text:
    Stoner versus Zimmerman.
    1. To effect a conversion of land into money under the terms of a will, the power to sell must be absolute and unconditional.
    2. A testator, directed his executors to take charge of and lease his real estate for fifteen years from the date of his will; and at the expiration of that time they wore either to sell it in fee simple and divide the amount between his wife, if then living, and his children, or to have it “proporiioned and valued” by three men, so as to accommodate as many of his children as it would allow of, “ if it be their wish at that time to have it done so,” they who take a part to pay to the widow and the remainder of the children, each their full proportion. Held, that the power to sell being conditional, the proceeds of the real estate, after sale by the executors, was distributable as real estate.
    3. Where the interest of a devisee in land has been improperly sold by the executor, the former may waive the wrong and recover the money from the administrator of the estate of a claimant to whom the executor erroneously paid it.
    Error to the Common Pleas of Dauphin county.

    This was an action of assumpsit by George Zimmerman and Barbara his wife, late Barbara Stoner, v. Elizabeth Stoner, administratrix of Henry Stoner, deceased, to recover a sum of money which Henry Stoner received in his lifetime, and on part of plaintiff alleged to belong to his daughter Barbara, out of the estate of her deceased grandfather, after the death of her mother. “ The narr. was filed on the 24th March, 1851. Pleas non assumpsit and non assumpsit infra sex annos.” Barbara, the wife of George Zimmerman, having died since the institution of this suit, her death was suggested upon the record on the 5th May, 1851, and letters of administration having issued upon her estate to her hus-’ band, one of the plaintiffs below, he was substituted as plaintiff on the 7th February, 1852.
    The facts of the case, in the order of their occurrence, were as follows:
    John Alleman, the father of Martha Alleman, the mother of Barbara Zimmerman, one of the plaintiffs, having made his last will and testament, dated 6th July, 1809, died previous to the 21st October, 1811, seised and possessed of a tract of land in Ohio, house and lot in Middletown, and the homestead farm; on which last-named day his will was found, and letters testamentary issued thereon to Jacob Parthemer and Christian Alleman, the executors named in the will. He left a widow and thirteen children.
    By his will he directed his personal estate to be sold, and the proceeds divided — his wife taking one-third, and the executors paying a share to each child — the children taking share and shire alike, and then he adds, “ paying regard to the sums by me already advanced, agreeable to the charges I have made against them, so as to proportion each alike. Also, I direct, that my executors hereafter named, have the care of my real estate, wherever it may lie, for fifteen years from the date of this my last will, to he by them leased or rented as they shall think to the best advantage for that length of time, and the rents, issues, or profits arising therefrom, to be by them divided yearly between my wife and all my children, in the proportion and in like manner as above mentioned; and at the expiration of the fifteen years, I direct that my executors hereafter named, either sell all my real estate, which I hereby fully empower them to do, and convey in fee simple, and divide the amount arising therefrom, between my wife, if at that time living, and all my children, in the order and manner I have directed my personal property to be divided; or to have it proportioned and valued by three judicious and disinterested men, so as to accommodate as many of my children as it will allow of, if it be their wish at that time to have it done so, them taking a part to pay to my wife, and the remainder of my children, each their full proportion as above mentioned.”
    On the 12th September, 1820, 'Martha Alleman, a daughter of John Alleman, the testator, intermarried with Henry Stoner, and died in April, 1825, leaving a child named Barbara, who was born on the 5th of November, 1824. After renting out the farm for fifteen years, according to the directions of the will, the executors of John Alleman, in 1828, sold the farm for $7115, the land in Ohio having been sold in 1826, for $32, and the house in Middletown, for three hundred dollars, but when, was not proved. On the 7th of July, 1829, Henry Stoner joined with other heirs of John Alleman, deceased, and the widow, in releasing the executors from all claims on account of the estate. Afterwards, in 1831, a final account was settled by the executors, embracing the proceeds of rents and purchase-money of land, and stating a balance of $4743.08. This account was confirmed on 3d September, 1833. In November, 1838, the widow died. About 1844 Barbara, the daughter of Henry Stoner and Martha his wife, married George Zimmerman, the plaintiff, and in August, 1847, .Henry Stoner died. On the 7th June, 1849, Zimmerman and his wife brought this suit against the administratrix of her father’s estate, to recover her mother’s share of the money arising from the sale of the real estate of her grandfather John Alleman. After suit being brought, to wit, in August, 1850, Mrs. Zimmerman died.
    On the part of the plaintiffs testimony was given as to a declaration by Henry Stoner, that certain money which he had received from one of the executors of the will of John Alleman, he did not consider as his money. The witness said that the money came from the sale of Alleman’s real estate.
    A release was given in evidence, executed by Iienry Stoner and others, by which the parties who executed it acknowledged to have received from one of the executors of the will of John Alleman, the sums thereinafter specified as having been received by them respectively, viz. “the balance in full due to each of us,” and in the hands of the said executor — Henry Stoner acknowledging the receipt of $107.29; he acting in the matter in right of his wife. The widow of John Alleman acknowledged the receipt of $2371.68, stated to be the amount of her dower in the real estate of the said J ohn Alleman, deceased; it being stated that the sums so specified and received were in full satisfaction and payment of all such sums of moneys, &c., as are bequeathed to them in the real and personal estate of the said John Alleman; and releasing the executor.
    The material question was, whether the money thus received by Henry Stoner arising from the proceeds of sale of J ohn Alleman’s real estate, was to be considered as personal or as real estate. If as personal estate, Henry Stoner was entitled to receive it in right of his wife Martha; if as real estate, it belonged to his child by her, viz., Barbara, one of the plaintiffs.
    On the part of the plaintiff it was contended in the Court below that under the facts and the will, the plaintiff was entitled to recover l-13th part of the proceeds of the sale of the land in Ohio, and of the homestead farm, because the power contained in the will of Alleman, to sell his real estate, was not positive and unqualified, but contingent, depending upon the exercise of the will of any of the heirs of the testator at and after the 9th July, 1824, and therefore was not to be regarded as money, but as land. That the same not having been sold until after the death of Martha Stoner, wife of Henry Stoner, one of'the daughters of the testator, her share in the real estate of her deceased father descended as land. That the real estate having been sold by the executors after her death, and the proceeds of his wife’s share therein received by Henry Stoner, his daughter Barbara was entitled to recover the same from his estate, with interest thereon from the time of its receipt, she being the only child of Martha, the first wife of Henry Stoner.
    On the part of the defendant it was contended, inter -alia, that John Alleman having by his will directed his executors, at the end 'of fifteen years from the date of his will, to sell his real estate, and divide the money, or to have it proportioned and valued, so as to accommodate as many of his children as it would allow of, if it be their wish at that time to have it so done; the heirs or legatees never having asked to have it appraised, the entire power vested absolutely in the executors — and the land having been sold by the executors, and the heirs having received their respective shares of the money, was equivalent to an express direction to the executors to sell; and that the proceeds of sale were to be considered as personal estate, to a share of which Henry Stoner was entitled in right of his wife, as surviving husband — that he was entitled to her share absolutely; and that therefore the defendant, as administratrix of his estate, was not liable in this action. Further, that if the proceeds of said sale were to be considered as real estate, the defendant was not liable for more than it was proved that Henry Stoner had received, viz., $107.29. . . ' .
    . . . On the trial points were submitted on the part of the defendant, viz.:
    1. That by the legal construction of the will of John Alleman, deceased, his real estate is to be considered as changed into money for the purpose of distribution among his widow and children, and is therefore to be considered as personal estate from the time of his decease.
    2. That the children not having elected after July, 1824, to take it as real estate, and the land having been sold under the provisions of the will, Henry Stoner had a right to receive the share of his wife in the character of surviving husband. If the children had elected to take it as real estate, they must all have joined.
    • 3. That this action cannot be maintained against the administratrix of Henry Stoner, deceased, even if he received the money of the executors of John Alleman, deceased, inasmuch as there is no privity of contract or estate between the plaintiff and Henry Stoner. If Henry Stoner received money and was not entitled to it, then it presents the case of a mispayment, and the plaintiff’s remedy is against the executor and not Stoner.
    4. If the money received by Stoner is to be considered as real estate, then the plaintiff cannot recover, as an administrator cannot maintain an action for real estate, neither can real estate be recovered in an action of assumpsit.

    The case was tried before Pearson, J. He observed to the jury that “ Alleman’s executor settled an account of his personal effects on 24th November, 1813, and a supplemental account, embracing the proceeds of the rents and purchase-money of his real estate on 3d May, 1831, which was confirmed on 3d September, 1833. On 7th July, 1829, Henry Stoner, and other heirs of John Alleman, including his widow, released the executors from all claims on account of said estate, and acknowledged that they had received the same in full, each specifying the amount received on account of the land in Ohio, and acknowledging the payment of the balances due them respectively. The widow receipts to the executors in full, and as though she was entitled in her own right; and Henry Stoner acknowledges that he received the share of purchase-money of land in Ohio, and the sum of $107.29; whieh he admits to be the balance coming to him in full. Under tho facts proved, you can therefore have but little difficulty in coming to the conclusion, that Henry Stoner received the whole share of money arising from the sale of the homestead farm and the land in the state of Ohio, after his wife’s death; but as the plaintiff has failed to show that the house and lots in Middletown were sold after that period, he has established no claim to recover that portion of the money. He was entitled to the rents so long as the real property remained unsold, and to the interest of the money so long as he lived, as tenant by the curtesy, provided the estate descended to his wife, as lands of which she died seised. If this property had definitely and imperatively affixed to it, the character of money by the will of John Alleman, then Henry Stoner had a right to receive and retain it. If it descended to his wife as land, he had only the use of it for life, and his estate must now account for it to his daughter, the heir-at-law of his deceased wife.
    “ There is no principle better settled in equity, than that money directed or agreed to be laid out in land, is to be considered as such, and e converso land, ordered or agreed to be converted, is considered as money. But to establish a conversion the will must direct it absolutely, or out and out, irrespective of all contingencies, and independent of all discretion: 1 Hoff. 203; 7 Dana 11; 3 Wheaton 563; 1 Williams on Executors 454-5; Jarman on Wills. The direction to convert must be positive and explicit, and the will, if it be by will, or the deed if it be by contract, decisively fix upon the land the quality of money: 10 Barr 132. It must imperatively direct that the land shall be sold. In 1 Harris 260, the direction was to sell, “if the majority o'f my children be agreed;” and it'was held not to effect a conversion. In 9 Watts 145, the testator ordered his land to be sold, when his youngest child arrived at full age, “if his wife agreed,” and held not to work a conversion. Judge Kennedy says the sale must be absolutely and positively directed, and the land is then converted into money from the time of the testator’s death.”
    “ In the will under consideration, the testatoi says: ‘1 direct that my executors either sell all my real estate (which I hereby fully empower them to do, and convey in fee simple), and divide the amount arising therefrom between my wife,’ &c., ‘or to have it, proportioned and valued by three judicious and disinterested men, so as to accommodate as many of my children as it will allow of, if it be their wish at that time to have it done so,’ those taking a part to pay the others, &c. Now here is no positive direction to sell, but on the contrary, it is left discretionary with the heirs; to have it sold or not is left for their future determination. At the time of Mrs. Stoner’s death, that point had not been determined as to the homestead or land in Ohio. It had, we must presume, in regard to the house and lot in Middletown, as that had been advertised and probably sold. The homestead farm and land in Ohio then descended to Mrs. Stoner, as real estate. She might have elected to take her interest in land, by a proceeding in partition, as provided in the will; and being so vested at the time of her death, no subsequent election on the part of her husband and the other heirs, can divest or convert it into money. Her husband was entitled to the use of the land during life as tenant by the curtesy, as the fee had descended to, and vested in the wife, not in reversion, but in prcesenti.

    “ The greatest difficulty in regard to the construction of this will, is in determining whether the interposition of the heirs is required to prevent a sale or effect it. If it requires them to act in order to cause a sale, then the wife of Stoner could not make any election, being a feme covert; but it is sufficient to exclude it from the rule, that the directions to sell are not explicit and positive ; that the power does depend on the discretion of the heirs or executors; that it is not absolute and irrespective of all contingencies. We therefore say in answer to the defendant’s first point, that this estate cannot be considered as personal for the purposes of distribution, but descended as land.

    “ Henry Stoner had a right to the use of the real estate of his wife during his life, and the same having been sold by the executors, he could lawfully receive the interest of the money during his life, in lieu of the use of the land.
    “ It did not require all the heirs to join in directing or permitting a sale; either one could have elected to take his or her part as money, or had it converted; but that point is unimportant.
    “ 3. There is sufficient privity between Henry Stoner’s administrator and Mrs. Zimmerman’s representatives to sustain this action. The money was received by him to hold during life, in lieu of the land sold, and to go to his daughter after his death. It may have been a mispayment on the part of John Alleman’s executors, and' 'they might be held accountable; but Mrs. Zimmerman is not bound to look to them, but may call on Henry Stoner’s estate. She can recover no more from him than the money he actually received. See 2 Yeates 268, Durdon v. Graskill.'
    “4. Where a person’s lands or goods are improperly sold, as in the present case, the owner may either claim the original article in specie, or waive the tort and go for the money as received for their use; and although an administrator cannot' sue to recover land, yet where it has been converted into money, he may sustain an action of assumpsit for money had and received. The plaintiff is both administrator and heir of his wife, and by the present recovery will preclude all claims to the land hereafter. The defendant, if living, would be estopped from denying the regularity of the sale, if he encouraged and acquiesced in it, and received the proceeds. We are to presume that he received it for the lawful purpose of holding it during his life, as he could have held the land, and for payment over to his daughter on his death. This suit was brought to enforce that duty.
    “The plaintiff is entitled to recover one-thirteenth part of $4743.08, on account of the sale of the homestead farm, with $2.46 received from the land in Ohio, with interest thereon from the 8th August, 1847, the time of Henry Stoner’s death; and cannot recover on account of the Middletown property or on the mispayment to John Alleman’s widow.”
    To this charge the defendant’s counsel excepted.
    Hov. 23, 1852. Verdict for plaintiff for $483.81.
    It was assigned for error: 1. The Court erred in the charge to the jury, in negativing the first point put by defendant’s counsel. 2. The Court erred in not answering the defendant’s second point in the affirmative. 3. The Court erred in saying to the jury: “ Under the. facts proved, you can therefore have but little difficulty in coming to the conclusion, that Henry Stoner received the whole share of money arising from the sale of the homestead farm, and the land in the state of Ohio, after his wife’s death,” &c., there being no evidence before the jury to warrant them in finding a larger sum against Henry Stoner’s estate, than the amount set out in the release, to wit: $107.29. The fourth was with respect to the amount the plaintiff was entitled to recover, if. he was entitled to recover any amount.

      Alriohs, with whom was Kunhel, for plaintiff in error.
    — 1st. As to the first assignment. Land directed to be sold and changed into money for the purpose of distribution, is considered in law, as 'money from the decease of testator: Miller v. Meetch, 8 Barr 425; Stuck v. Mackey, 4 W. & Ser. 196; Beatty v. Byers, 6 Harris 105.
    There is no force in the argument used, that the sale h'ere was conditional and not absolute, for in every case relied upon to support that position, it will be found that there was a prerequisite to the sale, in the nature of a condition precedent, without the performance or happening of which the sale could not take place. But here the children were not required to consent to the sale, nor to do any act before the sale could take place ; they were merely at most permitted to act, and the sale was to take place absolutely, unless the children expressed a wish to have the land proportioned, &c., which they did not do. In the case of Wharton v. Shaw, 3 W. & Ser. 124, the direction to the executors was to sell, convey, or alter the estate — and it was hold that a sale worked a conversion into personalty, which passed to the personal representative, although the power vested in the executors was discretionary.
    2d assignment: Martha Alleman, the wife of Stoner, died after the end of 15 years from the date of the will, and after the executors had a right to sell — and she and the other heirs having expressed no wish to have the land proportioned and valued, it is a fair presumption after so great a lapse of time, that the children agreed to consider the land as personal estate, under the will, for they had a right to take as land or money: Burr v. Sims, 1 Wharton 252.
    3d assignment: The Court submitted, to the jury the fact that Henry Stoner had received the whole share of his wife in her father’s estate — of which there was no evidence; and which was in the face of the plaintiff’s own evidence, as shown by the release. The plaintiff could not legally recover from the estate of a deceased man more than was proved to have come to his hands.
    The remarks as to the fourth assignment referred to the amount which the plaintiff was entitled to recover, if entitled to recover at all.

      Fisher, for defendant in error.
    — The general principle established by the cases is, that to operate a conversion in law of real estate into personalty, under the provisions of a will, the sale must be directed in absolute and unqualified terms, irrespective of contingencies and independent of all discretion: Leigh & Dalzell on Eq. Conversion 15, 5 Law Lib.: Newland on Contracts 54; 2 Kent 230, note; 2 Story’s Eq. sec. 1214; 5 Vesey 388; 8 Id. 227; 1 Hoff. 203; 7 Dana 11; 1 Jarman on Wills 477 ; 1 Harris 260, Nagle’s Appeal; 10 Barr 131, Bleight v. Bank; 9 Watts 145, Henry v. McCloskey. In the case in 1 Baldwin 184, the time of sale was fixed. In this case the sale was not to be made if as many of the children as it would accommodate wished to have it proportioned and valued. In the ease of Wharton v. Shaw, 8 W. & Ser. 124, cited on the part of the plaintiff in error, the power to sell, &c., was unqualified.
    It was contended that Henry Stoner received the l-13th of $4703.08, on account of the sale of the homestead farm.
    July 25,
   The opinion of the Court, filed was delivered by

Knox, J.

— To convert land into money, the direction to sell must be absolute and unconditional. In this case, the sale by the terms of the will depended upon the choice of the widow and children of the testator. In the absence, therefore, of a positive direction to sell, the estate retained its original character as land, and so passed under the will, and by descent to Mrs. Zimmermap, who was entitled to recover the money received for her portion from the representatives of Stoner.

The charge of Judge Pearson contained a full, clear, and correct exposition of the law of the case, and the judgment is affirmed for the reasons therein given.

Judgment affirmed.


source: Caselaw Access Project

author: Knox, J.

license: Public Domain

text:
    McElfatrick versus Hicks.
    1. A purchaser at sheriff’s sale of the husband’s interest in real estate, cannot recover the possession in an ejectment against him alone where the title is in his wife, acquired since the passage of the Act of 11th April 1848 and before the date of the judgment under which the premises were sold. The wife need not become a party to the record — the husband may defend her interest.
    2. The declarations of a grantor as to fraud on Ins part are not evidence against an honest purchaser for an adequate consideration, though they were made before the execution of his conveyance, he having no knowledge of any fraudulent design in the grantor.
    3. A mistake in the computation of interest on bonds which formed the consideration of a deed will not affect its validity.
    Error to the Common. Pleas of Dauphin county.

    This was an action of ejectment to January Term, 1851, for a house and lot in Middletown, by Edward McElfatrick and Samuel Landis v. John Hicks and Henry Schlote. The latter person was a tenant.
    , The property in dispute had been purchased by Landis at sheriff’s sale, as the property of John Hicks, for above $200. Landis received the sheriff’s deed in November, 1850, and by endorsement on it in December, 1850, conveyed the one-fourth part of the premises to McElfatrick, one of the plaintiffs. The premises were sold under a judgment entered on 29th April, 1850, in favor of said McElfatrick v. Hicks, for $1168.05J. At the time of thé levy and sheriff’s sale, Hicks was in possession of the premises.
    In defence, was given in evidence a deed by Hicks and Sarah his wife, to Jonas Metzgar, his father-in-law, dated 21st April, 1849, and acknowledged on the same day, for the alleged consideration of $1750, with receipt .at the foot of it for that amount. Endorsed on it was an assignment by Metzgar and wife to Sarah Hicks, wife of John Hicks and daughter of Jonas Metzgar, dated 25th April, 1849, purporting to be in consideration of $1750, with receipt on it for that amount. Deed and assignment recorded on 22d March, 1850.
    There was also given in evidence a paper signed by the attorney of Sarah Hicks, read at the sheriff’s sale, giving notice of her claim. Evidence was given of a bond by Hicks to Metzgar, dated April 1, .1837, for $700, payable in one year with interest; also of another bond of same to same, dated 1st January, 1846, for $800. It was testified that these two bonds, with the interest on them, were the consideration of the deed; and that a calculation was made as to the amount due on the bonds, and the bonds delivered to Hicks,, before the delivery of the deed.
    On the part of the defence was also given in evidence a bond for $800, dated 25th April, 1849 (same date as the assignment), executed by Sarah Hicks to Jonas Metzgar, with interest at five per cent.; and testimony was given that the difference between the amount of this bond and the $1750, was given by Metzgar to Sarah Hicks as an advancement.

    On the part of plaintiffs, evidence was given of indebtedness, exceeding $6000, by Hicks to different persons, at the time of the execution of the deed to Metzgar. His real and personal estate sold for above $2000.
    Evidence was given of the declarations of Hicks in relation to conveying his property to his wife; and of other declarations of Hicks made after the conveyance to Metzgar, the object of which evidence was to show a design on the part of Hicks in making the conveyance to Metzgar, to prevent his creditors from selling the premises. Evidence was given as to the value of the premises, part of which was in dispute, in April 1849, the estimates ranging from $1750 to $2000.
    On the part of the defence some witnesses testified that, in their opinion, the property was not worth more than $1750, when conveyed by Hicks to Metzgar.
    On the part of the plaintiffs it was contended that the conveyances, under the circumstances of the case, should be regarded as fraudulent. Also that Hicks being in possession of the premises at the time of the rendition of the judgment and of the sale, the plaintiffs were entitled to recover the possession.
    Pearson, J., charged the jury, inter alia, that a debtor in failing'circumstances had a right to prefer a creditor by paying him in full with money, to the exclusion of others, or byselling him property, real or personal, at its full value. That if Metzgar ever intended to give the money to Mrs. 'Hicks he took care to retain the means of compelling the husband to make repayment. That if the bonds were given as they purported, and the interest paid, the money was not absolutely given to Mrs. Hicks, but the repayment could be enforced. The evidence on the subject was referred to the jury.
    He also referred to them the question, whether the sale was bond fide and for full value. That if it were not it could be avoided by creditors. But that a mistake of $23 in the calculation of the amount of the bonds, if honestly made, would not avoid the deed if otherwise valid and bond fide. That the penalty of fraud is the destruction of the instrument — the remedy for the,correction of errors is the payment of the difference.
    He further charged that the declarations of Hicks, tending to show a fraudulent intent on his part, made before the conveyance to Metzgar, if such intent on the part of Hicks existed, were not to weigh against the title of Metzgar, under which the defence Avas made, Xf Metzgar had no knowledge of the improper design of Hieks.

    3. In the instruction as to the right of the wife to defend the possession.
    He further charged that if the claim of the wife of Hicks to the premises as her separate estate under the Act of 1848, under the conveyance of her father, was valid, she was entitled to hold the possession. That it was not the intention of the legislature in passing the Act of 1848 to separate husband and wife, and that the wife was to be permitted to enjoy the benefit of her title consistently with her duty to her husband, by permitting her title to be set up to protect the possession of both. That the same principle which was applied to personal estate in the case of Gamber v. Gamber, 6 Harris. 363, was applicable to real estate; that, therefore, if the title of the Avife were valid, the plaintiffs were not entitled to recover even against her husband.
    May 3, 1853, verdict av¿s rendered for the defendants.
    Error was assigned to the instruction that the declarations of Hicks were not to affect Metzgar if the latter had no knowledge of the improper design of Hicks.
    2. In the instruction as to the error in the amount of the consideration of the deed.

      Fisher, for plaintiff in error.
    — As to the second specification of error was cited the cases of Rogers v. Hall, 4 Watts 359; 5 Barr 478, Kepner v. Burkhart; 3 Barr 242, Moyer v. Schick.
    As to the third assignment. The action was against Hieks and Schlote, his tenant, and the appearance was for them alone. There was no application to have Mrs. Hicks made a party to the record, nor any. suggestion on the record of title in her, nor leave asked to take defence on account of her interest. Where the sheriff’s Yehdee proves that at the time of the levy and sale the debtor was in peaceable possession of tbe premises, evidence of a different independent title will not be received: 2 Yeates 443, Culbertson v. Martin. In ejectment by a purchaser at sheriff’s sale against the defendant in the judgment, the latter cannot set up an outstanding title or right of possession in another: 3 Watts 223, Young v. Algeo. Also cited 3 Barr 275; 1 Id. 201; 14 Ser. & R. 153.

      Kunkel and McQormiek, for defendant in error, the Court did not hear.
    In their printed argument it was observed that, at the date of the bonds to Metzgar, Hicks was solvent. That Hicks had a right to prefer Metzgar. That the debt to Metzgar was an honest one. That there was no direct proof of a knowledge by Metzgar of a dishonest intention on the part of Hicks, and there was nothing in the position or circumstances of Metzgar, in respect to the transaction, from which a knowledge or participation by him in a fraud ought to have been inferred. Metzgar, and Mrs. Hicks claiming under him, if such fraudulent intent were proven against Hicks, would be protected by the last proviso to the statute 13 Elizabeth, viz.: “ That this Act or anything therein contained, shall not extend to any estate or interest in land, &c., had, &e., or thereafter to be had, made, conveyed, or issued, which estate or interest is or shall be, upon good consideration and bond fide, lawfully conveyed or assured to any person, &c., not having, at the time of such conveyance and assurance to them made, any manner of notice or knowledge of such covin, fraud, or collusion as is aforesaid:” Boberts’ Digest 298. A bond fide purchaser is to be protected : 3 Penn. Rep. 166, Mateer v. Hissim.
    As to the third assignment. , The right of possession is in the sheriff’s vendee where the defendant was in possession at the time of the levy in Ms own right. The opinion of Kennedy, J., in Young v. Algeo, 3 Watts 223, referred to. If there be no estoppel where the defendant in the execution is in possession under a right acquired by subsequent contract: 3 Waits 223-4, Young v. Algeo, there is none where he is in possession in right of his wife and in consequence of the marriage. Notice of her claim was given at the time of the sale, and the principle of caveat emptor is applicable.
    By the Act of 11th April, 1848, the property in dispute was the separate estate of the wife. She was in possession, and her estate in it could not be enjoyed consistently with her-duty to her husband, without permitting her-to set it up to protect the possession of both.
    Sept. 25,
   The opinion of the Court, filed was delivered by

Knox, J.

— This was an action of ejectment brought to recover the possession of a house and lot, containing three-fourths of an acre. The plaintiffs claimed under a deed made by the sheriff of Dauphin county, upon a sale on a judgment against Hicks, one of the defendants, and who at one time was the undisputed owner of the property.

The defence relied upon a title in the wife of Hicks to prevent a recovery.

The judgment upon which the sale was made was entered on the 29th April, A. D. 1850. Mrs. Hicks obtained title by a deed from her father, Jonas Metzgar, dated 25th April, 1849, to whom the property was conveyed by Hicks and wife on the 21st of April of the same year.

Upon the trial the plaintiffs contended, 1st, That the sale from Hicks to Metzgar was a fraudulent one. 2d, That even if it was otherwise, the title of Mrs. Hicks could not be used to prevent a recovery against her husband.

The Court below received in evidence the declarations of Hicks made both before and after the conveyance to Metzgar, to show a fraudulent design upon his part; but instructed the jury that they could not weigh against the title of Metzgar, under which defence was made, if he had no knowledge-of the-improper design of Hicks. This instruction is complained of, and is the first error assigned.

The correctness of this portion of the charge depends upon the right of Hicks to defend upon his wife’s title. If it could be used by him to prevent a recovery, it is clear that its validity was to be determined precisely in the same manner as though the conveyance had been made to a stranger; and nothing can be more plain than that the declarations of a grantor are not evidence of fraud, as against an honest purchaser for an adequate consideration, even ■when made before the execution of the contract, and it would be more absurd (if possible) to allow declarations made after the title had passed, to affect its validity. If the plaintiff was right in his position, that the case was to be tried as between himself and Hicks, without regard to Mrs. Hicks’s claim, then the declarations of Hicks, no matter when made, were legitimate evidence, and should have been allowed their proper weight.

This brings us to the question, Whether a purchaser at sheriff’s sale of the husband’s interest in real estate can recover the possession in an action against him, where the title is in the wife, accruing since the passage of the Act of 11th April, A. D. 1848 ?

This question is free from difficulty. The Act protects the wife’s interest, both as to title and possession. The possession of the husband and wife is identical. A recovery against the husband prevents the enjoyment of the estate by the wife. This beneficial legislative enactment would be rendered nearly useless if its construction were that the wife must either turn her husband out of doors or be turned out by his creditors. It was unnecessary that Mrs. Hicks should have been made a formal party to the record. Her husband’s possession and her title were so inseparably connected, that an attack upon the one justified the defence of the other.

This disposes of the first and third assignments of error; and as to the second, it is sufficient to say that the Court below were clearly right in 'charging the jury that a mistaken computation of interest upon the bonds which formed the consideration of the deed, would not effect its validity. This case is free from error, so far as the Court was concerned; and ,with the finding of the jury upon the facts, we have neither the power nor the disposition to interfere.

Judgment affirmed.


author: Black, C. J.

text:
    Light versus Light.
    1. The election by a widow to take under the will of her husband, though not made in the Orphans’ Court agreeably to the 35th section of the Act of 29th March, 1832, is an estoppel against her claiming dower.
    2. Such election was binding on her if she knew the material facts of the case though she did not understand her legal rights, no imposition having been practised towards her and no unfair advantage having been taken of her ignorance of the law, and the consideration not being grossly inadequate.
    3. An error in the amount of the personal estate, neutralized, however, by about an equal increase of the debts, was immaterial as to the effect of her election.
    4. Declarations of the demandant not made at the time of her acceptance under the will and having no connection-with that act, except as referring to the subject, were properly rejected.
    Erro& to the Common Pleas of Lebanon county.

    This was an action _ of dower, by Catharine Light, widow of Joseph Light, v. Henry Light, brought to recover dower in a tract of about 168 acres of land, and in another tract of about 50 acres. It was pleaded that the plaintiff had accepted of certain bequests given her by the will of her husband, in lieu and bar of her dower. Nov. 7th, 1851, verdict in favor of the defendant.

    Joseph Light, the husband of the plaintiff, died on the 4th March, 1850, seised of four improved tracts of laud, containing nearly 600 acres; and of another tract of about 360 acres, partly improved, and of personal estate, amounting to upwards of $10,700. By his will, dated 16th October, 1848, and proven on 8th March, 1850, he bequeathed to his wife two cows, four hogs, together with certain beds and household furniture and kitchen utensils, which she had at the time of her marriage.

      He also devised to her the use and occupation of the east part of’ the dwelling-house during her life; and directed that several sums of money be paid her yearly, amounting to $216 annually ; and in the event 'of her leaving the house, she was to have a house built or leased for her, and she was to receive from one of her sons thirty dollars yearly in addition, which legacies he directed “ to be in lieu and stead of her dower at common law.”
    On the 16th March, 1850, before the inventory of the personal estate was taken, she made her mark to a receipt, in which it was stated that she acknowledged to have received from the executors, devisees in said will, “ all the articles and things devised to her by my said husband,” and, it was added, “ I hereby accept under the said will.” The inventory was taken immediately after-wards.
    It was testified by the person who wrote the receipt in question, that on the 16th March, Í850, before the appraisement was commenced, or whilst the inventory was being taken, the widow called him into another room to ask his advice, and that he told her that she might probably get more if she did not take under the will, but he advised her to accept. That they returned to where the executors were, and she accepted the articles. The witness stated that the value of the personal estate was not ascertained when she signed the receipt.
    A few months afterwards she took away from the house some beds and other furniture, with a cow and two hogs. It was said that other of the personal property, selected by her, was sold by the executors. On the 15th June, 1850, she removed from the house, and never returned to it. She did not receive any of the annuities devised to her, nor was a house built or leased for her.
    Between the 16th and 26th of March, 1850, she consulted counsel, and on the 8d August, 1850, a notice was served on the executors, notifying them that she had concluded not to accept under the will, and would claim her share under the intestate laws.
    It was said that the inventory filed, amounting to $5526, was incorrect, to the extent of $1000, in the amount of a judgment; and that certain stocks, to the amount of $8000, were omitted in it. It appeared that the stock was claimed by one of the executors as belonging to him, as having been purchased for him, or given to him by the testator, but that at the time of the appraisement it was agreed among the heirs that the stocks should be omitted in the inventory, and divided. It was not shown that the widow was present at the time of the dispute about the stock..
    It was testified that she knew of the existence of the bank stock.
    The stocks were afterwards put into an additional inventory, and were valued at $2830, exclusive of any dividends on them.

      It was further stated on her part, that, since the trial of this action of dower, it had appeared that the estate of the testator was entitled to $1402.50, the proceeds of certain land sold by the testator; this sum, with the stocks, &c., enlarging the estate nearly $5500.
    On the part of the plaintiff, various points were proposed: 1. That the election was not binding on the widow, not having been made in the manner stated in the 35th section of the Act of 29th March, 1832.
    2. That to bar her dower, the proof of an election by her must be clear, and that it was made under a full knowledge of the value of the real and personal estate, and of her legal rights respecting the estate.
    3. That the receipt given in evidence was not to be regarded as an act indicating her election, because not read and explained to her in the only language she understood (the German); because she was not then informed of the value of the estate, or the amount of its indebtedness; and that, by law, she was entitled to one-third part of the personal estate absolutely, and to one-third of the net proceeds of the real estate.
    4. That the receipt and her removal of certain portions of the property did not, under the circumstances of the case, bar her claim of dower.
    5. That in equity a' widow will be protected against an improvident election.
    The case was tried before Pearson, J. He charged, inter alia, that if the writing was signed, and articles selected and received under the will by the demandant, with a knowledge of all the facts of the ease, and the nature and extent of her husband’s estate, it was binding on her. That a defect of legal knowledge on her part was not proved, and was not to be presumed. That she was bound to know the law, ignorance of which would not excuse her: 7 Watts 372; 1 Story’s Rq. 111. Before making her election she was entitled to be fully informed as to the situation of the estate, and might have called for such information, and if withheld, she would be entitled to relief in equity. But if she knew as much about the estate as the other heirs — if she had heard of the stock, and knew ,of its amount, and had reason to believe that the debts would nearly or quite exhaust the personal estate, and called for no further information, she would be concluded by the election if the personal effects and the stock would be exhausted in the payment of debts. He further charged, that the election need not be as provided in the Act of 1832; that it may be by parol as well as in writing; and may be evidenced by long acquiescence: 17 Ser. R. 16, Cauffman v. Cauffman.

      To the second point he answered, That if she knew the facts, it was all that was necessary to render her election obligatory.
    To the third point he charged, That the receipt alone would not be binding if not read and explained to her: but if she knew of the condition of the estate, then if the election was made without fraud, concealment, or overreaching on the part of the heirs or executors, it would be binding. That the removal and detention of the goods by her was an act of confirmation, but not conclusive. That the failure to provide a house for her, or to make the payments provided by the will, did not give her any additional right to change her election if fairly made before.
    As to the fifth point, he referred to the jury whether the widow was ignorant or not of the condition of the estate; or whether the situation and value of the stocks or other personal effects was made known to or concealed from her.
    That the inventory first made amounted to $5526; the error in the judgment to about $1000; and the stocks not appraised to nearly $3000, making the personal estate amount to about $9500. That it was in proof, that the debts amounted to between eight and nine thousand dollars, and that it might be reasonably presumed that by the time the estate was settled, the whole personal estate will be exhausted. That the law would not seize upon trivial circumstances to set aside an election. He further observed, that the estate would rent for $1200 per annum. The husband bequeathed to her certain personal property, the use of a house, and $246 charged on his real estate, instead of $400 for rent of the land. He referred to the jury to decide how far she had been injured by the election, and whether it was evidence per se of mis-' take or overreaching.
    Errors were assigned; the first and second of which related to an offer to show her visit to counsel after the election, and of her declarations, in order to show that she did not then understand her legal rights. The Court rejected her declarations; but held that her acts might be shown, in order to rebut any inference from her former acts, as part of the res gesta.

    3. In not answering the first point affirmatively.

    4. In the answer to the second point.
    5. In their answer to the third and fourth points, and in the instruction as to her ignorance of the law.
    6. In the answer to the fifth point.
    7. In the instruction as to the error in the amount of the judgment, and the omission of the value of the stocks, &c.; and to the instructions in connection with the rents.

      Fisher, for the plaintiff in error.
    — It was contended that the act of consulting counsel and her declarations were evidence as res gesta.

    The first point was predicated upon the 35th section of the Act of 29th March, 1832, the 11th section of the Act of 11th April, 1848, and the 5th section of the Act of 14th April, 1851. Since the passage of these Acts, it has not been decided, in any reported case, that an election in pais would be binding upon a widow.
    As to the fourth assignment, it was contended that an election, to bar dower, should be made with a knowledge of the widow’s legal rights: 2 Yeates 302; 1 Vesey Jr. 335; 1 Id. 171; 2 Id. 367, 370 ; 12 Pick. 145-150 ; 2 Story’s-Eq. 1097; 3 Bro. Ch. 255.
    As to the 3d and 4th points was cited 1 Dallas 415. That the receipt of certain portions of the personal property devised, did not amount to an acquiescence in the will, were cited 20 Pick. 556, 561 — 2; 1 Vesey Jr. 335; Id. 561 — 2; 17 Ser. & R. 25; Cases in Ch. 181.
    That a widow is not bound to make her election till the circumstances of the estate are known: 12 Vesey 136; 1 Brown Ch. 445.

      TJlriek and Bunch, for defendant,
    the Court declined to hear. In their argument on the. subject of ignorance of the law, reference was made to Melizet’s Appeal, 5 Harris 449; Broom’s Legal Maxims 122; 7 Watts 372; 1 Harris 371; 2 Barr 105; 7 W. & Ser. 253; 2 Barr 109; 3 Barr 109, 371.
    On the subject of election, reference was made to 4 Kent 57; 2 Penna. Rep. 322; 3 Yeates 79; 2 Id. 389, 400; Addison 350; 17 Ser. & R. 12, Cauffman v. Cauffman; 8 Barr 199; 9 Barr 460.
    July 25,
   The opinion of the Court, filed was delivered by

Black, C. J.

— This was an action for dower, to which the defendant pleaded that the husband of the demandant had by his last will bequeathed to her certain legacies which she had accepted in lieu of her dower.

By the will she was entitled to several annuities to be paid by the children and devisees of the testator ; to a house for her dwelling-place, and to certain articles of personal property; and the testator declared that this provision for his wife should be in lieu and stead of her dower at common law. The goods bequeathed were taken by her when the appraisement was made, and she then signed a paper acknowledging the receipt of all the articles and things devised,” and declaring that she did accept under the will.

The Court charged, (1.) that the election of the demandant to take under the will, though it was not made in the Orphans’ Court agreeably to the statute, estopped her from claiming dower ; (2.) that it jvas binding if she knew the material facts though she did not understand her legal rights; and (3.) that ignorance of certain assets would not entitle her to relief if she was also ignorant of debts to an equal amount.

1. The ruling on the first point here mentioned was in accordance with Cauffman v. Cauffman (17 Ser. & R. 16). Since the decision in that case the point has not been considered open to dispute. A rule of law that has been acquiesced in for more than a quarter of a century, ought to remain undisturbed, and will remain so unless the legislature see fit to change it. The passage of the Act of 1832, without any express enactment on the point settled in Cauffman v. Cauffman, may be taken as a statutory confirmation of it, since, if they had disapproved it when they were revising the system, they would have said so.

2. Every one is conclusively presumed to know the law. Without this presumption no law could be executed. Those who desire to violate it could easily misunderstand it, and ignorance could be feigned where it does not exist. If contracts were binding only on those who know what construction the Courts would put on them, very few would stand. No system of jurisprudence could be administered for a year on this principle without falling to pieces. All codés therefore have adopted the maxim “ Ignorantia legis neminem excusat.” I speak of a mere4 mistake, and not of misapprehension induced by the fraudulent acts of others. Where the party who commits an error of this kind is led into it by his adversary, who afterwards seeks to have the advantage of it, equity may give relief. So also the rule must be understood as referring to a naked mistake of pure law. In some of the books, “ knowledge of one’s legal rights” is a phrase used to express that degree of information upon both fact and law which enables a party to judge how far a demand can be enforced by him or against him. The relief which equity gives for such ignorance of legal rights is based on the mistake of fact. Again: the contract cannot be enforced by one who has wilfully, knowingly, and fraudulently abused the ignorance of the other party. If a widow who is acquainted with all the facts, but is wholly unaware that by law she has a right of dower, is induced by one who knows the law and at the same time knows her ignorance of it, to release or assign it for a totally inadequate consideration, she ought to be relieved. But where the error is her own, and no imposition has been practised, nor any fraudulent advantage taken, her acts done under the influence of it are as binding upon her as if she knew the law perfectly. It is not pretended in this case that the demandant’s mistake of the law (if she made one) was caused by the defendant or by the executors of her husband, or by any person interested in the estate; nor is it asserted that they had any more knowledge of the subject than she had. That she was not ignorant of any material fact, is conclusively established by the verdict.

3. It appeared that there was an error in the inventory. The debts also turned out to be larger than was supposed, by an amount about equal to the mistake in the "appraisement. The Court said that if she was ignorant of both these facts, she was not materially injured. This was not wrong. The material fact which it was necessary for her to know, was the amount that would be left for distribution after payment of debts and expenses. It was the final result that she was interested in, not the process of calculation by which it was reached. If in truth the personal property was worth ten thousand dollars, and the claims against the estate were equal to that sum, the mistake of supposing that the assets and debts each -amounted to seven thousand dollars, was one of no importance, and could not have influenced her decision to take under the will.

Evidence of the demandant’s declarations, not made at the time she accepted under the will, and having no connection with that act, except that they referred to the subject, was properly rejected.

Judgment affirmed.


text:
    Berks County versus Jones.
    1. In a case stated the kind of action should be stated, and the cause of action.
    2. Amicable actions or cases stated should be for the decision of real disputes, and not of merely colorable disputes suggested in order to have'the law in the case stated ascertained.
    3. There being nothing stated in the case on which a judgment could be entered, the writ of error was quashed.
    4. A testator bequeathed to his son J. H. §2000, which it was provided was to remain a lien on the testator’s real estate, and out of which the said J. II. was to receive “ the yearly interest during his lifetime;” and after his decease, the said §2000 were to be paid over to his two sons Samuel B. and Thomas B., or to the survivor thereof; or if they should die under age or without lawful issue, the money was to “ fall back" to the other children of the testator or their heirs. Held, that the annual interest was not taxable for state and county purposes in addition to the tax imposed on the land on which it was charged; the said annual payment not being included in the terms of the 1st section of the Act of 22d April, 1846, being an Act to provide for the reduction of the public debt.
    Error to tbe Common Pleas of Berks county.

    This was an amicable action entered in tbe Court of Common Pleas of Berks county, and case stated for the opinion of the Court.
    The case was stated as follows:—

      The Comity of Berks 1 In the Court of Common Pleas of Berks v. V county. Of January Term, 1853, No. John H. Jones. j 48.
    And now, to wit, December 10, 1852, it is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the Court, in the nature of a special verdict.
    John II. Jones, the above defendant, is a son of Samuel Jones, late of Lower Heidelberg township, Berks county, who made a will, which was proved January 5, Í850, in which, among other things, he devised as follows, viz.: “ I make known that my son, John H. Jones, has already received $9312.00, which has been to him advanced, and I now bequeath to him the further sum of two thousand dollars, which, however, is to remain as a lien on my real estate in Lower Heidelberg township, Berks county, and out of which my son, John H. Jones, is to receive the yearly interest during his lifetime, and after his decease I order that the said two thousand dollars shall be paid over to his two sons, Samuel B. Jones and Thomas B. Jones, or to the survivor thereof; or if they should die' under age or without lawful issue, then my will is that the money shall fall back to my other children or their heirs.”
    The interest of the said John H. Jones, in the above sum of two thousand dollars, is taxed against the said John II. Jones, by the commissioners of Berks county, at the rate of two mills for county and three mills for state; or ten dollars for state and county purposes, each and every year.
    If the Court be of opinion that it is thus taxable, then judgment to be entered for the plaintiff; but if it is not, then judgment to be entered for the defendant; the costs to follow the judgment, and either party to have the right to sue out a writ of error thereon. Signed by counsel.
    It was contended by the plaintiffs that this sum of two thousand dollars was taxable against the defendant, under the first section of the Act of Assembly, passed 22d April, 1846.
    The defendant denied his liability to pay said taxes, on the ground that the interest of said two thonsand dollars payable to him for life was an annuity, and being under two hundred dollars, was therefore not taxable under the Act of 1846.
    The first section of the Act of 22d April, 1846, inter alia, imposes a tax on all annuities over two hundred dollars, except those granted by this Commonwealth or by the United States, and upon all property real or personal (not taxed under existing laws), held, owned, used, or invested by any person, company, or corporation, in trust for the use, benefit, or advantage of any other person, company, or corporation, excepting always such property as shall be held in trust for religious purposes,” &c.

      Jones, J., was of opinion that this was an annuity, and being under $200 that it was not taxable. His opinion was, in part, as follows:—
    A writ of annuity lieth “where a man granteth unto another a yearly rent for life, or for years, or in fee out of his lands, or out of his coffers, or to receive from his person yearly at a certain day.” If out of land with a clause of distress, then the annuitant may have recourse either to distress, which would make it a rent-charge, or to a writ of annuity. * * An annuity may be
    created by deed or by will. Where an annuity is charged upon lands of the testator by his will, an action of debt will lie in favor of the legatee to recover it, from those who have succeeded to the lands or become pernors of its profits: 1 Saunders 282, cited in Long v. Long, 1 Watts 267. Since the Orphans’ Court Act of 1834, sec. 59, the remedy may be by bill: 9 Watts 19; Id. 60.
    Annuities bear an affinity to rents. A rent consists in a right to a periodical receipt of money in respect of lands. Other rights to periodical payments are mere annuities. In this case, the payment of $120 annually by the devisee, is not in respect of the lands which he holds under the will, but is in respect of a charge of $2000 fastened upon those lands. It is interest of so much purchase-money, not rent of land. It is a right to a periodical payment secured by being charged on land; and not being a rent is an annuity. In this case the whole land of the devisee is subject to taxation,- without abatement pro tanto as to this charge. He observed that this, however, was an unjust feature in our system of taxation. In the case of Spangler v. York County, 1 Karris 322, the fund was to be invested for the use of the widow. But in this case there is simply a suspension of payment of part of the purchase-money, the whole subject devised to the devisee being security for its payment. The devisee holds nothing in trust. It is like a mortgage on his land, of which he is presently to pay interest, and at a future day the principal.
    He considered the interest of the defendant was rather that of an annuitant than of a cestui que trust, and as an annuity the interest annually accruing, being less than $200, was not taxable for state or county purposes under the Act of 1846.
    April 11, 1853, judgment was entered for the defendant.

    In this Court objection was made on part of the defendant in error, that there was no sum stated in the agreement for which judgment was to be entered. The case stated was amended by inserting the sum of ten dollars.
    Young, for plaintiff in error.
    — It was contended that the bequest was not an annuity, which is defined in Co. Lit. 14 b, to be “ an annual duty charged on the person of the grantor only: Bao. Abri “Annuity." In Winter v. Mouseley, 2 B. & A. 802, an annuity can be only where the principal is irrecoverably gone: also 1 Harris 326.
    It was further contended that the bequest in question was within the other part of the first section of the Act of 1846, the sum of $2000 having been invested for the use or benefit of John H. Jones: 1 Harris 326. If taxable for state, it is taxable for county purposes: 9 Barr 359; 1 Harris 322.

      Swartz, for defendant.
    — The question whether this is an annuity, depends on the construction of the will. That it was an annuity, reference was made to 18 Pieicering 127, Sweet v. Boston. In this case the principal sum named cannot go to the annuitant, nor be subject to his control. The effect of the devise was to give John an annuity equal to thé interest on $2000, and at his death $2000 to his children: 15 Pick. 382, Grey v. Boston. Being under $200 per annum, it is not taxable under the Act of 1846.
    July 25,
   The opinion of the Court, filed was delivered by

Black, C. J.

— This is a question on the liability of a certain fund to be taxed for county and state purposes. The point is so clearly stated by the Judge of the Common Pleas, that any attempt to make it plain would be wasting word3.

The only trouble about it is, that there is nothing in the record from which it appears to be a real case. It is said to be a case stated in the nature of a special verdict; but a special verdict like this would hardly be given by any jury. It states no cause of action whatever. We have repeatedly declared that whatever is not set forth in a special verdict shall be taken not to exist. This being the undoubted and undisputed law of the land, what judgment could we give for the plaintiff, if our opinion should differ from the Court below ? Whether the action is debt, assumpsit, or trespass, does not appear. Nor is it stated that the defendant is in debt to, or committed any injury against, the plaintiff. Let the law be as it may on the point argued, there is just as much reason why judgment should be in favor of one party as the other.

Without a doubt the object of the proceeding was not to settle a real dispute, but merely to ascertain the law : in other words, to make the Court act as counsel for the commissioners. But they have no right to get their advice in this way. Courts ought to encourage amicable submissions of real disputes, but people have no right to propound abstract questions to them. For this there is not only the clearest reason, but the highest authority. In Lord v. Veazle, (8 Howard 255), Chief Justice Taney says: “Any attempt by a mere colorable dispute to obtain the opinion of the Court upon a question of law, which the party desires to know, for his own interest or his own purposes, where there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which Courts of justice have always reprehended as a punishable contempt of Court.”

The Judge of the Common Pleas, over indulgent to the parties, decided the law for them, when he might have stricken the case from the record. With an easy good-nature, equally inexcusable, we have done the same thing. We have considered the subject with as much care as if it had .been regularly before us, and we unanimously agree in pronouncing the opinion of the Court below to be a perfectly sound exposition of the law.

But because there was nothing on which a judgment could be entered, the writ of error must be quashed.

Writ quashed.

Lewis, J., was opposed to giving any opinion in the case.


text:
    McDowell versus Oyer.
    1. In an action of assumpsit, the common counts for work and labor, money paid, &e., may be joined with a special count in which damages are demanded for the non-conveyance of a piece of land in pursuance of a parol contract, in consideration of service rendered by the plaintiff.
    2. To such a declaration the plea of not guilty is inapplicable.
    3. This Court will not reverse on account of an allegation by the Court in the charge as to the extent to which the claim of the plaintiff was denied, the evidence on the subject being contradictory or not in harmony, and having been submitted to the jury. The jurisdiction of this Court extends to the correction of only legal errors.
    4. Where no points have been submitted, the statement by the Court of the counsel’s course of argument, must be taken as true, it being the only evidence on the subject which the record affords.
    5. In an action of assumpsit to recover damages for a neglect or refusal to convey a piece of land in consideration of the plaintiff’s services rendered in pursuance of a parol or verbal contract, it was Held, that the plaintiff may recover the value of_ the land which the other contracting party had promised to convey.
    6. The verdict may exceed the value of the land by proof of misconduct in the vendor, (as where he might have made title but did not) or of special injury to the vendee resulting from the failure to convey.
    7. Our statute of frauds does not prohibit a recovery of damages in such an action.
    8. As to the doctrine or principle of stare decisis, see the opinion in this case.
    Error to the Common Pleas of Franklin county.

    This was an action on the case on promises, brought to October Term, 1851, by Jacob Oyer v. John M. McDowell, administrator of the estate of Jacob Myers, deceased.
    The declaration contained a special count, in which it was alleged that, in the year 1847, in consideration that the plaintiff would not remove to the west, but would remain in the county of Franklin, and farm the place of Jacob Myers, and attend to his business generally, as long as Myers should live, that Myers undertook and' promised the plaintiff that Myers would give him a tract of land, situate in Montgomery township, in said county adjoining lands, &c., and a small lot which the said Myers had before that time given to the plaintiff and of which the plaintiff was in possession, containing about fifteen acres, and would make him a deed for both of said tracts of land, as well the one of which the said plaintiff was possessed as of the tract he then and there promised to give him.
    It was further alleged that Myers promised to build for the plaintiff an addition to the house which was erected on the piece of land of which the plaintiff was in possession, and dig a well for him, and pay for these improvements. It was alleged that the plaintiff remained and farmed the place, &c., till the death of Myers, a period of about three years and a half. It was averred that the land had not been conveyed, nor an addition to the house built; nor the well dug and the improvements paid for; to the damage of the plaintiff $2000.
    The declaration also contained counts for goods sold and delivered, work done, &c., concluding to the damage of the plaintiff to the same amount.
    A bill of particulars and statement of the cause of action was furnished, in which it was stated that the plaintiff sought to reco • ver the book accounts sworn to, and also a balance due on a settlement between the plaintiff and Myers, which appears on Myers’ books, and which was made in April, 1850. Also for services in managing and conducting Myers’ business for three years and a half before his death, under the following circumstances: The plaintiff, some time in 1847, was about to remove to the west. Myers insisted on his staying in Franklin county, and farming his place, and attending to his business generally, and told him that he, the plaintiff, held the small house he lived in, the title he had already and, the possession ; and that he would give him some twelve or fifteen acres adjoining the house and lot he had already given him, and that he would make him a deed for the whole; that he would build an addition to the house, and dig a well, and pay for these improvements, if the said Oyer would stay, &c. An account was stated for work done, &c., and for money paid, stating a balance of above $50.
    The plea was Not guilty. In the counter statement it was alleged that the defendant refused to put in any other plea.
    No point was submitted on part of the defendant.

      Kimmele, President Judge, inter alia, charged, viz.:
    “ If you are satisfied, from the evidence, that the intestate, in his lifetime, made a parol agreement with Oyer that if Oyer would not remove to the west, hut remain in Franklin county, and attend to intestate’s business during his lifetime, that he would give him the Wyand house, with a certain number of acres attached thereto —that Oyer remained and fulfilled his part of the contract, and that intestate made no provision before his death to secure the property to Oyer, then you ought to allow Oyer the value of the land as a compensation for his services; .that being the price fixed upon by the parties as the value of the services rendered.
    “ That there was such a contract is but faintly denied by defendant, but he contends that if there was such an agreement as is alleged here, that the house called the Wyand property, with the ground enclosed, about half an acre, was all that was spoken of by intestate. The evidence on this point is somewhat contradictory. Some of the witnesses speak of the Wyand house without mentioning any number of acres; others of six acres and some perches, whilst others, again, say that the intestate spoke of fourteen or more acres.
    “ You will determine, from the evidence, how many acres were contracted to be given by the intestate to Oyer,’ and the value thereof, and that amount, together with so much of the book account as you shall find due and unpaid, -will be your verdict.
    “Something has been said of a settlement between the intestate and the plaintiff. If there is any evidence to satisfy you that the plaintiff’s claim has been settled for and paid, then he cannot recover.”
    Verdict was rendered for the plaintiff for $1165. The amount was subsequently reduced to $1000, and judgment was entered for that amount.
    It was assigned for error: 1. That the Court erred in admitting in evidence the plaintiff’s book account. 2d. In instructing the jury “ that there was such a contract is faintly denied by the defendant.” 3d. In saying to the jury: “ You will determine from the evidence how many acres were contracted to be given by the intestate to Oyer, and the value thereof, and that amount, together with so much of the hook account as you shall find due and unpaid, will be your verdict.”

      MeLellan and Oornyn, for plaintiff in error.
    It was said that the action being trespass on the case for the non-performance of the parol contract in question, and sounding in damages, the general issue was not guilty, denying the wrongful acts or omissions alleged in the declaration: Stevens on Pleading
      159-160; 1 Ohitty 147-8; 1 Saund. 131. That this plea did not put the book account in issue. That the causes of action in this case could not be joined, reference was made to 5 Harris 495.
    As to the second assignment, it was observed that the instruction was calculated to mislead the jury.
    3. It was alleged that, under the contract in dispute, the land could not have been recovered as possession was not taken in pursuance of the contract, the boundaries not marked, and the evidence as to the contract uncertain as to the quantity of land. That to enable the party to recover the value of the land, would be equivalent to a recovery of the land itself. The value of the land should not be recovered without regard to the amount of labor performed. It was contended that the measure of damages in a case of this character, should be a fair and reasonable compensation for the labor actually performed.
    On the part of the plaintiff in the suit, reliance was placed on the declarations of the party. This, it was alleged, was a dangerous species of testimony on account of the facility with which it may be fabricated, and the difficulty of contradicting it, and its liability to mistake. It was alleged that the value of the service rendered should be the rule. It was said that the weight of decision was against considering the value of the land as the measure of damages: 17 Maine Rep. 296; 9 New Hamp. 298; 5 Id. 133; 1 Fairf. 81; 1 Vermont 69; 1 Binn. 454; Ewing v. Tees, 8 Barr 197; Hastings v. Eckley’s Administrators, opinion of Woodward, J., in the Common Pleas. In Jack v. McKee, 9 Barr 239, the contract was to give a specified farm containing an ascertained quantity of land (100 acres). It was alleged that, in the present case, the evidence as to the quantity of land was of an uncertain character. The Troutman property, referred to by some of the witnesses, contained six acres and some perches. The property occupied by Wyand, which was spoken of by other witnesses as the property meant, contained one or two acres testified to be worth $150 or $200. Other witnesses testified to a declaration as to fourteen acres.

      Reilly, for defendant.
    — It was alleged that the declaration being in trespass on the case upon promises, the plea of not guilty was a nullity and denied none of the allegations in the declaration.
    This was not an action to recover damages for the non-performance of a parol contract, for the purchase of land ; but on a contract for services to be paid for in land, and was brought to recover the value of such services on a breach of that contract. In Jack v. McKee, 9 Barr, the same kind of action was brought, the same kind of declaration filed, and there was the same joinder of counts. So in Bash v. Bash, Id. 260. In the case of Gangwer
      v. Ery, 5 Harris 495, it is not decided that in an action to recover compensation for services, and also to recover for work done and money paid, as in this case, an account for work done and money paid cannot be admitted in evidence.
    3. The statute of frauds applies only to a parol contract for the sale of land. This was an action on a contract for services to he paid for in land. In Jack v. McKee, 9 Barr 235, it was decided that such a contract was not within the statute of frauds. That the value of the land was the measure of damages, reference'was made to Kelly v. Foster, 2 Bin. 6-7; Rohr v. Kindt, 3 W. & Ser. 563; Jack v. McKee, 9 Barr; and Bash v. Bash, Id. 260.
    July 25,
   The opinion of the Court was delivered, by

Black, C. J.

— This was assumpsit. The plaintiff proved (or produced evidence tending to prove) that there was a contract between him and the defendant’s intestate, by which he (the plaintiff) was to serve Myers as his agent and the manager of his business, until his (Myers’) death; that for this service Myers was to give him a certain piece of land; that the service was rendered accordingly, but Myers died without conveying the land, and without making any provision for carrying his part of the contract into effect. The plaintiff also had a book account for blacksmith’s work.

The declaration contained the common counts, and a special count averring the contract above mentioned, performance by the plaintiff, and a breach by the other party.

The three errors assigned are, (1), that the book account was improperly admitted in evidence; (2), that in the charge the jury were told that the contract was faintly denied; and (3), that they were erroneously instructed to regard the value of the land as the measure of damages. ... v'\ , -

.-1. All the counts in this declaration are in assumpsit. , The cause of action on the contract could not have been set out in any other form. It is entirely too late in the day to deny that the common counts for work and labor may be joined with a special count. The plea of not guilty to a declaration in assumpsit is barbarous, and if the plaintiff had demurred, the judgment must have been for him. The best we can do for the defendant is to suppose that he has pleaded a proper plea. Assuming thus much in his favor, the admission of the book account wras perfectly right.

IL Nine witnesses testify to the- declarations of Myers, that Oyer had given up his intention of moving to the west, to stay with him, and attend to his business, in consideration of his promise to give him a piece of land. He did not state the bargain with equal distinctness to all the witnesses, and in some of the conversations he seems to have referred to one tract, and in others to a different one. The judge said that the defendant denied faintly the fact of there being such a contract, and contended that if there was any contract at all, it related to the least valuable of the tracts; and on this subject the evidence being contradictory, it was submitted to the jury to say.what land was designated in the contract.

I cannot see how we are expected to treat this as an error fatal to the judgment. If this remark of the Court were demonstrated to be a mistake — if it were proved to our entire satisfaction that the contract was denied not faintly, but loudly — we could not reverse on that account; for it concerns no matter of law, and our jurisdiction does not extend to the correction of any but legal errors. Besides, when there are no written points submitted, the statement by the Court' óf the counsel’s line of argument must be conclusively taken as true, that being the only evidence on the subject which the record affords. In addition to this, we'think there was no just ground on which an absolute and total denial of the contract could be safely rested. That there was some contract: like the one alleged was very clearly proved. If, therefore, the Court had said that it was not denied at all, it would be but justice to the candor of the defendant and his counsel to believe the statement.

III. _ The main question in the cause is, whether the right rule was adopted for assessing the damages. The Court charged that the measure of compensation for the plaintiff’s service was the value of the land which the other party had promised to give for it.

This case is in every word and circumstance precisely like Jack v. McKee (9 Barr 235), in which this Court unanimously decided that one who gives his personal services on a contract to be paid in land, is entitled, if he does not get the land, to get its value. The same thing was held in Bash v. Bash (9 Barr 260). It had been previously established as the law of New York, in Burlingame v. Burlingame (7 Cow. 92), and a point nearly akin to it was settled here in Rohr v. Kindt (3 W. & Ser. 568). These decisions did but embody and stamp with the impress of judicial authority the almost universal opinion of the legal profession, and the innate sense of right which pervaded the popular mind. Although such cases must have arisen very often, the two taken up in 1848 from Westmoreland, were the first that reached this Court. To my certain knowledge, the same rule had many times before that been acted on and sustained by the Courts of Common Pleas, and no question made, of its correctness, though it stood in the way of being challenged by some of the ablest lawyers in the western part, of the state.

The judgment we are about to give might well be rested on the mere authority of the cases I have cited. When a point has been solemnly ruled by the tribunal of .the last resort, after full argument and with the assent of all the judges, we have the highest evidence which can be produced in favor of the unwritten-law. •

It is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that stare decisis is itself a principle of great magnitude and importance. It is absolutely necessary to the formation and permanence of any system of jurisprudence. Without it we may fairly be said to have no law; for law is a fixed and established rule, not depending in the slightest degree on the caprice of those who may happen to administer it. I take it that the adjudications of this Court, when they are free from absurdity, not mischievous in practice, and consistent with one another, are the law of the land. It is this law which we are bound to execute, and not any “higher law,” manufactured for each special occasion out of our own private feelings and opinions. If it be wrong, the government has a department whose duty it is to amend it, and the responsibility is not in any wise thrown upon the judiciary. The inferior tribunals follow our decisions, and the people conform to them because they-take it for granted that what we have said once we will say again. There being no superior power to define the law for us as we define it for others, we ought to be a law unto ourselves. If we are not, we are without a standard altogether. The uncertainty of the law— an uncertainty inseparable from the nature of the science — is a great evil at best, and we would aggravate it terribly if we could be blown about by every wind of doctrine, holding for true to-day what we repudiate as false to-morrow.

,Of course I am not saying that we must consecrate the mere blunders of those who wenfc-before us, and stumble every time we come to the place where they have stumbled. A palpable mistake, violating justice, reason, and law, must be corrected, no matter by whom it may have been made. There are cases in our books which bear such marks of haste and inattention, that they demand reconsideration. There are some which must be disregarded, because they cannot be reconciled with others. There are old decisions of which the authority has become obsolete, by a total alteration in the circumstances of the country and the progress of opinion. Témpora mutantur. We change with the change of the times, as necessarily as we move with the motion of the earth. But in ordinary cases, to set up our mere notions above the principles which the country has been acting upon as settled and established, is to make ourselves not the ministers and agents of the law, but the masters of the law and the tyrants of the people.

The authorities on the question now before us, are not open to any of the objections which would justify us in setting them aside. They belong to no class of cases which we have thepotver to overturn, even if the rule they established did not meet our approbation on original grounds.

Bht nothing can be clearer than its justice; and no reasoning can be simpler than that which demonstrates every other to be wrong. It is not denied — it never has been — that one who gives his labor in consideration of a promise that he shall be paid in land, may maintain an action on the contract. Neither is it pretended, on the other hand, that he can recover more than the value of his services. But what is their value ? No human being but the parties themselves can tell how much of sacrifice it cost the one to render them, nor what sum of comfort, convenience, and profit, they brought 'to the other. But they, knowing their own business as nobody else could know it, put an equal value upon the land and the services. They measured the latter by the former, and when we ascertain the value of the one we know how much the other was worth according to the stipulation made by those who alone had a right to determine it.

To hold that a man may make a contract to pay for labor at a certain price, whether the price be expressed in acres or in dollars, and afterwards pay for it at a less price if he pleases, is to offer a premium for fraud. It is absolutely necessary to the preservation of common morality, that every bargain should be so enforced that neither party can gain by breaking it, or lose by performing it. The law enlists the- selfishness of men on the side of virtue, by making it the interest of all to be honest.

So conscious were the defendant’s counsel of the great wrong which would be inflicted by totally striking down the standard furnished by the contract, that they admitted it might be resorted to as a measure of the damages, but not as the measure. If it be not the exclusive measure, it must be disregarded altogether. If it be but one of many standards, then there is no standard at all, or as good as none. The jury are without a rule when they have their choice between different rules.

It is argued that because the statute of frauds declares that no estate in lands shall be created except by writing, and because this was a parol contract, therefore the jury must not value the plaintiff’s labor as it was valued by himself and his employer, but put a price on it different from that which was agreed to. A more perfect non sequitur than this would be hard to find. The plaintiff does not propose to create a title to the land. He is not claiming a conveyance, nor seeking to get possession of it. He is simply demanding his wages.

But then it is said, if the value of the land can be recovered on parol evidence, it is no better than taking the land itself; the temptation to perjury being all the same. The statute does not regard the amount in controversy, but the nature of the action. If it does not touch the title, no kind-of evidence is forbidden. The right to money or personal property worth millions may be established by parol, but land, however worthless, cannot pass without writing.

Again, say the defendant’s counsel, the land may be sold on this judgment, the plaintiff may buy it, and thus get a title in defiance of the statute. This argument, like that last noticed, proves too much. It would be equally good against the admission of parol evidence in all cases. Many thousands of men have had judgments rendered against them on contracts not reduced to writing, and large enough in amount to sell their lands, without dreaming that the statute of frauds would be a legal defence. If the plaintiff gets a sheriff’s or an administrator’s deed for the land, he will not hold it by parol.

If we regard this in the light of a contract for the purchase of land, still the statute of frauds does in no wise forbid the recovery of full compensatory damages. The fourth section of the English statute, which declares that an action shall not be maintained on a parol contract for the sale of real estate, was left out from our transcript of it. Its principle never was adopted here: (4 Ball. 152). The omission was not accidental. The legislature could have meant nothing else by it than to leave such contracts upon the footing which they would have had, if the act had never been passed. And so this Court- and all the Courts in the Commonwealth have uniformly held, from the -case of Ewing v. Tees (1 Binney 450) to the present time. It is true that the vendor cannot recover the purchase-money in an action on the parol agreement (1 W. & Ser. 554), for the very obvious reason that such a recovery would be equivalent to a decree of specific performance against the vendee; and as the vendor is not bound to perform it, neither is the purchaser, because the obligation to perform can only exist when it is mutual. But though it be true that no estate can be acquired by parol, and therefore no specific performance can be enforced by either party, it is equally true, and all the decisions show it, from first to last, that if the vendee sues for damages, he has precisely the same standing in Court that he would have if the contract was in writing.- The statute of frauds, therefore, has absolutely nothing to do with the subject.

There being no distinction between a written and a parol contract in an action for the breach of it, and no reason existing why any such distinction should be taken, what is a vendee entitled to recover who has performed his part of the contract against a vendor who refuses without reason to his ? There can be but one answer to this. He can recover as much as will make him whole; as much as will compensate him for the injury which the other party has committed against him, in refusing to do what he promised. This can never be determined without reference to the value of the land. That measure is always the mi?iimum standard of damages, and the verdict may he swelled beyond it by proof of misconduct in the vendor, or special injury resulting to the vendee from the loss of the bargain. There are different ways of getting at the same thing. When the price is agreed on in numero, the land is primd facie taken to be worth as much as the money which was to be given for it. In an ordinary case, therefore, the vendee is compensated by recovering back so much of the purchase-money as he has paid; or by nominal damages if he has paid nothing. But he may prove that it rose in value after the contract, or that it was worth more at the time of the contract than he agreed to give (1 Jones 127), and if he does so the vendor must respond for the difference. See Hopkins v. Lee (6 Wheaton 109). When the price is not fixed by the parties, as where it is to be paid for in work or in some service which cannot be accurately appreciated, there is no mode of ascertaining how much the vendee has lost, but by looking at the value of the land; and no means of righting his wrong when he has performed his part, hut by giving him damages to that amount. I speak of cases in which the vendor might make a title, and does not. Where he is not able to comply with his contract, and is guilty of no default nor bad faith, he is not obliged to pay the vendee for the loss of his bargain.

In this case the title to the land was in the vendor, and he might have conveyed it, agreeably to his contract, if ho had chosen to do so. But he kept it, and it has descended to his heirs to enrich them at the expense of a stranger. The plaintiff bought it by a fair and honest bargain not forbidden by any law, and paid for it with services which the owner accepted as a full equivalent. We cannot see the shade of a reason for saying that the plain justice which was done below shall be denied here.

Judgment affirmed.

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