author: Knox, J.

text:
    Peters versus Grubb.
    1. In a lease of a furnace and grist and saw mill, the lessor promised and agreed “ to protect” the lessee, &o., “ in the use and enjoyment" of the premises, and “ to warrant and defend the premises to him and them against the claims or interruption or molestation of any person or persons whomsoever, so that the said lessee shall suffer no loss from any defect of title of the lessors to the premises:” Meld, that this was a covenant for quiet enjoyment and also of warranty.
    2. The covenant for quiet enjoyment embraced an adverse claim to the use of the water of the stream made on the part of The Commonwealth, as it would have protected against claims on the part of private persons.

    8. The water of the stream having been taken for the temporary use of the Pennsylvania Oanal by the officers of the Commonwealth, the original entry under its right of eminent domain having been made years prior to the lease in question, the case of Dobbins v. Brown, 2 Jones 75, was not applicable, and such taking was a breach of the covenant for quiet enjoyment.
    4. Parol evidence as to the time when the contest commenced between the Commonwealth and the then owner as to the right to the water, and the’ acts and declarations of the parties in reference thereto, was admissible, in order to aid in the construction of the lease; and it was proper to submit to the jury the question whether the parties to the lease had in view the claim of the state to the use of the stream.
    5. The right to the water was demised by the lease of the furnace and mills, it being necessary to the enjoyment of the estate.
    6. It was not incumbent on the tenants to whom the lessees had assigned the residue of the term and who were in possession when the interruption took place, to show that they were evicted from the premises or wholly deprived of the use of the water by the officers of the Commonwealth; the covenant for quiet enjoyment was broken by a partial deprivation by the lawful act of a paramount claimant, and the assignees were entitled to have the rent apportioned or extinguished according to the extent of their injury.
    Ebbob, to the Common Pleas of l)aupliin county.

    This case, in the Conrt helow, was an action of replevin to August Term, 1850, by Clement B. Grubb and Robert B. Cabeen v. Abraham Peters and Jacob H. Gamber, for 100 tons of pig metal and 1000 tons of iron ore, which had been distrained upon under a warrant executed by Peters and Gamber. The taking was avowed, and it was replied that there was no rent in arrear. Bent to the amount of $800 was claimed.
    The Swatara was declared a public highway in 1771. After-wards, James Hamilton built a grist-mill on the Swatara, near its mouth, on what is now the Christiann Enrnace estate. After the death of Hamilton, about 1830, John Gamber purchased at an Orphans’ Court sale, 20 acres and 116 perches land, and said grist-mill, &c. In 1834, John Gamber commenced the erection of Christiann Enrnace on said tract of land; and in the spring of the same year, engineers under the direction of the canal commissioners (and in pursuance of laws previously passed) commenced several surveys of the route of the Columbia division of the Pennsylvania Canal.
    John Gamber about that time made a proposition to the canal commissioners, to the effect that if the canal commissioners would huild an addition of six feet on his dam in the Swatara, and would keep the said dam in good order, and give him the surplus water, &c., he “would allow the Commonwealth a sufficient supply of water to feed the canal to Columbia,” and would not ask any damages. The canal commissioners, without taking any notice of Camber’s proposition, located the Columbia feeder, and built their dam in the Swatara (in the summer and fall of 1834), raising their dam about two feet three or six inches higher than Gamber’s old dam, and locating it about 300 yards further down the stream. At the same time the Commonwealth’s agents caused a gate to be put at the head of the race leading to Gamber’s mills and furnace, the sill of which gate was raised one foot higher than the sill of the gate at the head of the Columbia feeder, to enable the state to draw all the water into the feeder. From 1834 up to the time of trial, the Commonwealth always took the water of the Swatara to the exclusion of the Christiana Furnace estate, whenever the low stage of water required them to do so, although Gamber lowered the sill of his head gate.
    In the year , John Gamber sold two undivided third parts of the Ghristiann Furnace estate, then embracing 20 acres and 116 perches of land, and nine lots of ground in Portsmouth, and took mortgages to secure the payment of the purchase-money. The purchasers failing to perform, the mortgages were sued out, and Abram Peters and Jacob H. Gamber became the purchasers of said two-thirds.
    On the 19th December, 1848, Abram Peters and Jacob IT. Gamber leased to Evans W. Shippen (Clement B. Grubb, one of the plaintiffs, being his surety) the two undivided third parts, “ of and in all that furnace, grist-mill, saw-mill, dwelling-houses, barns, stables, coal houses and other buildings, and tract or piece of land belonging thereto, situated in Londonderry township, in Dauphin county, on the south side and near the mouth of the Swatara creek, and containing twenty acres and one hundred and sixteen perches, more or less; together with the two undivided third parts, owned by Peters and Gamber, of nine lots of ground in the town of Port Royal, adjoining the .above tract; the whole premises hereby leased constituting what is called the Christiann Furnace estate. In the use and enjoyment of which hereby leased premises, during said term, the said Peters and Gamber hereby promise and agree to protect the said Evans W. Shippen, his heirs, executors, administrators, and assigns, and to warrant and defend the premises to him and them, during that term, against the claims or interruption, or molestation of any person or persons whomsoever, so that the said lessee shall suffer no loss from any defect of title of the lessors to the premises.”

      The lease was to commence on the 1st April, 1849, and continue three years, at an annual rent of $800, payable at the end of each year. The lessee took possession under his lease. On the 14th July, 1849, the supervisor of the Eastern Division of the Pennsylvania Canal notified Messrs. Grubb & Cabeen, plaintiffs, that if there was not a rise in the Swatara before the 17th July, the Commonwealth would be obliged to shut off the water from the furnace. On the 26th July, 1849, E. W. Shippen made a’formal assignment of the lease for the residue of the term to C. B. Grubb and Robert B. Cabeen, plaintiffs, who were in possession of the premises; and on the same day the gate of the forebay to the furnace was partly closed, and the next day it was closed entirely by agents of the Commonwealth.
    The lease authorized Shippen to repair “the forebays,” the expense to be jointly borne by Peters, Gamber, and Shippen; after which Shippen was to keep the forebays in reasonably good order at his own expense. It appeared in evidence that the fore-bay leaked. It was also proved that Grubb & Cabeen built an additional stack to the furnace, and thus doubled the demand for water-power.
    The sub-lessees continued in possession of the furnace up to the trial, viz., 18th December, 1851, they having underlet the sawmill on the premises to D. Kendig, for one year from the 1st of April, 1851, for $400. In the agreement with Kendig, they agreed not to use the water for the furnace during the term so as to interfere with the saw-mill.
    The rent not having been paid, Peters and Gamber issued their landlord’s warrant on the 26th April, 1850, and levied on a quantity of pig metal, which was replevied by the plaintiffs. The defendants justified taking the distress for rent due. The plaintiffs replied that there was no rent in arrear, and a trial was ordered. The defendants gave in evidence the articles of agreement leasing the property to E. W. Shippen, and showed that there, was one year’s rent due.
    The plaintiffs proved that the Canal Commissioners had taken all the water of the Swatara to feed the canal, and in consequence of the low stage of water had caused the furnace gate to be shut down. Plaintiffs also showed that they had a large stock on hand at that time, and alleged that they had sustained heavy damages. The defendants denied that there were any covenants in their lease that would make them respond in damages for acts of the state officers in the premises.
    On the trial it was proposed on part of the plaintiff, to prove the declarations of Peters since the date of the lease to the plaintiffs, to the effect that he claimed to have a' better right to the water-power than the state had. The evidence was admitted, and excepted to.
    The Court also received in evidence on part of the plaintiffs, a letter dated 15th January, 1884, from John Gamber to the Board of canal 'commissioners, concerning the water from his dam on the Swatara creek. It was objected that the defendants, Peters and Gamber, were not to be affected by it, they being purchasers of Gamber’s property at sheriff’s sale, and this letter being unknown to them. The letter was received, its effect to be decided on afterwards. Exception on part of the defendants.
    On the part of the defendants points were proposed. The first was to the effect that the construction of the lease was a question of law for the Court, who were to construe it according to what they may believe to have been the intention of the parties, so far as they can gather that intention from the agreement; and the Court are asked to say as a question of law, that the lease contains no covenant, which would defeat the recovery of the rent, although the Commonwealth, or Commonwealth’s agents, used the waters of the Swatara, to the exclusion of a supply necessary to propel the furnace.
    2. That as it is not stated in the lease that the lessee was to take the premises with the appurtenances, the lessee took only what he contracted for — and that if the jury believe that the things thus demised were not taken absolutely from the lessee, then this is not a case in which the rent would either be extinguished, or apportioned by the act of the law; and this, although the lessee may have been temporarily deprived of the use of the water for the furnace.
    3. That the lessee could not retain the possession of the premises, and withhold the payment of the rent.
    The fourth was to the effect that if the lessee relies on a contract by Gamber with the canal commissioners it should be strictly proved — that the declarations of Gamber would not establish such a contract. That if proved it would not affect the purchasers of his property, unless they had notice of it. Also, that if the situation of the dam and feeder was such as to put the said purchasers on their guard, it was also sufficient to notify the lessees that the Commonwealth had a paramount right to the waters of the Swatara. And that as the right of eminent domain was in the Commonwealth, the acts of the Commonwealth’s agent would well be referred to the exercise of that right and not to a contract with Gamber.

      The 6th was, that if the evidence was believed, the plaintiffs had notice before their purchase from Shippen, that the Commonwealth would take the water when it might be required for the canal, and that they knew that there was no covenant for the enjoyment of the water.
    The Court were requested to withdraw the parol testimony from the jury, and instruct them that the defendants were entitled to a verdict.
    Pearson, J., charged the jury, inter alia, that there could be no set-off in replevin, yet that where there has been a violation of contract on the part of the landlord by which the tenant has beén injured, it is a ground of equitable defence against paying the rent, and the tenant may prove the amount of damage he has sustained where the claim is covered by a covenant or agreement, under which he obtained the possession of the property.
    He charged that though the words “ with the appurtenances” were not used in the lease in describing the property, they were not necessary to the case of -the plaintiffs — that the right to the water passed as an incident to the furnace and mills. He said that the proposals of Gramber to the canal commissioners were in evidence, but that he did not'understand that they were complied with on the part of the state.
    Pie further charged that the entry by the state would not suspend the rent or diminish its amount, if the tenant had no covenants for his protection. That the dam, the feeder, and the gates were structures evident to the senses, of which the tenant was bound to take notice; and also that he was bound to know the right of the state to use the water. But he charged that the case turned on the construction of the covenant, and to what injuries the parties intended it to apply. It was a covenant for quiet enjoyment, and also of warranty. The covenant of course extended only to lawful interruptions.
    . “No man is presumed to covenant against lawless ones, as the tenant can protect himself against them by actions of trespass, which the landlord could not sustain, he having parted with the possession. Nor would it be presumed that the landlord covenanted against any original entry by the state to make roads, take and use the water, or exercise other acts of prerogative. No man is presumed to contract against bare possibilities, without express words. Besides, for such injuries the tenant has his redress by claiming damages, which it is to be presumed the public will accord and pay. If, then the state had entered for the first time, and drawn off the water after the lease was executed, we should hold that it did not come within the covenant for quiet enjoyment, although the same is expressed in strong and broad terms. The tenant would have to seek his redress by asking for damages under the internal improvement laws. But in the present case the entry had been made some thirteen or fourteen years before tbe dam was built, water drawn off when required for the canal, and the damage, if any, was done to John Gamber, the then owner, and paid, or presumed to be settled with him.
    “ The right to exclude him entirely from the use of the water had been claimed by the state agents, but never exercised; had been a subject of dispute between him and them, and also with the plaintiffs after their purchase. Shippen, in taking his lease, would very naturally apprehend difficulty about the use of the water, and as the defendants denied the right of the state to stop their works, it is no more than probable that they would guarantee against it. Have they done so? We consider the words quite broad enough to cover the case, and applicable to it, more especially as there does not appear to have been any other disputed right, no defect or apprehended defect in the title, or pretence of right in any other person to interrupt the tenant in the enjoyment of his lease.”
    He further said: “ There are, as we have observed, two distinct covenants; one for quiet enjoyment, and against the claims, interruption, or molestation of any person; the other a warranty of title. Why covenant against the interruption or molestation of any one, if the landlord and tenant had not feared this contest with the state agents ? The warranty of title has always been held to be a distinct covenant from that for quiet enjoyment, and is applicable to the latter expressions of the covenant, ‘so that the said lessee shall suffer no loss from any defect of title of the lessors to the premises.’ Those are the only words which in my mind raise any doubt as to the intention of the parties; but it is an axiom of the law that a subsequent limited covenant does not restrain a preceding general one; Sugden on Vendors, vol. 2, p. 113; and every man’s covenant is to be construed most strongly against himself, if his words are doubtful. If you believe these parties had in view the claim of the state to interrupt the occupant in the use of the water, and made the contract with a view to that, we instruct you that the covenant for quiet enjoyment in the lease is broad enough to protect the tenant or his assignees, and render the lessors responsible for the damages sustained by reason of such interruption.”
    It is also contended on part of the defendants, that if the tenants were not absolutely deprived of the use of the water, but only temporarily, they are not entitled to relief. He charged “that if injured, interrupted, or partially deprived of the enjoyment of the property, they would be relieved to the extent of the injury.. Nor in a case like the present is it necessary for the tenants to throw up their lease; it could not be done without their suffering still greater loss than by holding on.
    “ It is also argued that even if the water was appurtenant to the furnace and mills, an adverse entry upon and deprivation of it was no violation of the covenant for which the rent could be apportioned, and several English authorities have been read to establish the doctrine.
    “Independent of our own system of jurisprudence, founded on principles of equity, that doctrine would not prevail in a Court administering strict law in England. Although it is so declared in actions of covenant between lessor and lessee, yet it is otherwise between the lessor and the assignee of the lessee, and Lord Ellen-borough says it never was applied to actions of debt for rent, or to avowries in replevin: 2 Éast 579. The tenant need not be absolutely deprived of the demised premises in any ease. It is sufficient if he be deprived of the use of it, to enable him to have the rent apportioned or satisfied according to the extent of the injury.
    “ It is also contended that as the plaintiffs took the assignment of the lease, with full knowledge that the state had the right to exclude, and probably would exclude them from the use of the water, they cannot defend against the payment of the rent. We have already said that the knowledge of Shippen, of the right and power of the state to interrupt him in the use of the water, did not deprive him of the benefit of his covenant for its quiet enjoyment, but was probably the cause of his taking the contract in the form he did; and the plaintiffs accepting an assignment of his lease, cannot be prevented from setting up this defence. Both they and their assignor had a right to rely on the covenants, and the landlord must take care to enter into no contract that he cannot make good. If Shippen had accepted the lease without the covenant for quiet enjoyment, the principle of caveat emptor would have applied to him; but when he calls on his landlord for protection in his term, the latter must take care as to the covenants he makes.” To this charge the defendants’ counsel excepted.
    December 19, 1851, verdict for the plaintiffs, with six cents damages and six cents costs.
    It was assigned for error, 1. That the Court erred in not withdrawing the parol evidence, and instructing the jury that in law the'.deferidants were entitled to a verdict. 2. In the construction of _the lease, that the water was demised. 3. In the construction of the lease as to the warranty. 4. In instructing the jury to consider whether the parties in making the lease, had in view ,the claim ,of the state, thus referring to the jury the construction of the lease. 5. In refusing to instruct the jury that if the tenants were not evicted, the covenant was not broken by the lessor; and that if the tenants or lessees were not absolutely deprived of the use of the water, the rent would not be suspended. The 6th was to the same effect. 7. That the Court erred in the answers to the points. 8. In the admission of the evidence contained in the two bills of exception.
    The points in controversy were, first, The officers of the Commonwealth in the exercise of the right of eminent domain, having taken the water of the Swatara to supply the canal, were the lessors responsible in damages as for a breach of their covenant ?
    2. Did the covenants apply to the acts of the Gommonwealth ?

    3. Whether the words used in the lease constituted a covenant for quiet enjoyment against the consequences of a defective title, and of any disturbance thereupon; or did they, as ruled by the Court below, create “ covenants both for quiet enjoyment and of warranty?”
    4. As the demise was of the Christiann Furnace estate, without using the words “with the appurtenances,” would not the lessee merely take all that was usually and ordinarily enjoyed with that estate; or was there either an express or implied covenant that the lessee should have a right to the waters of the Swatara, as appurtenant to the furnace and mills, paramount to the right of the sovereign ?
    5. Did the acts of the Commonwealth’s officers amount to an eviction of the lessee from the premises, and was the rent thereby apportioned or suspended; or even if there had been a partial or temporary eviction of the thing demised out of which no rent issued, would the rent have been thereby apportioned ?

      H. Alriclcs, with whom was Fordney, for the plaintiffs in error.
    —As to" the first error the question was, whether the declaration of Peters (one of the plaintiffs) was to be considered in determining the legal construction of the covenants.
    As to the first point: It was contended that as the Swatara was a public highway, the owners of the Furnace estate could use its wate'rs only in subordination to the rights of the public, and that it was to be presumed that the parties in entering into the lease, had reference only to existing rights. The gates of the furnace had been built by the officers of the state, and were to be so used as not to retard the business on the public improvements, and it was alleged that there was no covenant against the paramount right of the Commonwealth, It was said that the covenant for quiet enjoyment, extending only to entries or interruptions by those having a lawful title, has not been extended to protect against an easement acquired by the public, though acquired under its prerogative: Dobbins v. Brown, 2 Jones 75. That case was not reported when this cause was tried. In that case also, the vendor bad released all claim for damages against the Commonwealth. In this case, the lessees continued to enjoy the premises in subordination to the rights of the Commonwealth: 4 Wharton 86; Frost v. Earnest, 6 Mass. 246; 2 Roscoe on Actions, 29 Law Lib. 424-5.
    2. It was contended that the covenant against the claim, &c., of any person or persons did not amount to a warranty against the acts of the sovereign.
    3. It was contended that the covenant in this case was for quiet enjoyment against any defect of title in the lessors, and for nothing more: Platt on Cov. 3 Law Lib. 136; Id. 3l2. As to the declaration of Peters, made after the lease was executed, reference was made to Platt on Cov. 144, “ in the construction of a covenant no attention is paid to the ac.ts of the parties.” This declaration, however, showed only that he was mistaken as to a point of law, and not about a question of fact.
    4. Granting that the right, to the water passed as appurtenant to the thing demised, it would be in no other manner than that in which it had been ordinarily enjoyed. The lease does not assert a paramount claim to the water of the Swatara on part of the lessors, and we are to be governed by the contract of the parties, and not by their loose declarations.
    5. The case of Dobbins v. Brown, cited, shows that the entry by the officers of the state did not amount to any eviction.

      Franklin and McCormick, for defendants.
    — It was contended that there were two distinct and separate covenants, one for quiet enjoyment, the other of general warranty. That the clause in the lease, “ so that the lessee shall suffer no loss from any defect of title of the lessors to the premises,” was intended to extend rather than restrain the undertaking o,f the lessors, and that they were not applicable to the covenant for quiet enjoyment, which covenant alone was sufficient for the protection of the plaintiff: 2 Sugd. 113.
    The propelling power of a furnace and mills is not a mere appurtenance ; it is an incident of the estate; a necessary part of them, and a covenant for quiet enjoyment extends to such a power as is a necessary incident to the enjoyment of the premises: Sheppard’s Touch. 89; Coke Litt. 546; Id. 1216; 1 Saunders 322; 5 Bing. 1; 35 Eng. C. L. 1; 3 New Hamp. 190; 3 Taunt. 24.
    2. As to whether the covenants extended to the acts of the Commonwealth. The construction of written contracts must be made by the Court in view of all the circumstances in evidence relating to the situation of the parties and of the subject thereof, showing with reference to what the contract was made: 3 Stark. Ev., tit. Parol Ev. 996; same 1021. The evidence of the construction of the Swatara feeder on the property by the state; the right to use the water claimed by the state agents, but never exercised, and denied by the lessors; and all the other evidence detailed by the Court in their charge on this part of the case, clearly show that the parties had in contemplation the claim of the state, and made the contract with a view to it.
    In this case the entry of the Commonwealth upon the premises, and cutting off the whole of the water from the furnace, was a destruction of the beneficial enjoyment of the whole estate granted equivalent to an eviction: 6 Bac. Abridg. 49, tit. Rent. It seems extremely reasonable that if the use of the thing be entirely lost to the tenant, the rent ought to be abated : (filbert on Bents 147-48. An eviction suspends rent: Id. 186.
    The case of Dobbins v. Brown, 2 Jones 75, relied on by plaintiffs in error, decides that a covenant of general warranty is not broken by the entry and occupancy of the Commonwealth to construct a road or canal, in the exercise of its right of eminent domain; and so in Foote v. Cincinnati, 11 Ohio Rep. 408. But both'these decisions proceed on the ground that such occupancy is not an eviction, and cannot be supposed to have been in contemplation of the parties. But at p. 80 of 2 Jones, Judge Gibson explicitly declares that it might have been a breach of a covenant for quiet enjoyment. Here there is a covenantfor quiet enjoyment, and we have endeavored to show that the exercise of the prerogative of the state was a breach of it in contemplation of the parties at the time. The case of Frost v. Earnest, 4 Whar. 86, is not inconsistent with the views presented. That case is put on the ground that the Act of Assembly under which the street was laid out over the demised premises, provided for the payment of damages as well to the tenant as to the landlord. The original entry was made upon the tenant. Here the original action of the state was when the feeder was constructed; and it must be presumed that a full compensation was allowed to the lessors or those under whom they claim. The tenants are therefore precluded from any claim upon the Commonwealth ; and unless they can succeed in setting off the damages against the rent, they are without a remedy.
    Courts of law and equity advert to the situation of the parties, &c., in order to enable them to construe ambiguous instruments: Sug. 118 ; 7 Bro. P. C. 745 ; 4 Hen. & Mun. 23.
    Where the first covenant is general, a subsequent limited covenant will not restrain the generality of the first one: 1 Mod. 101; 1 Saund. 58; 3 Bos. & Pul. 565; 2 Bing. 506; 15 East 545; 3 B. & Ad. 189; 11 East 633.
    When the subject of the grant or any part of it has been actually appropriated for public purposes at the time of thb grant, it has become an existing right, the exercise of which is a breach of covenant against encumbrances on the part of the grantor: Kellog v. Ingersoll, 2 Mass. Rep. 97; Hubbard v. Norton, 10 Conn. 431; Pritchard v. Atkinson, 3 N. Hamp. 335; Herrick v. Moore, 1 Appleton (Maine) 313; and see case of Ellis v. Welch, 6 Mass. 246, cited by plaintiffs in error,' which points out the distinction between a prior and subsequent appropriation by the public.

      Reply.

    — It was said that nothing but an eviction under a paramount title will amount to a breach of the covenant for quiet enjoyment. If land be taken by statute for public purposes, such an eviction is not by reason of defect of title : 4 Kent 471. No argument can properly be founded on the supposition that John Ganiber had no right to damages, and that therefore the lessees are without remedy; the claim to compensation is only the lenefii of a chance, and therefore an ideal thing. Gibson, J., 2 Jones 80. On the subject of the warranty reference was made to 3 Law Lib. 315.
    September 7, 1853,
   The opinion of the Court was delivered, by

Knox, J.

— Upon a careful examination of this record, we are satisfied that the cause was properly tried by the Court below, and that the errors assignee^ have not been sustained. The covenant in the lease is alike for quiet enjoyment and of warranty, and must be held to embrace all existing antagonistical claims, whether upon the part of the Commonwealth or of private persons.

Had the original entry of the state, under her right of eminentdomain, been subsequent to the date of the lease, the case of Dobbins v. Brown, 2 Jones 75, so much relied upon by the defendants, might have ruled this case in their favor. But such is not the fact. The works of the Commonwealth, for the purpose of drawing off the water to be used in feeding the canal, were erected as early as 1834, and from that time up to the date of the lease the canal commissioners and their subordinate officers claimed, and to some extent exercised the right of using the water when necessary for the public works. Gamber contested this claim, alleging that his was the better right to the exclusive use of the water. Under these circumstances it can scarcely be doubted, that the covenant in the lease for quiet enjoyment, was intended by the parties to protect against this claim upon the part of the Commonwealth.

After having received parol evidence to prove the time when the dispute commenced, and the acts and declarations of the parties in reference thereto, the judge below submitted the question to the jury to determine whether the parties to the lease had in view the claim of the state to interrupt the occupant in the use of the water, and made the contract with a view to that. If so, the Court was of the opinion, that the covenant for quiet enjoyment, in the lease, was broad enough to protect the tenant or his assignee, and to render the lessors responsible for the damages sustained by reason of such interruption.

The reception of the evidence to aid in the construction or interpretation of the lease, was clearly right; and if there was error in submitting to the jury the question of the intent of the parties, the defendants have no just cause of complaint, as, in the opinion of this Court, the intent might have been inferred as matter of law.

That the right to the water was demised needs neither argument or authority to demonstrate, as it was just as necessary to the enjoyment of the estate as the buildings or machinery.

It was likewise unnecessary to establish that the plaintiffs were evicted from the premises and wholly deprived of the use of the water. The covenant for quiet enjoyment was broken when a partial deprivation ensued from the lawful acts of a paramount claimant.

This view of the case disposes, substantially, of all of the assignments of error.

Judgment affirmed.

Woodward, J., and Lowrie, J., dissented.


source: Caselaw Access Project

author: Black, C. J.

license: Public Domain

text:
    Hartman versus Keystone Insurance Company.
    . 1. Where the object of a defendant in altering his plea is to get the conclusion of the argument, it ought to be refused; but his right to change it is limited only by the discretion of the Court.
    2. Neither is it a ground of reversal that the Court permitted the counsel to speak in the wrong order.
    3. A notice of special matter must state the facts on which the defendant relies, but in it need not be stated either the evidence by which they are to be established or the inferences to be made from them.
    4. Persons who sold their stock in a Life Insurance Company and surrendered their policies on their own lives were competent witnesses in behalf of the Company, in a suit against it. The rule in Post v. Avery applies only to persons who have assigned choses in action, the recovery of which would have been for their own use, or where the claim assigned comes directly into controversy.
    5. It lies on the party objecting to testimony to sustain his objection. In this case there was no evidence that the stock of the witnesses was not fully paid before the transfer.
    6. It being provided in the conditions of insurance that any untrue or fraudulent allegation made in effecting the insurance will render the policy void, it was Held, that the representation by the insured that he was a farmer, whereas he was at the time a slave-taker by occupation, rendered the policy void.
    7. In the life insurance policy in question every fact was material which increased the risk or which if disclosed would have been a fair reason for demanding a higher premium; and it is not material that the death was not produced by a cause connected with the subject of the misrepresentation.
    8. The occupation of the applicant for insurance to be disclosed is that in which he is engaged at the time of effecting the insurance.

      9. A late officer of a life insurance company who knows the practice of the office interested, and of other insurance offices, may be permitted to testify that the occupation of a farmer is considered the least hazardous; that an extra premium would usually be required of those who run cars on railroads; and that he considered slave-catching much more hazardous than farming, and that the company in question would not take a risk on any terms on the life of one known to be engaged in it; and such is the case though the printed tables of the company contain no reference to the occupations deemed extrar hazardous.
    10. The declarations of the insured, made several months before his application for insurance, that he meant to effect an insurance upon his life, were not admissible to rebut evidence on the part of the insurance company that the insurance was effected with a view to suicide. ,
    11. A condition of the policy being that it shall be void if the party “shall die by his own hand, in, or in consequence of a duel,” it was Held, to include the case of suicide by swallowing arsenic. The first part of the clause is to be separated from the latter part of it, as the whole taken together would lead to an absurdity.
    Error, to the Common Pleas of Dauphin county.

    This was an action of covenant to August Term, 1851, by Daniel Hartman, administrator of the estate of William Callender, deceased, v. The Keystone Mutual Life and Health Insurance Company of Harrisburg. It was founded on a policy of insurance granted to William Callender, upon his own life, in the sum of f 5000, and was dated 26th March, 1851, for the period of one year, payable within sixty days after due notice and proof of the death of the insured.
    The insurance was effected in Harrisburg, about noon of the 26th March, 1851. The insured left Harrisburg on the same day, and died at his own house in York, during the night following, at about half-past 3 o’clock A. m.
    The execution of the policy was admitted in the pleadings, also the death and notice to the defendants. The company, in defence, plead that at the time of effecting the insurance Callender misrepresented his occupation, stating that he was a farmer ; whereas it was alleged that he was engaged in the business of slave-catching. And it was further alleged that he was also engaged in running cars on the railroad. It was also alleged in pleading, that the insured had committed suicide.

    On January 21st, 1852, plea “ covenants performed absque hoc.”

    In a notice of special matter notice was given on 2d March, 1852, that the defendant intended offering evidence to show that Callender came to his death by his own hand — that he committed suicide by taking arsenic: also his written and printed application for insurance, and that in the same he misrepresented his occupation — that he was not a farmer as stated therein, “but was engaged in running cars and travelling upon the railroad, and in the still more perilous business of slave-catching.” Also that he purchased arsenic in Harrisburg on the day of insuring. Also that evidence would be given of the declarations of Callender before and after he obtained the policy, indicating his intent to commit suicide, and that a post mortem examination was had, and “a large quantity of arsenic found in his stomach, causing his death.”
    On 19th January, 1853, a further notice was given that the defendants would offer in evidence the different rates of premium depending on the occupation of the insured, and that the company would not or did not at any time insure any person engaged in running ears upon the railroad or occupied in such business, at the rate of premium charged in this case.
    On the 3d February, 1853, a rule was obtained to show cause why the defendant should not have permission to amend the pleading by withdrawing the words absque hoe, from the plea entered, and filing special pleas.
    Special pleas were filed, and were, first, that Callender had committed suicide, which it was alleged they were ready to verify.

    A further plea was filed as to the misrepresentation of his occupation, and it was alleged that his occupation was slave-catching; concluding as before.
    A further plea was, that he was engaged in running cars on a railroad — with the same conclusion.
    On the 15th March, 1853, after the case was called for trial, the application to amend the pleadings came before the Court, when the plaintiff objected to defendant withdrawing the plea of “ absque hoc” as moved, because the object was to give the defendant the conclusion to the jury ; also, to the special pleas, because the matter could be given in evidence under the general issue, and that the pleas were informal. These amendments the Court permitted, and plaintiff excepted. The plaintiff then demurred to the defendant’s first special plea; which defendant then was permitted to amend by concluding his plea to the country instead of with a verification; and the plaintiff then replied specially to the defendant’s second and third pleas.
    In the replication to the second plea it was denied that the occupation was misrepresented; and it was alleged that the occupation of the insured was not that of slave-catching, and concluding to the country. In the replication to the third plea it was alleged that the occupation was not misrepresented, and that it was not that of slave-catching.
    On the trial the policy was read on part of the plaintiff, and his counsel rested.
    On part of the defendant evidence was given of the post mortem examination of the body of Callender and of his stomach, and of the detection of arsenic in it. Also of his purchase of arsenic in Harrisburg, at about 8 o’clock A. M., of the day of his effecting the insurance.
    It was also proved that Callender, about nine o’clock of that day, inquired of the witness as to the manner of obtaining an insurance; and that the witness advised the insurance: that in the course of their conversation Callender inquired the effect as to the policy if the person insured committed suicide. Also other evidence was given of his declarations made before the insurance, in order to show an intention on his part to commit suicide. He left Harrisburg on horseback, about one o’clock of the day of his insuring, for his home at York; he was ill on the way, and died during the night next following.
    To support the issue under the second plea, evidence was given in order to show that Callender was concerned in hunting runaway slaves.
    The application for insurance was given in evidence, in which it ■ was stated that the applicant was a farmer.

    Under the 3d plea evidence was given that Callender had been engaged in running a railroad market car; but it was testified that about four months before his death he ceased doing so.

    It was proved, on part of plaintiff, that Callender, when young, was employed on a farm. That he was so engaged till he became a young man. That he never learned any other business than that of farming. That after he married he farmed for a year.
    Another witness testified that he knew Callender to be farming in 1843 or 1844; and that the witness had made a bargain with him in the fall of 1850, to farm some land on the shares. That he had bought a horse and made arrangements to get another person to plough his corn ground in the spring of 1851. It was also testified that in the fall of 1850, Callender had also made arrangements for making brick.
    In the list of particulars or conditions, on which information is required of applicants to this company for insurance, is an interrogatory, as follows:—
    22. Is the party aware that any untrue or fraudulent allegation, made in effecting the proposed assurance, will render the policy void, and that all payments of premium made thereon, and dividend credits, will be forfeited ?
    In the declaration which Callender signed, when proposing the insurance, it was stated that “ I do hereby agree that the said statement and this declaration shall form and be the basis of the contract between me and the said company, and that if the same be not in all respects true and correctly stated, the policy shall be void,” &c.
    . In the policy it is declared to be its true meaning and intent, inter alia, that in case the assured shall, without the consent of the Company previously obtained and endorsed upon the policy, be personally employed as an engineer or fireman, in running a locomotive or steamer, or in the manufacture or transportation of gunpowder, or in case he shall become so far intemperate as seriously to impair his health, or induce delirium tremens, or shall die by Ms own hand, in, or in consequence of a duel,” &c., “this policy shall be void, null, and of no effect.”
    In the course of the trial a person was offered as a witness on the part of the Company, who said, on his voir dire, that he was lately a stockholder in the company, and held a policy of insurance for $>1500, at the time that Callender was insured; but that he ceased to be a stockholder a few days before, and surrendered his policy, and had ceased to be examining physician. That he sold his stock, threw up his appointment, and surrendered his policy, as he understood, to enable him to become a witness in this suit. He was objected to on the ground of incompetency from interest, but he vras admitted.
    Another person was offered, on the part of the company, who said that he was a stockholder in it at the time of Callender Iseing insured, — that he then held a policy, and was then cleric to the company. That he sold his stock a year before, but surrendered his policy and resigned his clerkship at the request of the counsel of the company. That he knew at the time of the late Act of Assembly of 24th February, 1853, relative to the competency of witnesses, having been passed, and that it was necessary to make these arrangements in order to render him a witness.
    The 2d section of the Act of 1853 (Acts page 108), provides that the provisions of the 13th section of an Act approved on 14th April, 1851, shall be so construed as not to apply to suits depending or that may hereafter be brought against the Keystone Insurance Company, for any claim for insurance, where the person whose life was insured, died before the passage of the aforesaid Act.
    The 13th section of the Act of 1851 (Acts, page 559), provides that the provisions of a certain Act approved on 24th February, 1847, be extended to the said Keystone Insurance Company. And the provision in the 13th section of the Act of 1847, which, by the Act of 1853, it was in effect enacted was not to apply to this case (Acts of 1847, p. 161), was, inter alia, that “no member of the corporation shall be debarred his testimony as a witness in any case, on account of his being a member of the said company; and no member of the said corporation, not being in his individual capacity a party to such suit, shall be incompetent as a witness in any such suit on account of his being a member or an officer of said company.”
    It was proposed to prove by this witness, that the company would not have insured the life of a person employed in running cars on a railroad or in catching slaves, or if they did, it would have been at a much higher premium; and that although they had no printed rules applicable to any but safe lives, their practice was to exact a much higher premium where the risk was great.” This was objected to as irrelevant and incompetent; that it was not shown that the class of persons mentioned in the offer was embraced in the rules or table of premiums of_the company; and that notice had not been given to the plaintiff, that the rates of premium would be increased by the fact that the applicant, frevious to Ms application for insurance, had been engaged in running cars, or in slave-catching, the notice extending only to persons then so engaged, 'and that there was no condition in the policy that the running of cars upon a railroad thereafter, or the catching of slaves thereafter, should work a forfeiture of the policy:
    Also that the testimony offered amounted to no more than the opinion of the witness.
    The Court held it to be competent to prove misrepresentation at the time of effecting the policy, and that the business in which the party was engaged was more dangerous than the one he stated: That under the notices it was competent to prove the rates of premium charged or which would have been charged upon such occupations, and that the company did not insure and would not have insured the lives of persons engaged in running cars on a railroad.

    The witness stated that the occupation of a farmer was the least dangerous — that no rates are published but for occupations deemed safe — that the business of running cars on railroads is deemed hazardous, and an extra premium charged: — that the rate of premium depends on the exposure to danger: he further said, “we would not take a person at any price if it was known that he was engaged in slave-catching. I consider it a much more perilous occcupation than farming — liable to be shot down or assassinated: — ■ our rates of premium are based on good lives; if extra danger as to occupation or residence or state of health exists, an extra premium is charged.”
    The Court rejected evidence offered on the part of the plaintiff that about two years before Callender’s death, he declared his intention to quit the business of running cars, in which he was then engaged, and to have his life insured for the benefit of his wife and children; and to follow it up by evidence of declarations, made by him on various occasions down to the time of his effecting the insurance, to the effect that he would have his life insured for the benefit of his family as soon as he got money enough, or could spare it from his business, to pay for the policy. This was offered in- order to rebut any inference that he procured the policy, upon an idea recently conceived, witn a view to suicide.

      The evidence was rejected on the alleged ground that it was not competent to show such intention by the declarations of the party; because it would be his mere statement unsupported by any act which it tended to explain.
    After the evidence was closed, the plaintiff claimed the right under the pleadings in the' cause to begin and conclude to the jury. The Court determined that the defendant under the pleadings had the right to begin and conclude for the following reasons: “ The plaintiff had full notice more than thirty days before the trial that the pleadings would be so changed as to prevent the necessity of his preparing any evidence, and throw the onus probandi entirely on the defendant. This alteration has been allowed by the Court. In no event would the plaintiff have been called on to make more than mere formal proof had the pleadings stood as before; and the fair rule is, that the party who has to be first in proof, and maintain by evidence the affirmative of the issue, shall have the right to conclude to the jury.” At plaintiff’s request an exception was sealed to this decision.
    Pearson, J., charged the jury. In his answers to two of the points proposed on part of the plaintiff, he said: If the premium would have been increased, or the Company would have refused to insure altogether, had the true occupation been given, and a false one was stated, it would be such a falsehood as would vitiate the policy. That it need not be stated in the policy that it shall be void if any false representations are made. That the law requires the party to speak the truth. The conditions necessary to be inserted are those which are to avoid the policy, if it be violated after it is given. Further: If there was the suppression of a material fact increasing the risk, or which, if disclosed, would have led to the demand of a higher premium, or caused the insurance to be refused altogether, it is fatal to the policy: &c.
    On March 19, 1853, verdict was rendered for defendant.

    See the opinion of Chief Justice BlACk for the substance of the principal assignments oí error.
    The case was elaborately argued by Fisher, with whom was Potts, for the plaintiff in error.
    — It was, inter alia, contended that the misrepresentation, to be material, must be connected with the death of the insured, and that it was not shown that he lost his life when engaged in, or in consequence of having been engaged in, the capture of slaves; the instruction of the Court on this subject being, inter alia, “ If you believe there was a statement of falsehood, or other suppression of the truth, in this particular, with intent to defraud, the policy is void, even if Callender did not lose his life when engaged in, or in consequence of having been engaged in the capture of slaves. When such a contract is obtained by fraud, it is void from the beginning.”
    That the misrepresentation to avoid a policy must be material to the risk, reference was made, by the counsel, to the case of Clark v. Manufacturers’ Insurance Company, 8 Howard 235-250.

      BerryMTl and MeOormielc, for the Company.
    — It was,, inter alia, contended that a false assertion will vitiate a policy of insurance, even though the loss happen in a way not affected by that falsity: Parke on Insurance, 286. On true principles of equity and justice, the concealment or misrepresentation by the assured, whether wilful or not, of any such facts as might reasonably be supposed to have influenced the underwriter in taking the risk or fixing the rate of premium, will avoid the policy: Arnould on Insurance, vol. 1, 488. Policies on lives are equally vitiated by fraud or falsehood as those on marine insurance, because they are equally contracts of good faith, in which the underwriter, from necessity, must rely on the integrity of the insured for the statement of circumstances: Park on Insurance, 647-8, 327, 283; 3 Kent 282; 2 Buer on Insurance, 381; Bilis on Insurance, 111. If the assured conceals anything material for the company to know, the policy is void, and it matters not whether the assured considered it material or not; and what amounts to a misrepresentation or a material concealment is a question for the jury: 8 B. <f O. 586; 3 O. <f P. 350; 3 M. It. 45. The materiality of facts concealed or misrepresented, is not to be determined by the event, but results solely from their probable influence on the estimated value of the risks at the time they were assumed. The question is not whether the loss that is claimed is attributable in any degree to the risks that were concealed; but whether, had the facts been known, the underwriter would have subscribed the policy, or would have limited himself to the premium that he received. He is discharged if the contract is not such as, with a knowledge of the truth, he would have consented to make: Buer on Insurance, vol. 2, 382.
    The seventeenth and last error relates to the construction of the words of the policy. The intention is manifestly to guard against suicide, and there is but an error in punctuation. If the policy is to be considered silent on the subject of suicide, then on principle the same result must follow, for suicide would be a fraud on the insurance company, as clearly as the burning of a house by the party who had it insured would render a fire policy void.
    September 8, 1853,
   The opinion of the Court was delivered, by

Black, C. J.

— This was covenant on a policy of insurance for the benefit of William Callender, the plaintiff’s intestate, upon his own life. The defence set up by the company was that the assured had committed suicide, and that when he made application for the insurance he represented his occupation to be that of a farmer, though he was in fact not a farmer but a slave-catcher. It was also pleaded that he had been engaged in running railroad cars, but the evidence did not show it.

There are seventeen specifications of error, but some of them are repetitions of others. The material questions raised in the argument may be thus stated.

1. Whether it was erroneous to permit the defendants to amend their pleas as they were amended on the trial.

2. Whether the facts on which the defence based itself, could be given in evidence under the pleading and notices.

3. Whether persons who owned stock in the company and were insured by it, could give up their policies and sell out their shares for the express purpose of becoming witnesses, and thus make themselves competent to testify for the company.

4. Whether there was evidence of the assured being a slave-catcher, which the Court could submit to the jury.

5. Whether, if he was a slave-catcher, his declaration that he was a farmer was such a misrepresentation as made the policy void.

6. Whether the occupation of the assured was the trade or business which he had learned in his youth, or that which he was pursuing at the date of the policy.

7. Whether the testimony of the company’s clerk, that he considered slave-catching a dangerous business, and that a risk would not be taken at any premium on the life of one known to be so engaged, is admissible; there being nothing in the printed rates of premium to show that persons of this class were considered hazardous lives.

8. Whether the declarations of the assured, several months before his application, that he intended to effect an insurance on his life, were admissible to rebut evidence given by the defendant tending' to show that the insurance was effected with a view to suicide.

. 9. Whether the conditions of the policy must be so construed that the assured might commit suicide by taking poison, without .thereby making the policy void.

We will consider these questions in their order, as I have set them down.

I. By the act of 1806, a defendant may amend or change his plea before or during the trial, if it be necessary that he should do so in order to reach the merits of the case. His counsel is generally permitted to judge of this necessity. The Court cannot tell whether it is needed or not, until they have all the evidence before them. "When an amendment is ashed for with a view to some unfair advantage, such as throwing on the plaintiff the burden of proving a fact not previously put in issue, and thus exposing him to the danger of defeat or the necessity of a continuance; or where the object is to get the conclusion of the argument; it ought to be refused. And because every court is liable to be imposed on in this way, leave to amend ought never to be given unless the motion for it be supported by an affidavit that it will affect the merits of the case, and that the change is not desired for any other reason.

But we cannot reverse the judgment for an improper alteration of the plea. I do not find any case in which this has ever been done. A plaintiff may amend his declaration as he pleases, provided only that he does not introduce a new cause of action. If this rule be violated the judgment will be reversed, because we can determine it on a simple inspection of the record. But the right of the defendant to change his plea, is not limited by anything but the discretion of the Court, and by that he is held merely to good faith.

It is alleged here, and we think with some reason, that this amendment was made to give the defendant the right of addressing the jury in conclusion. If it was, and the Court discovered it in time, the purpose should have been defeated, and the conclusion given to the plaintiff notwithstanding.. But neither is it a fatal error that the Court permitted the counsel to speak in the wrong order. It is true, the English cases say otherwise. There very much depends on having the last word, and more still on the right to begin. But an English trial bears so little resemblance to an American one, that their decisions on a point like this are entitled to no weight whatever with us.

II. It does not seem to us necessary to discuss the next question at much length. The pleas were sufficient to put in issue the facts proved. The variance alleged between the evidence and the notice is very unsubstantial. A notice of special matter must state the facts upon which the defendant relies, and not either the evidence by which they are to be established, or the inferences to" be made from them. Here the plaintiff was in substance notified that proof would be given to show that Callender was insured as a farmer at a premium lower than would be taken from a person who was known to be engaged in running cars; that he was engaged in running cars, and also in the still more perilous business of slave-catching. Erom this we think the plaintiff was bound to understand that the company would either have declined the risk altogether or exacted a higher premium if they had known the assured to be engaged in the business they alleged him to have been following. Although, therefore, these notices are not very artistic nor much to be admired for their clearness, yet there is nothing in them nor out of them which makes it necessary to reverse the judgment on that account. It is natural and right that we should lean, as we always do, against sustaining an exception which has so little to do with the merits.

III. The witnesses who sold their stock and gave up the policies they had obtained upon their own lives, were competent. The rule in Post v. Avery applies only to persons who have assigned choses in action on which the recovery would have been for their own use if no assignment had been made. The assignor cannot be a witness on, the trial of an action in which the claim assigned comes directly in controversy. But otherwise he may. Thus a legatee having sold his legacy is a competent witness for the executor (4 Barr 373); or a widow, who has parted with her interest in the estate of her husband, may be admitted to testify in favor' of his administrator: (7 Barr 315). A will may be proved by a legatee (1 Ser. & R. 275); or by a devisee (6 Ser. & R. 315) if he has released his interest before he is called.

It is said these witnesses were interested, because they were still liable to be called on for such instalments yet unpaid on their stock as should be necessary to meet the demands on the company, and the judgment in this case might increase the amount so called for. To say nothing of the remoteness of this interest, there is no proof which shows it to exist. It lies on the objecting party to sustain his objection. If the fact on which it rests be doubtful, the witness is heard. There was no evidence here which showed, or tended to show that the stock had not been fully paid up before the transfer. The plaintiff had the examination of the witnesses in his own hands before they were sworn in chief, and if he asked no question on this subject we presume it was because he knew the answer would be adverse to him.

They were not parties to the record in any sense which made it necessary to exclude their testimony for that reason.

All the arguments against the admissibility of these witnesses are disposed of at once by the decisions of this Court in Smith v. The Bank (5 Ser. & R. 318), and The Bank v. Green (3 Watts 374), where it was decided that persons who bore exactly the same relation to the parties were, nevertheless, entirely competent. Though these cases are older than Post v. Avery, I think I have shown that their authority is not shaken by it.

IY. It was shown on the trial, that the assured had not for many years been a farmer; that he had been at Wilkesbarre in search of fugitives, and had gone to Hagerstown to bargain for the apprehension of others; that he was at Harrisburg in pursuit of negroes whom he spoke of running over to Frederick without a warrant. In short, the evidence is very strong that for some months at least previous to his death, he was habitually and very diligently occupied at this business. But what is more still to the purpose, he told a person at Hagerstown, a few days before he effected the insurance, that he was engaged in that business and had a man at Harrisburg who knew all the slaves that ran away from that part of Maryland. This is said to be frivolous, and so insufficient to establish the fact that the Court ought not to have permitted a verdict to be given on it. We are not of that mind.

Y. If the insured, who represented himself to be a farmer, was in fact a slave-taker by occupation, and if the business of slave-taking would expose his life to greater danger than farming, it is not possible to escape the conclusion that the policy was thereby rendered void, since, if it was wilfully made, it was a fraud; and though made ignorantly, or by mistake, it was a warranty by the express terms of the policy. The plaintiff can only recover if the declaration of the assured, upon the faith of which the risk was taken, was strictly true in every material part. It will not do to say that this was immaterial. Every fact is material which increases the risk, or which, if disclosed, would have been a fair reason for demanding a higher premium. Nor is it of any consequence that the death was not, in fact, produced by a cause connected with the subject of the misrepresentation. One who falsely declares himself free from consumption cannot effect a valid insurance on his own life, though he die of cholera. A soldier or a sailor who warrants himself a merchant, has a void policy, even though he is not slain in battle or does not perish at sea. In such cases the whole contract is entirely void, as much as if it had never been made, and of course it cannot derive any force or validity from a subsequent event. Clark v. Manufacturers’ Insurance Company (8 How. 235), cited by the plaintiff for the contrary doctrine, does not sustain it.

It is contended that the misrepresentation, to he fatal, must relate to some fact which would not only increase the risk, but also induce the insurer to demand a higher premium. The authority produced in support of this, is the Columbia Insurance Company v. Lawrence (2 Pet. 25; S. C. 10 Peters 557). The opinion in that case is expressly grounded on the construction of what are called the “fundamental rules” of the company there sued, and has no application to the question here. The law undoubtedly is, that a policy like the present one will be vitiated by the misrepresentation of any fact which would increase the risk merely; and so the general rule was laid down by C. J. Marshall, in the case cited. The policy before us provides, that it shall be void if the declaration be found in any respect untrue. This, of course, does not include inaccuracies which are not material. But anything which increases the risk cannot be immaterial.

The questions, whether there was any misrepresentation; whether, if there was, it related to a fact which increased the risk; or would, if known, have influenced the company to demand a higher premium, or to decline the contract altogether, were all submitted to the jury on legal evidence, and with instructions which, in our opinion, are not open to any just exception.

VI. The Court very properly charged, that the occupation of the insured, which his duty required him to disclose, was that business which he was engaged in at the time he made his application. If it meant the trade he learned in his youth, and which he had followed years before, it would indeed be immaterial whether he told the truth or a falsehood, and it would have been mere folly in the insurers to ask him the question.

VII. The testimony of the clerk was rightly admitted. He swore, in substance, that a farmer’s occupation was considered the least hazardous; that an extra premium would be charged for insuring one who was running on railroads; that no rates were included in the published tables except for occupations deemed safé; that he considered slave-catching much more hazardous than farming, and that they (the company) would not insure a person at any price who was known to be engaged in it.

It would have been wrong to exclude this on the ground that the printed tables (which are the same as those published by other offices) contained no reference to the occupations which are deemed extra hazardous. There was a good reason for omitting it. On persons pursuing some of these occupations no risk would be taken at all, and therefore no rates could be affixed to them. Upon others, the extra premium charged would depend so much on the particular circumstances, that a rule could not be given. But this omission to say in the printed tables that a slave-catcher would not be insured, is certainly no reason why one who follows that business might lawfully impose himself on the company as a farmer.

The mere opinion of a witness who knows no more about the subject than the jury, and who undertakes to draw from facts already proved deductions which they can make as well as he, is not admissible. An example of this is found in Jefferson Ins. Co. v. Cotheal (7 Wend. 72), where such evidence was rejected for the soundest reasons. How far the effect which a particular fact ought to have on the risk or the premium may be proved by witnesses conversant with the business, is a vexed question. But though the cases conflict seriously, I think none of them go so far as to say that one who knows the practice not only of the particular office, but of insurance offices generally, may not give his opinion of the influence which a given fact would have had as an element in the contract. Certainly this is the opinion supported by the strongest authority and the best reasons.

VIII. There is no rule of evidence which would have given the Court the slightest excuse for admitting the declaration of the assured in favor of his own representative.

IX. The conditions of the policy are, that it shall be null and void “ if the assured shall die by Ms own hand, in or in consequence of a duel, or by the hands of justice,” &c. The plaintiff argues that the first clause here quoted does not embrace a suicide committed by swallowing arsenic. Where parties have put their contract in writing their rights are fixed by it. But the contract is what they meant it to be, and when we can ascertain their meaning from the words they have used, 'we must give it effect. One rule of interpretation is, that we must never attribute an absurd intent if a sensible one can be extracted from the writing. No absurdity could be greater than a stipulation against suicide in a duel. The words “die by his own hand” must, therefore, be disconnected from those which follow. Standing alone, they mean any sort of suicide.

Besides this, the Court was very plainly right in charging that if no such condition had been inserted in the policy, a man who commits suicide is guilty of such a fraud upon the insurers of his life that his representatives cannot recover for that reason alone.

Judgment affirmed.

Woodward, J., dissented.

Lowrie, J., was absent during the argument.


author: Lewis, J.

text:
    Coxe versus Sartwell.
    1. Where a purchaser at treasurer’s sale of land sold for taxes, upon claim of a right to redeem, conveys or assigns the legal title to the claimant, on receiving the amount of the redemption-money, the transaction is a redemption; the assignment or conveyance passes no title, and the assignee or grantee has none to convey to another person.
    2. Notice to a grantee of the purchaser, or to one claiming under such grantee, that the land has been redeemed, is not necessary in any case.
    3. A redemption having been effected by one partner in the transaction with money furnished by the other, it was Held, that the latter was to be affected with notice of the acts of the party redeeming in effecting the arrangement.
    4. The admission in the body of a deed of the payment o'f the consideration, or the receipt at the foot of it, is sufficient to give effect to the deed as against the vendor; but it is not evidence to extinguish the title of a third person on the ground that the vendee is a purchaser without notice of such third person’s right. To constitute the party a purchaser without notice, he must prove, independently of the receipt on the deed, the payment of the consideration before he had notice of the plaintiff’s equity.
    5. Though no one but the owner or party interested has a right to redeem against the will of the purchaser, yet if the latter accepts the redemption-money, the sale is avoided and the redemption enures to the benefit of the rightful owner. See also Orr v. Cunningham, 4 W. <& Ser. 294.
    Error to the Common Pleas of McKean county.

    This was an action of ejectment to May Term, 1848, by Richard S. Coxe v. Solomon Sartwell, to recover three tracts of land, the warrants for which were numbered 2520, 4962, and 4968. It was testified on the trial that the two tracts first above named, had been sold for taxes of 1848-49, and purchased by George W. Sartwell. The deeds by the treasurer to him were acknowledged on October 15, 1850.' The Court charged that this purchase showed an outstanding title in the said George W. Sartwell to the said two tracts, and the attention of the jury was limited to the title to the other tract, numbered 4968.
    This tract had belonged to the Holland Land Company by warrant from the Commonwealth, and the title to it passed by various conveyances to the plaintiff. It was sold for taxes of 1842 and 1843, and by deed-poll, dated 30th September, 1844, was conveyed by the treasurer to William S. Oviatt for $24.37.
    It appeared to have been again sold in 1846, for taxes of 1844 and 1845, and was conveyed by deed of the county treasurer, dated in December 1846, to Elias J. Qoohe.

      ■ Wm. S. Oviatt, the first purchaser, by deed dated September 30, 1846, conveyed No. 4968 to Z. C. Cowley; and Cowley by deed, dated December 31, 1846, conveyed to Solomon Sartwell, the defendant.
    E. J. Cooke, by deed, dated August 28, 1848, conveyed to Solomon Sartwell, the defendant, and Charles Steele.
    The Court below charged that the title to this tract, No. 4968, was vested in the defendant by the assignment by Oviatt to Cowley of 30th September, 1846, and of Cowley to Sartwell, defendant, of December 31, 1846, and by the assignment of Cook to defendant and Steele of August 28, 1848, unless in consequence of ’ Sartwell’s connection with Brewster Ereeman, he held as a trustee for the plaintiff.

    • As to his connection with Ereeman. On the part of the plaintiff there was given in evidence a written agreement, dated 18th October, 1842, between Richard S. Coxe, the plaintiff in this suit, and Brewster Freeman, by which . Coxe agreed to convey to Freeman a number of tracts of land in McKean county, exceeding 7000 acres, at 50 cents per acre, tract No. 4968, stated as containing 978 acres, being included. The payments were to be made in four equal annual instalments, and Freeman was to execute a mortgage of the premises sold. It was further agreed by Freeman, that he would pay the taxes on the said lands, and if the purchase-money be not paid as agreed, that he would re-convey the lands not paid for.
    There was further given in evidence on part of plaintiff, an agreement in writing, dated 25th January, 1847, between Solomon Sartwell, C. Steele, and Brewster Freeman, in which it was stated, that by an agreement between Freeman and Sartwell made “ sometime since,” it was agreed that Freeman was to furnish to SartVeil five warrants of land in Shippen township, McKean county, No. 4968 being one of them. It was stated to be understood, that Sartwell and Steele were to take the lands and pay Ereeman one-half of what they have cost him, including all taxes and costs till that time; the half stated to be $188.82. Sartwell and Steele were to sell the lands and pay to Ereeman the one-half of the net proceeds, &c.
    It was agreed that Sartwell and Steele were not to sell the lands under sixty cents per acre without consulting Ereeman, and that the amount already paid to Oviatt and for taxes, amounting to about $150, is “to apply to Ereeman as part of the $188.82.”

      W. S. Oviatt testified that he bought the three tracts, Nos. 2520, 4962, 4968, on 30th September, 1844. That he received from Z. Q. Cowley the amount of redemption for these tracts; and supposed he made a conveyance to him of his interest. He said that Brewster Freeman made the arrangement for the redemption ■ previously, — and that he exhibited a contract with R. S. Coxe for these lands, to show his right to redeem, &c. He said that he received the amount he paid and 25 per cent.

      F. J. CooJe testified that he bought Nos. 2520 and 4968 in 1846 at treasurer’s sale. That in December, 1846, Steele spoke to him about redeeming. He had no recollection that Sartwell called on him. That Steele paid the money, and he transferred to Steele & Sartwell. He did not recollect of Ereeman’s calling with Steele. He further said that Steele claimed the right to redeem, and that he and Sartwell were the owners. That he executed a deed, and that the consideration of it was the amount of his bid and 25 per cent. That Steele said he preferred having his deed rather than to redeem. That he asked him to transfer his deed.
    There was also given in evidence the assignments of Oviatt to Cowley, dated September 20, 1846, of the three tracts, including No. 4968.
    Also deed of Cowley to Sartwell for the same three tracts, the consideration stated to be $110.
    Also; assignment E. J. Cooke to Steele & Sartwell, dated Eeb. 28, 1848, of No. 4968, consideration $30.55. Also; assignment of same to same of No. 2520, consideration $30.84.
    On the part of the defendant, Brewster Ereeman was examined, and, inter alia, testified that his recollection was that all the negotiations with Sartwell took place after the time for redemption had expired as to the sales made in 1844. On cross-examination, he said that he made the arrangement with Sartwell, just before Cowley transferred to him; (the date of that transfer was 31st December, 1846), that it was about that time he had the first conversation with Sartwell.
    He had previously said, when examined on the part of the plaintiff, that he was directly interested in the whole matter in controversy in the suit.
    On part of the plaintiff points were submitted:
    1. That the plaintiff has shown a perfect title to the land for which this suit is brought, from the Oommonwealth of Pennsylvania.
    2. That Brewster Freeman, having contracted with the plaintiff, on the 18th day of October, 1842, for the purchase of the land claimed by the plaintiff in this suit, and having agreed in said contract to keep the taxes paid on said lands, the defendant cannot acquire any title to them by virtue of any treasurer’s sale for taxes, he, the defendant, having been persuaded or induced to do so by contract with Brewster Freeman.
    3. That the defendant, having entered into a contract with. Freeman, by which Freeman was to procure the title to the lands and share in the proceeds arising from the sale of them, the defendant is presumed to know the connection or contract that existed between Freeman and the plaintiff, and cannot set up any title to defeat the recovery in this suit.
    4. That the contract of 25th January, A. D. 1847, between the defendant and O. Steele and Brewster Freeman, reciting a previous agreement or contract between the defendant and Brewster Freeman, is evidence that the defendant knew of the existence of the contract between Brewster Freeman and It. S. Coxe, the1 plaintiff; and that the defendant is in no better situation than Brewster Freeman, and is bound in good faith and honesty to keep the taxes on said lands paid; and to permit them to be sold for taxes -would be a fraud, and that he could derive no title thereby against the plaintiff.
    That from all the evidence in the case the plaintiff is entitled to recover.
    White, President J., inter alia, charged: “Brewster Freeman could not have acquired a title as against Coxe, by purchase at treasurer’s sale for taxes, or by purchase from William S. Oviatt, E. J. Cook, or any other person who might have bought at treasurer’s sale. By the terms of his contract with Coxe he was bound to pay the taxes, and his neglect to do so, and permitting the lands to be sold by the treasurer, was a fraud on Coxe, and any title he might acquire would enure to Coxe’s benefit.
    “ But his arrangement with Coxe would not thus affect every sale made by the treasurer. It would not affect the title of a purchaser who had no connection with Freeman, but who was buying for himself, even if he knew of the arrangement between Coxe and Freeman. Nór would it affect Sartwell although he had made a contract with Freeman by which Freeman had agreed to procure and did procure a conveyance to him of the title by treasurer’s deed from Oviatt, unless Sartwell had notice of the contract between Coxe and Freeman. Without such notice, Sartwell had a right to contract with Freeman for the legal title to the lands existing in another, and to hold it unaffected by any secret equities or trusts that the relations of Coxe and Freeman would create between themselves.
    “ Such notice cannot be presumed or inferred from the fact that Freeman had an unrecorded article of agreement with Coxe for the purchase of the lands, nor from the fact that defendant had entered into a contract with Freeman, by which Freeman was to procure the title to the lands for defendant, and to share in the proceeds arising from their sale; nor from the recital in their contract of the 25th January, 1847, of a previous agreement between defendant and Brewster Freeman. The notice must be ‘ actual, express, or circumstantial.’
    “Whether defendant had such notice or not, is a question of fact, to be determined by the jury, and may be found by them from all the evidence in the cause having relation to the subject of notice, if there is any evidence on that subject. I am at a loss, however, to know where to find such evidence, and in the absence of it, will not instruct you to presume its existence. I therefore refuse to instruct you as prayed for by plaintiff’s counsel, ‘ That from all the evidence in the cause, plaintiff is entitled to recoverand say to you that, in the absence of actual, express, or circumstantial notice to defendant of the contract between Coxe and Freeman, he is not affected by that contract, and that he is entitled to a verdict.”
    Plaintiff’s counsel excepted to the charge.
    It was assigned for error: 1. The Court erred in charging the jury that notice could not be “presumed or inferred,” from the fact that defendant had entered into a contract with Freeman by which Freeman was to procure the title to the lands for defendant, and to share in the proceeds arising from the sale, nor from the recital, in the agreement of the 25th January, 1847, of a previous agreement between defendant and Brewster Freeman.
    2. That the notice must be “ actual, express, and circumstantial,” and in the absence of such notice the defendant is entitled to your verdict.

      Williston and Maynard, with whom was Gcoodrieli, for plaintiff in error.
    — The Court instructed the jury that Freeman could not acquire a title as against Coxe, by treasurer’s sale for the nonpayment of taxes, because by his agreement, dated October 18, 1842, with Coxe, lie was bound to pay the taxes, and the acquisition of title under these circumstances would be a fraud against Coxe — but that Sartwell would not be thus affected for want of notice. It was contended that as Sartwell was a partner with Ereeman by the contract of 25th January, 1847, that he was also precluded from acquiring title against the plaintiff. Whatever is sufficient to put a purchaser on an inquiry which would lead to a knowledge of the adverse claim, is sufficient to affect him with notice of it: 7 Watts 167.
    It was contended that although an assignment of the treasurer’s deeds was procured, yet that it amounted only to a redemption. Also, that the Court erred in charging that the notice must be actual, express, and circumstantial, under the circumstances of this case, and that the defendant was not affected by the contract by which Ereeman (his co-tenant) acquired title; and that the defendant was entitled to a verdict from the evidence adduced in the cause.

      Brown, contra.
    — It was said to have been testified by Ereeman that the negotiations between him and Sartwell took place after the legal title had passed from Coxe, viz., about three months after the expiration of the time for redemption from the sale to Oviatt in 1844. That it was an agreement to procure title to lands in which the plaintiff -had no interest, and was made about the time of the transfer by Cowley to Sartwell. The assignment by Oviatt to Cowley was not a redemption, but a transfer of the purchaser’s right: Orr v. Cunningham, 4 W. & Ser. 298.
    It was said that there was no notice either actual or legal to Sartwell of the contract between Coxe and Ereeman, and that the former was not to be affected by equities between them of which he had not notice: 4 W. & Ser. 102; 2 Watts 459; 14 Ser. & R. 333; 8 Id. 495; 1 Jones 409.
    It was said that the defendant had shown an outstanding legal title to two of the tracts, and a title in himself and Steele to the other, obtained for a valuable consideration and without notice of the contract between Coxe and Ereeman.
    September 6, 1853,
   The opinion of the Court was delivered, by

Lewis, J.

— This is an ejectment brought by Richard S. Coxe, for the recovery of three tracts of land in McKean county. The plaintiff below gave in evidence a regular title to himself, derived from the Commonwealth. The defence, so far as respects two of the tracts (numbered 2520 and 4962), fully establishes an outstanding title in George W. Sartwell, .under his purchase, at the treasurer’s sale, in 1850, for the non-payment -of the taxes of 1848 and 1849. This sale not only extinguished the plaintiff’s title, but put an end to that of Sartwell and Steele, under their purchase of No. 4962, at the treasurer’s sale of 1846, for the taxes of 1844. We are therefore to consider the effect of the treasurer’s sales to W. S. Oviatt and Elias J. Cooli, upon the remaining tract, numbered 4968.

The sale to Oviatt was for the taxes of 1842. His treasurer’s deed is dated Sept. 80, 1844; the assignment by him to Zenis C. Cowley is dated Sept. 20, 1846, and the deed from Zenis C. Cowley to Sartwell is dated Dec. 31, 1846. But it appears, from the agreement between Brewster Freeman, of the one part, and Solomon Sartwell and Charles Steele, of the other, elated the 25th January, 1847, that the conveyance from Cowley to Sartwell was not a direct and bond fide purchase by Sartwell from Cowley, but was intended as a mere transfer of the legal estate, under an arrangement between Brewster Freeman and Solomon Sartwell, by which the latter was to pay one-half of what the tract cost Freeman, and was to sell the lands for the joint benefit of both parties. It appears, by the same agreement, that the money paid to Oviatt and for taxes, amounting to about $150, was to apply to Freeman as part of the “ one-half of what the land cost him,” to be paid by Sartwell. Thus Sartwell evidently furnished the money which was paid by Cowley to Oviatt, and received a credit for it in his contract with Freeman. The object of the agreement of 25th January, 1847, as is apparent from its face, was merely to put in writing the previous verbal contract, and to admit Charles Steele into a participation as a partner of Sartwell’s. What, then, was the nature of the assignment from W. S. Oviatt to Z. C. Cowley? Was it a purchase of a legal title under a sale for taxes, or a redemption, within the two years allowed for the purpose,.which invalidated that title ? The assignment from Oviatt to Cowley was made before Oviatt’s title had become perfect by the expiration of the time allowed for redemption. The consideration paid to Oviatt was precisely the sum required by law for the purpose of redemption — the sum which Oviatt was bound to receive if tendered to the treasurer by the owner. The money was paid and received under a claim of Brewster Freeman’s right to redeem. Freeman called on Oviatt, asserted his right to redeem, under his contract with Coxe, the present plaintiff, and exhibited that contract as evidence of his right to redeem. By that contract, which is dated the 18th Oct. 1842-, Freeman had agreed to purchase the lands of Coxe and to pay the taxes on them. He made the arrangement with Oviatt for the redemption from, not for the purchase of Oviatt’s title, named Cowley as the person to carry it out; and Cowley “ did redeem’.’ accordingly. By the contract with Coxe, Freeman was bound to pay the taxes which' existed against the land at the time of the contract. His covenant expressly covered these taxes, and his equitable title, as purchaser, bound him for the taxes to be assessed afterwards. Under that contract he had an undoubted right to redeem, and that his arrangement with Oviatt amounted to nothing more is too clear for argument. If Cowley or Sartwell intended to acquire title under the treasurer’s sale, they should have given the transaction the form of a purchase!, by waiting until Oviatt’s title became perfect and then dealing with him on the footing of one who had a title. By giving the transaction that form, two parties would be constituted as a necessary element in the contract. Oviatt, as one of them, would have had the right to sell or retain the land at his pleasure, and, in case of a sale, to fix upon his own terms. He might have demanded something approximating to the value of the land. These were disadvantages which it was not the pleasure of Mr. Freeman to encounter, and therefore he dealt with Oviatt as one who had none of the rights of an owner — who had no claim upon the land further than as a security for the amount of his bid and the per centage allowed by law, and whose imperfect, title it was in the power of Mr. Freeman to invalidate at any moment within the two years, by a tender of that sum to the treasurer. Oviatt, therefore, instead of selling his title under the treasurer’s sale, yielded to the necessity of the case, and at Mr. Freeman’s request consented to an act which totally avoided it: Orr v. Cunningham, 4 W. & Ser. 294. All purchasers of titles to land, derived under treasurers’ sales for non-payment of taxes, take them subject to two contingencies. They may be avoided upon proof of payment of the taxes before the sale, or by a payment or offer of the redemption-money to the treasurer within two years thereafter. These acts are not required by law to be recorded. Until the Act of 14th April, 1840, there was no provision made for recording the treasurer’s receipt for the redemption-money. By- that Act it may be entered by the prothOnotary, but this is at the election of the owner whose rights are expressly protected by the Act from being in any way affected by the omission: Dunlop 910. The assignment by Oviatt to Cowley did not change the character of the transaction. The receipt of the redemption-money avoided his title. He had nothing to convey to Cowley; and Cowley had therefore nothing to convey to Sartwell.

We are of opinion that notice of the redemption of land sold for non-payment of taxes is not necessaiy in any ease. We are also of opinion that the redemption effected in this case by Freeman, the partner of Sartwell, by means of the money of Sartwell, is to be treated as the act of Sartwell himself; and that he stands affected with notice of all that Freeman did in effecting the arrangement. But if this were not so, there is no evidence whatever that Sartwell paid any consideration to Cowley so as to entitle the former to raise the question of notice. The receipt in the body of the deed, or at the foot of it, is sufficient evidence to give effect to the conveyance as against the vendor; but it is no evidence to extinguish the title of a third persou on the ground that the vendee is a purchaser without notice of such third person’s right: U. Canal Company v. Young, 1 Whart. 432; Bolton v. Johns, 5 Barr 151. To entitle Mr. Sartwell to assume the position of a purchaser without notice, he must prove, independently of the receipt of the grantor in the deed, that he actually paid the consideration before notice of the plaintiff’s equity. A bond fide purchaser is entitled to protection only to the extent of the money paid before notice: Youst v. Martin, 3 Ser. & R. 433.

The treasurer’s sale to Cook stands no more in the way of the plaintiff than does that to Oviatt. The evidence of Cook shows clearly that he made no sale of his title to Steele and Sartwell; that on the contrary Steele claimed the right to redeem; said that he and Sartwell were the owners, aind actually did redeem by paying the redemption-money only. In this case the act of Steele was the act of both, and notwithstanding that he procured a conveyance from Cook to himself and Sartwell, both must he deemed cognisant of the real nature of the transaction. Both are bound to know that the pretended purchase from Cook was no purchase at all — that it was a redemption and not a purchase. It is true that none but the owner or a party interested can redeem against the will of the purchaser; but if the latter accepts the redemption-money, the sale is avoided and the redemption enures to the benefit of the rightful owner as effectually as a payment of 'taxes by a stranger would have enured to his benefit and have defeated a subsequent sale by the treasurer.

The Court erred in refusing to instruct the jury that so far as regards tract No. 4968 the plaintiff was entitled to recover.

Judgment reversed and venire facias de novo awarded.


text:
    Hartman’s Appeal.
    1. It is not neoessai'y that the decrees of the Orphans’ Oourt should be drawn up at length during its session.
    2. A recognisance of an heir, taking lands at the appraisement thereof, need not be taken in open Oourt. Where it is ordered to be taken, the amount fixed and the parties named by the Oourt, it may he reduced to writing by the clerk after the adjournment of the Oourt.
    3. Such, recognisance need not be copied at length upon tbe Orphans’ Oourt docket. A minute of it on the docket is sufficient to give notice to purchasers or creditors of the existence of the lien.
    This was an appeal by George Hartman from tbe decree of the Oourt of Common Pleas of Union county, ordering distribution of the money raised by the sheriff’s sale of the real estate of John Hartman, jun., and paid into Court.
    John Hartman, jun., being engaged in the mercantile business, and seised of valuable real estate, became largely involved. Among other real estate owned by him at the time of his failure, was a tract of ninety acres of land, purchased by him from Charles Pisher. This tract of ninety acres’was part of the estate of George Pisher, deceased, the father of the said Charles Pisher, and was taken by the latter at the valuation, under a writ of partition or valuation, issued out of the Orphans’ Court of Union county, returnable to December Term, 1833.
    On the petition of Charles Pisher, praying to be allowed to take said real estate at the valuation, the following endorsement was made:
    “ Dee. 18, 1833, read, and property adjudged to petitioner on his giving bonds, with one security and recognisance. — Leonard approved of as surety.”
    This was not entered on the docket, but a full decree drawn by the Court was entered on the docket.
    The Court at December Term, 1833, adjourned finally on the 21st of December; and upon the 26th, five days after, a paper was filed, purporting to be a recognisance, signed by Charles Pisher and Leonard App, taken and acknowledged on the same day, before the clerk of the Orphans’ Court. This paper was never copied on the docket.
    John Hartman, jun., purchased this property from Charles Pisher about the year 1847, and failed in the fall of 1851.
    On the 24th of November, 1851, Q-eorge Hartman, the appellant, obtained a judgment against John Hartman, jun., for $6980. Previous to this, other judgments to a large amount had been entered against John Hartman. Executions were issued on the judgments of George Hartman, and others — the real property of John Hartman, jun., including the above-mentioned ninety acres, was levied upon, condemned and sold by the sheriff, and the money paid into Court. The ninety acres was sold for above $5000.
    Sarah Pry, late Sarah Pisher, a sister of the said Charles Pisher, and daughter of George Fisher, deceased, claimed her share of her said father’s estate, out of the money thus in Court, under the recognisance given by Charles Pisher, above mentioned. George Hartman claimed under his judgment. The Court decreed that the claim of Sarah Pry, amounting to $1794.29, be paid out of the fund. Prom this decree George Hartman appealed.
    It was admitted that the shares of the other heirs of George Pisher of the appraised value of the ninety acres had been paid. The widow of George Pisher died in December, 1849.

      "Various exceptions were filed: 1. That the Court erred in decreeing the payment to Sarah Fry. 2. In deciding that the clerk had power in vacation to take the recognisance. 3 and 4. In deciding it to be a lien — as, though filed, it had not been entered of record in the Orphans’ Court docket. 5. In deciding that it was no forced construction to presume that the recognisance was taken by the clerk and filed of record by direction of the Court, in pursuance of their adjudication, and that the requisition of the Act of Assembly was complied with. 6. In not decreeing the money, to the judgment of George Hartman.
    , The names of the counsel did not appear on the paper-books or on the minutes.
    September 7, 1853,
   The opinion of the Court was delivered, by

Knox, J.

— Two objections are made against the validity of the lien of the recognisance in this case.

1st. That it was taken by the clerk of the Orphans’ Court in vacation.

2d. That it was not entered at large upon the record.

The facts are these. On the 18th December, A. D. 1833, Charles Eisher presented his petition to the Orphans’ Court of Union county, praying to be allowed to take a part of the real estate (to wit, 90 acres) of his deceased father at the valuation made by the inquest. The following endorsement was entered upon the petition —“ Read, and property adjudged to petitioner on his giving bonds, with one security and recognisance. Leonard approved as surety.”

The petition was copied into the Orphans’ Court docket with the following entry immediately below it:

“Whereupon the above petition being read and heard, it is considered and adjudged by the Court, that Charles Fisher, eldest son and heir-at-law of the said George Eisher, deceased, shall and may upon paying, or securing to be paid unto the other children and representatives of the said deceased, their equal and proportionable parts of and in the valuation aforesaid, within twelve months from this- time, hold and enjoy the real estate of the said deceased, valued as aforesaid, to him, his heirs and assigns for ever, as fully and. freely as his said father had and held the same in his lifetime, agreeable to the Act of Assembly in such case made and provided.

And the said Charles Eisher offering to the Court Leonard App as surety for the payment of the shares and dividends aforesaid, who is approved of and accepted as surety.” By the Court.

Then follows the entry: “ Recognisance filed and bonds given.”

The recognisance is in due form, purporting to be taken and acknowledged on the 26th day of December, 1833, before J. Stilwell, clerk of . the Orphans’ Court, and filed amongst the records the same day, which was four days after the adjournment of the Court for the December Term.

It is clear that this recognisance was taken by the clerk in pursuance of the direction of the Court to that effect; and even if it were necessary (which it is not), that the orders and decrees should be drawn up at length whilst the Court is in actual session, we might presume that the Court was open on the day of the date of the recognisance, as the Orphans’ Court being a Court of Equity is presumed to be in session upon all juridical days, at least so far a,s necessary to carry out its own orders and decrees. Again, a recognisance need not be taken in open Court. Where it is ordered to be taken, the amount fixed, and the parties named by the Court, its ministerial officer, the clerk, can reduce it to writing without the judges or any of them being actually present.

Neither is there anything in the statute or common law which requires that a recognisance when taken should be copied at length upon the Orphans’ Court or other docket. A minute such as was made in the present ease, that it had, been taken and filed, is amply sufficient to give notice to purchasers or creditors of the existence of the lien.

We approve of the practice, which is now nearly or quite universal, of taking recognisances to secure the rights of heirs and others in proceedings in partition. It unites both real and personal security, and we are not disposed to interfere to prevent a party from receiving his or her just claim upon grounds so exceedingly technical as those sought to be interposed here.

Decree affirmed.