text:
    Peoples’ Savings Bank versus Cupps and Wife.
    1. Depositors in a savings bant have a right to rely on the published bylaws, as to the mode in which the money can be withdrawn.
    2. The by-laws of a savings bank provided that in order to draw out money the pass-book must be presented at the bank, and that absent depositors could withdraw their deposits on their order or check properly-witnessed. Held, that the bank was liable to a depositor for money paid on forged checks, to one who had possession of the pass-book of the depositor, which checks were not witnessed as required by the by-laws. Held further, that whether the depositor was guilty of contributory negligence, in parting with the custody of the book, was of no consequence, as it was a ca^e of mis-payment in violation of the published regulations of the bank.
    October 14tb 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkev and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 276.
    Case by Jacob Cupps and E. W. Cupps, his wife, in right of said wife, against the Peoples’ Savings Bank, to recover the amount of a deposit in said bank in the name of the wife.
    It appeared that Mrs. E. W. Cupps, who was an old lady, resided with her husband about fifteen miles from Pittsburgh. On the 28th of October 1876 she gave to her daughter, Mrs. Magill, who lived in Pittsburgh, the sum of $800, to be deposited in some savings bank. On the same day Mrs. Magill called at the defendant bank, and without disclosing her own name, deposited said amount in the name of “E. W. Cupps, No. 48 Fourteenth street.” She signed the name and address in the signature book, and left the impression on the officer of the bank that it was her own signature and residence. She received a deposit book, in which was the entry: “ Peoples’ Savings Bank in account with E. W.Cupps in
    which the $800 were placed to the credit of E. W. Cupps.
    On the first page of this book was the following caution: “ Take care of this book. If you lose or mislay it, give immediate notice at the office; for if it get into improper hands, you may be defrauded.”
    And printed thereafter in the same book were the following: bylaws : •
    1. Every person desirous of becoming a depositor (not a stockholder), shall, at the time of making his or her first deposit, sign a book containing the following by-laws, and shall thereby be considered as signifying his or her assent thereto, and a willingness to be bound thereby; and shall, in connection with the signature, state his or her business, occupation or calling, and place of residence; and every such depositor will receive a book containing these rules and regulations, in which their names will be inscribed, and the amount of their deposits inserted.
    3. Deposits may be made by one person as trustee, for the benefit of another, or of any unincorporated society or association, at the discretion of the treasurer. In all such cases the deposit shall be made in the name of the trustee, “in trust for” such person, society or association, and the trustee, or his successor, shall alone be entitled to receive payments, and his receipt, with the production of the book, shall be a sufficient discharge. Provided, however, that in case of deposits for the benefit of another person, the corporation may, at their discretion, by a vote of the board, make payment to such person, on production of the book, which payment shall also be a sufficient discharge.
    5. Deposits made in this bank can only be withdrawn on notice being given to the treasurer, as follows :
    If the sum proposed to be drawn be—
    More than $ 60 and not exceeding 200, weeks’ notice,
    200 300. u
    300 400,
    400 500,
    600 600,
    600 700,
    700 800, * * *

      But if the amount be $50, or under, no notice will be required. * * * When money is to be drawn out, the book must be brought to the office to have the payment entered therein, and in all cases in which the whole amount is drawn the book must be given up to the corporation. Absent depositors may withdraw their deposits on their order properly witnessed — blanks for which purpose will be furnished at the office of the bank.
    6. In case a book be lost, or destroyed, or obtained from a depositor fraudulently, immediate notice thereof must be given at the office, and after two weeks from the time of such notice, with satisfactory evidence of the loss, and indemnity given (if required by the trustees), another book will be furnished. If any person shall present a book, and falsely allege himself or herself -to be the depositor, named therein, and thereby obtain the amount deposited, of any part thereof, this institution will not be liable to make good any loss the actual depositor may sustain thereby, unless previous notice of his or her book having been lost or taken shall have been given at the office of the corporation.
    Shortly after Mrs. Cupps authorized her daughter to make the deposit, the old lady came to Pittsburgh and Mrs. Magill gave her the deposit book. It appeared that.Mrs. Cupps handed it to her son William, but for what purpose was not clearly shown. Mrs. Cupps testified, she gave it to him simply to take care of and bring up to her on the following Saturday; while William and Mrs. Magill testified she gave it to him for the purpose of withdrawing the deposit and placing it where it would draw more interest.
    On the 4th of November 1876, William Cupps presented at the office of the bank the book with a check signed E. W. Cupps, for $50, and received the money, which was entered on the book; and on November 10th 1876, again presented the book with a check signed E. W. Cupps, for $100, and received that amount, which was entered on the book. On November 23d 1876, he presented the book with a check signed E. W. Cupps, for $650, payable to the order of John McIntyre, who came to the bank with William. This check the bank paid by passing it to the credit of John McIntyre, who then opened a deposit account. The payment of this check was entered upon the book of E. W. Cupps, and the account closed, and the book surrendered to the bank. All these checks were forgeries.
    . It appeared that the checks were not witnessed, as required by a by-law; that the teller had not compared the signatures with that in the signature book, and that the notice required by the by-laws had not been given.
    The following were among the points submitted by the defendant, to which are appended the answers of the court, "Collier, J.
    1st. If the jury believe from all the evidence in the cause that Mrs. E. W. Cupps, the beneficial plaintiff, gave to her son William the pass-book in evidence, on the 4th of November, or the day before, allowing him to retain possession of the same, without notice to the bank, until the whole deposit was withdrawn by him, and that he produced the book at the bank accompanied by checks purporting to be signed by E.'W. Cupps, and on the strength of said book and checks, obtained the whole deposit, the plaintiff cannot recover, although the jury believe that said checks were not genuine.
    Ans. “ Affirmed, if the jury believe Mrs. Cupps gave William authority to draw the money.”
    5th. If the jury should believe there was negligence on the part of the bank in paying out said money in manner aforesaid, and that E. W. Cupps, by giving said book to her son and allowing it to remain in his possession until the whole deposit was paid, she was guilty of contributory negligence, and the plaintiff cannot recover.
    Ans. “Refused.”
    6th. The entry on the signature book of the name of E. W. •Cupps, at the time the deposit was made, showing that her residence was in the city of Pittsburgh, No. 48 Fourteenth street, which book contained the by-laws, and thereby signifying her assent thereto, authorized the bank to pay the money to any person producing the book, without an order or check from the depositor, and such payment would be good in the absence of notice that the book had been lost, destroyed, or obtained from the depositor fraudulently, or placed in the possession of another for safe keeping or otherwise, and the plaintiff cannot recover.
    Ans. “Refused.”
    Verdict for plaintiffs. Defendant took this writ and alleged that the court erred in the answers to the above points.

      M. W. Acheson, Geo. P. Hamilton and E. P. Jones, for plaintiff in error.
    If the bank exercised reasonable care and acted in good faith it is not responsible: Levy v. Franklin Savings Bank, 117 Mass. 448; Goldrick v. Bristol County Savings Bank, 123 Mass. 320. Mrs. Cupps was guilty of contributory negligence and cannot recover: Railroad Co. v. Norton, 12 Harris 469.

      T. Walter Pay and J. W. Hall, for defendants in error.
    It is manifest the bank did not comply with its own by-laws, and it cannot visit the result of its gross negligence upon the depositor.
    October 27th 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

The depositors in a savings bank have a right to rely on the published by-laws as to the mode in which the money can be withdrawn. It cannot be pretended that in this case Mrs. Cupps’s money was paid out in conformity to any one of these by-laws. It was paid out on forged orders, and these orders were “not properly witnessed,” as the by-laws required the orders of absent depositors to be. It was not a question of negligence, and contributory negligence in the depositor was of. no consequence. It was a case of mis-payment, contrary to the published rules, and the defendants below have no right to complain of the ruling of the learned judge below.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Wernet’s Appeal.
    On an application to open a judgment, it is proper for the court to weigh the evidence and decide according to the preponderance thereof, and the Supreme Court will not reverse for the exercise of a sound discretion. ,-
    October 14th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket and Sterrett, JJ. Green, J., absent
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 292.
    Appeal of Robert Means, committee of A. A. Wernet, a lunatic, from a decree of the court discharging a rule to show cause why a judgment entered by confession on a warrant of attorney should not be opened and the committee of defendant allowed to make defence.
    In 1875 Wernet came to Allegheny county from Australia, where he had been residing for a number of years. About the same time, there arrived, sent to a Mr. Scully, of Pittsburgh, the exemplification of a record of the Supreme Court of the colony of Australia, under the seal of said court and that of the United States consul at Melbourne, wherein it appeared that a judgment had been entered in said court on July 20th 1875, in favor of one Dalton against said Wernet for 2000?. With the record was a request from the consul that Mr. Scully w.ould have the judgment entered so as to be a lien on Wernet’s estate in Allegheny county. Wernet expressed his willingness to have it so entered, and immediately censulted an attorney to do so. Upon examination it was discovered that the exemplification was defective, inasmuch as it did not show either service upon or an appearance by Wernet. It was necessary, therefore, that suit should be brought against him, and to avoid costs a judgment was confessed for the amount of the Australian judgment. On May 3d 1878, an inquisition found that Wernet was a lunatic, and had been for the twenty-eight years last past, and that he did not have any lucid intervals. On September 28th 1878, the rule in this case was taken. On the rule testimony was taken, a portion of which will be found in the opinion of this court. And on July 2d 1879, the rule was discharged, when this appeal was taken, under the provisions of the Act of April 4th 1877, Pamph. L. 53.

      Charles F. McKenna and Weir & Gibson, for appellant.
    The finding of the inquisition was prima facie evidence of incapacity to contract; and does not merely shift the burden of proof, but, like a legal presumption, it continues to operate until the question of sanity has been decided by the jury: Rogers v. Walker, 6 Barr 371.
    To this prima facie case in favor of appellant is offered the testimony that he appeared to be sane when the judgment was confessed. This evidence could not establish that he had lucid intervals: Attorney General v. Parnther, 3 Bro. C. C. 441; Ray’s Med. Jurisprudence of Insanity 224; George’s “ Des Maladies Mentales” 46; Reed’s 21st Essay on Hypochondriacal Affections; Whart. Law Dic. 363-458.
    Under the peculiar circumstances of this case, the failure of Dalton to answer, by his own testimony, the allegations of the petition of the committee of Wernet, or to have forwarded his own depositions to be used at the argument, should be conclusive against his claim on the agreement and warrant of attorney: Whart. on Ev., sect. 1266; Fowler v. Sergeant, 1 Grant 355; Frick v. Barbour, 14 P. F. Smith 120. He knew also of Wernet’s lunacy, and this should avoid the confession of judgment: Hope v. Everhart, 20 P. F. Smith 231.
    The purported record is, as set forth by the certificates annexed, but an “ office copy” of a judgment by default, which “ office copy” does not show a summons issued on defendant, nor any service or return of a summons on defendant. Not a single date appears on it, except date of judgment. Until service is shown no jurisdiction can attach, and want of jurisdiction is always a defence in actions on record. In an action upon a judgment of the court of another state the record may be contradicted by evidence impeaching the same.

      M. W. Acheson, for appellee.
    Judgments obtained before lunacy found are not affected by the finding: Wright’s Appeal, 8 Barr 57. Even as respects prior executory contracts the finding is but prima facie evidence of incapacity: Hutchinson v. Sandt, 4 Rawle 233; Noel v. Karper, 3 P. F. Smith 97. A foreign judgment, if the court had jurisdiction, and in the absence of fraud, is conclusive upon the merits: 2 Kent 118-121; Wharton’s Conflict of Laws, sect. 815; Bouvier’s Law Dic., tit. Foreign Judgments.

    November 10th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This is an appeal from the refusal of the court to open a judgment entered against Wernet by confession. The affidavit on which the rule to show cause was granted alleged lunacy of Wernet, and 'that the judgment ivas wholly without consideration. On the hearing, no evidence was given tending to show want of consideration, but it all related to the question of lunacy. The judgment was confessed and entered on the 16th September 1875.

The appellant gave in evidence the record of an inquisition taken at Pittsburgh, on the 3d of May 1878, which found Wernet was then a lunatic, and had been so for the space of twenty-eight years last past, and did not enjoy lucid intervals. In addition to the inquisition and evidence returned therewith, the evidence of other witnesses, was given, tending to show imbecility of mind caused by intemperance.

It appears that Wernet was a native of this county, but had been absent from the country, and residing in Australia for some twelve years prior to the summer of 1875. The evidence of some of the witnesses was based on their knowledge of him prior to his departure; others, on knowledge acquired after his return. It does not appear that any of them saw him during his absence.

The consideration on which the judgment sought to be opened was based was a judgment entered in the Supreme Court of the colony of Victoria, Australia, for 2000Z. sterling, in favor of the appellee against Wernet. An exemplified copy of the record of the judgment was duly certified under the official seal of said court and by the U. S. Consul-General at Melbourne. The record, however, fails to show any service on Wernet, or any appearance by him. It therefore lacks the essential element to give it the binding force of a judgment here. This is conceded, hut the appellee shows the distinct admission of Wernet as to a valid consideration. On his return here, he admitted to Mr. Scully, a reputable person of this city, to whom the exemplified copy of record had been sent, that while in Australia he married a widow, Mrs. Dalton, who had two or three children; that he had obtained about 2000Z. from her, and squandered it, and that she was then dead. Upon showing Wernet the exemplification of record, he said it was all right, and expressed his willingness to have it entered up. With this view and purpose Mr. Scully accompanied him to the office of Mr. Acheson. They there ascertained that a judgment could not be entered by filing the exemplified record. This resulted in filing a precipe for a summons, and in Wernet’s waiving the issuing thereof, and confessing judgment.

The inquisition was found more than two and a half years after the judgment was confessed. It was therefore prima facie evidence only of his incapacity to confess the judgment. To rebut that presumption, and to prove he had a lucid interval when he signed the confession, two reputable and uncontradicted witnesses testified substantially, that he was at the office of Mr. Acheson from a half hour to an hour; that he exhibited no indication of being intoxicated, either by looks or conversation; that he fully understood what he was about; acted intelligently and was perfectly competent; he distinctly admitted his indebtedness, and expressed a desire to save costs and to accept service of the writ. He accompanied one of the witnesses to the prothonotary’s office, and several times afterwards expressed to the other one his satisfaction that it had been fixed. The appellee was one of his step-children, and Wernet was willing to secure the money to the parties in whose favor the Australian judgment was rendered. Conceding that the proper form of the suit in Australia should have been in the name of the personal representative of the decedent, yet that did not preclude him from confessing a judgment to the surviving child, if the others were dead, or if living, to this one under such an arrangement as was satisfactory to Wernet. We have several times decided lately that, on an application to open a judgment, it is proper for the court to weigh the evidence and to decide according to the preponderance thereof, and we will not reverse for the exercise of a sound discretion.

In this case the preponderance of testimony established the competency of Wernet at the time he confessed the judgment, and the learned judge committed no error in refusing to open it.

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


author: Mr. Justice Paxson

text:
    Hoeveler versus Fleming & Co.
    1. Any act of a landlord which deprives his tenant of that beneficial enjoyment of the premises to which he is entitled under a lease, will amount law to an eviction and suspend the rent.
    2, Where repairs are not ordinary but of a character to deprive the tenant of all beneficial enjoyment of the premises, or at least seriously interrupt it while the repairs are in progress, they amount to an eviction and suspend the rent.
    3. Magaw v. Lambert, 3 Barr 444, followed.
    October 15th 1879.
    Before Sears wood, C. J., Mercur, Gordon, Paxson, Trunket and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 146.
    Debt by Elizabeth Hoeveler against William Fleming & Co., to recover a quarter’s rent.
    In April 1873, the plaintiff demised to the defendants for the term of five years, the rent payable quarterly, a building in the city of Pittsburgh. The lease contained the usual covenants. The defendants agreed that they would make all alterations and repairs at their own cost, except such ordinary repairs as would make the building tenantable. They also covenanted to deliver up the premises at the end of their time in good and sufficient repair, “ reasonable wear and tear and accidents by fire excepted.” In March 1877, the premises were so injured by fire that they were untenantable, and defendants vacated them. The insurance company in which the property was insured, with the assent of the plaintiff and without objection from defendants, employed a contractor to make the repairs, and the key was delivered to him. On account of these repairs the building was not in a condition for occupancy until August 1877, when the defendants declining to again occupy the premises, and refusing to pay the rent for the quarter during which the repairs were being made, this action was brought to recover it.
    At the trial before Collier, J., the plaintiff asked the court to charge that the evidence was not sufficient to warrant the jury in finding an eviction; that when the insurance company, with the assent of the plaintiff and without objection from defendants, proceeded to repair, the rent was not thereby suspended, and that even if plaintiff had ordered the repairs the defendants would not be released; all of which the court refused.
    The defendants submitted the following point, to which is appended the answer of the court:
    If the plaintiff, under the provisions of her contract of insurance, directed the insurance companies to proceed to rebuild or repair the premises, and the insurance companies did so proceed and occupy the premises during the three months for which suit is brought, the plaintiff is estopped from recovery in this action.
    Ans. “ Affirmed, if you believe the entry by the contractor was without the consent of defendants, and that the repairs made were more than the usual, ordinary and necessary repairs.”'
    Verdict for defendants, when plaintiff took this writ and alleged that the court erred in charging as above.

      H. & G. C. Burgwin, for plaintiff in error.
    To occasion a suspension of rent the rule of law is clear that there must be an eviction or expulsion of the lessee: Bennett v. Bittle, 4 Rawle 339; Pier v. Carr, 19 P. F. Smith 326. To constitute an eviction there must be something of a grave and permanent character done by the landlord, with the intention of depriving the tenant of the enjoyment of the premises. The acts done must clearly indicate an intention on the landlord’s part that the tenant should no longer hold the premises: Upton v. Townend, 17 C. B. 30; s. c. 84 E. C. L. R. 30.
    The test as to eviction is whether the tenant has been deprived of the beneficial enjoyment of a portion of the estate by the tortious act of the landlord: Hayner v. Smith, 63 Ill. 430; Leishman v. White, 1 Allen 489.
    J. Erastus McKelvy and Thomas M. Marshall, for defendants in error.
    The possession of the contractor was the possession of the landlord, and excluded the tenant from the use of the premises and was an eviction: Taylor on Landlord and Tenant, 7th ed., sect. 377; Upton v. Greenlees, 17 C. B. 30; s. c. 84 E. C. L. R. 64; Halligan v. Wade, 21 Ill. 479 ; Dyett v. Pendleton, 8 Cowan 727; Magaw v. Lambert, 3 Barr 444; Briggs v. Thompson, 9 Id. 338. If the plaintiff elected that the insurance company should build, repair and restore the premises, the contract of insurance became a building contract, and if, in' pursuance of such contract the contractor entered upon the premises for the purpose of repairing, rebuilding and restoring the same, and did repair, rebuild and restore the same, it was a re-occupation of the demised premises by the plaintiff, and was an eviction of the defendants and a rescission of the lease; Morrell v. Irving Eire Ins. Co., 33 N. Y. 429; Beals v. Home Ins. Co., 36 Id. 522.
    November 3d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

It is settled by a current of authority that an eviction of a tenant by the landlord of demised premises suspends the rent. The reason of this rule is well stated by Baron Gilbert in his Treatise on Rents, at page 145: “A rent is something given by way of retribution to the lessor, for the land demised by him to the tenant, and consequently the lessor’s title to the rent is founded upon this: that the land demised is enjoyed by the tenant during the term included in the contract; for the tenant can make no return for a thing he has not. If, therefore, the tenant be deprived of the thing letten, the obligation to pay rent ceases, because such obligation has its force only from the consideration, which was the enjoyment of the thing demised.”

The modern doctrine as to what constitutes an eviction is, that actual physical expulsion is not necessary, but any interference with the tenant’s beneficial enjoyment of the demised premises will amount to an eviction in law. Thus in Doran v. Chase, 2 W. N. C. 609, this court affirmed the ruling-of'the court below, that “A landlord’s refusal to allow an under-tenant to enter the premises, under threats of suit, whereby the lessee is deprived of under-letting; is such an interruption of the latter’s rights as amounts to an eviction.” So an eviction of the lessee from any part of the demised premises will suspend accruing rent: Linton v. Hart, 1 Casey 193. If the landlord claim and use certain privileges upon the demised premises, against the tenant’s consent, he must show a reservation of them, or the rent is suspended: Vaughan v. Blanchard, 4 Dall. 124. And I apprehend there might he a legal eviction by confining the tenant to the demised premises, as by closing up a way which was his only means of egress and ingress. Any-act of the landlord which deprives the tenant of that beneficial enjoyment of the premises to which he is entitled under the lease, will amount in law to an eviction and suspend the rent.

How far the entry of the landlord to make repairs will work an eviction must depend, to some extent, upon the circumstances of each particular case. When the landlord is bound by the lease to make repairs, and the repairs are merely such as are required by ordinary wear and tear, no difficulty is likely to arise. And where he is not bound to do so, but makes them for the benefit of the property and the convenience of the tenant, the dangers of a contest are equally remote, as tenants are more willing, as a general rule, to have the property put in order than landlords are to incur the expenditure. In Pier v. Carr, 19 P. F. Smith 326, where the tenant had been sold out by a constable, under a warrant for taxes, and after the sale, the constable had delivered the key to the landlordlord, who put a bill “To Let” upon the premises, and proceeded to have some slight repairs made, it” was held there was no eviction.

Where, however, the repairs are not ordinary, but are of a character to deprive the tenant of all beneficial enjoyment of the premises, or at least seriously interrupt it while the repairs are in progress, we have a question presented of a different character. The case in hand comes within this class. The lease from the plaintiff to the defendant was in the usual' form, with the ordinary covenants for the payment of rent. The tenants were to deliver up the possession at the end of the term, “ in good and sufficient repair as when received, reasonable wear and tear and accidents by fire excepted.” The tenants were to have the right to make certain specified alterations, with the stipulation that all' alterations and repairs were to be made at their own cost “ excepting such ordinary repairs as will make the house tenantable.” During the term the demised premises were partially destroyed by fire. The third story was burned and a considerable portion of the second story. It was conceded the fire rendered the premises untenantable and that defendants moved out. The plaintiff had an insurance upon the building and refused the settlemeht offered by the insurance company. Thereupon the company took possession for the purpose of rebuilding, and through their contractor retained the possession from some time in April until about the middle of August. The repairs were necessarily extensive; a division wall between the demised premises and the adjoining building, belonging to the plaintiff was so far injured as to require it to be taken down and rebuilt. The plaintiff was upon the premises from time to time and gave directions as to the repairs. The present action was for a quarter’s rent, during the progress of the repairs.

There is no evidence that the defendants assented to the occupation of the premises for the purpose of rebuilding. It is clear that by the terms of the lease the defendants were not obliged to rebuild. Accidents by fire were expressly excepted. And I have as little doubt they would have been responsible for the rent during the term if the plaintiff had been content to let the building stand roofless and scarred by fire during that period. The lease contained no exoneration from the rent in case of fire. Rut the plaintiff, or the insurance company for her, proceeded to rebuild, wisely perhaps, as the injury to the dismantled building from the storms would have been greater than any probable loss of rent. Having proceeded to rebuild for her own interests quite as much as for the convenience of the tenants, and having thereby taken the possession of the demised premises to their entire exclusion, without request or even assent on their part, can she hold them for the rent? In the somewhat quaint'language of Raron Gilbert “the tenant can make no return for the thing he has not.” In Magaw v. Lambert, 3 Barr 444, it was held that “ if a landlord take possession of the ruins of his premises destroyed by fire for the purpose of rebuilding, without the consent of his tenant, it is an eviction; if with his assent it is a rescission of the lease, and in either case the rent is suspended.” I am unable to see any substantial distinction between that case and the one in hand. It is true there was a total destruction of the property in Magaw v. Lambert, and only a partial destruction here. Rut the partial destruction was so great that the tenant had to move. A total destruction could have done no more. Rut it is said here that the landlord was bound to repair. I do not so understand it. Aside from the lease there was no duty upon her to do so, and the lease did not impose any. In no part of it does the plaintiff covenant to repair. The most that can be gathered from it is an implication that the defendants were to be allowed the cost of ordinary repairs if they saw proper to make them. Certainly all other repairs and alterations were to be at their own expense. We are of opinion that Magaw v. Lambert rules this case.

Judgment affirmed.


author: Chief Justice Sharswood

text:
    Cable’s Appeal.
    1. A mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge on land.
    2. A testator gave to his two sons all his farm, with a further direction in his will that said sons should pay his daughter a certain sum in two years after testator’s death. Held, that said direction did not imply that said legacy should be a charge on the land.
    October 15th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey an'd Sterrett, JJ. Green, J., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1879, No. 8.
    Appeal of Edward Cable from the decree of the court directing the payment by appellant of a certain legacy out of land devised by John Cable, deceased.
    John Cable died in December 1876, leaving a will, which contained the following provision:—
    “ First. I give and bequeath unto my two sons, John and Edward Cable, all my farm, after my death, to them so long as they do live, and after their death to their children. But the said John and Edward Cable is to pay to my four daughters as follows: to Eliza Portsmouth, my daughter, wife of John Portsmouth, five hundred dollars; to Sarah McClure, my daughter, wife of William McClure, five hundred dollars; to Jessica Reed, my daughter, wife of Joseph Reed, five hundred dollars; to Harriet Cable, three hundred dollars; to.be paid in two years after my death; and also, my sons, the aforesaid John and Edward Cable, or their heirs, are to find a house for my wife Sarah and daughter Harriet, and keep them and clothe them. Also, to provide for them everything that is necessary for their comfort as long as they shall live or remain unmarried.”
    John Cable, Jr., died in 1876, unmarried and intestate, and letters of administration on his estate were granted to appellant.
    The children of Jessica Reed, formerly Jessica .Cable, deceased, petitioned the Orphans’ Court for a decree to compel Edward Cable to pay the legacy bequeathed to their mother by said will, and which they claimed was charged upon the land devised by said testator to his sons, John and Edward. The court, Hawkins, P. J., without filing an opinion, entered a decree that appellant should pay the aforesaid legacy, and in default of payment within thirty days from said decree that a writ of levari facias should issue to enforce the payment against the land devised to John and Edward. From this decree this appeal was taken.

      J. S. Ferguson and R. & S. Woods, for appellant.
    To make a legacy a charge upon land devised, it is necessary it should be declared so by express words, or that it may be inferred from the whole will that such was the intention of the testator: Montgomery v. McElroy, 3 W. & S. 371.
    The direction in the will in this case is, that John and Edward shall pay, but there is no provision, in terms at least, for payment in the event that John and Edward died within two years after the testator. If that happened, their estate in the land devised was ended. Their children did not take through them, but under the will. Yet there is no direction that the children should pay; much less is there any express charge upon the land.
    There is no appreciable difference between the expressions used in the wills in Tower’s Appropriation, 9 W. & S. 103; Hamilton v. Porter, 13 P. F. Smith 332, and Buchanan’s Appeal, 22 Id. 448, and that under consideration in this case.

      Malcolm Hay, for appellee.
    Lands may be charged with payment of legacies either by express words or by implication from all the provisions of the will, and the intention is to be carried out wherever it is discoverable from anything in the instrument: Ripple v. Ripple, 1 Rawle 386; Witman v. Norton, 6 Binn. 395; Brandt’s Appeal, 8 Watts 198; Okeson’s Appeal, 9 P. F. Smith 99; Horwitz v. Norris, 10 Id. 281; Gilbert’s Appeal, 4 Norris 347.
    In addition to the understanding of this devise obtained by considering the ordinary meanings of the word so aptly used to make an express charge, we are aided also by the fact that judicial effect has been given to the word “ but” as a restricting and limiting word to the full extent of its ordinary signification: Broughton v. Conway, Dyer 240; Peler and Jervis’s Case, Id.; Brown v. Higgs, 8 Ves. 571.
    If the construction of this will were doubtful the construction given should be as conformable as possible to the general rules of inheritance, which would make equally secure provision for daughters and sons: Minter’s Appeal, 4 Wright 111; Horwitz v. Norris, 10 P. F. Smith 281; Frances’s Estate, 25 Id. 220.
    The testator says, “I give and bequeath all my farm.” The daughters could be paid only out of that farm; and under such circumstances the legacies are a charge upon the land: Nichols v. Postlethwaite, 2 Dall. 131; Tucker v. Hassenclever, 3 Yeates 294, 2 Binn. 525; Witman v. Norton, 6 Id. 395; Commonwealth v. Shelby, 13 S. & R. 348; Bank v. Donaldson, 7 W. & S. 407; Tower’s Appropriation, 9 Id. 103; Riley’s Appeal, 10 Casey 291; Gallagher’s Appeal, 12 Id. 121.
    The acceptance of land charged with payment of legacies, may create a personal liability, as well as on the estate in the land devised: Lobach’s Case, 6 Watts 167; Montgomery v. McElroy, 3 W. & S. 372.
    The language used by John Cable in his will is stronger than that used in the wills, and held to create a charge on the lands devised, in Gause v. Wiley, 4 S. & R. 509; Holliday v. Summerville, 3 P. & W. 533; Downer v. Downer, 9 Watts 60; Field’s Appeal, 12 Casey 11; Knepper v. Kurtz, 8 P. F. Smith 480; Gilbert’s Appeal, supra.

    October 27th 1879.
   Chief Justice Sharswood

delivered the opinion of the court,

It is well settled that a mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge on land. There must be something more, express words or necessary implication from the whole will that such was the intention. In the case before us there are certainly no express words or charge. It is contended, however, that it is necessarily implied from the words following the devise to John and Edward Cable, “but the said John and Edward Cable is to pay.” But how do those words evince more than the intention that if his sons accept the devise they shall be personally liable to pay the legacies and perform the other duties devolved upon them by the will, among which was “ to find a home for my wife Sarah and daughter Harriet, and keep them and clothe them; also to provide for them every thing that is necessary for their comfort as long as they shall livé or remain unmarried ?” If the pecuniary legacies to his daughter Jessica was a charge, surely these provisions for his wife and daughter Harriet were equally so. In Hamilton v. Porter, 13 P. F. Smith 332, the words of the will were “I will that S. H. H. is to take the land and pay $700 to each of my within-named heirs.” It was held by this court not to be a charge. Buchanan’s Appeal, 22 P. F. Smith 448, is if anything still stronger, indeed almost expressly in point. There the devise was to W., “he paying the legacies, &c.” Yet this court held it was not a charge. In Hoover v. Hoover, 5 Barr 351, the words were “ yielding and paying thereout,” which were held to create a charge, and so it would have been here if the words had been “but they, the said John and Edward, to pay thereout.” There are several cases in which, taking the whole will together, an intention has been discovered to create a charge, as in Gilbert’s Appeal, 4 Norris 347; but there is nothing in any other part of this will to throw any light upon the question. We are called on to pronounce this a charge from the bare words, “ but they to pay.” We think that they are not sufficient, and that to preserve consistency in our own decisions we are compelled so to hold.

Decree reversed at the cost of the appellee.


author: Mr. Justice Trunkey

text:
    Margaret A. Watson versus Borough of Sewickley.
    A borough procured the appointment of viewers to widen and extend a street, and assess damages and benefits to the property holders along said street. The second section of the Act of April 22d 1856, provides that the viewers shall- make report to the next session of the Court of Quarter Sessions, and the said court may, at the next session thereafter, or at any subsequent session, on the hearing of such parties as chose to contest the same, modify, approve and confirm the said report, which confirmation shall be final and conclusive upon all parties. In an action of debt to recover an assessment, it appeared that the husband of defendant had been a party to the proceedings in court, but it was not shown that the wife, who owned the property, had notice, or that she appeared in person or by attorney. Held, that she was not a party within the meaning of the act, and was not concluded by the proceedings.
    October 15th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunket and Sterrett, J.J. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 203.
    Debt by the borough of Sewickley against Robert Watson and Margaret A. Watson, his wife, for an assessment alleged to be due for the widening and extension of a1 street..
    On the 20th April 1867, a petition was presented in the Court of Quarter Sessions of Allegheny county, at No. 11, March session 1867, setting forth that an ordinance had been passed by the town council of the borough of Sewickley for the widening and extension of Crooked street, in said borough, and changing the name thereof to Lincoln avenue. The court thereupon appointed viewers, and on the 8th of June 1867 the viewers presented their report, which was approved and filed. Attached to the report was a plan of the proposed street, showing the abutting properties, marked with the names of the owners of the property. The report of viewers also contained a schedule of assessments on the owners of the various properties for damages and contributions for benefits.
    Exceptions were filed to the confirmation of the report by Robert Watson and Robert Dickson, two of the parties assessed for contributions in said proceeding, but on a hearing the exceptions were dismissed and the proceedings confirmed on the 25th February 1868. On the 22d May 1869, a petition of citizens of said borough was presented in the Quarter Sessions, and a rule granted on the burgess and council to show cause why they should not proceed to open said avenue according to the report of the viewers as confirmed by court, to which an answer was filed by the burgess and council, setting forth that much dissatisfaction was felt by a majority of the citizens directly or indirectly interested therein as to the location of the street, and that the assessment of benefits and damages was greatly oppressive and injurious, and that proceedings were being taken to procure a review in said matter, and pray ing the court to dismiss the rule. In connection with the answer a petition was filed by the burgess and town council, praying for a review and the appointment of reviewers. Accompanying the petition for a review was a petition, signed by ninety of the citizens of said borough, praying the court to grant a review in said matter.
    The next step in the case was taken on the 10th of June 1876 —eight years after — when the borough solicitor presented a petition to the court asking for leave to withdraw all papers filed after the confirmation of the original report of viewers. This was not allowed.
    On the 22d May 1879, a petition was presented by citizens in interest of said borough, asking the court for a writ in the nature of a mandamus, and a rule was granted on the burgess and town council to show cause why an attachment should not issue against them for a failure to open the street in accordance with the order of court, to which an answer was filed on the 2d June 1879, alleging that no order had ever been issued by the court, but that a petition was presented praying for such order on the 22d May 1869, and the said petition was dismissed by the court.
    In the report of the viewers, the property of the defendant was assessed both for damages and benefits in the name of Eobert Watson.
    Afterwards, to wit, at No. 1145, March Term 1877, an action on the case was brought against Eobert Watson by the borough of Sewickley, alleging a liability under the proceedings at No. 11, March Sessions 1867. This case came on for trial on the 12th November 1879, and a special verdict rendered, and after argument in banc, the court entered judgment for defendant non obstante veredicto.

    Afterwards, to wit, on the 22d March 1879, suit was brought in the nature of an action of debt against said Eobert Watson and his wife, Margaret A. Watson, for the amount claimed to be due said borough, under the proceedings at No. 11, March Sessions, 1867. The affidavit of claim averred that the assessment was made in the name of Eobert Watson, but that Margaret A. Watson, the real owner of said property, was liable for the payment of the same. The plot attached to the report of the viewers filed, contained no accurate description of any of the properties abutting on the proposed avenue, not even giving the number of front feet on said avenue or any other means whereby the properties could be described or ascertained, while in the affidavit of claim the property of Margaret A. Watson was accurately described as it appeared in her deed, and while it was admitted in the affidavit of defence that the property described in the affidavit of claim and narr. was the property of Margaret A. Watson, there was no proof on the trial of the cause that the property so described was the property marked in said plan, in the name of Eobert Watson. To this the defendant, Margaret A. Watson replied, denying that she was liable for the payment of the same; that two years before the opening of said avenue, she became the owner of said property in her own right; that her deed for the property was placed on record immediately after purchase, and was on record before any proceedings were had for the opening of said avenue; that she had no notice of any of the proceedings in this cause from the inception until suit was brought against herself, &c.
    The cause came on for hearing on the 12th of June 1879, and after testimony had been taken on both sides, the jury, under the direction of the court, rendered a verdict in favor of plaintiff against Margaret A. Watson for the amount claimed, $1645.66, subject to the opinion of the court in banc on the question of law reserved, viz., whether the defendant was concluded by the proceedings of the Quarter Sessions, at March Sessions of 1867. Afterwards the court entered judgment on the verdict, when defendant, Mrs. Watson, took this writ and alleged that the court erred in this action.

      McCreery & McClelland and W. C. Erskine, for plaintiff in error.
    Mrs. Watson was not a “ party” to the proceedings and she is not therefore concluded. No notice was ever given to her in any step of these proceedings, and as to her they were void: Pittsburgh v. Walter, 19 P. F. Smith 367. A municipal corporation must show affirmatively that all the requirements of a statute have been complied with : Dill. on Munic. Corp. 643, 649, 740; Lowell v. Wyman, 12 Cush. 273 ; Darlington v. Commonwealth, 5 Wright 68. The statute required notice to be given. The assessment is against the owner and not against the land, and is to be enforced against the parties named in the proceedings; first, out of the land named in the proceedings; and secondly, out of other property of parties to said proceedings.

      C. Hasbrouck and B. C. Christy, for defendant in error.
    The charges are against the land and not against the owner. Mrs. Watson was the owner and she cannot question the action of the Court of Quarter Sessions.
    . The viewers were not required to name the owners, but only to designate the property assessed for contribution; nor are the viewers required to give notice to the owners or search them out. At the next or subsequent term after filing the report, the court is to hear such parties as choose to contest the same. What parties ? Those owning property assessed for benefits and those claiming damaged. After this the confirmation or decree of the court is to be final and conclusive upon all parties. What parties are here meant ? Those who choose to contest and those who do not — all parties interested. They had their day in court, one full term, to contest the assessment and show cause, if any they had, why their lands should not be charged for contribution; and that was in the Court of Quarter Sessions, which had exclusive jurisdiction.
    November 17th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

The Borough of Sewickley having ordained the widening and extension of a street to be thereafter known as Lincoln Avenue, on April 20th 1867, procured the appointment of viewers to assess damages and benefits to the several properties along the line of and adjoining the street. Section 2 of the Act of 1856, Pamph. L. 525, provides that the viewers shall make report to the next session of the court, “ and the said court may, at the next session thereafter, or at any subsequent session, on the hearing of such parties as choose to contest the same, modify, approve and confirm the said report, which confirmation shall be final and conclusive upon all parties and assessments for contributions may be collected in the same manner as other debts due boroughs.

Was Margaret A. Watson a party to the proceedings in the Court of Quarter Sessions ? If she was, the decree of that court is final and conclusive against her, as respects her liability in this action; and if not, it is a nullity. As said by the counsel for the defendant in error, all parties, those who chose to contest and those who did not, had their day in court, one full term, to contest the assessment, and show cause, if any they had, why their lands should not be charged for contribution. But he did not show that Mrs. Watson was served with notice, or appeared in person or by attorney. Her husband, Robert Watson, was a party, acting for himself; suit was brought on the decree against him, and proceeded in to judgment in his favor. She is not named in the -proceedings, though, by placing her deed on record, she had notified everybody that she owned the land. The statute does not make the wife a party by service of notice on her husband.

The corporate officers are required to give due and personal notice to all persons resident in the borough, directly interested therein, of any proposition to fix or change the roads, streets, lanes, alleys or courts, or in the grading or regulation thereof, and to designate a time and place when they shall be heard in relation theretoand to give notice to non-residents in a prescribed mode. Act April 3d 1851, Pamph. L. 320. Even notice of the widening and extension of Lincoln Avenue was not served on Mrs. Watson: and the burgess did not know it was required. The report of the viewers shows “ they caused notice to be given to each of the parties allowed damages or assessed for benefitsbut Margaret A. Watson was not one of them.

It is the intendment of the statutes relating to boroughs, that notice shall be given to every person of a proceeding to fix him for a debt. Not only is it directed of the incipient action to ordain or change streets or alleys, but it is implied in the provision for assessment of damages and benefits. How can parties choose to contest, and have a hearing in court, unless they have been notified ? And how can a decree be final upon a stranger to the record ? What matters it that the assessment is on property, when the owner is entitled to a hearing before it can be made. His right to contest is the same whether the assessment be a personal debt or charge on land. This is not a case, nor is it so contended, where defence can be made on grounds which existed before the decree of confirmation.

Nothing in this action touches the validity of the ordinance, or of the decree of the Quarter Sessions as to those who were parties.

Judgment reversed. And now judgment for the defendant below upon the reserved points.


author: Per Curiam.

text:
    Nerpel’s Appeal.
    A widow is not entitled to her exemption, as secured by the fifth section of the Act of April 14th 1851, out of the proceeds of a sheriff’s sale of the real estate of her deceased husband, in preference to the mortgagee of her husband of said real estate.
    October 16th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 33.
    Appeal of Margaretta Nerpel from the decree of the court upon the exceptions filed to the special return of a sheriff’s sale of the real estate of John Nerpel, deceased.
    The property was sold under a mortgage, held by the Peoples’ Insurance Company, and after deducting costs, the sale realized $262.15, which the sheriff awarded to the insurance company, their mortgage being the first lien. The appellant, who was the widow of the mortgagor, John Nerpel, excepted to the sheriff’s return, claiming the balance as her exemption under the 5th section of the Act of April 14th 1851, Pamph. L. 612, which provides : “ The widow or the children of any decedent, dying within the Oommmonwealth, may retain either real or personal property belonging to said estate to the value of three hundred dollars, and the same shall not be sold but suffered to remain for the use of the widow and family; and it shall be the duty of the executor or administrator of such decedent to have the said property appraised in the same manner as is provided in the Act passed the 9th day of April, in the year 1849, entitled ‘An act to exempt property to the value of three hundred dollars from levy and sale on execution and distress for rent;’ Provided, that this section shall not affect or impair any liens for the purchase-money of such real estate, and the said appraisement, upon being signed and certified by the appraisers and approved by the Orphans’ Court, shall be filed among the records thereof.”
    The sheriff had been served with a certificate from the clerk of the Orphans’ Court of Allegheny county, that appellant had elected to take of her claim for $300, a small amount of personal property, of value of $32.05, and the balance, $267.95, out of the real estate upon which was the said mortgage, and for the sale of which the writ issued, and that the same had been duly appraised and set apart to her in .said property, the appraisement having been returned that the property could not be divided without injury to and spoiling the whole, and was confirmed by said Orphans’ Court.
    It was admitted that the mortgage of the insurance company was not a purchase-money lien.
    The court dismissed the exception and confirmed the sheriff’s return, when the widow took this appeal.

      Morton Hunter, for appellant.
    Whatever character the mortgage may have assumed up to the time of foreclosure and sale, it then loses all character as a conveyance, the mortgagee no longer having any estate or title thereunder, and assumes the character of a lien, and as a lien only is distribution made to it of the proceeds of sale. Being thus regarded as a lien the widow is entitled to exemption thereout except it be a lien for purchase-money.

      Sohoyer & McGill, for appellee.
    Under the Act of 1851 the widow may retain either real or personal property belonging to the estate of the decedent, to the value of three hundred, dollars, but we contend there was no property in the mortgaged premises belonging either to the mortgagor or his estate, but the equity of redemption, out of which the widow could make her claim: Gangewere’s Appeal, 12 Casey 466.
    The Act of April 6th 1830 provides “that where the lien of a mortgage is or shall be prior to all other liens, except other mortgages, ground-rents and purchase-money due the Commonwealth, the lien of such mortgage shall not be destroyed or in any way affected by any sale made by virtue or authority of any writ of venditioni exponas,” and under this act it has been held that a mortgage vests the freehold in the mortgagee, leaving nothing in the mortgagor but the equity of redemption, and that a sale under a subsequent judgment passes only the equity of redemption: Garro v. Thompson, 7 Watts 419. If then, while living, the mortgagor had only the right to redeem, or the equity of redemption in the mortgaged premises, how can any more or greater interest pass into his estate at his death ?

      October 27th 1879,
   The judgment of the Supreme Court was entered,

Per Curiam.

The mortgage by the decedent was something more than a mere lien. For all purposes of security to the mortgagee, it was a conveyance of the land. He could have recovered in ejectment possession of the premises, and held until his principal, with interest, was repaid. Had he resorted to this remedy, and the mortgagor had then died, it is not pretended that his widow would have any right to the exemption. The proceeding under the Act of Assembly by scire facias is but a substitute for a foreclosure in equity, and the sale which it provides for does not alter the case. It ought not to be that the election of one remedy, and not the other, should make a difference in the right of the mortgagee.

Decree affirmed and anneal dismissed at the costs of the appellant.


author: Mr. Justice Sterrett

text:
    Burgwin et al. versus Bishop.
    In an action for damages for breach of covenant of a lea.se, it appeared that the lease had been altered in a material part, which enured to the benefit of the lessee. Held, that it should not have been admitted in evidence until the lessee gave some testimony explanatory of the alteration.
    October 16th 1879.'
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 45.
    Covenant upon a lease by B. Bishop against Hill Burgwin and C. B. Davis, executors of E. N. Davis, deceased.
    The lease in question was dated December 15th 1862, from Eliza N. Davis to Bishop, for a warehouse in Pittsburgh, for two years and three months from January 1st 1863, with the privilege to the lessee of three years additional, at the annual rent of $300. The breach of covenant alleged was that the lessor, Mrs. Davis, did not allow the lessee to have and enjoy the premises for the additional three years, but that, though notified of lessee’s election to retain for said three years, she had wrongfully entered and ousted the said lessee, and kept him out of the enjoyment of the premises during the said three years. The breach of covenant took place, as was alleged, April 1st 1865. Mrs. Davis died on the 17th of August 1875, more than ten years afterwards, and suit was entered against her executors two years after her death.
    On the trial, before Kirkpatrick, J., the lease was produced and objected to because of a material alteration, which the plaintiff had no evidence to account for or explain. Among the covenants on part of lessee these words were stricken out: “Also to keep the water-pipes and hydrant, &e., in good repair.”
    The court admitted the lease, and sealed a bill for defendants.
    The subsequent testimony, to support the alleged breach of covenant, was substantially as follows: That Mrs. Davis first, in December 1864, notified Bishop to give possession April 1st 1865; that in a few days after Bishop left notice at Mrs. Davis’s residence that he elected to hold on for three additional years, and that from the 1st of April 1865, Henry Lancamp and John Custer occupied the premises for about three years under a lease from Mrs. Davis, made on the 1st of April 1865. There was no testimony to show any act of dispossession on part of Mrs. Davis, nor inconsistent with the supposition that Bishop had changed his mind as to retaining possession and had voluntarily vacated on or before April 1st 1865.
    On this testimony the defendants requested the court to charge the jury that plaintiff could not recover. The court refused so to charge, and, on the contrary, instructed the jury “ that if they believed the evidence of plaintiff, he was entitled to recover, with costs, to the amount of $1440, being the difference in rental of the premises for three years, from 1st April 1865 to 1st April 1868,-being the three years during which plaintiff claims he was entitled to the premises, viz., $300 per year, being $900 in all, with its accrued interest.”
    The jury found a verdict accordingly, when defendants took this writ, and alleged, inter alia, that the court erred in admitting the lease and in instructing the jury as above.

      Hill Burgwin and S. H. Geyer, for plaintiffs in error.
    Inasmuch as the lease offered in evidence showed an erasure in a material part, manifestly for the benefit of the plaintiff, the proper course, as pursued by the court in Robinson v. Myers, 17 P. F. Smith 9, was, before admitting it, to require explanatory evidence from the plaintiff.

      A. M. Brown, for defendant in error.
    October 27th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The subject of complaint in the first assignment of error is that the plaintiff below was permitted to give in evidence the lease, on which his action was based, without any explanation of the material alteration apparent on its face.

Among other covenants on the part of the lessee, the lease, as originally written, contained the following: “Also to keep the water-pipes and hydrant, &c., in good repair.” These words were evidently erased by drawing a pen several times over them, and thus striking out one of the covenants of the lessee. The erasure was not noted in the attestation clause, nor was there any explanation given, as to when, why, or by whom it was done. The plea of non est factum put in issue the execution of' the lease, and its continuance, without material alteration, as the deed of both parties, to the date of the plea. The alteration was in a material part of the instrument, and manifestly enured to the benefit of the lessee, by whom it was produced and offered in evidence more than ten years after his alleged cause of action accrued, and after the decease of the lessor. It is very clear that, under such circumstances, he should have been required to give some testimony explanatory of the erasure: Jordan v. Stewart, 11 Harris 244, and Robinson v. Myers, 17 P. F. Smith 9. If this had been done, it would have been for the jury, under proper instructions from the court, to say whether the alteration was satisfactorily explained or not. The learned judge, however, not only overruled the specific objection made to the admission of the lease, but, treating the erasure of one of the lessees’ covenants as wholly immaterial, instructed the jury that if they believed the evidence of the plaintiff he was “ entitled to recovery, with costs, to the amount of $1440, being the difference in rental of the premises for three years, from April 1st 1865 to April 1st 1868, being the three years during which plaintiff claims he was entitled to the premises, viz.: $300 per year, being $900 in all, with its accrued interest.” In this we think there was error.

If the erasure had been satisfactorily explained, it was still a question for the jury whether the lessee had duly notified his landlady of his election to retain the premises for the further term of three years. The testimony as to written notice left at her dwelling with an adult member of her family, was some evidence proper for the consideration of the jury, but it was not conclusive proof that she was actually notified of the tenants’ election. It was also a further question of fact for the jury and not for the court, to determine whether, in point of fact, there was an eviction of the tenant. The testimony, as we have it, is quite as consistent with his having acquiesced in her demand for possession on the 1st of April 1865, as with an eviction by her. The tenant, who succeeded him,- testified that he leased from Mrs. Davis on that day and went into possession. Eor aught that appears the premises may have been voluntarily vacated by the plaintiff then or prior thereto. It is scarcely necessary to say that if he acquiesced in the notice to quit, or voluntarily surrendered the possession at or before the close of his original term, he was not entitled to claim damages. The first and fourth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.


text:
    Penn Bank versus Frankish.
    A bank issued its own cheek at the request of G., against whose account it was charged. It was presented at the bank by and paid to H. G. was 'the agent of I\, and had fraudulently obtained the check, and S', informed the bank of the fraud and of his suspicion that H. colluded with G. to obtain the money on the check; and accompanied this information with the the request that the bank would not pay the money to H. The bank subsequently paid the money to H., and in a suit therefor by IT., the court charged the jury, “ if you believe the testimony in regard to G’s. transactions, then the burden of proof is on the bank to show that they did pay the money over to a bona fide holder for value.” Held, that this was error, and the burden of showing that H. was not a bona fide holder rested upon those who asserted it.
    October 16th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas,- No. 2, of Allegheny county: Of October and November Term 1879, No. 219.
    Assumpsit by Joseph Frankish, trading as John McKillop & Co., against the Penn Bank. The facts were these:
    On the 29th of December 1875, Thomas Gray opened an account with the defendant bank, depositing then, and from time to time subsequently, money and checks on city banks. He also frequently left, for collection on his account, drafts drawn by John McKillop & Co., upon persons in Pittsburgh and the towns in its vicinity. Gray also drew checks from day to day, which were cashed and charged in his account. On the 10th of January 1876, he presented his cheek for $2300 at the bank’s counter, and obtained $100 in money and $2200 in a cashier’s check to his own order.
    His own check of $2300 was charged to him just as all other paid checks were. On the morning of the 12th of January a stranger came in and asked the cashier whether Thomas Gray had any, and how much, money in the bank. The cashier, Mr. Riddle, asked him by what right he made this inquiry, and was thereupon told that his questioner was Joseph Frankish and was also John McKillop & Co., of Philadelphia; that Gray was superintendent at Pittsburgh, and made collections for the firm there; that he had refused to remit or pay over the amounts collected, and was in default to a large amount. These representations induced Mr. Riddle to furnish a transcript of Gray’s account to Mr. Frankish, together with duplicates of Gray’s deposit-slips. Mr. Frankish inquired about the $2300 item, and having learned that part of it was represented by an outstanding cashier’s check, sat down and wrote and copied, and immediately served on Mr. Riddle this “notice:”
    • “ If the certificate were presented or simply endorsed to or by the following-named parties, viz.: Thomas Gray, J. W. Murray, W. H. Howells, I will take it as a favor to hold, for a short time, until my attorney, T. S. Parker, 158 Fourth avenue, could be heard from, and the presenting party give an outline of how it came into his possession.
    (Signed,) Joseph Frankish.
    Pittsburgh, January 12th 1876, 11.20 A. M.
    The Penn Bank, Pittsburgh.”
    Mr. Riddle said he was “ willing to do anything he could to protect Mr. Frankish and save him if he had been wronged,” and gave him a letter of introduction to Mr. Oliver, the attorney of the bank, asking his advice as to the course to be pursued. Mr. Frankish carried the letter to Mr. Oliver’s office, and they appointed a 'meeting at the bank in the afternoon.
    At this meeting Mr Frankish executed the following bond:
    “ Know all men by these presents, that I, Joseph Frankish, am held and firmly bound unto the Penn Bank in the sum of $5000, to be paid to said bank, its certain attorney or assigns, to which payment, well and truly to be made, I do bind myself, my heirs, executors or administrators, and every of them, firmly by these presents.
    “Witness my hand and seal this 12th of January, A. D. 1875. Whereas, There now remains in the said Penn Bank, a balance of $134.77, to the credit of Thomas Gray;
    “And whereas, The said bank, on the 10th of January 1876, issued to the said Gray a cashier’s check for the sum of $2200, payable to the order of the said Thomas Gray: and,
    “Whereas, It has been sufficiently demonstrated to said bank, that all the moneys at any time on deposit in said bank to the credit of said Gray, were the property of said Frankish; and the said bank, relying on the representations of said Frankish, has agreed to refuse payment of any checks of said Gray which may be presented to it, and to pay over the said balance of $134.77 to said Joseph Frankish; and in case said cashier’s check is not presented within one year from this date, to pay over the sum of $2200 to said Frankish. Now the condition of the above obligation is such, that if the said Joseph Frankish, his heirs, executors or administrators, shall do well and truly indemnify, and save harmless the said Penn Bank, its successors or assigns, from any and all loss, costs, damages or expenses (including attorney’s fees), that may arise by reason of the payment of said money, or any portion thereof, to said Joseph Frankish, or by reason of any refusal of said bank to pay over said money, or any portion thereof, to said Thomas Gray or his assigns, then this obligation to be void, otherwise to be and remain in full force and virtue.
    Joseph Frankish, [seal.]
    Attest:
    George T. Oliver.”

      On the same day a notice was inserted in the evening papers, warning the public not to receive the check.
    Mr. Frankish returned to Philadelphia, leaving in charge of his son the following message for the bank: — ■
    “ Should any further drafts now in your hands be paid, please pass to my individual account, kindly notifying me of the names of the payees, which, for the present, can be made through my son Joe. Yours resp’y, Joseph Frankish.
    January 12th 1876.”
    He had no “individual account.” His son delivered the message.
    Frankish testified that after his return he wrote, or rather signed, a letter to the bank, in which he demanded payment of all he claims here; but there was no evidence that such letter ever reached the bank. After the date of this alleged letter, Mr. Frankish drew on the bank for $475, by a sight draft, of which payment was refused — the amount drawn for being composed not only of the cash that was in the bank when the bond was given, viz., $134.77, but also of certain drafts collected subsequently, and a $75 draft, which was not collected at all, but had been dishonored and returned to Gray on the 7th of January.
    After Frankish left the bank on the 12th, the check was presented by W. H. Howells (one of the persons named by Frankish in the request, swy?ra), bearing Thomas Gray’s genuine endorsement in blank. Mr. Riddle consulted Mr. Oliver, who had remained to attend to other business, after drawing the bond; and as Howells was willing to make affidavit that he held the check for value, Mr. Oliver drew an affidavit to that effect, to which Howells swore before a notary public. The check was presented a few minutes before the bank was closed.
    This action was brought for $3286.20, on March 13th 1878.
    In the general charge, the court, Ewing, P. J., inter alia, said:
    “We .have said to you, in answer to the points, that if, as Frankish claims, he not only gave the bank notice of this fraud on him, and that this check was, in fact, drawn on his money, and gave them notice not to pay it to Gray, but to pay it to him, and not to pay it to Howells, giving them as his reason that he had ground for believing that Howells was in collusion with Gray — [if you believe the testimony in regard to Gray’s transactions, then the burden of proof is on the bank to show that they did pay the money over to a bona fide holder for value.] Mr. Frankish says he did give such notice. Numerous papers were in evidence on both sides, and the testimony of Mr. Frankish and his son in evidence on ome side.
    “ Upon the other hand, the defendants allege that they did not get any such notice in regard to Howells. They say that Mr. Frankish did give them notice not to pay it to Gray, hut that he told them distinctly that they would have to pay it if any other person than Gray presented it. Mr. Biddle, Mr. Oliver and Mr. Severance so testify. In addition, Mr. Oliver, who was counsel for the hank, and who had prepared some of the papers, says that the matter was talked over, and that it was stated by Mr. Frankish and by Mr. Biddle, and that they all agreed if any other person than Gray presented it, it would have to be paid; that the bank could not defend against 'it, and that Mr. Frankish was confident that the check would never be presented, and wanted the money paid over, if it was not presented within a reasonable time; and that the matter was discussed, and a year was fixed upon as a reasonable time in which the money should be held, to see if the check would be presented, and in pursuance of that there was an agreement by which the plaintiff was to get the money then standing to the credit of Gray, if the check was not presented within a year; that they would pay over the $2200; and Mr. Oliver also says that he drew the bond, which is in evidence, with that understanding among all the parties.
    “Mr. Frankish denies that that was the understanding, that any such thing was said, and asserts, on the other hand, that he distinctly notified them not to pay to Mr. Gray, to Mr. Murray or to Mr. Howells, and a notice was served, which, standing alone, is not a notice not to pay to these men, it is simply in the form of a request.
    “We have said to you that if you find the facts to be as claimed by the defendants, as testified to by Mr. Biddle, Mr. Oliver and Mr. Severance, then it has to be treated as an agreement by Mr. Frankish, that they should pay over this money on the check, if the check was presented by anybody but Mr. Gray.
    “ If you believe the testimony of Mr. Frankish, then it throws upon the defendant the burden of showing that Mr. Howells was a bona fide holder of this check for value, and that they were bound to pay it. As you find the facts you will render your verdict.”
    Yerdict for plaintiff for $3256.29, when defendant took this writ, and alleged, inter alia (14th assignment), that the court erred in the portion of the charge included above in brackets.

      T. M. Marshall and Rodgers & Oliver, for plaintiff in error.—
    The court below assumed that Howells took the check for an antecedent debt, and that the bank was bound to refuse payment, because his title would not prevail against Mr. Frankish’s. There is no evidence of any admission by Howells that the debt was preexisting. His affidavit says, “received said check for value;” but even if it had been so, and the bank had known it to be so, that would have been no defence. Millions of dollars of antecedent indebtedness are paid daily, in the commercial cities of the country, by means of cashiers’ and certified checks, and the very purpose of obtaining them is usually to make a tender that cannot be reasonably objected to. The principle of Phelan v. Moss, 17 P. F. Smith 59; Zimmerman v. Rote, 25 Id. 188 ; State Bank v. McCoy, 19 Id. 204, and Battles v. Laudenslager, 3 Norris 446, applies with double force to these instruments, which literally pass like money in business circles. The allowance of the rule adopted by the court below, would be a return to the exploded doctrine of Gill v. Cubit, 3 B. & C. 466, and would deprive the paper in question of all its valuable qualities as a convenient currency, by defeating the purpose for which it is issued. We refer on this point to Conger v. Armstrong, 8 Johns. Cas. 5; Atlas Bank v. Doyle, 9 R. I. 76; Walker v. Geisse, 4 Whart. 257; Struthers v. Kendall & Son, 5 Wright 228; Swift v. Tyson, 16 Pet. 1; 1 Dan. on Neg. Inst., sects. 184, 790, note; 783-84, 789-832; 2d vol., sects. 1601-3; 1 Pars. N. & B. 263-64 and 270; Moorhead v. Gilmore, 27 P. F. Smith 118; Bardsley v. Delp, 7 Norris 420; New Orleans Co. v. Montgomery, 5 Otto 16-18; Bank Met. v. N. E. Bank, 6 Howard 512; Merchants’ Bank v. State Bank, 10 Wall. 648: Espy v. Bank of Cincinnati, 18 Id. 621.
    The court erred in charging that the burden was on the bank, of ascertaining Howells’s title to recover, before paying the check and of showing that title on the trial: Pennsylvania Railroad Co.’s Appeal, 5 Norris 80; Putnam v. Sullivan, 4 Mass. 45.

      T. S. Parker and Hampton & Dalzell, for defendant in error.—
    The payment by the bank was not a good payment: Farmers’ and Mechanics’ National Bank v. King, 7 P. F. Smith 202. Gray, agent, received money belonging to Frankish, principal. He deposited it in the Penn Bank and took its promissory note for the amount. That note or certified check, call it what you please, belonged to Frankish, and the bank could not pay Gray after being informed of Frankish’s superior right. The facts in this case are stronger even than those in the case cited. Here, after being informed of the plaintiff’s superior right, the bank promised' not only not to pay the agent, but not to pay either one of two other parties, who, it was informed, were in collusion with the defaulting agent. A payment to Gray himself would not have been a good payment. But it is alleged that the payment to Howells was a good payment, because he was a bona fide holder of the bank’s obligation without notice of any defence. If the bank expected to defend on that ground it should have made proof of the necessary facts. Having agreed not to pay Howells, it could justify a payment to him only by showing such facts as would have disclosed his unanswerable right to recover against the bank. The presumption of his hona fide ownership of the check had already been overthrown by explicit notice that the check was fraudulently issued, and had Howells been making claim against Frankish, the burden would have been on him undoubtedly to show title: Hutchinson v. Boggs & Kirk, 4 Casey 294. The bank had no better title than Howells had. If Howells had no defence against Frankish, how could the bank have any? That the burden of showing Howells’s ownership under the circumstances was on the defendant seems clear from the ruling of this court in Robinson v. Hodgson, 23 P. F. Smith 210-11.
    November 10th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

But for a single error this judgment might have been affirmed. The learned judge instructed the jury (see 14th assignment) that “ if you believe the testimony in regard to Gray’s transactions, then the burden of proof is on the bank to show that they did pay the money over to a bona fide holder for value.” This was laying a burden on the bank it was not entitled to bear. The check in question was the bank’s own check, that is, it was issued by the cashier at the request of Mr. Gray, against whose account it was charged. The check was strictly commercial paper, and every holder is presumed to be a holder for value. It was presented at the counter of the bank by and paid to Mr. Howells. Hoes the mere fact that the bank had been informed by Frankish of Gray’s fraud, and of his suspicion that Howells was in collusion with him, accompanied with a request not to pay the money to Howells, change the burden of proof? It is conceded that if Howells was a bona fide holder the payment was good. Against the legal commercial presumption of his bona fides there was nothing but the suspicion of Frankish that he was in collusion with Gray. In addition to the legal presumption referred to there'was the affidavit of Howells that he received said check for value. If, as was asserted, it was taken merely as collateral for a pre-existing debt, the authorities are clear that he would not be a holder for value. But if taken in payment, or for a new consideration, the case might be different. This, however, will be a question for consideration upon a new trial in the court below. For the present it is sufficient to say there was not enough in the case to throw upon the bank the burden of showing the.bona fides of Howells’s holding. It had a right to rely upon the presumption in his favor. The burden of showing that Howells was not a bona fide holder rests upon those who assert it.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Germania Savings Bank’s Appeal.
    1. By the Acts of April 5th 1844 and February 27th 1860, all city and county taxes in Allegheny city and county are made liens upon the real estate upon which they are assessed, and are 'to have priority over and to be fully paid before any other lien whatever. Meld, affirming the court below, that the default of the collector in not making the taxes out of personal property found on the premises, during the life of his warrant, did not postpone the taxes to a mortgage, and give the latter a preference.
    2. The legislature intended by the above acts that the property should at all events be liable for the taxes assessed against it, without any regard to the personalty ; the taxes are from the first a lien upon the realty, and are to be preferred to all other liens.
    October 16th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 67.
    Appeal of the Germania Savings Bank of Pittsburgh from the decree of the court, directing the payment of certain city and county taxes out of the proceeds of the sheriff’s sale of the, real estate of William W. Ackley.
    On July 20th 1875, William W. Ackley executed and delivered to the appellant bank a mortgage on certain real estate in Allegheny city, conditioned for the payment of $6000. This mortgage was duly acknowledged and recorded July 22d 1875, and was the first lien on the property described. ■ Default being made, a writ of scire facias was issued and prosecuted to judgment, upon which a writ of levari facias was issued and the property sold for $600. The* sheriff having made a special return, awarding the fund, less costs, to the appellant, exceptions were filed on behalf of the city and county of Allegheny, claiming payment therefrom of taxes for years 1876 and 1877, amounting to $249.60. The testimony before the auditor appointed to pass upon the exceptions and report a schedule, showed that the taxes claimed were assessed on the property after the' execution and recording of appellant’s mortgage ; that warrants for their collection were issued to Robert P. Dilworth, the warrants for the year 1876 coming into his hands in December 1876, and for 1877, in December 1877; that from the time of the delivery of the warrants to him until some time after the sale of the real estate, there was personal property thereon, belonging to said Ackley, more than sufficient to satisfy the taxes; that demand was made upon said Robert Dilworth to levy upon said personal property, as directed by his warrants, and that he refused to do so, and that Ackley, hearing of the demand, removed his goods, but not until after a levy could have been made; and the auditor found that there was “ some good-natured collusion” between the parties.
    The auditor overruled the exceptions, and recommended the payment of the proceeds to the bank. Exceptions were filed to the report of the auditor, and in passing upon the same, the court, White, J., in an opinion, inter alia, said:
    “ The taxes were not liens on the personal property, but were liens upon the real estate. They were taxes assessed upon the real estate, and the real estate was the ultimate, permanent and substantial security for their payment. When it is sold at sheriff’s sale the lien is extinguished, and the law makes the proceeds of the sale applicable to the payment of taxes before any other lien. This is based on sound principles of public policy, that the taxes assessed upon real estate to carry on the machinery of government shall be paid in preference to all other claims. It is true, that on tax warrants and executions on ordinary judgments, the law directs that personal property shall first be taken and sold, and not until that is exhausted can recourse be had to the real estate. In that sense it is the primary fund for payment. It is primary, however, only in the sense that it is first to be levied upon. It is simply a direction to the officer how he shall proceed, and is a prudent regulation for obviously good reasons. The primary fund, in the sense of the most substantial and important, is the real estate.
    “ The tax collector and the judgment-creditor have two funds liable for the payment of their claims, the personalty and the realty. If they proceed to collect by execution, they must first take the personalty. But they have the election, to proceed in that way, or wait till some other creditor sells, and claim a share of the proceeds according to their priorities: Dean et al. v. Patton, 13 S. & R. 346. If the tax collector or judgment-creditor proceeds to execution by making a levy on personal property, he is bound by his election, and must go on with his execution and sell the personalty before he can resort to the real estate or come in on the proceeds of the sheriff’s salé. The tax warrant in the hands of the collector is not an execution or lien upon the personal property. It is simply an authority to collect the amount of the tax, and in default of payment, to make a levy, and sale of personal property.
    “ Was it the duty of the constable, after notice from the plaintiff to proceed on his warrants, to make a levy on the personal property of the defendant? If he had no lien on the personal property, and had his election to proceed by execution or wait and come in on the proceeds of the real estate, the plaintiff had no legal right to compel him to proceed against the personal property. The fact that it would have been of advantage to the .plaintiff, is not of itself sufficient. The equity powers of a court are not so extensive as to reach every case of that kind. If a tax collector can be compelled, at the instance of a mortgage-creditor, to levy upon and sell personal property on the premises, so as to increase the security or proceeds of his mortgage, so could a prior judgment-creditor. But that has - never been thought of. Such' a principle would lead to great oppressions upon unfortunate debtors, vexatious controversies among creditors, and unprofitable litigations over the proceeds of sheriff’s sales. * * * The exceptions to the report of the auditor are sustained, and the taxes are directed to be paid out of the proceeds of the sale.”
    From this decree this appeal was taken.

      Geo. W. Guthrie, for appellant.
    Appellant contends: 1. That the primary fund for the payment of the taxes was the personal property of the person assessed, and until that is exhausted, the real estate cannot be taken. 2. That the personal property being the primary fund, and it being lost by collusion between the collector and the defendant, the taxes must be postponed.
    General taxes, unlike local assessments, are debts of the person upon whom they are levied, and this whether the basis of taxation be occupation, personal property or realty. In addition to this personal liability, some tax laws give a lien on the real estate as a protection to the government, but this does not change the character of the tax, and indeed,' nearly all such laws absolutely require the exhaustion of the personalty before the resort can be had to real estate.
    Such is the character of the legislation under which' the taxes in dispute were assessed. The 1st section of the Act of February 3d 1824, was extended to Allegheny county by the Act of April 5th 1844. In addition, two acts have been passed relating exclusively to Allegheny City, one approved February 27th 1860, Famph. L. 85; the other approved April 14th 1863, Pamph. L. 434. It is admitted that, by this legislation, taxes assessed on real estate are made a lien thereon, and priority over all other liens is given to them, so far as the legislature can give it, but this privilege is coupled with a condition that the real estate shall not be taken until the personal property shall have been exhausted, and the tax collector shall have made return under oath that the taxes cannot be collected for want of goods and chattels upon which to levy.
    In Russell v. Schenley, 2 Pittsburgh Rep. 356, the late Judge Williams, then A. J. of the District Court of this county, held, that where, by the terms of a lease, the tenant was bound to pay the taxes, and the tax collector refused to levy on his goods, he could not recover from the landlord. The cases are very similar in character: in the one decided, the tenant was bound to pay the tax, while in this one the mortgagor was so bound, and in both the tax collector refused to proceed against the property primarily liable. See, also, Parker’s Appeal, 8 W. & S. 449.

      W. B. Rodgers, City Solicitor, contra.

    The collector of taxes is a public officer, whose duty it is to collect the taxes. His negligence or “good-natured collusion,” if he is guilty of any, cannot be. visited upon the municipality, so as to prevent it from asserting its rights. In this case the appellant concedes that the collector’s warrant was good for two years. Then no negligence could be imputed even to him for not having made the taxes before the sheriff’s sale. The question then is, whether after a sheriff’s sale of the real estate for a sum more than enough to pay the taxes, a lien-creditor can exclude the tax claim from distribution and require the collector to seek personal property of the defendant. It is submitted that the rule is that a sheriff’s sale divests the lien of the taxes, and turns the municipality over to the fund for payment. Such has been the uniform practice in this county: Allegheny City’s Appeal, 5 Watts 60. And in Philadelphia: 1 Tr. & H. Pract. 1043.
    The rule is stated in Eaton’s Appeal, 2 Norris 154, as follows: “ It is very important that- bidders at public judicial sales should have a plain simple rule to go by. They are bound to ascertain the amount of the public charges, and they ean then understand that the taxes will be paid from the purchase-money certainly, and they will hold clear, and discharged of the lien, unless in the rare case, where the amount of the fund raised by the sale is not sufficient to discharge them in full.” The same rule is stated in Duffy v. Philadelphia, 6 Wright 197; Smith v. Simpson, 10 P. F. Smith 169; Vanarsdalen’s Appeal, 3 W. N. C. 463-471; Harrisburg v. Orth (C. P. Dauphin Co.), 6 Id. 121.’
    October 27th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

By the Act of February-27th 1860, all taxes assessed by the city of Allegheny, were made liens upon the real estate upon which they were assessed, and were to have priority over and to be fully paid before any other lien whatever. In like manner, the county taxes were made a lien by the Act of April 5th 1844, extending the. act for the city and county of Philadelphia, approved February 3d 1824, to the county of Allegheny. Thus, there is no controversy but that the city and county taxes, embraced in the, present contention, were liens upon the Ackley property, and that they had precedence to the mortgage of the appellant. What then is there to postpone them and give the mortgage the preference ? It is said, the fault of the collector in not making the taxes out of personal property found on the premises during the life of his warrant. But the default of the collector neither paid the taxes nor discharged the property on which they were assessed. These taxes were charged upon the realty, they might have been made from the personalty of the tenant in possession of the premises, but they were not so made, and hence the realty continued bound. Suppose a judgment to have had precedence of the appellant’s mortgage, could it be effectively urged, that an execution had been issued thereon, and that the sheriff had neglected to levy on the personal property of the defendant? What court would listen to a proposition so absurd ? Why, then, should a proposition exactly similar, be entertained in the case in hand ? It cannot be; and the more so, that there is little doubt but that the legislature had in view, in the passage of the acts above mentioned, among other things, the protection of the city and county from just such defaults of collectors as we find in this case. It was certainly intended that the property should, at all events, be liable for the taxes assessed against it. An attempt has been made to assimilate this case to one falling within the purview of the Act of 1844. But this is a failure, as that act not only does not primarily charge the taxes upon the lands assessed, but in express terms provides that they shall not be so charged if personal property be found upon them sufficient to pay such taxes. The acts under consideration are the very converse of this; for, without any regard whatever to personal property, the taxes are, from the first, a lien upon the realty, and upon distribution, on sale of that realty, they are to be preferred to all other liens.

Decree affirmed.