author: Lowrie, J.

text:
    Kauffelt versus Moderwell.
    1. The right to command the services and receive the wages of a minor son being in the father, when he makes a contract for them there is no ground for presuming that he is acting as agent for his son, or that the other party knows it; and therefore the law does not presume it.
    2. Where a father makes a contract for the services of his minor son, without giving notice that the wages are to be paid to the son, the right of action for the wages belongs to the father.
    Error to the Common Pleas of Lancaster county.

    This was an action on the case by S, S. Moderwell, a minor, by his next friend John Moderwell, v. Henry Kauffelt, for service rendered as a clerk in a transportation house, in which A. P. Moderwell and Kauffelt, the defendant, were at the time partners. In the articles of partnership Kauffelt engaged to furnish at his expense, the services of a competent cleric as assistant. It was alleged on the part of the minor that he rendered the service not for the firm, hut for Kauffelt. The father was examined on the part of the plaintiff, under exception, and he testified that he made no claim to his son’s wages. That he told his son before he commenced the service, that all he earned should be his own. He said he never told this to Kauffelt; that Kauffelt told him to tell his son to come there. He said there was no agreement as to wages. He said the partnership was dissolved.
    He further stated, that Kauffelt was willing to allow the account of the plaintiff, but he wanted it taken out of his father’s account, who was indebted to the firm.
    Lon&, J., charged the jury that the ignorance of the defendant of the promise of the father to the son, that all he made in the employment should be his own, did not prevent the plaintiff from maintaining the suit. He referred to the jury the question as to whether a contract existed between the son and the defendant.
    August 25, 1852, verdict was rendered for the plaintiff for |255.
    Error was assigned, 1. In admitting the father as a witness: 2. In instructing the jury that the ignorance of the defendant of the agreement by the father with his son, to relinquish to his son his claim to his services, would not prevent the plaintiff from maintaining his suit: 3. In referring to the jury the fact whether a contract was made by the plaintiff with the partnership or with the defendant alone; it being alleged that the only express contract proved was with the father, and that there was no evidence in the case from which a contract could be implied between the plaintiff and the defendant alone, the services having been rendered to the partnership. 4. In not instructing the jury that on the whole testimony the plaintiff could not recover.

      Franklin, with whom was Patterson, for plaintiff in error.—
    That the father was incompetent as a witness was cited 6 W. & Ser. 139; 1 Harris 641.
    A person dealing with an agent in ignorance that he is other than the principal party, will be entitled to the same right of set-off as if the agent were the only principal: Story on Agency, sec. 420.
    It was alleged that if a contract could be implied from the rendition of the services, it should be with the partnership and not ■with Kauffelt alone; and that there was no proof as to such a contract to be referred to the jury.

      Frazer, with whom was Patterson, for defendant in error.—
    By the terms of the partnership Kauffelt was bound to furnish at his own expense a competent clerk. He employed the one who preceded the plaintiff. The defendant did not dispute the amount of the plaintiff’s account, but required it to be applied to the indebtedness of the father to the partnership. A minor son, authorized by his father to go out to service, and receive his earnings for his own use, may maintain an action for his wages against his employer, although such authority by the father has not been made known to the employer when the minor entered into the service ; and if in such case, no express contract be made with the employer, the law will imply a promise by him to the minor, and not to'the father: 19 Pick. 29.
   The opinion of the Court was delivered by

Lowrie, J.

— There is no error except in inferring from such evidence a contract with the son. The law implies contracts according to the facts appearing to the minds of the parties. When a minor is permitted, by his father, to make his own contract for service, it is fair to presume that he is allowed also to receive the wages for himself, and so the law implies the contract until a contrary purpose appears. But it is not so when the father himself makes the contract. He has a right to command the services and receive the wages of- his minor son, and when he makes a contract for them, there is no ground for the presumption that he is acting as agent of his son, or that the other party knows it, and intends the contract to be with the son; and therefore the law cannot imply that such was the contract as matter of fact, or impose it as matter of duty. The private arrangement between the father and son in this case, was a matter of their own, which constitutes no part of the transaction, and which is indeed revocable at the father’s pleasure. To allow a recovery by the son in such a case, might defeat just claims of Kauffelt against the father.

Judgment reversed and new trial awarded.


source: Caselaw Access Project

author: Black, C. J.

license: Public Domain

text:
    Shroder versus Breneman.
    The mere throwing of manure on another’s'land is-not such an adverse possession as will give any right under the statute of limitations to him who does it; much less will it enable a third person to say that the title of the •original owner is divested by such user by others and appropriate the ground to himself.
    Error to the Common Pleas of Lancaster county.

    This was an action of trespass vi et armis guare clausum fregit, to January T., 1852, by A. N. Breneman v. John E. Shroder. The plea was, Not guilty.
    John E. Shroder purchased a house and lot on the east side of North Queen street near Centre square, in the city of Lancaster, from George B. Withers, executor of George Withers, deceased, containing thirty feet in front, sixty feet deep. Deed dated 1st day of April, 1851. On the east side of said lot, John Metzgar owned a .lot with a brick warehouse thereon, fourteen feet and three inches adjoining Shroder’s lot on the north-east, and fifteen feet and three inches along an alley, which said Metzgar conveyed to said Shroder by deed, dated 15th day of March, 1852. The lower part of the eastern side of the first above-mentioned lot of Shroder is bounded by an alley, which turns to the east between the property purchased from Metzgar and A. N. Breneman. Shroder tore down or converted said warehouse into a kitchen, &c., on the first above-mentioned lot. Breneman alleged that in doing so he encroached on said alley by erecting a small balcony, and therefore he brought this action of trespass.
    Long, J., charged, inter alia, as follows: “ If the plaintiff is possessed of the freehold or soil, a mere right of way in other persons over that soil would not take away this right of action for any obstruction which may be erected upon it. Here the alleged injury is the erection‘of a balcony projecting over the ground which the plaintiff avers he is owner of, and attached to a building belonging to the defendant; it is elevated to a considerable height from the ground. This, however, would be a trespass if the plaintiff be the owner of the soil below, for a title to land gives to the owner all that is upon or above it. Neither would a mere non-user of the premises, by the plaintiff or those under whom he claims, destroy his right or title to the freehold, unless the premises, or that part upon which the alleged trespass is committed, was given up by the plaintiff, or those under whom he claims, for twenty-one years or more, and adverse possession for that period taken by some one else, who held the same in opposition to the owner. Such adverse possession may be shown by any one occupying the same, using or putting a building upon it, or doing some such act as would go to show that he claimed it as his own; and when adverse possession is thus held for twenty-one years, the owner is divested of all right to the soil, and it would require the same length of time of adverse possession on his 'part to regain the ownership.
    *“ As regards the adverse possession spoken of in this case, I am of opinion the defendant has failed in showing such adverse possession as the law recognises. It is true that one of the witnesses testifies that he knew the premises in dispute forty-five years ago; that in 1807 there was a privy upon it; that it was an old building at that time, and Judge Schaeffer testifies that he knew it for many years, and that it was removed in 1824; that afterwards it was used for a dung heap by Dr. Kerfoot, who rented a stable or building to which the privy was attached; and other witnesses prove that it was used as a place for the deposit of filth until about six or seven years ago, when Howett’s warehouse was built. According to the testimony it appears the privy stood for about seventeen years ; and afterwards it was used as a dung heap and deposit for filth. It is true Dr. Kerfoot made use of it as a dung heap, and that he was the tenant of the stable to which the privy was attached while it existed; but he was also, at the same time, the tenant of the premises now owned by the plaintiff, and I cannot discover that his using the dung heap was inconsistent with the right of the plaintiff.*
    “ If you should determine that the plaintiff has made out his title, the least encroachment upon his freehold or soil by the erection of the balcony would entitle him to a verdict.”
    On the part of the defendant points had been submitted, the third of which was: It having been shown that forty-five years ago an outbuilding, then an old one, and considered to belong to Miller, under whom defendant claims, stood in the corner where the balcony complained of now is, and that from 1824 until about six years since, the pit of such outbuilding was occupied by neighbors, as a place of deposit for filth of various kinds, the possession of the ground in dispute is proven out of the plaintiff, and therefore, before he can obtain a verdict, he is bound to prove that he had twenty-one years’ adverse and uninterrupted possession of said premises, previous to the commencement of this suit.
    The answer was as follows: There being no evidence given to show that the possession of the premises in dispute was out of the plaintiff twenty-one years, this point therefore is answered in the negative.
    August 27, 1852, verdict for the plaintiff.

      Error was assigned, inter alia, to the negative answer to the third point submitted on part of defendants, and to the part of the charge which is between asterisks.

      Frazer, for the plaintiff in error.
    — The principal error was in chargin'g the jury that the defendant had shown nothing to prevent the plaintiff’s recovery. It was contended that a case was made out of adverse possession by the privy and manure pit, from 1807 till 1846, when the stable and its appurtenant pit were displaced by Howett for his warehouse.
    The privy was larger than the present balcony of Shroder, and the privy pit became the manure pit after the upper part of the privy whs taken down in 1824; the foundation walls of that privy were continued and used afterwards as a receptacle for brute instead of human filth. This privy was appurtenant to the Miller property, belonged to it, and thus held under that right by Kerfoot, (as a tenant, not allowed to dispute his landlord’s title) as a stable for his horses, &c.; and this possession, adverse, open, notorious, and positive, was not affected because Kerfoot resided with his family at the same time in the property now owned by plaintiff.
    Nor did the throwing, by others using said alley, of filth in said pit, affect the possession of Kerfoot. And so the Court should have instructed the jury; or at all events have said, that if these facts were so, and found by them, the defendant was entitled to their verdict.

      Landis and Franklin, for defendant in error.
    — It was said that there was no evidence, that the ground over which the balcony projects was ever claimed by the owners of the Miller property, from the time the privy was removed by Judge Sheaffer (1824), until the defendant came into possession of the same. If they ever claimed title to the ground, which was denied, it was a title gained by possession, which their long silence and neglect to exercise any right over it, shows was abandoned, or lost in the same way it was acquired. But if the ground was kept as a depository for manure, it was not by the Miller family. If Kerfoot kept his manure there, he was plaintiff’s tenant, and had a right to keep his manure where he pleased. The mere fact of Kerfoot doing so, is not the exercise of a right so inconsistent with the plaintiff’s title that the same ean be used against him.
    As to the answer to the 3d point, there was no testimony submitted to the jury, that went to show that the ground now in dispute ever was out of the plaintiff or those under whom he claims. As early as the year 1824 the privy was removed, and there is no evidence to show that owners of the Miller property ever claimed the ground, from that time up to the period when the title became Vested in the defendant. The plaintiff was therefore -not bound to prove that he had 21 years' adverse and uninterrupted possession to entitle him to a verdict: Hawk v. Senseman, 6 Ser. & R. 21.
   The opinion of the Court was delivered by

Black, C. J.

— This is trespass for building a balcony which over-bung the plaintiff’s land. It was found, upon evidence quite sufficient, that the soil belonged to the plaintiff, though it was subject !to a right of Way, and was used as a private alley. The only point of the case which is strong enough to bear an argument is, that the statute of limitations had extinguished the plaintiff’s title. There was a privy on the ground in dispute, but it is not proved to have been there for twenty-on'e.years. To eke out the case, it was shown that after the privy was removed, the spot it had occupied was used for a dungheap. This will not do. The mere throwing of manure on another's land is not-such an adverse possession as will give any ■right under the statute to him who does it; -much less will it enable a third person to 'say, that the original owner’s title is gone, ■and appropriate it to himself for that reason.

■If we thought the errors assigned to the admission of evidence were important, we would probably examine them -although they are not specified according to the rule. In dismissing them for want of formal correctness, we bring the case-to thesame conclusion it would reach if we decided -them on their merits.

Judgment affirmed.

Lewis, J., dissented.


text:
    Lancaster County Bank versus Albright.
    1. He is guilty of a fraud, who secretly changes a state of affairs, and then, without revealing this fact, procures another to do an act into which the true state of affairs enters as a mptive.
    2. If a creditor, knowing that his debtor is in failing circumstances, gets from him, for part of his claim, a mortgage substantially covering all his property, and gets'the debtor to obtain'the 'endorsement of another-person for another part, without revealing the fact of the-mortgage, this is a fraud upon the endorser and discharges him from liability.
    3. Where persons, assuming to act for another in Securing a claim, are guilty of fraud in the transaction, the creditor-must go back to his old position if he would repudiate the fraud of the new arrangement.
    4. A general prayer for a charge that there is no evidence of a particular fact is not good practice. A better way is to call on the opposite counsel to indicate in writing the evidence relied on, and the Court may, in a proper case, enforce the demand; and then the question will be orie of-shape and body-upon which a well-defined instruction can be-given.
    Ekrok *to tbe Court of Common -Pleas of Lancaster county. This was an action.of assumpsit by the Lancaster County Bank v.
      Jacob Albright on an accommodation endorsement, by Jacob Al-bright, of a promissory note of J. Howett, at sixty days, for $500, dated April 1,1848. The plea was payment, and the defence relied on appears in the following proposition submitted on the part of the defendant, and affirmed by the Court, viz.: If the note now in suit was discounted to pay a note previously endorsed for Howett by Albright, and which, had been suffered to lie over after due, without protest; and if the bank had suffered Howett to overdraw his account by three or four thousand dollars; and, having discovered his insolvency, said bank procured him to mortgage his property to them for its full value; and then caused him to go to Albright and get his endorsement, they knowing Howett to be wholly insolvent and concealing that fact, and Albright being ignorant of it; and if the directors of said bank, or some of them who had an active agency in the transaction, refused to renew their endorsements for Howett which had lain over without protest, but secured the same by said mortgage, then the procuring of the note in question, in the manner stated, is a fraud, and the plaintiff cannot recover.
    2. “ Until the note was actually discounted by the Bank upon the 20th, the endorser had a right to countermand the endorsement.”
    On the part of the plaintiff a point was submitted, viz.: 2. As there is no evidence of the directors of the bank having acted in the management of the mortgage, &c., on the 19th of April, the act of one director did not commit the Board of Directors, as to the act of the one director.
    To this point the Court answered, that if there was no evidence of the directors of the bank having acted in the arrangement of the mortgage, the act of one director, unless he acted by authority of the board, or his acts were afterwards ratified by the board, would not eommit the bank.
    To the defendant’s points the Court answered, that in a transaction such as this, “ it is the duty of the parties to act fairly and honestly; and if there b.e any concealment, it will operate to the injury of the party using the concealment. If, therefore, the plaintiff was guilty of the conduct stated in this point, it would be a good defence; but any knowledge which some of the directors may have had, with regard to the matter of defence in this case, not acting by the direction of the Board of Directors, and not communicated to the directors, would not bind the plaintiff.”
    2. The defendant had a right to countermand the endorsement of the note beff'e it was discounted; but if directions had been given to have the note renewed, and this note, as a renewal, was endorsed after such directions had been given by the directors, and in pursuance of such directions, such notice would not avail the defendant.

      The evidence as to the complicity of the bank consisted of testimony with the view of showing, that, in the matter of securing the bank’s claims, the cashier and one director acted for the bank, obtained the mortgage, spoke of the Albright endorsement, and left it out of the mortgage, with the understanding that Howett was to get Albright to endorse again, though the old note was then about twenty days overdue, and the endorser discharged.
    April 28, 1852, verdict for defendant.
    Error wa.s assigned to the answer to the two points on part of the defendants.
    Also to the portions of the charge in which the Court said, that if the bank, having discovered the insolvency of Howett, procured him to mortgage his property to them for its full value, and then caused him to go to Albright and procure his endorsement, this would be a good defence.
    4. Also, to the part of the charge in which it was said, that if a creditor has knowledge of the insolvency of his debtor, and procures another one to become his surety, withholding his knowledge from the surety, it is a legal fraud of which the surety can take advantage.
    5. To another portion, viz.: that the mere knowledge of the cashier or the officers of the bank, of the insolvency of Howett, without being communicated to the bank, or evidence given that they acted under the instructions of the bank, will not be binding upon the bank.

      Fhelman and Ford were for plaintiff in error.

      Stevens, for defendant in error.
    — As to the matter of concealment, reference was made to 2 Kent 482-3-4. Concealment or fraud by an agent is as fatal as if practised by the principal: Chitty on Con. 679; 1 Arch. N. P. 119.
    There was no consideration for the renewed note, unless it was treated as a new discount, or the proceeds applied to the former note. But from that note Albright was discharged: 2 Harris 525, Smith v. Philadelphia Bank.
    Notice to the cashier is notice to the bank: 7 W. & Ser. 333, Boggs v. Lancaster Bank. Notice to an agent is notice to his principal. Knowledge is notice even in penal Acts : 2 McLean's Rep. 396, Jones v. Van Zandt.
   The opinion of the Court was delivered by

Lowrie, J.

— The marrow of the decision of the Court below is, that if a creditor, knowing that his debtor is in failing circumstances, gets from him, for part of his claim, a mortgage substantially covering all his property, and gets the debtor to obtain the endorsement of another person for another part, without revealing the fact of the mortgage, this is a fraud upon the endorser, and discharges him from liability. This proposition could not be disputed in this case, unless by a mind pre-occupied by the fact that this was a renewal of an old endorsement; but that fact is set aside when it is noticed, that the previous endorsement had been discharged by the omission of demand and notice. It is only saying that he acts fraudulently who secretly changes a state of affairs, and then procures another to do an act, into which the true state of affairs enters as a motive.

It is objected, however, that there was no evidence of the bank’s participation in the transaction. But it happens that there is evidence that two of the bank’s officers were engaged in it, and the bank is now claiming the benefit of their action. They must go back to their old position if they would repudiate the fraud of the new arrangement.

We say it happens that there is evidence ; and by that we mean that this point does not appear to have been plainly taken in the Court below; and it is not to be expected that the record sent up here shall contain evidence on points not raised as questions of laAV. A bill of exceptions brings up only the evidence that is relevant to them, and not all the evidence in the cause. The Court is not bound to write down the evidence taken before the jury, nor even to remember it all. At least it is not error in the Court to forget some of it. And when the Court is asked to say that there is no evidence on a particular point, we cannot prevent them from saying, “We do not remember, let the jury decide that.”

The counsel for the defendant embodied in a proposition the facts on which he relied for the inference of fraud; and this is the best practice where points are thought to be necessary. A general prayer, for a charge that there is or is not evidence of a particular fact, is easily evaded by the bad memory of the Court; and how can we correct this ? A judge ought to have a good memory and great decision of character; but if he lacks either, a Court of error can do very little to supply the defect. Counsel are entitled to have the principles of law applicable to their client’s ease, clearly presented by the Court to the jury; but this often requires skill on their part, in presenting their points. There is no skill and no point in a request for a charge that there is no evidence of a particular fact. A better way is to call on the opposite counsel to indicate in writing the evidence relied on, and the Court may, in a proper case,, enforce the demand; and then the question will be one of shape. and body, upon which a well defined instruction can be given. But to expect this Court to reverse a case on the general allegation, first made here, that there was a defect in the evidence, is to expect too much.

Judgment affirmed.


text:
    Pickle versus McKissick.
    1. Beal estate conveyed to trustees for a school-house and place of religious meetings, with a condition that if it be- used for any other purpose it shall revere to the grantor or his heirs ; is not forfeited by mere nonuser.

    2. It may be forfeited by misuser, but such misuser must be strictly proved.
    S. The mere occasional use of it as a dwelling-house is not sufficient to work a forfeiture ; but the continued use of it as a dwelling-house for seven years, with the knowledge and consent of the trustees and persons interested, is not occasional and is sufficient to work a forfeiture.
    4. It made no difference that the occupant was a tenant at will and paid no rent.
    5. The declarations or admissions of the trustees, before the plaintiff acquired title, that they had permanently abandoned the property, and that it belonged to the purchaser of it at the sheriff's sale who had purchased the same when sold as the property of the grantor and through whom the defendant claimed, are not admissible in evidence to defeat the trust.
    Error to the Common Pleas of Lancaster county.

    This was an ejectment by Arthur McKissick v. Leonard Pickle, for a lot No. 81, in Georgetown, Lancaster county. The title to this lot, on 25th Oct. 1819, was in Samuel Eerguson. On that day, in consideration of $100, he conveyed the same to Arthur McKissick and Robert Patterson, in trust for all those person or .persons who have or may hereafter be subscribers towards the paying the expense of erecting a school-house and meeting-house (or house of public worship), and keeping the same in repair, &e. To have and to hold the said lot of ground, &e., unto the party of the second part to* the only proper use and behoof of the said party of the second part, and to their heirs and assigns for ever.
    Provided always, nevertheless, that if at any time hereafter the above described property, or any part of it, should be converted into any other use than for the use of a school-house for the education of youths, and a meeting-house for promulgating the gospel, and also a burying-ground, and such other improvements as may be advantageous and of use to the promotion of the aforesaid three objects, that then and in that case the said lot shall revert to the party of the first part and to his heirs and assigns.
    The property in question was levied on in 1830 as the property of Samuel Eerguson; — and on vend. exp. to April Term, 1831, it was sold at sheriff’s sale to Jaeoh Eshelman, who in August, 1845, conveyed it to Benjamin Eshelman, who, in April, 1847, conveyed it to Leonard- Pickle, the defendant in this suit.
    On the trial, it was offered on the part of the defendant, to prove' that the premises had been converted to other uses than those allowed by the deed of trust, and that McKissiek, the plaintiff, and his co-trustee, declared that they had permanently abandoned the property — that it belonged to Jacob Eshelman (the purchaser at sheriff’s sale), and to show that the premises had not been occupied by them for the purposes of the trust for ten years after such declaration made, and before suit brought, but that they had converted it into a dwelling-house; and that such declaration had been communicated to the defendant before he purchased the property. The proposed evidence was objected to, overruled, and excepted- to.
    On the part of the defendant it was proved: That no school had' been kept in the house since 1839, and no preaching had been there since 1841. That in the year 1839, McKissiek surrendered the key, saying that he had- nothing more to do with the property, that it belonged to Eshelman, and that he never again resumed possession of the key or property, nor sought to regain it until 1850, after it had been purchased by defendant, the rubbish of the old building cleared away, and the land fenced and in part cultivated. That in 1840 or ’41, plaintiff gave permission to one McOaffery to occupy it as a dwelling-house: that he took possession of it, and converted it into a dwelling-house by taking out all the benches and seats, and tearing down the writing-desks, which were originally made fast to the walls; that the benches and desks, and, with one exception, the other school furniture, were removed from the house; that another family (McOready’s) also occupied the house for some years; that a new chimney wras built, and an additional-stove put in for this second family; that these families continued to occupy it as long as it was tenantable. A part of the lot south and west of the house had been fenced in and cultivated by Mrs. McOaffery. Being unfit for further habitation, Mrs. McOaffery left it in 1848. That in 1841 Mrs. McOaffery had refused to let preaching be had in the house, Mormons only, it was said, desiring to occupy it. It was said that the defendant, having purchased of Eshelman, took possession of the property in the spring of 1848, cleared away the ruins, and put part of the ground in cultivation. In 1850, the present suit was brought.
    On the part of the plaintiff, the following points were proposed:
    1. That though the building has ceased to be used as a schoolhouse, yet there was occasional religious worship in.it, one of the objects mentioned in the deed, and that the trustees thereby exercised such a control of it as is inconsistent with the idea that Mrs. had interest at their will; and that the oc« cupation for seven years makes no difference, for as it was at tlie commencement a possession at the will of the trustees, it continued so during the whole period.
    2. That merely allowing a destitute woman, out of motives of humanity, to use the building as a shelter for her sick husband and helpless children, as a tenant at will, without rent, or changing the building in any way, no school being kept in the house at the same time or afterwards, does not work a forfeiture.
    3. That the defendant has failed to prove such a permanent use or occupation of the lot or building, under the meaning of the deed, as to work a forfeiture, and the plaintiff is therefore entitled to recover.
    These points were answered in the affirmative.
    In the charge, Loire, J., expressed the opinion that the character of the testimony was not so materially different from that given on the former trial of this case, that it ought to change the result of the case, and directed the verdict to be rendered for the plaintiff.
    See report of a former trial of this ease in 4 Harris 140-150.
    Error was assigned, inter alia, to the rejection of the declarations of the trustees, and to the answers of the Court.

      Stevens, for plaintiff.
    — It was said that McKissick, the plaintiff, was not only a trustee, but was one of the original contributors. That the trustees had the management of the property. It was contended that the declarations and admissions of a party to the suit relative to the subject-matter of the controversy, whilst he was interested in the title, were evidence, whether he sued in his own right or in the right of another: 3 W. & Ser. 373, Harrisburg Bank v. Tyler; 4 Ser. & R. 317, Magill v. Kauffman; 2 Barr 371, Rossiter’s Appeal; 7 Term Rep. 664; 1 Ph. Ev. 90-91; 1 Greenl. Ev. sec. 172.
    It was said that on the former trial the main question was whether the sheriff’s deed conveyed any title. The evidence of misuser was not so extensive as given on this trial. On this trial it was proved that the whole building, except the walls, had been changed. That it had been converted into a dwelling-house; that portions of the lot had been fenced and cultivated. The Court erred in supposing the evidence on the two trials to be similar. Though conditions in law or implied conditions may not be sus tained in Pennsylvania, yet conditions in fact or express conditions are to be sustained. Contracts are not to be violated. The condition in this case is plain, and it was proved that for seven years the property granted had been used as a dwelling-house, &c. Though this is a charity, yet contracts are not to be violated in favor of a charity.

      Frazer, for defendant.
    — The declarations of the trustees could not affect the beneficiaries: 5 Watts 493, Martin v. McCord; 4 Harris 149, a former report of this case.
    It was said that the mode and manner of the enjoyment of the building, was permitted merely from motives of humanity; the tenancy at will subsisting. Reference was made to the argument of the case in Supreme Court, 4 Harris 144-5.
   The opinion of the Court was delivered by

Black, C. J.

— The land in dispute was conveyed in 1819 to trustees, to be used as a school-house and place for religious meetings, and a burying-ground. The deed contained an express condition that if it should be converted to any other use, the estate should revert to the grantor. The present plaintiff is the surviving trustee, and the defendant, alleging the condition to have been broken, claims under the grantor.

The cause was here before on a state of facts very nearly similar to that which appears now, the only difference being that the evidence of conversion is somewhat stronger. This Court then held that the grant being a charity on which the law looks with favor, could not be forfeited by nonuser, and not for misuser unless it was strictly proved; that the condition could only be broken by a permanent conversion of it to purposes not mentioned in the deed; and that the occasional use of it for other purposes would not work a forfeiture. We go as far as this, and further too. It might have been added that no improper use of the property could be taken advantage of as a breach of the condition, unless such use was with the acquiescence of those interested in the trust, and with the consent of those who had the management of it.

The facts are that the property in question ceased to be used as a school-house in 1839, and no religious meeting was held in it after 1841. It was used as a dwelling-house from 1840 or 1841 until 1848, to the total exclusion of all teaching and preaching, and to the entire destruction of all accommodations for either. This was held not to be a breach of the condition.

Now, while we reaffirm every principle of law laid down in the opinion of Mr. Justice Rogers, we cannot see our way clear to make the same application of those principles to the facts of this case. When the building was used as a dwelling-house, it was as much perverted from the purpose of the grant as if a factory had been erected on it; and surely if the land had been ploughed or pastured, the case would have been no worse. When such a misuser was continued for seven years without an interruption, how can we say that it was merely occasional ? It seems to us wholly immaterial that the tenant was poor and paid no rent, for although it was charitable in the trustees to furnish a shelter for the destitute and sick, that was not the sort of charity to which this property had been devoted. The grantor intended it for an almshouse no more than he did for a theatre. That the occupant was a tenant at will, strikes as an argument which might be used against the plaintiff with more force than for him. If a lease for years had been given, the excuse might be set up that it was a, thoughtless act, which though repented of could not be recalled. But putting in a tenant at will was a wrong which could be corrected at any moment, and yet was constantly persisted in while one generation was growing up without education, and another was dying without the religious instruction which this house was meant to afford. It is true the building itself does not appear to have been changed, except by the progress of decay. But what of that? Its occupation by a family made the teaching of a school as impossible as any change in the structure, could.

On the whole, we are of opinion that these facts ought to have been submitted' to the jury; and if they could infer from them, and from all the other circumstances of the case, that the misuser was not merely accidental and occasional, but permanent and acquiesced in by the parties interested in the trust, the estate was forfeited,, and the verdict should have been in favor of the defendant.

There is only one other point on which we have permitted ourselves to doubt the absolute correctness of the former decision, and that is- the admissibility of the plaintiff’s declarations, and those of his co-trustees, that they had abandoned the house and meant not to reclaim it under the deed. If this question had not been ruled, we might have been inclined to hold that such declarations were evidence of the quo animo with which the acts were done. But it is not perfectly clear, and respect for the authority of our predecessors is too strong within us to be overcome by any opposing considerations which are in the least degree doubtful.

Judgment reversed and ven. fa. de nov.


author: Woodward, J.

text:
    Muirhead versus Kirkpatrick.
    1. The holder of a note received as collateral security is bound to employ reasonable diligence in its collection, and a conversion of it into a less security is’ such misuse of it as makes him responsible to the original debtor.
    2. In an action on one of two notes which had been-taken by the holder in lieu of a former note held by him, and which first note was alleged by-the defendant to have been transferred to the plaintiff as a collateral security, an endorser of such original note is a competent witness for line plaintiff to prove that the said original note was not received by th'e plaintiff as a collateral security, but had been transferred to him in payment of existing^liabilities; the said endorser having been discharged by-reason of an extension of time having been allowed in receiving the two notes and by the omission in the note in suit of one-of the parties to the original note.
    3. "Whether there was any new consideration for the execution of the note in suit, was a question of fact for the jury, and an instruction calculated -to mislead them as to its determination was error.
    4. The extension of the -time of payment of anote is a valuable consideration for other notes taken in lieu of it; the compromise of a doubtful claim is also a sufficient consideration to support a promise.
    5. The release of one of the drawers of a former note and of the endorsers thereon in the taking of a new note, and, if the note were received by the plaintiff from the said endorsers as a collateral security, the assuming of the obligation to account to them for it, was a yielding of advantages and'a submission to inconvenience by the plaintiff which formed a sufficient consideration to support an action against the drawer of the new note.
    6. If a new note taken in lieu of another was founded on a valuable consideration independent of that on which the original note was founded, the failure of the consideration of the former note is not a defence by the drawer in a suit against him on the last note.
    7. The decision, see 4 Harris 117 ISTo. 4, in favor of the competency of the party omitted as a drawer in the taking of the last note, reaffirmed.
    Error to the Common Pleas of Lancaster county. '

    This was an action of debt by-William Muirhead v. William Kirkpatrick, on a promissory note, dated 11th March, 1842, for $186.22, payable sixty days after date, by the defendant to the plaintiff.
    The same case was up several times previous, and reports of it will be found in 5 W. & Ser. 506; 2 Barr 425; and 4 Harris 117, &c. The pleas on this trial were payment and payment with leave.
    On 11th March, 1842, an agent of Muirhead, the plaintiff, came to Lancaster, where the defendant resided, with a note held by William Muirhead against William & Ephraim Kirkpatrick. It was said on the part of the defendant, that the said William and Ephraim were not partners in the transaction, but were -joint and several parties to the original note. It was said that the agent presented the note to William Kirkpatrick for payment. That the latter said, he could not then pay it, but proposed to divide the note into two notes, and extension of time be allowed; and two notes were accordingly given, one payable at 30 and the other at 60 days, signed by the defendant alone. The interest on the old note was computed. The old note was given up to defendant.
    Jonathan Muirhead, hereinafter mentioned, had been a member of the firm of Capron & Co. He was offered as a witness on the part of the plaintiff to prove that the original note of William & Ephraim Kirkpatrick, transferred to Capron & Co., was transferred not as a collateral security, but in payment of existing liabilities. He was rejected.
    Loire, J., charged, inter alia:—
    “ It is contended that the note in question was given in the place of another note previously drawn by William and Ephraim Kirkpatrick, in favor of Capron & Co., and delivered to them, with other notes, in payment of certain personal property purchased by the defendant from Capron & Co.; that a portion of the personal property thus purchased, to an amount greater in value than the sum called for by the note in suit, was never received by the purchasers, through the default of the sellers, and consequently that the consideration of the original note failed; that the original notes were transferred by Capron & Co. to the plaintiff, not in the usual course of business, but as collateral security, against certain liabilities incurred by him for the firm.
    “ Ephraim Kirkpatrick, in his testimony, testifies that the note now in suit was given for the balance of a note of $500, the last given by William Kirkpatrick and Ephraim Kirkpatrick to Capron & Co., and that the note of $500 had been transferred to plaintiff, to secure him for endorsements and liabilities incurred before the failure of Capron & Co.; and that another note was also given by William and Ephraim Kirkpatrick, to William Muirhead, in consideration of the $500. He then stated in his testimony, that the original notes were given for materials, threshing machine, horse power, and other property, contained in an inventory purchased from Capron & Co.: among the articles enumerated in the inventory, are ten sets of castings and patterns — a copy of which inventory was read.”
    (Two other witnesses testified that the castings referred to above had not been received by the Kirkpatricks.)
    He further stated: On the part of the plaintiff was examined George W. Houseal, who details to you how the note in suit was obtained; that he came here at the instance of William Muirhead, to collect the amount of a note given by Ephraim and William Kirkpatrick, payable to the order of Capron & Co., and endorsed by them to William Muirhead; that Ephraim Kirkpatrick was not at home, and that after some negotiation, two notes were given by William Kirkpatrick to William Muirhead, in the place of the one brought on by him, and that Kirkpatrick asked him to extend the time of payment, which he did.
    The Supreme Court, in deciding this case when up before them, state that when a note is taken as security for an antecedent debt, without giving up any security previously had, paying any money, or affording some new consideration, he is not a holder for value, who mayirecover in despite of fraud practised by the person putting the note in circulation, or on the failure of the consideration from which it originally sprang ; and that in this case, if there was a failure of consideration for the note given by Ephraim & William Kirkpatrick to Capron & Co., and upon which this present suit is founded, it can be inquired into in this suit; and if the failure of the consideration is equal to the amount claimed, the defendant would be entitled to your verdict. The plaintiff’s counsel contends that there was an extension of time given him by the plaintiff to the defendant, which constitutes a new consideration; and also the giving up Ephraim Kirkpatrick, one of the drawers to the original note. In answer of this view of the case taken by the counsel for the plaintiff, the Supreme Court said, when this case was up before them, *“ Considerations, like every other part of a contract, must be the result of agreement. The parties must understand and be influenced to the particular action by something of value or convenience and inconvenience, recognised by all of them as the moving cause. That which is a mere fortuitous result, flowing accidentally from an arrangement, but in no degree prompting the actors to it, is not to be esteemed a legal consideration.”*
    April 28, 1852, verdict for defendant.
    Error was assigned, inter alia: 1. To the admission of Ephraim Kirkpatrick. 2. To his being permitted to testify as to the consideration of the original note. 6. In rejecting Jonathan Muir-head. 11. To the last paragraph of the charge', and especially to the concluding part of it included between asterisks.

      Frazer, for plaintiff.

      Stevens, for defendant.
    June 9, 1853,
   The opinion of the Court was delivered, by

Woodward, J.

— On the 17th day of June, 1839, William Kirkpatrick and Ephraim Kirkpatrick made their promissory note to Jno. Capron & Co., or order, for $500, at 90 days, which was transferred to Wm. Muirhead, by the endorsement of Capron & Co. #

# On the 11th day of March, 1842, William Muirhead sent his •agent, Geo. W. Houseal, to present this note to the Kirkpatricks, and demand payment. The agent found Wm. Kirkpatrick only ■at 'home, and their interview resulted in Houseal’s giving up the ■■$500 note,-and taking two others therefor, one at 30 days, and the •other at 60 days for $186.22, which is the note .now in suit. Both these notes were made payable to Wm. Muirhead, and .were .signed by Wm. Kirkpatrick alone. The mote at 30 days has been paid, but when suit was brought on .the present mote, the defendant -relied on a.set-off, which, after several trials, failed him, for reasons which may be seen in 5 W. $ Ser. 506, and.2 Barr 425, where .the case is twice reported. He then changed 'the ground of his •defence, and set up a failure of the .consideration of the $500 -note, and claimed that it was an available defence against the present note, 1st, because both notes were .founded on'the .same consideration; and, .2d,’because the original .note was not transferred .in due course of business, but pledged merely as collateral security for liabilities which the .plaintiff had assumed for Capron & Co. The Court of Common Pleas, however, conceiving that this note was founded on a new and distinct consideration from that of the $500 note, rejected the defendant’s evidence, and directed a verdict for the plaintiff. .This Court .reversed that judgment, and the case is reported the third time in 4 Harris’ State II. 117.

Two principal.propositions of law were ruled on that .occasion, neither of which it is our intention to disturb.

1st. That though the holder of a negotiable instrument, received .in payment of a pre-existing debt, before maturity, cannot be subjected to equities existing between the original parties, and o.f which he had no notice, yet if the paper be taken as collateral security merely, for the payment of a debt, or for protection against previously assumed liabilities, the defendant may aver any .ground of defence which would have been • competent between the . antecedent parties to the bill or note.

■ 2d. That it was error in the Common Pleas to reject the defendant’s testimony, and to assume that the note in suit .rested on a new and distinct consideration from that which was given up— this being a question for the jury, rather than the Court.

When the cause went down for re-trial under this ruling, it is manifest that the first of the above propositions involved an important inquiry of fact, to wit, the character and purpose of the transfer of the $500 note. If transferred before maturity and for value, the. consideration of it was not subject to scrutiny, nor .of course the consideration of the notes which replaced it. But . if pledged as , collateral security merely, the title .remained in ...Capron-•& Co„ and the consideration would be open to inquiry; and then if the jury should be satisfied that the new notes were .founded in no new consideration, but were only renewals of the original note, the defence set up would be as applicable to one of the new notes as it would have been to the original note. This inquiry became thus a vital question on the last trial, and out of the evidence offered in regard to it, bills of exception resulted, which may be properly noticed at this place.

The defendant offered his brother, Ephraim Kirkpatrick, as a witness, having first released him from all liability over, on account of his signature to the $500 note, and the Court admitted him. We dismiss the plaintiff’s complaint of this with the remark, that the competency of this witness was fully discussed and decided when the record was last here: 4 Harris 127, et seq.

The plaintiff then offered Jonathan Muirhead to prove that the transfer of the note was not as a collateral, but in payment of existing liabilities. The Court rejected him, and this is the plaintiff’s sixth assignment of error.

Had the action been on the original note, Jonathan Muirhead would have come within the rule of policy recognised in many modern cases, which excludes a party to negotiable paper from testifying between other parties to the paper; but though the partner of Capron, he was never a party to this note in suit. The note which Capron & Co. had endorsed, had been given up by the holder without the knowledge or assent of the endorsers, and the note in suit had been taken in lieu of it. This discharged the liability of the endorsers beyond a doubt. But that note was assigned as a collateral security merely, says the defendant, and the money recovered in this action will go to the benefit of the owners of the collateral, and therefore the witness had a direct interest in the event of this suit. Whether assigned as a collateral or not, is, as we have seen, an open question in the cause, but for the purposes of this objection we must assume that it was. William Muirhead, then, as the holder of a collateral, was bound to preserve it or collect it, and apply it for the benefit of the assignor. He might not waste it, or exchange it for an inferior security, and doing either, he made himself accountable for it. A bond, or chose, which is transferred as collateral security, is put under the dominion of the creditor, to make his claim out of it. It is not in the nature of, or subject to the incidents of a pawn, or pledge: Ins. Co. v. Smith, 1 Jones 127, by Coulter, J. His duties in respect to it are active. He is to employ reasonable diligence in collecting the money on the security, and applying it to the principal debt, and a conversion of it into a less security is such misuse as makes him accountable to the debtor. When William Muirhead gave up the $500 note, and took notes for it against William Kirkpatrick alone, he not only released Capron & Co. from liability to him as endorsers, but he incurred liability to them for releasing Ephraim Kirkpatrick from the paper. From that moment he was bound to account to Capron & Co. for their note. How, then, was Jonathan Muirhead interested in the event of this suit? If the plaintiff recovered, the argument is, he would have to account to Jonathan as a member of the firm of Capron & Co. The answer is, he had fixed upon himself a liability to account, whether he recovered in this action or not, and therefore the witness was not interested in his recovery. Never having been a party to the note in suit, and not interested in the event of the action, we hold that Jonathan Muirhead was a competent witness,1 and that the Court erred in rejecting him.

These are the only bills of exception to evidence which it is necessary to notice, but we think the plaintiff in error has reason to complain of a portion of the charge.

The question as to the character of the transfer of the original note was sufficiently submitted to the jury; but the question as to the consideration of the note in suit was not. I do not overlook the fact that the judge, in answering the plaintiff’s points, particularly the third and the ninth, submitted to the jury the question of a new consideration, so far as the extension of time would be a new consideration; but this was only one of the elements of the alleged new consideration; and the language quoted from the reported case was a very emphatic intimation that the Supreme Court considered the extension of time, even in connection with the giving up Ephraim Kirkpatrick, no new consideration whatever. It is difficult, indeed, to doubt that the jury must have considered the whole subject of consideration settled by the language with which the charge concludes, and yet that language, so far as it was borrowed from this Court, consisted of obiter dicta, which were predicated of a hypothesis that the learned judge who indulged it, intimated might be unfounded. The consideration of the new note, in its nature, and by express authority, a question for the jury, was thus virtually withdrawn from them, and ruled against the plaintiff, almost as distinctly as on the former trial it was ruled against the defendant. The testimony of Houseal is the only evidence on the record that touches the transaction of the 11th March, 1842; and the jury should have been instructed, that if he was believed, a new and independent consideration had been shown.

Consideration is the motive or price of a contract. A valuable consideration is one that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made: 4 Kent’s Com. 465.

On the 11th March, 1842, the Kirkpatricks were liable to be sued, at once, on the note in Muirhead’s hands: and stipulated forbearance to sue, or extension of time, has always been recognised as a valuable consideration. The giving of time, said Gibson, C. J., in Petrie v. Clarke, 11 Ser. & R. 383, would be a present and a valuable consideration; and a pledge on these terms would be tbe same as a pledge for money paid down. Again, on the 11th of March, 1842, there was a pending doubt (not yet solved indeed) whether the $500 note was transferred in payment of, or as collateral security for existing liabilities; and important legal consequences depended on this question. Here was a fit subject of compromise, and the compromise of a doubtful claim is a sufficient consideration to support a promise: Brown v. Sloan, 6 Watts 421; Clement v. Reppard, 3 Harris 112.

Still, again, in releasing Ephraim Kirkpatrick as a drawer, and Capron & Co. as endorsers, as well as in incurring a liability to account to them for a collateral changed into a less security, if a collateral it was, Muirhead yielded advantages, and submitted himself to inconveniences that are in the very nature of considerations: Hind v. Holdship, 2 Watts 104; Mercer v. Lancaster, 5 Barr 162; Esling v. Zantzinger, 1 Harris 53.

All these grounds for a new consideration are developed fronr the circumstances of the parties at the date of the note in suit, and from the testimony, of Houseal. If, therefore, on the next trial these circumstances shall appear as they now do on this record, and if Houseal, who is corroborated by the admitted facts, that the old note was given up and two new ones taken in its stead, shall be believed by the jury, they will be bound to say, that the note in suit was founded on a valuable consideration, independent of that on which the original note was founded, and therefore that a failure of the consideration of that note is no defence against the plaintiff’s right to recover in this action.

It is believed that an application of the principles herein stated, to the next trial of the cause, will put an end to this protracted litigation, a consummation devoutly to be wished.

The judgment is reversed and a venire de novo awarded.


author: Lewis, J.

text:
    Neff’s Appeal.
    1. The widow and children of a decedent, dying within this Commonwealth, have no right, by the fifth section of the Act of 26th April, 1850, to claim any portion of the proceeds of sale of real estate sold by order of Orphans’ Court for the payment of debts where no election to retain either real or personal estate was made before the sale.
    2. The Act of 1850 allowing the widow or children of a decedent to retain either real orpersonal property belonging to his estate to the value of $300 is not to be construed to impair the lien of judgments against the decedent existing before its enactment, or to give to the widow the right to $300 worth of property as against such j'udgments existing at its passage: The Act of 1850 is not retroactive, and is to be construed in connection with the Act of 9th April, 1849.

      3. A statute should not be held to operate retroactively unless its language admits of no other construction; and there is nothing in the Act of 1850, either by itself or in connection with the Act of 1849, evincing any intention to impair the value of liens existing before its enactment.
    Appeal by Mary Neff, widow of Henry Neff, deceased, from the decree of the Orphans’ Court of York county, decreeing distribution of the proceeds of sale of the real estate of the said deceased, which had been sold under an order of the Orphans’ Court for the payment of debts. The time of the death of Neff was not stated on the paper-books; it was stated that he died after 26th April, 1850, insolvent, leaving a widow and children residing with him at his death. The inventory of his personal property amounted to $95.50, which the widow retained; she further claimed $204.50 out of the proceeds of sale of real estate sold as aforesaid. This claim was objected to on the part of judgment-creditors-.
    It was objected that the claim should have been made before the property was sold, which was not the case; that the provisions of the Act of 26th April, 1850, requiring the administrators to have the property appraised, had not been complied with; and that the said Act of 1850, if designed to apply to judgments existing anterior to its enactment, was unconstitutional.
    The judgments in question against Henry Neff were entered in 1846-47, and to January and April, 1849.
    In the report of the auditor the claim for the widow and children was allowed to the prejudice of the judgment-creditors. Exceptions were filed to the report, and the Court decreed in favor of the judgment-creditors in order.
    Error was assigned to the decree.
    In the Act of 9th April, 1849, it is provided that, in lieu of the property now exempt by law from levy and sale, on execution issued upon any judgment obtained upon contracts and distress for rent, property to the value of $300 exclusive of all wearing apparel of the defendant and his family, and all bibles and school-books in use in the family (which shall remain exempted as heretofore) and no more, owned by or in possession of any debtor, shall be exempt from levy and sale on execution or by distress for rent.
    By the 6th section of the Act, its provisions were not to take effect until the 4th day of July next following, and were to apply only to debts contracted on and after that date.

    By the 25th section of the Act of 26th April, 1850, it was enacted that, “ Hereafter the widow or children of any decedent, dying within this Commonwealth, if the said decedent shall have left a widow or children who were residing with him at the time of his death, and the estate be insufficient to pay his debts, exclusive of the amount of property which is now exempted from levy and sale upon an execution against a debtor, may retain either the real or personal property belonging to the said estate, to the value of three hundred dollars; and the same shall not be sold but suffered to remain for the said widow and family; and it shall be the duty of the executor or administrator of such decedent to have the said property appraised in the same manner provided in the Act, passed 9th April, 1849, entitled “An Act to exempt property to the value of three hundred dollars from levy and sale, on execution and distress for rent: Provided, That this section shall not affect or impair any liens for the purchase-money of such real estate; and the said appraisement, upon being signed and certified by the appraisers and approved by the Orphans’ Court, shall be filed among the records thereof.”
    , By the Act of 14th April, 1851, sec. 5, it was provided that, “Hereafter, the widow or the children of any decedent dying within this Commonwealth, testate or intestate, may retain either real or personal property belonging to said estate, to the value of three hundred dollars, and the same shall not be sold but suffered to remain for the use of the widow and family;” and it shall be the duty of the executor or administrator of such decedent, to have the said property appraised (as in the Act of 1850); and the same proviso was re-enacted.

      Campbell, Eeesey, and Slahle were for exceptants.
    It was said that the Act of 1850 was constitutional; that an Act is not so which affects only the remedy: 10 Ser. & R. 101; 16 Ser. & R. 37; 1 Watts 330; 3 Wharton 84; 2 Harris 155. The lien is but collateral to the debt, and is one of the remedies for enforcing its payment: 5 Barr 145; 4 W. & Ser. 218; 1 Howard, 319-20.
    By the Act of 1850 it is made the duty of the administrator to have the property appraised, and his omission to have this done should not prejudice the widow and children. They were not notified of the application to sell: 6 Barr 91. By the Act of 1849, the sheriff is to have the appraisement made if requested by the debtor ; by the Act of 1850 it is made the duty of the administrator to have it made.

      Potts, for appellees.
    — The constitutional provision, violated by the construction contended for on part- of appellants, is the provision prohibiting the impairing of contracts. The statutes forbidding imprisonment for debt, are not unconstitutional, as they discharged only the person of the debtor, but left the obligation to pay in full force: 4 Wheaton 122, Sturges v. Crowninshield; 1 Howard 316-19. But “if the defendant had made such an agreement as to authorize a sale of his property, which should he levied on hy the sheriff for such a price as should be bid for it at a public sale, on reasonable notice, it would have conferred a right on the plaintiff, which the constitution made inviolate; and it can make no difference whether such right is conferred by the terms or law of the contract:” 2 Howard 613, McCracken v. Hayward. If the Act of 1850 disturbs vested rights, it is unconstitutional: 1 Kent 455. In Deichman’s Appeal, 2 Wharton 397, the assets were personal, and the judgment was no lien on them when it began to operate.
    It was further said that the claim should have been made before the sale. Until the election is made, it was said the administrator does not know what property to have appraised: Miller’s Appeal, 4 Harris 300; Hammer v. Freese, 7 Harris 255. A retrospective statute, affecting vested rights, is void: 1 Kent 454-5. A retrospective effect will not be given to a statute, so as to affect contracts or property: 5 W. & Ser. 198; Dwarris on Statutes 681; 2 Barr 23. There is no word or phrase in the Act of 1850 indicating a design to make it retroactive, while the word “ hereafter” looks only to the future.
    May 19, 1853,
   The opinion of the Court was delivered, by

Lewis, J.

— Can the widow and children of an insolvent debtor claim any portion of the proceeds of his real estate sold under an order of the Orphans’ Court for the payment of debts, where no election to retain either real or personal estate was made before the sale ? The most universal and effectual way of discovering the true meaning of a law when the words are dubious, is by considering the reason and spirit of it, or the cause which moved, the legislature to enact it: 1 Bl. Com. 61. The words of the Act of 1850 are not dubious in this particular. But if they were so, this horn-book principle would enable us to arrive at their meaning without difficulty. Except where the real estate cannot be divided and set off to the debtor, the legislature have in no instance directed its proceeds to be left with him instead of the property itself. In common honesty the acquisitions of the debtor belong to the creditor. But the demands of necessity and humanity are sometimes so imperative as to overbear questions of meum and tuum. The laws which exempt from execution articles necessary for the enjoyment of life, like those which oblige communities to provide for persons who are unable to provide for themselves, rest upon this foundation. The law of our being, the nature of our climate, and our habits of life, render certain articles so indispensable to existence as intelligent beings, that the legislature have exempted them from execution, disregarding the claims of severe and exacting justice, in obedience to the higher obligations of humanity and necessity. This was done, not in order that the debtor might make merchandise of them, and expend the proceeds for the gratification of desires which had no claim upon the humanity or the sympathies of the public; but in order that the articles thus exempt from execution might be “retained” and “remain for the use of the debtor and his family.” It was not an absolute gift, but a trust for a particular purpose; and every attempt to convert this benevolent provision for the comfort of the debtor and his family into a claim for money, which may be expended without promoting that object, should be discountenanced as a perversion of the statute.

The object of the legislature was to prevent the sale of the property ; and every act or omission of the debtor or his widow and children, which amounts to an acquiescence in, or an affirmance of the sale, is in direct contravention of that object. The Act of 1850 was intended to give to the widow and children of the debtor the privileges which the debtor himself enjoyed in his lifetime, under the Act of 1849. Both statutes have relation to the same subject, and differ only in designating the individuals intended to be protected. We may therefore apply the established rule of construction, “that statutes in pari materid, or upon the same subject, must be construed with reference to each other; that is, that what is clear in one statute, shall be called in aid to explain what is obscure and ambiguous in another:” 1 Bl. Com. 60, note 8. Under the Act of 1850, the family of the decedent may retain, at their election, either real or personal estate, of the value of $300 ; and it is the duty of the executor to have it appraised. But we do not see how this can be done under the Act of 1850, any more than under that of 1849, until the election of one or the other be made, and the property chosen be designated by the persons entitled to retain it. If any doubt should exist on so plain a question, the provisions of the Act of 1849 must be considered in connection with the Act of 1850. Under this view of the subject, the case before us was virtually decided in Weaver’s Appeal, 6 Harris 309. It was there held by this Court, in giving a construction to the latter statute, that no proceedings to appraise the property can be instituted, until the debtor signifies his election; and that his omission to do so at the proper time, was a waiver of all the advantages of the Act.

But there is another objection to the claim of the appellant. No statute is held to operate retroactively, unless its language admits of no other construction. There is nothing whatever in the Act of 1850, whether construed by itself, or in connection with the Act of 1849, which indicates the slightest intention to impair the value of liens which existed before its enactment.

These views of the case render it unnecessary to consider the constitutional question discussed in the paper-book.

The decree of the Court below is affirmed.


text:
    Webb’s Appeal.
    Though a husband cannot give away his wife’s dioses in action, nor pledge them as collateral security, so as to bar her right of survivorship, yet in Pennsylvania he may sell and assign them for a valuable consideration; and this is applicable to dioses presently reducible into possession, reversionary interests or possibilities.
    This was an appeal by Mary Webb, from the decree of the Orphans’ Court of York county, decreeing distribution of the estate of George Beard, jun., deceased, and awarding the share claimed by said Mary Webb, to the executors of William Barber, deceased.
    The fund for distribution consisted entirely of the share of George Beard, junior, deceased, in the dower fund charged, according to the intestate laws of the Commonwealth, upon the real estate of his father, George Beard, sen., deceased, to bear interest for the widow of the latter during her life, and at her death to be divided amongst the children of the said George Beard, sen.
    George Beard, jun., died in 1817, intestate, unmarried, and without issue. His mother, the widow of George Beard, sen., survived till September, 1850. Mary Webb, the appellant, was the -sister of George Beard, jun., and the widow of James B. Webb, who died in June, 1838. The question was, whether the instrument executed April 1, 1828, between William Barber and James B. Webb, conveyed to the said Barber the said Mar-y’s share of said dower fund. The auditor awarded to Mary Webb her share, but on exceptions the Court decided otherwise, and awarded her share to the executors of William Barber, deceased.
    The proceedings in partition of the estate of George Beard, senior, from which the fund for distribution accrued, were consummated before the death of George Beard, junior, which occurred, as before stated, in 1817. Mary, his sister, the appellant, was intermarried with James B. Webb in 1820 or 1821.
    The paper executed by James B. Webb was an agreement signed by W. Barber and Webb, dated 1st April, 1828, in which it was recited that Webb was entitled, in right of his wife Mary, to one-eighth part of one-third of the amount of the real estate of her father, which remains a lien upon said .real estate, for the benefit of the widow of said George Beard during her life; and also in the same right to one-seventh part of the share of her brother, George Beard, jun., deceased, of the dower fund aforesaid, the whole amounting to $4576.87, payable at the death of the widow. And in consideration of indebtedness by Webb to Barber, and of the endorsement by the latter of Webb’s note in the York Bank, Webb assigned and transferred to Barber all his right and interest in right of his wife, in the said sum of money.
    Barber’s estate was sufficient to pay its debts, including the endorsement. The share of Mary Webb was not sufficient to pay the amount due by Webb’s estate to Barber’s estate.
    Exception was filed to the decree awarding the money to Barber’s executors.
    Chapin, for appellant.
    — It was contended that the agreement or transfer became void, as against the surviving wife, on the death of Webb, her husband, during the life of the widow, for whose benefit the fund was, during that period, suspended; that a husband cannot, by any act of his alone, bar the wife’s survivorship in her reversionary choses in action, expectant on the death of a tenant for life: Hornsby v. Lee, 2 Mad. 16; 1 Russ. 1, Purden v. Jackson; 3 Russ. 65, Honner v. Morton; 3 Id. 90; Grlaney 137-150.
    - In Grlancy 121, the treatment is of choses in action presently reducible into possession, which was not the case in question. The case of Bates v. Dandy, 2 Atkins 207, and note to 3 Russ. 73, was determined on the ground that the husband might have recovered the fund: see Glaney 121, and opinion of Lord Eldon, ip 3 Russ. 73. In the case of Hartman v. Doudel, 1 Rawle 279, the question as to the power of the husband to assign the reversionary interest of the wife was not raised. In this case the husband had not the power to reduce the fund into possession.
    Mayer, with whom was Evans, for appellees.
    — In the English Chancery it has been settled that nothing but the actual receipt of the money during the coverture will bar the surviving wife : Adams’ Equity 142; 1 Coll. 553; 11 Simons 388; 13 Id. 309; 2 Coll. 254. But in Pennsylvania a different rule exists: Siter’s Case, 4 Rawle 468; 1 Bin. 358, Yohe v. Barnet; 2 Ser. & R. 491, Lodge v. Hamilton; 1 Rawle 279, Hartman v. Doudel; 2 Wash. C. C. Rep. 408; 1 Penn. Rep. 373, Richwine v. Heim; 4 Rawle 177; 5 Whar. 142 ; 6 W. & Ser. 290; 7 W. & Ser. 168, Shuman v. Reigart; 2 Barr 71, Woelper’s Appeal; 1 Harris 561, Eshelman v. Shuman’s Adm.; 4 Harris 365, McConnell v. Wenrich; 4 Id. 343; 2 Russ. & Mylne 13; 2 Hen. & Mun. 381; 4 Pickering 374.
    June 9, 1853,
   The opinion of the Court was delivered, by

Woodward, J.

— The Act of Assembly of 11th April, 1848, to secure to married women their separate estates, has no application to this case, for the assignment under which the appellees claim was made twenty years before the Act was passed.

That the consideration of the assignment ivas valuable, is beyond question, and the legal consequences that flow from it are equally indisputable.

Though a husband cannot give away a wife’s choses in action, nor pledge them as collateral security, so as to bar her rights of survivorship, yet the law is well settled in Pennsylvania that he may sell and. assign them for a consideration.

Marriage is held to be not only a gift of choses, reduced to possession during coverture, but a transfer of the wife’s dominion, and power of disposition, so that whatever interest she might have assigned, if sole, the husband may assign for a valuable consideration : Siter’s Case, 4 Rawle 468; Timbers v. Katz, 6 W. & Ser. 298; Coale v. Smith, 4 Barr 388; Shay v. Sessman, 10 Barr 432; Krupp v. Scholl, 10 Barr 193; Clevenstine’s Appeal, 3 Harris 495; McConnell v. Wenrich, 4 Harris 365.

I thought on the argument that a distinction could be taken in favor of a fund, expectant on a life estate which outlived the husband ; for it seemed to me unreasonable that a husband’s assignment, which could not put the assignee into possession till, after the discoverture of the wife, should be held to bar her; but an attentive consideration of the authorities, and especially of Woelper’s Appeal, 2 Barr 71, has dissipated this expectation. In that case, as in this, the wife’s chose was reversionary and dependent on a life estate, and the husband was trustee of the tenant for life; yet it was held that his conversion of the fund, in fraud of the cestui que trust, was a reduction of it to possession that gave him the absolute title as against his wife. The principle of decision that runs through all the cases, is that a transfer for value is a reduction to possession, whether as to choses presently reducible, reversionary interests, or bare possibilities. However averse to tMs conclusion some of us might be if the question were an open one, we remember that our office is jus dicere, and not jus dare; and we bow to authorities which we are bound to respect.

The decree is affirmed.


text:
    Eberly versus Groff.
    1. Interrogatories, though not indispensable to a bill in equity, become a part of it when founded on a matter contained in the charging part of the bill; and the defendant is compellable to answer the allegations or interrogatories.
    2. When an answer contains facts not responsive to any interrogatory in the bill it is not an answer for the defendant; but the facts, if material, must be established by independent proof.
    3. It is otherwise when the answer is responsive to the bill; in such case it is evidence for the defendant, and the plaintiff must overcome it by counter evidence by two witnesses, or of one witness and strong circumstances in corroboration ; otherwise it will prevail.
    '4. The answer will have the same operation although the equity of the plaintiff's bill be grounded on an allegation of fraud.

    Appeal from the decree of the Common Pleas of Lancaster county.

    This was an appeal from the decree of the Common Pleas on a proceeding in equity, instituted by a bill of Jacob Eberly, executor, &c., of Abraham Wenger, deceased, Solomon Meyer, administrator, &c., of Jacob Meyer, deceased, and the Farmers’ Bank of Lancaster, v. John Groff, John W. Groff, and Levi W. Groff. The bill was filed November 20, 1851, and it was therein asked that an assignment by John Groff to Levi W. Groff of certain bonds, be set aside, and that Levi W. Groff be required to deliver up the bonds for the use of the plaintiffs, and that John W. Groff, the obligor, be required to pay to the plaintiffs so much of1 the money secured by the said bonds as has become due with interest, and the remainder as it shall become due and payable; and for general relief.
    On the 14th of January, 1847, John Groff, one of the defendants and the father of the other two defendants, was indebted to the plaintiffs in several sums, amounting in the aggregate to <$7240.00, with interest. On that day he assigned and transferred to his son, Levi W. Groff, six several bonds of John W. Groff to himself, five of them conditioned for the payment of $300 each on the 1st of April, in each of the years 1850, 1851, 1852, 1853 and 1854; and the sixth being for the payment of $200 on the 1st of April, 1855: amounting altogether to $1700.
    At the time of this assignment and transfer, John Groff was insolvent. He had previously, on the 5th of January, 1847, confessed judgments to other creditors more than sufficient to cover his real estate; among which judgments was one in favor of Levi W. Groff for $714; and about a month after this transaction, viz., on the 17th of February, 1847, he made a general assignment in trust for his creditors, under which but little was realized applicable to the claims of the plaintiffs.
    The question at issue between the parties was, whether the assignment and transfer of j;he six bonds by John Groff to Levi W. Groff on the 14th of January, 1847, was fraudulent and void as against the plaintiffs.
    To maintain the affirmative, the plaintiffs’ counsel read the depositions of four witnesses. They also read the deposition of the defendant, Levi W. Groff, taken in the case of Deshong et al. v. Groff.
    By these depositions it appeared that at the time of the transfer of the bonds, Levi was allowed $866 for work done by him after he became of age, and $500 for improvements done to John Groff’s property while Levi farmed it as his tenant on the shares; the balance, $344, being apparently paid in cash, though afterwards returned to Levi and by him paid over to some of his father’s creditors. It also appeared that it was a matter of general conversation in the neighborhood, previous to the assignment of the bonds, that John Groff was insolvent and likely to break up; and that Levi W. Groff spoke about becoming an assignee of his father, one or more weeks before the assignment.
    No testimony of other persons was taken on the part of the defendants; but for Levi it was contended that the allowances of $866 for work over age, and $500 for improvements, were made in pursuance of a previous contract to that effect between his father and himself; and their answer to the 4th and 5th interrogatories of the plaintiffs, was relied on to establish this.
    The plaintiffs objected they had not read any part of the answer of the defendants to prove any of the disputed facts; but established their whole case by independent testimony; having, by their general replication, denied all the facts set forth in the answer, inconsistent with, and in avoidance of those alleged by the plaintiffs. The Court, however, decided that it was evidence to prove the fact of a previous contract -between the parties, and upon that evidence dismissed the bill; from which decision the plaintiffs appealed to the Supreme Court.
    Opinion of Lonq, J. — “The plaintiffs in this case complain against the defendants, that certain bonds given by John W. Groff to John Groff, were fraudulently assigned and transferred to Levi W.- Groff, one of the defendants; and certain interrogatories were propounded by the plaintiffs to the defendants, relative to those bonds and other matters, upon which the plaintiffs rely for a decree in their favor.
    “ The defendant, Levi W. Groff, in answering those interrogatories, denies the allegations made by the plaintiffs, and upon which the complaint rests. This answer is responsive to the bill filed. The law appears to be, that ‘the answer of a defendant to a.bill filed against him upon any matter stated in .the bill and responsive to it, is evidence in his own favor, unless it is overcome by the satisfactory testimony of two opposing witnesses, or of a witness corroborated by other circumstances and facts, which give to it a greater weight than the answer, or which is equivalent in weight to a second witness2 Story on Equity Jur. sect. 1528; 2 Daniels’ Practice, 400; 1 Greenleaf s Evidence, sect. 260.
    “ In this case I have been at a loss to discover, from the testimony of any witness or circumstance produced by the plaintiffs, any evidence to overturn the answer of the defendant, Levi W. Groff, made under oath, and which was made in reply to the questions put to him by the plaintiffs in their bill. The consideration of the assignment of the bonds is fully explained in the answer of this defendant, and if believed, goes to show that the transaction was a fair and legal one. The circumstances connected with the transfer of the bonds and the testimony of some of the witnesses examined, in the absence of the answer of the defendants, would be calculated to cast a shadow over the fairness of the transaction ; but those doubts, if the answer can be relied upon, are removed by that answer.”
    November 15, 1852, bill dismissed at the costs of the plaintiff.
    It was assigned for error:—
    1. The Court erred in deciding that the matters set forth in the answer, in avoidance of the allegations of the bill, were responsive to the bill and evidence in the case to rebut or explain the facts proved by the plaintiffs.
    2. The Court erred in dismissing the bill, and in not decreeing as therein prayed for.

      Ellmaker, with whom was Eranhlin, for appellants.
    The allegation of the plaintiffs was, that the assignment of 14th of January, 1847, was fraudulent. ’ This allegation was denied by the defendants, and it therefore became incumbent on the plaintiffs to prove it. They took upon themselves the burden of this proof, and showed by the testimony of Squire Weidman and by the deposition of Levi W. Groff, the recipient of the transfer, that the bulk of its consideration was an allowance for work done over age, and for improvements made on a farm occupied by him as a tenant of his father. Neither of these was a sufficient consideration to support the assignment against creditors. That a son working over age is not a sufficient consideration for assignment against creditors, is settled by the cases of Hack v. Stewart, 8
      Barr 213; Bash v. Bash, 9 Barr 260; Zerbe v. Miller, 4 Harris 488.
    So of improvements. The tenant making improvements cannot recover value from the landlord without an express warrant: 6 Cowan 475, Mumford v. Brown; 1 W. & Ser. 530, Long v. Fitzimmons; 4 Whart. 226, Phillips v. Monges.
    If, therefore, any part of the consideration of the transfer was tainted by either of these elements of fraud, they corrupted and avoided the whole; and the evidence on the part of the plaintiffs showed that they both largely entered into it. To relieve themselves from the effect of this evidence and of the principles of law applicable to it, the defendants insisted that the work over age had been done and the improvements made, in pursuance of contracts between the son and father, stipulating for payment to be made for them. They took no testimony to prove any such contract, but relied upon their own statement contained in their answer, averring the existence of such contracts. The appellants contend that this being an independent fact, introduced by defendants and not responsive to, or in denial of the allegations of fact contained in the bill, the burden of proof lies on the defendants alleging it. The doctrine on this point is stated by Judge Story, in his Equity Jurisprudence, vol. 2, p. 996, sec. 1528 and 1529 : Reference was also made to 2 Danl. Ch. Pr. 399-400, 4 Law Lib. 237.
    It was said that the answer was not read in evidence, nor relied upon on the part of the plaintiffs, to establish the plaintiff’s allegation of fraud in the transfer of the bonds, but that fraud in the transfer was proved by independent testimony equivalent to that of two witnesses. The primd facie case thus made out, was allowed to be overcome by the allegation in the answer of facts, it was said, not responsive to, but in avoidance of the complaint. That this was error, reference was also made to 4 Russell 112, Field v. Sowle, 3 Eng. Ch. 588; 7 Blackford 96, Clark v. Spears; 1 R. & M. 64, 4 Eng. Ch. 325; 3 Mason 378; 2 John. Ch. 62; Id. 88, 94.
    It was said, in conclusion, that the answer was not evidence, and that the Court should have decreed as prayed for.

      Stevens, contrá.
    — It was alleged in the bill that the bonds in question had been assigned without consideration, and in fraud of creditors, and the bill contained interrogatories. To the allegations in the bill and interrogatories the defendants answered under oath, denying the fraud; and the answers of the defendants were confined to the matters alleged in the bill and inquired of in the interrogatories. The plaintiff took other evidence, none of which, it was said, proved any fraud, or in any way contradicted the evidence of the defendant. If the plaintiffs chose to make witnesses of the defendants, their answer to the bill must be taken for what it is worth: Story’s Eq. Pl. see. 849; 2 Story’s Eq. sec. 1528; 1 Greenleaf's Ev. sec. 260; 6 Ves. 39-40. Even if an issue at law were directed after answer, the answer should be directed to be read in evidence to the jury.
    But if the answer be not evidence, the plaintiffs should have established, by affirmative proof, the allegations on which they relied. The plaintiffs did not prove any fact tending to invalidate the assignment; they merely proved that the consideration of it was the labor of the defendant, but that without more was insufficient. The defendant, Levi W. Groff, proved by John W. Gfroff, every fact necessary to establish his claim to compensation for his work, and for improvements. The joining of said John W. Groff in the bill did not render him incompetent as a witness in favor of Levi, if John had no interest in the matter. Without the answer, the plaintiffs made out no sufficient case; and with it, a meritorious case was made out for the defendant. The plaintiffs did not ask for an issue, and must stand on the case presented by the bill, answer, and the evidence of John W. Groff.
    June 9, 1853,
   Thé opinion of the Court was delivered, by

Woodward, J.

— The plaintiffs’ bill admits an assignment of the bonds, but charges that it was without consideration, and fraudulent as to creditors; and, following up this charge with interrogatories, the defendants are called on to state the consideration. The defendants answering admit the assignment, but deny that it was without consideration, and set forth fully not only the services and payments which constituted the consideration, but the contract also in virtue of which the services were rendered.

To this answer a general replication was put in; and now the plaintiffs say the contract set forth by the defendants is in avoidance of, and not responsive to their bill, and, therefore, unless proved by competent testimony, the defendants are entitled to no benefit from it.

If this position be well taken, the plaintiffs are entitled to the relief sought, for they have it in their proofs that Levi, knowing the deep indebtedness of his father, received the assignment of these bonds on a consideration, resting chiefly in labor and improvements rendered; and, the law undoubtedly is that a son who works for his father, after he is twenty-one years of age, does not thereby establish a debt against his father, unless there has been a previous contract or assumpsit on the part of his father: Zerbe v. Miller, 4 Harris 496.

The question then is, what effect, according to the rules of equity pleadings, is to be given to the answer of the defendants setting forth the contract between the father and son ?

Interrogatories, though not indispensable to a bill in equity, become part of it when founded on any matter contained in the charging part of the bill, and such interrogatories the defendant is compelled to answer. The rule then is that an answer which contains facts not responsive to any allegations or interrogatories in the bill is not evidence for the defendant; but the facts must be established by him, if material, by independent proof. It is otherwise where the answer is responsive to the bill; for in such case it is evidence for the defendant, and the plaintiff must overcome it by counter evidence of two witnesses, or of one witness and strong circumstances in corroboration, otherwise it will prevail : Story's Equity Pleading, § 849 a; 2 Daniels’ Chan. Prac. 10, 19; Bank of United States v. Beverly, 1 How Sup. Ct. R. 134; Hart v. TenEyck, 2 Johns. Ch. 92; Commonwealth v. Cullen, 1 Harris 143.

The operation of the defendant’s answer is the same, although the equity of the plaintiffs’ bill is grounded on the allegation of fraud: Dilly v. Bernard, 8 Grill & Johnson 171; McDonald v. McLeod, 1 Iredell’s Eq. 226; Lewis v. Owens, Id. 290; Murray v. Blatchford, 1 Wend. 583.

In some cases it is difficult to distinguish between matter in avoidance, and that which is responsive; but in the case before us there is no difficulty. The fourth and fifth interrogatories of the plaintiffs, demand, in express terms, a statement of the contract and bargain between Levi W. Groff and his father. They were bound to set them forth, or assign a satisfactory reason for not doing so. Their answers to these interrogatories describe a valid contract, in pursuance of which the services and improvements of the son were rendered, and we cannot doubt that they are, in the strictest sense, responsive to the plaintiffs’ bill. As there was not a witness, document, or fact before the Court to countervail these answers, there was nothing on which to found a decree in favor of the plaintiffs, and the Court were right in dismissing their bill.

The decree is affirmed.