author: Lewis, J.

text:
    Case versus Dunmore.
    1. Tlie exemption of goods by the Act of 1849 from sale on execution may be waived by the debtor.
    2. Where at the time of contracting a debt the exemption was waived, it was Held to be binding though the sale was objected to by the debtor when it was about to be made.
    Error, to the Common Pleas of Susquehanna county.

    This was an action of trespass by D. Case v. G-. 33. Eldred and J. F. Dunmore, for selling personal property belonging to the plaintiff under execution. Eldred was the sheriff.
    A judgment was entered on March 28, 1850, in favor of Dun-more v. D. Case and another, and on April 19, 1852, a fi. fa. was issued, which was returned levied upon personal property of Case. On August 17, a venditioni exponas issued, upon which the sheriff returned, that on the day of sale Case claimed the benefit of the exemption authorized by law; that $300 of the property was appraised and set off to him, and that he sold the residue for $72.
    Another judgment was entered in favor of Dunmore v. Case, on June 4, 1852, for $53.83. The note which was its consideration, was under seal and was dated February 24, 1851, and contained the following: “ I hereby waive all rights to inquisition, and to the benefit of the Exemption Act of 1849.”
    On June 4, 1852, a fi. fa. was issued, upon which the sheriff returned that he had levied on personal property, which was the same which was levied upon in the preceding case. A venditioni exponas was issued on 17th August, 1852, under which he sold a part of the property which had been set off to Case.
    Another judgment was entered on August 16, 1852, against Case, in favor of Mulford & Son, for $113.50, on a note under seal, dated January 10, 1850, in which the defendant waived “ all right of inquisition, and all right of exemption” of his “ real oi personal property from levy or sale on execution.'’ A fi. fa. was issued on 16th August, 1852; and the sheriff returned a sale of the property set apart for the defendant under the first execution, except certain cattle sold under the execution of Dunmore, and $72 worth of household goods. The sale was objected to by Case, when it was about to be made. - Dunmore was present at the sale under his writs, and directed it.
    Wilmot, J., charged that Case ivas bound by the waiver contained in the two notes, and that his property was liable to sale under the judgments obtained on the said notes. Such instruction was assigned for error .

      Bentley and Bitch were for plaintiff in error.
    It was contended that the Exemption Act of 1849 was designed to prev.ent poor families from being deprived of articles of property essential to their comfort; and it was submitted whether a waiver 'of the right of exemption contained in the note on which the judgment was obtained was obligatory on the debtor, or precluded him from after-wards objecting to the sale: 7 Harris 257, Hammer v. Freese.
    Little, contrá.
    The right of exemption may be waived: 6 Watts 34-40; 7 Watts 126. In this case neither of the three executions were satisfied, and yet the household goods were left unsold.
    April 4, 1854,
   The opinion of the Court was delivered, by

Lewis, J.

It has been repeatedly decided by this Court that the exemption of goods from execution under the Act of 1849, is a privilege for the benefit of the debtor which he may waive even by the omission to claim it at the proper time, without any express contract for the purpose. But where at the time of contracting the debt he agrees to waive the benefit of the exemption, and this forms the ground of the credit given to him, the injustice of permitting him to violate his contract and thus to defraud his credit- or, is too palpable to need illustration, or to require the aid of precedents to discountenance it. Notwithstanding the benevolent provisions of the statute in favor of unfortunate and thoughtless debtors,- it was far from the intention of the legislature to deprive the free citizens of the state of the right, upon due deliberation, to make their own contracts in their own way, in regard to securing the payment of debts honestly due. Creditors are still recognised as having some rights; and it was not the intention of the legislature to destroy them by.impairing the ■ obligation of contracts. It frequently happens that the creditor is more in need of public sympathy than thé debtor. When a poor man is unjustly kept out of money due to him, the distress arising from the want of it is often greater than that caused to the other party by its collection. If the suffering was but equal, it is plain that one man should not suffer‘for the follies or misfortunes of another. Every one should bear his own burthen. The statute which exempts debtors from the operation of this principle, did not take away from them the right to waive the privilege thus conferred whenever their consciences or their necessities prompted the waiver.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Ritter’s Appeal.
    An administrator is not bound to plead the statute of limitations to a demand against the estate;' legatees, distributees, or creditors whose claim may be diminished by the allowance of a claim, may plead it; but where legatees or distributees stand by, making no inquiry into the affairs of the estate, and permit the administrator or executor to pay a claim to which the statute was applicable, without giving notice of their objection, they are bound by his payment.
    Appeal from the decree of the Orphans’ Court of Bucks county.

    In the account of the administrators with the will annexed of Catharine Ritter, deceased, credit was claimed for $348, paid to Abraham Klinker, for boarding Catharine Ritter from March, 1833, till April, 1840, with the exception of about one year during that period, when she boarded elsewhere. The receipt of Klinker for the amount in question was dated June 21,1852. This credit was excepted to on the part of P. Ritter, a legatee, on the ground that the claim wh'en paid was barred by the statute. The auditor appointed disallowed the credit, as he alleged, on the authority of the case of Kittera’s Estate: 5 Harris 416. Exception was taken to the report on the part of the administrators, and the Court allowed the credit. Smyser, J., in his opinion, observed that there was no question presented as to the original indebtedness, or its amount; that the auditor found the fact that the decedent, in her lifetime, promised to pay it. He observed, that it appeared from various cases to bo discretionary with an administrator to plead the statute or not: 1 Binn. 212, Smith v. Porter; 1 Ash. 355, Smith’s Estate; 3 Barr 178, Biddle v. Moore; 4 Barr 152, Kennedy’s Appeal. The case of Kittera’s Estate was a proceeding to marshal assets of an insolvent estate amongst creditors, in which proceeding the administrator was in the position of a stakeholder. In the present case no creditor is objecting. Reference was also made to 4 Rawle 148; 6 Watts 250; Bowen v. Miller, 5 Penna. Law J. 265. He further observed that he nowhere found it decided that an administrator was bound to apply to all of the heirs when a claim liable to the operation of the statute was submitted, as that would be devolving the management of the estate upon those to whom the law had not confided it. That the utmost that should be maintained was, that where heirs, before payment of such a claim, notify the administrator to plead the statute, or take defence generally, he is bound at his peril to regard such notice, and either plead the statute himself or afford them an opportunity to do so in his name. But such notice comes too late after the claim is paid. He further intimated that the administrator is not bound to delay payment till he is sued, so that the heirs may have an opportunity of pleading the statute, — for this would not necessarily furnish them with the opportunity, as they were not parties to such a suit. He further intimated his opinion that where an administrator has in good faith paid a debt liable to the bar of the statute, without being notified to resist it, and without collusion with the creditor, he ought to be entitled to the credit whenever the debt originally existed, and is not shown to have been actually paid already before payment thereof by the personal representative of the estate.
    Exception was taken to the allowance of the credit.

      Du Bois,. for appellant.
    He referred to the case of Kittera’s Estate, 5 Harris 416; Hoch’s Appeal, 9 Harris 280, and to the opinion of Bell, J., in 5 Pa. L. J. 274.
    Bolerts, contrá,
    referred to 1 Bin. 212; 1 Ashmead 355; 1 Whar. 71; 4 Barr 149; 2 Jones 67. In the case of Bowen v. Miller, 5 Pa. L. J. 274, no question was raised as to the statute. In Hoch’s Appeal, 9 Harris 280, the attempt was by an executor to retain for a debt due to himself, which was barred in the lifetime of the testator. The claim in the present case was arranged before the case of Hoch’s Appeal was decided.
    April 4,
   The opinion of the Court was delivered, by

Lewis, J. — The authorities are numerous to the point that an administrator is not bound to plead the statute of limitations against a debt which he believes to be justly due. It is a matter within his discretion. He is the personal representative of the intestate, and is a trustee for the creditors and distributees. In that capacity he is bound to exercise good faith: 1 Bin. 212; 1 Ashmead 355; 1 Whart. 71; 4 Barr 149; 2 Jones 67; 3 Barr 178; 5 Penn. L. J. 269. But the parties beneficially interested in the estate have also rights which have been fully recognised. In Kittera’s Estate, 5 Harris 416, it was decided by this Court that “token ike fund was not sufficient to pay all, each creditor has a right to oppose any other claimant by showing that his debt is barred by the statute of limitations,” or that any other defence exists against- it.” So, in Hoch’s Appeal, the right of a legatee, or other person interested in the estate, to interpose the bar of the statute of limitations against a debt claimed from the estate, although the executor’ should refuse to plead the statute, was admitted. In Kittera’s Estate the right of the creditor to interpose was properly made to depend upon the question whether his interest was affected. That it would be affected where the fund on which he had a lien was not sufficient to pay all the persons claiming to be creditors, is clear. In such a case it is equally clear that he had a right to be heard in his endeavors to protect his interest. So, legatees or distributees may be interested to protect the estate from being exhausted by illegal claims, and consequently their right to plead the statute was fully recognised in Hoch’s Appeal. In that case they were permitted to interpose the bar of the statute against a demand in favor of and presented by the executor himself. But where the executor is not interested in the demand, where he acts in perfect good faith, and pays a debt 'which he believes, upon reasonable grounds, to be justly due, without any notice from any of the persons interested in the estate that they desire to contest it, there is no justice in charging him with the amount. If the persons interested stand by, making no inquiry into the affairs of the estate, and permitting their representative to pay off creditors without giving notice of their objections, they are bound by his act. He is in the nature of an agent or trustee for them. His discretion over this particular question, where the parties in interest make no objection, is well established. Where that discretion has been exercised in good faith, he is not liable for the money thus paid. The opinion of the Orphans’ Court to this effect is correct.

The decree of the Orphans’ Court is affirmed.


author: Lowrie, J.

text:
    Purdy’s Appeal.
    1'. In the ease of levy and sale of the goods of a tenant, the rent is to be apportioned either by the contract or by the time of enjoyment, and not in advance of both.
    2. Rent, commencing on 1st April, was to be paid quarterly in advance. The first quarter’s rent was paid in advance, and during that quarter the goods of the tenant were seized and sold. Held, that the landlord was not entitled to be paid any part of the rent for the second quarter: it was not due, and there was no enjoyment on which to found the allowance.-
    Appeal from the decree of the Common Pleas of Bucks county.

    This was an appeal from a decree of distribution of proceeds of sheriff’s sale of the personal property of John M. Wilson. A. M. Magill leased to Wilson certain premises for one year, commencing on 1st April, 1853. The rent was to be $250 for the year, payable quarterly in advance. The first quarter’s rent, due on 1st April, was paid when possession was taken. Under Purdy’s execution a levy was made on 9th June. The writ was returnable to September Term. The property ivas sold in June. After the sale, but before the return-day of the writ, the landlord gave notice to the sheriff that he claimed one quarter’s rent (viz. the quarter’s rent payable in advance on 1st of July), out of the proceeds of sale. The money was considered in Court.
    Smyser, J., referring to the case of Anderson’s Appeal, 8 Barr 218, relative to the lease of the Bedford Springs, directed that the landlord take $48.08 out of the money in Court, on account of the rent of the second quarter, and that the residue after taking out the costs of this proceeding be paid to the execution-creditor.
    Error was assigned to the decree that the landlord take the amount of rent for two months and nine days, out ¡of the money in Court.

      Lear, for the appellant.
    An agreement to pay rent quarterly in advance, is not equivalent to an agreement that the rent is considered as being earned during the running of any quarter before the day of its payment. By the Act of 16th June, 1836, goods liable to distress shall be liable “ for the payment of any sums of money due for rent at the time of taking such goods in execution.” The construction that the growing rent may be apportioned till the time of levy, though the day of payment of it had not arrived, is not a decision when no rent is growing due and when the levy is made during a period for which the rent had been paid, that the landlord is entitled to rent for a future period out of the proceeds of sale. In Anderson’s Appeal, the Court apportioned the rent in an unusual manner on the basis of a fiction, on account of the peculiar equity which the landlord had in that case, from the fact, that the profitable part of the season had nearly passed when the goods of .the tenant were levied upon. But the rent had not been paid for that portion of the term when the levy took place, as it had been in this case.
   The opinion of the Court was delivered by

Lowrie, J.

We think that the principle of Anderson’s Appeal, 3 State Bj. 220, has been unduly extended in this case, and totally misapplied. Here the tenant had paid one quarter’s rent in advance, and the rent for the rest of the year was to be paid quarterly in the same way. Before the expiration of the first quarter, the tenant’s goods on the premises were seized by the sheriff on a fi. fa., and the landlord claims out of the proceeds an amount of rent proportioned to the part of the quarter which had expired, though that whole quarter’s rent had been paid in full. He is not entitled to it; for it was not due, and there had been no enjoyment on which to found the allowance. To allowdt would be to apportion the rent neither by the contract nor by the time of enjoyment, but in advance of both.

The decree of the Court of Common Pleas is reversed, at the costs of the appellee, Alfred M. Magill, and the money is decreed to be paid to Thomas C. Purdy, the appellant.


text:
    Longwell versus Bentley.
    1. The vendee in a written agreement for the sale of land after payment of the hand-money acquires an equitable estate in the land and may maintain partition against his co-tenant in common.
    2. A person, who without title had taken -possession of land, afterwards purchased the interest of two of the three heirs to whom it belonged, and subsequently took a lease from the said two of the share of the other heir who was absent and probably dead. In an action of partition by one who claimed the third share under a subsequent agreement in writing from the first two heirs, it was Held, that notwithstanding the lease, the defendant might show that he had the exclusive and adverse possession of the whole of the land.
    Error to the Common Pleas of Tioga county.

    This was an action of partition by John D. Longwell v. Bethuel Bentley, for partition of a tract of land containing about 54 acres and 106 perches. The summons was issued 8th April, 1850. The plea was non tenet insimul. The case was tried in September, 1853.
    On the trial, evidence was given on part of the plaintiff, to show that Alvin, Bacon lived on the land in 1804, and died in possession of it in 1813. Also a deed to him by Charles Pleasants and others in March, 1809. Alvin Bacon left three children, all in their.minority, viz., Hiram, the eldest, aged about six years; David, aged about four years; and Daniel, aged about two years. ■
    The defendant, Bentley, went into possession of the premises in 1826. It was stated in the charge of the Court that the father of the defendant had been one of the'guardians of the children of Alvin Bacon, and probably gave permission to the defendant to take possession.
    On 9th February, 1830, Hiram Bacon, the eldest son, conveyed the one undivided third part of the land to Bethuel Bentley, the defendant. On 1st June, 1830, David F. Bacon, the second son, conveyed to said Bentley, the one undivided third part.
    In relation to Daniel Bacon, the third son, it was testified that he went away when about ten or twelve years of age, to live with his uncle in the state of New York; that he afterwards left there, and had not been heard of for some years. One person testified that he had seen him in 1827 or 1828, and had never heard of him since. Two or moi’e testified that it was reported that he was dead ten or twelve years or more.
    There was also given in evidence an agreement dated April 1, 1889, by which Hiram Bacon, for himself and as attorney of his brother David Bacon, let unto Bethuel Bentley the undivided third of the same land, stated to be “ Daniel Bacon’s share of the lot,” and stating that, in consequence of the absence of said Da,niel Bacon, Bentley was to have the use of the said third part for three years from that date, for putting the place in good repair, and for paying B. Bentley his fees or charge as guardian of Daniel Bacon. A receipt, dated •''May 24, 1839, for $50, for such chai’ge, was given in evidence.
    There was also given in evideixce a letter of attorney of David F. Bacon to Hiram Bacon, dated 28th October, 1847, authorizing the sale of the remaining undivided third of the land. Also an agreement dated 15th November, 1849, by which Hiram and David F. Bacon agreed to sell and convey by deed of general warranty to John D. Longwell and his heirs, the undivided third of the land, and stipulating that Longwell was to have immediate possession. The consideration stated to be $300; of which $5 was paid at the date of the agreement, and the balance was to be payable on 15th November-, 1852.
    On part of the defendant it was offered to prove that the defendant went into possession of the land in question in the year 1825, and that he had been in possession of the same, holding adversely to the plaintiff since that time.
    To this it was objected that, by the lease given in evidence, dated 1st April, 1839, Bentley admitted the title under which the plaintiff claims, and was estopped from alleging adverse possession. The objection was overruled; and it was testified by Husted and B. Lawrence that Bentley went on the land in 1826 — had lived on it since, and that he had made considerable improvements on it— that the house built by defendant cost, perhaps, $1200. Benjamin Lawrence, also, testified that Hiram Bacon came to his house about four years before, and said he came to sell Daniel’s right, as he had been gone twenty-one years. He said Bentley said that his own title was as good as his, and did not want to buy it. From 1840 to 1849 the land was assessed to Bentley.
    On the part of the plaintiff, it was proved by E. Rose that he heard Bentley say that he had bought two-thirds, and if Daniel ever came back he intended to buy his share.
    Another witness testified that he had heard Bentley say he had bought from two of the heirs; and, if Daniel ever came back, he expected to have to buy the other third.
    White, J., in his charge observed, That it was contended, on part of the defendant, that the plaintiff could not maintain the action, 1st, because the evidence as to the absence of Daniel Bacon was not sufficient to raise a presumption of his death; and because a contract such as that under which the plaintiff claimed did not vest an estate of freehold in the vendee. 2d. That the defendant had exclusive and adverse possession. He charged that an adverse holding by one tenant in common for any time, however short, before the institution of an action of partition will bar it: 1 W. & Ser. 184; 1 Barr 324.
    He further charged, inter alia, that the lease was “a recognition of the title of Daniel; and, if this were an action of ejectment, would defeat a recovery by the defendant upon the plea of the statute of limitations. But it was a lease for three years, and expired on the 1st of April, 1842.”
    “ *It was not presumed at the time of its execution that Daniel Bacon was dead; and the lessors do not lease the property as in their own right,* but speak of it as Daniel Bacon’s share, and lease it to Bentley in consequence of Daniel Bacon’s absence. *From the expiration of the lease down to the trying of this action of partition, Bentley remained in possession of the lot — paying no rent and recognising no ownership, either in Hiram and David F. Bacon or John D. Longwell.*
    “ On the contrary, in the winter of 1848, if the evidence of Bernjamin Lawrence is believed, Bentley explicitly denied and repudiated the claim of Bacon; alleging to Bacon that his (Bentley’s) title was good as theirs — that he had been on the land twenty-one years, and meant to hold by possession.
    “ *Even if the lease given in evideneé could be understood as an admission of the title and possession in Hiram and Daniel F. Bacon, it is difficult to conceive how it could be so lasting in its obligation as to preclude the possibility of a subsequent ouster, and adverse holding by the defendant.* It is therefore submitted, to the jury as a question of faet, whether the defendant, at the time of bringing this suit in partition, had the exclusive possession of the premises in controversy, and was holding adversely to the plaintiff. If he had such exclusive possession, and was holding adversely, then this action cannot be maintained; ejectment, and not partition, being the proper remedy against one holding adversely.”*
    He also charged that the plaintiff had not such an estate in the premises as entitled him to maintain an action of partition.

    September 15, 1853, verdict for defendant.
    Error was assigned to the first paragraph quoted from the charge, and to the parts of the charge between asterisks. Also to the instruction that the plaintiff had not such an estate as to be enabled to maintain partition. Also to the admission of the testimony of Husted and Lawrence as to the possession by Bentley in 1825 and since; and the condition of the lot at the time Bentley took possession, and as to his improvements.

      Williston and Wilson, for plaintiffs in error.
    It was contended, that the plaintiff had sufficient estate in the premises to entitle him to maintain an action of partition: 2 Chitty Pl. 73; Id. 135; 2 Troubat & Haly, last edition, p. 230, title Partition. The provision in the first proviso to the Act of 3d June, 1840, that the demandant in partition must have an estate in fee simple in the purpart claimed hy him, has been repealed by the Act of 5th April, 1842, Acts p. 230, by which proceedings in partition are authorized to be instituted by persons having legal or equitable life estate in any real estate. An equitable title is sufficient in Pennsylvania, to recover upon in partition: 7 Ser. & R. 467, Willing v. Brown. In some of the cases cited on the part of the defendant in error, there was adverse possession; but it was contended, that in this case Bentley did not hold adversely.

    Ryan, for defendant in error.
    To the general rule that a tenant cannot dispute the title' of his landlord, there are exceptions— Where a tenant did not receive the possession from the plaintiff, but merely attorned to him, he is not estopped from disputing his title: 8 B. & C. 476; 1 Penna. Rep. 402; 2 W. & Ser. 240; 6 Wend. 666-670. It was contended that the instrument of 1st April, 1839, had not the effect of a lease under the circumstances in evidence.
    It was further contended that the'contract between the two Bacons and Longwell, the plaintiff, did not give to Longwell such an estate as was required by law, to entitle him to maintain partition. That a contract for land without the payment of the purchase-money gave but a bare equity; that it was but a chattel interest. That by the Act of 3d June, 1840 (Acts 593), the estate of the demandant in partition is not to be subject to be diminished or defeated by a subsequent event, and the estate of a vendee under a contract may be defeated by his neglect to pay the purchase-money. .
    An adverse holding by one tenant in common will bar partition. Ejectment is the remedy: 1 W. & Ser. 184, Law v. Patterson; 1 Barr 324; 1 Harris 376.
   The opinion of the Court was delivered by

Lewis, J.

Whatever is agreed to be done is considered in equity as done. It follows, from this principle, that a contract for the sale of real estate is considered, in equity, aS a conversion of the land into money. The vendor’s interest ceases to be real estate. It becomes a chose in action, a personal demand for the consideration-money, which, in case of death, goes to his persona] representatives, and the legal title is held only as a security for the payment of the debt. The vendee becomes, in substance, the owner of the estate. In his hands it is subject to dower and curtesy, and to all the incidents of real estate; and upon his death it goes to his heirs, and not to his personal representatives. This conversion takes place notwithstanding that it may afterwards be defeated by the non-payment of the purchase-money. Even where the conversion is subject to the happening of a contingency, the property will be taken to be as of the nature it was intended to be upon the happening of the contingency: Lawes v. Bennett, 1 Cox Ca. Cha. 167; Leigh & Dalzell on Equit. Conversion 19. By the contract between the Bacons and Longwell and the payment of the hand-money, the latter acquired an equitable estate in the land. By the terms of the contract he became entitled to immediate possession; and, under the charge of the Court, we are to take it that the jury would have found that there was no actual possession in hostility to his right. He is tó be treated as having the possession and the right of possession, with a right also to a conveyance ■of the legal estate upon the payment of the consideration-money. This is an equitable estate, and it has long ago been decided that an equitable estate is sufficient in Pennsylvania to support an action of partition: Willing v. Brown, 7 Ser. & R. 467. The existence of a judgment or a mortgage against an undivided interest presents no obstacle to a partition, because the encumbrance attaches upon the part set out for the one against whom it was entered: Bavington v. Clark, 2 Penna. Rep. 124; Jackson v. Pierce, 10 John. 414, 417. The same principle may be applied to the case of an encumbrance secured by the vendor’s retention of the legal title. The vendor, who has neither the possession nor the right of possession, cannot be said to hold together with his former co-tenants in common. It would be impossible for him to maintain an action of partition in such a case. ■ If the vendee may not be a proper party to such a proceeding, the other persons interested might be deprived of the right to divide the land. This cannot be. The parties are compellable, to make partition. The vendor, who intrusted the vendee with the actual possession, and with the incidents of ownership, is bound by the proceedings. In case of a sale his rights can be as readily protected by the Court as can the rights of a judgment or a mortgage creditor. We are of opinion that the Court was in error in holding that the plaintiff has not such an estate in the premises as will enable him to maintain an action of partition. We perceive no other error in the proceedings before the Court of Common Pleas.

Judgment reversed and venire facias de novo awarded.


author: Knox, J.

text:
    Heffner versus Heffner.
    b A prior marriage renders a second marriage of one of the parties during the existence of the first absolutely void.
    2. In an action by a female in her own name, the defendant alleged that the plaintiff was a married woman. The plaintiff offered to prove the declarations of the defendant to the effect that her alleged husband, at the time of his contracting marriage with her, had a wife in Germany. She also offered to prove that the said wife was living at the time of her marriage. Held, that the testimony was competent.
    Error to the Common Pleas of Bucks county.

    This was an action of ejectment to September Term, 1851, by Mary Heffner (formerly Mary Swartley) v. Jacob Heffner and another. Both parties claimed under Philip Swartley. He was the father of the plaintiff, and purchased the property for her in 1826 for the sum of $700. She paid $200, and Philip) Swartley charged the balance, $500, to her in his book of advancements, and it was taken out of her share of his estate after his death. The deed for the property was made to plaintiff’s father, but she went into possession soon after the purchase, having previously married one Andrew Weiss.
    Weiss and his wife, the plaintiff, remained in possession four or five years, and then separated; soon after which Jacob Heffner married the plaintiff, her husband Weiss remaining in full life. Philip Swartley and wife made a deed for the property in dispute to Jacob Heffner, dated April 14, 1832, for the consideration of $700. He was then in possession with plaintiff, his wife, and remained living upon it until about the year 1848, when she left him, and applied for a divorce on the ground of ill treatment, which was decreed, December 6, 1850.
    The plaintiff then brought this action of ejectment against Jacob Heffner, from whom she had been divorced, and Charles Heffner, his son and tenant. She claimed upon a parol agreement and part performance; and the declarations of Philip Swartley were given in evidence to prove that he had bought the land in dispute for the plaintiff, and that he had received $200 from her in cash, and charged $500 in his book of advancements. The book was in evidence, showing the charge, and the will of Philip Swartley, proved in 1840, showed a reference to the advancements made to his children. It being admitted that Andrew Weiss, the former husband of the plaintiff, and who lived with her when she took possession of the property in pursuance of the alleged purchase, was still living, the plaintiff offered “ to prove, that Jacob Heffner, the defendant, said that Andrew Weiss had a wife in Germany before he came to this country, and that she was living when he, Heffner, came to this country. She also offered to prove that Weiss was married to a woman in Germany at the time of his marriage with Mary Swartley, (the plaintiff), and that such wife was living at the time of the marriage of the plaintiff with Heffner.”

      “ To this offer the defendants objected, on the ground that such previous marriage of Weiss would not render his marriage with plaintiff ipso facto void, but voidable only; furnishing ground for a dissolution of the marriage contract, but not per se annulling it.”
    This evidence was admitted, and exception was taken.
    January 21, 1858, verdict for plaintiff.
    It was assigned for error, — 1. The Court erred in admitting the evidence to prove the former marriage of Andrew Weiss.
    2. The Court of Common Pleas had not jurisdiction of the case, the grantor of plaintiff having died before the action of ejectment was commenced, thus giving exclusive jurisdiction to the Orphans’ Qourt.

      Lear, for plaintiffs in error.
    It was contended that a prior marriage did not render a subsequent marriage of one of the parties void, but only voidable, — that it was merely a ground of divorce.

      Dallas, on same side.
    The offer was to prove a former marriage by hearsay.

      Du Bois, contó, the Court declined to hear.
   The opinion of the Court was delivered by

Knox, J.

A father bought a tract of land for his daughter for seven hundred dollars; two hundred of which was paid by the daughter, and the remaining five hundred by the father, who charged it to the daughter as an advancement.

The title was taken in the name of the father, but the daughter went into possession, and whilst there, married the defendant, Jacob Heffner, to whom the father made a conveyance. Subsequently, Heffner and wife were divorced. Mrs. Heffner brings this action of ejectment against her former husband, to recover possession of the land in dispute.

Upon the trial it was alleged by the defendant that the plaintiff had a husband in full life, one Andrew Weiss, to whom she was married before she married the defendant, and that therefore she could not recover in her own name.

To rebut this, the plaintiff offered “ to Drove that Jacob Heffner, the defendant, had said that Andrew Weiss had a wife in Germany before he came to this country, and that she was living when he (Heffner) came to this country.” Also to prove that Weiss was married to a woman “in Germany, at the time of his marriage with Mary Swartley; and was living, at the time of her marriage, with Heffner.”

“To this offer the defendants object, on the ground that such previous marriage of Weiss would not render his marriage with plaintiff ipso facto void, but voidable only; furnishing ground for a dissolution of the marriage contract, but not per se annulling it.”

To the admission of this evidence an exception was taken, and it is here assigned for error.

If it was necessary to establish the fact that Weiss had a wife in full life at the time he pretended to make a contract of marriage with the plaintiff, the evidence offered was clearly competent for such purpose. The objection was rather to the effect of the evidence than to the mode of proving it. As it appears from the counter statement that in the subsequent course of the trial this evidence was treated by the Court as of no consequence, and so the jury were instructed without objection on the part of the defendant, we would not reverse the judgment even if we were satisfied that it was erroneously received. But we think the evidence was competent to prove the allegation of the existence of a former marriage; and that such prior marriage, when established, would render void the second one. A man having a wife in full life is utterly powerless to make a valid contract of marriage, and his attempt to do so is entirely nugatory.

The remaining assignment of error, as to the jurisdiction of the Common Pleas, was abandoned on the argument.

Judgment affirmed.


text:
    Wallace versus Headley.
    The plaintiff leased to another for a period of years all the land that may or can be flooded or covered with, water by a dam. to be made at a certain place across a certain, creek, “ to be built so high as to raise the water to the top of a certain rock or fixed stone on the north bank of said creek:” Held, that this applied to the flow of the water except in cases of extraordinary rise in the stream; and that for an injury to the plaintiff’s land occasioned by overflow during an extraordinary rise, the defendant was not answerable.
    Error to the Common Pleas of Wayne county.

    This was an action of trespass on the case, commenced on 11th Nov. 1851, by Joseph Headley against S. H. Wallace.
    In the declaration it was alleged that the defendant had maintained certain dams across a brook, commonly called Yanakon Creek, and by means thereof caused the water of the brook at different times to overflow the plaintiffs’ land, whereby it had been injured.
    The dam was put up under a lease dated 8th April, 1847, whereby the said Headley leased to Charles Stanton, for twelve years, a certain piece of land described, and also “ another lot being ali the land which may or can be flooded or covered with water by a dam, to be made at a certain place across the aforesaid creek, to be built so high as to raise the water to the top of a certain rock, or fixed stone, on the north bank of said creek, near the place of said dam,” &c.; and also all the land contained within stated boundaries, &c.
    On the part of the plaintiff a witness testified that in January, 1852, he took the level of the water, and found it six inches higher than the top of the rock. Slash boards were on part of the dam; the water rather higher than usual, not a flood, * * * * a portion of the dam is not so high as the surface of the rock. On the western ■ side slabs or slash boards raised the water higher. The top of such was about level with the top of the rock. The dam without the slash boards was seven inches lower than the surface of the rock. The rock is 30 feet distant from the dam, and below it. At a bend in the creek, below the dam, it is filled with flood-wood.
    Other witnesses testified that the slabs, &c., in the creek came from Wallace’s mill.
    On the part of the defendant other witnesses testified that the collection of flood-wood below the dam had existed for 15 or 20 years.
    On the part of the defendant the Court was asked to charge—
    1. That-the flood trash, accumulating by the collection of slabs and timber floating down the stream, did not constitute a dam, and was not covered by the declaration.
    2. That the defendant was not liable for damage occasioned by floods, unless he has raised his dam to a greater height than the terms of the lease allow.
    Porter, President Judge, charged, inter alia: — “ The plaintiff contends, first, that the dam has been raised higher than it ought to be; secondly, that by reason of the defendant casting his slabs into the creek at the mill, whence they flow down the creek some distance to near the plaintiff’s lower line, they stop and form a dam which backs the water and floods another portion of the plaintiff’s land.
    “ The rule of law in regard to water rights is, that each riparian proprietor is entitled to the natural flow of the stream through his land, and his neighbor below him has no right to swell the water back upon him in the slightest perceptible degree. Where a party grants a right to a person to swell upon his land, as in this case, the contract between the parties must govern and limit the extent of the right to swell. Under the contract between the parties the defendant has no right to swell the water, either in high or low water, above the height of the rock therein referred to, and if he has done so he will be liable to plaintiff in this action. That is a question of fact for the jury.” He referred to the case of Butz v. Ihrie, 1 Rawle 218.
    As to the other point, he expressed doubts as to whether it constituted a cause of action under the declaration; yet in order that a final decision might be had, he charged that if the defendant had thrown slabs, or suffered such to be thrown or' fall from his mill into the creek or race, whence they flooded down and accumulated till they formed an obstruction in the stream, and were the cause of an overflow of plaintiff’s land, he could recover.
    Verdict for plaintiff.
    It Avas assigned for error, first, that the Court erred in charging that the defendant had no right to swell, either at high or low water, above the height of the rock. 2. In negativing the first point submitted.

      Wallers, with whom was Wheeler, for plaintiff in error.
    In the case of Butz v. Ihrie, 1 Rawle 218, the grant of the right to dam the Avater was’ accompanied by a provision that, it should not be raised or swelled so high as to injure a grist-mill. Such a provision would apply in case of high and low water. There is no such provision in the lease in question. In that case the Chief Justice, in his charge, observed that it was not like a case “where a man backs the water to his own line; in which case he will not be answerable for the increased rise of the water in freshets.” “It is different from a case where a privilege is granted on specific conditions and restrictions.”
    As to the other point, a count for diverting a stream óf water, will not be supported by proof of penning back and checking it, whereby the Avater was caused to overflow the plaintiff’s meadow: 1 Chitty’s Pl. 427-8. In this case there was no evidence that the land of the plaintiff had been injured, except in time of a freshet or flood.

      W. S. Pirámide and Jessup, contrá.
    When the law creates a duty or a charge, and the party is disabled to perform it, without default in him, and hath no remedy over, the larv will excuse him; but when the party, by his own contract, creates a duty or a charge upon himself, he is bound to make it good, if he can, notwithstanding any accident by inevitable necessity, because he might have provided against it in his contract: - — . Ordinary care and diligence by taking off the flush boards, raising the waste gates, &c., might have prevented overflow. Stanton contracted for the privilege to raise the water to a certain height only. That the owners of mills and of mill-dams were responsible for the omission of ordinary care whereby injury ensued to another, reference was made to 5 Vermont 371; 9 Watts 119, Bell v. McClintock.
    The declaration asserts that defendant maintained two dams, one known as the upper dam; the other, called by witnesses the slab dam. The Court will not reverse, after two trials, for matter which might have been amended.
   The opinion of the Court was delivered by

Knox, J.

Two questions are presented by this record: 1st Did the Court of Common Pleas err in its construction of the lease of the 8th of April, 1847, from Headly to Stanton ?

2d, Could there be a recovery under the pleadings for the injury occasioned by means of the slabs thrown into the race below the mill ?

Under the lease, the plaintiff in error had the right to maintain his dam of sufficient height to cause the water to flow back to the top of a certain rock therein mentioned. All the land which would be flooded by a dam if so erected and maintained, was expressly leased for the term of twelve years.

The Common Pleas instructed the jury that “under the contract between the parties, the defendant has no right to swell, either in high or low water, above the height of the rock therein referred to; and if he has done so, he will be liable to the plaintiff in this action.” In this we think there was error. It was the flow of the water, except in an extraordinary rise, which the parties had in contemplation when the contract was made. During the continuance of the lease, the defendant is to be considered as the owner of the land, so far as the right to flood it with water is concerned. Eor an injury occasioned by an extraordinary rise in the stream he cannot be held responsible. If the water, except as above mentioned, was kept within the limits expressed in the lease, the defendant was only exercising his lawful rights, secured to him by the contract itself; a necessary consequence resulting from which, would be that, at unusual stages, the water would be thrown upon lands without the limitation. To make the lessee responsible for this, would deprive him of the full enjoyment of the right or privilege demised.

The other point is not entirely free from difficulty. The declaration alleges the injury to have been occasioned by means, of dams. Throwing loose slabs into the stream, even although by accumulation they may have impeded the flow of the water, can hardly be said to constitute the maintenance of a dam. As the case goes back for another trial upon the first ground, the declara-' tion can be amended in this particular, so as to obviate the difficulty.

Judgment reversed and venire de novo awarded.


text:
    Uhler versus Hutchinson.
    1. The holder of an unrecorded mortgage, or of a mortgage illegally recorded, by giving notice of its existence at a sheriff's sale upon a judgment, cannot bind the estate mortgaged in the hands of a purchaser at such sale, where the judgment-creditor had no notice of the mortgage when his judgment was entered. The case of Solms v. McCulloch, 5 Ba/rr 473, in this respect is overruled.
    2. The result would probably not be different if notice of the existence of the mortgage had been given to the judgment-creditor before the lien of his judgment attached. But this not decided.
    Error to the Common Pleas of Bucles county.

    This was an amicable scire facias sur mortgage, entered in the Common Pleas of Bucks, wherein Samuel Hutchinson was plaintiff, and James Terry and Peter Uhler, terre tenant, defendants. The case was put at issue on the plea of payment with leave, &c. It was tried at September Term, 1853, and verdict rendered for the plaintiff.
    The action was founded on a mortgage given by James Terry to Hutchinson, on certain real estate in Bucks county, to secure the payment of $200. It was dated and acknowledged on the 14th of July, 1847; and recorded in the recorder’s office of Bucks county, on February 8th, 1848. The acknowledgment purported to have been taken in New Jersey, before one of the commissioners of the county of Mercer.

      Subsequent to the recording of the mortgage, to wit, on the 2d of February, 1850, Peter Uhler obtained a judgment for $46.50 against James Terry, in the Common Pleas of Bucks, on a transcript from a justice of the peace. A fi. fa. on this judgment was issued to April Term, 1851; and the sheriff levied on the real estate of Terry, which was so mortgaged to Hutchinson. Yen. exp. was issued to September Term, 1851, under which writ the sheriff returned that on the 8th of September, 1851, he sold the land in the writ named to Peter Uhler, who was the plaintiff in the execution. Uhler paid the purchase-money, receiyed his deed from the sheriff, and took possession of the premises. This amicable action was then instituted to determine whether the premises were bound by the mortgage in the hands of Uhler, the purchaser at the sheriff’s sale; and on the trial of the case the foregoing facts were pro5ren. The plaintiff also called witnesses to prove that Uhler and his attorney had actual or constructive notice of the mortgage before the sale.
    On the part of the defendant evidence was given with the Ariew of disproving notice.
    On the part of the defendant the Court was requested in writing to charge, That the judgment of Uhler was a lien prior in point of time to the mortgage of the plaintiff; and that the sale by the sheriff, under the judgment, discharged the land from any lien of the mortgage.
    The Court was also verbally requested to charge the jury on the following points:
    1. That the mortgage was not acknowledged as the laws of Pennsylvania required.
    2. That the record of the mortgage, under such defective acknowledgment, was no notice to Uhler, either as a creditor or purchaser ; and that a knowledge of the mortgage on the part of Uhler or his attorney, derived from seeing it on record, would not affect him with notice.
    8. That notice to affect Uhler must have been given to him before he obtained his judgment.

    Smyser, J., charged that the acknowledgment of the mortgage was defective, it not appearing to have been made before a commissioner appointed by the Governor of Pennsylvania to take acknowledgment of deeds; and that it was not legally recorded.
    On the authority of Solms v. McCullough, 5 Barr 473, he charged that if Uhler bought the land at the sheriff’s sale with notice of the unrecorded mortgage, the land in his possession was liable for the mortgage debt.
    Error was assigned to the portion of the charge last referred to; 2d, That the Court erred in refusing to charge as was requested in writing.

      Boss, for plaintiff in error.

      Du Bois, contra.
    May 16,
   The opinion of the Court was delivered,

by

Knox, J.

As the registry of the mortgage Ayas clearly defective, the naked question presented in the case is this:—

Can the holder of an unrecorded mortgage, by giving notice of its existence at a sheriff’s sale upon a judgment, bind the estate mortgaged in the hands of a purchaser at such sale, where the judgment-creditor had no notice of the mortgage when his judgment was entered?

The Court below, under the authority of Solms v. McCullough, 5 Barr 473, gave an affirmative answer to the above proposition. If this is a correct exposition of the law, the Act of 28th March, 1820, which provides that “ no mortgage, or defeasible deed in the nature of a mortgage, shall be a lien until such mortgage or defeasible deed shall have been recorded or left for record as aforesaid,” is of little use.

If the mortgage had been entered of record at any time subsequent to the judgment upon which the land was sold, and before the sale, it cannot be denied that the sale would have divested its lien, and the purchaser taken an unencumbered estate; but, by withholding it from the record, and giving parol notice of its existence, it is claimed that it remained a charge upon the land. Again, if the mortgage had been so recorded, the judgment-creditor would unquestionably Have been first paid out of the proceeds of sale; but permitting it to be enforced against the purchaser is equivalent to giving it a priority over the judgment. Suppose an estate is mortgaged for its full value without record notice. Judgments entered against the same estate, although apparently well secured, may be rendered entirely worthless by requiring the estate to be sold, subject to the mortgage, if notice is given to the purchaser. It is evident that the fruits of the judgment could not be realized under such a rule. If a purchaser is bound by notice of a mortgage bearing date anterior to the judgment upon which the sale is had, why should he not be by one subsequently made ? Where both are unrecorded, the lien of the one is as good as the other, for in truth neither is worth anything.

The Act of 6th of April, 1830, only protects the lien of such mortgages that “ are prior to all other liens upon the same property, except other mortgages, ground-rents, and the purchase-money due to the Commonwealth.” If the Act of 1830 is not to be overthrown, how can it be said that a mortgage which has never been recorded, and of which no notice was given to the judgment-creditor when his judgment was entered, is a prior lien ? Is it not an absurdity to say that what is declared by the plain letter of the statute to be no lien, may nevertheless, at the option of the holder, become paramount to conceded liens ? It is not only making something out of nothing, but making that something stand first in order as to value. The law is said to be for the vigilant; but here the eleventh hour man” is not only given his penny, but, in order that it may be bestowed upon him, the early laborer is turned away penniless.

The principle applied to this case would work such manifest injustice, that we cannot give our assent to it unless it has become by repeated decisions a settled rule of law. How is this ?

It is not denied but that, in a contest between an unrecorded mortgage and a subsequent judgment or recorded mortgage, without notice, the latter will prevail; and it is equally undeniable, that a purchaser at private sale, with notice of a prior unrecorded mortgage, holds subject to the mortgage. But how is it where the title is held by a sheriffs deed made under a»sale on a judgment entered without notice of the mortgage ?

The case of Solms v. McCullough is relied upon as an authority in point, in favor .of the defendant in error. I have examined this case with some care, and it certainly does decide that a purchaser at sheriff ’s sale, with notice of an unrecorded mortgage, stands in the position of the mortgagor, and takes the land subject to the lien of the mortgage. So far as we can judge from the imperfect manner in which the case is reported, this position does not appear to have been questioned, and it is treated very summarily by the learned judge who delivered the opinion of the Court. He neither gives authorities nor reasons, but states the law to be so. It is fair, however, for the defendant in error to rely upon the case as the point was necessarily decided. It is believed that there is no other case to be found in our books of reports sustaining this decision. If there is, we have not been referred to it, nor have we been able to find it.

On the other hand may be cited Jaques v. Weeks, 7 Watts 261, where it is said “ that a purchaser at private sale, having notice of an unrecorded mortgage, is in equity bound to the same extent, and in the same manner, as the person of whom he purchases. But the law is otherwise as regards a judgment-creditor, or the purchaser under an execution on such judgment.” This case is referred to by Chief Justice Gibson in Manufacturers’ and Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & Ser. 340, and its authority upon the effect of notice recognised.

In Hulings v. Guthrie, 4 Barr 123, it is distinctly ruled that a purchaser at sheriff’s sale under a judgment entered after the date but before the record of a mortgage, holds by title paramount to that of a purchaser under the mortgage, even though the judgment-creditor may have had notice of the mortgage before the entry of his judgment.

These cases cannot be reconciled with Solms v. McCullough; but, by adhering to them, it is plain that we shall do no violence either to law or reason.' The priority of judgment-liens can only be made effective by permitting the estate charged with their payment to be sold free from encumbrances which have no existence as against the judgments.

We do not wish to be understood as admitting that the result would have been otherwise if notice of the existence of the mortgage had been given to the judgment-creditor before the lien of his judgment had attached. But we are clearly of the opinion that the notice given at the sale could not affect the judgment-creditor or the purchaser under it. As the one had the legal power to sell the estate without reference to the mortgage, so the other had the right to buy in disregard of it either as a conveyance or a lien.

Judgment reversed and venire de novo awarded.


author: Black, G. J.

text:
    Whiteside’s Appeal.
    1. A fact found by an auditor, is, in this Court, to be taken as true, unless the error be palpable.
    2. A testator, by his will written in March 1840, and proved in May of the same year, devised to his son James $500, without interest until he called for the money; and if never called for by him, it was to be paid to his two grandsons after the death of the son. It was to be paid by the legatee out of real estate devised to him. The son was heard from by letter in 1837, but not afterwards by his relatives so far as it appeared: Held, that he was presumed to be dead after seven years from the time when he was last heard of, viz., in 1844; and that such presumption was not repelled by the idea that the testator may have supposed him to be alive at the date of the will.
    3. The legacy was payable to the son when he called for it; and if not demanded by him, it was payable to the grandsons after the death of the son: Held, that the legacy bore interest from the time when the death of the son was presumed to have occurred, and hot merely from the time of the decree for its payment, viz., in 1853, though it did not appear that payment was demanded before 1852.
    Appeal from the decree of the Orphans’ Court of Chester county.

    On the petition of James and Samuel McClenaghan, grandsons of Samuel Whiteside, deceased, a citation was awarded in January, 1858, to Samuel Whiteside, -Jr., executor and devisee of the land charged, to show cause why the Court should not decree payment of a legacy out of land devised to him by his father.
    Samuel Whiteside, of Chester county in this state, made his will, dated March 13, 1840, and proved on 8th May, 1840, whevein, inter alia, he devised as follows: “ I do leave and bequeath to my son James Whiteside, $500,” “to be paid to the said James any time after my death, and no interest paid for the above $500 until he call .on the above sum; and, if never called on by said James Whiteside, it is my wish and will, for the said $500 to be paid by my son Samuel Whiteside, Jr., to my two grandsons,” “ any tune after the death of the above James,” &c., “ out of my real estate.”

      Samuel Whiteside was appointed executor, and he was the devisee of a farm, which he has since owned and occupied. James Whiteside never demanded the $500. He had gone to the West or Southwest, and had not been heard of by his relatives in Pennsylvania for above 15 years. A witness, not a relative, so far as it appeared, testified on the hearing before the auditor, in 1853, that James Whiteside came in from the West about 18 years before. He stayed a short time and returned. He said he had never seen him since, and had never heard anybody say they had seen him since. Ilis relatives got a letter from him about 16 years ago. He had heard his relatives frequently speak of him,- and they said that letter was the last they had heard of him. The witness never heard that he was married. A copy of the letter was produced. It was dated from Red River, Arkansas, February 21, 1837, and was addressed to his uncle. In it he stated the probability, if living and in good health, of his going after the coming summer, Into the interior of Texas.
    In the answer of the executor was alleged a readiness to pay the $500 to whoever was entitled to it.
    The auditor appointed in the matter, expressed the opinion that the death of James Whiteside might, properly, be inferred from the evidence; and he reported in favor of the payment to the petitioners of $883.49, being the amount of the legacy with interest from April 1, 1844. The report was confirmed nisi on 15th March, 1853 ; and on September 13,1853, the Court ordered the payment according to the report of the auditor.
    It was excepted, 1. That the evidence was not sufficient to justify the Court in making the decree. 2. That the evidence did not raise a presumption of the death of James Whiteside at any time, and much less of his death in 1844. 3. But if a presumption of his death existed, the Court erred in decreeing interest from April I, 1844.

      W. Darlington and JSicJcman were for appellant.
    It was contended that the testimony as to the death of the legatee was unsatisfactory. It was from a single witness. The fact of the son not having been heard of for seven years, should be proved by persons who would be likely to hear from him if alive — viz., by persons interested in him — related by blood or marriage: 1 Greenleaf Ev. 103.
    2. It was, inter alia, contended that, in this case, the death was merely a presumption of law, and that it was the decree which established the death; therefore, that interest should be computed only from the date of the decree.

      Pennypaclcer, for appelle.es.
    Time was afforded from June till September, 1853, for the respondent to make inquiry in relation to James Whiteside. Proof that a person has not been heard of for seven years is sufficient to rebut the presumption of life: 1 Rawle 373; 4 Wharton 150; Id. 173.
    2. The grandchildren have a right to interest from the time they had a right to receive the legacy, though they did not then demand it: 9 Ser. & R. 263, Schaeffer’s Estate. A legacy charged on lands yielding profits, carries interest from the time it becomes payable, even though no demand were made at that time: Per Bell, J., in Keech v. Speakman, 1 Pa. L. J. He who enjoys the whole of a fund which is in part charged in favor of another, should admit the other to a share of the profits pro tanta.

   The opinion of the Court was delivered by

Black, G. J.

Here was a legacy of $500 to A., the testator's son, to be paid when called for without interest, and if not called for then to be paid to B. and 0., two grandsons, at any time after the death of A. At the date of the will A. was absent and had not been heard of for several years; and twelve years afterwards, the legacy still remaining unpaid, this proceeding was instituted by B. and C.-to recover it. The subject was referred to an auditor, who reported that A had not been heard' of since 1837, when he wrote from Arkansas to his relatives here; that he must be presumed dead in 1844; and that the legacy was payable to B. and C. with interest from the latter date. The Court so decreed.

1. The appellant, who was sole executor of the will and devisee of the land on which the legacy was charged, insists that the evidence before the auditor was not sufficient to justify his conclusion. A fact found by an auditor must be taken as true, unless the error be palpable. Here it is not so by any means. The proof might have been stronger and fuller, but it was enough to make out a case primd facie, in the absence of. all contradiction. The testimony of a relative would have been more satisfactory than that of a mere neighbor and friend; but if the members of the family had heard of the person in question more lately than 1837, why did not the executor call them ? If there was any serious doubt upon this question, it would most probably have been contested before a jury. These considerations satisfy us thatw'e do no wrong in treating the report as a verity. ■ We cannot but believe that a further investigation of this point would result in the same way.

2. But it is further argued that the evidence, if taken for true, does not raise the presumption of the primary legatee’s death until 1847, because in 1840 (the date of the will) he was assumed to be a living man by the testator. This proposition is wholly unsound. The testator had no ground for' believing him dead within three years after the date of his letter; though he was evidently uncertain about it: he contemplates that the legacy will never be called for as a probable contingency, and therefore bequeaths it over. But it-is no matter what the testator thought. A person is presumed to be dead after the lapse of seven years from the time when he was last actually heard of, and this presumption is not repelled by the fact that somebody supposed him to be living at a later period.

• 3. The appellant thinks he can concede the facts found by the auditor, and still show the decree against him for interest to be wrong as matter of law. He bases this argument on the words of the testator, by which he gives the money to his son when called for ; be -did net intend to put his grandsons in any better position, and therefore it was to be paid to them also when called for. But the words of the will contradict this. The legacy is payable to the son when demanded, and to the grandsons at the death of the son. When did that death occur ? The law presumes it to have happened in 1844. It was the executor’s duty to pay it, then. The rule being well settled that a legacy bears interest from the time when it is made payable by the terms of the will, interest is chargeable here from 1844. The notion that the death of the son was a fact established and proved only by the decree, is altogether wrong. The lapse of time after the legatee had been heard from was a fact, and from that was inferred another fact, namely, his death. Of both these facts the executor was as much bound to take notice as the Court. Judgments and decrees do not make the evidence on which they are founded. Legal tribunals can enforce only those obligations which ought to have been voluntarily performed. If the appellee was right in withholding the legacy, the Court was wrong in ordering that he should pay it. It is reversing the rule of right reason to say that this man is dead merely because of the decree : the decree was made because his death had been previously ascertained.

Decree affirmed.


text:
    Wilkinson versus Pearson.
    1. A plaintiff having given evidence tending to show incapacity In an individual to make a conveyance of his land, may also show that above two years before such conveyance, the grantor had said that the defendant, by himself and another, had importuned him to make a deed to the defendant for the land in question or a will, hut that he was determined never to do so— that the law would make a better will than he could make. Such declarations were admissible to show the intention of the person when compos mentis, in order .to raise the inference of incapacity when he afterwards conveyed to the defendant.
    2. The condition of the grantor’s mind one or two years after the deed in question was executed by him, when connected by other evidence with periods ■of time in close contiguity with the period of the execution of the deed, may be shown if it tend to show his mental condition at the time it was executed. In order to reverse on account of the admission of such evidence the impropriety of its admission should he apparent.
    3. A witness may be asked whether from the general appearance of the grantor he considered him, at the time of the execution of the deed in question, capable of making a contract or of transacting important business.
    4. Evidence offered to show that the defendant had made valuable improvements on the premises in dispute since the trial of a former ejectment for the same premises was properly rejected.
    Error, to the Common Pleas of Bucles county.

    This was an action of ejectment by Elizabeth Pearson, a claughter of Joseph Wilkinson, deceased, v. Joseph P. Wilkinson and James M. Wilkinson, to recover the undivided third part of 117 acres 151 perches of land in Bucks county.
    Joseph Wilkinson, the father of the plaintiff and of Joseph P. Wilkinson, one of the defendants, was seised of the land in question in 1838; and on the 2d March, 1838, he executed a deed to the said Joseph for the same, the consideration being expressed to be “ $1850, paid or secured to be paid to the remainder of his heirs.”

    The deed conveyed the premises to Joseph P. Wilkinson, his heirs and assigns for ever, together with the buildings, &c., and “ the remainders, rents, issues, and profits (that may accrue after my decease, but not before),” &c. Provided “that the property conveyed by this deed is not to pass into the hands of the said Joseph P. Wilkinson until after the decease of his father.”
    .The deed was acknowledged on the day of its date, and was recorded on the following day. Bonds were executed at the time. In October, 1840, Joseph Wilkinson, the grantor, died in possession of the property, since which time the grantee had been in possession.
    It was alleged by the plaintiff below, that Joseph Wilkinson was unfit to make a deed from imbecility of mind, and that fraud, imposition, and undue influence had been used by Joseph P. Wilkinson and James M. Wilkinson, the son of Joseph P., to procure the execution of this deed. The plaintiff therefore claimed to recover the undivided third part of this land, as her share under the intestate laws.
    Verdict was rendered for the plaintiff.
    It was assigned for error: 1. The Court erred in admitting evidence of the declarations of the grantor long previous to the execution of the deed, as to importunity by the defendants, and of his declarations that he would never make a will, to show weakness and imbecility of mind in the grantor. 2. In admitting in evidence the opinions of witnesses as to the capacity of the grantor, formed from his general appearance alone. 3. In admitting evidence on the part of the plaintiff as to the unsoundness of mind in the grantor in the years 1839,1840, or at any time long subsequent to the date of the deed. 4. In not permitting the defendants to give evidence of valuable improvements made upon the premises in dispute by Joseph P. Wilkinson, since the verdict in the first action of ejectment.

      F. J. Fox, for plaintiff in error.
    The capacity of a testator is to be judged of by his acts: Shelford on Lun., 2 Law Lib. 277; 3 Whar. 137; 7 Ser. & R. 92.
    As to the 4th assignment, reference was made to 1 Jones 429, Irvin v. Nixon. In a former ejectment between these- parties, grounded on the same cause of action, a verdict was rendered in favor of the defendant on 18th November, 1843. In 1844, the judgment was affirmed. This action was brought in April, 1851. Valuable improvements were made since that verdict, some'as late as in 1850.

      Du Bois, with whom was Miehener, for defendant in error.
    The declarations of the grantor were not the only evidence of imbecility. They were but cumulative evidence: 8 Ser. & R. 579, Irish v. Smith. The appearance of the party may be shown. The opinion of Rogers, J., 2 Jones 31, was referred to, as to this point, by the Court below.
    May 16,
   The opinion of the Court was delivered, by

Knox, J.

The question at issue was whether Joseph Wilkinson was capable of making a conveyance of his land on the 2d day of March, A. b. 1838. The plaintiff below, a daughter of the grant- or, alleged his incompetency, from weakness of intellect and imbecility of mind.

After giving evidence, the tendency of which was to establish her allegation,'she offered to prove that her father had said, in 1835, that his son Joseph P. Wilkinson (the defendant), by himself and his mother-in-law, had importuned him to make Joseph a deed for the place, but that he was determined never to do so, or to make a will, as the law would make a better will than he was able to make. This evidence was received under an exception, which forms the 1st assignment of error. It is clear that these declarations would not, standing alone,- prove incapacity; on the contrary, they would rather show capacity, and a determination not to be influenced by the solicitations of others. I do not understand that the objéct of this evidence was to prove weakness of intellect at the time the declarations were made; but to show that, when the intellect, was unimpaired, the expressed intention was directly adverse to the disposition afterwards made, and from this, to raise the inference of incapacity at the time when the deed was made. For this purpose it was properly received. The same, species of evidence was admitted in Irish v. Smith, 8 Ser. & R. 579, Chief Justice Tieghman observing that “it was proper for the jury to be informed what had been the testator’s intentions when his understanding was unquestionable, and when he was unassailed by family intrigue. If he afterwards made a different disposition, when weakened by disease, without some reason to be shown by the defendant, it was a circumstance which, combined with others, might not be unworthy of attention.”

The Court permitted the plaintiff to ask one of his witnesses whether, from the general appearance of the grantor, he considered him, in 1838, to be capable of making a contract or transacting important business. This is the second error assigned. The case just quoted sustains the Court below in permitting this question to he put. The jury, it is true, are to judge of the correctness of the opinion from the facts, and so the learned judge who presided upon the trial instructed them; but there was no impropriety in asking the witness his opinion from the appearance; and what the appearance was eould be inquired of by either party, so as to ascertain upon what the belief was founded.

Exceptions were taken to the admission of evidence showing the condition of the grantor’s mind in 1839 and 1840, one or two years after the date of the deed. The inquiry was as to the state of the grantor’s mind when the deed was made. Whatever would tend to throw-light upon his then condition, was legitimate evidence, whether drawn from facts existing before o-r afterwards. The inquiry was certainly extended to the utmost limits of propriety ; and, as a general rule, I would say that it was carried too far; but, connected as it was by other evidence with periods of time in close contiguity with the execution of the deed, it is not clear that it would not in some degree help to elucidate the matter of inquiry. Something must, he left, in questions of this description, to the discretion of the Court; and unless it is plainly shown that an error has been committed to the prejudice of the party complaining, the result ought not to be disturbed.

There was no error committed in refusing to permit the defendant below to prove that he had made valuable improvements since the trial of the first ejectment.

That the title was in dispute was equally known to both parties, and there is nothing in the law that requires one to bring his second action of ejectment immediately after the termination of an unsuccessful effort, at the risk of being improved out of his estate.

Judgment affirmed.