text:
    McGinity versus McGinity.
    1. That there is a resulting trust, and that a deed is a mortgage, may be proved by oral testimony, but the evidence ought to be clear, explicit and unequivocal,
    2. Where a trust, or the conversion of an absolute deed into a mortgage, is attempted to be made out by parol evidence, the court and jury exercise the functions of a chancellor, and the evidence ought to be such as would satisfy his conscience.
    3. Conversations and negotiations prior and leading to a written contract are evidence to prove a fraud or trust, but there should be clear evidence that the arrangement continued up to the time of executing the writing.
    October 30th 1869.
    Before Thompson, C. J., Read, Agnew, Shabswood and Williams, JJ.

      Error to the Court of Common Pleas of Westmoreland county: No. 174, to October and November Term 1869.
    This was an action of ejectment by Bridget McGinity and others, heirs of Thomas McGinity deceased, against May McGinity and John Crosby for about 94 acres of land in Derry township, Westmoreland county, the legal title to which was in John Mc-Ginity, deceased, the plaintiffs claiming that it was held in trust for their ancestor, Thomas McGinity. The writ was issued August 13th 1860. Both parties claimed under John Mason. The plaintiffs gave in evidence a deed dated December 6th 1860 from Mason to John McGinity, deceased, for the land in controversy, the consideration being $2000.
    On the trial before Buffington, P. J., Mason testified that he having the land for sale Thomas McGinity came to see him in the spring of 1860 about purchasing; he examined the farm, said he was looking out for a small farm, said he wished to look at other farms, and went away; returned some time afterwards, inquired about payment; witness told him the price was $2000 and he wanted it all down; Thomas returned again, said he could not buy himself, but had a brother who said he would “ lend him $600 and not charge him interest if not paid for seven years;” this was the 3d of July. John and Thomas afterwards came together; John said it was a poor farm, he would not give $14 per acre for his own use, nor would Thomas buy if it were not for the church in Blairsville. To this Thomas assented, and said he would take the place; the witness said to John that Thomas had told him that he would lend him $600 and not charge him interest for seven years. John said, “I did say so and will do it,” that Thomas had been unlucky and it was now for him (John) to do something for him. John said if he lent Thomas $600 he must have the writings drawn in his own name, that he would pay the money and hold the land for security. Thomas said he was a practical farmer, and if he had his health, would have the deed in his own name in three years. They went away. They came again and witness agreed to sell for $2000 — $1600 to be paid down and $200 per annum, without interest; $200 of the $1600 to be paid before signing the article. When the parties met to execute the article, the witness wanted to reserve the crops; John would not consent; Thomas said it was a small matter; they separated without doing anything; Thomas and witness met again; witness yielded as to the grain. Thomas said he could do nothing; as John was not at home. Afterwards the three met; John said the article was to be drawn in his name; Thomas did not object. “ John put his hand into his pocket-book and counted down not quite $200, he asked Thomas for it and he got it.” Thomas said the money was at Holmes’s, Pittsburg, and a time must be set for him to have it. Witness told Thomas he must have the money in gold as he had agreed. At the time appointed the three met, John took out his pocket-book, all standing around, and counted $1400 in paper; witness said to Thomas the bargain was for gold; Thomas said that was good. The deed and mortgage were afterwards executed; witness handed the deed to John, he handed it to Thomas, and said “ take that, it is for you, anyhow,” or “ well, it is for you,” witness did not recollect which. Thomas took the deed and put it into his pocket. Witness lived on the place until the succeeding April 1st. Thomas and his family moved on the place and witness left. John paid the balance on the mortgage.
    Bernard Hanna testified that John said he wanted money, he had to pay for Thomas’s place. There was other evidence of declarations by John that the land belonged to Thomas, and of Thomas acting as if owner of the land. Thomas died in 1852; John took possession of the land soon afterwards, and died in 1853; the defendant, May McGinity, is his widow, and has resided there since.
    The plaintiffs gave evidence of the rental value of the farm during John’s possession.
    The defendants gave in evidence a letter from Mason to John McGinity, dated September 28th 1850, in which he says that Mrs. McGinity had told him (Mason) that John would pay $2000 for the place, which he said he would take and allow him to move into the house; also articles of agreement, dated November 5th 1850, by which Mason agreed to convey his farm to John, for $2000; $200 in hand, $1400 on delivery of the deed, and the remainder in two equal annual payments without interest, with receipts endorsed for $200 and $1400. Also, the administration account on Thomas’s estate, filed March 26th 1855, showing that the amount of the assets was $634.83; taken by the widow $300, and, after deducting credits for expenses, &c., leaving for distribution amongst creditors a balance of $216.78. Also, the auditor’s ■report showing the amount of debts to be $1906.09; amongst which was one claim of John for $114.49, and another of $125, “ being one year’s rent of a farm under a lease to said Thomas McGinity, deceased, dated 1st January A. D. 1851.” This was allowed in full, and after expenses of the audit, $48.85 were left to be applied to the claims of general creditors. John McGinity’s estate got $3.14 on his other claim.
    D. Dunlop testified that he adjoined the land in dispute, timber was cut on his land; he complained to Thomas, who said he had nothing to do with it and sent witness to John; he said he was only a renter under John.
    N. Dunlop testified that Thomas told him the grain on the place belonged to John, who had bought .the place; that he, Thomas, was nothing but a cropper or renter.
    Isaac Pershing testified that Thomas told him that his brother had come into the county shortly before, had some money ($2000) which he invested in the Mason land, that Thomas was going to farm it, because he was a farmer, and John was not.
    The plaintiffs asked the court, amongst other prayers, to instruct the jury, “that by the contract between John and Thomas seven years were given to pay the debt, and until after that time the limitation would not commence to run.” To which the court replied, “ This is answered in the affirmative if the jury find the facts to be so.”
    The following are points submitted by the defendants with the answers of the court:—
    8. “If after this arrangement, Thomas leased the land from John, went into possession under it, disclaimed title, and held himself out as John’s tenant, then he himself denied and abandoned his equity, and the law will refer to the lease to determine the character of his possession, as well as the extent of his interest in the land; nor will equity go behind it to seek for him a different one.”
    “Answered in the affirmative if the jury believe there was such a lease as the point contemplates, the entry on the report of distribution in the Orphans’ Court of the payment of rent would not be evidence of a tenancy to affect the parties in this case, and if offered for that purpose would have been rejected.”
    4. “ Even if the alleged arrangement had been well proved, had been good against creditors, and Thomas McGinity had gone into possession in pursuance of the same, and his heirs had been unlawfully ousted by John after his death in April 1853, still they are not entitled to recover in this action brought in 1860, inasmuch as being ousted in 1853 their right of entry then accrued, if they had any. The 6th section of the Act of 22d April 1856 required them to bring their actions within two years from the date thereof, and not having done so they are barred.”
    Answer: “ This point, under the circumstances of the case, is answered in the negative. I do not think that if the jury believe Thomas’s money paid for this land, and John took the deed to secure the money he advanced for Thomas, and afterwards got possession and received the profits till reimbursed his advancements, that he or his descendants could hold after being paid, and Thomas’s children, having no right of entry without reimbursement, can claim to hold under the five year limitation.”
    5. “ Taking all the evidence in this case, it does not make out a case in which a chancellor would interfere on the part of the plaintiffs.”
    “ Answered in the negative, as the facts must be found by the jury, who are the judges of the credibility of the witnesses.”
    The court further charged:
    “ The first question is, who was the purchaser of this land ? Was it Thomas McGinity or John ? Who was designed to be the real, beneficial owner ? Whose money paid for if ? If Thomas’s money paid for it, or principally so, and John only loaned or advanced to Thomas a balance to be paid back, and took the deed for that purpose, he would be the real owner.
    “ The next question is as to the sufficiency of the evidence. If believed by the jury, we think there is a sufficiency to submit the question to them. There are some contradictions, and the jury are the judges; the evidence, to render a deed into a trust, ought to be clear and satisfactory.
    “ The next is the question of the lease, as an estoppel [the evidence on the subject of the lease is very unsatisfactory; the entry in the auditor’s report is not evidence of the fact].
    “We instruct the jury, that under all the circumstances, the limitation in the Act of 1856 does not bar this action.”
    The verdict was for the plaintiffs. The defendants removed the case to the Supreme Court, and assigned for error the instructions of the court in answer to the points and that part of the charge enclosed in brackets.

      F. Cowan for plaintiffs in error. —
    The case was within the Act of April 22d 1856, § 6, Pamph. L. 532, Purd. 654, pi. 1; Warfield v. Fox, 3 P. F. Smith 386. When on the trial of an ejectment on an equitable title the court is of opinion that the facts proved do not make a case in which a chancellor would decree a conveyance they should give a binding charge: Moore v. Small, 7 Harris 461; Poorman v. Kilgore, 2 Casey 371; Rankin v. Simpson, 7 Harris 471; Brawdy v. Brawdy, 7 Barr 157; Strimpfler v. Roberts, 6 Harris 283; Todd v. Campbell, 8 Casey 252. The plaintiffs could not recover till the defendants were reimbursed: Thomas v. Wright, 9 S. & R. 87.

      A. A. Stewart and S. F. Foster for defendants in error,
    cited : Act of 1856, supra, -§ 4; Miller v. Franciscus, 4 Wright 335. Thomas having been in possession till his death the statute would not run against him: Clark v. Trindle, 2 P. F. Smith 492; Willard v. Willard, 6 Id. 119. Besides the deed having been taken to secure John’s loan, the case is not within the statute.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

The most important question which arises on this record, the decision of which will dispose of the third, fourth and fifth assignments of error, is, whether there was sufficient evidence either of a resulting trust, or that the deed was a mortgage. Both these things may, no doubt, be proved by oral testimony, but it is equally certain that the evidence ought to be clear, explicit and unequivocal.

If it is true that Thomas McGrinity bought this farm,with fourteen hundred dollars of his own money, and six hundred dollars borrowed of his brother John, an absolute deed having been made to John as security for the repayment of this loan, then, indeed, the possession and enjoyment of it by the defendant below is a great wrong, not to the plaintiffs, however, but to the creditors of their father. For, when his estate was finally settled in the Orphans’ Court, after his death, within five years from this transaction, the amount of his debts, as reported by the auditor, was f>1906.09, to pay which, all that remained was $48.85. The whole of the alleged interest of Thomas in the farm would have been insufficient to have paid them. Had it produced, on a sale, the same price as was given for it, after repaying John his $600, there would have been about seventy-five cents on the dollar for them: as it was, they received but three. We come, then, to the consideration of the evidence, with a very strong presumption against the alleged trust or mortgage. Thomas lived on the farm from the time of the sale to his death, more than two years. Nobody in the neighborhood could have believed or suspected that he had any interest in it, so profoundly must the secret have been kept between these three men, John and Thomas MeGrinity and John Mason. Creditors are usually vigilant and sharpsighted in looking after their rights, and such a fact as this now alleged, could not have escaped them. John Mason, indeed, had left the county, but where was Mendal, who drew the articles, Armstrong, who drew the deed, or Esquire Rutledge, before whom the deed and mortgage were executed and acknowledged ? John MeGrinity, or his family, were then in possession. The widow of Thomas claimed and was allowed her three hundred dollars out of his estate. So that we are warranted in believing that not a syllable of the matter was breathed at that time, either by the widow or any one of his friends or acquaintances. There was, also, certainly some evidence, apart from the record .of the Orphans’ Court, that Thomas had held himself out as the tenant of John ; though the judge gave it as his opinion that the evidence on the subject of the lease was very unsatisfactory: it is not easy to comprehend why. Thomas, while in possession, told his neighbor, Daniel Dunlap, who applied to him about the repair of a line fence between them, that “ he had nothing to do with it: was only a renter under John.” He said the same thing to Nathaniel Dunlap, that “ he was nothing but a cropper, or renter.” He referred him to John, to get the cutting of the grain which Mason had put in, and he got it from John, who employed and paid him. Moreover, he told Isaac Pershing, about the time of the transaction, that it was his brother who had the money “ that he invested in land, the Mason farm.” “ He was going to farm it, because he was a farmer, and his brother John was not.” The testimony of B. Hanna and Ralston are to some declarations, and not very consistent, for at one time John told Ralston that the farm “ would be Thomas’s finally: he was trying to help him along.”

We come to the examination of the testimony of John Mason, upon which the whole cause rests. The credit of the witness was for the jury; but especially in a case where a trust, or the conversion of an absolute deed into a mortgage is attempted to be made out, by parol evidence, the court and jury exercise the functions of á chancellor, and the evidence, assuming the testimony of the witnesses to be true, ought to be such as would satisfy his conscience. “ The judge alone is the chancellor. The province of the jury is to aid him in ascertaining the facts out of which the equities arise. If the facts are not disputed, he is to declare their effect, and determine whether the claim or the defence is well founded. A chancellor is judge, both of the equity and of the facts. It is in his discretion whether he will send an issue to a jury. And if he does, their verdict is only advisory. It is not conclusive upon him. Whenever, therefore, upon the trial of an ejectment, founded upon an equitable title, the court is of the opinion that the facts proved do not make out a case in which a chancellor would decree a conveyance, it is their duty to give binding instructions to that effect to the jury Strong, J., in Todd v. Campbell, 8 Casey 252. There was no sufficient evidence in the testimony of Mason, of a resulting trust. That arises from the fact of the payment of the purchase-money, or that it was the money of the alleged cestui que trust which was paid. There was no evidence that Thomas had paid $1400, and borrowed $600 of John, to make up the balance. The evidence was very distinct that John had paid the hand money: indeed, it is not denied, for it is pretended that was part of the $600 which he was to lend. “After the article was drawn,” says the witness, “John put his hand in his pocket-book, and counted down not quite $200, and had not quite enough, and he turned to Thomas and asked him for it, and he got it.” So in regard to the payment made on the execution of the deed.' “John took out his pocket-book, all standing around, and counted .out $1400, paper money.” John executed the mortgage to secure the balance of $400, and the witness adds: “John paid, the balance of money on mortgage.” Moreover, there was not a scintilla of evidence that Thomas ever had in his name so much money. Mason testifies, indeed, that Thomas told him that his money was in Holmes’ “brokers” office, in Pittsburg. But no evidence was given of this most material fact. Here was an index pointing directly to the place where the evidence could be had — evidence of the fact that Thomas had the money there and drew it out at that time, a fact, if proved, worth more than any declaration. The plaintiffs must be presumed to have known what Mason would testify, and it was a pregnant circumstance, that no attempt was made to prove in any other way, than by Thomas’s own declaration, that he had so large a sum of money at his command. It is particularly so, in connection with the fact that his estate proved to be insolvent. Nor was there any evidence of an admission by John, at any time afterwards, that Thomas had paid any part of the purchase with his own money. Parol evidence of conversations and negotiations, prior and leading to a written contract, are inadmissible to vary it, but though they certainly may be shown to prove a fraud or trust, they should be accompanied with clear evidence that the arrangement continued the same up to the time of the execution of the writing. The whole evidence, indeed, here, consists of Mason’s testimony of conversations with Thomas and John before the sale took place, as to how the payment was to be made. What occurred, at the time either the articles or the deed was executed, was very vague and insignificant. Then was the- time when we ought to expect that there would have been a clear recognition of the terms of the arrangement. No bystander could possibly have understood anything else from what transpired at both those times, than that John was buying and paying for the property. If the fact was otherwise, it can only be accounted for by supposing that, for some reason not explained to Mason, there was a settled purpose to conceal it. At the execution of the articles, Thomas again said that the money was at Holmes’s, in Pittsburg, that he must go after it: but he does not appear then to have asserted that it waslhis. Both the articles and the deed were handed to Thomas, to keep, with a declaration by John, “take that, it is for you,” or “well, ’tis for you,” the witness could not distinctly recollect which. So much as to the resulting trust. In regard to the effort to convert the absolute deed into a mortgage, the case rests on the same kind of evidence. John admitted to Mason, that he had agreed to lend Thomas $600, and not charge him interest, for seven years; and, afterwards, he said, “if I loan him the $600, I must have the writings all drawn in my name. I will article with you for the farm. I will pay the money, and hold the land as security, till the $600 is paid back.” This action of ejectment does not appear to have been commenced until after John’s death. It would be of the most dangerous consequence, to permit a jury to sweep away a man’s farm from his widow and children, after his death, by the breath of a single witness, of conversations and declarations of this loose and indefinite character. The only writing produced was inconsistent with the story. It was Mason’s own letter to John, in which he recognises clearly him, and him only, as the purchaser, and that he was to pay all the money. We think, therefore, that there was not sufficient evidence to go to the jury.

It remains to consider the first two assignments of error, which relate to the record of the Orphans’ Court. That record Was-offered, objected to generally, and admitted for the defendants. The plaintiffs did not require, as they might have done, that the object of the offer should be stated, and then the evidence, if admitted, could have been limited to that object. The defendants may have had, therefore, some reason to believe, when it was admitted generally, that it was good evidence of any fact which appeared on its face. It showed a decree of the court in favor of John, for one year’s rent of the farm, due him by Thomas, on a lease dated January 1st 1851. It is highly probable, then, that the defendants were taken by surprise, when the learned judge instructed the jury that “ the entry in the auditor’s report was not evidence of the fact” of a tenancy. In this, he was clearly right. The plaintiffs were neither parties nor privies to that proceeding: Sample v. Coulson, 9 W. & S. 65. The judge was bound to admit the record in evidence, if it was admissible for any purpose, and it was clearly admissible to-show the insolvency of Thomas’s estate. There was no error, therefore, in this instruction. Eor the surprise, the remedy of the plaintiffs was by a motion for a new trial. On another trial they may be able to show the existence and loss of the lease, by other testimony.

Judgment reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author: Thompson, C. J. —

license: Public Domain

text:
    Paull versus Halferty.
    1. Where one knowing more than others of the occult qualities or internal values of land, and knowing or believing the condition to be one thing, he represents the facts differently to the prejudice of the owner, he is liable in damages.
    2. Where one is prevented from selling, &e., land or other property by the impertinent interference of another, he may maintain an action for the inconvenience suffered.
    3. II., being in negotiation with M. for the sale of land containing ore, P., knowing the land, falsely represented to M. that the ore would suddenly run out; in consequence M. refused to purchase. Held, that P. was liable to II. in damages,
    4. If there had been a contract for the purchase of the land by M., and he had refused to comply on account of the misrepresentations, the remedy of H. would have been on the contract.
    October 29th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Westmoreland county: No. 178, to October and November Term 1869.
    This was an action on the case, commenced September 8th 1866, by Edward L. Halferty against George T. Pauli. The plaintiff declared that he was seised in fee of a tract of land having in it valuable deposits of iron ore; that he was negotiating for the sale of the tract with one John Y. McLaughlin, and that McLaughlin “ concluded to purchase for $6000that the defendant having been informed of the negotiation, and “ contriving, and falsely and maliciously intending to injure the plaintiff, and to cause and induce the said John Y. McLaughlin to believe that there was but little iron-ore in said tract of land, and thereby to hinder and prevent the plaintiff from selling his estate and interest in said tract of land to the said John Y. McLaughlin, or any other person, and to cause the plaintiff to lose and be deprived of divers great gains, which he might and otherwise would have reaped and derived from the said sale, and to cause the same to be sold for a much less price than the said sum of $6000, or than the same otherwise would have realized and produced, and to vex, harass and oppress the plaintiff;” informed McLaughlin by a letter (set out at large in the declaration), that he had been informed by a practical iron master that the. ore would run out suddenly; that “the ore was nearly played out,” &c. By means whereof “McLaughlin, who was about to become the purchaser of the said tract of land, and the iron-ore therein, and who might and otherwise would have purchased the same, was induced to believe that the deposit of iron-ore in said tract of land was nearly exhausted, &c.; and that by means of the said several grievances McLaughlin was deterred and prevented from becoming the purchaser of the said estate and interest of the said plaintiff in said tract of land; and McLaughlin wholly declined to purchase the same, &c.; and thereby the plaintiff was hindered and prevented from selling and disposing of said tract of land to McLaughlin, and hath thereby been deprived of all the advantages and emoluments which he might and otherwise would have derived from the sale thereof to McLaughlin; hath been also otherwise greatly injured and damnified,” &c.
    On the trial, before Buffington, P. J., March 31st 1869, the plaintiff proved his title, and then gave evidence by McLaughlin, who resided in Pittsburg, that before his negotiation with plaintiff for the purchase of the land the defendant told him that the ore-banks were very valuable, &c.; that afterwards the plaintiff offered the land to witness for $6000, and witness told the plaintiff he would take it. After the witness had gone home he received the following letter from the defendant:—
    “ As we parted the other day, you said something of buying the tract of land containing the ore-mine. Now, in order that you may be fully posted before purchasing a ‘pig in a poke,’ I will give you Col. Mathiot’s opinion of that iron-ore deposit. Col. Mathiot, a shrewd, practical man, well known in Pittsburg, who managed this furnace for thirty years, considered it an isolated ‘ pocket’ or ‘ nest,’ as miners call them, that would run out Suddenly, and this he gave for as one reason for always using it, in connection with other ore (to save it); but at the same time they found that the furnace worked better on mixed ore.

      “ And when, some five years ago, I inquired of him, how he come to let that tract be sold for taxes ? he replied that he had got all the timber off it, and thought the ore was nearly played Cut, and, although I thought he was mistaken, he said he was sustained by Arthur Harrison, a miner, who had worked in it. I have not mentioned this before to any one.” The witness testified that the letter prevented him from buying.
    There was other evidence of the defendant’s previous statements to McLaughlin that the ore-banks were valuable, &c. There was also evidence as to the value of the land, the quality of the ore, the probabilities of its being exhausted, &c.
    The defendant gave evidence tending to show that the land was of little value, and also that his letter had been written for the purpose of giving McLaughlin “friendly advice.”
    The defendant submitted these points, viz.:—
    “ 2. Land is not the subject of defamation, as offices, trades, professions and titles are, because the land itself is a standing refutation of any false statements in regard to it, so that it cannot be injured by them.
    “ 3. If the plaintiff in this case sustained any injury from the loss of his bargain, his remedy is against J. Y. McLaughlin for non-performance of his contract to purchase the land for the price agreed upon.”
    The court answered the first point in the negative and the third as follows:—
    “Although plaintiff might have a cause of action against McLaughlin, it would, it does not follow that he could not also Support an action against Pauli. It is not a case of election or choice of remedies, but being of a separate character both might be sustained. We therefore answer this in the negative.”
    The court also reserved the point whether it was “ the right of the plaintiff to recover under all the facts.”
    The jury found for the plaintiff $997.50, and the court entered judgment on the verdict.
    The defendant took a writ of error, and assigned for error; entering judgment on the verdict on the reserved point and the answers to his points.

      F. Cowan (with whom were J. A. Punter and 3. D. Foster), for plaintiff in error. —
    There is no precedent of an action for such cause, which is evidence that it cannot be maintained: Good v. Mylin, 8 Barr 56. There was no evidence that the defendant’s letter was false. If the letter was false, and there was a contract with McLaughlin, he could not have depended upon it; the plaintiff had his remedy against McLaughlin on the contract; if there was no contract, plaintiff lost nothing. The damages would be measured by the consideration : McNair v. Compton, 11 Casey 23.

      S. P. Laird (with whom was MarcJiand), ior defendant in error. —
    Wherever there is a right, there is a remedy by action: 1 Chitty’s PI. 96. Where one is prevented from disposing of his land' by the impertinent interference of another, he may maintain an • action: 1 Starkie on Slander 191; Smead v. Badley, Cro. Jac. 397; Pennyman v. Rabanks, Cro. Eliz. 427; Tasbugh v. Day, Cro. Jac. 484; Gerrard v. Dickenson, Cro. Eliz. 197; Manning v. Avery, Keb. 153; Lowe v. Harewood, Sir W. Jones 196; Cane v. Goulding, Styles’ Rep. 169; Malachy v. Soper, 3 Bingham N. C. 371; Pater v. Baker, 3 Man., Gr. & S. 831. An action will lie for breach of contract, and also against the slanderer : Moody v. Baker, 5 Cowen 351. It was not on the plaintiff to prove that the allegations of the letter were not true: Watson v. Reynolds, 1 Moody & Malkin 1; Sutton v. Johnstone, 1 T. R. 493; Bendish v. Lindsey, 11 Modern 194.
   The opinion of the court was delivered, January 3d 1870, by

Thompson, C. J. —

This was an action in the nature of an action of slander for defamation of title. The narr. charges the defendant with falsely and maliciously misrepresenting the quality of a certain tract of land supposed to contain a large body of iron ore of which the plaintiff alleges he was about to make an advantageous sale, but was prevented by the malicious conduct of the defendant.

A point was propounded to the court below by the counsel of the defendant, praying a charge that “land is not the subject of defamation, as offices, trades, professions and titles are, because the land itself is a standing refutation of any false statements in regard to it, so that it cannot be injured by them.” This the learned judge refused.

The point concedes -that an action will lie for defamation of title. The authorities for that are numerous: Cro. Eliz. 196, 427; Cro. Jac. 484; Kel. 153; Styles’ Rep. 169; 54 Eng. C. L. 830; to which many others might be added.

It might be true that land cannot be so misrepresented as to be the subject of damages where the reference is to its patent qualities. I fancy that a statement, however malicious, that land is without timber, when notoriously well timbered, could never be the subject of damages. But very different would be the case of those occult qualities or internal values which science and experience may be able to detect. As they never, or very rarely, can be certainly ascertained, and to some extent must rest upon opinion, it seems to me that the case is different. One may know more in regard to the value than others, and if, knowing or believing the condition to be one thing, and representing the facts in a different light and prejudicial to the owner, he does him an injury, he ought to pay the damages his misrepresentation produces, or is the direct cause of.

The representation in this case was, that an experienced iron manufacturer Ayas of opinion that the iron-ore in the land was hut a “ pocket” or nest, that would suddenly run out, and that he had used ore from the bank with other ores, in order to save it. This was a most successful mode of depreciating the value of the land as mineral land, and if this was false and malicious as well as injurious to the plaintiff, why shall he not be indemnified ? The defendant did not pretend to prove that Col. Mathiot ever did say what he imputed to him, or that the fact, independently of him, was true. The witness, the party in treaty for the land, says that in consequence of this communication from the defendant, having confidence in him, he refused to go on with the purchase, and thus the matter ended. As the use of the words in question Avas not in se actionable, the plaintiff proved their falsity, so far as observation, experience, judgment and the declarations of the defendant could go. This made a case for the jury, and it would, we think, have been manifest error in the judge to have affirmed the defendant’s point.

It would hardly be denied, I think, if one were falsely and maliciously to represent that a piece of land and residence which a neighbor was about to sell, was very unhealthy, and thus break off an advantageous sale, that this would be actionable, if damage was. shown.

For misrepresenting personal qualities, such as the imputation of the want of chastity, by which an advantageous marriage was lost, an action lies, although the words employed may not in themselves be actionable. Moody v. Baker, 5 Cowen 351, is of this sort, and there are many such in the books. For falsely representing a ship as unseaworthy, an action lies: Ingram v. Lawson, 9 Car. & P. 326. This, although the seaworthiness of the vessel might be claimed as “ a standing refutation” of the slander, being a thing easily ascertained. I regard the text of Starkie on Slander, page 172, ed. of 1869, as quite to the point in a case of this kind. It is there said, “ where a party is prevented from selling, exchanging, or making any advantageous disposition of land or other property, in consequence of the impertinent interference of the defendant, he may maintain an action for the inconvenience he has suffered.” Burr. R. 2622 is cited for this by the learned author. With all these analogies and principles to sustain the ruling of the learned judge, we think he committed no error in answering the defendant’s first point as he did.

In regard to the second assignment of error, which is the answer of the learned judge to the defendant’s second point, much need not be said. It seems to us, that if the law, in answer to it, were wrong to any extent, the facts did not raise the question. The defendant’s testimony did not refer, at all, to any completed contract of purchase by McLaughlin from the plaintiff, but he claimed it to have been shown by the plaintiff. But when we look at that, we discover nothing like a contract with any time for performance, and necessary details on either side, even by parol. The preliminaries to a contract were spoken of, nothing more, and this the defendant seemed to understand, for he interposed his notice not to buy a “ pig in a poke” in order to prevent its completion. A contract for the sale of land is not made by a statement of the price asked and an answer “ that I will take it,” as said in this case. Arrangements are to be made, as to how and Avhen to be paid, when the conveyance, and what kind of conveyance, is to be made, and then the reduction of the contract to writing and signing it, at least, by the party who is to convey. There was neither a parol nor written contract in evidence in this cause; such an one as a court would have allowed to have gone to the jury as a binding contract for the sale of land. I admit that if there had been a binding contract between the plaintiff and McLaughlin, for the land, and then the latter had refused to comply with his contract on account of the defamatory representations received, the authorities show that the plaintiff’s remedy would have been on the contract for damages. This is very clearly asserted by Lord Eldon, C. J., in Morris v. Longdale, 2 Bos. & Pul. 283; see also Vicars v. Wilcocks, 8 East 1; and Bailey v. Drew, 5 Barb. 297. But Ave need not enlarge; if there were error in this answer, it was innoxious, as the proof did not raise the point.

The learned court entered judgment on the verdict, although it had reserved the question, whether under all the facts the plaintiff was entitled to recover. This was certainly insufficient as a point reserved, Clark & Thaw v. Wilder, 1 Casey 314, and the plaintiff in error cannot ask a review here of anything but what he took exceptions to on the trial. We have, however, discussed all the questions in the case.

Judgment affirmed.


author: Read, J. —

text:
    Brown versus Clegg et al.

    1. Steam towboats or tugs are not common carriers as regards the vessels they have in tow and their cargoes.
    2. The common-law rule as to common carriers applied to goods only, and not to vessels.
    November 1st 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 23, to October and November Term 1868.
    This was an action of assumpsit by James Clegg and others against William H. Brown, commenced August 1st 1867.

      The paper-book did not contain the evidence, but from the history of the case it appeared that the suit was for charges for towing seven loaded coal-barges from Pittsburg to Cairo, and towing the barges empty back to Pittsburg. The claim as contained in the bill of particulars amounted to $2566.70. The defence was that the plaintiffs had undertaken to tow eight barges, and had sunk or lost one of them with its load of coal, and had damaged two others.
    The facts were stated to be that the plaintiffs being owners of the steam-tug “Mary Davage,” took charge at Pittsburg of eight loaded barges of the defendant to tow them to Cairo. When near the Steubenville bridge, three of the barges were driven against a stone pier, one was sunk and two injured. The seven barges were delivered at Cairo.
    The defendant asked the court (Williams, J.) to charge:—
    1. That when the owner of a steam tug undertakes the business and employment of towing loaded coal boats or barges from Pitts-burg down the Ohio river to a distant market, and in such an undertaking is to have the exclusive possession and control of the tow, the owner of which is not to be present by himself or his agents throughout the trip, such owners will in such undertaking be liable as a common carrier, in the absence of any special agreement to the contrary.
    2. If this point be declined, then that in such case, if, in midday and on an open river, the tug should collide against the pier of a bridge and sink one of her barges in tow, not from any sudden unforeseen accident, or from any inevitable cause, but from the pilot’s having gradually lost the control of his boat and tow, under the usual and ordinary action of the wind and currents, the owners of the tug would be liable for the loss of the barge.
    3. Or if declined, then that the liability of the tug-boat owner in this case would be similar in extent to that of a common carrier under a bill of lading, with usual exception against the perils of navigation, which would not excuse a collision in open day with a well known obstruction, as the pier of a bridge, there having been no sudden or unforeseen act or violence of a nature which caused the collision.
    4. That when a steam-tug undertakes to tow a large fleet of loaded coal-boats down the Ohio river, as in this case, and just when arriving at the Steubenville bridge, well known as a dangerous place, where more than ordinary care and skill is requisite in management of the tow, the captain and one of the pilots go down to their dinner, leaving only one pilot and the mate on deck to manage the tow and carry it by the dangerous place, and the boat under the management or mismanagement of the pilot and mate, strikes one of the bridge piers and sinks one of her barges, the owners of the tug would be liable to the owner of the barge for its loss.
    5. If the court decline the charge as requested in the last point, then, that under the circumstances there detailed, the owners of the tug would be so liable, unless they show affirmatively and clearly that the accident arose from some sudden and unforeseen cause which human skill and foresight could not have provided against.
    6. That the facts in evidence are insufficient in law to excuse the plaintiffs for the loss of the barge.
    The court declined to charge as requested in the 1st, 4th and 6th points, and answered the others as follows:—
    “ 2. The court declines to affirm this point without qualification. If the pilot ‘gradually lost the control of his boat and tow,’ without any want of proper and reasonable care and skill on his part, then the owners of the tug would not be liable for the loss of the barge; but ‘ if the pilot’ gradually lost the control of his boat and tow ‘through any negligence or want of proper and reasonable care and skill on his part,’ then the owners of the tug would be liable for the loss of the barge, under the facts stated in the point.
    “ 3. The court declines to charge as requested in this point. Whether the loss of the barge was occasioned by the perils of the navigation or by the negligence, want of skill and care on the part of the pilot and crew of the tug, is a question of fact for the determination of the jury, and not a matter of law for the decision of .the court.
    “ 5. Omitting the words ‘ sudden and unforeseen’ before the word ‘ cause,’ the point is affirmed.”
    The verdict was for the plaintiffs for $2554.07.
    The defendant took a writ of error and assigned for error the answers to his points.

      H. Burgwin, for plaintiff in error,
    cited Angell on Carriers, §§ 77, 129, 152; Riley v. Horne, 5 Bingh. R. 217; Germania Ins. Co. v. Pike, 8 Amer. Law Reg. October 1869, p. 614.

      J. Barton and B. Woods, for defendants in error,
    cited Hays v. Paul, 1 P. F. Smith 134.
   The opinion of the court was delivered, January 3d 1870, by

Read, J. —

Are steam towboats common carriers in respect to the boats they have in tow, is a question of great importance in this state, and is distinctly presented for our consideration in this case. The distinction attempted to be drawn in the points presented to the court, would seem to take for granted that in all other species of towage, the owners of steam-tugs are not common carriers, but are responsible only for ordinary skill, care and diligence in tbeir undertaking. The effort then is to make the owners of tugs, towing loaded coal-boats on the Allegheny, Monongahela, Ohio, Delaware and Schuylkill rivers, insurers of the boats and their cargoes towed by them; and legally responsible for all acts against which they could not provide, from whatever cause arising, the acts of God and the public enemy only excepted.

The common-law rule applied only to goods, and not to vessels or boats, to which it cannot be extended except by a forcible perversion of its terms and meaning. Towage by steam is a different and new business, to which should be applied the ordinary rules of bailees for hire, and this has been the clear understanding of the community in this state.

In Leech et al. v. The Owner of the Steamboat Miner, 1 Phila. R. 144, the action was for the loss of two boats loaded with coal, alleged to have been lost by the carelessness of the defendant, who had undertaken to tow them from the mines on the Monongahela, to the landing at Pittsburg.

Lowrie, J. (1st March 1848) charged the jury, “ That the owners of a towboat, are not liable, as common carriers, for the safety of the boats and their contents, which they undertake to tow. In the performance of the duty, they are bound to exercise ordinary care and skill in directing their movements, and are liable if the accident arose from such want of care or skill.”

In Leonard v. Hendrickson, which was the case of a raft taken in tow by a steamboat, Hepburn, J., in the same court in the next year (1849), held that the owners of the boat were not common carriers. This case was taken to the Supreme Court and there affirmed, and is reported in 6 Harris 40.

A very able opinion was delivered by Chambers, J., considering the question upon reason and authority, rejecting the Louisiana doctrine, and adopting the New York rule as unanimously laid down by the Court of Appeals in Wells v. Steam Navigation Company, 2 Comst. R. 207.

In Hays v. Paul, 1 P. F. Smith 184, the court below affirmed the defendant’s point “ that the owners of a steamboat, employed in towing boats, are not common carriers, and are only bound to take such reasonable degree of care and attention, that the owner of the boat or raft towed shall incur no damage or loss through the negligence or default of the owner of such steamboat, or of his servant.” The case was tried and decided upon this principle, and affirmed by the Supreme Court.

It appears therefore to be the settled rule in Pennsylvania, that the owners of steam towboats are not common carriers.

I am aware of the opinion of Kane, J., in Vanderslice v. The Steam Towboat Superior, in Admiralty, in the District Court of the United States for the Eastern District of Pennsylvania, reported in 2 Am. L. J., N. S. 347, and in 13 Law Rep. 399. The learned judge agrees with Chancellor Kent, and disagrees with Story, J., and with the case in 3 Hill 9, in holding steam-tugs common carriers. After stating various reasons for considering them common carriers, he says, these considerations urge us very strongly, to hold the steam-tug to the rigid accountability of a common carrier, but I do not think it necessary to decide the question.”

There is no date to this opinion, but as the libel was for damage done to a boat and her cargo in March 1846, and as neither the case in 7 Hill 533, nor that in 6 Harris 40, are referred to, it must have been prior to the publication of those cases, the last of which would have had a controlling influence over the mind of the judge. In 1 Wharton’s Dig. (6th edition 1853) 203, under the head of Bailment 1 — Common Carrier, par. 11, the digester, after stating the case of Yanderslice v. The Superior, as if it had been a positive decision that a steam-tug towing boats for hire was a common carrier, adds — “ This case was affirmed on appeal to the Circuit Court by Grier, J., on the ground that there had been a want of ordinary care on the part of the steam-tug, but he declined to rule that she was a common carrier.”

In the supplement to Wharton’s Digest published in 1865, under the head Bailments, p. 42, “who are common carriers?” “3. Steam tugs are not liable as common carriers for the safety of vessels which they are towing, or of their cargo: Hitner v. Steamtug Enterprise, Hitner v. The Steamer Napoleon, 3 Wallace 5.” It is clear the dictum of Kane, J., did not form the grounds of decision in the case before him, nor of any other case in the third circuit, so far as we know. The decisions on this point in the state courts, and in those of the United States, entirely harmonize.

In Merrick v. Brainard, 38 Barb. 574-585 (1860) — the court say, “ one who contracts to tow a boat laden with merchandise, for another, is not a carrier and does not assume, nor is he charged with, the duties and responsibilities of a carrier: Wells v. Steam Navigation Company, 2 Comst. 204. In the same case (4 Selden 375), it was held, that the owners of a towboat in the absence of an express contract limiting their liability, are bound to exercise ordinary care and diligence, and are liable for the want thereof.”

In the Court of Appeals in Merrick v. Van Santvoord et al., 7 Tiffany (34 N. Y.) 208 (1866), this ease was modified by reversing the court below, as to the defendant Yan Santvoord, who had been held liable as a mere stockholder in a Connecticut corporation, but affirming the judgment as against the defendant Brainard, upon the principle just stated. “We have examined the questions raised by the appeal which affect the defendant Brainard, and think the judgment as to him should stand for the reasons assigned in the court below,” in which all the judges concurred.

Betts, J., in Abbey v. Steamboat R. L. Stevens, in tbe District Court of tbe United States for tbe Southern District of New York, in September 1861, 22 Howard’s Practice Reports 78, said, “ Tbe tug is not to be regarded subject to tbe liabilities of a common carrier or insurer.” Tbe decision in The Princeton, 3 Blatcbford’s Circuit Court Rep- 54, by Nelson, J., one of tbe judges wbo decided tbe case of Alexander v. Greene, 3 Hill 9, looks in tbe same direction, and can bear no other interpretation. In Tbe Steamboat Angelina Corning, 1 Benedict 109, Benedict, J., of tbe United States District Court for tbe Eastern District of New York, in 1867, held tbat a steam-tug is not a common carrier of tbe vessel she tows.

In Tbe Steamer New Philadelphia, 1 Black 62, it seems to have been taken for granted, in tbe District and Circuit Courts, and in tbe Supreme Court, tbat tbe steam-tug New Philadelphia was not a common carrier of tbe coal-barge she bad in tow, a.nd tbe ground of claim by tbe libellant for tbe damages to tbe tow Was, tbat they were occasioned by negligence and want of ordinary skill, care and prudence on the part of those wbo were intrusted with tbe navigation of tbe tug.

It may therefore be affirmed tbat by tbe Jaw of Pennsylvania, and also of New York, as administered by tbe courts of those states, and by tbe courts of tbe United States in tbe second and third circuits, steam tugs or boats are not common carriers of tbe vessels they tow.

Tbe cases in England are generally in tbe Admiralty, which has jurisdiction of towage, and which is often connected with salvage. In Symonds v. Pain, 6 Hurlst. & N. 709, which was an action by tbe owner of a smack, against tbe owners of a steam-tug employed to tow bis smack out of tbe harbor, for negligence of tbe master of tbe tug, by which tbe smack was stranded, tbe declaration was in tbe common form for negligence in towing tbe plaintiff’s vessel out to sea. Tbe defence set up, was a special notice on tbe back of tbe printed receipts given by tbe defendants, exempting them from all liability for any loss or damage whether arising from, or. occasioned by any supposed negligence or default of them or their servants, and tbe question was, whether tbe plaintiff bad knowledge of this notice. Tbe Lord Chief Baron expressed tbe opinion tbat tbe contract was upon tbe terms of tbe notice, and tbat it was evident tbe defendants did not undertake for tbe charge of 7s. 6d. to be insurers against accidents to tbe vessels they towed — and tbe plaintiff was then nonsuited. Upon a motion for a new trial in showing cause, defendants’ counsel said, “ This is not tbe case of a common carrier. There was no common-law obliga7 tion on tbe defendants to tow the plaintiff’s vessel, but tbe liability depends on contract.”

Baron Martin said, I am of opinion tbat it was a question for the jury, what was the contract the plaintiff and defendants entered into, and that it was not a question of law for the judge to decide. Whether the plaintiff had knowledge of the notice by reason of having the receipts, was essentially a question of fact, and ought not to have been withdrawn from the consideration of the jury” — a new trial was granted; and upon a second trial before Erie, C. J., the learned judge left it to the jury to say whether the contract between the plaintiff and defendant, was made on the terms printed on the back of the receipts, and the jury having found in the affirmative, plaintiff elected to be nonsuited.

In The Minnehaha, 1 Lush. 335, and in the Judicial Committee of the Privy Council, Lord Kingsdown said, “ When a steamboat engages to tow a vessel for a certain remuneration from one point to another, she does not warrant that she will be able to do so, and will do so, under all circumstances and at all hazards; but she does engage that she will use her best endeavors for that purpose, and will bring to the task competent skill and such a crew, tackle and equipments, as are reasonably to be expected in a vessel of her class. She may be prevented from fulfilling her contract, by a vis major, by accidents which were not contemplated, and which may render the fulfilment of her contract impossible, and in such case, by the general rule of law, she is relieved from her obligations. But she does not become relieved from her obligations because unforeseen difficulties occur in the completion of her task; because the performance of the task is interrupted or cannot be completed in the mode in which it was originally intended —as by the breaking of the ship’s hawser. But if in the discharge of her task, by sudden violence of wind, or waves, or other accidents, the ship in tow is placed in danger, and the towing vessel incurs risks and performs duties which were not within the scope of her original engagement, she is entitled to additional remuneration for additional services, if the ship be saved, and may claim as a salvor, instead of being restricted to the sum stipulated to be paid for mere towage.” In the cases on this subject the towage contract is generally spoken of as superseded by the right to salvage. In the ease of the Julia in the Judicial Committee of the Privy Council, 11 Moore P. C. 210, 1 Lush. 224, Lord Kingsdown said, “When the contract was made, the law would imply an engagement, that each vessel should perform its duty in completing it, that proper skill and diligence would be used on board of each, and that neither vessel by neglect, or misconduct, would create unnecessary risk to the other, or increase any risk which might be incidental to the service undertaken.”

So where a steam-tug to avoid being crushed by collision, let go her tow and slipped out from between the two vessels, and dropped astern, “ It was admitted on all sides that this manoeuvre was perfectly justifiable.” (The Annapolis P. C., 5 Law Times Reports, p. 38.)

It is clear from these authorities that steam towboats or tugs are not by the law of England common carriers of the vessels they tow.

The cases in the United States which'are supposed to express a contrary opinion are White v. Mary, 6 California 462, October Term 1856, where Justice Heydenfeldt, delivering the opinion of the court, says, “ It is immaterial to consider, whether the defendant was or was not a common carrier, although I think she was, according to the most striking analogies:” Walston v. Myers, 5 Jones, North Carolina Law Reports 174, December 1857, where Judge Pearson said, “ we are inclined to the opinion, that the defendants, John and Redding Myers, the owners of the steamboat, were common carriers, in respect to the plaintiff’s flat they had in tow.”

In Ashmore v. Penna. Steam Towing Trans. Co., 4 Dutcher 180, one judge upon a motion for a new trial deemed it unnecessary to decide whether a tower was a common carrier. Another judge held both upon principle and authority that he was not a common carrier. A third judge seemed to be of opinion that he was a common carrier ; and the Chief Justice, who had tried the cause, and who had not charged the jury that the steamboat was a common carrier, concurred with the majority in dismissing the motion for a new trial.

In Sproul v. Hemmingway, 14 Pick. 1, a brig which was towed at the stern of a steamboat, employed in the business of towing vessels in the river Mississippi below New Orleans, was, through the negligence of the master and crew of the steamboat, over whom those in charge of the brig had no control, brought into collision with a schooner lying at anchor. It was held, that the owner of the brig was not responsible for the damage sustained by the schooner.- There is nothing in this ease showing that the court regarded the steamboat as a common carrier, and this is remarkable because the case of Smith v. Pierce, 1 Louisiana R. 349, in which the owners of steam towboats on the Mississippi were held liable as common carriers, had been decided in May 1830, and published in 1831, two years before the decision of the Massachusetts case.

Of the text-writers, Story on Bailments, 7th ed. § 496, says, “ the owners of a steamboat, who undertake to tow freight-boats for hire, or undertake to tow vessels in or out of port for hire, are not common carriers, but are responsible only for ordinary care, skill and diligence in their undertaking.” Such is the opinion also expressed in Angelí on Carriers, 4th ed. 1868, § 86.

And in 1 Parsons on Shipping and Admiralty, p. 247, it is said “ steam towboats are not generally considered common carriers in respect to tbe boats they have in tow.”

The detailed examination we have made of the authorities upon this point, show conclusively that in Pennsylvania the law is definitely settled that steam towboats or tugs are not common carriers as regards the vessels they have in tow, and their cargoes. There is nothing in any of the other specifications of error, and the judgment is therefore affirmed.


author: Sharswood, J. —

text:
    Pier versus Duff.
    1. The declarations of a grantor after the grant cannot be received to affect the title of his grantee.
    2. If the grantee permits the grantor to remain in actual possession, the grantor’s declarations whilst in possession may be given in evidence: this is not extended to a constructive possession.-
    3. What a man in possession of land or goods says, is admissible to prove in what capacity he is there.
    4. The declaration of a tenant in common cannot be given in evidence to impeach the title of his fellow.
    5. The admission during his tenancy, by one under whom a plaintiff claims, affects such plaintiff only.
    6. Tenants in common have no community of title and interest which will make their declarations admissible against each other.
    7. One authorized to sell, but not in actual possession, is a mere broker, and not even constructively in possession: his declarations are not admissible to affect his principal.
    8. If there be even very slight evidence of complicity between a grantor and grantee to defraud creditors, the declarations of one, although after the grant, are admissible against the other.
    9. A price agreed on, or payment of anything, is not absolutely necessary to pass property, provided there is an adequate valuable consideration.
    10. A valid transfer may be made on credit or as a mortgage to secure an honest debt.
    11. Lyon and Mong owned lumber in partnership. Lyon sold his interest to Duff, and the lumber was marked “ Duff & Mong.” Lyon, as the agent of Mong, continued to take charge of his interest in the lumber. It was no error to leave to the jury the question of Duff’s exclusive possession.
    12. Duff could not have excluded Mong or his agent from the concurrent possession of the lumber.
    13. After the sale, Duff moved the lumber, marked as his and Mong’s, to his own mill. He thus gave all the notice of his title to an individual half that could be reasonably required.
    November 1st 1869.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 49, to October and November Term 1868.
    This was a feigned issue, under the Sheriff’s Interpleader Act, in which Samuel Duff was claimant and plaintiff and B. W. Pier defendant. The issue was formed August 9th 1862.

      Pier, the defendant, having recovered a judgment against one John Lyon, issued an execution against him, under which the sheriff, on the 24th of July 1862, levied on three rafts of lumber lying in the Allegheny river. Duff claimed that the lumber belonged to him, under a sale from Lyon.
    Lyon, the defendant in the execution, was the owner of timber land in Clarion county, on which he had a saw-mill; he testified that the lumber was cut from his land, and sawed at his mill in partnership, as to the sawing, between himself and his son-in-law, Jacob Mong. The boards were Duff’s (the claimant) as soon as they were sawed, in payment to Duff for money and provisions furnished by him to witness, to enable him to carry on his business : the amount of his indebtedness to Duff was about $1200. The lumber was given into the possession of Mong, who ran it to Pittsburg, where witness gave possession to Duff, whose name he marked on it at his request: this was done before the levy. Mong left witness in charge of his interest in the lumber. Witness had delivered the lumber to Duff in Clarion county at a place designated by Duff. The lumber was rafted to Pittsburg by Lyon and Mong, “dropped down to Heath, Duff & Co.’s mill” in Pittsburg: witness took charge of it exclusively as Mong’s agent: witness sold some of the lumber as the property of Duff & Mong, and paid the proceeds to them.
    E. K. Duff, a son of claimant, testified: The rafts were first landed above the mill, and possession delivered to him as agent of the claimant; the lumber was marked “ Duff & Mongthe delivery was ten days before the levy, .but the lumber was not at the claimant’s landing during all that time; witness put cables on them. The claimant gave evidence also that the lumber was put on his books to the credit of Lyon.
    The defendant gave evidence for the purpose of .showing that the lumber was in the possession of Lyon at the time of the levy.
    He also proposed to prove by witnesses whom he called, “ that from the time John Lyon brought the lumber in controversy to Pittsburg, up to the date of the levy, and afterwards, while in custody and care of the lumber, he declared, repeatedly, that it belonged to him.” “ What declarations, if any, John Lyon made, from the time he brought the lumber there, on the 27th of June, up to the time he left, as to the ownership of this lumber.” “ The declarations of John Lyon, made from the time he brought the lumber to Pittsburg, up to the time of the levy, and afterwards, and while he was in custody and charge of the lumber, as to his ownership of it, and this for the purpose of rebutting the testimony of John Lyon as to the capacity he acted in, while here in charge of the lumber.”
    These offers were objected to, and rejected by the court, who said: “We will allow any declarations made by Lyon, previous to the sale to Samuel Duff, the plaintiff, to be given in evidence, for the purpose of showing that he owned the property at and before that date.”-
    The court sealed several bills of exception for the defendant.
    The plaintiff’s point was:
    “ If the jury believe that, before the levy by the sheriff on the lumber in controversy, the plaintiff and John Lyon went to the place where the lumber was lying in the Allegheny river, and John Lyon there agreed to relinquish the lumber, and the plaintiff agreed to accept it, and credit the value thereof on a debt due and owing by John Lyon to him, the plaintiff; that therupon, the lumber was marked with the plaintiff’s name, and by the plaintiff, or his agent, moved or conveyed to the premises of the plaintiff’s agent, the general depot for plaintiff’s lumber; and that, at the time the levy was made, the lumber in controversy was at this general depot, marked with plaintiff’s name, mingled with other lumber and boats belonging to the plaintiff, and in the custody and under the control of plaintiff’s agent, the plaintiff is entitled to recover, unless actual fraud is shown; notwithstanding they may believe that John Lyon remained about the lumber, looking after the interest therein of a third party, to wit, Jacob Mong.”
    To which the court (Stowe, J.) answered: “Though under some circumstances this might not avoid the conclusion of legal fraud, under the evidence in this case this point is affirmed.”
    The defendant’s points were:
    “ 1. To constitute a sale or transfer of personal property, good as against judgment and execution creditors, the party who relies upon such sale must prove to the satisfaction of the court, as well as of the jury, that a sale of the property in controversy was actually made, the time of making such sale, the terms of the sale, including the price to be paid, the payment of the price, and that the possession of the property was delivered by the seller to the purchaser at the time of the sale, or within such reasonable time thereafter as the nature of the property will admit of, and that the possession of the purchaser, under such sale, must be continued and exclusive: that is, it must not be a mixed possession of the seller and purchaser, and that, if all or any of these requisites be wanting, such sale is void in law as to creditors, without regard to the intention of the parties.
    “ 2. There is no evidence in this cause showing, or tending to show, that Samuel Duff, the plaintiff, agreed to pay any specific price for the lumber in controversy, nor that he actually paid any price whatever therefor, nor that he ever had the exclusive possession of said lumber at any time previous to the date of the levy, and that, therefore, the alleged sale was fraudulent in law, and the plaintiff cannot recover.”

      The court disaffirmed both points, and further charged:—
    “We can find nothing in this case which will, in our opinion, justify us in telling you that, under all the facts in evidence, this sale was a legal fraud, and that therefore the plaintiff cannot recover. The case is then submitted to you as one of actual fraud, and, in this view, if you find that an arrangement was honestly made by Lyon and Duff, preceding the alleged delivery of this lumber to Duff, and in pursuance of that arrangement, this property was transferred to Duff by Lyon — taken possession of by his agent for him, and retained in possession up to the time of the levy, and that, throughout the whole transaction, Duff acted honestly and in good faith in relation to the matter, the plaintiff can recover, even though Lyon, after the alleged delivery, continued to look after this lumber, for the purpose of taking care of the interest of his son-in-law, Mong.”
    The verdict was for the plaintiff.
    The defendant took out a writ of error.
    He assigned nine errors; three to the rulings as to the evidence ; the remaining six to the answers to the points and the charge of the court.

      B. P. Lucas (with whom were A. Gf. Lucas and J. Mellon), for plaintiff in error. —
    The evidence rejected tended to prove fraud: Price v. Junkin, 4 Watts 85; Rogers v. Hall, Id. 359; McKee v. Gilchrist, 3 Id. 230; Irwin v. Keen, 3 Whart. 347; Deakers v. Temple, 5 Wright 234; Bredin v. Bredin, 3 Barr 81. The change of possession was not sufficient: Babb v. Clemson, 10 S. & R. 419; Young v. McClure, 2 W. & S. 147; Carpenter v. Mayer, 5 Watts 483; McBride v. McClelland, 6 W. & S. 94; Barr v. Reitz, 3 P. F. Smith 256.

      L. B. Buff, for defendant in errror. —
    The interest sold to Duff was undivided, and by circumstances beyond his control the possession remained in the assignor: Hugus v. Robinson, 12 Harris 9; Barr v. Reitz, supra.

   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

This was a feigned issue under the Sheriff’s Interpleader Act, to try the title to three rafts of lumber levied on as the property of John Lyon. Lyon owned the land on which the timber grew and the mill at which it was sawed. One-half of it belonged to Mong, the son-in-law of Lyon, for the consideration of his having manufactured it into hoards. They worked on the shares, and were therefore tenants in common of the product. According to Lyon’s testimony, he had agreed, before the timber was cut, that Duff should have his half of it, and apply the proceeds to the payment of an old debt of more than $1100; but on the' other evidence, apart from his, it appeared that Lyon accompanied the lumber to Pittsburg, and that there Duff or his agent marked it with the name of “ Duff & Mong,” and floated it down to a mill of Heath, Duff & Co., and there fastened it by lines in the customary mode. Lyon remained at Pittsburg boarding at a house somewhere in the neighborhood of the rafts, for the purpose, as is testified, of taking care of Mong’s interest, and while there, after the marking and removal, but before the levy, he sold a part of the lumber to a man named Pearson, and accounted for the proceeds to Duff & Mong. The question upon all the evidence ■was whether there was a bond, fide transfer to Duff, and with such delivery of possession as the law requires.

The first two assignments of error may be examined together. They are grounded upon exceptions taken at the trial to the rejection of evidence offered of declarations by Lyon as to the ownership of the lumber; that it belonged to him, after the marking and after the levy, up to the date of the levy and afterwards. It is' clear, and a point which has not been and cannot be disputed, that the declarations of a grantor, after the grant, cannot be given in evidence to impeach or affect the title of his grantee. There are undoubtedly recognised exceptions to this rule, falling within other principles. Thus if a grantor is permitted by the grantee to remain in actual possession of the thing granted, what he says may be given in evidence on the principle that what a man says who is in possession of either lands or goods, is admissible to prove in what capacity he is there. But this exception cannot be extended to a mere constructive possession. The possession is a fact, and how it is held is a fact, and this may be shown by the declarations of the possessor on the same grounds upon which mere hearsay is permitted when it forms part of the res gestee. Mr. Greenleaf very properly so classifies it: 1 Greenl. on Ev., §§ 108, 109. It wras not offered to prove declarations made by Lyon%hile in actual possession, but only while in custody and care of the lumber. This would go far beyond the reason of the exception, and would be fraught with great danger to the rights of persons who are obliged to commit the care and custody of their goods to others, and may do so safely, provided they do not' put them in actual possession. This would be the case of a mere servant left in charge of a house and furniture during the temporary absence of his master. The principle has no application to such a case. All the acts of Lyon subsequently to the marking were referable to his capacity as agent for Mong, and if he had been in actual possession as such agent, it may be well doubted whether his declarations should have been received to affect Duff. The declarations of one tenant in common cannot be given in evidence to impeach the title of his co-tenant: 1 Greenl. on Ev., § 176; Dun v. Brown, 4 Cowen 483. An admission by one during his tenancy, under whom one of the plaintiffs claims, affects such plaintiff only: Grant v. Levan, 4 Barr 893. Tenants in common have no unity of title or community of interest which will make the declarations of the one admissible against the other. They have unity of possession only. A person not in actual possession, who is authorized to sell, is a mere broker, and not even constructively in possession. His declarations cannot be admitted to affect the title of his principal. This, at the utmost, was all that was shown of any relation or connection between Lyon and Huff after the sale and marking. Another ground upon which the admissibility of the evidence proposed and rejected has been strenuously urged is, that it had a tendency to prove actual fraud. There is no doubt that if there be any, even very slight, evidence of complicity between the grantor and grantee in a design to defraud creditors, the declarations of the one are admissible against the other, although made after the date of the grant: McKee v. Gilchrist, 3 Watts 230; Rogers v. Hall, 4 Id. 359; Irwin v. Keen, 3 Whart. 347; Peterson v. Speer, 5 Casey 478; McDowell v. Rissell, 1 Wright 164. But this exception rests also upon another and distinct principle of the law of evidence: 1 Greenl. on Ev., § 111. I have looked in vain through the notes of the testimony for any, the slightest, evidence to implicate Duff in any design to defraud the creditors of Lyon. It has not been pointed out either in the oral or printed argument of the counsel f<j>r the plaintiff. I need not stop to argue that the declarations of the grantor after the grant are not competent, without more, to show that there had been no change of possession.

The third assignment of error is to the rejection of an offer of the same evidence after the deposition of Lyon had been read by the plaintiff below “ for the purpose of rebutting the testimony of Lyon as to the capacity he acted in, while here in charge of the lumber.” But Lyon had not been asked in his cross-examination by the plaintiff in error as to these alleged contradictions, and of course no opportunity had been afforded to him to explain them. In such a case the rule is'very well settled that the evidence is not admissible: 1 Greenl. on Ev., § 462; The Queen’s Case, 2 Brod. & Bingh. 284; McAteer v. McMullen, 2 Barr 32; Wertz v. May, 9 Harris 274.

The remaining six assignments of error may be considered as one. They present the same question, whether there was any evidence of such an actual exclusive change of title and possession as ought to have been submitted to the jury. Two matters are principally relied on, and were presented in the points made in writing below. It is said that there was no sufficient evidence of any sale; no evidence of any price agreed on, nor of the payment of anything. But neither of these circumstances are absolutely necessary in order to pass the property provided there was an adequate valuable consideration. A perfectly valid transfer may be made on credit, or as a mortgage to secure an honest debt. Upon the question of actual fraud such a transaction may require to be more closely scrutinized, but if bonfi fide, and accompanied with the necessary change of possession,'its validity,'as against creditors, is not to be questioned. In introducing that as an essential element, in his first and second points, the defendant below asked too much, and the court were therefore justified in refusing to answer as requested. Here the evidence was that the goods had been transferred to Duff under an agreement that the proceeds were to be credited to Lyon upon an existing indebtedness. No question was raised as to the bona fides of that debt. The interest of Lyon in the surplus after its payment might have been attached in the hands of Duff, and that was the proper remedy of the creditors of Lyon in order to make it available in payment, if it was an honest and fair transaction. But the second matter urged is that there was no evidence of such an exclusive possession in Duff as the law requires, because of the evidence that Lyon remained about the rafts, and sold part of the lumber, and received the price. But to have taken the case from the jury on this ground, would have been to have overlooked the evidence which presented a question for them, that the capacity in which Lyon acted after the sale and delivery to Duff was merely as agent for Mong, a tenant in common of the lumber, and the sale effected by him was as broker merely, for both parties. “ If an undivided part, of a thing be sold,” said Lowrie, C. J., in Hugus v. Robinson, 12 Harris 9, a concurrent possession is proper, for it corresponds with the sale.” Consider only, what could Duff have done more than he did do to perfect his title to the rafts? It was not in his rightful power to exclude Mong or his agent from concurrent possession, for that would have been a wrong — an aetual ouster, and would have subjected him to damages in an action of trespass or trover. He marked the lumber plainly with the name of “ Duff & Mong,” and he moved it to his own mill and fastened it there. He gave all the notice to the world that could reasonably be required of his title and possession to an undivided half. There was no error, therefore, in the answers to the points or the charge, and the question was properly submitted to the jury.

Judgment affirmed.