author: Mr. Justice Sterrett

text:
    Koch’s and Balliet’s Appeal.
    1. Where the right to mine ore or other minerals is granted in consideration of the reservation of a certain proportion of the productto the grantor, the law implies a covenant on the part of the grantee to work the mine in a proper manner and with reasonable diligence, so that the grantor may receive the compensation or income contemplated when the agreement vras entered into ; but unless there are special reasons for equitable interference, such covenant will not be enforced in a court of equity, as an adequate remedy is afforded by an action at law for damages.
    2. A. covenanted with B. that the latter should have the exclusive right to mine the iron ore on A.’s land, one-sixth thereof to be paid to A. The mining was carried on for some years, when B. suspended operations. A. then filed a bill in equity to compel B. to proceed with the mining or to deliver up the contract for cancellation, and the court made a decree accordingly, and awarded damages. Held, that this was error ; that there was no jurisdiction in equity, as' an action at law for breach of covenant would clearly lie.
    March 5th 1880.
    Before Sharswood, C, J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Lehigh county: Of January Term 1877, No. 174J. In Equity.
    Bill in equity filed by Benjamin Guth and others, heirs and administrators of Daniel A. Guth, deceased, against John Koch, Sr., Lewis B. Balliet, executor of Stephen Balliet, deceased, and Edward . H. Balliet and others, heirs o'f said Stephen Balliet, deceased.
    The bill was filed March 3d 1873, and alleged, in substance:
    1. That on August 23d 1842, Daniel A. Giith, since deceased, entered into an agreement with Christian Pretz and others, as follows: “ For the consideration hereinafter mentioned, the said party of the first part hereby covenants, grants and agrees, to and with the said parties of the second part, that he, the said party of the first part, will, and does hereby grant, permit and allow the said parties of the second part, their heirs, executors, administrators and assigns, the exclusive right and privilege to open pits, sink shafts, mine and make all necessary work for mining and for mining purposes, in or upon all or any part of all that tract or parcel of land owned by said party of the first part, situate in the township of South Whitehall aforesaid, for the purpose of digging and mining iron ore, and all other kinds of minerals and ores, and to mine, dig, take away from said land, soil, use and dispose of iron ore, and all other kinds of minerals and ores. The said parties of the second part, their workmen and laborers, to do as little damage to the land, wood growing thereon and premises, as the nature and proper prosecution of the proposed undertakings will permit. In consideration whereof, the said parties of the second part, promise and agree to give and to deliver to. the said party of the first part, or to his heirs, executors,' administrators or assigns, the one-sixth part of all the iron ore, and of all other ores and minerals, which they, the said parties of the second part, their heirs, executors, administrators or assigns, may move, dig or cause to be moved or dug from, in or upon tlio said land, the one-sixth part to be delivered at the mouth or mouths of the pit or pits, free and clear of all expenses' to him, the said party of the first part, his heirs and assigns. The remaining five-sixths parts of all the aforesaid ores and minerals to belong to and be the property of the said parties _ of the second part, their heirs, executors, administrators and assigns. And the said party of the first part further agrees, that the parties of the second part may, if they deem necessary, erect one or more buildings for the accommodation of those employed in the mines upon said land, provided, that if at any time the said parties of the second part, their executors, administrators or assigns shall finally abandon the working of said mines, the said party of the first part shall have the first chance to purchase such buildings, and if a price cannot be agreed upon, then said building or buildings sliall, at the expense of the said parties of the second part, their executors, administrators or assigns, be removed from said lands. And, it is further agreed, that if limestone shall be mined or quarried upon said lands by the said parties of the second part, their executors, administrators or assigns, they may sell the same, paying one-sixth part of the proceeds of sale to said party of the first part, his heirs or assigns.”
    2. That on the 5th of December 1851, the parties of the second part in the above agreement, assigned and transferred to John Koch, Sr., and to Stephen Balliet, now deceased, all their rights and privileges under said contract.
    3. That under and in pursuance of the aforesaid contract, and in carrying out its object — the mining and raising of iron ore and other ores and minerals — John Koch, Sr., and Stephen Balliet, and his legal representatives, built, erected and maintained extensive machinery and improvements, and sunk pits and shafts for mining purposes, and for thirty years or more, dug, mined, raised and disposed of large quantities of iron ore, paying to the persons entitled thereto the one-sixth part of said ores, averaging about $3500 annually.
    4. That about the 1st of'April 1872, the respondents, without any cause, and in violation of the terms of the aforesaid contract, entirely oeased and abandoned the digging, mining and raising of iron ore, and other ores and minerals, upon the said premises, and the delivery of any portion thereof to complainants, and have persistently and without cause, ever since said date, continued their abandonment, by reason whereof your orators are deprived of all income and rental from said lands.
    5. That although repeated offers have been made by responsible parties to the respondents to work and operate the said mines on terms as favorable to the respondents as can reasonably be had, all such offers have been refused; and notwithstanding complainants have often requested and notified the respondents to resume said mining operations, or surrender or rescind the aforesaid contract, they have refused, and still refuse, to comply. And your orators aver that they are informed, and believe, that respondents do not intend to carry out the purposes and intentions of the said contract.
    6. And further, that there is on said described tract of. land a large and valuable bed of iron ore, which can be profitably worked.
    In consideration whereof, and as complainants can have no adequate remedy at law, they pray that the court may decree and direct “ that the aforesaid respondents, within as reasonable time as to the court may seem meet and proper, shall proceed to dig, mine and raise iron and other minerals upon said land, and deliver the one-sixth part thereof to complainants, according to the spirit and intent of the said contract or agreement; or, in default thereof, to cancel, rescind and deliver up the aforesaid contract or agreement.”
    The respondents demurred to the bill on the ground that the complainants had an adequate remedy at law.
    The court overruled the demurrer, when respondents filed an answer, which (1) admitted the first and second paragraphs of the bill to be substantially true, but averred that on the 2d of March 1848 there was executed a supplemental agreement between Daniel A. Guth and C. Pretz, as agent and partner of the Guth Mining Company, wherein it was stipulated that as the mining company had built certain buildings on the lands, it was agreed that Guth should pay one-half the taxes; that the company should pay Guth rent for the land on which the buildings were erected, and the gardens attached thereto ; that if tho ores should become exhausted, or the company at any time should see fit to surrender its lease, and the parties should fail to agree upon tho price at which Guth should take said houses, that they should resort to a method of appraisement which was set forth in the agreement. And the answer averred that this supplemental agreement was included in the transfer alluded to in the second paragraph of the bill.
    2. The answer admitted the mining and raising of iron ore by respondents’ sub-tenants and lessees, mentioned in paragraph third of plaintiff’s bill, but they denied that they worked said mine thirty years, and denied the sum of $3500 averaged annually.
    3. It denied the matters alleged in paragraph four, and averred that respondents never abandoned the said mines, but leased the same to tho Crane Iron Company in the year 1852, and the said company operated and worked the mines until 1872 ; that long before tho expiration of the said lease, the respondents tried all means of an extension of said lease, and to lease to other parties, as is sot forth in the answer.
    4. It denied generally the matters set forth in the fifth and sixth paragraphs of the plaintiff’s bill.
    5 and 6. It denied the right of the plaintiffs to maintain their bill, and asked that it might be dismissed.
    A general replication was filed, and the court referred the case to T. B. Metzger, Esq., as master, who took a large amount of testimony in support and denial of the allegations of the bill and answer, and then reported a decree dismissing the bill, on the ground that the complainants had an adequate remedy at law. Exceptions were filed by complainants, and after argument tho court again referred the case to the master, “with instructions to entertain tho complainants’ bill, to consider and marshal the testimony, and report the findings of fact, as required by the rules of equity practice, to determine and assess the damages, and to report a form of decree.”
    The master filed a second report, wherein he found as follows :
    “ The facts proven in this case are these :
    “ 1. Tho original writing between Daniel A. Guth and Christian Pretz, ot al.
    “2. The assignment of this writing to Koch, Sr., and Stephen Balliet, now deceased, by Christian Pretz et al.
    “ 3. Tho working of the Guth mines, in connection with the Koch and Balliet mines, by the Crane Iron Company, up to April 1872, under lease from Balliet and Koch for a term of twenty years.
    “ 4. That the income of the Guth heirs was nearly, if not quite, $3500 a year; and that the yield of ore from their mines was on an average six thousand tons per year, of which the complainants, were entitled to the sixth ton of merchantable ore, delivered at the pit or pits, under the original writing between D. A. Gruth and C. L. Pretz, George Probst et al.
    “ That the complainants have proved a refusal on the part of the respondents to extend this same lease, viz.: the lease of Crane Iron Company with Koch, Sr., and Balliet, now deceased, sometime before the original lease expired; but they have not proven the fact, that the respondents neglected, refused or were indifferent to a leasing of these same premises to parties other than the Crane Iron Company. On the contrary, it is established by indisputable testimony, that the respondents made diligent endeavor to lease these premises to others, immediately after the expiration of the six months, which the Crane Iron Company had for the removal of their machinery.

      “ The measure of damages would be the price of ore per ton from November 1872, to the time of final decree.
    “ The testimony is, that the yield of ore would have continued the same. This being so, the Guth heirs would have been entitled, and would, in case this present finding of facts is not sustained, be entitled to one thousand tons per year, at the prevailing prices which were to be from $3.50 to $4.00 per ton. I cannot fix this rate more accurately, because no more accurate standard is fixed by the testimony. This disposes, I believe, of all questions, and complies fully with the directions of your honorable court.
    “ In view of these findings, I again respectfully submit the decree reported by me heretofore.”
    Both complainants and respondents filed exceptions to this report. The court, Longaker, P. J., filed an opinion and made a decree : “ That within thirty days from this date, the defendants pay unto the plaintiffs the sum of $8615.10, with interest from January 1st 1877 ; and that within the same period, they proceed, with diligence and in a reasonable and proper manner, to prosecute the work of digging, mining and raising iron ore upon and from the premises, in such quantities as the capacity of the mines and the quantity of ore upon the premises will warrant; and that they deliver to the complainants, at the pits’ mouths, the one-sixth part of the ore so mined, free and clear of all expenses to the complainants. And that in case of the failure or default, on the part of the respondents, to comply with and perform the directions of the foregoing decree in every particular; then, that within five days after the expiration of the aforesaid thirty days, the respondents rescind, cancel and deliver upon to the complainants, the contract or agreement.”
    From this decree the defendants took this appeal, alleging that the court erred in overruling the demurrer and in entering the above decre

      John D. Stiles and Morris L. Kauffman, for appellants.
    The demurrer and the answer both deny that equity is the proper remedy. The jurisdiction is given under art. 6, sec. 2 of the Act of 1836, “ affording specific relief when a recovery in damages would be an inadequate remedy,” or it does not exist.
    It does not confer universal, or even general, equity powers. There must be no adequate remedy at law. Equity jurisdiction is limited in this state. There is nothing contrary to law in refusing to carry out the terms of a contract; and damages cannot be decreed in equity for a breach. The limited chancery powers of our courts extend only to prevent acts contrary to law: Hagner v. Heyberger, 7 W. & S. 104. An action of a purely equitable nature cannot be maintained for the purpose of giving damages: Von Beck v. Village of Rondout, 15 Abbott (N. Y.) Practice 48; Stevenson v. Buxtar, Id. 352; Kauffman’s Appeal, 5 P. F. Smith 383.
    To justify the cancellation of a contract requires a stronger case than is required to resist a specific performance : Brainard v. Holsaple, 4 Green (Iowa) 485. Equity will not order an instrument to be delivered up or cancelled except in a very clear case. If a defendant may possibly have any rights under it, the parties will be left to their remedy at law: Stewart’s Appeal, 28 P. F. Smith 838. The rescission of an executed contract will not be decreed except on proof of fraud or mistake : Graham v. Pancoast, 6 Casey 89 ; Nace v. Boyer, Id. 99; Davidson v. Little et al., 10 Harris 245; Geddes’s Appeal, 30 P. F. Smith 442.
    The agreement of 1842 was a grant of the ore in place: Caldwell v. Fulton, 7 Casey 480 ; Clement v. Youngman, 4 Wright 345 ; Barker v. Dale, 3 Pitts. R. 190.

      R. E. Wright & Son and Edward Harvey, for appellees.
    Where there is a lease of an ore mine, or the grant of a right to mine ores, and the consideration of the grant or the rental reserved is a certain proportion of the ores mined or a royalty thereon, the law implies a covenant upon the part of the lessee to work the mines with diligence and m a proper manner, so that the grantor may receive the return contemplated in the lease or grant: Sharp v. Wright, 28 Beavan 150; Bainbridge on Mines, 1st Am. ed., b. 214 ; Shrewsbury v. Gould, 2 B. & Ald. 487 ; Brainerd v. Arnold, 27 Conn. 617; Lyon v. Miller, 12 Harris 393; Watson v. O’Hern, 6 Watts 362. In Pennsylvania it has been held that it is not merely where there is a remedy at law of some kind that a bill in equity will not lie, but the remedy must be full, complete and adequate. Where the damages recovered in an action at law would not be a complete compensation, or the amount could not be certainly fixed, or where the remedy at law would result in a multiplicity of suits, it has frequently been held that the remedy at law is not complete, and adequate, and that parties may resort to a court of equity, where a decree can be framed so as to prevent future litigation, and fix permanently the rights of all parties concerned: Brainerd v. Arnold, supra; Finley v. Aiken, 1 Green 84; Brightly’s Eq. 247, 609; 1 Story’s Eq., ch. 4, sect. 47; ch. 14, sect. 80 ; Bank of Kentucky v. Schuylkill Bank, 1 Pars. 180 ; Bank v. Adams, Id. 537; McGowin v. Remington, 2 Jones 56; Campbell’s Appeal, 30 P. F. Smith 311.
    The appellants, instead of honestly proceeding to operate the mines, refused, for a period of nearly six years, to perform their covenant, thus depriving the appellees of a large income to which they were clearly entitled, and making a fraudulent and unfair use of the contract. And if the appellants decline, in obedience to a decree of the court below, specifically to perform their implied covenant, but persist in holding the lease without performance, then a court of equity will not hesitate to order its cancellation at the suit of the lessors : Duncan’s Appeal, 7 Wright 67 ; Wilson et al. v. Getty et al., 7 P. F. Smith 266; Hetrick’s Appeal, 8 Id. 477; Lippincott v. Whitman, 2 Norris 244; Souders’s Appeal, 7 P. F. Smith 498; Coleman’s Appeal, 25 Id. 441; Wilhelm’s Appeal, 29 Id. 121.
   Mr. Justice Sterrett

delivered the opinion of the court May 3d 1880.

The agreement which forms the basis of claim in this case was made in August 1842, by and between Daniel A. Guth, of the one part, whose interest therein is now represented by the appellees, plaintiffs below, and Christian Pretz and others, parties of the second part, to whose rights, duties and obligations the appellants succeeded by virtue of sundry assignments of the agreement. Guth, being then the owner of the land, covenanted and agreed with the “ parties of the second part, their heirs, executors, administrators and assigns, to furnish and allow them * * * the exclusive right and privilege to dig, mine and take away all iron ore and all other minerals which are or may be found in or upon the land” described in the agreement; “and for that purpose to open pits, sink shafts, and to make and erect all necessary works for the purpose of digging and mining said ore and minerals and taking the same from said land,” &c. In consideration whereof the parties of the second- part covenanted and agreed “ to deliver to the said party of the first part, or to his heirs or assigns, the one-sixth part of all the iron ore and of all other ores and minerals which they * * * may mine or dig, or cause to be mined or dug, in or upon said land. The said one-sixth part to be delivered at the mouth or mouths of the pit or pits free and clear of all charges and expenses to the said party of the first part,” &c. “It being agreed and understood by all the parties that the remaining five-sixths part of all said ores and minerals shall belong to and be the property of the said parties of the seeond part, their heirs, executors, administrators and assigns.” This was followed by a supplemental agreement, made in March 1848, by which it was provided that each party should pay one-half of the taxes ; that the grantees should pay a certain rent for land occupied by their houses, stables, &c.; and, in case the mines should become exhausted, or the grantees should “ for any other cause see fit to surrender and give up their lease of said mines,” provision is also made for valuing and disposing of the houses, stables, &c.

The bill charges that, in pursuance of the agreement, the mines had been successfully worked for many years, and yielded a large income to the plaintiffs; that, on or about April 1st 1872, the defendants, “ without any cause whatever, and in violation of the terms and spirit of the aforesaid contract and agreement, entirely ceased, suspended and abandoned, or caused to be suspended and abandoned, the digging, mining and raising of iron ore and other ores and minerals upon the said premises, * * * and have persistently, and without cause, ever since continued their abandonment and suspension of the mining, digging and raising of said iron ore and other minerals;” and then concludes with a prayer for a decree that the defendants shall, within a reasonable time, proceed to work the mines and deliver one-sixth of the ores and other minerals mined to the plaintiffs, according to the spirit and intent of the agreement; or, in default thereof, cancel, rescind and deliver up the contract, and for “ such further relief in the premises as may seem agreeable to equity and good conscience.”

The master very .properly found that the mines had not been actually abandoned by the defendants, nor had anything been done that amounted to an abandonment. While it was shown that they had declined to extend the lease of the Crane Iron Company before it expired, and did not afterwards work tlio mines themselves, the master finds that immediately after the expiration of that lease they made diligent but unsuccessful efforts to lease the mines for the purpose of mining. They may perhaps have failed to comply with the terms of the agreement according to its true intent and meaning, hut there was nothing done or omitted to be done that would justify the cancellation of the agreement. At most, they rendered themselves liable to damages for neglect to work or cause the mines to bo worked. While the rights granted are without limit as to time, and the agreement contains no express covenant as to how the mines shall be worked, or that any specified amount of ore shall be taken out, it does not follow that the appellants were at liberty to operate the mines or not as they saw fit. It was evidently the intention of the parties that they should bo worked with reasonable diligence, and that would depend largely on the circumstances. The quantity and quality of the ore, and the demand that existed from time to time, would necessarily enter more or less into the question of due diligence. If the ore proved to be abundant and of good quality, and the demand was such as to justify a vigorous prosecution of the work, the spirit of the agreement manifestly required that it should be so worked. Where a right to mine iron ore or other minerals is granted, in consideration of the reservation of a certain proportion of the product to the grantor, the law implies a covenant on the part of the grantee to work the mine in a proper manner and with reasonable diligence, so that the grantor may receive the compensation or income which both parties must have had in contemplation when the agreement was entered into. This principle appears to be recognised in Watson v. O’Hern, 6 Watts 362, and Lyon v. Miller, 12 Harris 392. In the former, a lease of a stone quarry in consideration that the lessee should pay a certain price per perch for all the stone taken out,, was held to be a contract on his part that he would work the quarry, and, upon his failure to do so, the lessor might maintain covenant, and recover damages. It is there said, “ If the defendants had any excuse, legal or equitable, from the responsibility thus assumed by their agreement, it lay upon them to show it. The plaintilf was not bound to prove the extent of their capacity to fulfil the contract. The lease pre-supposes they would work the quarry, and gives them the entire control over the premises; and, being themselves acquainted with their own business and concerns, they were better prepared to show the extent to which they were able to work it, or, if not worked at all, the reasons for their inability. Not having done so, it was for the jury to give such damages as they might deem a compensation for the loss of rent.”

Assuming then that appellants neglected and refused to work the mines with reasonable diligence, it is very clear that the appellees had a complete and adequate remedy at law for the recovery of such damages as they may have sustained.

There was no allegation of fraud, accident or mistake in the procurement or execution of the agreement, nor was there anything alleged or shown that would justify a mandatory order on the appellants, requiring them to proceed and prosecute the work of mining within a specified time, on pain of forfeiting their rights under the agreement. Nor could it be justly claimed that by proceeding in equity a multiplicity of suits would be avoided. While the agreement remains in force, the right of action must necessarily depend on breaches of its provisions, and non constat that any will occur hereafter. The only claim that has been made and sustained with any degree of success is the demand for damages resulting from a breach of the agreement, and for that there was no doubt an adequate remedy at law. Where proper ground for equitable relief is laid and sustained, and jurisdiction has thus attached, courts of equity will proceed to award compensation or damages where they are incidental to such relief, but not otherwise. Wo think the conclusion reached by the master in both of his reports, that the bill should be dismissed, was correct.

Decree reversed and set aside; and it is now' ordered and decreed that the bill he dismissed, and that the appellees pay the costs, including the costs of this appeal.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Naftzinger versus Roth.
    1. In a proper ease the rights of parties under a parol contract for sale of land may be settled in assumpsit; bnt the plaintiff must show that his right of action had accrued before its commencement.
    2. In such an action the plaintiff is not entitled to a conditional verdict, to enforce specific performance of the verbal contract to convey land, until he clearly shows that he has strictly complied with all the terms of the agreement.
    3. Assumpsit will not lie to recover the value of improvements upon the defendant’s land where the plaintiff remains in uninterrupted enjoyment of the improvements, and the land appurtenant thereto.
    March 5th 1880.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Green, JJ., absent.
    Error to the Court of Common Pleas of jBerks county: Of January Term 1879, No. 197.
    Assumpsit by Daniel Roth against Philip Naftzinger, for breach of a verbal contract by the defendant to conyey certain land to the plaintiff.
    At the trial, before Sassaman, A. L. J., Roth testified : “ I am a blacksmith ; am nephew of defendant. He lived in the spring-house upon his property. I made an agreement with Naftzinger in the spring of 1871. He said he was old ; could no longer work ; I should move to his property ; build house, barn and blacksmith-shop ; he wanted to live on the premises, and if I lived longer than he I should have the property; he said he must live on the land, but if we could not live together, and were quarrelsome, he wo'uld move away, and I must pay him the interest of §1500 as long as he lived. This was the agreement, and upon this I built. In the first -place, the agreement was — he should not live with me because it would cost too much for building for the first few years. He had money himself, and it cost me too much to build; then I should board him. He had reserved for him a room in the new-house. Under this agreement, I built on the premises, and I wanted to give him the hoard right away; he didn’t take it long. I built house, stable and blacksmith-shop; made garden fences; put lime on land, and planted trees. * * * If I had to pay for boarding to work hands and money expended, it would be about $3000. * * *
    “ On November 13th 1872, I went into possession of this new house. I commenced building in the spring of 1872. According to what Naftzinger said, it is 30 acres of land. * * * Naftzinger lived with me one and one-half years, as near as I can say; so long I furnished the boarding. He left in October 1874, I think, as near as I know. He said the boarding was not good enough for him; not clean enough. * * * In the beginning it was said there should be papers made. After I had the house up partly, the people got talking about my putting up the house without papers. I told him; he said he would have it written, but he would not die that week, and asked me to see Esquire Haak; I saw Esquire Haak; he did not do it; then after that he said no more about it; this was before I lived there ; he boarded with me; the papers were not begun to draw up.” * * *
    Roth, on cross-examination, testified: “ The understanding was that Naftzinger was to board with me and have the interest from me of $1500 at the same time. * * * I paid no interest on the $1500. Until the agreement is finished I do not think I owe any. Since October 1873, I had the income of the place; not worth much; place .too poor. I can’t say when we first spoke of a writing, but it was during the winter, before building. After the building was up and I think the plasterers in, I spoke to him about the writing. He said we would make it, but he would not die that week. Then I did not speak again; I thought he should then speak. Before I began building, I was to go to Esquire Haak to see if he could make the writing. Naftzinger spoke first about it. After it was started, nothing was said till plasterers were in house. There was more than twice spoken about the writing. During the winter it was often spoken; perhaps three or four times spoken about putting it in writing, but it was never done.”
    P. Naftzinger testified: “ I own the land in dispute — 30 acres. I was 72 years old July 15th 1876; I meant I was too old to live, alone; I thought I wanted help. He and his wife came to me four years ago; we spoke about it; they wanted to come to me; I told the wife it might make a good deal of trouble; we then talked about till we came to my house; then I said they might tear down the old house and might build a new one; I told them I wanted to live with them, but perhaps it was too late for that year.
    “ There was a bargain he must pay me interest of $1500, but I would board with him, when one could. There were so many people there during building that it would not suit. The $1500 I said he must pay me as I needed, until I had enough, and I must be buried at the end; I was to have part of this money when I needed it; I was to have the interest of the money till I needed more; then after I liad needed more I wouldn’t get the interest any more in full. Before the building was torn down he came often; some other people came about making a bargain, then he came oftener; we were together first in the smith-shop; then we spoke; it was in the winter, towards spring, that we talked about it; that was the first time we talked about it; after that he came to see me at my house; during that time Roth was up at Esquire Ilaak’s to see if he could'make it, but I did not send him up. He said Haak had said he should just go on with the building; he said Haak said he could draw it if no legal heirs were here. Before the building was torn down we both thought we were too smart; we needed no writing. After the house was torn down he commenced building the new house; pretty complete ; then he said there ought to bo a barn built; I said, Yes, he should ; he built a blacksmith-shop before the barn, I guess ; he wanted to work in it, or I guess he would not have built it; he got the wood for the house from the place, but not all; too dry to saw it. When they were plastering, he came down and asked me for the right, the deed; I then said I would not give up my deed yet; I would not die yet; I wanted a bond to lay on the land; some one to read it first; I would lay it on the land; Roth did not say what he wanted it for; he didn’t speak of it after. * * * For allowing Roth to have the land and build on I wanted this bond, so that I was safe; I wanted to live on the land ; he was to give me the interest every year for my clothes, and if it was not enough, some of the principal.”
    There was also in evidence a notice dated December 4th 1874, served by the defendant upon the plaintiff to quit all the land “ except such as may be necessary to the use of the buildings thereon, and next adjacent to said buildings.”
    The ninth point of defendant, which the court refused, was: “ From the whole evidence shown in this case, the plaintiff has shown no cause of action, and no recovery can be had.”
    The court instructed the jury to bring in a special verdict, who found as follows :—
    “ Jury returns that they find in favor of the plaintiff the sum of §2955.78. The judgment to be released if within thirty days after final judgment on the verdict Philip Naftzinger tenders and files in this suit a deed from himself to Daniel Roth, his heirs and assigns for a tract of land in Upper Bern township, containing 80 acres, more or less, and subject to the following conditions: That Philip Naftzinger shall have the use, during his natural life, of the back room of the new house, and that Daniel Roth, his heirs and assigns, shall and will, furnish Naftzinger all necessary food, victuals and board and attendance; and if the said Roth and Naftzinger cannot agree together, in lieu of board, food, victuals and attendance, the said Roth shall pay to Naftzinger, annually, the interest on fifteen hundred dollars ($1500) during his (Naftzinger’s) natural life.”
    In entering judgment on the verdict, the court, inter alia, said :—
    “ When this case was on trial, we were considerably perplexed about it. It was evident to us. that the parties to this suit had got themselves into a condition by their contract relations which they hardly understood themselves at any time, and by which after an attempt to execute it, they only got into a worse state of understanding, in fact, into actual misunderstanding. From the demeanor of the parties towards each other, one would have really supposed that there was no comprehensible contract relation between them. Owing to this apparent uncertainty, during the trial we were unable to arrive at any fixed notions of the law, which should control our own legal view of the situation. On this account we declined to answer the defendant’s points, on the trial, except the last, which we negatived, leaving the jury to pass on the question what the contract between these parties really was, reserving the answers to the defendant’s eight remaining points as matters of law which should control the case upon the finding of facts by the jury for the future action of the court. * * * Taking the submission of the case with our disposition of the points presented together, we are now of opinion that there.can be no dispute as to what was manifestly reserved for the decision of this court. As matter of law, we are now of the opinion, upon reflection, that this suit was maintainable, and the only remedy which the plaintiff had. Both parties were in possession of this property at the time of suit, disputing each other’s right. The defendant had the legal title, and had, by unequivocal notice to the plaintiff, chosen to make a breach of contract, which, if consummated, would have amounted to a rescission of his contract.”
    The defendant took this writ and, inter alia, alleged that the court erred in the refusal of his ninth point. The case was argued in this court, and on March 26th 1879, the Supreme Court affirmed the judgment of the court below. A motion was made for a re-argument, and on April 3d 1879, an order issued therefor.

      William, P. Bard and A. G. Green, for plaintiff in error.
    Roth, while remaining in possession of the land and enjoying the rents, issues and profits, cannot maintain an action at law for the value of the improvements erected: Cornell, Executor, v. Vanartsdalen, 4 Barr 372. Suit was originally brought under the mistaken idea that Roth could recover for his expenditures while still in possession, and the case only contained the common counts, the object being with the recovery of a judgment to sell the land on execution, and thus enable Roth to buy the property and get rid of the liability to pay the $1500. As this object could not be attained, his action was changed by filing a special declaration, into a vehicle for specific performance, and by this adroit device to save the suit and fix the alleged rights of Roth by means of a special verdict. This cannot be done in this case.
    There is no evidence of breach of contract on the part of Naftzinger. The only act which could be so construed is the service of the notice to quit, but it specially excepts so much of the land as the buildings occupy and as is necessary for their enjoyment, and was therefore harmless. Plaintiff’s only remedy was a bill to perpetuare testimony.
    To enforce specific performance of a parol contract for the sale of land, it is indispensable that the precise terms and nature of it be clearly and distinctly proved : Sage v. McGuire, 4 W. & S. 228 ; Ackerman v. Fisher, 7 P. F. Smith 457 ; Harris v. Richey, 6 Id. 395.

      C. H. Schaeffer and George F. Baer, for defendant in error.
    Roth could have waited until after the death of Naftzinger, and then sued his representatives in assumpsit and recovered the sums expended by him: Hertzog v. Hertzog’s Administrators, 10 Casey 418 ; Ewing v. Thompson’s Administrators, 16 P. F. Smith 382. Where a parol contract of sale is precise as to the terms and subject-matter, and the vendee has taken possession in pursuance of it, and made valuable improvements, with the assent of vendor, it is not within the Statute of Frauds; and in such case, if the vendor brings ejectment, the jury ought to find a conditional verdict: McGibbeny v. Burmaster, 8 P. F. Smith 332; Farley v. Stokes, 1 Pars. Eq. 422; Milliken v. Dravo, 17 P. F. Smith 232. Specific performance has been decreed in this state in actions of covenant, debt, ejectment and assumpsit: Decamp v. Feay, 5 S. & R. 323; Haverstick v. The Gas Co., 5 Casey 254; Huber v. Burke, 11 S. & R. 238; Irvine v. Bull, 7 Watts 323.
   Mr. Justice Trunkey

delivered the opinion of the court, May 3d 1880.

Roth testifies: “ I made an agreement with Naftzinger in the spring of 1871. He said he was old; could no longer work; I should move, to his property; build house, barn and blacksmith-shop ; he wanted to live on the premises, and if I lived longer than he, I should have the property; he said he must live on the land, but if we could not live together and were quarrelsome, he would move away, and I must pay him the interest of §1500 as long as he lived. This was the agreement, and upon this I built. * * * He had reserved for him a room in the new house. Under this agreement I built on the premises, and I wanted to give him the board right away ; he did not take it long.” According to his testimony, he put up buildings and made improvements at a total cost of §3000 ; he commenced building in the spring of 1872 ; still has possession and has had the income to his own use ; after his house was partly built had talk with Naftzinger about papers, none were drawn up; in the beginning it was said there should be papers; he and Naftzinger quarreled; the latter told him he would not live there longer than five years; quit boarding with him, and gave him notice to quit possession, except of*so much of the ground as necessary for usé of the buildings. Roth has paid no interest, has demanded no writing, and has not been disturbed in the actual possession of any part of the premises. Since the spring of 1872, he has possessed and enjoyed all to which he was entitled by the contract, as proved by himself.

Naftzinger’s testimony differs materially as to the consideration, he saying, that the $1500 were to be paid when he should require. Neither says they agreed as to writings, both say they were talked of — both agree that Roth should have the property, if he survived, but whether Naftzinger was to secure it to him by deed or will is as uncertain in the proofs as in the pleadings.

The plaintiff, being in the enjoyment of all that came within the contract, as he stated it, abandoned his claim for damages merely, and set up a claim for specific performance to be enforced by a conditional verdict and judgment. He has as little right to maintain this suit for specific execution of the contract, without showing precisely what the contract was, his own performance, and breach by defendant, as to recover the value of improvements of which he has not been dispossessed. In this state there is no doubt, that in a proper case, the rights of the parties under a parol contract for sale of land, may be settled in assumpsit; but the plaintiff must show that his right of action had accrued before its commencement. A defendant, sued by the holder of the legal title, may plead his equity to defeat recovery, or to secure a condition to the recovery, though not in position to maintain suit himself. Roth has a heavier burden than he would have, if sued by Naftzinger for recovery of the land.

The learned judge of the Common Pleas says, “ When this case was on trial, we were considerably perplexed about it. It was evident to us, that the parties to this suit had got themselves into a condition by their contract relations, which they hardly understood themselves at any time, and by which, after an attempt to execute it, they only got into a worse state of understanding, in fact into actual misunderstanding. From the demeanor of the parties towards each other, one would really have supposed that there was no comprehensible contract relations between the parties.” Such was the chancellor’s first impression of the case. Reflection and the verdict changed his views of the character of the evidence. Whether it was sufficient to warrant a decree for specific execution of the contract, we shall not consider; for we are of opinion, that it should clearly appear that the plaintiff had performed or offered performance on his part, before bringing suit in assumpsit, in order to obtain a verdict equivalent to such decree. He failed not only to show the kind of writing, if any, he was to have, but he proved no offer of writing to secure payment of the consideration, and request of Naftzinger to execute either a deed or will. The defendant’s ninth point ought to have been affirmed.

Judgment reversed.


text:
    Reading and Columbia Railroad Company versus Latshaw.
    1. The fact that after the passage of a train dry grass and other combustible materials wore discovered burning along the line of a railroad is not of itself evidence of negligence on the part of the railroad company -
    2. In an action against a railroad company for damages, alleged to have been caused by fire lighted by sparks from a locomotive, it appeared from the evidence on the part of the plaintiff that the fire occurred when the day was dry and windy, and the grass along the line of the road was in a very combustible condition; that after the train had passed smoke and fire were observed at several points near the burning. It was not shown that the sparks were of an extraordinary size, nor was there any testimony from which a failure to use a sufficient spark-arrester or- improper management of the locomotive could be inferred. On the contrary it was shown by the company that the spark-arrester was of the most approved kind and in good order, and that reasonable care was exercised in running the engine. Jfeld* that the evidence of negligence on the part of the defendant was- not sufficient to submit to the jury.
    March 5th 1880.
    Before Sharswood, C. Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Green, JJ., absent.
    Error to the Court of Common Pleas of Berks county: Of July Term 1879, No. 16.
    Caso by John Latshaw against the Reading and Columbia Railroad Company, for burning his grass, fences and woods, which he alleged was caused by sparks emitted from, a locomotive of defendant.
    An appeal was taken from the award of a board of arbitrators, and the case came on for trial on September 6th 1875.
    The evidence disclosed the following facts r On April 5th 1872, a freight train passed the plaintiff ’s' field drawn by the locomotive “ Oshkosh.” The field was on the line of the road, and about a quarter of an hour after the train passed a fire was discovered therein. The fire first started in a stubble field about fifteen paces from the railroad, whence it spread to the adjoining woods and fences. It burned in the fields of three owners and extended on both sides of the railroad. Shortly after the train passed the smoke from the fire appeared, and was soon seen along the road from one hundred to five hundred yards. No- one saw how the fire originated. There was some wind blowing at the time. On the part of the defendant the general manager of the railroad, who was assistant-superintendent in 1872, testified that he was a practical machinist and had given much attention to the question of spark-arresters, and had experimented therewith; that the one in use on this locomotive, at the time of the fire, was the best in use in the year 1872. The chief-engineer of the railroad, the engineer of machinery and the superintendent, all testified to the effect that the spark-arrester on the Oshkosh was the most approved in use at that time; that it was made the duty of the engineer to see that the spark-arresters were daily examined; that the wear or any break therein could be easily detected; that a neglect to have them inspected daily by the employee charged with that duty would cause his removal. The engineer who was in charge of the locomotive also testified that, on the day of the fire he had personally examined the arrester and found it in good order.
    The following were among the points of the defendant, with the answers of the court thereto:
    1. That as the only evidence offered by plaintiffi was, that shortly after the freight train passed, on the morning of the 5th of April 1872, the grass was seen to be on fire, there is no evidence of negligence in the case, because the burning of the grass along the line of the road is not negligence, nor evidence thereof, and therefore the verdict must be for defendant: Railroad Co. v. Hendrickson, 30 P. F. Smith 190.
    2. That as the uncontradicted testimony of the case shows, that the spark-arrester on the locomotive was of the most efficient kind and in good condition, and there is no evidence of mismanagement or carelessness in the running of the train, the defendants are not guilty of negligence, and the verdict must be for the defendants : Railroad Co. v. Yerger, 23 P. F. Smith 121.
    Ans. “ The mere fact of grass burning along the line of the road is not of itself evidence of negligence; and if the jury find that the spark-arrester was of the most efficient kind and in good condition, and the train was carefully run, the verdict must be for the defendants. But the jury may consider the evidence, as testified to by plaintiff’s witness of fire on both sides of the road, in Zinn’s, Fisher’s and Latshaw’s fields, from ten to fifteen steps from the railroad, and of the smoke above and below, from one hundred to five hundred yards, in determining whether negligence existed or not, and whether or not the spark-arrester was in good condition and the train carefully run.”
    4. That under the evidence, the verdict must be for the defendants.
    Ans. “ The court cannot charge as requested on this point.”
    In the general charge the court, Hagenman, P. J., inter alia, said:

      “ The locomotive named Oshkosh drew the train; and it is alleged by plaintiff, that the spark-arrester was defective and at fault; and as the engine travelled, an unusual quantity of sparks was thrown out, setting fire to the dried grass and fences on both sides of the road, and caused the burning complained of. The evidence of plaintiff, of Abraham Fisher, Isaac Fisher and James Beard, is submitted, and is relied upon to sustain this action. * * * The plaintiff’s evidence showed, that after the train passed, the grass began to burn on both sides of the railroad, burnt in Zinn’s field, Fisher’s field, and two places in Latshaw’s field, ten to fifteen steps from the railroad, and that it smoked along the road above and below, from one hundred to five hundred yards. This testimony tended to contradict that of defendants, however strong. It therefore becomes a question for the jury, and one which must be submitted for their decision. If the jury find that there was negligence on the part of the company in the running of the engine, whereby an unusual and extraordinary amount of fire was thrown out, firing the grass and fences and burning plaintiff’s woods, the verdict should be for plaintiff for such damages as the jury find from the evidence he has sustained.”
    Verdict for plaintiff for $190.95, and after judgment thereon, defendant took this writ and, inter alia, alleged, that the court erred in the above answers to the points, and in the portion of the charge noted.

      George F. Baer, for plaintiff in error.
    The rulo laid down in Railroad Co. v. Hendrickson, 80 P. F. Smith 190, that “ when a railroad company uses the most approved spark-arrester, and proper care and vigilance in the running of engines, and the landowner’s barn, or haystack, or meadow takes fire, he has no remedy,” is of no practical protection to railroad companies, so long as its application is referred to the decision of a ju-ry.
    One groat fault of the charge was, that it magnified the facts proven, and supplemented them with allegations of negligence not proven. There was no evidence that “ as the engine travelled an unusual quantity of sparks was thrown out;” that it was running faster than usual; that there was carelessness in handling the fire, or that the spark-arrester or machinery was in any way defective.
    From mere testimony that the grass along the railroad was seen burning on a day after a train passed, it is not proper to allow a jury to infer negligence against the uncontradicted evidence of defendants, that the spark-arrester was perfect and the fires properly handled: Railroad Co. v. Hendrickson, supra; Pennsylvania Railroad Co. v. Stranahan, 29 P. F. Smith 405; Railroad Co. v. Yerger, 23 Id. 121.

      A. G. Green, for defendant in error.
    The defendants’ contention is, that because the testimony of the company’s witnesses as to the perfect condition of the spark-arrester, and the careful management of the engine on the day of the fire, was not contradicted, therefore, there was nothing for the jury to pass upon. The trial was by jury; and whether uncontradieted or not, it was still for the jury to say whether they believed this evidence. The plaintiff gave evidence of a number of fires kindled, as he alleged, by sparks from the freight train. This was evidence ,of negligence. The testimony in regard to the spark-arrester was intended to contradict this evidence. It was certainly proper for the jury to say whether they believed this testimony or not. [See Jennings v. Railroad Co., ante, page 887, and Schultz v. Railroad Co., ante, page 341. — Rep.]
   Mr. Justice Sterrett

delivered the opinion of the court, March 15th 1880.

It must be conceded that the plaintiff below was not entitled to recover without sufficient evidence of negligence, on the part of the railroad company, in consequence of which his property was injured or destroyed. The only allegations of negligence were the failure of the company to use a sufficient spark-arrester, and carelessness in the management of its engine. There was not a particle of direct evidence of either, and the jury was asked to infer one or both from the fact that the dry grass, stubble, &c., were ignited in several places on both sides of the road. The substance of the testimony, on the part of the plaintiff was, that on the 5th of April, when the fire occurred, the weather was dry and windy, and the dead grass, &c., along the line of the road was in a very combustible condition; that, after the freight train had passed, smoke and fire were observed at several points in the immediate vicinity of the burning. It was not shown that sparks of an extraordinary or unreasonable size were emitted, nor was there any other testimony from which failure to use a sufficient spark-arrester, or improper management of the engine could reasonably be inferred. On the contrary it was shown, on the part of the company, that the spark-arrester in use was one of the most approved kind and in good order, and that reasonable care was exercised in running the engine.

The company in operating its road had an undoubted right to use steam-engines ; and no person, natural or artificial, is answerable in damages for the reasonable exercise of a right, accompanied with a proper regard for the rights of others. The company was bound, however, to use spark-arresters of the most approved kind, keep them in good order, and exercise reasonable care and diligence in running its engines. It was shown affirmatively, by uncontradicted testimony, that all this had been done. The bare fact that dry grass and stubble on the line of the road were ignited, was not of itself evidence of negligence in either of these particulars. It is impossible to so construct or equip an engine that no sparks will be emitted. The most that can be done is to prevent the escape of large sparks or coals. The most approved sparkarresters necessarily permit the escape of small sparks, and if these come in contact with dry and combustible material on a windy day, the result is very frequently a fire, more or less extensive, according to the kind and quantity of material at hand for it to feed upon. The burning of dry grass and other combustible material along the line of the road, in the manner testified to in this case, without more, was neither negligence nor evidence from which a jury would be justified in finding negligence. The principle involved in this case was recognised and applied in Jennings v. The Railroad Co., ante, page 337. Upon a state of facts, differing in no essential particular from those of the present case, the jury was instructed to render a verdict for the defendant; and in affirming the judgment it is said: “ To hold that the fact of the fire having taken place was prima facie evidence that the sparkarrester was defective, and, therefore, that the case ought to he submitted to the jury, would be practically to hold railroad companies liable for all fires; for it is a notorious fact that no sparkarrester has yet been invented to prevent all sparks, and a little spark may kindle as large a conflagration as a large one. It depends on the dryness or humidity of the atmosphere whether a spark will go out before reaching the ground, and whether what it reaches is in a condition to be easily ignited.”

We are of opinion that the testimony was insufficient to justify the submission of the case to the jury.

Judgment reversed.

The plaintiff subsequently petitioned the Supreme Court to award a new venire, on the ground that there was additional evidence existing on the subject of negligence which, in the opinion of counsel, would be sufficient to establish negligence on the part of the employees of the company.

The petition was refused.


author: Mr. Justice Mercur

text:
    Royse versus May.
    1. The right of amendment maybe liberally allowed, but not to such an extent as to substantially change the cause of action.
    2. In trespass vi et armis against a constable for an excessive distress, the declaration averred that the plaintiff held the premises as the tenant of B., that a certain amount of rent was due, and that the distress made was excessive. The court allowed the plaintiff to amend so as to change the averments which admitted the tenancy. Held, that this was a substantial change of the cause of action and should not have been allowed.
    3. Where in such a case the tiarr. does not declare, under the Act of May 10th 1871, allowing double damages for distress where no rent is due, there can be no recovery under its provisions.
    4. When assignments of error merely state the names of witnesses, whose testimony was received or rejected without specifying the particular evidence as required by the rules of this court, they will be disregarded by the Supreme Court.
    March 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Bradford county: Of January Term 1878, 3STo. 301.
    Trespass vi et armis by WiIlium May against L. T. Royse.
    B. O. Barnes, in June 1875, was the owner of a farm situate in Bradford county, Pa., which some time previous he had rented to William May; and on the 29th day of June May was owing him, as he alleged, $200 for rent. Barnes, on the 29th day of June 1875, issued a landlord’s warrant, directed to L. T. Royse, a constable, instructing him to collect the above rent. Royse, on the 1st of June, made a levy on the personal property of May, and the latter waived an appraisement of the same. This property was left upon the premises of May, until the time of the sale, July 26th 1875, he consenting and agreeing to the arrangement, and on the 26th of July 1875, property enough was sold to pay the debt distrained for and costs. On August 24th 1875, May commenced this action of trespass vi et armis against Royse, the constable. The first and second counts of the declaration averred that May occupied certain premises as tenant of one Barnes, under a certain rent, of which rent two hundred dollars were in arrears, and that the defendant acting for Barnes, not regarding the statute in such case made and provided, but wrongfully and maliciously contriving and intending to injure and oppress the said plaintiff, had wrongfully taken and distrained goods (therein enumerated) to the value of $2000, &c. The third count was in trover.
    The case was arbitrated, and an award found in favor of the plaintiff as against Royse, and from this decision Royse appealed. In December 1875, upon motion of plaintiff, the court granted rule to show cause why the declaration filed in the case should not be amended. The plaintiff asked leave to amend the declaration by striking out the parts of the same which admitted the relation of landlord and tenant, between Barnes and May, and also the part admitting $200 rent to be due from May to Barnes at the time of distress. The court, after hearing argument, refused to allow the amendment.
    At the trial, May testified that he was in possession of the promises as owner and not as the tenant of Barnes, and on his own behalf he again moved to amend the pleadings, so as to conform to the evidence already given in the case, by changing the declaration, so far as the averments therein admitted a tenancy between plaintiff and B. O. Barnes, and that there was an amount of rent due and so charging it that it was the allegation of the landlord and not the admission of the defendant.
    The court granted leave to so amend.
    It appeared from the defendant’s testimony that he had gone on the premises by virtue of a landlord’s warrant authorizing him to collect $200 rent, and that May had waived an appraisement. Barnes testified that he leased the premises to May under a parol agreement; that the rent was equivalent to about $500 a year; that he had directed the landlord’s warrant to issue.
    It also appeared that the constable was in possession of the farm, stock and household goods for twenty-six days under the levy ; that May was in constant use of them, and at the sale enough property was sold to pay the debt, interest and costs, with a small surplus, which was returned to May.
    In the general charge, the court, Morrow, P. J., inter alia, said:
    “ If you find that May wa.s a tenant of Barnes, and, at the time the landlord’s warrant was issued, he was in arrear for rent in the sum of $200, and you find that Royse, in making the distress and sale, did all that the act requires, except the appraisement, which was waived, your verdict should be for the defendant. The warrant was no protection to the constable unless rent was reserved in the agreement between May and B. O. Barnes. The burden is on the defendant to show that the relation of landlord and tenant existed between them, and the defendant, as bailiff of the landlord, must show that he did all things required by the Act of Assembly. [The court here read to the jury sect. 1 of the Act of March 21st 1872, Purd. Dig. 878, and after calling the attention of the jury to everything which the act required to be done, said:] The burden is upon the defendant to show that he did everything the act requires. The evidence shows that May waived' the appraisement, and the constable’s return shows that he gave May notice, personally, of what he had done, hut there is no evidence going to show that he gave him a notice containing an itemized statement of the articles.
    “ If you find that the relation of landlord and tenant did exist, and that $200 was not due and in arrears, or the defendant, as bailiff of the landlord, failed to make the distress as required by law, he is liable to the plaintiff for double the value of the goods distrained and sold. If you find for the plaintiff, assess the damages as of the date of the sale, to which you may add interest to this date.”
    The verdict was for plaintiff for $338, and after judgment the defendant took this writ, and alleged, inter alia, that the court erred in permitting the amendment, in admitting the evidence given by plaintiff denying his tenancy, and the charge of the court as above noted.
    The third and fourth specifications of error were assigned as follows:
    3d. The court erred in allowing plaintiff to cross-examine B. C. Barnes as to immaterial matters for the purpose of contradicting him.
    4th. The court erred in admitting the testimony of J. E. Spalding, William May, B. H. Montgomery, Paul Bates, John Shuck, Smith Tuttle, Hiram Taylor and D. H. Yaughn.

      De Witt & Hall, for plaintiff in error.
    The first two counts admitted in the original narr. that plaintiff was the tenant of one Barnes, and that there was rent due and unpaid to the amount of $200. The simple statement shows that the amendment cannot be allowed. It is clearly a new cause of action : Winder v. Northampton Bank, 2 Barr 446; Steffy v. Carpenter, 1 Wright 41; Penna. Railroad Co. v. Zug, 11 Id. 484. The amendment allowed by the court after the trial was nearly concluded is virtually the same as the one refused by the court before the trial. The amendment was not made under the Act of 10th of May 1871, because plaintiff did not pay, nor offer to pay, the costs as required by that act.

      Patrick & Foyle, for defendant in error.
    What may be alleged in one count will not preclude or prevent the plaintiff from giving evidence and proving his case under another count in his declaration. The plaintiff in the case could have given all his evidence and recovered under the third count in trover without any other counts at all, and without any amendment whatever of the declaration. We contend, however, that the first and second counts were amendable.
   Mr. Justice Mercur

delivered the opinion of the court, May 3d 1880.

The first assignment o.f error is to permitting the amendment of the declaration after the plaintiff below had closed his evidence. The amendment was not made under the Act of 10th May 1871, which, on the conditions therein prescribed, permits a change in the form of action. Apart from that act, which has no application to the present ease, the right of amendment may be liberally allowed ; but not to such an extent as' to substantially change the cause of action: Steffy v. Carpenter, 1 Wright 41; Trego v. Lewis, 8 P. F. Smith 463. If the amendment was allowable it is not error merely because it was permitted on the trial. Some other fact must be shown to make it improper.

This action was trespass. It was against a person who had acted as bailiff in distraining and selling goods under a claim of rent' due and in arrear. The declaration contained three counts. The first and second each averred that the defendant in error held and occupied the premises as tenant of one B. C. Barnes, and that a certain sum specified was due and in arrears for the rent thereof, and charged that the distress made was excessive. The third count was in trover. It had been tried before arbitrators, who awarded against the plaintiff" in error, and from which award he had appealed.

The amendment allowed was to change and contradict the averments in the declaration which expressly admitted the tenancy and the specific sum due and in arrear for rent, and to aver that such was the allegation of Barnes only, and not the admission of the defendant in error. The substantial cause of action under the original declaration was an excessive distress while the defendant in error was the tenant of Barnes, and while a sum specified was due and in arrear for rent. Every part of this was changed by the amendment. It substantially averred that he was not the tenant of Barnes; that he did not owe him any rent; that it was not a case of excessive distress, but one in which no right of distress, for any sum, existed. This was a "substantial change of the cause of action, and ought not to have been allowed. The first assignment is sustained.

In view of the maimer the case was submitted to the jury, we see no error in the second and sixth assignments. The third and fourth assignments are not according to the rules, and must be disregarded.

In that portion of the charge covered by the fifth assignment the learned judge charged substantially that, unless the plaintiif in error proved the tenancy and certain rent reserved and in arrear, their verdict must be “ for double the value of the property sold.” The second count in the declaration did not conclude against the form of the statute, nor was there any claim therein for double damages. It was not, therefore, under the statute giving double damages. Hence, it follows under the pleadings, it was error to fix the measure of damages at double the value of the property: Reese v. Emrick, 6 S. & R. 286. This assignment is, therefore, sustained.

Judgment reversed, and a venire facias de novo awarded.


text:
    Reynolds versus The Commonwealth.
    1. Where a running stream flows over a man’s land, and he stocks the stream with fish, he does not thereby make it a private stream within the meaning of the Act of May 5th 1876, which makes fishing in private streams an offence.
    2. If the waters of a pond cover a large surface of land, and one whose lands are covered by a part only of the water places fish therein for the purpose of propogation, it does not thereby become a “ private pond.” To bring it within the Act of 1876, the whole pond must be so far private property as to confine therein the fish with which it is stocked. The ownership of a part only of the land covered by the water is not sufficient to give to the whole water the distinctive character of private. The pond must be treated as an entirety. Either the whole or none is private.
    March 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Quarter Sessions, of Luzerne county : Of -January Term 1878, No. 274.
    Indictment of Daniel Reynolds for violating the game laws.
    The defendant was indicted under section 20, of the Act of Assembly to amend and consolidate the several acts relating to game and game fish, approved May 5th 1876; the section being as follows, to wit:
    “ Any person trespassing on any lands for the purpose of taking fish from any private pond, stream or spring, after public notice on the part of the owner or occupant thereof, such notice being posted adjacent to such pond, stream or spring, shall be deemed guilty of trespass, and-in addition to damages recoverable by law, shall be liable to the owner, lessee or occupant in a penalty of $ 100 for every such offence; provided, however, this section shall apply only to such ponds, streams or springs as shall be used or improved by the owners or lessees for the propagation of fish or game fish.”
    By a subsequent section, a defendant, upon conviction, is liable to imprisonment for a period of not less than one day for each dollar of penalty.
    Finn’s pond is a large pond in the upper part of Luzerne county, covering about one hundred and twenty acres of ground. It was formerly the property of William Finn, -who also owned the land surrounding it. He sold off parts of the land adjoining the pond, so that there came to be different shore owners about the pond. For a period of between thirty and forty years, the various shore owners claimed and exercised the right to fish in the pond, to boat on it, to drive saw logs and lumber on it, to use it generally as their common property.
    In 1849, William Baylor, the prosecutor in this action, became the shore owner of “Lot No. 22,” at the lower end of the pond, where there was a saw-mill. Twenty years afterwards, in 1869, he obtained a quit claim deed to the pond. He stocked the pond in the spring of 1876, with white-fish, California salmon and suckers. He also placed printed notices about the pond, stating that he was the owner, and forbidding fishing therein. On the 20th of January 1877, defendant cut holes in the ice on the pond and was found fishing, having caught two pickerel when ho was arrested.
    The following were among the points of defendant :
    1. That penal statutes must be construed strictly, and, therefore, it is necessary for the Commonwealth to prove that the pond in question is the private pond of William Baylor, the prosecutor, and also, that it was used or improved by him for the propagation of fish, or game fish, and that he gave previous public notice that it •was such a pond, kept for such a purpose; and if the jury find that the Commonwealth has failed in any particular of this proof, they must find for the defendant.
    Ans. “ This point we affirm, but instruct you that the prosecutor need not show title to the whole of the land covered by the water of this pond; to sustain this prosecution, he need only show title to the land covered by the water of this pond where the defendant was found fishing at the time; in other words, over lot No. 22.”
    2. If the jury find that this pond was openly, notoriously and continuously used by the various shore owners, as their common property, for a period of twenty-one years previous to the setting up of an exclusive claim by the prosecutor, then the pond is not his private pond.
    Ans. “ This point we affirm, but instruct you that the pond in question, is a private pond, so far as the public are concerned; in other words, to all the people of this Commonwealth, except the shore owners, this is a private pond within the meaning of the law.”
    5. That the Commonwealth has failed to show a properly connected paper title to the pond in question in the prosecutor.
    Ans. “ This point we affirm, but instruct you that the prosecutor has shown sufficient title to lot No. 22, upon which, it is alleged, this defendant trespassed, to sustain this action, provided you believe the evidence of the Commonwealth.”
    In the general charge, the court, Handley, A. L. J., inter alia, said:
    “It is sufficient when I say to you that the Commonwealth has shown proper title to lot No. 22, where, it is alleged, this defendant fished. Hence, if you find from the evidence, that the defendant, Mr. Beynolds, did enter upon the lands of Baylor covered by the water of this pond, and took fish therefrom, as charged in the indictment, then you may return a verdict of guilty in manner and form as he stands indicted.”

      The verdict was “guilty.” After sentence defendant took this writ, and alleged that the court erred in the answers to his points, and in the above portion of the charge.

      A. Ricketts, for plaintiff in error.
    The Act of May 5th 1876, Pamph. L. 104, is highly penal, and must be construed strictly. The court, apparently not discriminating between a simple action of trespass and a prosecution under this penal statute, ruled that, although title to the pond was not shown in the prosecutor, yet title to lot No. 22 was shown, and that was sufficient to maintain the prosecution. According to the ruling of the court, if a man goes upon this pond, and happens to get on that part of it which is within the lines bounding lot No. 22, and there takes a fish, he is liable to a prosecution under this act.
    Again, the evidence was clear that the various shore-owners had, for more than twenty-one years previous to the prosecutor’s claim, exercised acts of ownership over the pond of such a character as to vest in them such title as would prevent any one of them acquiring a peculiar title to the pond without the consent of the others: Carter v. Tinicum Fishing Co., 27 P. F. Smith 310, and cases cited.

      Charles E. Rice, District Attorney, George R. Bedford, and Henry W. Palmer, for the Commonwealth.
    A wrongdoer cannot show title in “a stranger:” Stambaugh v. Hollabaugh, 10 S. & R. 357; 2 Rawle 14. Had there been no evidence of title in the prosecutor to the rest of the pond, the question here, and before the court below, would have been different. But as there was ample evidence of it, as already stated, it became simply a question of fact was there trespassing on lot No. 22, the title to which was not disputed.
    The defendant was not a shore-owner, nor was he fishing by permission of any shore-owner; he was a mere trespasser, and therefore, so far as his offence was concerned, it makes no difference whether the pond had one owner or eight. It was none the less a private pond. The term private is defined as “ affecting or belonging to individuals, as distinct from the public generally:” Bouvier. It must be held to distinguish the ponds and streams intended to be protected from public ponds and streams, as navigable rivers, or ponds declared to be public highways by the sovereign power.
   Mr. Justice Mercur

delivered the opinion of the court, May 3d 1880.

This was an indictment under the 20th section of the Act of 5th May 1876, Pamph. L. 104, brought into the Quarter Sessions under the 27th section of the act.

The 20th section declares “ any person trespassing on any lands for the purpose of taking fish from any private pond, stream or spring, after public notice on the part of the owner or occupant thereof, such notice being posted adjacent to such pond, stream or spring, shall be deemed guilty of trespass, and in addition to damages recoverable by law, shall be liable to the owner, lessee or occupant, in a penalty of one hundred dollars for every such offence: Provided, however, this section shall apply only to such ponds, streams or springs a3 shall be used or improved by the owners or lessees for the propagation of fish or game fish.” The 27th section declares “ that any person violating any of the provisions of this act, and who shall be summarily convicted thereof before a justice of the peace or alderman, shall be sentenced to pay the fine or penalty attached to such violation, with costs, one-half of the penalty to go to the informer, and the other half to be paid to the county treasurer, and by him distributed to the various school districts of the county. Providing, however, that the defendant may, on refusing to pay his penalty, and on entering into recognisance with securities to answer the complaint, on a charge of misdemeanor before the Court of Quarter Sessions of the county, transfer the case to said court, which shall then proceed with the trial thereof.” It is thus shown that the plaintiff in error, by his own election, brought the case into the Quarter Sessions.

Recurring then to the statute, in order to constitute the offence, not only must a trespass be committed on the land, but it must be with the purpose of taking fish from a “ private pond, stream or spring.” The important question then is, in what manner must the water be owned and occupied to give it the private character contemplated by the act? The three bodies of water to which “the purpose” must apply, are stated disjunctively. Whatever else be its character or condition, whether it be stream, spring or pond, the body of water must be “private.” In case a running stream flows over a man’s land, and he stocks the stream with fish, he does not thereby make it a private stream within the meaning of this act. The manifest intention is to protect to the owner those fish which were private property, and without the action of the trespasser would have remained such property. The title of a riparian owner of land extends to the middle of a stream, not a public highway. In case the lands of opposite riparian owners thus join, and one of them stocks the stream with fish, he does not thereby make it a “ private stream.”

So if the waters of a pond cover a large surface of land, and one whose lands are covered by a part only of the water, places fish therein for the purpose of propagation, it does not thereby become a “private pond.” The question is not whether he has rights which may be trespassed on, but is the whole body of water private within the meaning of the statute? We think it is not. To bring the case within the statute, the whole pond, stream or spring must be so far private property as to confine therein the fish with which it is stocked. The ownership of a part only of the land covered by the water is not sufficient to give to the whole water the distinctive character of private. It is not both public and private. The pond must be treated in its entirety. Either the whole or none is private. The owner of a part cannot make it private without an actual and visible separation from the other parts. Without such separation, the owner of a part cannot change its character against the wishes of persons owning the other parts thereof. The first, second, third and fifth assignments are sustained. We see no error in the fourth and sixth.

Judgment reversed.


author: Mr. Justice Paxson

text:
    Stafford versus Wheeler.
    1. In 1859, B. was indebted to S. and C., which debts were liens on a certain farm of B., and executions were out to enforce them. On the 12th of July 1859, S. made an agreement with B. in pursuance of which B. conveyed the land to S. by a deed absolute on its face. S. on his part was to pay the judgment of C., and to apply the rents, issues and profits of the farm upon the indebtedness of B. to him, and when it was paid to reoonvey the farm to him. This agreement of S. was by parol. In 3 867, B. conveyed the property to W. who brought ejectment against S., who claimed that the deed of 1859 was an absolute conveyance, and contended that the alleged parol agreement was clearly within the provisions of tho Act of April 22d 1856, and that evidence of such agreement was inadmissible. Held, that the evidence establishing the fact that there was fraud on the part of the defendant in obtaining the title there was a resulting trust in favor of the plaintiff which was within the exceptions contained in the proviso to the Act of 1856 : Barnett v. Dougherty, 8 Casey 372, followed.
    2. The court instructed the jury that if they found the deed from B. to S. was a mortgage, and that S. was indebted to B. on account for any of the rents, issues and profits, at the time the ejectment was brought, the jury could also take into consideration and charge defendant with the rents, issues and profits of said farm since the suit was brought, for the purpose of ascertaining whether the defendant had been fully reimbursed under the agreement. Held, that this was not error.
    3. In 1862, S., the defendant in the above suit, mortgaged the farm in dispute to H. When the above ease was called for trial, II. applied to he made a Co-defendant, which the court refused. Held, that this was not error. Held, further, that S. could not set up an outstanding title in H., as such title was the offspring of his own fraud.
    March 8th 1880.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur, J., who was of counsel in the court below, did not sit. Green, J., absent.
    Error to the Court of Common Pleas of Bradford county: Of January Term 1878, No. 222.
    Ejectment by Catherine Wheeler against H. G. Stafford to recover 330 acres of land in Bradford county. The writ issued July 19th 1867. The case came on for trial November 9th 1875. The plaintiff, a daughter of John Brownell, claimed title from her father by a deed dated June 12th 1867. The plaintiff also gave in evidence a deed dated July 14th 1859, from John Brownell and his wife to the defendant. Both these deeds were for tho land in dispute. The defendant claimed title through the deed to him offered in evidence by plaintiff. The latter alleged that II. G-. Stafford held the land in trust for said John Brownell to secure him for the payment of certain judgment liens on the property which Stafford and others had, amounting to between $8000 and $4000, and for this purpose the evidence of John Brownell and his wife was offered to prove that at the time of the execution of the deed of July 14th 1859, that it was agreed between Stafford and Brownell that Stafford was to take the farm and pay the debts agreed upon between them and hold the farm and re-deed it to Brownell or sell it for him.
    The court, under objection, admitted this evidence.
    In July 1859, John Brownell was indebted to II. G. Stafford in the sum of upwards of $1600, and to R. and E. Covell in the sum of upwards of $1400. This indebtedness was a lien upon the land in dispute, situate in Wells township, Bradford county, Pennsylvania, and executions were out to enforce the collection of the judgments. Brownell had certain personal property on the land subject to the writs. Stafford went to DoWitt, Iowa, where Brownell then resided, for the purpose of securing his indebtedness, and in pursuance of an agreement there made on the 12th of July 1859, Brownell, on the 14th, conveyed to Stafford the land in dispute by a deed absolute upon its face, and sold the personal property on the place to apply upon the indebtedness for upwards of $900. Stafford, on his part, as it was alleged, agreed, by parol, to pay the Covell judgment before it came due, to apply the rents, issues and profits of the farm upon the balance of the indebtedness of Brownell to him, and the Covell debt then assumed by him, to allow Brownell rent in case he occupied the premises himself, and to re-convey when the indebtedness should he paid.
    At the trial, before Mayer, P. J. (of the Twenty-fifth Judicial District, before whom the trial was held), before the jury was sworn, a motion was made by counsel for James Huntington, asking that the latter should be admitted to defend, the motion being supported by an affidavit:
    That the said Huntington is the owner of the land in question, and has the possession ; that his title is derived by virtue of a mortp-ao-e, executed by said 11. G. Stafford and his wife to him, dated the 1st of December 1862, for $3000, for the land in question; that a sci. fa. was issued and judgment obtained on said mortgage, on the 13th of May 1872, for $4701; and that a lev. fa. was issued and the land was sold to him by the sheriff, for $4000, and a deed was made and delivered to him at September term of court, 1872; and that he took the possession of the land under his said deed (in the spring of 1878), and has had possession since to the present time; that said mortgage was given, hona fide, for money loaned. That the said Stafford* has no interest in the land, and is a bankrupt and discharged under the bankrupt laws of the United States.”
    The application was refused by the court, and the defendant excepted. No exception was taken by Huntington. (1st assignment of error.)
    Plaintiff having proved that Mary Brownell, wife of plaintiff’s grantor, John Brownell, was dead, and that notes of her testimony were correctly taken on the trial of this suit before arbitrators, offer to read said notes of testimony, for the purpose of establishing the fact, that at the time said John Brownell executed and delivered to said Stafford a deed for the land described in the summons in this case, it was agreed by and between said John Brownell and Stafford, that Stafford should hold the land under said deed and account for the rents, profits and use thereof, to said John Brownell; and that Stafford should pay certain debts of said Brownell, and after doing this, should re-convey said real estate to said John Brownell.
    The defendant objected to the evidence, because it is an offer to prove by parol that the defendant, Stafford, was a trustee for the said John Brownell by his deed to Stafford, dated July 14th 1859 ; that under the statute of 22d April 1856, a trust by parol cannot be proved without writing; that Stafford entered into possession under his deed, and was in possession when this suit was commenced, which is more than five years, and therefore parol evidence is not competent.
    Objection overruled and evidence admitted. (2d assignment.)
    Plaintiff’s counsel proposed to ask witness (Brownell) what was the value of the farm and dairy-tools taken by Stafford under the agreement first mentioned.
    Objected to by defendant, because this property was not part of property mentioned by witness; and that it was immaterial.
    Objection overruled. (3d assignment.)
    The defendant offered to give in evidence a mortgage given by. H. G. Stafford and Eliza, his wife, to James Huntington for the land in question, bearing date the 1st December 1862, for the sum of $3000 and recorded ; to prove that the said Huntington issued a sci. fa. and alias sci. fa. and obtained a judgment on said mortgage for $4701 on the 13th day of May 1872; and that a sci. fa. issued and the sheriff sold the land in question to said Huntington for $4000, and executed to the said Huntington a deed for the same.
    To be followed by evidence, that the mortgage was for money loaned, bona fide, to the said Stafford, without notice of claim by said Brownell to the land.

      Objected to, because it is incompetent; the alleged title belongs to a stranger to this suit, nor did it exist at all, at its commencement.
    Objections sustained. (4th assignment.)
    Notes of testimony of Whiting Gifford, taken before arbitrators, said G-ifford being a resident of the county at the time, offered on part of plaintiff.
    Defendant objected to the testimony on the ground that the witness resided in the county.
    By the Court: It appearing from the evidence before the court, that the health of the witness precludes him from attending court, the objection is overruled. (5th assignment.)
    The following points were submitted by defendant, all of which the court refused :
    1. That the alleged agreement between John Brownell and II. G. Stafford, as sworn to by Brownell, that Stafford should take a conveyance of the land in question and sell it, if ho could, and pay off the Covell debt and his own ; and if he could not sell, should apply the rents till the debts were paid, was a void agreement and within the Statute of Frauds and Perjuries; and the deed from Brownell and wife to II. G. Stafford of July 14th 1859, vested an absolute title in Stafford. (6th assignment.)
    2. That under the contract as sworn to by Brownell and wife, Stafford, having taken possession of the land in question under his deed, immediately occupied it and made large improvements up to the time of bringing of this suit — more than live years — the plaintiff is barred by the Statute of Limitations of April 22d 1856. (7th assignment.)
    3. There is not evidence in this case, being in the nature of a bill in equity, upon which a chancellor would decree a specific performance ; that the alleged contract, sworn to by Brownell and wife and absolutely denied by Stafford, will not enable the plaintiff to recover. (8th assignment.)
    In the general charge the court, inter alia, said:
    “We have been requested by the counsel for plaintiff to instruct the jury, as this action of ejectment is in the nature of a bill in equity, and the rights of the parties can be determined at the time of the decree, that the jury can take into consideration the rents, issues and profits of the farm received by the defendant since the bringing of the suit. We would say to the jury, in answer to this request, that if the jury should find from the evidence that the deed from Brownell to Stafford was, as is claimed by the plaintiff, a mortgage, and that Stafford was indebted to Brownell on account for any of the rents, issues and profits of said farm at the time said action of ejectment was brought, the jury can also take into consideration and charge the defendant with the rents, issues and profits of said farm since the suit was brought, for the purpose of ascertaining and determining whether the defendant has been fully reim bursed under the agreement, as claimed by the plaintiff.” (9th assignment.)
    Verdict for plaintiff, when defendant took this writ and alleged, that the court erred as set forth in the above assignments of error.

      H. W. Patrick, for plaintiff in error.
    At the time the application was made on behalf of Huntington, Stafford had been discharged under the bankrupt act and was out of possession. Huntington had the entire interest of Stafford under his mortgage, and had sole possession of the land. He was therefore entitled to defend : Jackson v. Stiles, 11 Johns. 407 ; Johnson v. Bulcash, 17 Id. 112. The admission of Mrs. Brownell’s evidence was in conflict with the Act of April 22d 1856. The agreement offered to be proved was clearly within the statute: Barnet v. Dougherty, 8 Casey 371. The mortgage of Stafford to Huntington was evidence of an outstanding title and should have been admitted: DeHaven v. Landell, 7 Casey 120. The court should have affirmed the defendant’s points. The court erred in the portion of the charge contained in the 9th assignment of error. If Stafford had not gotten his advance out of the rents and orofits, he was clearly not in default.

      Davies Carnochan and John P. Sanderson, for defendant in error.
    Huntington is not here alleging error, but Stafford alleging wrong done to Huntingdon. We contend he cannot do so. He was not entitled to an admittance when suit was brought. He acquired his rights, if any, pendente lite. The transaction of the 12th of July 1859, including the conveyance and agreement, constituted a mortgage of the farm: Taylor v. Cornelius, 10 P. F. Smith 195; Directors of the Poor v. Royer, 7 Wright. 150 ; Danzeisen’s Appeal, 23 P. F. Smith 65; Maffit’s Adm’rs v. Rynd, 19 Id. 387 ; Todd v. Campbell, 8 Casey 250 ; DeFrance v. DeFrance, 10 Id. 385. Such mortgage may be proved by parol: Kellum v. Smith, 9 Casey 158; Harper’s Appeal, 14 P. F. Smith 315; Fessler’s Appeal, 25 Id. 483; and the statute of April 22d 1856, has no application where a parol defeasance is sought to be established: Maffit’s Adm’rs v. Rynd, supra; Harper’s Appeal, supra. The transaction has not the first incident of a trust that is not also incident to a mortgage. Stafford, if a trustee at all, is such ex maleficio, and is not within the Act of 1856: Seichrist’s Appeal, 16 P. F. Smith 241; Boynton v. Housler, 23 Id. 458. A mortgage is not within the act, nor is the equity of redemption barred by the limitation expressed in the 6th section of the act: Harper’s Appeal, 14 P. F. Smith 315.
    Rents, issues and profits accrued after suit brought were shown for' the purpose of extinguishing the claim of the mortgagee. If the limitation has any application whatever to the case of a mortgage, it surely will not begin to run until the debt is paid and the right to a reconveyance is perfect.
   Mr. Justice Paxson

delivered the opinion of the court, May 3d 1880.

The defendant has no right to complain that the court bolow refused to admit James Huntington as a defendant. Huntington did not except to this ruling, and took no writ of error. It was said by Mr. Justice Rogers, in McClay v. Benedict, 1 Rawle 424, that “ under the construction of the statute 2 Greorge II., which is similar to our act, it is not a matter of course that a person should bo made a co-defendant. In practice, on application to the court, it is frequently refused. For where a person claims in opposition to the title of the defendant, he can in no light be considered as landlord, and it would be unjust to the tenant that he should be made a co-defendant, as their defences might interfere with each other.” In this case the application was not made until about eight years after the suit was commenced, and upon the day it was called for trial.

After the court below had refused to admit Huntington as a party, the defendant attempted to sot up an outstanding title in Huntington. The evidence offered for this purpose was ruled out, and forms the subject of the fourth assignment. It is doubtless true, as a general proposition, that a defendant in ejectment may set up an outstanding title in a third person. The plaintiff must recover upon the strength of his own title. But the title which this defendant offers to set up was derived from himself, and so far as he is concerned, the jury have found it to be fraudulent; at least, they have found the facts from which the fraud results by necessary implication. They Lave found the parol trust in favor of Brownell, and it needs no argument to show that it was a fraud on the part of the defendant to encumber the property by a mortgage. It is also equally clear that the defendant cannot set up an outstanding title which is the offspring of his own fraud.

2. The notos of Mary Brownell’s testimony taken before the arbitrators was objected to, because offered to prove a trust by parol, notwithstanding the Act of 1856. The 6th, 7th and 8th assignments may bo considered in this connection. It was contended by the plaintiff, that the evidence did not establish a parol trust, but merely a defeasible deed or mortgage, which did not como within the Act of 1856. We are of opinion, that, whether a mortgage or a trust, the Act of 1856 does not apply, as the trust, if there be a trust, was a resulting trust, and comes within the exception of the proviso of the act. It was said in Barnet v. Dougherty, 8 Casey 372, “The proviso, indeed, excepts from its operation resulting trusts, such as the law implies. A resulting trust, however, is raised only from fraud in obtaining the title, or from payment of the purchase-money when the title is acquired.” The plaintiff’s evidence, if believed, establishes a direct fraud in obtaining the title. The trust, if any, arose with the title, and was not the result of the subsequent act of the parties.

8. This assignment is not sustained. The value of the farm and dairy-tools was relevant for the purpose of showing that Stafford had been fully paid.

4. The fourth assignment is equally without merit. The fact that the health of the witness prevented his attendance at the' trial, rendered his deposition competent.

9. This assignment raises the question, whether in this proceeding the plaintiff could recover the mesne profits up to the time of trial ? The learned judge instructed the jury that if they found the deed from Brownell to Stafford was a mortgage, “ and that Stafford was indebted to Brownell on account for any of the rents, issues and profits at the time said action of ejectment was brought, the jury can also take into consideration and charge the defendant with the rents, issues and profits of said farm since the 3uit was brought, for the purpose of ascertaining and determining whether the defendant has been fully reimbursed under the agreement as claimed by the plaintiff.” For this purpose the evidence was clearly competent.

We see no error in this record. The judgment, therefore, must be affirmed.