text:
    Wheatly v. Badger.
    Where testator appoints A. his executor and trustee, and directs him, the said A. “ my executor and trustee,” to do certain acts, the offices of executor and trustee are vested in liim distinctly; and the acts appertaining to each office are to be performed by him in the respective capacity. The trust, in such case, is in A nominatim) and not virtute officii, and hence the Orphans’ Court has not jurisdiction over the trust.
    Appeal from the Orphans’ Court of Bucks.

      March 28. Petition for the conveyance of the legal estate to the cestui que trust, devisee of Bela Badger. The only question raised was the jurisdiction of the court, and that depended on the question whether the trust was in the executor virtióte officii or not.
    The material clauses of the will were as follows: a direction to pay debts “ by my executor and trustee hereinafter namedsome legacies were then given — “ Item, I do constitute S. Badger to be the sole executor of this, my last will and testament, and the trustee of my estate, and request him to make payment of the above legacies; Item, I do give and devise all my estate, real and personal, to my said executor and trustee, S. Badger, and his executors, administrators and assigns, in trust .... that he the said S. Badger, my executor and trustee, shall make a just and fair division of my said estate, and that he shall give and convey,” &c.; “ I do authorize my said executor and trustee to sell, mortgage, convey, or assign such parts of my said real and personal estate as he shall deem beneficial,” and if, at the time appointed for the division, the cestuis que trust agree with «my said executor and trustee,” that instead of dividing the same, it will be more beneficial to sell, “ then my said executor shall have power to sell and convey.” /

    Krause, P. J., dismissed the petition for the following reasons. This office of the trust is to be executed by the “ said Samuel Badger, my executor and trusteeand it cannot well be doubted that, if he had refused before the register to take letters testamentary, his competency to execute said office would have continued unimpaired, it not being annexed to that of executor, as is the duty of seeing to assets, and paying debts and legacies. Taking the legal title for devisees, making partition between them, and vesting in them the fee by proper assurances, are not duties that devolve on the executor by operation of law, but may be performed by any one whom the testator may appoint for that purpose. And when he appoints the person by his proper /name, whom he also makes the executor of his will, the trust is given nominatim, and continues, though he refuse the office of executor; Ebert and Barnitz’s Appeal, 9 Watts, 300. Necessarily, it is not vested ratione officii in the executor; and, in such case, the jurisdiction of the trust is in the Common Pleas. Here, Samuel Badger is made trustee by name, and it can make no difference that his name and the titles of his several offices are coupled, when his duties are assigned him in the will, that being done merely for further description of the person intended. Besides, holding that to be of importance, in reference to this will, must lead to confusion, instead of a clear construction; since, in the event of an agreement to that effect, between him and the devisees, on the 1st of March, 1845, the estate is to be sold by the “ executor” simply, both the name of Samuel Badger and the title of trustee being there dropped. To this the case of Rachel Stuart’s Will, 1 Watts & Serg. 288, may be added, which is similar in describing the trustee, who is not amenable to the Orphans’ Court as executor. That testatrix gave to her son, William Johnson, her estate in trust, for the separate use of her daughter, El. Baird, and authorized him, “ as executor,” to sell it, and put the proceeds “ to interest for the uses aforesaid.” E. Baird was the only beneficiary named in this clause, and the only use expressed was for her; yet, on this clause, the subsequent part of the will, which gives the estate over to her children,in fee, being excluded from the consideration of the court, it is held that the trust was not annexed to the office of executor, though the person to convert the estate is so described, but was vested in William Johnson, nominatim. Consequently, the Common Pleas had. jurisdiction of the case. The -word “ executor” is of course but descriptio personae, the more pointedly to designate the trustee appointed as such. It follows that here the petitioner must seek relief in the Common Pleas, and the citation must be dismissed.
    G. B. Browne, for appellant.
    The cas'es of trusts in executors, either by the words of the will, -or by operation of law, are excepted out of the jurisdiction of the Common Pleas, by the act of 1886. The two functions are blended in this will, and the estate is not to him in fee, but to his executors. The power to sell is also given to him as executor, as well as trustee.
    Badger, contra.
    The answer to the inquiry whether a dismissal from the office of executor would remove him as trustee, solves this question. It is settled, in this state, that the office of trustee and executor cannot be blended together; Aston’s Estate, 5 Whart. 288; for they are essentially distinct; Baird’s Case, 1 Watts & Serg. 288. It is very clear that the trusteeship is not given to him under the name of executor, but nominatim, and this has been uniformly recognised as the distinction.

      April 24.
   Gibson, C. J.

It follows not that, because a trust has been created by will, it is cognisable in the Orphans’ Court. To give it that quality, it must be annexed to the office, and not to the person of the executor; it must be committed to him quasi executor, and performed virtute officii. Was it so here? “I do constitute and appoint my brother, Samuel Badger,” said the testator, “ to be the sole executor of this, my last will and testament, and the trustee of my estate, and request him to make payment of the above legacies.” I-Ie then devised to his “executor and trustee, Samuel Badger,” all his estate, real and personal, in trust to improve it, erect buildings, make repairs, lease or sell such parts of it as he might think advisable, pay expenses from the profits, discharge debts and encumbrances, and, at an appointed or convenient time, divide and distribute the whole among particular persons, and in particular proportions. The constituting clause, however, is that which gives tone to tho rest. The person who was appointed executor was, with the same breath, appointed a trustee for purposes not within the range of an executor’s ordinary duties; and distinct offices were united in the same person, which, howevér, have no natural connection, and are easily séparable. Had the trust been committed to tbe executor designated as tbe trustee, by bis official title, and not by name, that would have been impossible; but tbe only difficulty in tbe way, at present, is, that tbe same Samuel Badger who was directed as executor and trustee to pay' tbe legacies, a strictly administrative duty, was directed as executor and trustee to do acts exclusively of a fiduciary nature. It would be as absurd for a trustee to attempt tbe duties of an executor, as for an executor to attempt tbe duties of a trustee, and it is therefore tbe business of tbe court to separate tbe two offices, in a question like tbe present, reddendo singula singulis. As executor, he was to pay tbe legacies; as trustee, be was tbe devisee and depositary of tbe legal title for tbe accomplishment of confidential purposes, with which tbe office of an executor has no necessary connection. Had not tbe creation of tbe two offices in tbe same person been coupled also in tbe same clause, there would not have been a doubt of their severance in tbe contemplation of tbe testator ; tbe will would have presented tbe union of distinct rights in the same person, which are always treated as if they existed in different persons. Perhaps tbe only case in which there is an inseparable union, is where tbe trust is given to tbe executor by tbe style of bis office, and not by bis name; where it is given to tbe officer, and not to tbe man. Had tbe testator intended to blend the two offices, it would have been unnecessary to say any thing about a trustee, for bis object would have been gained by appointing an executor, and devolving tbe trust upon him. He evidently knew that there is a distinction between tbe proper acts of an executor and those of a trustee, and seems to have been determined to preserve it, which is all that was necessary to confer jurisdiction on tbe Common Pleas.

Decree affirmed.


source: Caselaw Access Project

author: Burnside, J.

license: Public Domain

text:
    Keisel’s Appeal.
    Where a portion of decedent’s land was conveyed to the widow in lieu of dower by the heirs, who then proceeded by partition in the Orphans’ Court, and the tract conveyed to the widow was valued by the inquest — and all the heirs but one accepted or refused other purparts — the remaining heir is not entitled after the death of the widow to take the land at the valuation. For, by virtue of tire conveyance, the land was not legally included in the proceedings, although the conveyance was recited in the return of the inquest: but it descended to the heirs after the death of the widow.
    Appeal from tbe Orphans’ Court of Montgomery.

      March 28, 29. In 1829 B. Ernest died intestate, leaving á widow and five children, and the issue of a deceased child — seised of certain real estate, consisting of three tracts.
    On the 11th August, 1830, the heirs by deed conveyed to the widow for life, in lieu of dower, which she released, a tract of forty acres and ope hundred and eight perches, parcel of the above.
    On the 17th August, 1830, proceedings in partition were commenced between the heirs in the Orphans’ Court; and in October the inquest returned a valuation of the land, which they had divided into five purparts. Among these was the tract previously conveyed to the widow for life. The deed to the widow was recited in the return of the inquest.
    Four of the tracts were taken by the four sons, the guardian of the children of the deceased son having declined to accept any purpart.
    In 1847 the appellant, as husband of the only daughter of the intestate, petitioned the court for leave to take, at the valuation of the inquest, the tract conveyed to the widow, setting out the prior proceedings and the death of the widow.
    The court dismissed the petition.

      Sterigere and J. Sergeant, for the appellant.
    The question is, can the agreement of the parties be carried out ? The whole proceeding was amicable, but by mistake the widow was not joined. She was however heard, and her' rights provided for. The land was included in the partition, and is the only tract left for the petitioner, all the other heirs having accepted or declined. What will be the result of a refusal? The proceedings cannot be set aside in part; 1 Serg. & Rawle, 469; 5 Whart. 221; nor are the other heirs entitled to a second choice. Can the daughter be left to her share in a new partition ? There can be no sale, because we are willing to accept; nor can there be a new appraisement: 8 Serg. & Rawle, 205.

      Fornance, contra.
    The appraisement was in fact subject to the encumbrance of the wife’s estate, and had it been taken AYhile that existed there would have been no contest; nor if they would consent to an appraisement clear of the encumbrance. But in strictness, the land was not included in the partition, having been conveyed away, whereby the jurisdiction was ousted.

      April 3.
   Burnside, J.

The deed of the 10th of August, 1830, from the children of Baltzcr Ernest to their mother, conveying the forty acres and one hundred and eight perches, in lieu of dower, during her natural life, was prior to the amicable partition in the Orphans’ Court. The valuation of this part of the estate would seem not to have been in the contemplation of the parties; nor had the court, on the proceeding before them, jurisdiction over it. On the death of Mrs. Ernest it reverted to, the heirs of the deceased, and is now open to partition, valuation, and sale. If any advantage or loss has arisen to either of the parties, they have brought it upon themselves. The valuation by the persons selected by the heirs eighteen years ago, of the lot in question, was not. authorized by the proceeding; a life-estate was outstanding, for which they had received an equivalent. The fact that the heirs at of Baltzer Ernest had conveyed this portion of their father’s estate to their mother, and that they were entitled to it in remainder, after her death, nowhere appeared in the amicable proceeding. The heirs had parted with their immediate right for an uncertain period of time; and this was not brought into the. view of the court, nor stated in their petition. We all think the Orphans’ Court were right in rejecting the application of the petitioners.

Appeal dismissed.


author: Per Curiam.

text:
    Hickman’s Appeal.
    A release by a ward to his guardian is waived by a submission to account on a. citation, there being no allegation of loss of evidence by the guardian.
    From the Orphans’ Court of Delaware.

      April 3. A citation having issued to Hickman as guardian, the account was referred to auditors on exceptions, who reported the testimony, and that the ward was barred by a release.
    The account admitted receipts, in 1831, of $450; in 1889, of sums of $50, $75, and $100 ; on these there was allowed, as interest, $235, a settlement having been made in 1844.
    It was proved that the ward was of age in 1841, and had resided in Mercer county. In 1844 he procured a release to his guardian, to be prepared, saying he had settled, or was going to settle. He called on his guardian, who stated the sums received, but that he had all the money out; that he could and did not wish to pay more interest than he had' received. The ward said, if he did not get interest, he did not expect him to pay interest. The balance admitted to be due was then paid, and the release delivered.
    The other facts mentioned in the opinion of the court below wore not on the paper book.
    Bell, P. J., overruled the report, so far as related to the release, saying, “ The guardian having answered the command of the citation, by filing an account of his administration of the ward’s estate, it may well be doubted whether, upon exceptions filed to that account, he can- set up the receipt and release signed by Nelson, the ward, on the- 10th of April, 1844, as a bar to all investigation into the truth and correctness of the account; or use it-for any other purpose than as prima facie evidence, so far as it goes, of the true amount' in- his; hands at a particular day. If he intended to use it as'-a-bar to the call-of his late ward,-for an account, it seems to me he should have so pleaded it, and thus presented the question, whether it precluded the ward from having- the kind of settlement-the'law contemplates and-allows; as between'; guardian and- ward. One of'the reasons, and perhaps'the-principal one, for allowing it the quality of abar, is-that the guardian, relying'on the settlement in pais, and the consequent release-' and discharge, has either handed-over-his papers and vouchers relating to the trust,- or in the lapse of time lost them, and so is unable to state-a formal account. But how can this be averred, where the' guardian has, on the return of the citation issued out of this court;, actually' stated and settled am account into which is introduced every item of-debit and credit' which, on his- own' showing, has any relation to5 the trust ?
    “But had the paper' which the auditors were prevailed on- to accept, as'possessing a'legal quality which forbid all examination into the account, been pleaded in bar, I should have- thought; it insufficient-to close the mouth of- the late-ward,-upon-the principles recognised and settled-in' Say’s- Executors' v. Barnes; 4 SergJ & Rawle, 112; every one of which are, as it appears to me, directly applicable to this case. Nor is there any thing said or'decided in-Ex parte Cress, 2 Whart. 494, or Lukens’ Appeal, Y Watts & Serg. 48, both of which were determined upon peculiar circumstances, having no existence here, that- interferes to- prevent this applicability. ■
    “ This being so, it follows that we are at liberty to examine into and- correct this account, just as though- no sitch release bad- been executed by the ward to the guardian; allowing to it only whatever force may belong to it as evidence, if any.
    “ The correctness of this conclusion is in no way impugned by the remark said to have fallen from the ward, at the time of his settlement with the guardian, that if the latter had not received interest, he, the ward, would not exact it from him. It is evident this remark was made by the party in ignorance of his legal rights, and partly in reference to a sum of money loaned, as it would seem, by the guardian to one of his sons, and of which we have no further account than that it is not known whether the son had repaid it, principal and interest, or not. Neither is any account given of its amount, or the terms upon which, or the circumstances under which, it was loaned. The remark of the ward seems also to have reference to the assertion of the guardian at the time of the settlement, that £ he had the money out at interest, all he could get out, and he did not like to pay him interest for that which he had not out.’ If by this the guardian intended to say he could not keep the money at interest, it is difficult to conceive this could be strictly true. There are sums of money paid to the guardian sufficiently large to be put to interest, which he knew were to remain in his hands for years. That it would have been easy, by the exercise of an ordinary diligence, to find safe investments for these sums, cannot be doubted. At least, it ought to require more than the mere assertion of the guardian to show this could not be done. The facile acceptance by a ward, unacquainted with his affairs, of this excuse, must not be taken as proof of its truth; • and as the settlement and release were unquestionably founded upon it, no great weight is due to them. Upon such vague and uncertain grounds as these, unsupported by any thing deserving the name of proof, it would be obviously unjust to release the guardian from the duty he assumed, when he undertook the trust, of putting the estate of his ward to the best uses, and making interest thereon, or show some satisfactory reason why he did not. This is the duty of every guardian, and courts hold him to a strict responsibility in its discharge.
    ££ In the present case it appears, from the guardian’s own account, that for Nelson he received at several times divers sums-of money, amounting in the aggregate to $675, which remained in his hands or at interest, uncalled for, during a series of years, — and indeed during the whole minority of the ward, who lived in a distant county during this period, and, as it would seem, supported himself. Allowing a liberal time, in the average six months after their receipt, for putting the respective sums to interest, (and it has not been shown but that they were making interest during the whole period,) and charging it up to the 10th of April, 1844, the date of the settlement and release set up by the accountant, it amounts in the aggregate to $444; calculating the interest on the Baldwin loan at five per cent.,- and charging the guardian with the amount of interest which Baldwin swore he actually paid him. And yet in the account settled the guardian charges himself with but $235 56J of interest. In' the absence of all explanation, ■ this cannot be permitted. The difference, to wit, the sum of $208 43J; is, therefore, to be added to the debit side of his account. Decreed accordingly.”
    Tilghman, for appellant.
    The release was voluntary after a settlement with the ward, who was twenty-four years of age, and in which it is not pretended any thing was concealed, and is therefore a bar. To' have refused an account on that ground, would have been a tacit admission of impropriety of conduct.

      Hemphill, contra.
    The release was a bar only to the citation, and should have been so pleaded: Ex parte Cress, 2 Whart. 494; Lukens’ Appeal, 7 Watts & Serg. 48. But it was waived by the submission to account without setting it up. ,
    But as a Release it was bad, for there was no pretence of any thing more than a verbal statement of the sums received as principal and interest: McGunigal v. Mong, 5 Barr, 269.
   Per Curiam.

Let the decree be affirmed, for the reasons given by the president- of the court below.


author: Coulter, J.,

text:
    King v. Cloud.
    A trustee to whose use a suit by husband and wife, his cestui que trust, is brought, having, with the consent of his cestui que trust, conveyed the trust-estate to another, paid -all costs accruing and to accrue, and released all claim for commissions, is a competent witness for plaintiff. •
    In error from the Common Pleas of Delaware.
    ' April 3. Assumpsit by King and wife to the use of J.. King, jun., on a note held by the wife before her marriage. It appeared that, by an antenuptial settlement, this cause, of action had .been assigned to J. King, jun., in trust for the separate use of the wife of plaintiff during her life — remainder .tp the uses of her will, and in default thereof .to her .heirs.
    Ten days before the trial, J. King, jun., by deed, with-the .assent of King and wife, assigned the trust-estate to one Taylor, and, on the trial, a motion was made to have his name struck from the record, and that of Taylor inserted. This .was refused. J. King, jun., then paid all costs accrued, and a sufficient sum to the prothonotary, to cover future costs, and agreed the .same should in no event be refunded. A release by him to King and wife of all claim for commissions under the deed of trust, which was executed some months prior to the trial, was then produced, and J. King, jun., offered as a witness, and rejected. This was the only material question in the cause.

      Kennedy, for plaintiff in error.
    The witness was not a plaintiff on the record. His liability for costs, and any interest in the event of the suit was legally discharged. On what ground then can he be incompetent ?

      E. Darlington, contra.
    The assignment was inoperative, because neither husband nor wife had the right to assent to it. He, as the person to whose use the suit was brought, is the real party: 8 Serg. & Rawle, 311. And the fact that he is a trustee has always been held immaterial: 6 Paige, 568, 569.

      April 17.
   Coulter, J.,

(after stating the facts.) — It would appear from the record that Joseph King knew some facts material to the plaintiff, and whether they had come to his knowledge previous to his appointment as trustee, or after-wards, does not appear. At all events, the object, no doubt, was to make Joseph King, jun., a witness, because he was after-wards offered as a witness and rejected by the court, which is also assigned for error. In -the judgment of this court, the motion ought to have been granted. By the seventh section of the act of 24th March, 1818, all actions brought by executors, administrators, trustees,, or assignees, where the executors, administrators, trustees, or assignees, or any of them, are superseded or removed, shall be proceeded on to final judgment by the legal representatives, uponmaking the proper suggestions upon the record which the case may require.

Although Joseph King, jun., could not, by his own ac.t, strip himself of his character of trustee, or absolve himself from- its -duties, after he had accepted the trust; yet the grantors, with his own consent, could, most assuredly, .supersede him and appoint another in his stead- The .trust was ^executory, and in such eases equity moulds its character^- so as best to accomplish the lawful intent of the parties. Here there was no intervening right. No fund or-property had come into possession of Joseph King, jun.; and the only persons who- had any interest whatever, superseded him by deed, and appointed another in his place by his own consent. He was, therefore, lawfully superseded, and the case was fairly embraced by the act to which I have referred.

The decisions of this court, which relate to the-competency óf a party, at the impetration of the writ, as a witness, do not touch this cause.

Those cases belonged to a class such as Irwin v. Shumaker, and Wolf and Fink, and various others perfectly -known to the profession. The distinctive character of the class is, that the party is interested in his own right, and 'is, in fact, proceeding in his own cause. He divests himself of his interest for the purpose of becoming a witness ; but does not wipe from his mind the impressions with which it was imbued when he was an interested party. Public policy opposes the sudden transmutation of a party into a witness by an assignment often merely colourable, that money may be made out of his oath as a commodity. To that class of cases the one in hand does not belong, as the slightest reflection will satisfy any discriminating mind.

A trustee is a beneficent agent and instrument óf the law, moulded by its plastic hand, so as to accomplish the ends of justice. He has no individual interest in the result of suits, where his name is often used, more disinterested than even executor or administrator; he is more decidedly the creature of the law itself; and especially in the case before the court, where he was the means by which the rights of a married woman were sought to be preserved. King and his wife were the plaintiffs on the record, and the suit might have been commenced, prosecuted, and ended, without the name of any other individual being added. Joseph King, jun., more especially after he was superseded, had not a shadow of interest; nor was he within any category embraced by the class of cases referred to, as excluding persons from reasons of public policy.

The practice of the English chancery to admit a trustee as a witness 'has been adopted in the courts of law in Pennsylvania, 6 Binn. 481; 7 Serg. & Rawle, 116; 6 Binn. 16. This case is' more nearly assimilated to that of an agent, and who is often Somewhat interested, and who is, nevertheless, from necessity, a competent witness: 13 Mass. Rep. 379; 22 Pick. 158.

Judgment reversed, and venire de novo awarded.


author: Coulter, J.

text:
    Curry v. Larer.
    A. covenanted to deliver two boat-loads of coal at different days; B. bound himself, by-agreement under seal, in the sum of $240, as security for A. that he would perform all his covenants, and in default of his delivering the two boat-loads, or either of them, according to his agreement, that the covenantee might recover from B. the sum of $240. This sum is a penalty, and not liquidated damages.
    In error from the Common Pleas of Schuylkill.

      April 4. Debt. Salmon, by agreement under seal, had covenanted to deliver two boat-loads of coal, weighing sixty tons, to Larer, before two certain days, in consideration of the assignment of an unexpired term in certain coal lands.
    On the same day, Curry, by a separate sealed agreement, “ bound himself in the sum of $240, as security for the above-named Salmon, that he will well and truly perform all the covenants and agreements mentioned, and in default of Salmon not delivering the above-mentioned two boat-loads of coal to the said Larer, or either of said boat-loads, according to the above assignment, then the said Larer, by action of debt, may recover the said sum of $240 from me.”
    The breach assigned was the non-delivery of the first boat-load, and there was evidence none had been delivered. The action was brought before the time fixed on for the delivery of the second load.
    Kidder, P. J., instructed the jury the damages were liquidated, and the plaintiff could recover the stipulated damages without interest.

      Harris and Blythe, for plaintiff in error.

      Campbell and Cummings, contra.

      April 10.
   Coulter, J.

The agreement between Daniel Larer and Michael Salmon, and the guaranty of Patrick Curry, ought to be construed as one, being made at the same time, in relation to the same subject-matter, and by the same parties: 10 Pick. 250; and especially as the guaranty is, “ that Curry, as security for the above Michael Salmon, binds himself that Salmon shall well and truly perform all the above-mentioned covenants and agreements.” We cannot escape, therefore, from the conclusion, that the surety contemplated at the time, that Salmon was to have all the benefits of his covenants, and that if he delivered the first boat-load of coal according to contract, that he the surety would not be bound to pay damages for its non-delivery; yet the construction of the court below involves that discrepancy.

Salmon was bound to deliver two boat-loads of coal, one on the 1st of April, 1843, and the other on the 1st of October of the same year; and Curry becomes surety in the sum of $240, that Salmon shall perform the contract, and agrees, that if Salmon does not deliver both boat-loads, or either of them, that the sum of $240 may be recovered from him in an action of debt. The question is, whether the $240 is to be construed as a penalty in favour of the surety, or be enforced against him as stipulated damages, for the non-delivery of the first boat-load. In the English books, there are many cases as to whether such covenants or agreements shall be construed as a penalty or stipulated damages, and those decisions occasionally seem to invade the province of each other, and afford no certain rule by which a test can be applied. The general leaning, however, is, that such agreements shall be considered as penalties, so that a party shall recover such damages only as he shows that in justice and fairness he ought to l'ecover. The general rule of law is, that the remedy shall be commensurate with the injury sustained. A scrutiny of the American cases leaves every agreement of the kind pretty much at large, to stand on its own peculiarities. The question whether a sum mentioned in an agreement shall be considered as a penalty, or as damages liquidated by the parties, is always a question of construction for the cburts, but they will take into consideration the subject-matter of the contract, the usages accompanying such contracts, the situation of the parties, and other facts and circumstances, as helps to guide to a true construction: 11 Mass. Rep. 81. This case is presented naked, however; nothing was given in evidence by either party to throw a gleam of light on it, not even the value of the coal. It has been settled that if the rule furnished by the contract itself is unconscionable, the court will, not be bound, in directing the assessment of damages, by its terms: Cutler v. How, 8 Mass. Rep. 257. In this case, the stipulation, on the part of the surety, goes beyond the covenant of his principal. The surety, according to the construction of the court below, would1' be compelled to pay the same damages for the non-delivery of one boat-load, as if no part had been delivered. And' he would be compelled to pay damages for the non-performance of the'whole contract before the time given to the principal to perform one-half of it. Now this appears to me to be so unreasonable- and unconscionable, that no man, as a surety, would have entered into the stipulation, with that understanding of its provisions. The scrivener was called who wrote the instruments, to prove their execution. lie said that' he drew them as Larer bid him, says- nothing as to how the contract- was understood' by the surety, nor whether he was present when Larer gave the direction. I am constrained to believe that Curry, the surety, would not have understood that he was bound to pay damages commensurate with the- loss of the whole contract, six months before his principal was bound to perform, but. that, he understood he was bound’ for the performance of the contract-as it stood; having all the advantages- that his principal Was: entitled, to, and bound to answer in- damages as he would have been bound. It-has been so common to introduce such stipulations into agreement's as a penalty merely, that people do not understand any- thing else to be meant, unless- there is something particular in the phraseology, to show that they- were regarded by the parties as liquidating the-damages for non-performance. In the case of Astley v. Weldon, 2 Bos. & Pull. 346, Mr. Justice Chambre observed, “ There is one case in which the sum agreed for must always be considered, as a penalty, and that is where the payment of a smaller sum is- secured by a larger.” Now in this case, if the agreed.sum' of $240 was adequate'tq cover the breach of the whole contract, or the two boat-loads of coal, it was- certainly much larger than the value, or price of one of them; and' therefore, according, to the rule in the case I have cited, must be' regarded as a penalty, when appropriated to the-non-delivery of the-first load. There is a strong analogy between this case and Gleason v. Pinney, 5 Cow. 152, where it was ruled, that in an action on a note for'a sum of money, payable, in specific articles, at a certain price, the value of the articles, and not the sum expressed, is the measure of damages; and a case still more analogous will be- found in 5 Cow. 144. In Tayloe v. Sandiford, 7 Wheat. 13, the court held, that the payment of a sum of money in gross, for the non-performance of an agreement, is to be considered as a penalty, and not liquidated damages; and if it is to be considered as a penalty in gross, for the non-delivery of both loads, it must retain the same character as a penalty when applied to either. I apprehend that it is rare in practice, in this state, to consider the sum mentioned for the purpose of enforcing an agreement in any other light than as a penalty — so rare, that unequivocal indicia of intention to make it liquidated damages ought to be present, to induce courts to enforce it as such. The court below having instructed the jury that the sum of $240 must be considered as liquidated damages, which the plaintiff had a right to recover when the time for delivering the first boat-load expired, they were, in the judgment of this court, in error. The court do not perceive, in the other errors assigned, any sufficient cause for disturbing the verdict and judgment; but for this error, being the fourth assigned,

The judgment is reversed, and a venire de novo awarded.


author: _ Gibson, C. J.

text:
    Darlington v. Painter.
    A plea of a general right to a water-course, and of a right to enter and cleanse the same, is not sustained by evidence of a particular right.
    Hence, where defendant pleaded a grant of a general right to a water-course, and his evidence showed a possession and user for more than twenty-one years, for the purpose of passing off the surplus water from his meadows, his plea is not sustained. The grantee of a water-course cannot use it for any purpose that would increase the flow, enlarge the ditch, or affect the water in any way different from that use for which the water-course was granted. Per Gibson, C. J.
    One using a water-course for more than twenty-one years for a particular purpose, is a grantee, subject to the same rule.
    In error from the Common Pleas of Chester.

      April 4, 5. Trespass quare clausum fregit. Pleas: that defendant and those whose estate he had, from beyond the time of memory, had a right to enter and cleanse a certain ditch, which was the trespass complained of. 2. A grant by the owner of the plaintiff’s land of the right to a certain ditch, whereby the water flowing through defendant’s lands might be carried off, &c., and that he entered and cleansed it, &e., so that the waters might pass off freely. Replication — a general traverse. On the trial it appeared that defendant, for more than twenty-one years, had been in the habit of using this ditch to pass off waters running over, or accumulating on his lands. In 1844, he built a mill, and at the same time, entered upon defendant’s land and cleansed the ditch, saying, he intended to use it for a tail-race. At the time of the action brought, however, the mill had not commenced working.
    His honour, Nill, P. J., instructed the jury that if defendant, by adverse possession, had the right to turn the surplus water off' his meadow through the ditch, he could not use it for any other purpose^ such as a tail-race for a mill, and if he entered and cleansed for that purpose, he was liable — so, also, if he used it for a purpose inconsistent with his presumed grant, or exceeded his rights in cleansing and repairing. •

      Lewis and J. M. Mead, for plaintiff in error.
    The motive or intent of the act done, if lawful in itself, cannot be inquired into. This is shown by Oakes v. Wood, 2 Mees. & Welsb. 791, where, in trespass for an assault, on the replication de injuria, it was held the motive of the act could not be inquired into, but simply whether there was an excess of violence in lawfully ejecting plaintiff from defendant’s premises. This was also decided in Mayor v. Randolph, 4 Watts & Serg. 514, and 7 Term Rep. 650; Lambert v. Hodgson, 1 Bing. 317; Price v. Peek, 1 Bing. N. C. 380; Greene v. Jones, 1 Saund. 300 a; Dye v. Leatherdale, 3 Wils. 20; Taylor v. Cole, 3 Term Rep. 292; S. C., 1 H. Bl. 555; Gundry v. Feltham, 1 Term Rep. 336; Groenvelt v. Burwell, 1 Ld. Ray. 454; Crogate’s Case, 1 Sm. Lead. Ca. 53. The right is traversed entirely, whereas if it was intended to set up an excess, that should have been replied. In that case, the action was misconceived, as we could not be trespassers ab initio, according to the familiar principle of the Six Carpenters’ Case.
    The intention to use it for an unlawful purpose is clearly no ground of action, and it is conceded no unlawful use had been made at the time of suit brought. But it becomes a question of grave importance whether the manner of user alone is a cause of action. This is directly raised. It is the well-settled law of water-rights, that an injurious consequence must follow the change of the manner of user to give a cause of action. A change of the object to which the power is applied is immaterial, where no more is required and used than was granted: Whittier v. Cocheco, 9 N. Hamp. 454; Bracegirdle v. Peacock, 10 Jurist, 9. So it is with respect to the prior use of water before it is turned into a ditch, in the same quantity and manner as was accustomed.
    P. F. Smith and Meredith, contra.
    A title by prescription gives a right similar to a grant, and if the user be confined, and particular, it is like a grant of such particular right of use: 1 Greenl. Ev. s. 71. But the question on the pleadings is plain: a general right is set up, and a particular one proved — the defendant, therefore, failed in the issue joined: Kirkham v. Sharp, 1 Whart. 323; Jamison v. McCredy, 5 Watts & Serg. 129, are illustrations of this rule. The importance is shown from the consequence that a recovery by defendant on such a plea, concludes the plaintiff on the right set up in the plea. It is also a familiar principle, that the evidence must cover the whole right set up : Stark. Ev. tit. Water-course; Saunders v. Newman, 1 Barn. & Ald. 258; Strickler v. Todd, 10 Serg. & Rawle, 71; Bealey v. Shaw, 6 East, 208; Baldwin v. Calkins, 10 Wend. 167; Drewell v. Towler, 3 Barn. & Ad. 735.

      April 18.
   _ Gibson, C. J.

The owner of a water-course through the land of another, whether to lead the stream to his ground, or discharge it, may enter to remove obstructions from natural or artificial causes; and the defendant had a clear right from adverse user for twenty years, to enter on the land of the plaintiff below him, in order to remove the earth and mud deposited in the trench, and to fit it to discharge the surplus water of irrigation. It may even be true, that he might have rightfully entered, though the user were to be changed from irrigation to water-power, provided the flow continued to be exactly the same; but that is a point which I do not at present concede; for a man might be willing to let another acquire a water-right from him by adverse user in the prosecution of an inoffensive business, who would not have suffered it had the business been offensive or unwholesome. But it cannot be doubted that the nature of the user cannot be changed in any case, unless the flow remain the same, as to quantity and rapidity; and it cannot be doubted, also, that the defendant here is liable in some form of action; for, though he had a right to enter, in order to remove obstructions to the discharge of water left on his own land, by irrigation, he had no right to repair the trench for the reception of the stream issuing from the tail-race of a cotton mill, which would necessarily widen or deepen it, and tear away the soil. It is unnecessary to inquire, therefore, whether the nature of the user, in this instance, was radically changed, for the increase of quantity was necessarily a damage to the plaintiff, which the license did not warrant'. The defendant insists that, as his entry was congeable for some purpose, he is not answerable in trespass quare clausum fregit for an injury only meditated; or that if the form of the action be right, he is not answerable on the pleadings, because his intent to misap•ply the use of the water ought to have been specially replied, instead of de injuria sua propria. His position that the intention entertained at the time of the entry cannot change the consequence of the act, is not sustained by Oakes v. Wood, 2 Mees. & Welsb. 791, in which the motive of an innkeeper for turning out a disorderly woman who was unmercifully beaten by him, was excluded ,from the consideration by the same replication. On the contrary, it was held in Peppin v. Shakespear, 6 Term Rep. 748, that in pleading a right to enter a common to dig for, and carry away, sand and gravel, for the repairs of a house, it is necessary to aver that the house was out of repair; that the party entered for the purpose of digging and carrying away for the necessary repairs of that house; and that the materials were used for that purpose. Besides, the question in Oakes v. Wood was not one of right, but of pleading ; and though the question before us is also such, the pleadings are not exactly the same. The defendant’s argument is that, as he had a right to enter for a justifiable purpose, he is not liable as a trespasser from the beginning, for a subsequent abuse of a license created by the party and not by the law, though he might be liable for it in an action on the case; or at least the unjustifiable purpose should have been replied specially. The last would have been true had he pleaded that he entered with intent to remove obstructions, in order to pass the surplus water of irrigation, or in other words, had he pleaded his license exactly as it was; but he pleaded a general right to enter in order to repair the trench for any purpose, and as the parties went to issue on the existence of such a right, the court properly directed that the defendant had failed in his proof.

Judgment affirmed.


author: Bell, J.

text:
    Albrecht v. Strimpler.
    Proof of mere failure of consideration, for negotiable paper is not sufficient to entitle the drawer to call for proof of value paid by the holder.
    And where such notes have been obtained by fraud, evidence of a valuable considera- • tion given by the holder to the payee is admissible, though it is not shown to have been the consideration of the note.
    In error from the Common Pleas of Schuylkill.

      April 5. Debt upon a negotiable note, at five months, dated November 1, 1848, for $70 50. Defendant having given notice,. proved that 'this, with other notes, had been obtained by Beveridge, the payee, on an undertaking to find iron ore in the defendant’s-land, under a promise not to use them until he had fulfilled his agreement.
    The plaintiffs called Wheeler, who said he had received a note of plaintiffs’ from Beveridge, in December, 1843, for $15, and that plaintiffs, about that time, paid Beveridge $6, and assumed a debt of $5. Another witness testified that plaintiffs had assumed a debt of $58 81, due by Beveridge in November and December, 1843, at his request, and had since paid it.
    The admission of the evidence was the only error assigned.

      Bannan and Blythe, for plaintiff in error.
    Was this any evidence of value paid ? It may have been pledged for the debt or amount paid, and that is not sufficient; Depeau v. Waddington, 6 Whart. 220.

      Cumming and Campbell, contra.
    There was evidence of consideration for a transfer of the note, which is sufficient if any evidence was required under the circumstances.

      April 17.
   Bell, J.

In an action upon a negotiable instrument, after the defendant has given proof that the note or bill wa» improperly obtained, and put in circulation by duress, felony, or fraud, he may call upon the - plaintiff, under a previous notice, to show that he is a bona fide holder for value, on pain of being other-, wise considered as standing in the same predicament with him who wrongfully gave it currency; Whittaker v. Edmunds, 1 Mood. & Rob. 366; Holme v. Karsper, 5 Binn. 469; but mere absence' or failure of consideration between the original part^ is inoperative to put the plaintiff on such proof; Knight v. Pugh, 4 Watts & Serg. 445; Brown v. Street, 6 Watts & Serg. 221. Though perhaps it might reasonably be questioned, yet conceding that- the defendant below had made out such a case as entitled him to call on the plaintiffs for express proof of value paid by them as endorsees, why was not the evidence objected to competent for that purpose ? It tended to prove that at or about the time the notes were passed to the plaintiffs, they paid money to Beveridge, and assumed to pay for him debts for which he was liable or was about to contract. Apart from any explanation, this certainly went to establish, in some degree at least, that a valuable consideration moved from the endorsees to the endorser. Each of these items of proof made some progress towards such a conclusion. That neither of them fully attained to it, furnishes no rational ground for its entire exclusion. If each might possibly form even a small link in the chain by which the plaintiffs proposed to support their case, it could not be said to be so irrelevant as to be altogether inadmissible. As was repeated in Brown v. Street, in many cases it is extremely difficult to prove what was given in exchange for negotiable paper; and to require the holder to introduce at once his reply to the defendant’s call, perfect at all points, would be not only a departure from the rule which permits a party to proceed in his proofs by successive steps, but might interpose a serious obstacle to that freedom of transmission which constitutes the chief utility of negotiable instruments. Whether the plaintiffs’ evidence, taken collectively, satisfied the rule invoked by the defendant below, we are not called on to consider. What the court below said on this point the l’ecord does not inform us, or whether they were called on to say any thing. We have, therefore, to deal with naught but the simple question of relevancy, and this is disposed of adversely to the plaintiff in error, by what has been already said.

It was proposed to prove, that when Shartel, in November, 1843, assumed to pay Paul Brandt a sum of money for Beveridge, the latter declared the assumption was on account of the transfer of the notes in controversy. The objection to this offer was overruled, but the witness failed to testify as proposed. We are consequently relieved from the necessity of considering this part of the exception.

The record, as exhibited by the paper book, very imperfectly delineates the case as, I doubt not, it was presented to the Court of Common Pleas. Taking it as it is given to us, we cannot say error was committed on the trial.

Judgment affirmed.


text:
    Wood v. Jones.
    Testator was the owner of a farm, as part of which he held a small piece of land which had been surveyed and improved under an old warrant not returned. Hi$ executor agreed to convey “ all that tract known, as the Annan (testator’s) Farm." The adjoining tract occupied as parcel of the farm passed under this agreement, and an independent title from the Commonwealth procured by the executor enures thereto; for there was a previous valid title By survey and improvement from the Commonwealth to his testator. ,
    In error from the Common Pleas of Chester.

      April 5, 6. Assumpsit to recover back part of the purchase-money paid by plaintiff to defendant. It appeared that one Annan entered into articles of agreement to sell Wood “ all that tract of land known as the Annan Farm” for a gross sum, “ the farm to be taken in a tract, be the same more or less, the lines to be run by the deeds and plot and made out as nearly as possible.” Wood entered into articles with Jones to sell him. “ the tract known as the Annan Farm, containing somewhere about four hundred and twelve acres, at $25 per acre — the land to be surveyed at Jones’s expense.” A survey was then made of three tracts, two of them containing four hundred and seventy-five acres and thirty-eight perches, and one twenty-five acres and three roods, and eight perches — the latter being supposed to be vacant. For this Annan took out a warrant, had a survey, and then made separate deeds for the respective tracts to Jones — it having been the understanding between himself and Wood, that the title was to be conveyed direct to Jones. The ground of the controversy was, that Annan, in making the contract with Woods, was acting as executor of his father, and he stated that he believed at the time there was vacant land adjoining, which it was not his intention to sell to Wood; and that Wood, in making the survey for the purpose of selling to Wood, had procured nine acres of the vácant land to be included therein. It was, however, shown on the part of Wood, that the supposed vacancy had been surveyed under a. warrant to Taylor in 1185, which had never been returned, and that he had improved part of the land and conveyed the same to Annan’s testator, and it had since been held by him as part of his farm. The question was left to the jury, whether the nine acres, for the price of which this suit was brought, was intended to be included in the contract between Annan and Wood; and if not, whether Wood had deceitfully procured it to be included in the survey and contract between himself and Jones. And these questions were decided affirmatively by the jury. The facts of the case are more fully stated in the opinion of this court.

      Lewis, for plaintiff in error,
    contended that there was no evidence that any land was foisted upon plaintiff other than he intended to receive. That his title was perfect, and would have been so, without taking the conveyance from Annan in his individual capacity, since it having been shown that the supposed vacant land was occupied by his testator as part of his farm — the new warrant procured by his executor enured to the benefit of the purchaser from him as executor.

      Darlington, contra.
    The contract was to sell what Wood had bought, and no more. It is decided by the verdict that he had not bought these nine acres, and, though it might have been occupied by the testator, yet, having no title, it lay open to the first warrantee, and, as the executor had acquired this title in his own right, he was not estopped by his conveyance as executor, since there is no estoppel where a party acts in distinct capacities: Posten v. Posten, 4 Whart. 43; Sims v. Chew, 15 Serg. & Rawle, 197.

      April 19.
   Burnside, J.

The written evidence in this case demonstrates that Jones had no right to recover. The parol evidence supports that conclusion. In reviewing the case, I will not take up the multitude of errors assigned in detail, but state the •law arising on the prominent and material facts which the paper book exhibits. There is no material contradiction in the relevant evidence. The Rev. Robert Annan died seised of a farm, part in Chester and part in Lancaster county. His son and executor, Doctor Samuel Annan, of Baltimore, sold this farm on the 9th of August, 1838, to Wood, the plaintiff in error, for the sum of ten thousand dollars, and described it in the written article as “ all that tract well known as Annan’s Farm, bounded by lands of S. Steele, T. Wood, and others. A deed, or full and sufficient title for the property, was to be delivered when certain payments were made. The farm was to be taken in a tract, be the same more or less. The lines were to be run by the deeds and plot, and made out as nearly as possible.” Two days after the execution of this agreement, Wood sold, by articles, to Jones, and described it as all that plantation or tract of land known as the Annan Farm, bounded by lands of Steele, Lanbourn, Ross, Botherston, and said Wood’s other land, and others, containing somewhere about four hundred and twelve acres, be the same more or less, at $25 per acre, to be surveyed at Jones’s expense. It was further agreed that Jones was to receive the deed from Samuel Annan, the executor of Robert Annan. This latter arrangement was made to secure a portion of the purchase-money that Annan was to let remain on the land by his sale to Wood, for which Jones was to give Doctor An-nan his bond and mortgage, and Wood was to procure the deed and possession from Annan. It was in evidence that the title of the Rev. Robert Annan was derived from James Taylor on the 12th of October, 1799, for four hundred and twelve acres, made up of different tracts, and another deed from Taylor of the same date for a piece of twenty-eight acres, for which Taylor had a warrant of the 28th of October, 1785, which was stated in the deed to have been surveyed, but not returned in Westfallowfield township, Chester county, and which bounded on the larger tract. A copy of this warrant was in evidence, and there was evidence that Taylor had regularly cultivated a portion of the twenty-eight acre tract in all kinds of grain with the general tract, and that cultivation was, continued by Annan and his tenants on the farm until the sale. Doctor Annan handed over to Wood the deed and a draft or plot of the four hundred and twelve acres, who placed them in the hands of his surveyor, to run off and ascertain the quantity. The surveyor ran by the plot of the four hundred and twelve acres, until he came to what was miscalled the vacancy, of which he included between nine and ten acres, and made the quantity four hundred and forty-nine acres and seventy perches. On the 2d of April, 1839, Doctor Annan, in pursuance of his agreement as executor of his father, conveyed to Jones, for the consideration of $10,000, the land within this new survey, after the agreement and sale to Wood; on the 9th November, 1838, Doctor Annan took out a warrant in his own name for the small tract as vacant land, and had it surveyed and returned. It was found to contain twenty-five acres, and one hundred and twenty-eight perches, which he sold to Jones for $400. This action is brought by Jones to recover back the price of the nine acres and three roods, which was paid for by Jones to Wood, and afterwards purchased from Doctor Annan.

The duty of Doctor Samuel Annan, as executor of his father’s estate, was to have perfected the title on the Taylor warrant of 1785. It being reasonably descriptive, accompanied with an actual unbroken possession for near half a century, a survey, or resurvey, returned upon it by the proper deputy would have been accepted in the land-office. The Rev. Robert Annan had title to the twenty-eight acre tract; he had a warrant on which the purchase-money was paid, and an improvement on the ground. It was apart and portion of the “Annan Farm.” In our acts of Assembly, as in common parlance, there is a difference between an improvement and a settlement. An improvement may be made by clearing land and cultivating it without residing upon it. A settlement requires an actual residence: Bixler v. Baker, 4 Binn. 218; Gilday v. Watson, 5 Serg. & Rawle, 267. Claims under improvements may be classed among the imperfect rights to land: Howard v. Pollock, 1 Yeates, 509; Smith v. Brown, Ibid. 516. A warrant such as this, and possession under it, is protected by the law, and it is only the Commonwealth that can call on the owner to perfect his title. Hence, Doctor Samuel Annan had no right to abandon the warrant of his father and the improvement under it, and take out a new warrant in his own name and for his own benefit. It was a violation of his duty as executor, and a fraud on his father’s estate.

Wood had performed his agreement to the letter with Jones when he procured the conveyance and possession from Doctor Annan. Jones’s title for the nine acres was good against Annan and every other person. It was such a title as the Commonwealth would perfect by a patent; and if Jones committed the folly of buying it a second time from Annan, that purchase gave him no right of action against Wood. Wood had bought all the Annan Farm for $10,000; the land in question was clearly a part of that farm. The first, second, and third errors are fully sustained. The plaintiff had laid no ground to recover. There was no fraud on the part of Wood in surveying the nine acres as a part of the Annan Farm, for it was a part of it, sipce his article embraced it. The case on the evidence was neither submitted to the Common Pleas nor to this court upon its true legal principles.

The judgment is reversed.


text:
    Bank of Chester v. Ralston.
    A debt due to an administrator, who is himself sole distributee, is not subject to attachment for his private debt, until settlement of his administration account.
    An attachment in execution may issue on a judgment recovered prior to the act of 1836, giving this remedy.
    A six fa. is not required to entitle plaintiff, in a judgment entered by warrant of attorney, to have execution.
    In error from the Common Pleas of Chester.

      April 6, 7. A judgment was confessed by Henry Olwine in 1882. In 1845, an attachment execution issued thereon, which was levied on a debt due to him by Ralston, executor and trustee, but no return or appearance as to the original defendant.
    On the trial of the soi. fa. it appeared that one Evans In queathed a sum of money to the children of Henry Olwine, ston having been appointed executor and trustee. The administi and trustee accounts of Ralston were shown, exhibiting a bal due these children. It was proved they were dead before the issued, some being minors and some of full age, without issue; H. Olwine, their father, being their administrator. It was also in evidence that debts due by these children still remained unpaid. The plaintiff requested instructions that the fund was attachable, subject to such debts as were shown by the trustee’s accounts to have been paid for the children, and such other sums as had been paid to H. Olwine, prior to the service of the. writ.
    The court directed a verdict for defendant.

      Darlington and Meredith, for plaintiff in error.
    There are two points relied on first to be disposed of; the right to an execution on a judgment prior to the act of 1836,* anil the necessity of a sei. fa. after five years elapsed. The latter is settled by Heebner v. Chave, 5 Barr, 115; Dailey v. Straus, 2 Barr, 401; 7 Watts & Serg. 444; Skidmore v. Bradford, 4 Barr, 296; Riley v. Hirst, 2 Barr, 346; Gemmill v. Butler, 4 Barr, 232. The first point rests upon a case in 2 Miles, 421; and that proceeds on the words of the act, “where judgment shall have been obtained.” Even on strict grammatical construction, these words include all judgments prior to the issuing of the execution. But such nice distinctions are not presumed without a reason. The act is a general one, taking the place of all prior remedies, as will be seen by comparing the 21st, 22d and 27th sections. Take the case of life-estates; they would be exempted entirely. But the necessity for the construction we contend for is palpable, on looking at the act of 1842. There never was a time when this kind of property was exempted. Before 1836, arrest, which compelled an assignment, was the only process to reach it. Then this additional remedy was given, and by the act of 1842, it is now the only one. It has been, however, decided, though the attention of the court was not called to the point, in Layman v. Beam, 6 Whart. 181; Skidmore v. Bradford, 4 Barr, 296.
    The last point is the liability of the fund in any event. It will be observed the administrator is himself the distributee, and if we must wait till he settles the estate, the fund is lost. No doubt he is entitled to it to pay debts, and for the surplus only do we ask judgment, and that there will be a surplus is not denied; Ross v. Cowden, 7 Watts & Serg. 376, decides this point directly.

      Gerhard and Lewis, contra.
    It has never been decided that an execution can issue without a soi.fa. on a judgment confessed. There may be exceptions, it is true, as where the defendant appears and defends; but here the real debt 'was unascertained, and no service bn the defendant. The case in 2 Miles is in accordance with the very words of the act, which expressly refer to future judgments. But how is this proposed judgment to be entered? It must be for a sum certain, and that the court has not jurisdiction to determine. The creditors of the children are not parties, and have no notice, nor could they be heard. That is exclusively in the Orphans’ Court. It would lead to inextricable confusion, to authorize this extension of a new remedy.

      April 17.
   Coulter, J.

In the case of Skidmore v. Bradford, 4 Barr, the Chief Justice said that the 8 & 9 Will. 8 did not extend to judgments confessed on bonds with warrant, and a case was ruled on the same principle, at the last term at Pittsburgh, which is not yet reported. The words of the statute do not include such judgments, and the reason for its enactment, or an inducement for its adoption in that respect, never existed in this state.

At the time of the passage of the statute, a defendant, in a penal judgment, could obtain relief only by filing his bill in the Court of Chancery, which occasioned expense, trouble, and delay; and hence the statute was enacted to compel the plaintiff to show, in the common-law court, the amount of debt and damages really due. No hardship or injustice can result to defendants by occasion of the law being so held, because relief is always at hand, upon application to the discretionary and equitable powers of the common-law court where the judgment exists, who always have exercised, upon motion, sufficient control over their own process to prevent injustice, and give adequate relief to defendants in judgments of this nature.

The act of Assembly, which affords the remedy of attachment in execution, is not retrospective or retroactive, in any objectionable or illegitimate aspect. The defendant being bound to pay the judgment, both legally and morally, which was obtained before the passage of the act, his estate was of course amenable, unless where it had been excepted by previous statutes. The law brought within the range of the process nothing which had been exempted, and touched no ground interdicted by any constitutional implication. The law relates to executions issued after the passage of the act, and as it has been generally construed throughout the state, they could issue on judgments obtained a month before its passage, as well as on judgments obtained a month after.

The point most strongly mooted by the counsel for the plaintiff was, that the claim or interest of a distributee, where there are several in that relation, is the subject of an attachment in execution, before settlement in the Orphans’ Court, by the administrator of the intestate. In this, however, the judgment of this court is against him; the evils resulting from a contrary decision would be grievous and flagrant. The interests of a distributee might be totally sacrificed, and the duties and responsibilities of executors and administrators be greatly embarrassed. The judgment .on an attachment execution is, that the debt attached in the hands of the garnishee shall be sold, or so much thereof as will satisfy the debt, interest, and costs of the plaintiff. The interest of the distributee is only in the surplus which remains after satisfying the debts of the deceased; but how can an approach be made towards an ascertainment of that balance until the administrator has settled an account. No purchaser would be found for an interest so uncertain and impalpable. The object of the law is not to lead or tempt persons into difficulties, but on the contrary, to save them, so far as may be. It would be at best but a sort of lottery, or gambling transaction. The law, if so construed, would deal somewhat cruelly with distributees.

The act of 16th June, 1836, authorizing the attachment in execution, speaks of a “ debt due to the defendantnow this cannot be predicated of a distributee’s claim, before settlement of administrator’s account, for it is only after that the decree of distribution is made. But if the law allowed this undefined and unknown interest to be attached, it would necessarily withdraw, to a certain extent, the accounts of administrators from the Orphans’ Court, and subject the administrator to two jurisdictions, from which it was an especial object of the act of 1834 to free him, as may readily be perceived by the 33d, 35th, 36th, 37th and 39th sections of that act. The counsel for plaintiff in error relied upon Ross v. Cowden, 7 Watts & Serg., as ruling the case in their favour. I apprehend, however, that the case does not bear them out, but leans decidedly the other way.

The court say, and the case shows, that the executor was the sole residuary legatee of an estate far beyond the payment of all legacies and debts, and Ross being a debtor to the estate, the executor and residuary legatee took a note in his own name, and in fact made it a debt due to himself individually. Seven years after testator’s death, when the residuary legatee had squandered the estate, this debt was attached in Ross’s hands. The court say, “ under all the circumstances of the case, the debt attached may well be considered as a debt owing to the defendant in his own right, and liable to be attached as a debt due to him.”

It was clearly considered by the court as a liquidated debt due to the executor, in a sum certain, and therefore liable to be attached on a judgment against him, and does not cover or reach the case before the court.

Judgment affirmed.


text:
    Kerr v. Kitchen.
    Purchase-money, paid under an executed deed, cannot be recovered back for defect in the title, unless there was fraud or warranty; and so of money paid on a ground-rent reserved.
    A fraudulent concealment of a defective title cannot be imputed when it appears from deeds on record, especially where such deeds are recited in the title.
    Where one joined in a conveyance, as trustee under a recorded deed, having no power ■ to pass flie trust-estate, but the deed was accepted, the grantee, though ignorant of the defect in the title, cannot, on tendering a re-conveyance, recover back ground-rent paid under the reservation to the trustee.
    In error from the District Court of Philadelphia.

      April 10. Assumpsit to recover back a sum of money paid by plaintiff to defendant on a ground-rent reserved in a conveyance between them, and also the amount paid for taxes.
    It appeared that J. Kitchen devised his estate equally among his wife and five children. In 1828, Henry, one of the children, with his wife, conveyed his estate to his mother in fee, who about the same time conveyed the same to Dr. James Kitchen in trust for the separate use of the wife of said Henry, remainder to his children. These deeds were recorded. In 1889, the devisees of J. Kitchen, excepting Henry, with Dr. James Kitchen, trustee under the deed above mentioned, conveyed the lot in question to Kerr, the plaintiff, on ground-rent, with covenant for quiet enjoyment against all parties to the deed. In this deed the settlements, in 1828, by Henry, together with the place of their registry, were recited.
    The plaintiff proved the payment of the ground-reht and taxes, and gave evidence that the defect in the title, (there being no power given by the settlement to the trustee to convey,) was not discovered by him until after the deed was accepted, when he tendered a reconveyance.
    He then called McCurdy, a conveyancer, who had effected the sale through Bonsall. He stated he did not know of the difficulty; Dr. Kitchen had never spoken to him about it. He knew of the trust-deed, and thought there might be some difficulty in managing it, but he submitted to Mr. Bonsall’s superior knowledge. Bonsall stated, the trust-deed was not submitted to him, but he had no doubt, from the recitals, he had gone to the recorder’s office to make extracts of the previous title. It was also proved that the rent reserved was the full value of the land; and the plaintiff offered to show that Dr. Kitchen had been informed of the defect in his title, but the time referred to was after the date of the conveyance to Kerr.
    The court nonsuited the plaintiff.
    Randall, for plaintiff in error.
    The defendant undertook to convey where he had no right to do so, and without stating the facts known to him. It is said we had constructive notice by the registry, but that is immaterial where there was not actual knowledge on the question of fraud: Pullen v. Rianhard, 1 Whart. 514; 1 Serg. & Rawle, 42; 7 Serg. & Rawle, 47; 3 Watts & Serg. 390; 5 Watts & Serg. 478; 7 Watts & Serg. 201; 2 Barr, 122.

      G. M. Wharton, contra.
    Actual fraud is required by all the cases to entitle a party to recover back purchase-money after a deed delivered. Of that there was no evidence, nor is it pretended to have existed.

      April 17.
   Bell, J.

It is unnecessary to run through-the familiar cases which establish the rule in Pennsylvania, that though a vendee of land may defend an action brought for the purchase-money, by showing existing encumbrances or defect of title, he cannot, on these grounds, recover back the consideration-money paid, after conveyance made, unless there be fraud or a warranty. Conceding this doctrine, the plaintiff bases his claim to recover the ground-rents and taxes paid by him on an imputed fraudulent concealment by the defendant of Dr. James Kitchen’s inability to convey the interests of Eliza Kitchen and her child in the premises. But there is not the slightest foundation for this pretence. All the deeds evidencing the title proposed to be conveyed, were of record and open to the inspection of all parties. The plaintiff had, therefore, constructive notice of all that was necessary for him to know, and in the absence of fraudulent representation by the defendant or his agents, which is not pretended, he was bound to inform himself. But the fact is, he had actual notice of the very deed under which the defect complained of exists, for it is recited in his title, and Mr. Bonsall, who was his agent for drafting the conveyance to him, testifies, that when preparing the deed he had recourse to the registry of the previous muniments. The plaintiff, however, insists that McCurdy, the agent of the defendant to effect a sale of' the property, knew of and improperly concealed the defect of power in Dr. Kitchen to convey. Were this even so, it would not help a plaintiff to whose inspection every thing was open, but the imputation is positively denied by McCurdy, who swears he was not aware of any defect of title. It is true he says he knew of the trust-deed, and thought there might be some difficulty in managing that, but that he submitted to the superior knowledge of Mr. Bonsall as to the title. The fact is, all the parties acted under a mistake of the legal effect of the deed of trust, as it is abundantly apparent from the evidence. Each of them knew of its existence, and must have been aware of its contents. There was no room for concealment, nor is there the slightest evidence that any was attempted. Kerr had full opportunity for examination, personally and by counsel learned in such matters, and if he neglected it or selected those who misadvised him, it is his misfortune, which, however, gives him no right of redress in this action, for it is settled that mere mistake is insufficient to support it: Dorsey v. Jackman, 1 Serg. & Rawle, 51, explaining D’Utricht v. Melchor, 1 Dall. 428. Were this suit brought to recover purchase-money, a grave question might be presented ; but it is clear, beyond cavil, there is nothing in the case to take it out of the rule I have stated, in respect to money paid. It follows, the District Court was right in directing the nonsuit.

It is admitted by the plaintiff’s counsel that the bills of exception to the exclusion of the evidence offered are subordinate to and dependent on the principal question. This being decided against him renders it unnecessary to consider them, for were the evidence offered admitted, it could make no change in the result.

Judgment affirmed.


author: Gibson, C. J.

text:
    Cope v. Grant.
    A., the owner of a large lot, erected buildings on either side of an alley opening from a public street. The building furthest from the street stood on the line of the alley, and had an opening into it; but the entrance was on another alley which led to another public street. The building adjoining the street stood some distance from the line of the alley. Held, that by opening doors into the alley, the owner had dedicated it in part to the use of the houses on that side, and that a sheriff’s sale of the land passed this right, an appurtenance by implication.
    Certificate from the Nisi Prius.

      April 10. This was an action of trespass to try the plaintiff’s right to the use of the twelve feet wide alley, on. the annexed plan, which shows the relative situation of the property of both parties. The trespass was an obstruction to the entrance into the alley from Walnut street.

    In 1796, Forbes being the owner of the whole'lot, mortgaged a portion fifty-eight feet on Water street, extending east that width twenty feet, then widening to seventy-three feet, and extending that width to low water-mark. In 1801, judgment was confessed on a sci. fa. upon this mortgage, and a levy made by the same description. The sheriff returned that he had sold part of the premises, viz. a lot commencing sixty-seven feet, four inches, more or less, from Water street, seventy-three feet wide, and extending to low water-mark, “bounded on the west by a twelve feet wide alley, with the appurtenances.” The deed followed this description, being the lot marked Cope, and contained the usual clause as to ways, alleys, &c. The plaintiff had the title of the sheriff’s vendee.
    It was also in evidence, that as early as 1791 or 1792, a warehouse had been erected on the north-east lot on the line of the alley, with a door and several windows, and a fall and tackle by which merchandise had been taken in. The entrance to this building was on the eleven feet, ten inches alley, running from the alley in dispute to Delaware Avenue. The building on the south-east lot stood fifteen or twenty feet to the east of the line of the alley, and had windows opening on it, but no door, the entrance being from Walnut street. Within twelve years the plaintiff had erected a new store on this lot, on the line of the alley into which he opened doors, &c. It was also shown that as early as 1806 plaintiff had used, this alley for the purpose of carrying merchandise to his northermost store.
    The defendant had a conveyance from Forbes in 1797 of the house and lot on the west side of the alley, together with the use of said alley; and also a conveyance, in 1837, of the soil of the alley from the heirs of Forbes. It was in evidence, that Forbes died prior to 1801, leaving a widow who survived him several years, and one son, who died a lunatic, in 1805. His heirs resided in •Scotland.
    His honour, Burnside, J., left it to the jury to say whether there had been a dedication of this alley by Forbes to the use of his houses, on both sides of the alley, saying, if this -was so, the sheriff’s sale passed the right to use it as appurtenant, though not distinctly levied on.

      Wain and Gcuilloic, for plaintiff in error.
    The only questions are, whether there was a dedication to the houses on both sides, or a partial one to those on the west side-only, and whether this right will pass though not levied on. It is said that the levy controls all subsequent proceedings, and if any thing be omitted there, the deed will not carry it: Grubb v. Guilford, 4 Watts, 223. The mortgage makes no mention of this alley, and it would seem therc.fore to have been intended for the western houses only, which faced on the alley, and had a piazza there. The dedication ivas, therefore, but partial: Whalley v. Tompson, 1 Bos. & Pul. 371; Murphy v. Campbell, 4 Barr, 480; Gowen v. The Exchange Company, 5 Watts & Serg. 141. The openings from the northern house are immaterial, for there was a communication to that through another alley from Delaware Avenue, and it is settled that a mere convenience does not pass by the words appurtenant: Hinchcliffe v. Kinnoul, 5 Bing. N. C. 1. Those from the southern house have still less effect, for that building stood back from the alley, and they were upon the intermediate space. As to the user, it is out of the case, for since 1805 there was a tenancy for life, and the remainder-men were abroad: 11 East, 371; Yard v. Ford, 2 Saund. 175 n.; 9 Serg. & Rawle, 26.

      Tyson and Meredith, contra.
    The mode of building shows a dedication; Lewis v. Carstairs, 6 Whart. 193. If a man builds a house on his jnivate way, with a door opening therein, he thereby renders it appurtenant, and his conveyance of the house passes the right of way. The same is the effect of a sheriff’s sale, -which should even be construed with greater liberality; Kent v. Waite, 10 Pick. 138; Campbell v. Wilson, 3 East, 294; Murphy v. Campbell, 4 Barr, 484; Grubb v. Guilford, 4 Watts, 223; Newman v. Rutter, 8 Watts, 51, 2 Whart. 427, 9 Serg. & Rawle, 26; Hastings v. Wagner, 7 Watts & Serg. 215; Jackson v. Hathaway, 15 Johns. 448.

      April 18.
   Gibson, C. J.

The principle of this case is so fully developed in Kirkham v. Sharp, 1 Whart. 323, that I will not further discuss it. It was there said that an owner of ground, who builds houses on a court laid out by him for their use, ipso facto annexes it to the houses; and that he retains the bare legal title to the soil in trust for the tenants. It follows that his grantee of the legal title, or any one claiming under him, stands in the same predicament; and what is the defendant in such case but such a trustee, except that, as a part owner of the original lot, he holds a part of the beneficial interest in the alley in common with the plaintiff. Our earliest account of the property is, that Forbes owned the whole of it, including the alley which was then, as it has since been, used as a common passage by the tenants on each side of it. New stores and new houses, since built, have narrowed it; but the part of it which remains has always been used as an easement in common by the tenants of the buildings by which it is bounded. What, then, did Mr. Bingham, the purchaser under whom the plaintiff claims, buy when the ground on the east side of it was sold on the mortgage ? Undoubtedly every privilege or easement, without exception, that had been annexed to it by the common owner of the whole, and master of the use of it; and this, without assistance from the word appurtenances in the levy returned by the sheriff. Would it be necessary to insert an express grant of such an easement in the conveyance of a house in a court dedicated, not to public use, but to‘the use of those who should reside on it.? Not one scrivener in a thousand would think of it, and the original proprietor would, in consequence, be able to impair the value of the grant by refusing the right of passage, and drive the grantee to his common-law right of way, from necessity, if he should not have the means of egress and regress in the rear. But such is not the law. “When any thing is granted,” it is said in the Touchstone, p. 89, “ all the means to attain it, and all the fruit and effects of it, are granted also; and shall pass inclusive, together with the thing, by the grant of the thing itself, without the words cum pertenentiis, or any such-like words.” And again: “ The incident, accident, appendant, and regardant, shall in most cases pass by the grant of the principal without the words cum pertenentiis, but not e converso. And among other illustrations of the rule, it is said: “By the grant of a ground is granted a way to it; that is, all usual ways; and unless there be a usual way, then a way of necessity will pass.” That is exactly our case. But if the rule of interpretation were otherwise' in regard to a grant by the owner himself, the interpretation of a levy by an officer who could not know the relative rights of the parties, would necessarily have to receive a greater share of liberality and indulgence. By extending the conveyance to the alley, therefore, Mr. Grant acquired no more than the bare legal title to it, which was in Forbes, in whose place he stands, subject to the easement which' Forbes had himself created; and the charge of the judge was right in every particular.

Judgment affirmed.