text:
    Troutman’s Appeal.
    1. The sale of real estate does not of itself satisfy so much of the judgment upon which the sale is had as the estate sells for — the credit depends on the right to the fund.
    2. After real estate had been sold at sheriff's sale an issue was directed between the defendant and the creditor to try whether the judgment under which it was sold was paid; and on the trial of the issue the debtor claimed and obtained credit for the amount of the said sale (which however at the time had not been paid by the purchaser to the sheriff), and in the issue judgment was rendered for the debtor. The said sum being subsequently paid into Court, it was Held, that the issue between the defendant and the creditor was not conclusive upon other judgment-creditors who were not parties to it, and who might show that, independent of the said proceeds of sale, the judgment under which the money was raised was paid.
    3. Until the money was in Court there could be no binding distribution of it. It was not'payable to the debtor but was applicable to the judgments in their order.
    Appeal from the decree of the' Common Pleas of Lycoming County, directing distribution of certain proceeds of sale of real estate of John E. Youngman, sold by the sheriff on 3d March, 1854.
    John R. Campbell, on 8th November, 1848, obtained a judgment in the Common Pleas of Lycoming county, against John E. Young-man, for $3000, on a single bill, with warranty of attorney. To December Term, 1848, a fi. fa. was issued on this judgment, and personal property was levied on and sold for $971.50, and $946.97, the balance, after deducting costs, was appropriated to this judgment. To September Term 1849, a fi. fa. for the residue was issued, and real estate of defendant was levied on. Venditioni exponas to December Term, 1849, and- on 8th of December, 1849, one piece of property was sold to John R. Campbell, plaintiff, for $200, and another piece to George W. Youngman, for $500. Youngman having neglected or refused to pay the amount of his bid, an action of assumpsit, for its recovery, was instituted by the sheriff, to April Term, 1850, in which, on the 7th of February, 1852, a verdict was rendered in favor of plaintiff for the sum of $564.91.
    On the 15th of February, 1851, the Court opened the judgment of John R. Campbell against John E. Youngman, on defendant’s application and allegation that the judgment was paid. On the trial of this case, the plaintiff showed his judgment, executions, and sales, and was charged with the proceeds of the sales of the personal and real property, no objection being made at the time by the plaintiff or defendant, or any creditor of John M. Young-man. The defendant, besides these credits, showed a receipt from John R. Campbell, to him, dated November 8,1848, for two notes, di-awn by J. M. Cummings in his favor, one for $1011.22, at twelve months: and one at eighteen months, for $1041.57, received by Campbell as collateral security; and proved that Campbell had given up these notes to Cummings, the drawer of them, whether with or without Youngman’s consent, did not appear. His consent, however, was not shown. These notes, with the proceeds of sales of personal and real property, left a balance due Youngman from Campbell; and on 5th February, 1853, a verdict ivas rendered for the defendant.
    Youngman had brought suit against Campbell, to April Term, 1850; and on the 8th February, 1853, a verdict was rendered in Youngman’s favor for $371.66. On the trial of this case, the judgment of Campbell for $3000 was shown, and that it had been opened; and that on 5th of February, 1853, there was a verdict for plaintiff for the $371.66, as before stated; judgment was entered by consent on the verdict on the 8th of February, 1853. The Court instructed the jury in this case that the plaintiff was not barred from recovering, by the verdict and judgment in the case of Campbell against Youngman; that even if the plea of set-off had been put in, the defendant therein could not have recovered, as it was neither an adversary suit, such as could have been arbitrated, or an action pending.
    On 8th September, 1853, the money arising from the sale of the real estate purchased by Greorge W. Youngman, was paid into Court by the executors of the sheriff.
    On 30th January, 1854, was presented the petition of John R. Campbell for leave to take the money out of Court.
    On 6th February, 1854, the answer of the creditors of John E. Youngman to above petition was filed, in which the facts set forth in the petition were admitted, but it was denied that there was any appropriation of the fund, by the Court, or that the facts as stated, amounted to such; and alleging further, that the judgment of John R. Campbell was fully paid, exclusive of the $500 alleged to have been claimed as a credit by said John E. Youngman, and that there was the sum of $504.31 due by Campbell, applicable to the payment of his judgment against John E. Youngman, after fully paying the same, which would have been recovered in that issue, had the law permitted it.
    At the time of the sale of John E. Youngman’s real estate by the sheriff, to wit, on the 6th of December, 1849, there was one judgment prior to Campbells, in favor of Jacob Rodarmel, entered on the 3d of June, 1848. The judgment, under which the fund in Court was claimed • adversely to John R. Campbell, was in favor of Louis Troutman. It was entered on the 24th of November, 1848. The name of an attorney for him was on the record. No application had leen made by either of the judgment-creditors of Youngman, to have the money brought into Court, although the sheriff had made return to the writ of venditioni exponas, in due time, that the real property had been sold; or to interplead or be heard on the trial of the case of Campbell against Youngman. Rut on the 7th of February, 1853, a motion was made, and a rule granted on George W. Youngman, the purchaser of part of the real estate of John E. Youngman, and the judgment-creditors of John E. Young-man to show cause on the first day of the then next term, why the judgment in favor of the sheriff, except so much of it as might be applied to the Rodarmel judgment, should not be marked for the use of L. M. Troutman.

    On the 8th of the same month, a motion was made by counsel, to show cause why the judgment should not be marked for the use of John B. Campbell. Both these rules were discharged by the Court, that the rights of neither party might be prejudiced, when the question of distribution came up.
    Jordan, J., stated that when the credit of $500 with its interest was claimed and allowed John E. Youngman, Campbell had a lien prior to that of Troutman, and that amount having been credited to Youngman and charged against Campbell, it would be wrong to permit Troutman to take the money out of Court. That Troutman, although not a party to the suit of Campbell against Youngman, or Bennett (the sheriff) against Youngman, had counsel in Court, who, from December, 1849, till February, 1853, made no claim to the proceeds of sale of the real estate.
    On 3d March, 1854, the fund in Court was directed to be paid to Campbell, after deducting the prior lien in favor of Rodarmel.
    To such decree exception was taken.

      Scales, for plaintiff.
    It was, inter alia, said that the material question was, whether before the money had come to the hands of the sheriff, the Court could appropriate it: 9 Barr 270, Opinion in Williams’ Appeal. There was no distribution of the money until the decree of the Court of 3d March, 1854, and at that time Campbell had no judgment prior to that of Troutman’s.

      Armstrong, contrá.
    It was contended that Youngman, the defendant, having obtained credit in the issue for the proceeds of sale, it amounted to an appropriation of them, and that such judgment had not been reversed. That they were thus decided to belong to Campbell.

      September, 1854,
   The opinion of the Court was delivered, by

Knox, J.

This is a contest between Troutman, the appellant, and Campbell, the appellee, for a sum of money made by the sheriff of Lycoming county upon a sale of the real estate belonging to John E. Youngman, against whom both the appellant and the appellee had a judgment, which judgments were liens upon the property sold.

The real estate of Youngman (the sale of which produced the fund) was sold on the 6th of December, 1849, but the money was not paid into Court until the 8th of September, 1853, having been in the mean time withheld hy the purchaser until recovered from him by process of law.

In February, 1851, the judgment of Campbell against Young-man was opened upon the allegation of the defendant that it had been fully paid; and upon an issue to determine what, if anything, was due upon it, a verdict was rendered in February, 1853, for the defendant. Upon the record, then, this judgment is to be satisfied, and without explanation is clearly not entitled to the fund in Court.

At the trial between Campbell and Youngman, the latter offered as payment upon the judgment the amount of the bid of George W. Youngman, made in December, 1849, but not yet recovered by the sheriff. This was allowed, without objection, and the result was that including it the judgment was overpaid five hundred and four dollars. If this bid had been excluded the judgment would still have been paid, and the verdict would have been for the defendant. Upon the allegation of overpayment upon the judgment, Youngman sued Campbell, and in February, 1853, recovered the sum of $371.66, which is said to have been the balance due Youngman, after deducting a promissory note held by Campbell against him, and which was offered and received as a set-off. By these proceedings Youngman has received from Campbell the amount of George W. Youngman’s bid. How does this affect Troutman ? Does it preclude his claim ? The Common Pleas decided that it did, and decreed the money to Campbell. In this there was error. Troutman was a stranger to the controversy between Youngman and Campbell. He had an attorney in Court, it is true; but that attorney performed his whole duty when he gave notice to the sheriff not to pay the proceeds of the Youngman bid to Campbell, as it was claimed by his client. Until the money was actually brought into Court there could be no binding distribution of it, and an attempt to apply it to any particular judgment was entirely nugatory, so far as those not parties to the arrangement were concerned.

The mistake in this whole business has been in considering the sale of the real estate to George W. Youngman as so much money paid on the Campbell judgment. The levy and sale of real estate does not, of itself, satisfy so much of the judgment upon which the sale is had, as the estate sells for. The right to the credit depends upon the right to receive the money. The one cannot exist without the other. And as Campbell’s judgment had been fully paid without applying to it the fund in controversy, it necessarily follows that it could not be so applied in order to give Youngman a right of action against Campbell to the exclusion of Troutman, the appellant. To do this would be, in effect, to allow a debtor to receive the money made by a sheriff’s sale of his real estate, whilst his judgment-creditors were unpaid.

When it was ascertained that the appellee’s judgment was paid without reference to the bid of George W. Youngman, all claim upon his part to this fund was at an end, and the money should have been decreed to the next judgment-creditor.

The decree of the Court of Common Pleas is reversed, and it is ordered and decreed that the fund in Court be paid: First, to the judgment of Jacob Rodarmel; Second, to the judgment of Lewis M. Troutman; and that the costs of this appeal be paid by the appellee, John R. Campbell.


source: Caselaw Access Project

author: Woodward, J.

license: Public Domain

text:
    Brown versus Lutheran Church.
    1. Trustees of real estate for religious purposes, holding in trust for erecting a school-house and a church thereon, and for a burying ground, could not create a new use, or convey the estate for purposes inconsistent with those for which they held it.
    2. But it was competent for the cestuis qm trust to ratify and confirm the act of the trustees in making such a conveyance.
    3. A grant to the members of an unincorporated religious society where the purpose is to promote the charity for which the society was organized, is, in Pennsylvania, a grant to the society itself.
    4. A church and burial ground held by two distinct religious societies as tenants in common, under articles of association looking to a permanent union, are not within the provisions of our statutes relating to partition and are not the subject of partition.
    5. The same is the case with respect to the portion of the burial ground not yet used for the purpose of burial: — and especially, as the partition of the whole property was demanded in the writ, the judgment of the Court refusing partition should be affirmed.
    Errur, to the Common Pleas of Union county.

    This was an action' of partition in the name of George Brown, trustee of the German Reformed Congregation, worshipping in St. Peter’s Church, Kelly township, Union county, v. The Evangelical Lutheran Church and Congregation, worshipping in the same church, and attached to the West Pennsylvania Synod. Plea, non tenent insimul.

      On the 30th August, 1802, there was conveyed to Christian Zerbe and George Renninger, above seven acres of land, then in White Deer township, now Kelly township, Union county, for the consideration of <£20.14, “in trust to and for the use of building or erecting a school-house and a German Lutheran Church on the same, and a burying ground.”
    On the 24th November, 1815, Zerbe and Renninger executed a deed, in which it was recited that “ the members of the Presbyterian Reformed Congregation have contributed towards purchasing the aforesaid piece or parcel of land, and willing to contribute towards building a churchtherefore, in consideration of the sums of money contributed as aforesaid, and to be contributed towards building a church, they have “ granted, permitted, allowed, and confirmed the full rights, liberty, and privilege, unto the members of the said Presbyterian or Reformed Congregation, in common'with the members of the Lutheran Congregation, of, in, and to the aforesaid premises and church, when built.”
    It was stated in evidence that the school-hous'e was constructed soon after the purchase of the lot, in the construction .of which members of both congregations united.
    Articles of association, dated the 15th of May, 1819, were entered into by members of the two congregations, in 'which it was, inter alia, stated that they had resolved to erect jointly a house for the worship of God, “ on a lot which has been purchased by both congregations, and appropriated for that purpose.” In one of the articles it was provided that “ the members of both congregations shall have an equal right and interest in the church and land belonging to the same;” in another, that “the members of both congregations shall have their time of worship alternately,” &c.; and in the seventh article it was, inter alia, provided, that each one that will be a member of the church, shall contribute “towards the erection and keeping in repair of the same, and in consideration for so doing, he and his heirs, with all others, shall have an equal right, share, and claim, in and to said church, the church-yard, and the land belonging to the same.”
    In the 13th article it was provided that all church furniture, necessary to have, should be purchased jointly, &c., and to be the property of one as much as of the other congregation.
    The contributions towards building a church were, by Lutherans, $912; by members of the Reformed congregation, $177; and by strangers, $73.
    The premises were used and occupied for a number of years-by the two congregations.
    . In 1846, the Lutheran congregation procured a charter of incorporation. Afterwards this action of partition was brought by the Reformed congregation.

      It was alleged that a grave-yard was commenced some time before the written purchase of the land, which has been gradually enlarged, till it occupies nearly an acre, and requires additional enlargement.
    It did not appear whether or not the Reformed congregation was concerned in the original purchase of the premises.
    Wilson, President Judge, in his charge observed, that so far as the articles of association were confirmatory of the deed from the trustees a title passed, for, without the consent of the Lutheran congregation, the trustees had no power to convey any of their rights and privileges; but he observed that the association was by the members of the two congregations, for the purpose of erecting and building, and securing to each contributing member and his heirs, a right and claim in the church, &c., and not to the congregation and its successors. He therefore charged, that no interest had been shown in the plaintiff, the Reformed congregation, to sustain the action.
    But he further charged that the policy of the law forbid the partition of a grave-yard, or a sale under such a proceeding; that the laws authorizing and regulating partition, do not contemplate the partition of property situated as the premises in question.
    Verdict was rendered for the defendants.
    It was assigned for error that the Court erred, first, in the instruction that the plaintiffs had not such an interest or title in the premises as would sustain partition; second, that the policy of the law forbid, the partition of a church or grave-yard; and, third, in directing a verdict for defendants.

      Casey and Polloelc were for plaintiffs in error.
    It was contended that from the written title exhibited, it was evident that the original purchase was made by and for the use of both congregations and paid for jointly. But that, in addition to such evidence, the plaintiffs below had the conveyance of a legal title ratified by the members of the Lutheran congregation.
    It was observed that impossibility of making partition was no legal objection to proceedings in partition; that for the sake of peace and the promotion of justice, the premises may be valued and the right afforded to take them at a fair valuation, paying the other party a fair proportion of it.
    It was further observed that this was not the case of a gift of land and a dedication to a particular use, but was a purchase, and that the trust expressed in the deed was to restrain the power of the trustees rather than control the uses to which it should be applied. The statutes of 13 Henry VIII., Chapter I., Roberts's Rig. 218, subjects to compulsory partition any manors, lands,

      tenements and hereditaments, within the realm. The statute 32 Henry VIII., Chapter XXXII., Roberts’s Big. 226, uses the same terms. The Act of 11th April, 1799, Sec. 1, Purd. 628, speaks of “lands and tenements.” The Act of 7th April, 1807, Ibid. 629, refers to “lands, tenements, or hereditaments.” Miller on Partition, page 36, 37, 45, et seq., was referred to.

      Miller and Linn, for defendants in error.
    It was contended that if the contract of May, 1819, was a ratificatio'n of the deed of the trustees, still that it conveyed a use or privilege and not a fee to the members of the congregation, and not to the congregar tion. In the narr. the undivided half of the church and land was claimed, whilst members of the Beformed congregation had not contributed one-fourth as much as members of the Lutheran congregation.
    The case of Kirk v. King, 3 Barr 436, was cited to the point' that “the employers of a certain school” being unincorporated, were incapable of taking a fee which remained in the grantor. Also cited 2 W. & Ser. 81-87. The case of Coleman v. Coleman, 7 Harris 100, was referred to on the subject of partition. A donation to a church cannot be diverted from the use the donor intended. If a congregation withdraws from a union with another, they can take no property of the congregation with them: 6 Barr 201, App v. Lutheran Congregation.
   The opinion of the Court was delivered by

Woodward, J.

The first error assigned is, that the Court erred in deciding that the plaintiffs had not such an interest or title in the premises as would sustain partition.

If the plaintiffs’ title rested solely on’the deed of 24th November, 1815, it could not be sustained, for the grantors in that deed were trustees under the deed of 30th August, 1802, to hold the premises in “ trust to and for the use of building or erecting a school-house and a German Lutheran church on the same, and a burying ground,” and although they might assign the trust by force of the terms used in the conveyance to them, they could not create a new use, or convey the estate for purposes inconsistent with those for which they held it. When, therefore, they granted to the members of the Presbyterian or Beformed congregation equal rights and privileges in said premises with the Lutheran congregation, they exceeded their authority, and attempted a diversion of the trust to objects not contemplated in the deed which created it.

But it was competent for the cestuis que trust to ratify and confirm the act of the trustees, and this we think they did on the 15th May, 1819, by the “Articles of Association.” The parties to these articles were the members of the two congregations, and though not incorporated, they were competent to contract as religious societies. The consideration was in their mutual promises, and the compact gave to the members of each congregation expressly an “ equal right and interest in the church and land belonging to the same.” The details which are regulated by the articles indicate an intention to form an abiding union between the congregations — to build the church at their joint expense — and to enjoy the premises as tenants in common. Similar articles were held in Shortz v. Unangst, 3 W. & Ser. 54, to be within the recording Acts as title to land, and we have no difficulty in pronouncing the plaintiffs here entitled, by virtue of the articles of 1819, to such an interest in the premises as would sustain the action of partition. The learned judge took a distinction between the members of the Reformed congregation and the congregation itself, and held that whatever title was transferred by the articles, vested in the former and not in the latter. The title papers, it is true, are to the members of both congregations, but the intention was not to vest title in the several individuals composing those congregations, but in the respective societies, which were nothing else than aggregations of these individuals. Under our Acts of Assembly, religious societies have many of the capacities of corporations, and a grant to the members of such a society, where the purpose is to promote the charity for which the society was organized, is a grant to the society itself. The first error, therefore, seems to be well assigned, but still the judgment is not to be reversed, if the Court were right in deciding that the policy of the law forbids the partition of a church or grave-yard, which is the subject of the second assignment.

These unions between different denominations of Christians are proved by all experience to be most unwise. The motives for them in new and thinly settled neighborhoods are obvious and commendable — to furnish those facilities for Christian worship and burial, which each sect of itself is too poor to supply. And there is something attractive in a proposed union of Christian effort and means for a common purpose. It promises the beautiful spectacle of brethren dwelling together in unity, and seems likely to illustrate the affectionate and fraternal spirit of the religion professed; but no matter how solemnly the parties may agree, like those before us, that “everything shall be transacted in love and peace,” they always realize in bitter experience the truth implied by the pregnant question, “ how can two wTalk together except they be agreed ?” It is no reproach to Christianity that such unions prove impracticable, for it is a jealous and conscientious regard for what is believed to be right — for different forms of the same essential faith — that produces the discord. Dogmas for which we care but little are easily compromised, but what we believe with our whole hearts we contend for earnestly. And it is because Christianity makes men honest and faithful to their convictions, that they will not surrender either the positive or the formal truths they have received, and hence the impossibility of uniting on common ground those whose only differences consist in the modes of professing a common faith. But what can the law do for parties in such unhappy circumstances ? Divide their property, say these plaintiffs. The law of partition in Pennsylvania is adapted to every exigence of tenancies in common; for, if the property cannot be parted without prejudice, it may be put into market and sold, and in general partition is a right of tenants in common. Yet cireum.stances of their own creation will sometimes induce the Courts to deny them this right, a striking instance of which may he seen in Coleman v. Coleman, 7 Harris 100. Here we have circumstances essentially different, but equally dissuasive from granting partition. The members of two religious societies, under articles of association which look to a permanent and interminable union, erect a church and establish a burying ground. A whole generation have worshipped in the church, and now sleep in that ground. Their children and successors being unable longer to enjoy the house of worship) together, it is proposed to make partition. The Lutheran portion object to this on the ground that they are unable to take the property at a valuation and pay for it, and are unwilling that the altar and the graves of their fathers should be brought to public vendue. We think their objection well grounded and worthy of respect. The church could not be divided, and to separate it from the burial places would be not only a species of sacrilege, but would materially impair the value of both parts of the property. The only form in which the partition asked for could be made, would be by a public sale; and what would these graves, of inestimable value to surviving relatives, fetch in market ? They would prove a prejudice to the property, and would depreciate its price. And then, in the hands of a purchaser, they would be almost sure of desecration. Pennsylvania, with a refined and elevated sense of what is due to both the dead and the living, has forbidden, by statute, the opening of streets, lanes, alleys, or public roads through any burial ground or cemetery, and has provided a penalty for wilful injuries done to grave-yards — not only to the tombstones and fence-railings, but even to the “shrubs and plants” which bereaved love cultivates in such places. The sentiment is sound, and has the sanction of mankind in all ages, which regards the resting-place of the dead as hallowed ground — not subject to the laws of ordinary property, nor liable to be devoted to common uses. We do but express the concurrence in this sentiment which we feel, when we hold that a church and burial ground situated as these now under consideration, and owned by distinct religious societies as tenants in common, are not within the spirit and meaning of our statutes of partition, and that the Court were right in denying judgment quod partitio fiat to the plaintiffs. Whether there he any other remedy at law for the differences of these tenants in common, it is not our duty to 'inquire, but it may not be amiss to suggest that they can agree on terms of separation, and settle their difficulties among themselves far more advantageously than the law can do it for them.

Something was said about partition of that portion of the graveyard not yet occupied with graves. There are 7 acres and 91 perches in the whole lot — not more than is usual and proper in grave-yards — and it is said that the part hitherto used for burying is filled up, and a portion of the remainder of the lot will be immediately required for the purpose. What is not so used belongs properly to the church as a glebe, and ought not to be separated from it. Beside all this, the writ demands partition of the whole property, not of the unoccupied part of the grave-yard, and considering that the judgment was right, it is affirmed.


author: Knox, J.

text:
    Fisher versus Farley.
    1. Where the Court is asked to instruct the jury that if they find a certain state of facts, then the law is as stated in the point, it is not, after an afirmative answer, assignable for error that the Court erred in submitting the question of fact to the jury.
    2. The provision in the Act of 25th April, 1850, that no right of way shall be hereafter acquired by user where such way passes through uninclosed woodland, does not apply to a right of way which was perfect before the passage of the Act.
    3. In an action for obstructing an alleged private right of way in which no special damage was claimed, the jury agreed upon a verdict for the plaintiff, and then separated. The Court refused to receive the verdict because no damages had been found, but referred it back to the jury with directions to assess damages, and the jury found one dollar damages: Held, that no special damage being claimed and the amount found being nominal the change in the verdict was properly allowed.
    Error to the Common Pleas of Union county.

    This was an action in ease by Jacob Farley v. John L. Fisher, for obstructing an alleged private right of way, to the damage of the plaintiff. The action was brought in 1851. No special damage was claimed in the narr. The plea was, not guilty.
    The father of the plaintiff owned a tract of land of about 104 acres, taking possession of it about 1810. He either made or used a road previously existing through adjoining lands, and it was used by the family till Jacob Farley, the plaintiff, became the owner of his father’s tract in 1827; and he used the road till it was obstructed by Fisher, who, in 1850, purchased some of the land over which the x’oad ran.

      On tlie trial points were submitted on part of the defendant: 1st. That if the jury believed that the people generally in the neighborhood of this road, have used it as a horse and foot path without hindrance or obstruction for fifty years, then the plaintiff has failed to show that it is his private way, and he could only recover by averring in his declaration, and proving some extraordinary and special damage suffered by himself. 2d. That under the pleadings and evidence in this cause, if it has been used as a public foot path, the plaintiff cannot recover. 3d. That if the jury believe, that where this right of way is claimed, had been uninclosed woodland, and was cleared and fenced by the defendant for the purpose of farming and tillage, he was protected in doing so and authorized by the Act of Assembly of the 25th April, 1850, and the plaintiff cannot recover.
    The Court instructed the jury that a continued, uninterrupted, and adverse use of a way under a claim of right and with the knowledge and acquiescence of the owner of the land over which it passed for a period of twenty-one years or upwards, will authorize a recovery in damages by the person claiming such right which is interfered with.
    The first point was answered in the affirmative. In respect to the question involved in the second point, the Court submitted to the jury to inquire whether the evidence showed a private right by such user by which the Court intimated such a right of way could be acquired; but instructed them that if the way had been used as a public foot path, common to the use of any person who had occasion to use it as a foot path, the plaintiff could not recover under the evidence and pleadings in the case. As to the third point, the Court instructed the jury that the Act of 25th April, 1850,-in relation to roads through uninclosed woodland, did not give the owner of the land the right to obstruct a road by fencing where a right of way had been acquired by use for the length of time from which such a right would be presumed.
    The jury being out, the had them informed that when they agreed on their verdict they should seal it and bring it into Court the next morning. After sealing their verdict they separated, and the next morning they rendered a “verdict for the plaintiff.” The jury were sent out again to determine an amount of damages — the defendant’s counsel objecting. They afterwards, 25th February, 1853, found for plaintiff one dollar.
    It was assigned for error, — 1 and 2. That the Court erred in the answers to the first and second points. 3. In submitting to the jury to find whether this was a public or private road, it being alleged that there was no evidence of a private right of way. 4. In refusing to have the verdict recorded as first rendered.
    The 21st section of the Act of April 25, 1850, is as follows:—

      “ No right of way shall hereafter be acquired by user, where such way passes through uninclosed woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to inclose the same, as if no such way had been used through the same before such clearing and inclosure : Provided, that the provisions of this section shall in no way affect any suit or suits now pending in any of the Courts of this Commonwealth in relation to any right of way or any other matter embraced in this section.”

      Casey, with whom was Tharp, for plaintiff in error.
    As to the fourth assignment, was cited 4 Watts 357; 3 Pa. Law Jour. 369; 2 Rawle 53. It was alleged that the case of Wolfran v. Eyster, 7 Watts 38, as to having formalities in verdicts amended, did not sustain the course herein pursued, as in this case no damages whatever were found.

      Miller and Linn, for defendant in error, were not heard.
   The opinion of the Court was delivered by

Knox, J.

Jacob Farley, the defendant in error, and plaintiff below, claimed a private right of way across the land of John L. Fisher, the plaintiff in error, and defendant below, and this action was brought by Farley against Fisher to recover damages for its obstruction.

As presented ujmn the paper-boob, the defence appears to have been—

1st. That the right of way was a public and not a private right, and therefore there could be no recovery, as no special damage was alleged or proven.

2d. That if the right was a private one the defendant was justified in putting his fence across the path by the Act of 25th of April, 1850.

The first ground was affirmed by the Court of Common Pleas, but it was left to the jury to say from the evidence whether the right was public or private. This was so clearly correct that it needs no argument to sustain it. The point submitted was this: “ That under the pleadings and evidence in this cause, if it has been used as a public foot path, the plaintiff cannot recover.”

To which the answer was: “ If it has been used as a public foot path common to the use of any person who has occasion to use it as a foot path, the plaintiff cannot recover under the evidence and pleadings in the case.”

It is difficult to perceive how the point could have been more directly affirmed, and yet we have two errors assigned upon the answer. “ 1st. The Court erred in their answer to defendant’s second point.” “3d. The Court erred in submitting to the jury to find whether this was a public or private road.”

These assignments are sufficiently answered by what has already been said, viz. That the point was answered according to its prayer, and the question submitted as requested. Where the Court is asked to instruct the jury that if they find a certain state of facts, then the law is as stated, it will not do after an affirmative answer to allege that it was error to leave the question at all to the jury. Cases would seldom be finally disposed of if judgments were reversed upon such grounds.

The second assignment arises under the construction of an Act of Assembly passed 25th April, 1850, in the following words

“ No right of way shall hereafter be acquired by user where such way passes through uninclosed woodland; but on clearing such woodland the owner or owners thereof shall be at liberty to enclose the same, as if no such way had been used through the same before such clearing and inclosure: Provided, that the provisions of this section shall in no way affect any suit or suits now pending in any of the Courts of this Commonwealth in relation to any right of way or any other matter embraced in this section.”

It was held by the Court of Common Pleas that this Act did not apply to a case where the right was perfect before its passage. In this there was no error. It would be a manifest perversion of the language of the statute to give it a retroactive effect. This is never done unless in obedience to a legislative mandate clear and unequivocal, and not then if within the constitutional prohibition. Were the rule otherwise 'the case would still have been properly decided, for here the language most clearly refers to rights to be acquired after the passage of the Act — “ No right of way shall be hereafter acquired by user, &c.” The legislative intention, as here expressed, is too plain to be controlled by an inference deduced from the proviso that the Act should not affect pending suits. This was inserted from an abundant caution to prevent what has too often resulted from legislative action, viz. interference with existing rights by a denial or change of remedies. After having provided by apt words that the Act should be prospective only, a-superfluous addition is made that pending suits shall not be affected. The first includes the last provision, but the last does not destroy the first.

The jury, after agreeing upon their verdict, sealed it up and separated. Upon its presentation in Court it was found to be deficient in not assessing any sum as damages. Against the objection of defendant’s counsel the Court refused to receive the verdict, but referred it back to the jury, with directions to assess the damages, which was afterwards done at one dollar.

It is very evident that the principal if not the only matter of contest between the parties was as to the right of recovery. No special damage was claimed, and the amount found was merely nominal. This is substantially the same as the first finding, which was generally for the plaintiff. The change was therefore merely formal, and properly allowed. Due regard for the administration of justice requires that considerable discretion in this respect should be given to the Court before whom the trial takes place.

Judgment affirmed.


text:
    Dentler’s Appeal.
    Where a person sells land and agrees to make a title free from encumbrances, he cannot afterwards purchase an outstanding lien against it and enforce it against his vendees, or have it paid out of the proceeds of sheriff's sale of the premises to the prejudice of their judgment-creditors. The lien of the judgment so purchased ceased as respected the premises sold as soon as it was acquired by the vendor.
    Appeal by John F. Dentler, from the decree of the Common Pleas of Northumberland county, directing distribution of certain proceeds of sale of real estate sold on execution on a judgment against Levers & Quiggle.
    Charles Kelchner was the owner of the house and lot sold, and whilst owner, viz. on 2d January, 1843, a judgment was entered against him in favor of J. P. Hackenburg. It was revived to January Term, 1848. In 1849, J. F. Dentler agreed with him for an exchange of it for other property and money, and it was agreed that the judgment of Hackenburg was to be removed by Kelchner. Kelchner was satisfied for the consideration of the property, but he had not conveyed the premises to Dentler.
    In April, 1850, Dentler agreed to convey the premises to Levers & Quiggle; and it was testified before the auditor appointed in the matter, that Dentler stated that he was to remove the encumbrances from the property. Quiggle took possession of the premises, and, through an understanding with Levers & Quiggle, Dentler procured Kelchner to convey direct to Levers & Quiggle. The deed was dated 29 th July, 1850, though Dentler had been satisfied by Levers & Quiggle in April, 1850.
    On 10th May, 1850, a judgment was entered in favor of Eckel & Co. v. Quiggle & Winchester, for $128.33; and on 13th June, 1850, one was entered in favor of W. Yarnall & Co. v. Levers & Quiggle, for $195.25; and on 26th June, 1850, another was entered in favor of Eckel & Co. v. Quiggle, for $377.53.
    On one of the two last judgments, the premises were sold, on venditioni exponas, to November Term, 1850. The sum of $478 was paid into Court for distribution.
    On the 26th July, 1850, three days before the conveyance by Kelchner to Levers & Quiggle, the judgment of Iíackenburg v. Kelchner was assigned to Dentler. •
    Dentler claimed to have a portion of the money applied to the Haekenburg judgment, in preference to subsequent judgments against Levers & Quiggle, of Quiggle alone. It was stated in the counter statement, that as between Levers & Quiggle, the premises purchased from Dentler wore to belong to Quiggle.
    An auditor was appointed, before whom Haekenburg was examined, and stated, inter alia, that it was at his solicitation that Dentler bought the judgment.
    Dentler was examined, and said, inter alia, that Levers & Quiggle were then indebted to him nearly $400,
    The auditor reported in favor of paying the Haekenburg judgment, which amounted to nearly $400 ; but IIegins, J., set aside his report in that respect, and directed the appropriation of the money for distribution to judgments against Quiggle & Winchester, and to judgments against Levers & Quiggle.
    Such decree was assigned for error.

      Miller, for plaintiff in error.
    It was contended that the case was to be considered as if Haekenburg was claiming the amount of the judgment in his favor. Dentler had not the title and the judgment at the same time. The premises never were conveyed to him.

      Pleasants, contrá.
    If there had been no agreement on part of Dentler to convey, clear of encumbrances, still Levers & Quiggle would not have been bound to pay, if there were encumbrances on the premises: Lighty v. Shorb, 3 Penn. Rep. 450; 1 Watts 236. Dentler was the owner of the Haekenburg judgment, whilst he was under obligation to convey to Levers & Quiggle, and he would be estopped from pursuing his vendees under that judgment: 7 Watts 20-24, Koons v. Hartman. But it was testified that Dentler was to convey clear of encumbrances.
   The opinion of the Court was delivered by

Knox, J.

This is an appeal from the decree of the Common Pleas of Northumberland county, distributing money arising from the sale of the real estate of Lovers & Quiggle.

The appellant, John E. Dentler, at one time owned the estate sold by the sheriff, and it was clearly established by the evidence produced before the auditor, that when he sold to Levers & Quiggle the contract was for a title free from encumbrance.

Dentler had purchased the property from one Kelchner, and by an arrangement between Kelchner, Dentler, and Levers & Quiggle, the deed was made directly from Kelchner to Levers & Quiggle. Whilst the title was in Kelchner a judgment was entered against him in favor of Haekenburg, which was a lien upon the property at the time Kelchner sold to Dentler. Dentler bought this judgment, and when the house and lot was sold by the sheriff claimed to be paid its amount from the fund in Court. This was resisted by the judgment-creditors of Levers & Quiggle, and denied by the Court.

The question presented in the case is this: When one sells land and agrees to make a title free from encumbrances, can he purchase an outstanding lien and enforce it to the exclusion of the judgment-creditors of his vendees ? To state the question is to answer it. The moment Dentler became the owner of the Hackenburg judgment its lien against the estate sold by him.to Levers & Quiggle was gone, and it is certain that if it was not a valid lien in the hands of Dentler against the house whilst owned by Levers & Quiggle, the sale by the sheriff gave it no right to participate in the fund.

Suppose Dentler had attempted to enforce the. Hackenburg judgment against the property whilst owned by Levers & Quiggle: can it be doubted that under the evidence given before the auditor he would have been restrained from so doing ? It will not do to say that because the creditors of Levers & Quiggle were not parties to the contract with Dentler, they cannot derive protection from it. In distributing the proceeds of real estate raised by a sheriff’s sale, judgment-creditors are entitled to all of the debtor’s equity against any of the claimants. If the debt or lien is not a subsisting one against the property before the sale, it cannot interfere with the fund raised by the sale. The money before distribution is the representative of the land, and nothing but what was a lien upon the one can partake of the other.

Judgment affirmed.

Woodward, J., delivered a dissenting opinion.


text:
    McCarty versus Hoffman.
    The Act of 27th January, 1848, enacting that “Every last will and testament heretofore made or hereafter to be made, excepting such as may have been finally adjudicated prior to the passage of this Act, to which the testator’s name is subscribed by his direction and authority, or to which the testator hath made his mark or cross, shall be deemed and taken to be valid in all respects : Provided the other requisites under existing laws are complied with It was Held that the provision is not constitutional as respects the will of one who died before the passage of such Act.
    Error to the Common Pleas of Lycoming county.

    This was an issue wherein Peter R. Hoffman, who intermarried with Sarah McCarty, was plaintiff, and Lloyd McCarty was defendant, and was formed to try the validity of an instrument alleged to be the will of Ann McCarty. The alleged will was dated 22d April, 1847, and Ann McCarty died in that year.

      A caveat to its being admitted to probate was filed on 14th January, 1848, by Lloyd McCarty, the brother of the deceased. In the caveat it was objected: 1. That the said writing is not the will and testament of the said Ann McCarty. 2. That the said writing is not signed by the said Ann McCarty. Her name was not signed by her at the end thereof, or by any person in her presence and by her express directions, nor was she jmevented from signing the same by the extremity of her last illness. 3. The will is signed with a marie (ov X) only, which in this case is insufficient.
    Anthony, President Judge, inter alia, charged to the effect that if Ann McCarty assented to her hand being guided, and knew what she was doing, and was willing to make her marie, and with assistance made it, it was a sufficient signing under the Act.
    It is enacted, in the 6 th section of the Act of 8th April, 1838, that “every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction,” &c.
    It is enacted in the 1st section of the Act of 27th January, 1848, that “ every last will and testament heretofore made, or hereafter to be made, excepting such as may have been finally adjudicated prior to the passage of this Act, to which the testator’s name is subscribed by his direction and authority, or to which the testator hath made his mark or cross, shall be deemed and taken to be valid in all respects. Provided the other requisites, under existing laws, are complied with.”
    May 2, 1848, verdict for plaintiff.
    It was, inter alia, assigned for error, that the Court erred in not instructing the jury that, under the evidence, the will was not executed according to the requirements of the 6th section of the Act of 8th April, 1833.

      Armstrong, for plaintiff in error.
    It was, inter alia, contended that the legality of the execution of a will is to be judged of by the law as it was when the paper was executed: 5 Watts 399, Mullen v. McKelvy. Before the Act of 1848, a marie, instead of the name of the party, was insufficient: 5 Barr 21, Asay v. Hoover. Also cited 10 Watts 153, Dunlop v. Dunlop.

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

Woodward, J.

As the law stood when this will was made, and when the testatrix died, a cross, however attested, was not a signature. Nothing but the testator’s name signed by him at the end of the will, or by some person in his presence and by his express direction, would answer the requirements of our Statute of Wills of 1883.

But, by an Act of 27th January, 1848, “every last will and testament heretofore made, or hereafter made, ..... to which the testator hath made his mark or cross, shall be deemed and taken to be valid in all respects.” Mrs. McCarty made her will April 22, 1847, and died 8th May, 1847. Void for want of signature, was the will validated by the subsequent Act of 1848 ? Undoubtedly it was if the legislature were competent to pass a retroactive law on the subject, for this will is within the very words of the enactment. But in Greenough v. Greenough, 1 Jones 489, it was demonstrated by the late chief justice that the Act of 1848, so far as it was retroactive, was unconstitutional and void. The same thing was asserted again in Snyder v. Bull, 5 Harris 58. This conclusion has our hearty concurrence. As the law of the case stands, therefore, we are obliged to say that this will was not duly executed, and was, consequently, an abortive attempt at a testamentary disposition.

And now, to wit, September 11,1854, this cause came on to be heard, and having been argued by counsel, it is considered and adjudged that the decree of the Itegisters’ Court, of Lycoming county, admitting the paper purporting to be the last will and testament of Ann McCarty to probate as such, be reversed and annulled, and wholly taken for nought, and that the plaintiff in error recover costs.

Lewis, J., dissented.


author: Lowrie, J. Lewis, J.,

text:
    Cummings’ Appeal
    Where one becomes the purchaser of land at a sheriff's sale under an erroneous belief that the lien of a mortgage will be discharged by the sale, and the mistake is discovered before the deed is acknowledged, the Court can grant relief by setting aside the sale. Perhaps it might be granted even at a later period.
    Appeal from the decree of the Court of Common Pleas of Lycoming county, in the matter of the distribution of the proceeds of sale of land of A. J. and C. Cummings.
    Samuel Gibson had sold land to Andrew J. and Charles Cummings for $2400, and to secure the price of it, he received bonds and a mortgage on the land sold for $1900, and a judgment note for the remaining $500. The mortgage was recorded on the 1st September, 1851, and judgment was entered on the note the next day; and in February following judgments were entered also on the mortgage bonds. Gibson took out execution on the judgment on the $500 note, and had the land sold by the sheriff on the 2d September, 1852, and bought it himself for $2125, and the sheriff made his return under the Act of 20th April, 1846, applying the proceeds first to the mortgage, and the balance to the judgment on the note on which the writ of ven. ex. was issued. To this A. J. and O. Cummings objected, that Gibson was not entitled to have the money applied to the judgments on his mortgage bonds, and claimed that the proceeds be paid into Court, or the sale set aside and a resale ordered in pursuance of the provisions of the Act of 20th April, 1846, relating to the mode of proceeding when lien creditors become purchasers at sheriff’s sale.
    An auditor was appointed, who made report excluding the mortgage from any share of the money, and applying to the judgment on the note what was sufficient to pay it, and allotted the balance of $1510.12 to the mortgagors. The Court, however, applied it according to the sheriff’s return, declaring that if the mortgagee was not entitled on his mortgage, the judgments in his favor would prevent the debtors frem receiving the fund.
    From the decree A. J. and C. Cummings appealed.
    It is provided in the 5th section of the Act of 16th April, 1845, that “ The entering of any judgment for the same debt secured by any mortgage shall not cause a sheriff’s sale of the mortgaged premises to destroy or in any way affect the lien of such mortgage, nor shall the plaintiff in such judgment be entitled to any part of the proceeds of such sale: Provided altoays, That such sale has not been made under or by virtue of such judgment.”
    The exceptions were, that the Court erred in decreeing that the mortgagee was entitled to the whole amount of the purchase-money after payment of costs; 2. In not decreeing that the defendants were entitled to the proceeds over what was necessary to pay the $500 judgment, and costs thereon, and that the mortgagee, the purchaser, should pay the same into Court, or the property to be resold.
    Lloyd, with whom was Seisley, for appellants.
    Though the note for $500 had a common origin with the mortgage bonds, it was not recited in or secured by the mortgage. The appellants ask that they be paid for their equity of redemption, or. that the property be resold. The case of Garro v. Thompson, 7 Watts 416, was referred to.

      Armstrong, contrá.
   The opinion of the Court, except Lewis, J., was delivered by

Lowrie, J.

We cannot attach any consequence to the fact that judgments were entered on the mortgage bonds, for the Act of 16th April, 1845, s. 5, forbids it. Nor can we say that the mortgage and the judgment on the §500 note are for the same debt, though they were both given in execution of the same contract. They were, in truth, two debts, differently authenticated and secured ; and the payment of one of them does not affect the existence or amount of the other. Then the case seems' to be the very one provided for by the Act of 6th April, 1880, which declares that the mortgage shall not be discharged by such sale.

It seems, therefore, that the auditor’s report is right, and that the only difficulty in confirming it arises from the fact, that this would most manifestly produce a result which no conscientious man can, without distress, be instrumental in enforcing. It is very plain that Gibson’s bid was made on the supposition that it would be applied to pay his mortgage as well as his judgment. He supposed that $2125 was the full price for a clear title, whereas it comes to more than $4000, including the mortgage, and the defendants seek to make this profit out of his mistake.

Must we put the seal of judicial sanction on such an iniquity ? There is a principle suggested in the ease of Berger v. Hiester, 6 Whart. 210, that might possibly enable us to avoid such a result; but’we.fear that we may mar the simplicity of the law relating to the discharge of liens, by adopting such an exception, especially since the Act of 1845. But still we are not constrained to allow to the defendants this unscrupulous advantage.

We notice that this sale has not yet been confirmed; and even had it been, possibly this would not preclude the hearing of an application to set it aside: 2 Ves. Jr. 52; 13 Wend. 224; 26 Id. 143; 4 Bro. C. C. 172; 1 Sugd. Vend. 67; 2 Danl. Ch. Prac. 1470.

We do not forget the rule that refuses to. hear the allegation of ignorance of the law as a ground of relief; but we must be very cautious in applying this rule to judicial proceedings; for the whole doctrine of amendments proceeds upon a partial denial of it, and it is not at all of absolute obligation in questions of new trial.

A judicial sale is a contract with the Court, made as a part of a remedial process, and certainly the Court has a greater power over such contracts than over any other (1 P. Wms. 747, 1 Green's Ch. R. 216), in analogy to the control which it has over other parts of its proceedings.

There are cases wherein it has exercised this control by setting aside the sale because of the mistake of the purchaser in relation to his legal right in the proceeds: 2 Wend. 260; 8 Faige 337. In one of our own cases the purchaser was led to believe that he was buying a complete legal title discharged of liens when it was otherwise; and in relation to this it was said that had the purchaser brought such a case before the Court below, he would probably have been discharged from the purchase, and a resale have been ordered: 9 Ser. & R. 404.

And in a case exactly like the present one, it is said that if the mortgagee bid for the land under a misapprehension of his right, the mistake might have furnished a sufficient reason for setting aside the sale: 14 State R. 383. And this suggestion is peculiarly proper in this class of cases, considering the fluctuations that have been taking place in the law. The difference of opinion arising between the legislature and the judiciary ought not to be allowed to become a snare for those who have failed to keep up with the alterations of the law, if we can relieve them without affecting the rule intended to be established.

There is a very complete remedy in a very ordinary form. We reverse the decree of the Court below, and that leaves the case in the same condition it was in when the auditor’s report was filed. Then the Court below has power to set aside the sheriff’s sale and relieve the plaintiff from his bid rather than suffer so unconscientious an advantage to be taken: 11 Ves. 57; 1 Edw. Ch. Rep. 578; 3 Paige 97. We will not help out the wrong by confirming the auditor’s report; because it would be very unjust, and because the discretion in relation to setting aside or confirming the sale can be better exercised by the Court below.

Decree. — September 13, 1854. This cause came on for hearing at the last July Term of this Court at Sun-bury, on an appeal by Andrew J. Cummings and Charles Cummings, from the decree of distribution of the Court of Common Pleas of Lycoming county, in the case of Samuel Gibson against them, and was argued by counsel, and now, on mature deliberation, it is ordered and decreed that the said decree of the said Court of Common Pleas be reversed, and that the case be remitted to the said Court with instructions to confirm the report of the auditor, and then proceed according to law, unless, within one month after the entry of this decree on the records of the said Court of Common Pleas, the said Samuel Gibson shall, in open Court, or before a judge at Chambers, obtain a rule for setting aside the sale, and relieving him from his bid, and shall prosecute the same afterwards with effect; and,'in case the said Court shall be satisfied that in equity and justice the bid of the said Gibson ought not to be enforced, then the said Court shall order and decree that the said sheriff’s sale and all subsequent proceedings be s’et aside at the costs of the said Gibson, and that he shall be relieved and discharged from his bid, and have leave to proceed again to execution.

Lewis, J.,

delivered an opinion as follows:—

The object of a sheriff’s sale is the conversion of the debtor’s estate into money for the.payment of debts. It is the policy of the law that the highest price should be obtained at the least expense. It is against the interest of debtors and creditors that the property should be sold for less than its value, or that the proceeds should be eaten up by the costs of unnecessary proceedings. Common humanity requires that the misfortunes of life should not be aggravated by such harshness, and common justice demands that legal proceedings should not be made a snare for innocent citizens who repose confidence in them. When the officers of the law sell the real estate of a debtor for the price publicly bid for it, it is unjust to exact anything more than the sum thus agreed to be paid, or to deprive the purchaser of the benefit of his purchase, by means of encumbrances not understood- to be continuing liens. Such an act in an individual would be condemned as a fraud. It loses none of its turpitude by being clothed in the garb of public authority. Even the boasted omnipotence of Parliament cannot change the code of morals, and make that just which is in its nature absolutely wrong. In accordance with these principles, it was the settled law, in regard to judicial sales for the payment of debts, that the parties interested were not put to the expense of any more than one sale — that such a sale worked an absolute conversion of the property into money, and consequently discharged the land in the hands of the purchaser from all encumbrances which in their nature admitted of being reduced to certainty in amount. It substituted the proceeds for the land, and gave to the lien-creditors a claim on the fund instead of their liens on the land. The salutary effect of this rule was, that it encouraged competition at such sales, and property brought its full value. The plain business man could bid with as much safety as the more wary speculator. Thus, all parties interested in the property derived the full advantage of its conversion into money. But the Act of 1830 changed this policy so far as to protect the holders of mortgages, having prior liens, from sales under judgments entered subsequently. Under that statute several sales are necessary where one was sufficient before. Whether the title or a mere equity of redemption is sold, depends upon circumstances not always known or easily ascertained at the sale. Hence, no one can safely bid at a sheriff’s sale without previously examining the records for judgments, mortgages, and other liens not only against the defendant in the execution, but against all persons who had ever before had any interest in the property. New men are willing to put themselves to the trouble and expense of these searches on a mere possibility that they may become the purchasers. The field is, therefore, abandoned to those who follow the business of making profit out of the misfortunes of their fellows. These men generally obtain their purchases at a price so low as to indemnify themselves against the risks they encounter. But if a creditor, anxious to secure his demand, or a business man, desirous of obtaining a place for his business, or a home for himself and his family, ventures to run the property up to its value, he frequently discovers, after it is too late to recede, that a mortgage exists against the property which sweeps it away from him after he has paid all that it is worth.

Many innocent men have been ruined by the purchase of property at judicial sales since the Act of 1830. After ten years’ experience of the evils produced by that Act, the Supreme Court, in 1840, declared that “ the consequences of the Act, wherever we have had occasion to observe them, have been disastrous:” 6 Wharton 216. After fourteen years’ further opportunity to witness the operation of that statute, we are compelled to bear the same testimony against it. Under its provisions no unlearned man can with safety bid at a judicial sale. It was therefore very properly held in Berger v. Hiester, 6 Wharton 214, that “ the disastrous consequences of the Act is a legitimate reason why it should not be pushed beyond the supposed mischief;” and, in the same ease, it was distinctly declared that “ the design of the Act was to protect the mortgagee from the intermeddling of subsequent creditors,” and that “a judgment-creditor who is himself the prior mortgagee, was not to be deemed a subsequent creditor within the purview of the statute, or, in his capacity of mortgagee, an object of protection against himself.” “ When he appears in a double capacity,” it was held “that a case has arisen which was not contemplated nor consequently provided for:” 6 Wharton 216. Although the authority cited was the case of a sale on one of the mortgage bonds, it was declared that “ this made no difference— that the consequences would be the same were the securities arising out of different transactions;” and the case was put upon the impregnable ground that the Act was not intended to protect the mortgagee against himself — that the sale was by virtue of a judgment wider his own control, and that by not proposing to sell subject to his mortgage he was taleen to sell discharged of it: 6 Wharton 216. That principle settles the case before us. It is, in my opinion, the true meaning of the statute. We have, therefore, sound principle as well as a binding authority in support of the justice of this case. The property in question was sold by virtue of a judgment under the control of Dr. Gibson, the mortgagee, and it was not offered for sale subject to the mortgage. He must therefore be taken to have sold discharged of it. The purchaser took a clear title, and the proceeds should be distributed among all the lien creditors according to their priority. If the sale were held to he within the operation of the Act of 1830, the result would he that the owner of the property must lose the use of it for a year, and must pay to those who thus wrong him the sum of $1500 to get it back; and those who purchased it and agreed to pay for it, instead of fulfilling their contract, are allowed a premium for violating it! Justice forbids the sanction of such gross iniquity. In my opinion the proper way to do justice in this .case is to enforce the true construction of the Act of 1830 by holding that it was not designed to protect mortgagees against their own acts. But, without affirming or denying the soundness of this construction, the majority of the judges have determined to relieve the mortgagee from the hardship of his case by sending the cause back with such directions as will enable the Court of Common Pleas to set aside the sale. As a general rule, ignorance of the law is no ground for relief from the obligation of a contract. But where the contract is made in some sort with the Courts themselves, and where the highest of these tribunals has actually represented that the purchaser, under circumstances like those existing in this case, would take the land discharged of encumbrances, either that representation ought to be carried out, or the purchaser, acting on the faith of it, should be relieved. Failing to secure the first, I resort to the second as the only alternative left. For these reasons I concur in the decree.


author: Lewis, J.

text:
    Thomas versus Snyder.
    1. The overruling of questions, proposed to be put to a witness on cross-examination, as to matters immaterial to Che issue, is not error.
    2. If a witness for the defendant testifies to any thing pertinent to the issue, the plaintiff may cross-examine him in reference to it and to any other facts bearing on his evidence in chief; and if the witness does not answer truly other witnesses may be called to contradict him. But if his testimony in chief were irrelevant, the error in permitting it to be, discredited did no injury to the defendant, and is no ground of reversal. If, however, such evidence in chief do not appear in the bill of exceptions or in the paper-book, this Court cannot judge of the manner of impeaching it, and the presumption will be in favor of the judgment of the Common Pleas respecting it.
    3. “Where certain persons were the agents of the plaintiff to purchase grain and manufacture it into flour, and grain was bought for the plaintiff and paid for with his money, and the flour made therefrom was set apart in the mill fox-delivery to him, he could maintain trespass for taking it away from the mill under an execution against one of the agents.
    4. Though the plaintiff, after the flour was taken away by the defendants, said that he would look to the agent for the money furnished, he would not be thereby precluded from maintaining trespass for the removal of the flour.
    Error to the Common Pleas of Union county.

    This was an action of trespass by Henry W. Snyder v. A. Thomas, sheriff, and others, for taking and carrying. away 47 barrels of flour from a mill formerly the property of Samuel Long. The plea was, not guilty.
    Long was the owner of the mill in 1850, in which year it wa3 levied on and sold as his property by the sheriff; and, on the 16th December of that year, the sheriff executed a deed to Jacob W. Smith, who, on the 18th December, conveyed it to Michael Wagner.
    Long continued to occupy the mill, transacting business in the name of Wagner. It was alleged, on part of defendants, that the arrangement was a contrivance to hinder or defeat the creditors of Long.
    On the part of the plaintiff it was alleged that he furnished money to Wagner with which to buy wheat, of which flour was to be made for his use; and that a portion of this flour was taken by the sheriff and those acting with him.
    On part of the plaintiff was shown a note as follows: — ■
    New Berlin, February 11, 1852.
    Henry W. Snyder, Esq.,
    Sir, — I have bought one hundred bushels of wheat, now in the mill. If you wish to have the wheat, you will have to send me the money, &c.
    Send the money by the bearer, Samuel Long, and take his receipt for the same. Signed, Michael Wagner.
    Received, February 11, 1852, fifty dollars on the above order.
    Samuel Long.
    Also a receipt as follows:—
    $300.00.
    Received, March 11th, 1852, of H. W. Snyder, three hundred dollars in trust, for which I am to account in grain purchased, and to be purchased for him. Signed, Michael Wagner.
    In relation to the receipt for $300, a witness, James Harrison, stated that he was present, when the money was paid; that Wagner was to buy wheat, oats, and rye, and convert the wheat into flour, &c.

      Samuel Long was examined, and stated that Wagner brought $300 to him at the mill and said he should buy wheat, &c., for Snyder — the, wheat was to be made into flour. He bought wheat and made 47 barrels of flour, which was the same that Sheriff Thomas, one of the defendants, took. The other defendants were with him.
    Another witness, Aurcmd, said that he was employed in the mill — that 47 barrels of flour were made for Snyder, and it was standing in the mill, and was taken away by the defendants. -He further said that he told Snyder that the flour was ready, and that Snycler said we should wait till the roads got better. This was about two weeks after the flour was made and packed.
    Another witness said that the flour was in the mill for several weeks. That he told two of the defendants that it was Snyder’s flour.
    The sheriff’s deed to Smith for the mill was shown, and the agreement of Smith and Wagner, dated 18th December, 1850, for the purchase of the mill.
    On part of defendants was shown a judgment in favor of Jacob Reichley v. Samuel Long, for $151.51 — fi. fa. to May Term, 1852, levied, on 1st May, on 4T barrels of flour, and 34J bushels of wheat; and the return of the writ.
    Testimony was given that Snyder said he would look to Wagner for his money.
    It was observed on the paper-book that other of defendants’ testimony related to contradictions of Samuel Long’s testimony. The testimony in contradiction was not stated.
    Various points were submitted on part of defendants. The first was, that if Snyder furnished $300 to Long in trust, to be accounted for in grain, and Wagner put the .money into the hands of Long, and he purchased grain and made flour of it, and whilst it was in the mill, before delivery of it to Snyder, it was taken away by defendants, Snyder had not such property in the flour as to maintain the action.
    2. That if 100 bushels of the wheat of which the flour was made was purchased by Wagner before he received any money from Snyder, and before the arrangement stated in the receipt of March, 1852, and this wheat or the flour from it was mingled with other wheat or flour, the whole to be delivered to Snyder, the latter had not such possession as to maintain trespass.
    As to this point, see opinion of Lewis, J.
    The 3d was, that if Snyder stated that he would look to Wagner for the money he advanced, it is evidence that he did not claim to be the owner of the flour.
    The 4th was, that no such possession had been shown in Snyder as will enable him to maintain the suit.
    5. That there was nothing in the arrangement which would require Wagner to deliver to Snyder the flour made from the wheat bought with the money advanced by Snyder.
    6. That the plaintiff was not entitled to recover.
    Wilson, President Judge, charged the jury that, whether the flour was made from wheat purchased by Wagner or Long, the miller, for Snyder, was a question for them. If it were, the position of Wagner and Long in respect to the mill, could not affect Snyder, and was not material in this suit.
    He observed as to Long’s testimony, that testimony offered to contradict a witness, should relate to a matter material to the issue.
      Also, that Long’s testimony was corroborated by that of others; but the credit of witnesses was for the jury.
    He added, that if Snyder had established his title to the 47 barrels of flour, then it was a question of law whether he had such possession as to maintain trespass. To maintain trespass, generally, there should be in the plaintiff either actual possession or a right to immediate possession flowing from the right of property. If Wagner was the agent of Snyder, such agency would not be inconsistent with a right in Snyder to immediate possession of the flour: King v. Humphreys, 10 Barr 217. The letter of 11th February, 1852, would seem to imply a previous understanding or conversation between Wagner and Snyder about getting wheat for the latter; or to let him have wheat. He further directed the jury that if they found that the grain was purchased for Snyder, paid for with his money, and manufactured and put into barrels for him, the barrels being purchased for Snyder, and the barrels and flour kept separate and ready for delivery, which Snyder postponed after he had notice of the flour being ready for delivery, he would have such right to immediate actual possession, accruing from the right of property, as would enable him to maintain trespass.
    He refused to instruct the jury as requested in the first point— also as requested in the second point, referring to his general charge. As to the third, he instructed that the declaration of Snyder as to looking to Wagner for indemnity, would not preclude him from maintaining this action. As to the fourth, he refused to instruct, and referred to his general charge. As to the fifth, that Wagner might have accounted for the grain purchased by him with Snyder’s money, by furnishing flour from a similar quantity of wheat; but that this would not be conclusive against Snyder’s right to recover, if his money paid for the specific wheat out of which the flour was made, and which was set apart for him in the mill.
    He refused to instruct as requested in the sixth point.
    May, 1854, verdict for plaintiff.
    The first assignment related to the rejection of various questions proposed to be put to Long as to his position with respect to the mill.
    The second assignment was that the Court erred in permitting a question to be put to C. Cawley, a witness for defendants, on his cross-examination, viz.: The plaintiff offered to ask the witness whether he did not call on Justice Roush, on the same day that he states Long called on him in town, and cause an attachment execution to be issued against Long, with notice to himself to attach the price of ten barrels of flour spoken of. This was offered to contradict the statement of the witness that certain flour, contracted for by the witness with Long, was not to be paid for until the whole fifty barrels were delivered. It was objected to as irrelevant and not a cross-examination.
    Cawley’s evidence in chief was not stated in the assignment of error nor in the bill of exceptions, nor in the digest of evidence in the paper-book.
    The third assignment was, that the Court erred in admitting on part of plaintiff, testimony by Squire Roush that Cawley, the witness for defendant, had ordered him to issue an attachment execution on Settler’s judgment v. Long. This was offered to contradict Cawley. It was objected that the cross-examination of Cawley as to that matter wras as to a matter collateral to the issue; and that his answer was conclusive on the plaintiff. The statement of the Court was to this effect: The defendants called Charles Cawley to contradict Long (a witness for plaintiff) as to his testimony that the flour was to be paid for as delivered by the load. Cawley states that it was not to be paid for until all of it was delivered. The plaintiff then cross-examined him to the alleged fact that on the same day that he got the first ten barrels of flour he gave Squire Roush notice of it, and directed an attachment execution to attach it; this being offered as some evidence to show that the flour was to be paid for as delivered. Cawley denied directing the attachment to be issued, and the justice was called in order to contradict Cawley and to sustain Long.
    The testimony was admitted.
    The fourth assignment was, that the Court erred in the answers to the several points, and in refusing to answer them as requested. Fifth. That the Court erred in ruling that under the evidence in the case there was either such possession or property shown in the plaintiff as enabled him to maiptain the action.

      Miller, Qasey, and Merrill, for the plaintiffs in error.
    As to the second assignment, the evidence was irrelevant. It was a different transaction from the one in question in the issue, and one which had been elicited by the examination in chief. As to the third assignment, it was observed, that the evidence admitted was as to a collateral fact not material to the issue and irrelevant; and that the rule was that a witness could not be cross-examined as to any fact which is irrelevant to the issue, merely for the purpose of contradicting his statement: 1 Greenleaf’s Ev. § 449; 7 East 108 ; 1 Starkie’s Ev. 164; 2 Camp. 627; 2 Gall. 51-53; 8 Greenleaf 42-5; Wend. 301, 305; 16 Pick. 157-8; 11 Jur. 478; 1 Exch. 91; 8 M. & W. 123; 11 Ad. & El. 322; 14 Peters 461.
    As to the fourth and fifth assignments, as to the title necessary to maintain trespass, reference was made to 2 Trou. Haley 44-5.

      Woods and Slenher were for defendant in error.
    As to the second error. The defendants below in cross-examining Long, a witness for plaintiff, were permitted to ask him in relation to a contract which Long stated that he had made for Wagner with Charles Cawley, for the sale of fifty barrels of flour, to be paid for as delivered, — and that Wagner had delivered ten barrels.
    The defendants afterwards called Cawley to contradict Long, and to state that the flour was not to be paid for until the whole fifty barrels should be delivered. This testimony, perhaps inadvertently, was not objected to on the part of the plaintiff. The plaintiff then proposed to ask Cawley what is stated in the bill of exceptions which is the subject of the second assignment. It was alleged that after Cawley was permitted to state that the sale of the fifty barrels of flour to him was an entire contract, and not to be paid for till the whole of it was delivered, it was proper to ask him on cross-examination what he did, as tending to show that he did not consider the contract to be an entire one. It is not irrelevant to inquire of a witness whether he has on some former occasion given a different account of the matter to which he has testified, in order to lay a foundation for impeaching his testimony: 1 Greenleaf, § 449.
    Third assignment. Great latitude of interrogation is sometimes permitted in the exercise of the judge’s discretion: Greenleaf, § 449; 1 Stark. Ev. 186-7; and in note A. A party who originally called a witness, and availed himself of his testimony, cannot subsequently object to him on the ground of interest, or impeach his general character: 2 Wend. 483, Fulton Bank v. Stafford. Whether the defendants could or could not call Cawley to contradict Long, a witness for plaintiff, as to the contract for the sale of the flour; when they did call him and availed themselves of his testimony on a particular fact, they have no right to object that such fact was collateral. The Court, in the exercise of their discretion, admitted the testimony.
    As to the 4th and 5th assignments, reference was made to 10 Barr 217, King v. Humphreys, that where rags were delivered at a designated price to be made into paper, which was to be delivered at a price stated, the difference to be paid for in a note, trespass would lie against a creditor of the manufacturer for levying on the paper.
   The opinion of the Court was delivered by

Lewis, J.

The right of the plaintiff below to the flour in controversy, did not depend upon the ownership of the mill, nor upon the relations existing between Long and Wagner respecting the occupancy of it. The questions proposed to be put to Samuel Long, on the cross-examination, were therefore irrelevant and improper.

Charles Cawley was a witness for the defendants. If he testified to anything pertinent to the issue, the plaintiff had a right to cross-examine him in reference to it, and to any other facts bearing upon his evidence in chief; and if he did not answer truly, it was proper to call a witness to contradict him. If his testimony in chief'was irrelevant, an error in permitting it to he thus discredited, did no injury to the plaintiff in error, and is therefore no ground for reversal. As his testimony in chief is not set forth in the bill of exceptions, nor in any other part of the paper-book, we cannot say there was error in the manner of impeaching it. Every presumption is in favor of the judgment of the Court of Common Pleas.

The errors complained of in the 4th and 5th assignments are, in the argument, reduced to the question whether there was such property in Snyder, the plaintiff, as would enable him to maintain this action. We think this question was properly disposed of by the Court below. The evidence tended to show that Long and Wagner were the agents of Snyder, for the purchase of the grain from which the flour was made, and that it was bought for him and paid for with his money. There was no evidence that the 100 bushels referred to in the defendants’ second point were purchased for any other person than Snyder. The instructions to the jury and the answers to the points were correct.

Judgment affirmed.


author: Lowrie, J.

text:
    Commonwealth versus Burkhart.
    1. The judgment of the Court of Common Pleas on a certiorari to a summary conviction by a justice of the peace may be reviewed on writ of error in the Supreme Court.
    2. "Where the information or complaint in a case of summary conviction is so specific as to give the defendant notice of the substance, time, and place of the offence charged, it is sufficient.
    3. Any indefiniteness in the information or summons is cured by the defendant appearing and going on,to trial without objection.
    4. If the record of conviction sets forth a definite offence, it is not vitiated by the fact that the same offence is indefinitely charged in the information on which the writ issued.
    5. The offence is sufficiently specified when the record sets forth that the defendant, at a given time and place, w:as guilty of disturbing a particular congregation, whilst then and there assembled for the purpose of religious worship and transacting business pertaining to such worship, contrary to the form of the Act of Assembly in such case made and provided.
    Error to the Court of Common Pleas of Union county.

    This was a certiorari to a justice of the peace on a summary conviction under the Act of 16th March, 1847, for disturbing a religious meeting.- s
    Information was made before David Botdorf, a justice of the peace of said county, that, at a given time and place, “ whilst the Evangelical Lutheran Congregation were assembled for the purpose of religious worship, and transacting business pertaining to such worship, Burkhart, the defendant, was guilty of disturbing them in their said worship and business;” and therefore he was tried and convicted.
    The record of conviction set forth the information as being, that, at a given time and place, the defendant “ was guilty of disturbing the Evangelical Lutheran Congregation, whilst then and there assembled for the purpose of religious worship, and transacting business pertaining to such-worship, contrary to the form of the Act of Assembly in such c.ase made and provided;” and that, after summons, appearance, and trial by witnesses in the presence of the defendant, “the said-justice adjudged that the said defendant is guilty according to the form of the Act of Assembly aforesaid, and he is accordingly convicted of the offence charged upon him by said information,” and adjudged to forfeit $25 and costs.
    On certiorari it was excepted, among other things, that “the information does not contain sufficient to ground a warrant under the statute;” and so the Common Pleas decided and reversed the judgment; and this was assigned for error.
    The defendant moved the Court to quash the writ of error on the ground that the judgment of the Common Pleas is final; and, if it is not, that certiorari, and not error, is the proper remedy.

      SlenJeer, for plaintiff.

      Miller, for defendant.
   The opinion of the Court was delivered by

Lowrie, J.

We are asked to quash the writ, because the decision on the certiorari in the Common Pleas cannot be reviewed here, and, if it can, it must be done on certiorari. But we think these reasons are not sound; for section 22 of the hundred dollar law, preventing, writs of error to review the judgment of the Common Pleas on a certiorari to a justice of the peace, applies only to the jurisdiction given by that Act; and, because, though the proceeding before the justice of the peace was out of the course of tire common law, yet the certiorari suit in the Common Pleas was in the course of the common law, and it is properly reviewed on writ of error : 5 Binney 27.

The Court below reversed the conviction, because the charge set forth in the complaint was not sufficiently definite in that it does not state the facts that constitute the offence. And such seems to be the rule laid down in the notes on Sander’s Case, 1 Saund. Rep. 262; and many cases are there referred to in support of it: 1 Stra. 66, 497; 2 Ld. Raym. 1220-1386-1415; 1 T. Rep. 125-127; 8 Id. 542; 1 East 639; 13 Id. 139; Comyn 522; 1 Burr. 148-613; and others were referred to on the argument: 2 Ld. Raym. 1265; 1 Salk. 680; 8 T. Rep. 536; 9 Queen's B. R. 80; but on examination it is ascertained that they all refer to the recital of the information or complaint in the record of conviction. There a defect may be fatal, because the judgment is usually that the defendant is guilty of the premises charged upon him, and thus the errors of the recital become, by reference, incorporated into and taint the judgment. There is no such defect in this conviction, and none such is alleged.

The Courts are no longer astute in discovering defects in such proceedings: 2 T. Rep. 23; and when the charge in the complaint and summons is so specific as to give the defendant fair notice of the substance, time, and place of the offence charged, as is done here, it ought to be regarded as sufficient. And where the defendant appears and goes to trial, without any objection to the complaint and summons on account of indefiniteness, such a defect ought to be considered as cured: 3 Burrows 1785; 1 East 649.

We must judge of the validity of this conviction by -what appears on its face; 5 T. Rep. 338; 6 Id. 538; taking the magistrate’s judgment on the weight of the evidence, 6 Id. 177, 375; 8 Id. 588 ; and going by this rule, we find a definite offence charged, the appearance of the defendant to answer it, a trial in his presence, evidence of the facts that constitute the offence, and an adjudication that the defendant is guilty of the offence as charged, and has incurred a defined penalty, being the one'authorized by law, and we must allow the conviction to be enforced.

Judgment of the Common Pleas reversed and the judgment of the justice of the peace affirmed.

Lewis, J., and Knox, J., dissented.


text:
    Robison versus Rupert.
    1. The faults of third persons are not allowed to benefit or prejudice either party to a suit in his right or duty of compensation.
    2. When a wrong is done, under circumstances arising from the fault of third persons, which, making due allowance for the infirmities of human temper, furnish a reasonable excuse for the violation of public order, then there is no foundation for exemplary damages, and the plaintiff is entitled only to compensation.
    3. Where there is a reasonable excuse for the violation of the public order arising from the provocation or fault of the plaintiff, but not sufficient to entirely justify the wrong done, there<oan be no exemplary damages, and the circumstances of mitigation must be applied to the actual damages.
    4. If the plaintiff, in company with other persons, was guilty of making a great noise and disturbance around the defendant’s house, and refused to withdraw or cease when requested, these circumstances will go in mitigation of the actual damages suffered by the plaintiff in consequence of the forcible means adopted by the defendant to suppress the annoyance.
    Error to the Common Pleas of Columbia county.

      Action of trespass by George F. Rupert against William Robison for personal injuries. The defendant had fired a gun charged with shot, into a crowd of boys, and some of the shot lodged in the back of the plaintiff, and injured him severely. The defendant gave evidence to show that the plaintiff was one of a crowd of boys who had assembled around his house at night making all sorts of offensive noises for the purpose of disturbing and annoying him and those assembled in his house, and that he had in vain endeavored, by speaking to them, to get them to quit, before he did the act which caused the injury. The Court charged the jury that these circumstances should go in mitigation of exemplary damages, but that the plaintiff was entitled to full compensation for all his sufferings, losses, and expenses, notwithstanding the character of the provocation by which he drew them on himself. Thé plaintiff had a verdict, and the defendant brings this writ and complains of this instruction.

      Buehalew, for plaintiff in error.

      Oomly and Olarh, for defendant in error.
   The opinion of the Court was delivered by

Lowrie, J.

This instruction of the Court below is apparently supported by the case of Watson v. Christie, 2 Bos. & Pul. 224, unless we read it with reference to the strict notions on pleading formerly entertained by some judges. There it appears to decide merely, that circumstances of mitigation cannot be given in evidence unless pleaded, which certainly is not law now.

The cases are very numerous in favor of the contrary doctrine, and announce the rule that all circumstances, that are sufficiently proximate to be properly regarded as matters of provocation or excuse of the act complained of, may be given in evidence in mitigation of damages generally.

The true distinction, as to the effect of the mitigating circumstances on the actual and on the exemplary damages, is suggested by the ease of the Temperance Hall in Moyamensing, Reed v. Bias, 8 W. & Ser. 189, that, where the excusing or palliating circumstances involve no fault of the plaintiff, they may prevent exemplary damages, and limit the recovery to the actual damages. And this is an expression of the principle that the faults of third persons shall not benefit or prejudice either of the parties in their right and duty of compensation. If, making due allowance for the infirmities of human temper, the defendant has a reasonable excuse for the violation of the public order, then there is no foundation for exemplary damages, and the plaintiff can claim only compensation: 2 Car. & P. 361; 6 Id. 167; 1 Esp. N. P. 317. And such is the case of Watson v. Christie.

It is merely the corollary of this, that where there is a reasonable excuse for the defendant, arising from the provocation or fault of the plaintiff, but not sufficient entirely to justify the act done, there can be no exemplary damages, and the circumstances of mitigation must be applied to the actual damages. If it were not so, the plaintiff would get full compensation for damages occasioned by himself. The rule ought to be, and is, practically mutual. Malice and provocation in the defendant are punished by inflicting damages exceeding the measure of compensation, and .in the plaintiff by giving him less than that measure. This principle is illustrated by numerous cases: 2 Camp. 72, 511; 7 Car. & P. 621, 369, and n.; 10 Ad. & Ellis 117; 13 Pick. 503; 3 Mass. 189, 546; 13 Conn. 361; 1 Johns. Cases 116; 7 Cow. 22; 7 Wend. 142, 560.

According to these views, the plaintiff could not possibly recover vindictive damages in such a case as this; and if he was himself one of the rioters, he ought not to recover full compensation.

Judgment reversed and a new trial awarded

Black, C. J., dissented.