did not mean to hold, that when without fraud, but with the knowledge and consent of all, partnership funds are applied to the purchase or improvement of the private property of one or more of the individual members of the firm, there would be a resulting trust for the firm, of which the joint creditors could avail themselves.

According to the facts of this case, as reported by the auditor in the court below, the real estate, the proceeds of which were in court for distribution, was purchased by Gilson Smith and John Gribble in their individual names, before the formation of the firm of Gilson Smith & Co. The cash payment on account of the purchase-money, and. the first instalment, were paid by them before John Smith became a partner. He acquiesced in the subsequent appropriation of the firm funds to the payment of the balance, and to the expenditures made in improvements, knowing that it stood in the individual names of Gilson Smith and John Gribble. The money so taken and applied, if not actually charged, would be chargeable against them on final settlement. It was expressly agreed that John Smith was to have one-third of the property as soon as there was a final settlement, and he had paid for it. This parol agreement gave him no title, and if it did, it would be as an individual. There was certainly nothing in this which would create a resulting trust for the partnership; and the distribution reported by the auditor, and decreed by the court below, was therefore perfectly right.

Decree affirmed, and appeal dismissed at the costs of the appellant.


text:
    Brotherline versus Hammond. Same versus Juniata Iron Manufacturing Company.
    1. In 1794 a tract of 400 acres in Woodberry township was warranted in the name of “Daniel Kritler/' and surveyed as 461 acres. It was assessed in Frankstown (cut off from Woodberry) till 1846 (from 1838 in the name of “Daniel Kladder”) and the taxes paid by the owner. Blair township was afterwards erected from Frankstown, and the tract continued to be assessed in Blair in the name of “Kritler,” the owner still paying the taxes. After 1846 a tract of 230 acres was assessed in Frankstown in the name of “ Klad~ der,” and another of 230 acres in the same name in Huston, which had been cut off from Woodberry. The 230 acre tract in Frankstown was sold for taxes: the purchaser entered on the tract in Blair, claiming that it was the tract he had bought. Held, as matter of law, that there was no evidence of the identity of the Frankstown 230 acres with Blair tract.
    2. Glass v. Gilbert, 8 P. F. Smith 266; Lyman v. Philadelphia, 6 Id. 488; Philadelphia v. Miller, 13 Wright 440, adopted.
    May 15th 1871.
    Before Read, Agnew, Sharswood and Williams, JJ.
    Writs of error t’o the Court of .Common Pleas of Blair county: No. 30 and 34, to May Term 1871.
    The two cases brought up by these writs of error were actions of trespass q. c. f. against John Brotherline; one brought January 6th 1869, by The Juniata Iron Manufacturing Company ; the other brought January 21st 1869, by Essington Hammond.
    The actions were for the same trespass, viz. Entering upon a tract of land in Blair township, on which the iron company claimed the right to cut timber and of which Hammond claimed the fee simple. The tract had originally belonged to Dr. Peter Shoenberger, under whom the plaintiffs claimed. The defendant claimed title under a treasurer’s sale for taxes.' The only question raised was the identity of the tract sold to the defendant, on which it was admitted the defendant had cut timber, with that owned by Shoenberger.
    The cases were tried together, November 4th 1869, before Taylor, P. J.
    The plaintiffs gave in evidence a warrant, February 13th 1794, to Daniel Kritler for 400 acres of land in Woodberry township, Huntingdon county, and survey July 12th 1794, of 461 acres 97 perches in Woodberry and Frankstown townships, patent to Jonas Hartzell, November 23d 1818, and deed Hartzell to Dr. Shoenberger, December 15th 1818. Dr. Shoenberger died in 1854. In 1866 the mining company obtained title to the iron ore and the timber on the tract for mining purposes; in 1868, the land was conveyed to Hammond excepting the interest previously conveyed to the company.
    In 1846, the county of Blair was formed from Huntingdon county and embraced the townships of Woodberry and Franks-town. Huston township was afterward formed out of Woodberry township, and about 1856, Taylor township was formed out of Huston and Woodberry townships.
    The plaintiff gave evidence that part of the tract was in Blair township, which was formed from Huston; and part in Franks-town ; the cutting was done in Blair township.
    The defendant gave evidence of a treasurer’s sale to him of 230 acres in Frankstown township in the name of “ Daniel Kladder,” for taxes of 1859, 1860, deed acknowledged August 13th 1862. He gave in evidence the assessment books of Huntingdon county from 1805 to 1846; they showed assessments of 461 acres 97 perches to Jonas Hartzell from 1807 to 1818 inclusive, in the name of “Daniel Kridler;” assessments from 1819 to 1846 to Dr. Shoenberger, viz., 1819, 1820, 461 acres 97 perches in the name of “Daniel Kridler;” 1821, same quantity in the name of “ Daniel Kritler ; ” 1822 to 1826, inclusive, 461 acres 7 perches, “Daniel Kredler;” 1827, 1828, “Daniel Kredlin;” 1829 to 1834, inclusive, “Daniel Kritler; ” 1835 to 1837, “Daniel Kridler;” 1838 to 1846, when Blair county was erected, “Daniel Kladder.”
    It was admitted that Dr. Shoenberger paid the taxes on this tract until 1846.
    He then showed by a certified copy of the assessment of Franks-town, whilst in Huntingdon county, for 1846, assessment to Dr. Shoenberger in the name of “Daniel Kladder,” 461 acres 7 perches; the next assessment, 1847, is the same; it was not on the assessment from 1848 to 1852 inclusive; 1853, “Daniel Kladder,” 416 acres ; not on the assessment from 1854 to 1859, inclusive ; 1860, “Daniel Kladder,” 461 acres; 1861, not in; 1862 to 1867 inclusive, “ Daniel Kladder,” 461 acres 7 perches, it being erased in 1867, and marked “no such tract found.”
    In Huston township 1847 — 1848, “ D. Kladder,” 230; in 1849 it is not there; 1850, “ D. Kladder,” 230 acres. In 1856, 1857, after Taylor township was cut off, it was assessed in that township on the seated list in the name of “D. Kidler, 230 acres.”
    He then gave in evidence the land ledger, page 142, headed “Huston, Taylor, Frankstown,” showing charges to “Daniel Kladder ” for 230 acres in Frankstown from 1847 to 1866 in-elusive. For 1847 to 1848 Dr. Shoenberger paid the taxes; 1849 to 1852, taxes paid by J. Penn Jones; for 1853 to 1856 the taxes were paid, but it did not appear by whom. For 1859 to 1866 by defendant. In 1847 and 1850 there appeared assessments of 230 acres, “ Daniel Kladder part.”
    The plaintiff in rebuttal gave in evidence “Land Ledger” for Blair township, showing charges to “ Daniel Kritler ” for 400 acres from 1847 to 1854 inclusive, also 1863 to 1864; payment by Dr. Shoenberger for 1848 to 1850 ; payment by D. C. McCormick for 1851 to 1854. Also assessment in Blair township for 1860, “Dr. Kritler” 400 acres; also “Land Ledger Frankstown township,” page 47, charges to “Daniel Kladder” from 1846 to 1851, on 461 acres and 7 perches; with the further entries “ 1852 June 14th sold to county commissioners,” “ 1864 January 24th, commissioners sold to John Oresswell.” “Should be ‘Daniel Kritler,’ as appears by report of Mr. John Oresswell for the Land Office, Harrisburg, showing that there is no such tract as ‘ Daniel Kladder,’ 31st October 1867. J. Baldridge, clerk.”'
    After this information, the commissioners took the tract back and refunded the money to Oresswell.
    The plaintiff proved by William Forbes that as manager for McCormick, who was the successor of Shoenberger, he had charge of paying the taxes on the Kritler tract from 1856 to 1866; he paid taxes on it after the sale to Brotherline; paid up to 1865 or 1866. Forbes had the Kritler tract put on the seated list. Plaintiff gave evidence that there was no “Kladder” tract in that vicinity; but that there were two about three miles distant, one in the name of Daniel Kladder, and the other in the name of Jacob Kladder. The defendant’s theory was that the one half of the tract, 230 acres, was regularly assessed in Frankstown township, and the other half in Huston or Taylor; that the assessment of the 230 acres in Frankstown sold to him, was a regular assessment of the 461 acre tract warranted in the name of Daniel Kritler.
    Judge Taylor charged
    * * * “ But the question still arises, is the assessment of Daniel Kladder as containing 230 acres in Frankstown township, a regular assessment of Daniel Kritler, containing 491 acres and 97 perches, shown to lie in Blair township ? Is it, upon the face of the assessment, the same tract ? Is it, upon any fair inference that can be drawn from all that appears on the books, or in the evidence, the same land ? If it was the same land, the land upon which the cutting was done, that was assessed and sold under the other name, and that made apparent by sufficient evidence, then the'sale would vest the title in the defendant. [It is the land that is taxed and sold; but the land cannot be correctly taxed and sold under any name or designation. It must be assessed in some name by which the tract is known — some name connected with it, or some ownership of it, so as to identify it and give not only the owner notice but inform bidders what tract is intended to be sold. There must be some such identification.
    “Now, is this tract identified by name in the assessment? Daniel Kladder is an entirely different name from Daniel Kritler. Some difference in the spelling of a name is of but little consequence ; and there are some variations in the assessment of this" Kritler traced in Huntingdon county down to 1837, where it occurs sometimes Kritler, and once Krydler, and again Kritler. These variations do not materially change the name, it being still idem sonans. • But Kladder and Kritler are as essentially different names as any other words of two syllables beginning and ending with the same letters. They are not idem sonans. There is nothing in the sound of one that could suggest the other. They are different names. Then again, while it is a different name, the assessment was of a tract of different quantity, and as lying in another township. Now, in all this, there is an entire absence of every element of identification.
    “ It is answered, however, that going back to the assessment of the Kritler tract to Dr. Shoenberger in Huntingdon county, it is discovered that although from the date of Hartzell’s deed down to 1837, the tract was represented as Kritler, yet the last two years it had been changed to Kladder, and that the certified list from the assessment of 1846 shows that it was introduced into the commissioners’ office of this county as Kladder, and first put in taxation here as Kladder. But a previous assessment of a tract, properly or improperly made, does not do away with the necessity of a proper designation of it at the time it is sold; some designation that indicates in the assessment itself to the owner or purchaser what tract it is; either from its own name or the name of some owner. How it was assessed on some former occasion, correctly or incorrectly, is not sufficient to make out its identity.
    “But upon this subject we find the commissioners here were not laboring under any mistake, or at least the mistake of supposing that Daniel Kladder, 230 acres in Frankstown township, was the same and identical with Daniel Kritler, 461 acres and 97 perches, in Blair township. Their mistake, if it was a mistake, evidently was in supposing that there were two tracts represented by these different names, as of the different quantities and in the different localities. For, in 1847, the first year after the erection of this county, they assessed Daniel Kritler, 400 acres in Blair township, where it belongs. * * * That the commissioners or assessor should have stumbled by chance upon a correct name in this way, so as to get it letter for letter, is not supposable. It is only to be accounted for on the supposition that they had ascertained and knew the true name of the tract. This mark of identity is most convincing. Besides it is in the same township where it is represented to be, and there continues to be assessed from 1847 down to 1854, and as the books show the taxes all the time paid for seven years after the erection of the county, the first seven years of the existence of the county as a county. * * *
    “ It will be remembered, also, that during the same years prior .to the sale ; 1846-7-8-50-51 — at least down to 1851 — the same commissioners were taxing and assessing Daniel Kladder as lying in Erankstown township. Now, could this be accounted for on any other hypothesis than that the commissioners understood, believed, and treated Daniel Kladder as a different tract from Daniel Kritler ? Is it not plain, taking all the facts together, can there be a doubt that the commissioners were led into the error, if it was an error, and acted under it all through, of supposing that they had two tracts at least, represented by these names, to deal with, if not more ? * * * * * *
    [“ The question of identity is generally a question of fact, to be decided by the jury. It is to be determined by the jury when there are facts upon which the question should be submitted. If it were so submitted, in view of the facts in evidence already stated and discussed, and the further fact that the commissioners after-wards took back a treasurer’s deed to Mr. Cresswell for the Daniel Kladder tract, having a note put on the book, which stands there, that the tract had no existence; it seems to us so perfectly plain that the commissioners thought they were dealing with two tracts — that they thought they were assessing another tract of land distinct from this one when they were assessing and selling the Daniel Kladder — that we do not see how you could have a doubt upon the question.”]
    [“We are, however, constrained to say to you that we regard the Philadelphia case reported in 6 P. E. Smith, 13 Wright, as establishing a proper and necessary rule; one that is calculated to insure reasonable accuracy on the assessment and sale of unseated lands for taxes, and to protect all the parties interested against the consequences of loose and careless practice; and as applicable to this case. And we accordingly instruct you that Daniel Kladder, 230 acres, in Erankstown township, does not designate Daniel Kritler, a tract of different quantity, shown to be in another township; and that there is nothing in the evidence which aids the identification ; and, therefore, we say to you, as matter of law, that the defence on this -ground fails, and that your verdict must be for the plaintiff.”] ******
    The verdict was for the plaintiff in each case.
    The defendant removed the records to the Supreme Court, and assigned the parts of the charge in brackets for error.

      S. Calvin, for plaintiff in error,
    referred to Philadelphia v. Miller, 13 Wright 440; Lyman v. Philadelphia, 6 P. F. Smith 488; Glass v. Gilbert, 8 Id. 266.

      S. S. Blair, for defendants in error, referred to the same cases.
   The opinion of the court was delivered, May 25th 1871, by

Agnew, J.

The locus in quo of the trespasses complained of in these two actions, was upon a tract owned by the late Dr. Peter Shoenberger, warranted in the name of Daniel Kritler, and containing 461 acres and 97 perches, lying in Blair township, Blair county. It had been assessed in that name for many years in Blair township and taxes paid upon it by Dr. Shoenberger, and after his death by those who succeeded to his title. It was therefore a well-known tract situate in that township, and the same land without dispute upon which the alleged trespass was committed. The defendant attempted to show title in himself, by proving a sale for taxes of an unseated tract of land assessed in the name of Daniel Kladder, containing 230 acres, in Frankstown township. The burthen of proof was on the defendant to show the identity of the tract sold — that it was the same as the well-known tract in the warrant name of Daniel Kritler of 461 acres 97 perches lying in Blair township. The judge below held that there was nothing in the names which could identify them as one and the same tract on the principle of idem sonans, and therefore identification must be derived from other sources. The quantity of land in each, and the townships, afforded no means of identification, and that there was no other evidence which under the circumstances of the cause could warrant the conclusion, that the Daniel Kladder tract of 230 acres in Frankstown township was the Daniel Kritler tract of 461 acres in Blair township. In such a case it would require very clear and satisfactory evidence that they were the same. The tract owned by Dr. Shoenberger was assessed in its true name in Blair township for many years before the sale, and he had paid .taxes always for it there. The division of the township had taken place in 1846, and his land was assessed in Blair township ever afterward. But the defendant relied on the fact that the land had been assessed in the name of Daniel Kladder in Frankstown township before 1847, and in and after that year that 230 acres were assessed in the same name in Frankstown township, and 230 acres assessed in that name in Huston township which had been cut off from Woodberry township in 1846, making up the whole of the Daniel Kritler tract. Had not the whole of the Daniel Kritler warrant been taxed in its true name in Blair township where it actually lies, and the owner of it been accustomed to pay the taxes of the tract as in that township, there might be a color for the argument that the tract sold was the same tract as the Kritler tract. But the commissioners cannot thus tax the whole tract in its proper name and quantity in its proper township, and tax it also in two parts in two other townships, where it does not lie. This would mislead everybody — owner,, treasurer and purchaser. Now when the tract is found assessed in its proper township for years and taxes paid for it as there, to hold that a former misnomer of the tract which had dropped out of memory for many years, would justify a sale of one half of it by that misnomer in a different township, and of the other half by the same misnomer in a third township, is monstrous. If such loose proceedings can strip a man of his property, there is no safety. This case is governed by the principles laid down in the case of The City of Philadelphia v. Miller, 13 Wright 440, reaffirmed in Lyman v. City of Philadelphia, 6 P. F. Smith 488, and also in Glass v. Gilbert, 8 Id. 266. We agree with the court below that under the circumstances of this case there was no sufficient evidence from which the jury could infer that the sale of the Daniel Kladder tract of 230 acres in Frankstown township, could carry the title of the Daniel Kritler tract of 461 acres in Blair township.

The judgment is therefore affirmed.


text:
    Miller versus Garman.
    1. A vendee of the stock of a hotel, took possession and controlled its management for eight days, the vendor with his family remaining in the house and acting under the direction of the vendee ; there was no apparent change in the conduct of the business. This possession in the vendee was concurrent, and therefore fraudulent and void as against the vendor’s creditors.
    2. After the eight days the vendee removed, and surrendered the possession to the vendor. If the possession had been exclusive in the vendee, this would have rendered it void.
    3. In order to render a sale of goods valid against creditors, the change of possession must be both actual and continued.
    4. Billingsley v. White, 9 P. F. Smith 464; and McKibbin v. Kline, 14 Id. 352, distinguished.
    May 15th 1871.
    Before Read, Agnew, Sharswood and Williams, JJ.
    Error to the court of Common Pleas of Dauphin county: No. 50, to May Term 1871.
    This was an issue under the Sheriff’s Interpleader Act, ordered September 6th 1870, in which Edward Miller was claimant and plaintiff, and Jonas Garman defendant.
    B. F.. Miller and W. W. Foster, as partners, kept a hotel known as the “ Yalley House,” in Dauphin county, and were the owners of the furniture and stock of liquors, &c., in it. On the 1st of July 1870, they sold their furniture, &c., to Edward Miller the plaintiff here, and gave him a bill of sale. On the 2d of July, Garman, the defendant, holding judgments against B. F. Miller, issued executions against him and on the 13th of July, the sheriff levied at the hotel on the furniture, &c., sold to Edward Miller, who claimed to be the owner of the property ; and this issue was framed to try the ownership of the goods levied on.
    The evidence was that after the sale, Edward Miller stayed in the house and had possession for about eight days, Foster remaining there for a short time till he could get another house. B. F. Miller still continued in the house; Edward Miller did not move his family in; he leased to B. F. Miller on the 8th of July. "Whilst Edward was there B. F. Miller acted under his control, no notice was given to the boarders of the change; Edward locked up the house.at night; he told transient guests that he was proprietor. On the 15th of July 1870, a notice dated July 1st, appeared in a newspaper signed by Edward,that he had purchased the furniture and fixtures of the Valley House.
    After Edward left at the end of the eight days, B. F. Miller took charge of the house, was there at the time of the levy and continued there. There was no change in the appearance of things after the sale. There was evidence that Garman, on the 1st of July, knew of the sale to Edward.
    The court (Pearson, P. J.), after recapitulating the facts and stating the principles of law, charged that on the whole evidence the sale to Edward Miller was fraudulent and void in law, however honest in fact; and directed a verdict for the defendant.
    The plaintiff took out a writ of error and in seven specifications assigned the charge for error.

      J. C. McAlarny, for plaintiff in error,
    cited Stelwagon v. Jefferis, 8 Wright 412; Hugus v. Robinson, 12 Harris 9; Dunlap v. Bournonville, 2 Casey 72; Barr v. Reitz, 3 P. F. Smith 256; Billingsley v. White, 9 Id. 464; Forsyth v. Matthews, 2 Harris 100; McVicker v. May, 3 Barr 224.

      J. W. Simonton, for defendant in error,
    cited Braun v. Keller, 7 Wright 106; Young v. McClure, 2 W. & S. 150; Milne v. Henry, 4 Wright 352.
   The opinion of the court was delivered, October 9th 1871, by

Williams, J.

There are seven assignments of error in this case, but the sole question presented by the record is, Whether the sale was fraudulent and void in law because there was no such actual and continued change of possession as is requisite in order to render a sale valid as against the vendor’s creditors ?

This case is unlike the case of Billingsley v. White, 9 P. F. Smith 464, and the cases of McKibbin v. Martin and McKibbin v. Kline, 14 Id. 352. In the first, the evidence showed that the vendee took possession of the store immediately after the sale, and that he conducted the business in his own name and on his own account for ten months before the sheriff’s levy; that notice of the sale and change of possession was given by advertisements put up on the door of the store and in the town or borough; that these advertisements were seen and read, and that it was well known in the community, and by the vendor’s customers who dealt with the vendee after the sale, that he was carrying on the business in his own name and apparently on his own account. The only badge of fraud in the case was the fact that Billingsley, one of the vendors, acted as the vendee’s agent or clerk in carrying on the business after the sale, and that Patterson, the other vendor, who was farming a field in the neighborhood, sold a few goods in the store. But there was no evidence that either of them ever bought or sold any goods in the name of their firm or on their own account, or that either had any connection with the vendee’s business except as his agent or employee. If the sale was not fraudulent in fact, we held, for the reasons given in the opinion, that the evidence did not show such a case of retained possession, or a possession so doubtful or ambiguous, as to render the sale fraudulent in law. In the latter cases — in which the sale was of the furniture and fixtures, lease and good-will of the Merchants’ Hotel in Philadelphia — notice of the sale and that the business would thereafter be carried on by the vendee was given by advertisements in two of the newspapers published in the city. The vendee took charge of the business, received the income and paid the bills when necessary; had a new set of books opened, bills printed, rendered and receipted in his name. But the vendors remained in the hotel assisting in conducting the business — one of them acting as superintendent. In view of the nature of the property it was held that the vendee was not bound to remove it, but that “ it was enough if he assumed the direction and control of the property and business, and in such an open, notorious' manner as usually accompanies an honest transaction. Whether all was done that ought to have been done in this instance, and whether the change of possession was real and bona fide — not merely colorable and deceptive, leaving the actual possession and control in the vendors — were,” as said in the opinion, “ questions of fact which ought to have been submitted to the jury.”

But in the case before us, the possession taken by the plaintiff was not exclusive. At the most it was only concurrent and it continued but seven or eight days, and was then surrendered, when the vendor had the exclusive possession and carried on the business just as he did before the sale. It is clear that if the concurrent possession proved in this case had continued down to the date of the sheriff’s levy and sale of the goods, that it must have been deemed colorable and fraudulent: McKibbin v. Martin and the cases there cited; and if the possession for the seven or eight days succeeding the sale had been exclusive instead of concurrent, it would not have vested the title in the plaintiff because the possession was then surrendered' to the vendor. Change of possession must not only be actual, but it must be continued in order to render a sale valid as against the vendor’s creditors. The court below, therefore, rightly instructed the jury that “ on the whole evidence the sale to Edward Miller was fraudulent and void in law. That however honest in fact, it vested no title as to the creditors of B. F. Miller, and their verdict must be in favor of the defendant in the issues.”

Judgment affirmed.