text:
    Rewalt versus Ulrich.
    1. "Words in -wills, which, in relation to land, would create an estate tail, give an absolute right to chattels.
    2. Words that create a vested or an absolute estate, will not, on a doubtful implication from other words, be construed contingent or defeasible.
    3. Primd facie the first taker is the principal object of the testator’s bounty, and in doubtful cases the construction leans in favor of making the gift to him as effectual as possible.
    4. In doubtful cases the construction leans in favor of the heirs, and in favor of vesting at the death of the testator, or at the earliest possible period thereafter.
    5. The circumstances under which a will is made, as the state of the testator’s property, family, and the like, are often material aids in its interpretation.
    6. Where personal property is bequeathed to the testator’s children, and the child of a deceased child equally, and the grandchild’s portion has the qualification, that if she should “die without heirs,” it should be equally divided among his children “ and their heirs.” Held, that the granddaughter’s share vested absolutely on the testator’s death, she having survived him.
    Error to the Common. Pleas of Dauphin county.

    Action by William Rewalt and Elizabeth his wife, against the executors of her grandfather, Michael Ulrich, to recover a legacy claimed by her under his will. Her title to the legacy was not disputed ; but the defence was that her title was only for her life, with a quasi remainder to her children, or to the testator’s children, and that she had not given bail in accordance with the Act of Assembly; and this defence was sustained below.
    The whole case turned upon the construction of the words of bequest in her favor, which are as follows:—
    “ My granddaughter (Elizabeth) shall have one seventh part in right of her deceased mother, my daughter Elizabeth. Should, however, my granddaughter die without heirs, her seventh part shall then be equally divided among my six children before named, or their heirs.” He then directs his debts to be paid, and says “ the overplus shall then be equally divided among my children and granddaughter, 'share and share alike, to them as above named,” there being six children.

      McCormick, for the plaintiff in error,
    argued that these words would make an estate tail of land, and give an absolute title when referring to personal property, and cited Fearne on Rem. 467; 2 Jarm. on Wills 427, 442, 446; 2 Rop. on Leg. 353, 370; 1 Prec. Ch. 528; 1 P. Wms. 534; 6 T. R. 307; 17 Ser. & R. 293; 9 Watts 494.

      H. Alricks and JET. A. Alricks, for defendants in error.
    It was argued that tine expression “ die without heirs” was equivalent to a dying without issue living, and that therefore the implied limitation in favor of the legatee’s children, and the express one in favor of the testator’s children, were good, and the estate of the plaintiff was but a life estate; and cited 2 Jarm. on Wills 498, 499; 4 Pick. 198; Cro. Jac. 590; 6 Ser. & R. 460; 3 Barr 304; 5 Id. 266; 2 Id. 69; 2 Pick. 243; 2 Dessaus. 18; 8 Mass. 29; 10 Johns. 12; Lewis on Perp. 324, 52 Law Lib.; 2 Rop. Leg. 396; 6 Ser. & R. 29; 2 Id. 59; 7 W. & Ser. 279; 6 Beav. 412; 9 Watts 494.
   The opinion of the Court was delivered by

Lowrie, J.

If we take this provision just as it stands, it amounts to a gift to her for life, and then to her heirs, and that is equivalent to an absolute gift. But it is apparent that he meant issue by the word heirs: and if he had used that word, it is quite apparent that the clause would have been construed an entailment; and that, when relating to personal property, is also equivalent to an absolute gift. There is nothing here, as in many reported cases, that ought to induce us to reject this consequence of the word issue. Here the gift is absolute in the first instance, and the qualification of it uncertain. If the word heirs were technically accurate it would annul the qualification, and such is the effect of the word issue;' and yet in the mind of the testator those two may have had a widely different meaning. We ought not to substitute the word issue for the word heirs, and then refuse to it its technical meaning, especially when that favors the absolute vesting of the gift and equality among the testator’s heirs.

If we wrere to treat the gift as a life estate, the limitation over to his children and their heirs is not too remote; for the word heirs is improper; and besides, it is surplusage, because, without this, the gift over would vest in right in them on the testator’s death, subject to be divested on her death leaving issue, and of course would be transmitted in right to the representatives of those who die before the vesting in enjoyment. If we could treat it as an entailment, the same principle would govern in this respect.

And we cannot use the word “ then” as leading to a different construction of this qualification; for “then,” or “in that case,” or similar expressions are always used in these substitutionary clauses, and they all involve the idea of the time “then;” yet it is not from them, but from other parts of the will, that we learn what time is meant for the vesting. It is not the “then” that gives us the when.

Nor does the bequest over to his children “and their heirs,” express an intent to limit the granddaughter’s share to a life estate, for that is one of the most common of all limitations after an estate tail.

And we are not willing to admit that there is anything unreasonable in the result attained by the principle here assumed. An artificial rule applied to an artificial subject is not an illegitimate process. It may be true that in such cases a testator is seldom thinking of an indefinite failure of issue; but it is just as true that he as seldom thinks of the consequences of a contrary construction, and that very often he has no very definite thought about it. It is much more probable that he intended the gift to his granddaughter to be absolute if she should have issue, as she has, than that he intended to take it away if she should die without leaving any issue surviving her.

Certainly, he intended her to have the money; and most likely he never thought of his intention being defeated in this respect, by her being unable to give bail that she would not use the money. Possibly, ho intended merely to provide for her death in his lifetime. It is not at all likely that he intended her children, not yet born, or his legatees over after them, to have the principal benefit of this gift. That the gift is to her, proves that, as to it, she was the principal object of his bounty.

There is nothing more common than for testators and their scriveners to write the clauses of their wills from some form book, where they find their thought approximately expressed, without thinking very clearly on the subject, or studying the effects of the provisions which they find made to their hand. In such cases the construction which the law puts upon their expressions is apt to be quite as appropriate as any which they would have made themselves, and quite as suitable to unanticipated events. In this class of cases the usual construction has the merit of vesting the legacy absolutely at the earliest possible date, and of making it available to the primary object of the testator’s bounty; and in the present instance, it favors equality among his heirs.

We have often felt that our duty in construing wills would be much more satisfactorily performed, if we were more fully advised of the circumstances under which the will was made, as the state of the testator’s property, family, and the like: 2 Jarm. on Wills 742; 2 Pow. on Devises 6; 20 State Pep. 59. We do not think that such information would have been useless here.

Judgment reversed and judgment for the plaintiff.


source: Caselaw Access Project

author: Lowbxb, J.

license: Public Domain

text:
    The Borough of York versus Forscht.
    1. "Where a reward is offered for the detection and conviction of an offender, and a person is detected and convicted, the record of conviction is evidence, in an action for the reward, that the person convicted is the true offender.
    2. It is within the legitimate province of the burgesses of a town to offer rewards for the detection of offenders against the general safety of its inhabitants.
    Error to the Common Pleas of Torle county.

      Assumjmt by Samuel Forscht against the borough for a reward of $1000, offered by the burgesses for the detection and conviction of the person who set fire to Mrs. Beitzel’s barn in said borough, on the evening of the 22d December, 1850. Forscht made information against one Michael Fisher, and he was tried and convicted. The principal points in the cause were as to the authority of the burgesses to offer such reward, and as to the competency of the record of conviction as evidence of the identity of the offender. The Court below, Graham, P. J-., decided both points in favor of she defendant in error.

      Divans and Mayer, for the plaintiff in error,
    on these points relied on the charter of the borough and its several supplementary Acts, and on Freeman v. Boston, 5 Metcalf 56; Stetson v. Kemp-ton, 13 Mass. 272; McDermond v. Kennedy, Brightly’s Rep. 332; Commonwealth v. McWilliams, 11 State R. 61; King v. Boston, 4 East 572; Burdon v. Browning, 1 Taunt. 520; Smith v. Rummens, 1 Camp. 9; Hathaway v. Barrow, Id. 151; King v. The Warden, 12 Mod. 337; Respublica v. Smith, 2 Dall. 240; Same v. Sheppard, 2 Yeates 4; Same v. Wright, 1 Id. 401; 1 Starkie Ev. 278-280; 1 Greenl. Ev. 537.
    Burhee, with whom was Keyser, for defendant in error.
    They relied principally on Mead v. The City of Boston, 3 Cushing, 404.
   The opinion of the Court was delivered by

Lowbxb, J.

It is not denied that the record proves a conviction as an act of the Court, and thus makes out one condition upon which the reward depends ; but it is insisted that it does not tend to prove in this proceeding that Michael Fisher is the guilty person, which is the other condition of the reward.

The Court below held that the record of conviction was primé facie evidence of the guilt of Fisher for the purposes of this case, and this is in accordance with the case of Mead v. City of Boston, 3 Cushing 404.

It is certainly true, as a general rule, that a conviction in a criminal case is not evidence, in a civil case, of the fact upon which it is founded. And the reasons usually given, are, because it may have been produced by the testimony of the party interested in establishing the fact; because a contrary rule is wanting in mutuality, and because the parties and rules of proceeding in the two cases are different.

None of these reasons apply to the present ease: because this is not against the party convicted; because, as in penal actions, the expected reward does not affect the competency of the witness; because here there is mutuality, for the conviction is a necessary element of the case; and because, by the nature of the contract, the result of a case, to be instituted between other parties, is appealed to, and made a test of the relation of these parties to each other. The rule does not apply to this case, because its reasons do not.

The proceeding in penal actions is a very direct analogy in support of the evidence. There, a reward is offered for the detection and conviction of offenders, and the right to it is established by the very proceeding that produces the conviction. Here the substance is the same, though the form of proceeding is necessarily different. The conviction is had in one proceeding, and the reward recovered in another; and this difference admits the defence, in the latter case, that the conviction was obtained by fraud, mistake, or perjury ; or, in other words, that the consideration has failed.

The present case may be stated thus: The burgesses of York are a part of the public police. It is therefore the state, by one of its departments, that offers a reward forVhe detection and conviction of an unknown offender against its laws. The plaintiff below professes to have made the detection, and points out the offender. The state then takes up the matter, and proceeds in its own way to ascertain whether or not this is the real offender, and decides that he is. Surely the state, or the department immediately concerned, is bound to admit that the reward is earned.

Besides this, the very purpose of conviction, in its relation to the reward, is to ascertain the fact of detection, and for that purpose alone it is made a condition of the reward. To it the offer of the reward appeals, and by it the defendants below are hound, unless error be shown.

It will be seen that these views rule most of the points raised below against the plaintiff in error. As to the others, we must content ourselves with saying that we see no error in them, and that it is within the legitimate province of the burgesses of a borough to offer rewards for the detection of offences against the general safety of the inhabitants.

Judgment affirmed.


author: Woodward, J.

text:
    Coleman versus Grubb.
    1. By a written agreement of 6th May, 1786, between persons interested in the Cornwall and other estates, it was agreed that partition be made, and that “the ore hanks hAonging to Cornwall Furnace he divided, into three parts” and that the parts considering quantity and quality be allotted.
    In a subsequent agreement dated 30th August, 1787, it was alleged that the former agreement could not be carried into execution without injustice to some of the parties, and it was agreed that “the ore banks belonging to Cornwall Burnace shall remain together and undivided as a tenancy in common, the parties interested to have certain portions, and that for this purpose an accurate survey shall he made of the said ore hanks and hills, if not- already done, and it is hereby declared to be the true intent and meaning thereof, that neither of the said parties, their agents or workmen, shall interfere or interrupt either of the other parties at any mine hole opened and occupied for the purpose of raising iron ore.”
    Another agreement was made on the same day as follows:—
    Whereas, It hath been suggested that the article respecting the ore banks and hills requires further explanation, and that it may so happen that veins of ore may extend beyond, the limits of the survey made lately by Thomas Clark, it is hereby expressly declared and agreed that the said Burd Grubb, Henry Bates Grubb, and Robert Coleman, and their respective heirs and assigns, shall have full liberty and privilege of ingress, egress, and regress, to and from the said mine hills, and shall have free and uninterrupted liberty and power to dig, sink shafts, drive drifts,'raise and carry away any ore that may be found to extend beyond tbe limits of the said survey, without doing any material damage to the iron works or plantations. And it is further agreed, that the privileges of the water are hereby secured in the most ample manner, for the use of the said Curtis Grubb and Robert Coleman, their heirs and assigns for ever, and that this memorandum be considered to all intents and purposes as part of the foregoing agreement.
    It was Held, that under the first agreement of August, 1787, the whole of the mine hills was exempted from partition, and were to be held in common, and that either of the parties in interest had the right to take from within the natural boundaries of the three hills either surface or vein ore, not interfering with openings made by either of the others, and “without doing any material damage to the iron works or plantations.”
    2. In the absence of any survey as referred to in the supplemental agreement of 1787, the said agreement is to be considered as an extension instead of a limitation of the rights of the tenants in common; and under the supplemental agreement shafts might be sunk and drifts made beyond the base of the mine hills for the purpose of mining veins found to be contained in the hills.
    3. If the terms of the agreements were doubtful the usage of the parties during two generations in taking ore from the hills for their respective furnaces would be an important element in their construction.
    4. Neither party could maintain trespass against the other for removing surface ore from one of the hills from above its base.
    5. The rule that judgment cannot be entered on a general verdict for a plaintiff where his declaration contains two or more counts one of which is bad, does not apply to the pleas of a defendant sued in trespass. If he have a single good plea which goes to the plaintiff's right of action, and a general verdict is rendered for him, he is entitled to judgment though some of his pleas were, bad, unless it appear that the evidence was inapplicable to his perfect plea.
    6. Though counsel has a right to submit his client's cause to reference, the latter may revoke the submission before it is acted on.
    Error, to tbe Common Pleas of Lebanon county.

    This was an action of trespass to August Term, 1852, by Ann C. Coleman and others, by their guardian John Reynolds, v. Samuel Houck and George Snow, for taking ore from one of the Cornwall ore banks or mine hills in Lebanon county.
    The plaintiffs claimed as heirs of Thomas Burd Coleman, deceased ; the defendants were teamsters in the employ of E. B. & C. B. Grubb, sons of Henry Bates Grubb, who claimed a right to take the ore in question.
    See the report of the case of Coleman v. Coleman, in 7 Harris, as to the question of partition of the Cornwall ore-banks.
    The Oormvall estate once belonged to Peter Grubb, Sr. On 3d December, 1737, he obtained a patent for 300 acres, which included the mine hills in question in this case, in which all mines and minerals are expressly granted to him; and in pursuance of a warrant in the name of Samuel Grubb, but belonging to Peter Grubb, dated 19th May, 1744, a tract of land was surveyed on 4th June, 1744, adjoining the tract on which the mine hills were, and in which the survey is described as “ beginning at a post, a corner of Peter Grubb’s mine land.”

      The Cornwall estate, the subject of partition, &c., in 1787, consisted of various tracts of land, containing together about 9000 acres. The Cornwall ore banks and mine hills, forming part of two tracts of land, numbered 1 and 2 in that proceeding, and containing together about 750 acres of land, were parts of the . Cornwall Furnace estate.

    The Cornwall estate, being formerly vested in Peter Grubb, Sr., on his death descended to his two sons, Curtis and Peter Grubb, the former under the then intestate laws taking two shares. Curtis Grubb conveyed the one undivided sixth to his son, Peter Grubb ; and the latter, on 9th May, 1787, in pursuance of articles of agreement, conveyed the one undivided sixth of the Cornwall estate so vested in him, to Robert Coleman, reserving to the grantor “ a quantity of iron ore sufficient for any one furnace at all times thereafter.”
    In 1785, Robert Coleman owned in severalty the Flizabeth Furnace estate; and the minor children of Peter Grubb, Sr., owned the Mount Hope Furnace estate.

    Thus, of the Cornwall Fxirnace estate, Curtis Grubb was owner of the undivided three-sixths; Robert Coleman of one-sixth; and Peter Grubb of two-sixths or one-third.
    On 9th December, 1785, Curtis Grubb, Peter Grubb, and Robert Coleman entered into an agreement for the partition of the Cornwall Furnace estate, Hopewell Forges, and Union Forge, on Swatara Creek, held by them in common, in which they appointed seven persons named to make valuation, appraisement and partition thereof; and provided that the ore • banks belonging to Cornwall Furnace be divided into three equal parts, and two equal third parts thereof, considering quantity and quality, be allotted to Curtis Grubb and Robert Coleman, and the other third part to Peter Grubb.

    Peter Grubb died after the execution of the said agreement, viz. on or about the 21st January, 1786, having devised his real and personal estate to his two sons, Burd Grubb and Henry Bates Grubb, to be equally divided between them; and by the will Jasper Yeates and others were appointed their guardians.
    Curtis Grubb, Robert Coleman, and Jasper Yeates and others, as guardians, entered into an agreement dated 6th May, 1786 (referring to the agreement of 1785), for the valuation and partition, &c., of the Cornwall Furnace property and other estate held in common, and providing that “ the ore banks belonging to Cornwall Furnace aforesaid, be divided into three equal parts,” and two equal third parts thereof, considering quantity and quality, be assigned and allotted to Curtis Grubb and Robert Coleman, and one-third part to Burd Grubb and Henry Bates Grubb, to be held by them respectively in severalty. Seven persons were appointed to make the valuation and partition, of whom Thomas Clark was one. In this agreement it was stated, “ that the right of Corn

      wall Furnace, with such parts of the lands and the privileges as shall he deemed necessary and equal, is expressly agreed to be assigned to the said Curtis Grubb and Robert Coleman, according to their several shares thereof.” An equivalent for their third part was to be rendered to Burd Grubb and Henry B. Grubb, in other of the real estate. Amicable actions of partition were to be entered into in Lancaster and Dauphin counties to effect the arrangements.
    Subsequently, another agreement, dated 30th August, 1787, was entered into by Curtis Grubb and Robert Coleman and four of the guardians, in which it was stated, that, whereas it hath been found on the fullest investigation that the agreement entered into between Curtis Gubb, Robert Coleman, and the guardians of the minor children of Peter Grubb, deceased, could not be carried into execution without injustice to some of the parties, and the same have been so represented by the parties appointed in the said agreement to make partition; therefore it was agreed that certain persons referred to (Thomas Clark being one) shall make partition of Cornwall Furnace, Hopewell Forge, and all the lands, &c., late the property of Curtis Grubb and Peter Grubb, according to quantity and quality, &c., and to assign and allot the same according to the real interests and conveniences of the several parties.

    “ Provided always, and it is hereby agreed, that the ore hanks belonging to Cornwall Furnace shall remain together and undivided as a tenancy in common, the said Curtis Grubb being entitled to three-sixth parts thereof, the said Robert Coleman being entitled to one-sixth part thereof, and the said minor children being entitled to the remaining two-sixth parts; and that for this purpose an accurate survey shall he made of the said ore hanks and hills, if not already done, and it is hereby declared to be the true intent and meaning thereof, that neither of the said parties, their agents or workmen, shall interfere or interrupt either of the other parties at any mine hole by them opened and occupied for the purpose of raising iron ore.”
    A subsequent agreement was entered into between the same parties, dated on the same day, as follows:—
    “ Whereas, it hath been suggested that the article respecting the ore banks and hills requires further explanation, and that it may so happen that veins of ore may extend beyond the limits of the survey made lately hy Thomas Clark, it is hereby expressly declared and agreed that the said Burd Grubb, Henry Bates Grubb, and Robert Coleman, and their respective heirs and assigns, shall have full liberty and privilege of ingress, egress, and regress to and from the said mine hills, and shall have free and uninterrupted liberty and power to dig, sink shafts, drive drifts, raise and carry away any ore that may be found to extend beyond the limits of the said survey, without doing any material damage to the iron works or plantations. And it is" further agreed that the privileges of the water are hereby secured in the most ample manner, for the use of Curtis Grubb and Robert Coleman, their heirs and assigns for ever, and that this memorandum be considered, to all intents and purposes, part of the foregoing agreement. In witness,” &c.
    In pursuance of such agreement, amicable actions of partition were entered into in the Common Pleas of Lancaster and Dauphin counties, and the referees, Thomas Clark being one, afterwards made report, which was dated the 31st August, 1787. They reported that they had vieAved the Cornwall Furnace, Hopewell Forges, Union Forge, and all the other real estate late the property of Curtis Grubb and Peter Grubb, and had allotted three undivided fourth parts to Curtis Grubb, and one undivided fourth part to Robert Coleman, of Cornwall Furnace, and lands “ hereinafter described and referred to in a draft or plot made by Thomas Clark, viz., No. 1 and No. 2, containing seven hundred and fifty acres, excepting thereout the draft of the ore banks and hills lately surveyed by the said Thomas Clark,” No. 3, containing 600 acres, &c., &c., allotting various portions of property to Curtis Grubb and Robert Coleman to be held in common as to each other, but in severalty as to the minor children of Peter Grubb. Other allotments were made to Curtis Grubb and Robert Coleman in severalty — Union Forge being allotted to Curtis Grubb. They further allotted to Burd Grubb and Henry Bates Grubb, Hopewell Forges, and certain lands “ described and referred to in the draft or plot aforesaid,” &c. They awarded the payment of $1704.43, with interest, by Burd Grubb and Henry Bates Grubb to Robert Coleman, and by Curtis Grubb to him of above ¿£31, and their report proceeded as follows: “ And we do further report, that the tract of land, Bigham’s Place, at Conewago, together with a small tract of forty acres of land adjoining thereto, and also the ore hanks and mine hills of Cornwall Furnace, do still remain undivided, to be held by the said Curtis Grubb, Robert Coleman, Burd Grubb, and Henry Bates Grubb, as tenants in common, according to their respective shares, and to the covenants and articles in the said agreement hereinbefore recited contained.”
    The report was confirmed and partition ordered.
    The estate of Curtis Cfrubh in Cornwall Furnace and the lands adjacent thereto, including the seven hundred and fifty acre tract hereinbefore mentioned, and also the estate of the said Curtis Grubb and the said Burd Grubb in the Cornwall ore banks and mine hills, became vested in Robert Coleman; and twenty-five undivided forty-eighth parts of the Cornwall ore banks and mine hills, and the Cornwall Furnace estate as aforesaid, were vested in the plaintiffs in this action when it was commenced.
    Six undivided forty-eighth parts of the Cornwall ore banks and mine hills, being the quantity of the estate held by their father,
      Henry Bates Grubb, at the time of the partition of 1787, were at the commencement of this action vested in Edward B. Grubb and Clement B. Grubb.

      The surface of the three hills whereon the Cornwall ore banks and mine hills are situated, had scattered over it in large quantities and partially imbedded in the soil, from the summit to the base, lumps or masses of ore, varying in size from a few pounds weight to several tons.

    In May, 1842, the defendants collected a portion of these and carried them away, under direction from Edward B. and Clement B. Grubb, and this suit was then brought, it being alleged, on part of plaintiffs, that this kind of ore, usually called nigger heads, was’ not within the terms o’f the partition of 1787, and that E. B. and C. B. Grubb had no authority to go beyond the bounds of Clark’s survey, except by commencing within it and digging outward, following veins of ore. Clark’s survey, and the construction of the partition of 1T87, were the main points at issue in the case.
    After the institution of the suit, an agreement in writing, dated 11th August, 1846, was signed b.y attorneys of the parties, by which it was agreed that E. B. Grubb and C. B. Grubb be substituted as the defendants; and it was agreed that at the institution of the suit, the fee simple in the land allotted by the referees to Curtis Grubb and Robert Coleman, was vested in the plaintiffs. Also, that at the time of the institution of the suits, the fee simple estate in the undivided five-sixths of three several tracts surveyed by Thomas Clark, prout the draft of the said survey, which is made part of this ease stated, was vested in the' plaintiffs, and the fee simple’ in the undivided sixth part in the said tracts was vested in the defendants, subject to the covenants in the agreements referred to.
    It was further agreed that the parties shall select three iron-masters, or, in case of failure to select, then three iron-masters to be appointed by the Court, to decide upon the matters in controversy in this suit. A rule being granted on the defendants to show cause why the Court should not appoint three referees, a disavowal by E. B. Grubb of the reference was filed; and in September, 1847, the agreement to refer was stricken from the record. This was one of the errors assigned.
    The first pleas put in were non eul., with leave to give the special matters in evidence, and liberum tenementum. Subsequently new assignments and new pleas were filed, the plea of not guilty being withdrawn.
    The pleadings were voluminous. See argument postea page, 406.
    On part of plaintiffs, Jacob Weidle, a surveyor, was examined, who exhibited a draft of a survey of the mine hills made by him. He said he made it upon the basis of a survey alleged to have been made by Thomas Olark; that he located the draft according to that survey.
    Evidence was then given as to the handwriting of Thomas Clark, and that he had been dead near forty years.
    There was then offered in evidence a draft alleged to be the draft made by Thomas Clark, and referred to in the report of the referees who made the partition. The draft was objected to as not being sufficiently proved, and that it was without date; but the Court decided that it was sufficiently proved to be submitted to the jury. Exception was taken.
    The surveyor stated that he found no stones or posts set to indicate Clark’s survey; that it does not extend to the foot of the hill.

    On part of the defendants, Hoffer, another surveyor, was examined, who stated that he could not locate on the ground the alleged survey by Clark.
    It was then offered to show the extent of the hills ; and that the paper produced as Clark’s survey was not an accurate delineation of the hills, and could not have' been intended as the survey thereof. This was objected to on the ground that Clark’s survey, and not the hills as they exist, is to designate the rights of the parties. The testimony was admitted, and was the subject of exception.
    This witness said the hills were in most places well defined; in some not.

      S. D. Rogers was examined, and, inter alia, testified that according to his present information, Clark’s survey does not embrace all the ore; that he thought a larger area would have to be included to take in the whole of the big hill; that topographers might disagree as to the exact place where a hill terminates and the plane begins. He said he considered the house to be below the hill. He testified that this mine ore he considered stratified; that the ore in these hills does not belong to the class of hematite —is but slightly magnetic. The ore exposed to the elements has passed to the condition of hematite; that the nigger heads approach nearer to hematite, having been acted on by the elements.

      J. J7. Rogers testified that he considered that Clark’s survey did not embrace near all the hill, topographically speaking. That the several hills are of one geological formation; the ore being of several varieties, but of the same general character; that the nigger heads were boulders from the harder ore, but were homogeneous with the other ore, of a different composition but of the same formation. Another witness said that he was administrator of Grubb’s estate; managed Mount Hope Furnace for seven years; got ore from Middle* Grassy, and Big Hill, and never heard of any survey or marks around the hills; also that the mines were often broken by faults and rock; that the three hills are distinct and well defined; considered it a mass of ore, not veins; judged by the surface. Another witness said that he was employed in working ore from the hills about 48 years before ; that he never saw or heard of lines on the ground limiting the ore digging; that nigger heads were taken to Mount Vernon, Mount Hope, and other furnaces of Grubb’s. Another witness said that the Clark survey was 200 yards from the top of the hill, and in places about as far from the bottom; and another said that he had been nine years at the works, and always began to mine from the bottom of the hill; that he had mined on the outside of the Clark survey; was digging for Grubbs ; that the mine was commenced before his time; did not know whether it was begun outside or inside of the Clark survey.
    Pearson, President Judge, in his charge to the jury observed, “ that to the declaration of the plaintiffs complaining of a trespass on their freehold, the defendants aver in substance, first, that it is their own free tenement; second, that it belongs to the plaintiffs and E, B. and C. B. Grubb, as tenants in common, and that they entered under the authority of the latter; thirdly, that if it is not within the freehold held in common, that Grubbs had, under the arrangement of 1787, a right to enter and remove the ore taken. That whether the ore taken was situate outside of the property held in common under the agreement made in 1787, depended on the location of the land reserved from partition. If the ore was removed from the land held as a tenancy in common by Coleman and Grubbs, this action will not lie; nor can it be sustained if Grubbs had a license to dig on the mine hills, where the trespass was committed, beyond the line of their common estate.”
    In relation to the survey alleged to have been made by Thomas Clark, he observed, “that the written agreement of the parties showed that he had surveyed the hills and ore banks agreed to be excluded from partition, and that it was but fair to infer that the act was done for that purpose. He observed that from the endorsement on its back, stating that it was made for Curtis Grubb, Peter Grubb, and Robert Coleman, it was contended on part of the defendants that it was made in the lifetime of Peter Grubb; but he considered it unreasonable to suppose that it was made before any idea seemed to have been entertained of excluding the mine hills from partition, and that it had been carelessly endorsed. He however submitted to the jury to decide whether the survey was made by Thomas Clark, for the purpose of defining the ore hills, and was the one referred to in the writing or not. That if the jury concluded that it was, then to inquire as to whether it was intended to represent a survey marked and defined on the ground, or was made from conjecture; and whether it is possible at this time to locate it with reasonable certainty. * * * If no survey was made, or none can now be discovered, the co-tenants in common or those claiming under them, would have a right to obtain ore from any portion of the ore banks and hills, provided the line to designate the place of taking ore should be so run as to secure the privilege of the water to the owner of Cornwall estate, and no material damage be done to the iron works and plantation.” * * * He further observed, “ that the great difficulty was to ascertain whether the draft produced, correctly delineated the survey referred to in the report of the referees, or whether some other draft at one time existed. ‘Wherever Thomas Clark’s survey was made, there the tenancy in common is bounded.’ ”
    In answer to the plaintiff’s first point he charged, that “in the absence of any proof of a survey, the ore banks and hills are excluded from partition, and are not presumed to have been embraced. It would have been a violation of the agreement of the parties to have included them. They never were vested in the plaintiffs, or those through whom they claim in severalty; and any one of the tenants in common would have a right to dig ore on any part of the hills, provided they did not violate the agreement as to encroaching on the water rights, or materially injuring the iron works or plantation, but they have no privilege to go beyond the hills.”
    He further observed, “ Taking it for granted that Thomas Clark made a survey of the premises, as averred by the plaintiffs, and that the ore in dispute was removed from without the boundaries of that survey, had Grubbs a right to do the act under the agreement of August 30, 1787 ? That depends upon the construction of the writing, which is a question solely for the Court.”

    He charged that under the supplementary agreement of August, 1787, the Grubbs -were not bound to commence within the lines of Clark’s survey, and work outwards into the adjoining premises; that the vein need not be continuous or connected with the ore within the lines, or unbroken by trap rock, or otherwise, or be an extension of the vein of ore. He expressed the opinion that the Grubbs had full authority under the agreement to remove the ore complained of.
    Fie added, “We are desirous that you should decide whether the draft in evidence was or was not made by Thomas Clark for the purpose of designating the land exempted from partition, as the establishment of that fact may be important to the parties hereafter. But as we have already said that the action cannot be sustained whether the ore taken was within or without the lines of Clark’s survey (provided it was on either of the mine hills, which is proved and conceded), it (the survey) is not very important to the decision of the present case.”
    He added, “ In the very confused state of the pleadings, it is difficult for us to instruct on which of the various issues to. render your verdict; but when agreed on, we will endeavor to put it in such form as will prejudice none of the plaintiff’s rights hereafter.” April 13th, 1854, the jury say that they find that the defendants were acting for and under E. B. Grubb and Clement B. Grubb ; and as they were instructed by the .Court, had a right, according to the provisions of the agreement entered into on the 30th day of -August, 1787, between Curtis Grubb, Robert Coleman, J. Yeates, Ed. Burd, Joseph Shippen, Jr., and Edward Hand, for the purpose of making partition to dig the ore complained of in plaintiff’s narr., whether the same was situate within or without the bounds of Thomas Clark’s survey, and were justifiable in so doing; and that they do not find whether the draft alleged to have been made by Thomas Clark, and given in evidence in this case, was or was not the survey referred to in the proceedings in partition ; and they do not find whether the place on which the alleged trespass was committed, was within or without the bounds of the said survey, or on the property held in common or not; and the defendants being so justified, they find a verdict in favor of the defendants.

    Motions were made for a new trial, and in arrest of judgment; and reasons were filed.
    Pearson, J., in his opinion, inter alia, observed:— “ In our opinion the evidence in favor of the draft having been made for the purpose of designating the survey, greatly preponderated; but the jury declining to determine the point one way or the other, injures neither party, and leaves the question open for future adjudication. According to our construction of the supplemental agreement of the 30th August, 1787, the defendants were justified in removing the ore, whether found within or without the bounds of the survey, and on the correctness or incorrectness of that opinion the cause turned, and if we construed it rightly, must always turn. We are not yet convinced of any error in that opinion, and therefore overrule the motion for a new trial.”
    As to whether the pleadings are or are not such as to sustain a judgment, he, inter alia, observed that “ as no defects were pointed out on the trial, or on the motion in arrest of judgment, we take it for granted they are-regular. The verdict was drawn up hastily, and for the mere purpose of avoiding injury to the plaintiffs’ title, by reason of any of the various pleas inserted by the defendants. All that was intended by the verdict, was to exclude a conclusion. If it has that effect it will have performed its office, as there is a general finding for the defendants, with a sufficient statement that they did not pass on or determine the titles of the - parties, but found, under the instruction of the Court, that there was a license to dig and remove the ore.”
    It was assigned for error: 1. The Court erred in permitting the defendants to give evidence of the extent of the hills, on and around the summit of which, the Cornwall ore banks and mine hills are located, as pertinent to the location of Clark’s survey, such evidence tending to mislead the jury as to the true point at issue. 2. The Court erred in admitting the draft of Esquire Hoffer, purporting to show the extent of the Cornwall hills, by taking the water line at the base of them as pertinent to the location of Clark’s survey, such evidence tending to' mislead the jury as to the true point at issue. In 8d and 4th it was alleged that the Court erred in the charge as to the first point, and also in avoiding it. 5. The Court further erred in their answer to the plaintiffs’ first point, in this: That in connexion with that portion of their answer to the plaintiffs’ first point, quoted in the fourth specification of error, the Court also say: “If no survey was made, then we must resort to the next best evidence — the other portion of the description of the agreement — ‘ the ore banks and hills.’” Which was error, because it submitted to the jury the question whether Clark’s survey had ever been made, whereas the agreements of the parties and the record of the partition of 1787, were conclusive evidence in .law that it had been made; and if they were not conclusive, there was no evidence that it was not made. 6. The Court erred in all that part of their charge relating to the construction of the supplementary agreement of 30th August, 1787, which is in answer to the plaintiffs’ second point. 7. The Court erred in entering judgment on the verdict, because it did not find any issue joined. 8. The Court erred in striking off the agreement to refer.

      Weidman, for plaintiff in error.
    It was contended that whether viewed as a record or as an agreement, the contents of the supplementary agreement of 1787 were conclusive upon the defendants, and that the Court should not have permitted them to invalidate the fact of Clark’s survey, sanctioned by the deed of the party and the judgment of the Court; and that the defendants were limited to the bounds of that survey, and were not entitled to go beyond it.
    It was contended that the Court erred in their construction of the supplementary agreement of 30th August, 1787. The main purpose of the parties was partition. By the first agreement of that day, it was stipulated that an accurate survey should be made of the ore banks and mine hills, to which alone the tenancy in common should be applicable. All beyond that was to belong to rvhomsoever it was assigned in the partition. If there had been no other agreement, it was said that the defendants could not have taken any ore beyond the limits of the survey.
    After the first agreement was executed, it appeared to the parties, perhaps by the production of Clark’s survey, that the veins of ore might extend beyond the limits of the survey. It was said that it was evident that the parties meant to retain the interest they then held in such ore as was then known to exist in a mass cr body within the limits of the survey, and to resign their r-ight to all else. The extension of the mass of ore they could not know, and therefore they use doubtful language. The intention was to secure to each owner an interest in the main body of the ore, should it happen to extend beyond the limits of the survey. A stipulation, therefore, which enabled the parties to pursue the main body of ore outside of the lines of the survey within the lines was consistent with the main intention of the parties.
    If the construction of the Court wore unsound as to the main body of ore, it was especially so when applied to the detached ore scattered over the surface, weighing from several pounds to several tons, as this did not constitute a vein of ore, and its existence was evident to the parties.
    The pleadings made two issues, — 1. Whether the ore was taken within the bounds of the survey. 2. Whether the taking of the ore was within the provisions of the- supplementary agreement of August, 1787, permitting parties to follow the ore when it extended beyond the bounds of the survey. The verdict does not find either of these; nor indeed any issue. The substance of the issue should be found: Salkeld 372; 1 Ld. Raymond 324; 2 Id. 1518; 2 Tidd 922; 5 Cranch 19.
    8th assignment. An attorney has power to refer a cause: 6 Binn. 99; 16 Mass. 396; 7 Cowen 744; 11 Law Lib. 26.

      Pe'hrose, for defendants in error.
    The mine hills are three in number, known as Big Hill, which is about 300 feet high; Middle Hill, about 175 feet in height; and Grassy Hill, about 100 feet in height. At the base of each are small streams of water which mark the termination or foot of the hill. On survey, made shortly before the trial, they were found to contain 297J acres. The north and northeastern slope of the Big Hill, from which the ore in question was taken, averaged 20° or 30° of elevation from the stream at its base. The Cornwall furnace, dwelling-house, and coal-house, are quite near to the Western or Northwestern base of the Big Hill, and, in part, on a spur of it. The three hills are of one continuous deposit, and the formation has distinct boundaries. In their natural state they were covered from the summit to the base, to the streams of water, with top ore, from one to fifteen feet in thickness. It was called (by miners) nigger heads, and varied in size from a pound weight or less to masses weighing ten tons or more, and with these was intermingled fine ore. The north slope of the big hill was covered with ore in this way, not in detached lumps, but with lumps or masses so intermingled, not wholly on, but also under the surface to various depths. In many parts of the hills, after passing through the top ore, ore more compact is found called body ore, which also, however, contain nigger heads, or masses such as existed on the surface.

      The referees appointed for the division of the ore banks belonging to Cornwall Furnace into three parts, &c., advised the parties that the agreement could not be carried into execution; and, in pursuance of such recommendation, the first agreement of 30th August, 1787, was made to make partition according to quantity and quality, and to assign according to the real interests and convenience of the parties. By this agreement, the parties were to have right to dig, sink shafts, raise and carry away any ore that may be found to extend beyond the limits of the survey. The purpose was to secure to each party a full share of all the ore in the mines. An accurate survey of the ore banks and hills was to be made. The survey was but secondary evidence of the banks as exhibited in it. The survey was to be accurate. The courses and distances of a survey but point to the place: 8 Barr 154; 6 Id. 258. The words, if not already done, may indicate a doubt whether a survey already made was accurate. To this agreement Thomas Clark was a witness. In the supplemental agreement it is assumed that the survey had been lately made; but by this agreement full liberty of ingress and regress was given to and from the mine hills.

    If the right to dig ore found outside of the limits of the survey is the right to take such ore as was a part of the same deposit as in that of the hills, then, whether the survey was accurate or not was not material, as the ore was secured to the parties. If the ore was secured, why limit the parties to an inconvenient way of working in order to prove that the ore outside of the survey is part of the ore of the hills? Though the agreement refers to the yeins of ore which may exist, the agreement was not designed to exclude the ore which was visible on the surface. The word vein was not used in its geological, but in its popular sense, to describe the ore as it existed in the hills. The right to dig, sink shafts, and drive drifts, &c., comprehends the right to exercise every mode in which ore is sought for and raised; and drifts are driven up and not down a hill; the only limitation being the refraining from doing material damage to the iron works or plantations.
    It was not disputed that a survey of the ore banks had been made by Thomas Clark, and it was admitted that such a survey was referred to in the agreement of 1787 as one lately made; but it was disputed whether the survey produced was that survey. The draft in question was run by Weidle, a surveyor, in 1814, and he found no marks of that survey on the ground. It was not an accurate survey of the hills. It comprehended a portion of Templeton’s Hill, which was separated from the Big Hill, and on which there was no evidence of ore. The lines of the survey did not coincide with the lines of the base of the hill; one of the witnesses stated, that one of the lines of Clark’s survey was “40 or 50 perches from the foot of the bill. In some places it is half way down the hill — in some places more, in some less.” Weidle’s survey embraced only 104 acres, while the hills included an area of 297 acres.
    The evidence given by defendants to show the extent of the hills, and that they were distinct and defined upon the ground, was relevant to show that the draft in evidence was not the draft referred to in the agreement of 1787, and an accurate survey of the hills ; and also to determine the true construction of the agreement respecting them.
    A Court is not bound specifically to answer points, if they be answered in the general charge: 6 Harris 215.
    The portion of the verdict failing to find as to the draft, or whether the place from which the ore was taken was within the bounds of the survey, or on the property held in common, was immaterial, and might be rejected as surplusage: 8 Ser. & R. 441; 1 Watts 259; Whar. Dig. pl. 917. - It was found, according to the instructions of the Court, that the defendants were justified whether the ore was taken within or without the bounds of Clark’s survey. The verdict was not special, but general: 2 Harris 21.
    The pleadings on part of the defendants presented two issues.
    In the first four pleas was averred the incorporeal hereditament, created by the agreement of 30th August, 1787, and there was set out at large the proceedings under that agreement as the foundation of the title. In them was averred and specifically pleaded the title by which this incorporeal hereditament was vested in E. and C. B. Grubb — and a license from them to the defendants sued. These pleas were pleas of justification under this incorporeal hereditament.
    Upon the suggestion that under the general plea of liberum tenementum to the novel assignment of the plaintiff, the defendants could not give in evidence the freehold title of E. and O. B. Grubb to the tenancy in common under the agreement of 1787, and a license to defendants, another special plea was filed setting forth, by reference to the other plea, such freehold title and the license. This also was a special plea of justification, and upon these issues the cause was tried. The plaintiffs did not put in any replication to the special plea of liberum, tenementum, but went to trial on that plea. Thus there were two justifications well pleaded by defendants, either of which being found for them, they were entitled to a general acquittal, and it was not necessary to enter the verdict on either of the pleas: 8 Watts 37, Wilson v. Gray.
    The agreement to refer was by its terms to be considered as made under the Act of 16th June, 1836. That Act excepts such suits as respect the title to real estate. It appeared that the reference was made without authority from E. B. Grubb, who disavowed it. The agreement was executory, and nothing had been done under it. It was capable of being revoked: 9 Barr 101; 2 Watts 492; 4 Watts 312.

      Stevens, on same side.

      Meredith, for plaintiff in error.
    The portion of the verdict alleged as surplusage was not so, and judgment should not have been entered without the issues submitted being found.
    It was contended that the whole of the hills as natural objects were not intended to be included within the lines of Clark’s survey. The material question was whether the parties were to hold by the hills as natural objects, or by the deeds and the survey — and that unless the supplementary agreement of 1787 is to be confined to ore beginning within the survey, it may extend to the whole of the Cornwall estate.
   The opinion of the Court was delivered by

Woodward, J.

If the Court were right in the construction they placed on the agreements of 1787, the right of the Grubbs to take ore from the locus in quo is established, the entry of the defendants under them and as their servants is justified, and all the other questions in the cause disappear, or lose, at least, a controlling influence.

When it was found “on the fullest investigation” that the large and valuable estates connected with these mine hills could'not be parted in severalty among the owners without great injustice to some of them, the agreement of 30th August, 1787, devised a plan of dividing all except the mine hills, and of keeping them for the common use, undivided, and as a tenancy in common. The difficulties in the way of equal partition of the hills, and the motives and reasons for agreeing to hold them undivided, were fully discussed in Coleman v. Coleman, 7 Harris 100, and need not be again entered into here. The question now is whether anything less than the whole of the mine hills was exempted from partition, and appointed to be held in common. The plaintiffs insist that the Clark survey, as it is called, designated what was meant by the mine hills in these agreements; and as Clark’s lines ran around the hills some distance above their natural base, and above the place from which the defendants took the ore in question, they deny the right of the Grubbs to mine below that line, except it be in pursuit of a vein struck above. Such was not the opinion of the Court below, and such is not our opinion.

In the first agreement of 30th August, 1787, these hills are called “ore banks;” in the supplemental agreement of the same date ‘‘ore banks and hills;” and in the report of referees acting under these agreements they are called the “ ore banks and. mine hills of Cornwall Furnace.” They are three prominent, peculiar, well-defined, natural objects, and it is impossible for us to suppose that the parties intended to exempt from partition anything less than the whole of each of these hills from base to top. There is not a word in the first agreement of 1787 to indicate such an intention, or to impose any limitation on the tenants in common as to the places in the hills where they were to mine, except that their agents and workmen should not interrupt each other in their respective mine holes. Whatever might fairly be understood as constituting the “ ore banks” was to be held in common, and where-ever in or upon these banks the parties found ore, whether “ nigger heads,” surface, or vein ore, they might take it, so as not to interfere with each other’s openings. Such was the agreement as at first made on the 30th August, 1787. The supplement of the same day was intended to explain the article respecting the ore banks, and it is supposed to have imposed limits on the rights of such of the tenants in common, in whom it vested an incorporeal estate, according to a survey said to have been then lately made by Thomas Clark. I confess the words of this supplement would never strike me as a limitation, but rather as an extension of the rights of the parties. Free ingress, egress, and regress are secured to each owner “to and from said mine Mils,” and “the free and uninterrupted liberty and power to dig, sink shafts, drive drifts, raise and carry away ore that may be found to extend beyond the limits of the said survey, without doing any material damage to the iron works or plantations.” What “the survey made lately by Thomas Clark” was, does not appear. The agreement of which this supplement was explanatory, provided that “ an accurate survey should be made of the said ore banks and hills, if not already done and the referees filed with their report a survey made by Thomas Clark of the estates divided, but ón which they did not designate the mine hills.

On the trial of this cause a survey was put in evidence professing to he the survey alluded to in the agreement and supplement, and the Court submitted it to the jury to find whether it was indeed that survey or not; but they returned “that they do not find whether the draft alleged to have been made by Thomas Clark, and given in evidence in this case, -was or was not the survey referred to in the proceedings in partition.” We are, therefore, destitute of the Clark survey of the mine hills, a circumstance which might be very embarrassing if we were trying rights clearly beyond the natural boundaries of the hills, but for this reason it is more easy to say, nay, it is inevitably necessary to say, that an entry by one of the tenants in common, within the natural boundaries of the hills, was justified by the agreements of 1787. Beside, in the absence of the Clark survey, it is fair to presume that it embraced the hills as they stand before the eye, for it was to be “ an accurate survey,” and the survey of the residue of the joint estate as returned by the referees, instead of embracing a portion of the hills excluded them altogether.

If the Clark survey were such, as in its absence we feel at liberty to presume it was, then the supplemental agreement was in fact, - as its words import, an extension, instead of a limitation of the rights of the tenants in common. Shafts might be sunk and drifts made beyond the base of the mine hills for the purpose of mining veins found to be contained in the.m. Veins of ore, conforming in their dip to the surface of such hills, could he advantageously mined only by taking position beyond the base of the hills, sinking a shaft to the vein, and then mining it' upward to the outcrop. This was probably what was intended to be secured to the parties, and hence the stipulation against damage to the “iron works and plantations” — all of which would be found beyond the hills and none of them on it.

All this, it must be admitted, is somewhat speculative, for it is reasoning in regard to a survey which the jury could not establish from the evidence before them; but it is considered a more reasonable interpretation of the agreement of the parties than one ■which would limit them to an upper section of the hills, and compel them to follow a vein downward instead of upward. Considerable emphasis was laid on the word “ extend” in the supplemental agreement, but I see no necessity for presuming that a vein was to be mined downward to determine whether it extended beyond given limits. When iron ore is found in veins and their angle of inclination is ascertained, it is easily determined on the surface, with sufficient accuracy for practical purposes, whether they extend beyond the specified limit.

But dismissing all views which connect themselves with the Clark survey, and confining our attention to the terms employed by the parties, we have no difficulty in saying that the mine hills as natural objects, those three upheaved masses of rock and ore, the outline of which is no doubt familiar to the eye of every neighbor and miner, were what the parties exempted from partition and agreed to hold in common; and if hereafter geologists cannot agree, as to the limits of the hills — at what points they begin to rise — no such question is present to embarrass us here, for the ore sued for was confessedly taken from the body of the main eastern hill, someway above its base. If we accounted the words of the parties doubtful and uncertain, we should be guided to the same construction of their agreements by their.long usage. For two generations they and their descendants have treated these mine hills as a tenancy in common, and have used them as appurtenant to their respective furnaces and forges. IIow can it be expected that at this late day Courts should construe the agreements of 1787 in opposition to this contemporaneous exposition ? There is nothing in the verbiology of the papers, in the history of the property, or in the evidence in the cause to excuse, I will not say to demand a construction that would exclude some of the tenants in common from the treasures of these extraordinary hills. Their ancestors agreed to hold them in common, and as a common inheritance they have descended to the present owners. Whilst they hold them thus, and whilst the ore lasts, we have decided them to be impartible; and it follows that actions of trespass among themselves are not the remedies for grievances whether fancied or real.

As to the seventh assignment of error, it is sufficient to say that the pleadings, though unnecessarily voluminous, fairly raised the issue on which the cause was put to the jury, and that issue they found distinctly for the defendants. The residue of their verdict is harmless, and might have been rejected as surplusage by the Court. The rule that judgment cannot be entered on a general verdict for a plaintiff where his declaration contains two or more counts, one of which is bad, does not apply to the pleas of a defendant sued in trespass. If he have a single good plea that goes to the plaintiff’s right of action, and a general verdict passes for him, he is entitled to judgment though some of his pleas are bad, unless it appear that the evidence was inapplicable to his perfect plea: Wilson v. Gray, 6 Watts 37. Here the title of the parties under whom the defendants justified was well pleaded, and having the verdict they were entitled to the judgment.

There is nothing in the eighth assignment; for, though counsel have a right to submit the client’s cause to reference, the client has a right to revoke the submission, which Mr. Grubb did do in good time: Wilson v. Young, 9 Barr; Bingham’s Trustees v. Guthrie, 7 Harris 418.

On the whole we see no error in the record, and the judgment is accordingly affirmed.


author: Knox, J.

text:
    Stewart versus Montgomery.

      1. Though in a proceeding by scire facias on a judgment against the executor alone, the heir or devisee, who has not been notified, is not precluded by the judgment, but may contest it; yet where the executor is the sole devisee of the real estate the judgment is conclusive.
    2. In the scire facias proceedings against the executor as devisee of the real estate, it was not material whether or not sufficient personal estate to pay the claim had come to the hands of the executor; the creditor was not bound to wait for a settlement of the personal estate, before charging the land with his claim. The fund to be resorted to will be under the control of the Court.
    3. A purchaser of the land from the devisee after scire facias issued upon the judgment, was in no better situation than the devisee himself.
    Error, to tbe Common Pleas of Oentre county.

      H. Montgomery brought an action on the case to August Term, 1849, against D. A. Stewart, as executor of the will of William Stewart, deceased, to recover for medical services rendered to the testator. The pleas were non assumpsit and non assumpsit infra sex annos. On 11th September, 1850, verdict for plaintiff for $142.50. A fi. fa. to November Term, 1850, was returned “ nulla bona.” On 11th September, 1851, a scire facias was issued against the said William Stewart, as executor, with notice to him as devisee of the real estate left by the said deceased.
    On the trial, under the scire facias, the judgment in the first suit being offered in evidence on part of the plaintiff, was objected to; and after argument it was asked that Andrew Gregg be admitted as defendant to defend his interest as purchaser from the said D. A. Stewart, devisee of the real estate, the conveyance to Gregg being dated 20th December, 1851. He was added as a defendant, but the Court declined to direct the jury to be re-sworn. The record of the judgment was objected to, it being alleged that it constituted no cause of action against the devisee, and that the plaintiff must establish his original cause of action. The record was admitted.
    D. A. Stewart was devisee of all of the real estate of William Stewart, subject to the payment of certain legacies. The inventory of the personal estate, showed personal assets come to the hands of the executor amounting to about $4500, composed chiefly of notes and other choses in action. No administration account had been settled.
    When the deed to Gregg was offered, it was objected to on part of plaintiff, because it was subsequent to the judgment and to the issuing of the scire facias. It was admitted.
    On part of defendant it was offered to contest the judgment on original grounds. This was objected to, on the ground that D. A. SteAvart, the defendant, being the sole executor and devisee of the real estate, was the only person interested in the suit, and Avas precluded by the judgment. The evidence was OAmi’ruled.
    August, 1853, verdict for plaintiff for $167.78.
    Error was assigned to the admission of the record of the judgment; to the rejecting of the evidence offered in opposition to the claim; to the charge by Burnside, J., that D. A. SteAvart had his day in Court; that the return of nulla bona was strong primd facie evidence that the personal estate had been exhausted; and that Gregg, the purchaser, having purchased after the judgment was obtained and the scire facias issued, Avas in no better situation than D. A. Stewart.

      Linn, AArith whom AA'as Hale, for plaintiff in error.

      McAllister, for defendant in error.
   The opinion of the Court was delivered by

Knox, J.

It is clearly and definitely settled, that, where a judgment is obtained against an executor, upon a scire facias subsequently issued to charge the realty in the hands of an heir or devisee, the judgment against the personal representative does not preclude a defence upon original grounds.

The Act of 1834 requires the widow, heirs, and devisees to be made parties to suits brought against the personal representatives where the intention is to charge the real estate with the payment of the debt sought to be recovered. As parties they may avail themselves of any defence which will defeat the claim and protect their estate. This Act was not intended to give (nor does it give) the right to be twice heard upon one issue by the same person.

As executor of his father’s estate, the plaintiff in error had his day in Court. Not being successful in defending against the demand, of the plaintiff below, in a representative capacity, he asks now for a second chance as devisee of the real estate. As executor, his official duty, prompted by his personal interest, urged him to make every defence in his power. It is stated in the bill of exceptions, and in the charge of the Court, that the rejected evidence was then admitted and passed upon. Suppose the verdict had been against the plaintiff in a contest with the executor, could he have renewed the battle by attacking the same person as devisee ?. Clearly not. Why then should not the defendant be precluded from gainsaying the decisiveness of the. result ? Equality of right in our Courts of justice lies at the very foundation of American jurisprudence.

Because the statute requires the devisee to be made a party, it is argued that the right of defence follows. So it does, if the question is an open one; but, where it has already been adjudicated between the same parties, although in a somewhat different form, it must be considered as settled. Atherton v. Atherton, 2 Barr 112, is not in point. There the land was attempted to be sold, upon a judgment against the administrator, without having-made the heir a party. Upon the application of an alienee, the levy was set aside. But it is nowhere said in that ease, or in any other, that, if the heir had been made a party, he would not have been bound by a judgment obtained against him as executor or administrator so as to be estopped from setting up the same defence the second time.

Before the Act of 1834, a judgment against personal representatives was conclusive against heirs or devisees without a hearing on their part. To hear them twice would be the other extreme. If the same opportunity is given to them for defence that is afforded to other suitors, there is no ground of complaint.

Whether there was sufficient personal estate to pay the judgment, was wholly immaterial in this proceeding. The creditor had the legal right to charge the real estate, by making the devisee a party before the'personal estate is finally settled. The fund to be resorted to for the ultimate payment of the judgment, is at all times under the control of the Court. Moreover, it is, to say the least, somewhat singular that the defendant should interpose this defence. If it is true that there is personal property in his hands sufficient to pay the debt, why does he not pay it ? Ample opportunity has been afforded him to do so, but, instead of satisfying the claim voluntarily, the plaintiff has not been able to realize the fruits of his judgment, although he has used process of law for this purpose.

The purchase of the estate by Gregg since the scire facias against the devisee, gives him no better footing than his grantor (Stewart) had before the sale.

Judgment affirmed.


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    Shitler versus Bremer.
    1. In relation to the handwriting of the defendant a witness said he had never seen him write — had seen his writing — had seen his name to orders as school director brought to him as teacher — this “ looks like it — resembles it— can’t say I believe it to be his writing for there is a possibility of mistake.” Another said he had seen him write — “can’t say this is his writing — can’t say I believe it to be — there is a slight resemblance of some letters — seven years since I saw his writing.” Held, that there was no error in submitting the evidence to the jury.
    2. A naked admission of indebtedness without indicating the amount of the debt or of the promised payment, or the nature of the claim, will not prevent the bar of the statute.
    Error to the Common Pleas of Berks county.

    This was an action of debt, brought on 5th March, 1851, in favor of Shitler v. Bremer, on book account for goods sold and delivered and on defendant’s promise to pay. The plea of the statute was interposed.
    The book account was for tobacco sold on 29th July, 1840, amounting to $109.68; and evidence was given of the plaintiff’s book. To avoid the statute, a letter, alleged to have been written by defendant, was offered, elated July 6, 1846. It was objected to ; and to prove the handwriting in it, a witness testified that he never saw Daniel Shitler write; “ I have seen his writing; I have seen order’s signed by him, that children brought to me as teacher, when he was a school director; there is a general resemblance to his handwriting. This looks like it — resembles it — can’t say I believe it to be his writing, for there is a possibility of mistake.”

      Another witness testified that he had seen defendant write; “ can’t say this is his writing; can’t say I believe it; there is- a slight resemblance of some letters; seven years since I saw his writing; no resemblance in D’s as he writes now.”
    The letter was admitted. In it, the writer requested the plaintiff to wait about two months longer, then he would come down and pay some, and all before long, and interest from April last, 1846, till paid. Jones, P. J., charged that the letter, if believed to have been written by the defendant, took the case out of the operation of the statute of limitations.” Verdict for plaintiff. The instruction was assigned for error.
    (See the case of Suter v. Sheeler, 10 Harris 308.)

      Banks, for plaintiff in error.
    It was admitted that if a witness has the proper knowledge of a party’s handwriting, he may declare his belief as to the handwriting in question: 1 Greenleaf 576; 1 Barr 384. But-before it is allowable for a witness to express his belief, he must state facts and circumstances to show that he has sufficient knowledge to enable him to speak with reasonable certainty. It must not be guess-work or mere probability: 1 Harris 647, Porter v. Wilson. The rule is stated in Phil. Hv. 421; 1 Wharton 399. 2. To take the case out of the statute, the promise must not be vague or uncertain: 5 Harris 289; Id. 303; 2 Id. 481; 4 Barr 324; 10 Watts 174; 1 Peters Rep. 387. In the letter the nature of the debt and amount of it is not stated: 10 Barr 128.

      JE. L. Smith, contrit,
    referred to case of Reader v. Grim, 3 P. L. J. 65; Huff v. Richardson, 7 Harris 389.
   The opinion of the Court was delivered by

Knox, J.

The evidence given to prove that the letter was in the handwriting of the defendant below was very slight. One witness said “ it looks like it; resembles it; can’t say I believe it to be his writing, for there is a possibility of mistake; there is a general resemblance.” Another says “there is a slight resemblance of some letters.” We cannot say that it was error in the Court to submit this evidence to the jury.

There was error, however, in the effect given to the letter after the signature was established. The suit was brought to recover for goods sold eleven years before its commencement. The defendants plead the statute, and the admission contained in the letter was simply that he was indebted to the plaintiff, coupled with a promise to pay “ some in two months, and all before long, with interest from April, 1846.” The letter wras dated, in July, 1846. Now, without attempting a review of the decisions made by our predecessors, upon the requisites to avoid the bar of the statute of limitations, it is sufficient to say, that we have recently held, in an unreported case, that a naked admission of indebtedness, without in any way indicating the amount or nature of the debt, or a promise to pay something without any reference to the sum to be paid, or what it is to be paid for, is no answer to the plea of the statute. Here the letter relied upon as a promise to pay, and admission of a debt due, was entirely silent as to how much was due, what sum would be paid, or what was the character of the debt — whether one, or $1000; due for land or goods; founded upon a contract with or without a consideration.

Had the case referred to been reported, and brought to the notice of the Court of Common Pleas, it would doubtless have produced a different result. As it was not, the error must be corrected in another trial.

Judgment reversed and a venire de novo awarded.

       See 10 Harris 308, Suter v. Sheeler.


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    Hehn versus Hehn.
    One who voluntarily expends money in the support of a lunatic, without a contract either express or implied with the committee of the lunatic, cannot recover for such expenditure either against the committee or the lunatic.
    Error to the Common Pleas of Berks county.

    This was a scire facias to January Term, 1852, in the name of Hannah Hehn, who sued by her committee, Daniel Wenriek, to revive a judgment against Daniel Hehn, entered on 15th November, 1834.
    Hannah Hehn, in 1812, was declared a lunatic, and John Klapp was appointed her committee. He died about the year 1850, and Daniel Wenriek was appointed in his stead. Daniel Hehn was indebted to Hannah Hehn in the principal sum of $2757.35, for which judgment was entered on 15th November, 1834. He had before that time provided for the support of Hannah, the lunatic, and his claims were settled when the judgment was entered.
    On this scire facias he claimed to be allowed for her subsequent maintenance, &c., the amount of interest on the judgment, .and also the interest on a further sum of $880, due to her estate by John Klapp, the former committee.
    Offer was made to prove that Klapp, in 1834, said he would allow the defendant for keeping the lunatic the interest of all of her money. Also to prove that her keeping ivas ivorth more than the interest, and what it was worth.

    No objection was taken to proving that Klapp agreed to allow the interest on the whole of the money; but evidence of the additional matter was objected to, and such evidence tvas overruled, and exception was taken.
    The Court charged that the plaintiff, being willing that the defendant be allowed the amount of interest on Ms own judgment, the jury might render a verdict for the principal sum.
    The overruling of the evidence and the charge as applicable to it, were assigned for error.
    In the 21st section of the Act of 13th June, 1836, relating to lunatics and habitual drunkards, it is provided that “ If the income of the estate of such person shall not be sufficient for such purposes aforesaid (viz. payment of debts, &c., and maintenance), it shall be lawful for the committee aforesaid, under the directions of the court, to apply so much of the principal of the personal estate as shall be necessary for the purpose.”

      Hoffman and Banks, for plaintiff in error.

      Strong, with whom was B. H. Gtordon, for defendant in error.
    It was stated that in 1834, when judgment was obtained against Daniel Helm for his bond for $2757, the interest on it was allowed for the former maintenance of the lunatic, &c. On this trial no objection was made to the defendant’s proving an agreement with the committee as to the compensation for maintenance of the lunatic. He was not entitled to an allowance without proof of such a contract. But even such a contract might not be binding, though the committee might be bound personally : 16 Ser. & R. 242.
    Reference was made to the Act of 1836. The effect of the offer was to reduce the principal of the bonds.
   The opinion of the Court was delivered by

Knox, J.

One who voluntarily expends money in the support of a lunatic, cannot recover for such expenditure, either against the committee or the lunatic. There must be a contract, either express or implied, upon which to found the action. One in the custody of the law, as a lunatic, cannot make an exjoress contract, and the law will imply none.

By the 20th section of the Act of 1836, relating to lunatics and habitual drunkards, the committee may expend the income of a lunatic’s estate for the purposes of maintenance, but if more is required it can only be had upon .application to the Court of Common Pleas.

The rejected evidence in the case before us would not, if received, have proved an express contract; and from the testimony of John Eckert, the most that the jury could have been permitted to find was, that the allowance made in 1834 was to be continued during the time that the lunátic remained with Daniel Hehn, the defendant. This was allowed him, and beyond it he had no legal claim.

Judgment affirmed.


text:
    Commonwealth versus Gardner.
    1. Where the terms of an Act of Assembly designed to establish a separate school district are so uncertain that the boundaries of the district cannot be definitely ascertained, it is inoperative and void.
    2. The 11th section of the Act of 21st March, 1852, provided, That “ the parts adjacent the Pine Grove School-house in the township of East Pennsborough in the county of Cumberland, now embraced in the Walnut Grove School District, shall be erected into a separate school district,” &c.: Held, that there being no Walnut Grove School District legally established, the Act was void for uncertainty.
    3. The fact that a sub-school district had been irregularly formed, its boundaries never having been entered on the minutes of the board of school directors as required by law, did not cure the defect in the Act.
    4. A sub-school district can be formed only by the school directors of the proper district, and the only evidence of their action on the subject is the minutes of their board on which should be entered the bounds of the sub-district.
    Error to tbe Common Pleas of Cumberland county.

    This was a writ of quo warranto, issued at the instance of the school directors of East Pennsborough township, to Gardner and others, to show by what authority they acted as school directors over a portion of the township.
    The defendants represented themselves as acting under the authority of an Act of Assembly, passed on 21st March, 1852 (Acts, p. 377), as follows:—
    Section 11. That the parts adjacent the Pine Grove Schoolhouse, in the township of East Pennsborough, in the county of Cumberland, now embraced in the Walnut Gfrove school district, shall be erected into a separate school district, and be entitled to all the rights and privileges now allowed by law to the several school districts of this Commonwealth.
    The first seetion of the Act of 7th April, 1849 (Acts, p. 441), provides that “ every township, borough, or ward in this commonwealth, shall constitute and be a school district.”
    As to sub-districts, the 17th section provides that “the directors of each district may, if they deem it expedient, divide the same into sub-districts, the bounds of which shall be entered on the minutes of the board; and said sub-districts shall not be altered or abolished, except with the consent of a majority of the citizens of the sub-districts, ascertained at a public meeting held for that purpose, or by writing, signed by their names, and addressed to the board of directors.”
    On the part of the defendant, it was pleaded that “the parts adjacent the Pine Grove School-house, in the township of East Pennsborough, now embraced in the Walnut Grove school district, is a well defined and well known school district, lying and being in the township aforesaid; and that the same has been known, used, and called by the name of Walnut Grove school district, ever since the passage of the School Act of 1836; and being so known, and defined, the legislature by the Act of 1852 erected it into a separate school district, and that in'pursuance of such Act, the defendants were elected school directors.”
    It was not shown that the boundaries of the alleged sub-district had been entered on the minutes of the board of school directors of East Pennsborough township, but as to the existence or nonexistence of such a district, was heard on the trial.
    Various points were submitted on part of plaintiffs, the first of which was, if the jury believe “that the parts adjacent the Pine Grove School-House, in the township of East Pennsborough, now embraced in the Walnut Grove school district,” were at the time of the passage of the Act uncertain, in its description, and did not include any certain and fixed boundaries; and that the bounds of the territory intended to be included in said description have never been entered on the minutes of the board, — then the Act of 21st March, 1852, is no authority for the defendants to exercise the rights and privileges of school directors, and they were usurpers.
    Graham, P. J., in relation to objections made to the regularity of the election of the defendants, charged that the question as to the- validity of the election was more a question of law for the Court than of fact for the jury; and instructed them that the election would not in this case be considered irregular, as the suggestion had not been made at the instance of citizens who resided in the district; but he referred to the jury to decide from the evidence whether such a sub-district as the Walnut Grove school district, with fixed and known limits, existed before the Act . of 1852, and if so, to find for the defendants.
    Verdict was rendered for the defendants.
    Error was assigned to the admission of testimony as to the alleged .sub-district, it being alleged that no sub-district could legally exist unless its boundaries were entered on the minutes of the board of school directors of the township, and that such minutes were the only proper evidence. 2. To the admission of a witness to show when, where, and how the defendants were elected school directers. 8. To the admission of the book of minutes of the alleged súb-district. 4. To the instruction and answer in reply to the jírsí-póint, and to the charge as to the election, and the right of the defendant to act as directors within the limits of the East Pennsborough district.

      Henderson and Miller, for plaintiffs in error.

      Bonham and Watts, for defendants in error.
   The opinion of the Court was delivered by

Knox, J.

An Act of Assembly was passed on the 21st of March, 1852, which provided “ that the parts adjacent to the Pine Grove School-house, in the township of East Pennsborough, now embraced in the Walnut Grove school district, shall be erected into a separate school district, entitled to all the rights and privileges now allowed by law to the several districts of this Commonwealth.”

Under this Act, the defendants claimed to have been elected school directors for a portion of the territory formerly included in East Pennsborough township and school district, and took upon themselves the duties thereof.

A writ of quo warranto was issued at the instance of the directors of the old district, alleging that the defendants had usurped the office of school directors over a portion of said district.

The plea was, in substance, that the General Assembly, by the Act above quoted, had created a new district, and that under it the defendants were duly elected, and have the right to exercise the duties of directors of the common schools within said new district.

This plea was traversed by the relator, and hence two questions arose upon the trial, — 1st. Was the Act a valid one? 2d. Was the election legal ?

It was conceded by the defendants that, previous to the passage of the controverted Act, there was no school district in East Pennsborough township known as the “Walnut Grove school district but it was contended that there was a sub-district by that name, and witnesses were examined under an exception to prove the existence of such a sub-district. Upon evidence on the one side tending to prove the existence, and, upon the other, the 'nonexistence of said sub-district, the Common Pleas instructed the jury, — “ That if, prior to the Act of 21st March, 1853, there was a sub-district in East Pennsborough township known and recognised as the Walnut Grove school district or sub-district, of known, determinate, and fixed boundaries, capable of being ascertained, and pointed out without difficulty or mistake, then the Act referred to would not be inoperative and void, but would authorize the election of school directors, and the organization of the Walnut Grove district for school purposes, and the present defendants could hold and exercise the functions of school directors in the district thus organized.”

There was error alike in the reception of the evidence and the instruction as to its effects.

Sub-districts, under the Act of 7th April, 1849, could legally he created only hy the board of school directors, and the evidence of their action in this behalf is the township records or minutes of the board. Until the boundaries are ascertained and recorded, the sub-district is not in existence. If the minutes of the board did not show a sub-district, known as the “Walnut Grove district,” there was none, and it was error to receive parol evidence to prove the existence of what could have no real or legal existence.

But, supposing the existence of a Walnut Grove sub-school district to have been legitimately established, how would the case then stand ? It was, in the language of the Act, “ the parts adjacent the Pine Grove School-house, in the township of East Pennsborough, now embraced in the Walnut Grove school district,” which were to form the new district.

It is said that by establishing the boundaries of the Walnut Grove sub-school district, you have the precise ground covered by the new district. In other words, that the whole of said sub-district and no more, was to comprise the mew district. Unless this can be adopted as the correct construction of the Act, there is neither accuracy nor precision in the description. If the words, “ now embraced in the Walnut Grove school district,” are to be considered in an unqualified sense, then of course all the territory within said district is included; but the Act reads “ the parts adjacent the Pine Grove School-house, now embraced,” &c. Here then are two matters of description, and we are not justified in excluding either. 1st, The territory must be adjacent to the Pine Grove School-house; and 2d, It must be embraced in the Walnut Grove school district. As well might it be said that everything was included which was adjacent to the Pine Grove School-house, whether embraced in the Walnut Grove school district or not, as to say that all that was so embraced was to be taken, whether adjacent. to the school-house or otherwise.- Again, to confine the description to the Walnut Grove school district, we have the legislative absurdity of making a new district out of the precise territory of an old one. The Act would read thus: “ That the parts now embraced in the Walnut Grove school district, shall be erected into a separate school district,” &c. Our respect for the legislative department of our state government, forbids that we should take such liberties with their enactments, particularly as by it we convict them of doing not only a useless, but a foolish Act.

As we understand this legislation, there is really nothing by which to locate the school district but the Pine Grove School-house and the parts adjacent thereto, for there was no Walnut Grove district or sub-district in existence, and we cannot suppose that the legislature intended even by implication to sanction a sub-district attempted to be made in plain violation of the law of the land. But even with the Walnut Grove district as descriptive in part of the locality of the new district, the Act was void for uncertainty. It was neither certain in itself, nor could it be rendered so by anything to which it referred.

■ The error which the Common Pleas committed was in permitting the defendants to patch up an attempt at legislation, totally and ineurably defective in its descriptive parts, by proving the existence of that to which the law itself forbade an existence.

The evidence should have been rejected, and the jury instructed that the Act in question was inoperative and void, and consequently no justification to the defendants.

As what has already been said is decisive of the case, it is unnecessary to consider the assignments of error which relate to the manner of the election. No one could legally be held, therefore it is wholly immaterial as to the way in which it was conducted.

Judgment reversed and venire de novo awarded.


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    Morrison versus Funk.

      1. Though a purchaser at sheriff's sale is protected by the recording Acts against an outstanding title of which he has neither actual or constructive notice, this principle is not to be applied so as to convert an equitable into a legal title.
    2. The possession of one who received possession under articles of agreement, was notice of his equitable title only; and only such title passed to the sheriff's vendee under a judgment against him.
    3. After possession for twenty years payment of the purchase-money will be presumed-but such presumption may be rebutted.
    4. The admissions of the first purchaser that the purchase-money was unpaid, made before judgment obtained against him, were admissible in evidence against the purchaser at sheriff’s sale under such judgment.
    5. If the purchase-money were not paid the owners of the legal title were entitled to a verdict to be released on payment of the purchase-money at a time to be fixed by the jury.
    Error to the Common Pleas of Bedford county.

    Ejectment by George Funk, surviving executor of the will of George Funk, deceased, v. Sophia Morrison and others, for a house and lot of ground in Bedford. The writ was issued on 2d February, 1852. Plea, not guilty.
    The ground in dispute belonged to George Funk, who by his will, proved in 1814, directed it to be sold by his executors. The executors sold it in December, 1814, to Samuel Funk for $1300. No deed to him was made, but he took possession and subsequently built upon it. The house was completed in 1835 and occupied by his tenants.

      In December, 1842, Joseph S. Morrison obtained judgment against Samuel Funk, the purchaser, and the premises in dispute were sold on ven. exp. under it in February, 1848, and deed made to S. M. Barclay who purchased in trust for Morrison. On 6th September, 1851, Morrison sold to Cook, one of the defendants, by articles of agreement.
    This ejectment was brought to enforce specific performance of the contract of sale to Samuel Funk.
    To show the non-payment of the purchase-money, a witness testified that he offered to purchase the premises from Samuel Funk in 1835 and 1840; and that in 1835 Funk said he would see the heirs and let him know; and in 1840 he said he could not make a good title for the property, unless his brothers and sisters would consent.
    Another witness said he had frequent conversations with Samuel Funk about this property, and that Funk said to him that he had never paid the executors for the property; that he ought to have a credit for some money borrowed, about $130, borrowed in 1831 or 1832. The witness said he could not fix any date to such conversations ; they extended back a good while before Funk’s death. He died two or three years ago.
    The Court rejected evidence of admissions by Funk made after the entry of Morrison’s judgment.
    Kimmel, President Judge, charged, inter alia, “that this being an unfinished title, the purchaser was bound to take notice of its defects, and could not claim to be an innocent purchaser without notice; and although the executor laid by for thirty years, yet if Samuel Funk never paid the purchase-money he could not set up such delay as a defence, and that Morrison could only avail himself of such defence as belonged to Funk.” He further charged, “ that after twenty years, payment of the purchase-money would be presumed, but that the presumption could be repelled. That the only admissions made by Funk on which the jury could rely, were those made before Morrison’s judgment was obtained; and he directed them that if they believed the purchase-money was not paid, to find for the plaintiff, the judgment to be released on the payment of the purchase-money remaining due; and to give defendants time for its payment.
    "Verdict was rendered for plaintiff to be released upon payment of $4046, to be paid one-third in six months, and the balance in two equal annual payments with interest on the whole sum. Credit was allowed for about $130. The deed was delivered to prothonotary, and judgment was entered on the verdict.
    Error was assigned to the charge.
    The case was submitted. King and Jordan were for plaintiff.
    In the printed argument it was, inter alia, observed that in order to recover,' other facts should have been established besides the non-payment of the purchase-money; that a party is not entitled to the aid of a chancellor where, owing to his laches, the rights of other parties intervened: 1 Brightly 48; 2 Pa. Law Journal 65.

      Cessna, for defendant in error.
    The presumption of payment after twenty years was capable of being rebutted: 17 Ser. & R. 53; 2 Watts 214; 7 W. & Ser. 70; 5 Barr 435. The conversations admitted in evidence were those AYhich took place after Morrison obtained judgment. Morrison Avas not to be considered as an innocent purchaser without notice. This was a judicial sale, and the principle of caveat emptor applies.
   The opinion of the Court was delivered by

Knox, J.

A purchaser at sheriff’s sale is protected by the recording acts against an outstanding title of which he has neither actual nor constructive notice. But this principle cannot be so applied as to convert an equitable into a legal estate.

The possession of Samuel Funk was notice of his title. It did not, however, vary the effect of the record which showed the legal title to be in the plaintiff below, as executor of G-eorge Funk. Samuel, by his purchase at the executor’s sale, followed by possession and improvements, had an imperfect estate with the right to call for a conveyance upon payment of the purchase-money. This interest passed to the plaintiff in error by his purchase at the sheriff’s sale. The effect of the delay in calling for an execution of the contract upon the part of the executors, was to cast the onus upon the plaintiff below. After the expiration of twenty years, the law presumed the purchase-money to have been paid. This presumption in the estimation of the jury was overthrown by the evidence, which left the way open for the plaintiff to demand a specific execution of the contract.

The President of the Common Pleas was right in instructing the jury “ that if the purchase-money was not paid, the plaintiffs were entitled to a conditional verdict.”

We see no error in the manner in which the evidence was submitted to the jury.

Judgment affirmed.