text:
    Parshall's Appeal.
    1. Henry died leaving a widow and children, two of whom were minors. The widow and adults agreed to sell to Parshall the administrator oil land of decedent for $7000, the vendors “on or before the 1st of July each to receive the legal portion of said sum as heirs to the same, then this contract to be of full force and virtue otherwise to be void and of no effect;” the vendors at the same time gave the administrator a power of attorney to sell. Held, that time was of the essence of the contract,
    2. Parshall, without paying the vendors, having sold for a larger sum after July 1st, was bound to account to them for the larger sum.
    S. Parshall was brother of the widow and uncle of the children. He stood in such relation of confidence to them, as required him to show affirmatively, that his conduct had been perfectly fair and open and that the demand for the property in the market was communicated to them.
    4. Having failed to pay the $7000 at the day or to procure an extension of time, he was no longer vendee but administrator and agent, acting in the sale by him for the estate.
    5. After the sale by Parshall, in order to perfect the title he procured a sale of the land to his vendee under a judgment which was against the decedent, and under an agreement that whatever his vendee should give at sheriff's sale should be credited on the contract price. Held, that Parshall might be charged in his administration account with the whole sum received by him as if it had been paid to the sheriff, and the balance after paying heirs had been paid to him as administrator.
    ,. 6. The heirs could not be put to their common-law action against him.
    7. _ The doctrine of Fisk v. Sarber, 6 W. & S. 18, does not apply where the judicial sale is brought about by the trustee.
    8. A trustee or agent making a private sale and arranging that his vendee shall become the purchaser at a judicial sale, must answer to his cestui que trust for the amount actually received.
    9. The heirs gave receipts for their proportion of the $7000, as on the contract. Held, that they were not estopped unless the facts were fully communicated to them.
    10. Parshall sold land of his own and the decedents’ as a whole for a gross sum, and received $2000 of the purchase-money in stock. Held, that he was not chargeable with the highest price of the stock, but with the sum only for which it had been received.
    11. If the entire purchase-money had belonged to the estate, Parshall would have been liable for all he could have made by the sale of the stock.
    12. Where a trustee receives a sum in gross to part of which he is entitled individually and accepts stock or securities in his own name in part payment, it is an unequivocal indication that they are taken for the part which is his own.
    13. He cannot require his cestui que trust to receive any part of such stock or securities.
    March 31st 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Warren county: In the estate of Robert H. Henry, deceased. No. 338, to January Term 1870.
    Henry, the decedent, in his lifetime, owned a tract of land in Deerfield township, Warren county, containing about 365 acres. To December Term 1859 Samuel Grrandin recovered a judgment against him for $479.45. On the 11th of February 1860, Henry entered into an agreement that R. J. Brown should have the exclusive right to hore for oil on the whole tract, rendering to Henry one-twelfth of the oil. Henry died before February 1864, probably in the fall of 1863, intestate, leaving a widow Eliza and four children, James, Liza, wife of David A. Baker, and Livingston Gr. and and Lois, both of whom were minors. Administration of his estate was granted to James Parshall, who filed an inventory amounting to $70. The decedent’s debts amounted to about $2000, of which about $1500, including the above judgment of Grrandin, were liens. On the 7th of April 1864, the widow and the two adult children made a power of attorney to Parshall authorizing him to sell or lease their interest in the decedent’s real estate for such price as he should think fit. On the same day the same persons of the first part entered into an agreement with Parshall of the second part as follows :—
    “ That for a consideration hereinafter mentioned, the party of the first part does hereby sell, and when the consideration hereinafter mentioned shall be paid, to convey by good and sufficient warrantee deed, all our interest of, in and to the following described piece or parcel of land * * * known as theR. H. Henry farm. * * *
    “ The consideration whereof, is, that if the party of the second part shall pay to the party of the first part on or before the 1st day of July, A. D. 1864, the sum of seven thousand dollars, each to receive the legal portion of said sum as heirs to the same, then this contract to be of full force and virtue, otherwise to be void and of no effect.
    “ And it is further agreed and understood, That whereas, the party of the first part has executed a full power of attorney bearing even date herewith to sell and convey the above described premises and to give a good and sufficient title for the same. That if the .said party of the second part shall, under said power of attorney aforesaid, make sale of and dispose of the aforesaid premises for his own use, benefit and behoof, then in that case he shall pay to the said party of the first part the aforesaid sum of seven thousand dollars as stated above at the time aforesaid mentioned.”
    At the date of the power of attorney and agreement, Parshall himself owned a refinery in Tidioute and a tract, known as the “ Cleland farm” adjoining the Henry farm, and containing about 63 acres. In May or June 1864, Parshall entered into a negotiation with J. W. Snedeker for the sale of his refinery and the Cleland farm and the Henry farm, the three to be sold together; the negotiation resulted in a conditional sale of the whole for $18,000; the conditions were that Snedeker’s partners should approve of the contract, and that other persons to whom Parshall had given the refusal should not accept within a week. This bargain was afterwards consummated by an absolute sale at the sum above stated which was to be paid cash. The title of the Henry farm being encumbered with the lease to Brown and also with the liens above mentioned, in order to pass a clear title to Snedeker it was determined to have this farm sold at sheriff’s sale under the Grandin judgment which had been entered before the date of the lease. Accordingly on the 14th of July 1864, Parshall suggested the death of Henry on the record, and substituted his name as administrator. On the same day a fi. fa. was issued, and Parshall waived an inquisition. On the 16th of August, the Henry farm was sold by the sheriff to Snedeker for $2200 under an understanding with Parshall, that whatever sum Snedeker should pay at that sale was to be credited on the whole purchase-money of $18,000. The sheriff’s deed was acknowledged September 7th, and on the same day J. L. Grandin was appointed guardian of the two minor children of Henry. About the last of September, the whole property purchased by Snedeker passed into the hands of The New York and Allegheny Oil Company, which had been organized on the property; the par value of the stock was $5 per share. Parshall received 1000 shares of this company at $2000, the remainder of the consideration, except Snedeker’s bid at the sheriff’s sale was paid to Parshall in cash.
    Parshall afterwards made payments to the widow and heirs for which he took receipts as follows:—
    “1076.00. “Tidioute, September 19th 1864.
    “ Received of James Parshall one thousand and seventy-five dollars, to apply on land contract. Eliza Henry.”
    “ Received, October 8th 1864, of James Parshall, administrator of R. H. Henry, deceased, eight hundred dollars, moneys made out of R. H. Henry’s, deceased, estate, of which I am an heir, to apply on contract with him for same estate.
    “ Betsy Baker,
    “David Baker.”
    “ Received, October 10th 1864, of James Parshall, sixteen hundred dollars, for Grandin and L. L. Henry, heirs of R. H. Henry, deceased, being money made out of sale of R. H. Henry’s property. J. L. Grandin.”
    “$626.00. “Tidioute, October 15th 1864.
    “ Received of James Parshall five hundred hundred and twenty-five dollars, cash, made out of the estate of R. H. Henry, deceased, as an heir of said estate. Eliza Henry.”
    Grandin, the guardian, testified that he paid $800 to L. G. Henry, and that when it was paid L. G. Henry knew that he had received it from Parshall for the farm; the share of Lois, who died in her minority, he paid to her mother some before and some after her death. He also received from Parshall, on the 10th of October 1864, $800 to be paid to James Henry; witness shortly afterwards paid it to James, who knew where it came from.

      David McKelvey, Esq., who was appointed auditor to distribute the proceeds of the sheriff’s sale, awarded to Parshall, as administrator, &c., of Henry, the sum of $779.26.
    To September Term 1866, James Henry, Baker and wife, L. Gr. Henry and Lois Henry brought an action of ejectment against the New York and Allegheny Oil Company for the Henry farm. On the 20th of the same month James Henry signed and filed in that suit the following paper:—
    “ Inasmuch as I have disposed of all my interest in the land claimed in the above suit, and have no interest in or claim to the same, and never authorized any person to bring suit for me, I hereby discontinue the above suit so far as it relates to me.”
    On the 3d of November 1866, in answer to a citation, James Parshall filed his administration account, in which he charged himself with $849.26, composed of the inventory and the proceeds of the sheriff’s sale. Amongst other credits were these:—
    1866 June 2d. James Henry, heir .... $80
    “ “ “ L. Gr. Henry, heir .... 40
    The account showed in his hands a balance of $555.03.
    The account was confirmed nisi December 3d, and on March 11th 1867 the heirs filed exceptions: that the accountant had neglected to charge himself with goods, &c., which were not included in the inventory; that he had received a large amount of money, stock in incorporated companies, and other property of great value, being the proceeds of real estate sold, above the amount he had charged himself with, and profits from the use of and productions of real estate, and from dividends in stock, &e., and otherwise, with which he has not charged himself; also that the account required general examination and revision. The account was referred to Isaac S. Alden, Esq., “ to examine, settle and adjust.”
    The auditor heard testimony, including much bearing on the question of the value of the property belonging to Parshall personally, compared with the Henry farm.
    In a report examining with much care the facts and the law of the case, he found the facts as above stated, and further reported :—

      * * * “ The contract and power of attorney together are one and the same transaction. The accountant claims that he made the sale hereinafter mentioned of the 265 acres of land aforesaid, under the said contract and power of attorney, and that he is liable to account only to the estate for the $7000 therein mentioned. But t the auditor is of opinion that this claim of the administrator is groundless for the following, reasons among others: Because neither L. Gr. Henry nor Lois Henry, the minor children, were parties to the contract and power of attorney, nor had they any guardian or other person competent to bind them as parties thereto. Nor did the widow, Eliza Henry, or Betsey Baker or James Henry, by the said contract and power of attorney, assume to act for the said minor children, but for their respective interests alone. Nor was there at any time any person competent to ratify any such arrangement for or on behalf of such minor children.
    “ The auditor is also of the opinion that the contract and power of attorney was not at the time of the consummation of the sale hereinafter mentioned operative to bind the interests of the parties who signed it for the following reasons: First, the said contract and power of attorney manifestly were based upon the supposition that Parshall was to make private sale of the interests of Eliza Henry, Betsey Baker and James Henry, and no sale ever was made by Parshall under the power of attorney or the contract. The evidence shows that at the time Parshall commenced negotiating the sale to Snedeker, and after the making of the contract and power of attorney, he had a negotiation with other parties for a private sale, but that was never consummated. And it may have been with reference to such expected sale that the power of 'attorney was given and contract executed.
    “But second, whether it was or not, by the express terms of these papers they were to be null and void unless the sum of $7000 should be paid to said Eliza, Betsey and James by the 1st day of July, A. D. 1864. And it is not pretended that any sum of money was paid to them or either of them until long after-wards. Third, Parshall himself does not appear to have regarded this contract and power of attorney as a subsisting agreement. When he files his administration account he does not charge himself with, or make mention of the $7000 which he was clearly bound to charge himself with, so far at least as the minor children were concerned, even if the claim he sets up as to those of full age who signed the papers was correct. Fourth, there is no evidence that Eliza Plenry, Betsey Baker or James Henry, after the 1st of July 1864 did, either expressly or by implication, extend the time for the sale under the power of attorney and contract. Fifth, the receipts for moneys paid to Eliza Henry and Betsey Baker and J. L. Grandin, hereto attached, afford to the mind of the auditor no evidence from which it can be inferred that the parties intended thereby to revive the agreement and power of attorney of the 7th of April, A. D. 1864. On the contrary the receipts upon their face bear testimony that when they were written and signed, no such thing was intended by the parties signing them. Nor does the parol evidence afford justification for any such conclusion. And in this connection the auditor calls attention to the receipt signed Betsey Baker-and David Baker, dated October 8th 1864.
    “For the foregoing reasons the auditor rejects the claim of Parsball that he is liable only to account for tbe money specified in tbe contract and power of attorney of tbe 7th April 1864, and comes to tbe conclusion that Parsball, tbe accountant, is legally chargeable in bis administration account with all tbe funds received by him from tbe sale of tbe land hereinafter set forth. * * * Tbe general exception which affects tbe whole case, and upon which tbe others mainly binge is this, viz., that Parsball, tbe administrator, has not accounted for tbe proportionate share of tbe $18,000 which rightfully belongs to tbe estate; the auditor reports that, in bis opinion, this exception is well taken, and that Parsball, tbe administrator, is legally chargeable, and should account to tbe estate of R. H. Henry for tbe proceeds received from tbe sale of tbe Henry farm of 265 acres, tbe Cleland land of 63 aeres, and tbe refinery in tbe proportion that tbe Henry land, tbe Cleland land, and tbe refinery respectively bear to tbe whole proceeds received by Parsball from tbe sale.
    “ Tbe auditor was and is,well acquainted with tbe refinery, and from tbe evidence be thinks a fair price therefor, taking tbe weight of the testimony, would be $3500, and be fixes that amount of its value, leaving tbe amount received from the two pieces of land $14,500.
    “ As to tbe relative value of these lands, * * * tbe testimony'is so uniform and general that tbe two pieces were of tbe same value, acre for acre, that tbe auditor accepts that as tbe basis of value. This would give to the Cleland piece tbe sum of $2785.71, and leave, after deducting that amount, and tbe $3500 for tbe refinery, tbe sum of $11,714.93 as tbe proper proportion received by Parsball from the Henry farm, and for wbich be is accountable.
    “ Parsball took tbe responsibility as trustee of tbe estate of R. H. Henry, as well as for himself, to take in lieu of $2000 cash 1000 shares of tbe stock of tbe New York and Allegheny Oil Company, nominally representing $5000. This specific 1000 shares seem not to have been kept distinct from other stocks to quite a large amount owned by Parsball in tbe same company, be, as tbe evidence shows, buying and selling tbe stock of tbe company quite extensively, and all tbe time owner of a much larger amount than tbe 1000 shares aforesaid.
    “ Tbe 1000 shares of tbe stock for a time after tbe sale bad not much value, but afterwards it advanced to about four dollars per share, at which price Parsball could have disposed of them.
    “ A fair average valuation of the. stock, tbe auditor thinks, would be about two dollars and fifty cents per share, or, if Parsball still bolds tbe same, be is still a stockholder to a much larger amount than the 1000 shares, he may be obliged to account to tbe estate for tbe proportionate amount of all dividends received by him from tbe same, which dividends the auditor finds amounted to $2500 up to July 1867. Whether any dividends have been received by Parshall from this 1000 shares since July 1867 does not appear, nor does Parshall make any statement of the profits received by him from the stock; and it may here be stated that Parshall does not at any time before or after exceptions filed to his account, appear to have rendered any statement or information to the parties interested of how much he had received for the estate. The history of the facts attending the entire transaction of the sale of the 265 acre piece of land, the amount received by Parshall therefrom, and the details of the •transaction were not voluntarily given by Parshall, but were drawn out by testimony, depositions, &c., taken by the exceptants to the account, and it seems to the auditor that Parshall in his suppression .of the facts, or his silence in regard to them, has not discharged his duty to his cestui que trusts. He remained silent as to what he received from the Henry tract. He mingled the property of the estate of Henry with his own, and sold the whole for a gross sum, thereby disposing of sixty-three acres of his own lands, not treated by the purchasers or Parshall as valuable, and thereby disposing of a refinery which had not been in use for a considerable time; he takes stock in his own name in lieu of cash; he receives dividends thereon, and appropriates them to his own use; and he refuses to account for and denies his liability to account to the estate for the moneys received from Snedeker, and for the stock and dividends thereon.
    “For these, among other reasons, the auditor is of opinion that the accountant is not entitled to any compensation for his services as connected with the estate; and further, that he is chargeable with interest on the balance in his hands, as hereinafter stated, the interest to commence one year from February 10th 1864, the time letters of administration were taken by him, he only filing an account after citation, and then only an imperfect one.
    “But the auditor does not consider, with the counsel for the exceptants, that the administrator should be held rigidly for the highest market value of the stock while he held it, nor for the dividends derived from the stock. It was not an investment, proper, of trust-funds by a trustee in stocks or loans as a venture, but the closing out of an advantageous sale of property. Had the stock been a total loss, he would still have been liable to the estate for the amount for which he took it, viz. two thousand dollars, and hence the auditor thinks he should not be chargeable with a larger sum than two thousand dollars on account of the stock taken by him.” * * *
    The auditor stated an account on the principles of his report, as follows:—
    “ The whole amount received by Parshall from J. W. Snedeker proceeds of the Henry two hundred and sixty-five acres and the Cleland piece of sixty-three acres and the refinery.
    “ Cash, ....... $16,000.00
    “One thousand shares stock in New York and Allegheny Oil Company in lieu of cash, . 2000.00
    $18,000.00
    “ From which deduct refinery, . $8500.00
    “ Proportionate value Cleland piece, 2785.07 6,285.07
    $11,714.93
    Dr.
    “ Sept. 1864. To proceeds of sale of real estate, as above, $11,714.93
    To amount of inventory of personal property, 70.00
    $11,784.93
    Or.
    “ By amount of his account filed, less $80 paid James Henry, and $40 paid to L. Gr. Henry, which items are carried to distribution account, .... $184.23
    “ By amount paid creditors in fi. fa. Grandin v. Henry’s administrator, 1,447.01
    $1,631.24
    “Balance in hands of the administrator from • about last of September 1864 .' . 10,153.69
    $11,784.93”
    The auditor stated also a distribution account, first deducting for expenses of the audit $153.69; leavingfor distribution $10,000; awarding to the widow during life and after her death to the heirs of the decedent (one-third), .... $3333.33
    To James Henry, $1666.66 less $880.00 . 786.66
    To Liza Baker, “ “ 800.00 . 866.66
    To L. G. “ “ 840.00 . 826.67
    To Lois Henry dee’d, “ “ 800.00 . . 866.66
    The administrator filed exceptions :—
    2. The auditor has disregarded the evidence as to the value of the refinery, and found its value on his own knowledge to be $3500.
    5, The proper basis of the calculation is, that each item of the property sold must be taken at its actual value as proven at the time of the sale, and if sold as a whole for more than the actual value, the excess is to be added to each item in proportion to its actual value as proven, and not to the Henry and Cleland pieces only, to the exclusion of the refinery, as the auditor has done.
    9. James Henry filed no exception to the account, and, therefore, is no party to this proceeding, and not entitled to any portion of the funds.
    The widow and heirs filed the following exceptions:—
    1. That the conclusion of the auditor that the fair average value of thé stock of the New York and Allegheny Oil Company, which was received by the accountant in lieu of $2000 cash, was only $2.50 per share, is not well drawn from the evidence, which shows that a fair average value was at least four dollars per share.
    2. That the auditor should have charged the accountant, under the facts disclosed by the evidence, with the highest price for which the stock could at any time have been sold, which was at least five dollars per share.
    3. That the auditor, under the facts disclosed by the evidence, should also have charged the accountant with the dividends on the stock received by Parshall up to July 1867, amounting to the sum of $2500; and should, also, have charged him with a sum sufficient to cover any dividends he may have since that time received down to the time of the audit.
    4. That under the facts as disclosed by the evidence, the auditor should have charged the accountant with interest from September 1864, the time he received the money.
    The court (Vincent, J.) decided that the administrator should be charged with the stock at $4.75 per share, and directed that on that account the sum of $2750 should be added to the balance found against him by the auditor. The record entries are as follows :—
    “ February 12th 1870, exceptions of accountant overruled, auditor’s report confirmed, and administrator surcharged with $2750. Decree of distribution made, and same day execution awarded.
    “February 16th 1870, the judge, no court being in session, filed a farther decree — that accountant pay all the costs not provided in for the report of the auditor.”
    The administrator appealed to the Supreme Court and in a number of specifications assigned the decree for error.

      L. L. Wetmore and R. Brown, for appellants
    Time was not of the essence of the contract between Parshall and heirs: Decamp v. Feay, 5 S. & R. 323; Haverstick v. Erie Gas Company, 5 Casey 254. The parties entitled under the contract received the amount due them respectively under the contract: this was a waiver; Shaw v. Turnpike Company, 2 Penna. R. 454. The administrator had a right to purchase at the sheriff’s sale: Fisk v. Sarber, 6 W. & S. 27; Springer’s Estate, 1 P. F. Smith 342; Moore’s Appeal, 10 Barr 438; Fisher’s Appeal, 10 Casey 29. The administrator is answerable for negligence, only when it amounts to wilful misconduct: Cassel & Spayd’s Case, 3 Watts 443; Lamb’s Appeal, 8 P. F. Smith 142; Lukens’s Appeal, 11 Casey 356; Swartswalter’s Account, 4 Watts 77; McCahan’s Appeal, 7 Barr 57; Stehman’s Appeal, 5 Barr 413. An administration account settles nothing but the basis on which distribution should be made: Ake’s Appeal, 9 Harris 320.

      W. D. Brown, for appellees.
    The auditor’s findings of fact are conclusive, there being no flagrant mistake: Miller’s Appeal, 6 Casey 478; Riddle’s Estate, 7 Harris 431; Mengas’s Appeal, Id. 221. Accepting part of the proceeds of sale does not estop from claiming the balance: Rosenberger’s Appeal, 2 Casey 67. The contract was not binding until the whole $7000 should he paid; there was till then no consideration: Bean v. Burbanks, 4 Shipley 458; Tucker v. Wood, 12 Johns. R. 190; Burnet v. Biscoe, 4 Id. 235; Winchel v. Latham, 6 Cowen 690; Hartley v. McAnulty, 4 Yeates 95. The contract was not binding because of the confidential relation in which Parshall stood to the other parties: Chorpenning’s Appeal, 8 Casey 315; Wallington’s Estate, 1 Ash. 307; Diller v. Brubacker, 2 P. F. Smith 504; Fisk v. Sarber, 6 W. & S. 28; Hall’s Appeal, 4 Wright 409; Miller’s Appeal, 6 Casey 478; Schoch’s Appeal, 9 Id. 351. Compensation is paid only for faithful service: Swartswalter’s Account, 4 Watts 77; McCahan’s Appeal, 7 Barr 57; Wistar’s Appeal, 4 P. F. Smith 60; Lamb’s Appeal, 8 Id. 142.
    An administrator must show what has become of the funds of the estate; unless he does so the legal conclusion is that he has used them, and hence liable for interest: Fox v. Wilcox, 1 Binn. 194; Estate of Merrick, 1 Ash. 305; Lukin’s Appeal, 7 W. & S. 48. Every intendment is against a trustee who keeps imperfect accounts or none at all': Sandis v. Scott, 8 Casey 495; Stehman’s Appeal, 5 Barr 413; Robinett’s Appeal, 12 Casey 174; Holman’s Appeal, 12 Harris 174.
   The opinion of the court was delivered, May 5th 1870, by

Sharswood, J.

A careful examination of the evidence attached to this record has not satisfied us that any plain mistake was committed by the auditor and the court below in the conclusions of fact at which they arrived. The mode suggested in the argument of the counsel of the appellant for apportioning the amount produced by the sale of the three items of property — the farm belonging to the heirs of Henry — and the Cleland tract and refinery belonging to the accountant, — which he sold together, is certainly ingenious, but there is nothing in the testimony to support it. It is very clear that the high price of the whole was obtained because of its being oil territory, and that the Henry farm in that respect was by far the most valuable, and without it there probably could have been no sale of the rest. The refinery of course was entirely independent, and the auditor arrived at the value of that not on his own knowledge, but as he states from the weight of the testimony. The fact which he mentions that he was well acquainted with it certainly did not disqualify him from forming a correct judgment. The accountant has no reason to complain of the report in this particular.

We concur with the auditor and the court in thinking that under the circumstances the appellant was liable to account for the full amount of what he received from the sale of the real estate of the decedent. The agreement of April 7th 1864 certainly did not bind the interest of the minors, who were not parties to it; but looking at the subject-matter — a subject of speculation in an excited market — we think that time was made of the essence of the contract. This is strongly confirmed by the letter of attorney of the same date to the appellant to sell. It is not easy to see for what pui’pose that power was given, if the intention was an absolute and unconditional sale in the ordinary way. The consideration was to be paid on or before July 1st 1864, otherwise the contract was to be void and of no effect. Construing these two papers together, the agreement seems to have been that if $7000 were paid on or before the time stipulated,- Parshall was to be the owner; but if not, then any sale made by him under the power was to be for the benefit of the heirs. It appears that at the time the contract was made Parshall had agreed that a purchaser should have the refusal of the property. At least he stated to Snedeker in May or June that he was under such an arrangement, and it certainly was incumbent on him to have produced that party, and shown when and for what price he had agreed. It is very doubtful whether a court of equity would have enforced the contract against those who signed it. Parshall stood in a relation of confidence towards them which made it necessary for him to show affirmatively that his conduct in the transaction had been perfectly fair and open, and that the demand for the property in the market was communicated to them. Re that as it may, when he failed to pay or procure an extension of the time on the 1st of July, he was no longer vendee but administrator and agént. When therefore he made the contract with Snedeker, he must be regarded as acting for the estate and the heirs whom he represented. To secure a good title he arranged with the purchaser that there should be a sheriff’s sale under a judgment against the decedent, and that whatever he should be obliged to bid and pay in order to obtain such title should be credited on account of the agreed price. It is very clear that an administrator who takes this course may be rightfully surcharged in his account with the whole sum received by him, just as if that sum had been paid to the sheriff, and the balance after the payment of liens paid to him as administrator. The heirs are not to be turned over to a common-law action against him for the amount. The appellant contends, however, that according to the ruling of this court in Fisk v. Sarber, 6 W. & S. 18, and other cases, he could himself have become the purchaser at the sheriff’s sale under the judgment; but the doctrine of that case must be received with the necessary qualification that the judicial sale has not been brought about by the act or procurement of the trustee. Nothing is clearer than that if a trustee or agent with power to sell makes a private sale, and it is arranged that his vendee shall become the purchaser at a judicial sale which is to follow, he must answer to his cestuis que trust for the amount actually received, and not merely that at which it was bid off. It would not have altered the case if Parshall himself had bought at the sheriff’s sale and taken a deed to himself, if it could be shown that he had a previous contract under which a much larger price was paid for the property. Under the facts as reported by the auditor the sheriff’s sale in this case was resorted to simply to make a title to the purchaser under the contract, which had been before privately made by the appellant. Nor do we think that the heirs were estopped or concluded by their receipts. In order to make them available for such a purpose, it was incumbent on the appellant to have shown that the facts of the case were fully known by or communicated to them. The same remark applies to the paper filed by James Henry in the ejectment suit.

But we think the léarned court below erred in surcharging the appellant with $2750 on account of the stock received by him as part of the purchase-money of the entire property. Even if he is to be held liable for the highest price of that stock at any time after the purchase, it ought to be added to the purchase-money and apportioned as well as the money received in cash. It is to be recollected however that a considerable part of this purchase-money was indubitably Parshall’s own — certainly more than the sum in cash for which this stock was taken. He took the stock in his own name and mixed it with other stock of his own. He never could have pretended to have a right to throw this stock upon the estate or heirs of Henry. As administrator or as agent he had no right to accept it in payment. It was no part of the original agreement that it should be so taken. It was an investment by Parshall of that part of the purchase-money which belonged to himself. It was in effect the same as if he had received the cash, and with it purchased the stock. The auditor therefore, very properly we think, laid this investment out of view, and charged the accountant with the cash for which the stock was received. Ho doubt if the entire purchase-money had belonged to Henry’s estate, he might have been liable for all that he could have made at any time by the sale of the stock. But in a ease so peculiarly circumstanced as this, where a trustee receives an amount in gross to part of which he is clearly entitled in his individual capacity, and accepts in part payment, stock or securities taken in his own name, it is an unequivocal indication that they are received for that part which belongs to himself.

Some other errors have been pointed out which may be corrected in the court below, as the record must be remitted that the account may be resettled according to this opinion. The award to Lois Henry, if she was deceased at the time, is of this character, as well as the order for costs if it was made when the court was not in session. The costs of the audit in the court below ought clearly to be borne by the accountant, but the 'costs of this appeal should be paid from the estate.

Decree reversed and record remitted that a decree may be made in the court below conformable to this opinion.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Lawrence et al. versus Luhr et al.

    1. B. being the owner of warrant 4886, at the request of P., a surveyor, employed him to locate it, by mistake P. located it on 4883 adjoining, and laid out farm lots and roads. P. afterwards, in ignorance of his mistake, bought 4883. B. sold farms on the location, which were settled and improved. P. sold 4883, his vendees knowing of the improvements and seeing others made, but not knowing that they were on 4883. Held, that the vendees were not estopped to claim 4883.
    2. Silence will estop only where it is a fraud; it is different as to positive acts.
    3. Millingar v. Sorg, 5 P. F. Smith 216, s. c. 11 Id. 471, compared and distinguished.
    March 31st 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Pile county: No. 325, to January Term 1870.
    This was an ejectment, brought July 16th 1867, by John J. Lawrence, A. J. Cassatt and Alfred L. Tyler, against Charles Luhr, M. Benzinger, John Eschbach and others, for 511 acres of land, being the eastern half of a tract, No. 4883, warranted in the name of Wilhelm Willink and others. Benzinger and Eschbach were not summoned ; the other defendants were.
    This warrant is bounded on the north by No. 4882, and on the south by No. 4886, on the east by the district line.
    The controversy arose by reason of the location of 4886 — by Hiram Payne, a surveyor — on 4883, and the question was whether under the circumstances in the case the plaintiffs were estopped from claiming the land in dispute. The location was made in 1845.
    On the 24th of September 1846, Payne became the owner of the tract in dispute in the different portions and at the dates following: — September 24th 1846, 209 acres; January 3d 1848, 143 acres; September 1st 1848,159 acres. On the 17th of June 1852, he conveyed the undivided half of the 511 acres to New-ell Matson, and on the 17th of April 1853, he conveyed the other half to Matson. On the 18th of July 1865, Matson conveyed nineteen-twentieths of the tract to Lawrence and Cassatt; and on the 8th of January 1866, he conveyed the remaining twentieth to Tyler.
    On the trial, August 6th 1869, before Johnson, P. J., the plaintiffs gave their title in evidence as above, and rested.
    The defendants then proved that on the 22d of February 1845, Benzinger and Esehbach, then and since residing in Baltimore, purchased No. 4886 and others of the Willink warrants from Thomas P. Stryker.
    They read the deposition of Benzinger, who testified that when he purchased the warrant he was. ignorant of the location of the land, except that it adjoined land on the east, which he had purchased of the United States Land Company; in May or June 1845, he was in St. Mary’s, Elk county; Payne called on him, and said he had been agent for the Stryker lands, was a surveyor, and desired to do witness’s surveying; witness showed Payne a map of the Land Company’s tracts; Payne said he could locate the Stryker lands, he had papers and a sketch of them; Payne commenced work in June, and three or four days afterwards came to St. Mary’s, and said to witness that he had found “ the maple corner,” and would have no difficulty in locating the lands. Witness always acted on the location of Payne; roads were laid out on 4886 with the others; they were subdivided into farm lots find sold according to Payne’s location. In September 1846 the witness and Esehbach went with Payne to the maple corner, and whilst standing on high ground Payne said, “ this is the bugbear in the way, of the Sunbury and Erie Railroad; he had bought lands in that vicinity, which he thought we ought to have;” they were located on the north of those he had located for us; 4883 was one of the numbers. Witness said they had land enough. Witness on cross-examination testified, that they never owned or pretended 'to own 4883; Payne used his own papers and maps. Eschbach’s deposition was read: he testified that he relied entirely on Payne’s ability to survey and locate; Payne professed to be fully acquainted with the corners, courses, &c.; in subdividing the tract and selling fanns they acted on the location made by Payne.
    Ignatius Garner, one of the defendants, testified: Payne claimed the land north of the defendants; he said it was the eastern half of 4882; in 1846, 1847 or 1848, he wanted to sell his land to Benzinger and Eschbach. Witness was with'Payne and Eschbach at that time; there were settlers then on the lands; the improvements were commencing, not many made. The defendant gave evidence of the purchase by them and their predecessors, after Payne’s survey and purchase of parcels of the land in dispute as of No. 4886; the first of the deeds being in 1849, and extending to 1860; and that they settled on them and improved them; that these parcels were within the location of Payne, but were in fact on 4883; that they were shown by Payne to Garner, the agent of Benzinger and Eschbach, with the subdivisions and roads as laid out by him.
    The deposition of Payne was read by the defendants ; he said: he first called the attention of Benzinger to the Stryker lands, including 4886, and sent him a rough draft. After the purchase by Benzinger witness surveyed for him, commencing June 27th 1845; at the time of his survey no. part of 4886 or 4883 was improved; the county was an unbroken wilderness. Witness testified that in his opinion “ then and now,” his location of 4886 was correct; at the date of his sale of the land in dispute, there were no subdivision lines or improvements on it; witness had no hand in making the final contract with Benzinger; the sale was made to him through agencies employed by witnéss; he claimed commissions from Stryker for effecting the sale. On cross-examination he testified that he gave no encouragement to Benzinger and Eschbach to purchase the land; he did not know what land the defendants occupied; Payne resided in Waverley, New York; Matson at one time in Owego, New York, and afterwards and up to the time of trial in Chicago.
    Judge Johnson, after stating the paper titles of the parties respectively and the facts in evidence, charged:—
    * * * “ There is no evidence that the present plaintiffs had any knowledge either of the correct location of the land they purchased, or of the mistake that Payne had committed in locating the Benzinger and Eschbach tract 4886, or of the delusion under which they and their vendees had labored. Nor that Matson had any such knowledge when he bought, or afterwards while he owned from 1853 to 1865, or actual knowledge of its location.
    “ But the defendants, or most of them, were in the actual occupancy of their respective lots when Matson purchased, and of course when the present plaintiffs bought in 1865, and possession was notice to all persons of whatever title the parties in possession had, and of the claim under which they occupied, whether legal or equitable.
    “ The duty of a purchaser of land is to go to the party in possession and inquire of him by what title or right he thus occupies there. This was necessary to enable the plaintiffs to protect themselves as innocent purchasers against a secret equity. Not having taken this precaution, they must be held to have purchased at the risk of a presumed knowledge of all the equities to which the defendants were entitled as against Payne.
    “ [What are those equities? Were it not for the recent ruling of the Supreme Court in the case of Millingar v. Sorg, that went from this county, I should have answered — nothing. In that case the rule of estoppel is carried further, or rather applied to a different class of cases from those in which it was formerly considered applicable. This case requires a still further extension of the rule, but which we think is required by the same considerations of equity and supported by the same reasons.] Were Benzinger & Eschbach, the defendants in this case, without improvements made, they would be entitled to no equities either against Payne or his vendees.
    “ They bought before Payne had anything to do with, or say to them. Had Payne been a stranger to the land, and been employed merely as a surveyor to locate and subdivide this with other tracts, the rule of estoppel would not apply. In that case Payne would have sustained no confidential relation to them. But the evidence shows, if you believe it, that Payne sought the position of surveyor, on the ground of older and superior knowledge of the lands and their location, and his consequent superior qualification to locate them aright. In that way he gained their confidence, secured the employment, and lulled their vigilance to repose. Otherwise their own attention to the question of location, or the skill of some other surveyor, would probably have avoided the fatal mistake made in the location. Because of that confidence they and those to whom they sold were induced to occupy the wrong land. Still the duty of vigilance on the part of Ben-zinger & Eschbach, and the fact that they were not induced to-expend money or labor on the land by their misplaced confidence, would not estop Payne or his grantees from claiming the land by a title subsequently acquired in the absence of actual fraud. Had Payne been aware when he acquired the title to 4883, that it covered the land he had surveyed for Benzinger & Eschbach, it would have been a fraud in him to purchase to defeat their possession. But there is no reason to suppose that he knew it. But as to the settlers who had bought and improved on the strength of his location, and were permitted to expend years of labor thereon, with the knowledge of Payne and his vendees, the case is different. They were innocent of any negligence in regard to the location of their respective lots. They took them as laid out and marked on the ground, expended their money and labor in the purchase and improvement thereof. Their possession and occupancy was notice to Payne, and all subsequent owners under his title, that they were claiming adversely to the Payne title. It then became the duty of Payne and his grantees to inquire what their title was. Then if it turned out that they were under a delusion created by Payne, they should have been undeceived.
    “ The misfortune was, they all labored under the same mistake. Who then is to suffer ? The natural answer is, he whose negligence has caused the difficulty. But that does not clearly designate the parties. They were all negligent in not ascertaining with certainty where their land was. [So far as actual settlements were made by purchasers from Benzinger & Eschbach, labor and money expended by them, and valuable improvements made, we think equity will protect them from the intrusion of the plaintiff, whose duty it was to have advised the settlers of their mistake, and forewarned them not to improve and spend their money.]
    “As to that portion of the land still owned by Benzinger & Eschbach, the parties being in pari delicto, we think the rule would be different. But as they have not been served with the writ in this case,- and no appearance entered for them, their rights in the premises are not involved in this trial.” * * *
    . The verdict was for the defendants. The plaintiff took out a writ of error, and assigned for error the parts of the charge enclosed in brackets.

      H. Souther and R. Brown, for plaintiffs in error.

      J. G. Hall, for defendant in error,
    referred to Millingar v. Sorg, 5 P. F. Smith 215; s. c. 11 Id. 471.
   The opinion of the court was delivered, May 5th 1870, by

Agnew, J.

This is a hard case, and the learned judge below probably thought so, when he admitted that it required an extension of the rule in Millingar v. Sorg, 5 P. F. Smith 215, upon which he professed to found his decision. But hard cases make bad precedents. There is a striking difference between that case and this in several respects. In that case when Hiram Payne induced Messrs. Benzinger and Eschbach to purchase No. 4884, and located it on No. 4881, he was himself the owner of 4881. Here he did not induce them to buy 4886, and was not the owner of 4883 when he located 4886 upon it. There he had a title to be estopped, and did positive acts to induce others to purchase his own land. Here he simply made a mistake as a hired surveyor in the location of a tract owned by one party, upon that owned by another ; and the simple question is whether such a' mistake made in a survey of wild land stamps a trust upon the title to No. 4883 when afterwards acquired by him, inhering in it, and following the land into the hands of innocent purchasers. It is a conceded fact that when Payne located No. 4886 on 4883 in the year 1845 he was ignorant of his mistake, and continued ignorant of it when he bought 4883, and when he sold that tract to Newell Matson. All the parties were wholly ignorant of the true state of the case. The learned judge, relying on the rule in equity that he should suffer whose negligence has caused the injury, held that the purchasers of 4886 from Benzinger and Eschbaeh having expended money and labor and made valuable improvements, would be.pro tected in equity from the intrusion of the plaintiffs, whose duty it was (he said) to have advised them of their mistake and forewarned them not to improve and spend their money. But the question arises how could they advise of a mistake of‘ which they themselves were ignorant. Silence will postpone only where silence is a fraud: Hill v. Epley, 7 Casey 334. Positive acts it is true stand on a different ground: Beauplaud v. McKeen, 4 Casey 131. But neither Matson nor the plaintiffs, so far as it appears in evidence, did anything to deceive or mislead the purchasers from Benzinger & Eschbach. The whole case therefore turns upon the question how far the mistake of Payne in surveying 4883 as 4886, when he had no title in 4883, and before the purchase of the settlers under Benzinger & Eschbaeh, clings to the title of 4883 after he had bought it, and followed it into the hands of innocent purchasers from him. They bought in ignorance of his mistake, and unless his previous personal act inheres in the title and follows the land, the plaintiffs cannot be implicated in an estoppel. Newell Matson, the vendee of Payne of the east half of No. 4883, was a resident of the state of New York, and afterwards removed to Chicago, Illinois. He did nothing to mislead the settlers on the land, by acts tending to perpetuate the mistake of Payne, as was done by Morris the vendee of Payne of 4881 in the case of Millingar v. Sorg. There Morris went on the ground before he purchased, saw the settlers’ improvements on 4881, and passing through that tract went upon 4880 which he purchased as 4881. He continued for years to regard 4880 as his own tract 4881, laying no claim to the latter; which the settlers were holding and improving as 4884. His silence, connected with these acts of recognition, was of a kind tending to* perpetuate Payne’s mistake in locating 4884 on 4881, and locating 4881 on 4880. Though negative in their character, these acts-were operative in their effect in lulling the settlers on 4881. into, security. Here, however, no such “ operative quietude,” as it was termed, in Millingar v. Sorg, existed to mislead the purchasers of 4886 to suppose that the owners of 4883 recognised their title to the land on which they were located. The case is simply one of mistake for which the plaintiffs are not responsible. The case is no doubt a very hard one, but it would carry tha- doctrine of estoppel beyond its just equitable limits to hold that it applies here.

Judgment reversed, and a venire facias de novo awarded.


author: Thompson, C. J.

text:
    Bennett’s Branch Improvement Co.’s Appeal. Winslow & Crowell’s Appeal. Woolverton & Tinsman’s Appeal. Quinn & Co.’s Appeal. Fessler’s Appeal.
    1. An act created a corporation with authority to “ clear out, improve and use Bennett’s Branch” (a highway), to use dams erected and “ erect new dams,” and “ may use all and each of said dams and the waters of said stream in the floating of saw-logs down the same, and generally shall and may have the right to straighten, deepen, crib and widen the channel of the stream aforesaid in such manner as they see fit for the purposes aforesaid.” It fixed a rate of tolls for those using the stream, &c. Held, that the improvement was for the use of the public as a highway and the act was constitutional.
    2. Discriminating between parties as to the use of the stream would be a violation of the charter.
    3. A misuse of the privileges of the company for private purposes would not turn it into a private corporation.
    4. The company having authority to improve the stream, would not lose its franchises because the improvement was not in fact beneficial.
    5. The right to impose toll as a consideration for an enterprise for the benefit of the public, is a right of government.
    6. Individual inconveniences must yield to the wants of the whole public,
    7. The act authorized the taking of toll for timber floated “ across” the stream, this did not mean only from one side to the other.
    8. An act authorized the company in default of payment of toll “ to seize, and sell at public sale, at any point they may select within this Commonwealth, enough of the logs, so floated, to pay the tolls due," &c. Timber owners floated logs through the stream into a boom without paying the toll. The logs were mingled in the boom with an immense amount of other logs of the owners and others. The company advertised a portion of them to be sold for tolls at a place distant from the boom where they could not be brought for inspection. Held, that the company were properly restrained from making such sale.
    9. Klopp v. Witmoyer, 7 Wright 219, recognised.
    March 31st 1870.
    Before Thompson, C. J., Agnew, Shakswood and Williams, JJ. Read, J., at Nisi Prius.
    Appeals from the decrees of the Court of Common Pleas of Lycoming county: In Equity: No. 308, 330, 331, 371, to January Term 1870.
    The cases in which these appeals were taken were upon similar pleadings and facts; that in which the opinion of the Supreme Court was delivered was a bill filed August 19th 1867, by Robert M. Winslow and Amelus Gr. Crowell against The Bennett’s Branch Improvement Company and B. C. Bowman, President, and John Gr. Beading, Treasurer of the Company. The other bills were by Woolverton & Tinsman, Quinn & Co. and Philip Gr. Fessler.
    The Sinnemahoning creek and Bennett’s Branch of the Sinnemahoning are both public highways.
    On the 20th of April 1864, a.law was passed to incorporate the Bennett’s Branch Improvement Company.
    The act gave the corporation power “ to clear out, improve and use all and every part- of Bennett’s Branch of the Sinnemahoning creek, in the counties of Clearfield and Elk, from the mouth of the large run known as Bundy’s run, above the saw-mill of Stephen Bundy, down the same to the mill known as Lindemuth’s mill, below Caledonia, and they shall have the right to use all dams now erected by any of the members of said corporation upon said stream, and to erect new dams in such manner, and at such points as they may deem proper, and shall and may use all and each of said dams and the waters of said stream in the floating of saw-logs down the same, and generally shall and may have the right to straighten, deepen, crib and widen the channel of the stream aforesaid in such manner as they see fit for the purposes aforesaid.” The act further provided, that the capital should be used in improving the stream and in paying expenses already incurred in building dams and improving the navigation. Portions of an act incorporating the Anderson’s Creek Navigation Company, incorporated March 28th 1859, were made applicable to the Bennett’s Branch. Those material were, that the company might demand from persons “ using the stream for the purpose of running or floating lumber across its waters,” twenty cents per thousand, which might be required in advance or security, and persons using the stream without performing these requisitions should be considered trespassers! The Bennett’s Branch Company’s charter further provided, that the tolls, if -no demand should be made for payment in advance, should be paid in ten days after the lumber should be started in the stream, and in default of payment the logs should be subject to a specific lien for the tolls, and the lien might be enforced by retaining possession of them or by replevin wherever they might be found. An Act of March 22d 1865, authorized the company to improve the remainder of Bennett’s Branch from Lindemuth’s mill to its mouth, with the same rights as to the remainder as were conferred in relation to the original portion. A further supplement of April 9th 1867 authorized the company on a failure to pay tolls “ to seize, and sell at public sale, at any point they may select within this Commonwealth, enough of the logs, so floated, to pay the tolls due, with penalties incurred, and costs of so doing, and, after so doing, they shall return the surplus, if any, to the owner of said logs: Provided,
      That before such sale shall be made, public notice thereof shall be given by three written or printed notices.”
    The bill set out:
    1. That the plaintiffs owned a tract of 1000 acres of timber land on Trout run, an affluent of Bennett’s Branch, and had caused their logs to float down the run into Bennett’s Branch and the Susquehanna river to the booms at Williamsport and Lock Haven.
    2. That in the spring of 1867, before April 9th, they floated through Bennett’s Branch, &c., to the said booms about 1,600,000 feet of logs, marked “E L. K.,” which were yet in the possession of the boom companies.
    3. That there was yet on the tract a large number of timber trees, whose value was in a great measure dependent upon the plaintiffs’ right to float the logs upon said streams without paying any toll, &c., and it was their intention as their business might require, &c., to cut logs from the tract to be put into Bennett’s Branch and float them to the said booms.
    The bill then set out the various Acts of Assembly and the claims of the defendants under them.
    11. That Reading, the treasurer of the company, about the 5th of August 1867, demanded from the plaintiffs $150 for using Bennett’s Branch in floating the above-mentioned 1,500,000 feet of lumber, which they refused to pay; and the defendants had threatened that they would seize part of the logs and sell them to pay the tolls; and had advertised that there would be exposed to public vendue 35,000 feet of the plaintiffs’ logs at Linden station, on the Philadelphia and Erie Railroad, on the 4th of September 1867, stating they had been seized for tolls due by plaintiffs “ in running and floating their lumber acrosS the waters” of Bennett’s Branch.
    12. That none of the logs had actually been seized, but they were still in the booms and are at different distances varying from a quarter of a mile to three miles from Linden station, and cannot be taken to Linden station without great expense; that it was not the intention of the defendants to take the logs to the station to be sold in the presence of the bidders, but to sell them to be taken from the large lot belonging to the plaintiffs and to others in the booms, and to sell them at a distance from the property, where the average quality could not be ascertained by the persons present.
    13. That the defendants claimed to have toll from all logs which the plaintiffs may float on Bennett’s Branch, and threatened if the toll should not be paid, to seize the logs wherever found and sell them.
    14. That the defendants were not bound to remove obstructions from Bennett’s Branch, or to make any specific improvement in it, to facilitate the passage of lumber; that they had not in fact made any permanent improvement in it, and that the plaintiffs were not benefited in floating their logs, by any expenditure of the defendants on the stream. \
    They prayed that the court would declare the provisions of the act to be unconstitutional, so far as they authorized the defendants to take toll on the plaintiffs’ logs or any other part of their property ; or to give the defendants a lien on the property; or to decide for themselves when and how much toll might be due and what penalties might be incurred, and to execute the judgments in their own favor by seizing and selling the property wherever found without appeal; also that the defendants might be restrained from seizing, taking possession of' or selling any of the said white-pine saw-logs of the plaintiffs, on the fourth day of September next, at Linden station, or at any other time or place whatever ; and also from seizing, taking possession of or in any manner meddling with any lumber which the plaintiffs may hereafter float or drive upon and along Bennett’s Branch of the Sinnemahoning creek, or any part thereof, on any pretence of tolls being due the said Bennett’s Branch Improvement Company, for or on account of the passage of the said lumber on the waters of the said stream, or for or on account of any pretended penalties incurred by the non-payment of such tolls, or for or on account of any pretended lien upon any of the said lumber for such tolls or penalties; and for further relief.
    On the 31st of August 1867, a preliminary injunction was awarded.
    On 23d of September 1867, the defendants filed their answer admitting some of the averments of the bill and denying others. On the 16th of October, a general replication was filed and H. H. Cummin, Esq., appointed examiner. On the coming in of his report, April 20th 1868, he was appointed master. The master found the material facts substantially as set out in the bill. He also reported: “ that a person standing at Linden station could get no accurate idea of the logs in the Susquehanna Boom and could not distinguish their marks nor tell a pine from a hemlock log..
    “ That the said defendants have a right to demand of the plaintiffs the sum of ten cents per thousand feet, board measure, for all logs that they shall put into Bennett’s Branch of the Sinnemahoning creek at the mouth of Trout run, and if such claim is not paid, and if the Act of Assembly of April 9th 1867, is not in violation of the Constitution of the State of Pennsylvania, they may seize the logs wherever they may be found, and sell them at public sale for the tolls claimed and the penalties given by the Act of Assembly aforesaid, togther with the costs of sale.
    “ In the absence of legislative direction how such sale shall be made, other than the words {public sale,’ the master is of opinion that at least the same general rules of policy should govern which regulate the sales of personal property at ‘ public auction’ by a sheriff: ‘ That personal property must be in the power of the sheriff when he sells, and where bidders may inspect it,’ is decided in Klopp v. Witmoyer, 7 Wright 225. If the defendants in the case now before the master are bound by this rule, they have failed in the first requisite, and the second is utterly impracticable. In this case the sale was advertised to take place at the Linden station, on the Philadelphia and Erie Railroad, and the property to be sold is described as ‘thirty-five thousand feet of white-pine lumber, board measure, in the log, in the Susquehanna Boom.’ The evidence discloses that these logs are mixed with perhaps one hundred and fifty million feet of similar logs, the only visible difference being the marks and quality, and are distant from the place of sale from one-fourth of a mile to three miles. A bidder desiring to inspect the property will first discover that it is not at the place of sale, but is in the Susquehanna Boom; if he goes there he will find logs packed to the bottom for miles along the river. By careful examination in walking over the logs he might discover a few logs bearing the mark E.L.K. He might search the boom from the shear to its mouth and not find one-half of the amount advertised; and if he did find the whole amount he would find them in the possession of the Susquehanna Boom Company, and so situated that possession could not be delivered to him if he should become the purchaser. The master is of opinion that the Act of Assembly of April 9th 1867, does not contemplate or authorize any such loose and irregular sale of the goods of a debtor as this case discloses.” * * * He reported that the company since their incorporation had erected a number of “ splash-dams,” cribs and wharves, and had otherwise improved Bennett’s Branch.
    “ The use of a splash-dam is to increase the flow of water in a stream, and where there is but one such dam on a stream this increased flow, or splash-flood, as it is called, is necessarily of short duration. The object of several splash-dams on a stream is that water may be collected and stored away to be used when needed, and to be used not only to increase the volume and force of a splash-flood, but also to make it of longer duration by running the water of one dam into the other. The object of the cribs or wharfing is to keep the floating logs in the channel of the stream by preventing them from running on bars, shallow places or low banks, and from passing out into the inlets and washes along such streams.
    “ That said works have facilitated the floating, generally, of logs upon and along the waters of the said stream, and the cost and risk of such floating has, in some degree, been lessened and diminished, taking into consideration the fact that the business of log-floating has so largely increased on that stream within the last few years.

      “ The plaintiffs ask that the Acts of Assembly of April 20th 1864 and March 22d 1865, in so far as they authorize the corporation, defendants, to charge them ten cents per thousand feet, or any amount whatever, for floating their logs across the waters of the Bennett’s Branch, and giving the said corporation a specific lien on the logs so floated for said tolls, shall be declared in violation of the Constitution of Pennsylvania, and in so doing they take upon themselves the burthen of proving beyond all doubt that they are so.”
    After citing a number of authorities, the master proceeded:—
    “ Bennett’s Branch of Sinnemahoning creek is no less a highway now than it was before the improvements of the corporation, defendant, were put upon it; and the right of the plaintiffs and the public to float logs upon it, without let or hindrance, is the same as it was before the corporation, defendant, was incorporated.

      “ The state, undoubtedly, had authority to improve the navigation on Bennett’s Branch of the Sinnemahoning creek, and she had power to authorize individuals, or create corporations, for that purpose, and give such individuals or corporations the right to exact tolls or charges from the persons using the stream in its improved condition; and, in this respect, the corporation, defendant, does not differ from railroad, turnpike, plank-road, slackwater navigation, and canal companies, whose works, in many instances, are only improvements upon roads or streams of water which were before, public highways either at common law or by statute.
    “ The master is, therefore, of opinion that the Acts of Assembly in question are not in violation of the Constitution of the State of Pennsylvania.
    “ The plaintiffs also ask that the Act of Assembly of April 9th 1867 which authorizes the corporation, defendant, to seize and sell logs floated over the waters of Bennett’s Branch, shall be declared in violation of the Constitution of Pennsylvania. * * *
    “ The master has never heard- questioned the constitutionality of the Act of Assembly of March 16th 1858 which authorizes commission merchants, and factors and all common carriers, or other persons having a lien upon goods, wares and merchandise, for or on account of costs and expenses of carriage or storage, &c., to sell the same, or so much thereof as may be necessary to discharge said lien, at public sale. * * *

      “ The master decidés that the Act of Assembly in question is not in violation of the Constitution of the State of Pennsylvania.
    “ The plaintiffs may sustain great damage unless the defendants are restrained from selling their property in the manner complained of; therefore the masteris of opinion that an injunction should issue to restrain the defendants, their officers, agents and servants, from selling at the Linden station of the Philadelphia and Erie Eailroad, in the county of Lycoming, any of the logs of the plaintiffs in the Susquehanna Boom.”
    The plaintiffs filed'10 exceptions, amongst which were:—
    1. Because the master reports that the works of the corporation, defendant, “have facilitated the floating, generally, of logs upon and along the waters of the said stream” (Bennett’s Branch of the Sinnemahoning creek), and that “ the cost and risk of such floating has, in some degree, been lessened and diminished, taking into consideration the fact that the business of log-floating has so largely increased on that stream within the last few years.”
    4. Because the master has not reported, as the evidence before him establishes, that the' nature and character of the works and alleged improvements of the corporation, defendant, are such as to injure the navigation of and embarrass the floating of logs along the said stream when withholding the water in their dams, and thereby inflict more injury on the public using the said stream for floating logs, but who have not the control of the works or splashes from the dams, than is compensated by any accidental benefits received by taking advantage of splashes made by the company for the use of any of its corporators or favorites.
    6. Because the master has not reported that the Acts of Assembly relating to the corporation, defendant, only grant to them the right to exact tolls for crossing the waters of the said stream and not for floating down it.
    7 and 8. Because the master reported that the several Acts of Assembly are constitutional.
    The defendants filed an exception that the master reported that an injunction should issue restraining them from selling logs at Linden station.
    After the argument of the case and exceptions, the court (Gamble, P. J., delivering the opinion) “ decreed that the special injunction, heretofore granted by this court, restraining the defendants from carrying out the proposed sale at Linden station, on the 4th day of September, A. D. one thousand eight hundred and sixty-seven, be and the same is hereby made perpetual. And that.the Bennett’s Branch Improvement Company, B. C. Bowman, president, and John G. Beading, treasurer, and all other officers, agents and servants of said corporation, be and are hereby restrained from seizing, taking possession of or selling any of the saw-logs of the said plaintiffs, and also from seizing, taking possession of or in any manner meddling with any lumber which the said plaintiffs may hereafter float or drive upon and along the Bennett’s Branch of the Sinnemahoning creek, or any part thereof, for the payment of any claim for tolls or penalties, until the same, if disputed, shall have been established and adjudicated by due course of law. And that the defendants pay the costs of this proceeding.”

      Both parties appealed.
    The plaintiffs assigned for error, that the court did not set aside the report of the master for the reasons assigned in their exceptions, and in not declaring the several Acts of Assembly relating to the defendants to be unconstitutional.
    The defendants assigned the decree of the court for error.

      R. P. Allen, H. W. Watson and J. W. Comly, for plaintiffs.
    The “ splash-dams” without the incorporation were unlawful: Dubois v. Glaub, 2 P. F. Smith 288. There is no express authority in the act to erect “splash-dams,” and it should be construed against the corporation and in favor of the public: Packer v. Sunbury & Erie, 7 Harris 218; Commissioners v. Gas Co., 2 Jones 320. Toll is what is paid for the use of something of a public nature: 2 Bouvier’s Law Dict. (442) 589; Houck on Rivers 168. The government cannot take the property of one to give to another: Pittsburg v. Scott, 1 Barr 314; Sharpless v. Philadelphia, 9 Harris 167; Grim v. Weissenberg, 7 P. F. Smith 433; Musser v. Ferguson Township, 5 Id. 475; Tyson v. Halifax Township, 1 Id. 9; Bonaparte v. Camden & A. R.R., Baldwin Rep. 222; Norman v. Heist, 5 W. & S. 174.

      Armstrong Linn, Maynard, and Muter marks Parker, for defendants.
   The opinion of the court was delivered, May 5th 1870, by

Thompson, C. J.

There are three other cases raising the questions presented in this case, that will be disposed of by our decision in this appeal. There is also an appeal by the company which was argued together with the above, and will also depend on the decision in this case, and will be determined therein.

The matter to which the strength of the arguments of the learned counsel for the appellants in the first three cases was directed, was the constitutionality of the act of incorporation, firstly; and secondly, to the constitutionality of certain provisions in one or more of the supplements to the act of incorporation if the original act should be held constitutional. The first of these questions depends upon whether the company was incorporated to improve the Bennett’s Branch of the Sinnemahoning, for the sole use of the corporation, or for the use of the public as a highway. I regard the question of very easy solution. Indeed the learned master has given a conclusive reason why the improvement authorized by the Acts of 1864 and 1865, must, in the absence of any limitation in the acts, be regarded a public improvement, and that is, that the authority conferred on the company, was to improve by dams and cribs, the natural navigation of what was already by law, a public highway, open and free to everybody who chose to use it as such, and a,s far as capable of being used. There is nothing in these acts of incorporation excluding the public. On the contrary, every provision of the act looks to the use of the improved navigation, by all who choose, on the sole condition of paying toll. The act prescribes the name and style of the corporation, authorizes it to use a common seal, defines the purposes of the corporation and the use of its works, and how it is to be governed; fixes the amount of its capital stock, the par of its shares, cedes to it the right of occupancy of one of its public highways, to be improved in the manner proposed, gives the public the right to subscribe to its stock, by requiring a book for subscriptions to be opened for that purpose at a certain time and place mentioned, and fixes a tariff of tolls to be paid by all persons passing over the waters of the stream, from the various points mentioned, when improved, with logs, lumber, &c. These things are the elements of a corporation designed for the public benefit, and not merely for the benefit of its promoters, excepting only in its earnings. Anybody and everybody may use it on equal terms. Discrimination between parties, as to its usé, would he a violation of its charter. The improvement designed by the act, is beyond doubt, public, and any misuse of the privilege granted, if there be any, does not turn it into a private corporation for private purposes. While comparatively but a few companies of the kind we are considering, exist in this state, many exist in the states north of us, where driving disconnected logs is a more common mode of taking them to places of sale or manufacture, than with us. It seems to me, that such corporations often become a public necessity, in streams not naturally navigable excepting for short seasons, and where individuals are not allowed to improve them 'because of their public character. With the wisdom of such legislation, however, we have nothing to do. We are dealing with a question of power. We are to assume that the legislature had it, in this instance, and this presumption stands. until- disproved. The general power to incorporate improvement companies, is not to be questioned at this day. The hundreds which exist, and have for long years existed, precludes discussion of any such question. The power exists, and why may it not exist in favor of such a company as this ? That has not been shown, and it ought to have been, by those who doubt or deny it. If the purpose be novel but legal, and provisions to suit-its character be consistent, I see not how it can be illegal. That the state might have done all that is authorized by the act, is not disputed, and could not be. If she might, why might she not accept the assistance of citizens to do it, on being permitted to take such tolls as the state should allow to be taken; or which she might herself have taken if she had performed the work'? That she could, will not be disputed. This doctrine is ably discusssed by Black, C . J., in Sharpless v. Philadelphia, 9 Harris 170. Without further elaboration, we concur with the court below that the position taken by the complainants against the acts incorporating this improvement company was not well taken, and was properly overruled.

The exception that the master did not find that the improvements made by the company, were injurious to the natural navigation of the stream, instead of reporting as he did, that they were beneficial to the descending navigation, had nothing to do with any question raised by the bill or answer. It was not charged, that if not beneficial, it ought to suspend the right of the company in the exercise of its franchises. There is no limitation of that kind in the act. The company having authority by law, to improve the. stream in the manner prescribed, for the consideration of taking toll on the lumber and logs floated thereon, would not lose its franchises, because the improvement was in fact not beneficial, there being no such condition prescribed. The legislature determined that question in granting the charter, and all the franchises granted will remain, in the absence of any limitation, until taken away by some direct action for that purpose, legislative or judicial. These remarks apply equally to the fourth and fifth exceptions of the appellants.

The right to impose tolls as a consideration for the completion of an enterprise intended to benefit the public, is a right of government. It is conceded to the promoters, as a compensation for the benefit in contemplation of law, which every individual receives for an improved mode of transit of person or property. Individual complaints avail nothing against the right. These individual inconveniences must yield to the wants of the whole public. In most of these cases of improved navigation by companies, or the state, if not all, individuals have always been found' who would claim to be as well off without such improvements as with them, and yet they are obliged to pass over them with their property, and pay tolls. There is no reason in this for impeaching the validity of the law. This results from the accidency of location, and of this nobody is to blame but the owner, and he must submit to all legal consequences incident thereto.

The exception also that the master should have found that the company was only authorized to take tolls for logs or timber floated “across” the waters of the stream, is somewhat hypercritical. It cannot be held to mean floating or crossing over from side to side of the stream, as the word imports; a thing not needed, or within the purview or purpose of the act. The words are found in the same connection, in the supplement to the act incorporating the Little Anderson Creek Navigation Company, a precisely similar improvement company, and was adopted by the framer of the act incorporating the Bennett’s Branch Improvement Company. The object of this act, as was the Anderson Creek Company, was to improve the descending navigation of the stream, for logs and lumber, and not to improve its crossings with lumber, and this is so said in every part of the act, but in this single instance. We must construe the expression in subordination to the declared purposes of the act, and in accordance with all its provisions, and so the learned master and court construed it, and they could do no otherwise.

These views determine the several appeals of the complainants against them, and they are to be dismissed at their costs.

The company’s appeal will now claim our attention. The court below enjoined the company as prayed, from selling the logs of the complainants, as advertised by it at Linden station, on the 4th day of September 1867, and from ariy future seizure and sale of the logs of the plaintiffs, for the payment of any claim for "tolls and penalties, until the same, if disputed or denied, shall have been established and adjudicated by due course of law.

The injury impending from this alleged attempt to sell logs to compensate tolls due and unpaid and for forfeitures, in the absence of the property, either potentially or in fact, was thus redressed by the perpetual injunction granted in the case, and this we think the court was right in doing. In Klopp v. Witmoyer, 7 Wright 219, it was held that personal property must be in the power of the sheriff when he sells, and where bidders may inspect it. There may be exceptions to the' rule, but nothing appears in this case to bring it within any conceivable exception. Indeed, the master reports that the sale was to be made without the possibility of the logs being presont. They were mixed with an indiscriminate mass of millions of feet of logs, belonging to many and various owners, and that it was not possible by any probable force, that the logs of the complainant could have been selected and taken up the stream to the place of the anticipated sale. The sale advertised was therefore a contemplated sale of lumber, where it could not be inspected by, nor delivered to, the purchaser.

We think the injunction granted was all that the case required. That the defendant should, in the future, be enjoined from using the remedy of the act by seizing and selling logs or lumber without writ or judgment, applies properly to a threatened exercise by the company of the power, and is not so charged in the bill. I regard this as a somewhat doubtful right in view of the clause of the bill of rights, which declares that no one “ shall be deprived of his life, liberty or property, unless by the judgment of his peers, or the law of the land.”

To determine this point now, however, is not required to give the complainants the benefit of their bill. Their property, imperilled by the proposed sale, is relieved effectually by the injunction against selling in the absence of the property, and we do not feel any necessity to determine the question of the future right of the company to seize and sell for tolls, &c., even where the property is present and in view, without writ and judgment. For this case that is not necessary. There are several other companies in this Commonwealth possessing like powers with those in this act of incorporation. Besides, there is the law of common carriers, which authorizes sales of goods for charges, without judgment or writ, and other summary remedies in other cases, which are to some extent at least involved in the constitutional question sought to be raised here, because of similarity of enactment and practice. For the present we will not decide this question, affecting so many interests, but leave it to some future action of parties interested, to bring it distinctly before the court when we can command a full bench.

And now, May 5th 1870, in the first of the above-mentioned cases, viz., Winslow & Crowell’s Appeal v. Bennett’s Branch Improvement Company, No. 508 of August Term 1867, in the Common Pleas of Lycoming county, and the Appeal of Elijah B. England and Jacob Brown v. The Same, No. 599 of the same term; and of George Quinn & Co. v. The Same, No. 510 of the same term; and of Woolverton & Tinsman v. The Same, No. 511 of the same term; and Philip G. Fessler v. The Same, No. 512 of the same term, the decrees of the court below are severally affirmed, and the appeals are dismissed at the costs of the complainants to the several bills.

And the appeal of the Bennett’s Branch Improvement Co. is affirmed as modified hereinafter.

Now, May 5th 1870, this came on to be argued in this court on appeal, and was argued by counsel, and was considered by the court, and it is now ordered, adjudged and decreed that the special injunction granted by the Court of Common Pleas of Lycoming county, in this case, be made perpetual, and that the defendant be perpetually enjoined, its officers and agents, from selling as advertised the logs of the plaintiffs, in their bill mentioned, at Linden station, the logs not being present, and liable to inspection by bidders, or delivery to purchasers; and the defendants are ordered and decreed to pay the costs in the court below and of this appeal. Per Curiam.