author: Knox, J.

text:
    Shumway versus Phillips.
    1. Possession of land is sufficient to protect tire possessor against all but the owner of the legal title. A trespasser cannot gainsay, such right of possession.
    2. A naked possession is sufficient to recover in ejectment against one who entered afterwards without title.
    Error to the Common Pleas of Erie county.

    This was an action of ejectment by Greorge Phillips v. Bradford Shumway, for a piece of land lying north of donation tract No. 1986, and running east and west. Miles, a surveyor, who had made the original survey of the 10th Donation District, being requested, in 1817 or 1818, to run the line of tract 1986, made a survey. Some of the-corners of the tract could not be found. From the survey which he then made, it appeared that there was a strip of vacant land about 70 perches wide, lying north of the donation tracts, and between them and the state line as marked before the purchase of the triangle on Lake Erie. This, or a part of it, was in dispute in this case.
    The following was stated by the judge in his charge to the jury :
    “ Dena Drake testifies that his father came to this country in 1817, having bought from a man by the name of Potter, donation tract No. 1986. That the next year he went to Mr. Miles, who was a surveyor and had been in employment under the government in running out the donation lands, to ascertain the lines of that tract. That Miles did run the lines, and run what is now called the southern line, as the north line of the tract — and at the same time suggested to Drake, the father, that the land north was open for settlement. That he did settle on it, and cleared land and built upon it. That some time prior to 1828 he had cleared up to the line run by Miles, the southern line, until the time of his death, when he left his son Erancis Drake, who continued in possession and occupancy up to the same line, and in 1888 sold to the witness Dena Drake, by deed which is given in evidence, dated 22d January, 1833. That he the witness continued to occupy to the same line and sold to Daniel Shepherd by deed, dated 24th December, 1841, and a deed is shown from Shepherd to plaintiff, dated June, 1851. There is nothing more shown in relation to the donation tract No. 1986. No deed from Potter to Drake—no evidence that Potter had any title to it, and no title shown in any one, or whether the tract, as such, was claimed or improved by the Drakes or any one since.”
    In the counter statement it was said that'Paul Drake settled on the Gore, claiming to the line which Miles had marked as the north line of 1986; built a house on it in 1818, in which he continued to reside till his death in 1828. That in 1818 he cleared to the line and put his fence on it.

    Also that in 1848, whilst Shepherd was in possession, claiming to the line and fence as aforesaid, the defendant entered and took possession north of the fence and line, and built a house a few perches north of it, claiming six roods as part of lot 1986. That shortly afterwards Shepherd sold to Phillips, the plaintiff, all his right and title in the premises; all of the fence, except a few rods next the house of the defendant, then standing on the line where Paul Drake placed it.
    On the trial the following points were submitted on the part of the plaintiff:

    If Paul Drake (having in 1817 or 1818 settled on land north of and adjoining donation tract No. 1986 as vacant, and designing to obtain a title from the Commonwealth) got William Miles to trace the line between him and said donation tract, claimed up to the line so traced, and died in possession, having in part cleared to, and put his fence on said line, and was succeeded by his son Francis, who, claiming through his father, continued such possession and claim till he sold in 1833 to Dena Drake; and if said possession and claim were continued by those claiming through said Drake till 1848, when defendant entered north of the line, these, with other undisputed facts in the case, entitle plaintiff to recover up to the line so run by Miles.
    2. That if the plaintiff and those under whom he claims have had actual continuous possession of the land in controversy, claiming and using it as their own for twenty-one years preceding the entry of the defendant, he has a good title to recover by the statute of limitations.
    3. That when the claimants of'adjoining tracts have long respectively occupied up to and acquiesced in a line as the division line between them, clear evidence should be required that such line is not on the true line, and also where the true original dividing line is, in order to overthrow such occupancy; and this is so though such occupancy may have been somewhat short of twenty-one years.
    On the part of the defendant the following points were submitted, viz.:
    1. If the jury believe from the evidence that the Messrs. Drakes owned donation tract No. 1986 at the time Miles run the line on the north side of said tract, and then commenced an improvement on the gore, and in making their improvement built their fence over on and including within said improvements a part of said tract, the statute of limitations does not commence to run so long as the said tract was occupied by the said Drakes; and there is no evidence given showing when the Drakes parted with’ their possession to said tract No.’1986.
    2. To give title by twenty-one years’ adverse possession, the possession must be open, hostile, and adverse; and it is incumbent upon the party so claiming. to show the commencement of such hostile and adverse possession.
    3. The plaintiff in this ease cannot avail himself of the possession of the Drakes and Shepherd, if they ever did hold the disputed piece of land adversely for twenty-one years; the conveyance to the plaintiff bounds him on the south by the north line of tract No. 1986, and his claim must be confined to the true line of said lot.
    The charge of the Court was, in part, as follows;
    “ The issue to be tried in this case, arises on an ejectment brought by plaintiff against defendant, for a small strip of land claimed by the plaintiff as a part of a tract lying north of the donation tracts and between them and the old state line, called the Gore. The defendant claims it as part of donation tract No. 1986, but shows no title either in himself or any one else to that tract.

      “The first question for the jury then is, whether the south line or the north as presented on the draft in evidence is the true line between the donation tract No. 1986 and the .gore. If the evidence satisfies the jury that the southern line is the true line, the plaintiff is entitled to recover, having shown a continued occupancy and possession under an actual settlement, commenced in 1818, and no title or pretence of title in any one else to the tract north of the donation land.
    “If the testimony satisfies you that the northern line on the draft is the true north line of tract No. 1986, then these and other matters are to be taken into consideration.
    * * * * * * *
    “ If the evidence then establishes the northern line as the true line of lot No. 1986; then arises the question presented in the defendant’s first point, and indeed all the others involving the statute of limitations.,. Whatever the decision might be as between the owners of donation tract No. 1986 and the occupant situated as Drake is shown in the testimony here, or those claiming and holding under him, and claiming to hold one tract north of the donation land by settlement and the donation tract itself under an alleged purchase', and occupying and cultivating part of both tracts under the same fence and apparently one improvement, it is not necessary to determine in this case. The defendant here showing no title to donation tract No. 1986, has not put himself in a position to raise the question, and therefore the question is ruled in the negative. To the second point it is answered, that it is correct as a general position; and in this case, if the plaintiff has shown a continued and unbroken possession and occupancy in the land in dispute in those under whom he claims, it is to be presumed to be adverse or hostile as against one showing no title; and to the 3d point it is answered that if Shepherd, and those under whom he held, claimed the southern line as the line of the tract, the deed to Phillips would pass to him all the rights he had to the strip, if it ever were such a part of the donation tract originally, as against one showing no title. The plaintiff’s points are answered in the affirmative, with the explanation in the general charge.”
    Verdict was rendered for the plaintiff.
    It was assigned for error: 1. The-Court erred in answering the plaintiff’s points in the affirmative. 2. The Court erred in answering the defendant’s points in the negative. 8. In the general charge so far as the same related to the statute of limitations.
    Marshall, for the plaintiff in error, defendant below.
    In relation to the part of the charge as follows: The defendant “showing no title to donation tract No. 1986, has not put himself in a position to raise the question, and therefore the point (meaning the defendant’s point) is ruled in the negative:" It was said, that the evidence showed the defendant in actual possession of tract No. 1986, and that his house and other buildings were actually on the disputed strip; supposing the defendant showed no title to said tract 1986, the plaintiff stood in no better condition. He did not pretend to show title'to any part of said tract other than the statute of limitations. Then they were both intruders; and to entitle the plaintiff to recover in ejectment against the defendant, in such case he was bound to show the necessary facts to constitute a title under the statute of limitations, therefore the defendant was entitled to an affirmative answer to his points: Huey et al. v. Smith, 3 Barr 353.

      Babbitt, for defendant in error.
    It was of no consequence whether the land in controversy was part of lot No. 1986, or not; the prior claim to, and possession of it as “the gore,” by those through whom plaintiff claimed, and whose entire right and title thereto he had purchased, being a sufficient title for him to recover upon against the defendant, who, though forbidden, intruded forcibly, in 1848, (without title) on the actual and long-continued possession and rights which the plaintiff had bought; and this is so, even if such possession had been less than twenty-one years.
    A naked possession is good title to recover in ejectment against one who put the plaintiff out, and can show no better title: 2 Ser. & R. 57, Woods v. Lane. A wrongdoer or disseisor may recover in ejectment against a subsequent intruder, without showing twenty-one years’ possession: 1 Barr 295, Hoey v. Eurman. Prior possession, short of twenty-one years, is primé facie evidence of right, sufficient to recover on against a subsequent possession: 10 Johns. 339, Smith v. Dorillard.
    But though not necessary, the plaintiff’s title by the statute of limitations was shown. An actual continued and undisputed pos-session and claim of the land in controversy from 1818 to 1848, was proved, the occupants during all that time claiming it up to a distinct line and fence, as “the gore,” and not as part of lot 1986.
    But it is said that Paul Drake, during part of the same time, was claiming and occupying lot 1986; and that during the time he was claiming and occupying said last-mentioned tract, the statute did not run, because a man cannot hold adversely to himself.
    We answer that the possession of the two Drakes of lot 1986 was adverse to all the world but themselves ; and as the defendant does not claim through them, it was adverse to him and all those whose title he may have, if he has any, so long as it was continued; and so also of Paul’s possession of “ the gore” during the same time. But further; as the two possessions were of distinct parts, separated by a distinct line and fence, and claimed by distinct titles, the possession of the “ gore” would be adverse to that of lot 1986, even in a contest between the two titles. 9 Watts 567, Brown v. M’Kinney, decides that occupation up to a fence on each side of a town lot, each party claiming the land on his own side as his own, gives an incontestible right, whether the fence be on the right line or not.
    It was said that it appeared that defendant had resided on 1986 for several years prior to his intrusion on the plaintiff, and that there was no evidence of his making any claim until 1848, that the division fence was not on the right line. He built his house north of the line after his intrusion. He never had any other buildings there.
   The opinion of the Court was delivered by

Knox, J.

Had the defendant shown title in him self to donation tract No. 1986, the decision of the cause would have turned upon the question whether the land in controversy was within the lines of that survey, and if so, whether the plaintiff below had acquired title by the statute of limitations.

The defendant, however, showed no title, and the first possession gave the better right. This was indisputably in the plaintiff. He and those under whom, he claimed had the actual possession of what was called the gore, the subject of dispute, for many years before the defendant entered.

This possession of the plaintiff was sufficient to protect him against all but the owner of the legal title. The defendant was a trespasser, and could not gainsay the plaintiff’s right.

That a naked possession is sufficient to recover in ejectment against one who has put the plaintiff out without title, is fully established by the cases of Woods v. Lane, 2 Ser. & R. 57, and Hoey v. Furman, 1 Barr 295.

Judgment affirmed.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    Coleman versus Fobes.
    1. A partial payment on a promissory note, by one of two joint debtors, not partners at the time, will not avoid the bar of the Statute of Limitations as respects the other party. The case of Zent’s Executors v. Heart and Eyster, 8 Barr 337, overruled.
    2. The surety in a joint note made a payment on account within six years, before suit, which he endorsed upon it. In a joint suit upon the note against the two makers, it was Held, that such partial payment by one party was not such an act as justified an inference of a new promise by the other, so as to avoid the bar of the Statute of Limitations.
    Error to the Common Pleas of M’Kean county.

      This was an action brought originally before a justice of the peace in favor of John Fobes and Henry Bryan v. Horace Coleman and Soloman Sartwell, Jr. The summons was issued on 9th January, 1845. The suit was founded on a note as follows :
    $67.63.
    For value received we promise to pay Fobes & Bryan, or bearer, sixty-seven dollars and sixty-three cents by the first day of December, one thousand eight hundred and thirty-six, with interest. June 3, 1835. Horace Coleman,
    S. Sartwell, Jr., surety.
    On the back of-said note were the words and figures following: “ Received, Smethport, January 18, ’40, on this note twelve dollars eighteen cents.
    “$12.18.”
    On appeal the defendants plead non assumpsit infra sex annos, and on the trial there was submitted on the part of the defendants, inter alia, the following points :
    2. That Sartwell as appears by the note being surety, his simple liability to pay for Coleman was all the relation that existed between them, and he had no authority to bind Coleman in' any way except to refund to Sartwell any amount he might rightfully pay for-Coleman.
    3. That payment by one joint debtor is no evidence of a promise to-pay by the other joint debtor, and if the jury believe the payment endorsed on the back of the note was made by Sartwell, it was not sufficient to take the case out of the statute of limitations as to Coleman; and that 'as there is no evidence against Coleman of a promise or acknowledgment for more than six years before the commencement of this suit; and as in a joint action ex contractu, the plaintiff must recover against all or none of the defendants, the plaintiff cannot recover.
    The answer of the Court to the foregoing points is contained in the following part of the charge.
    “ The endorsement on the note made by Judge Sartwell on the 18th January, 1840, prevents the bar of the statute of limitations. Payment made on a note by one joint promissor within six years, will take the case out of the statute of limitations, not only as to him who makes the payment, but as to all other joint promisors in the note; and the fact .that the party making the payment was a surety, cannot change the principle or be productive of a different result.”
    Error was assigned to the said answer of the Court.

      Scofield, for plaintiffs in error.
    The endorsement of 18th January, 1840, made by Sartwell, was not sufficient to avoid the statute in an action against Coleman and Sartwell. As between mere principal and surety there is no such relation as makes the act or admission of one evidence against the other, who pleads the statute. One joint debtor cannot make a promise to affect the other debtor, so as to take the case out of the statute of limitations: 2 Comstock’s N. Y. Rep. 523. The principle there decided is, that one joint debtor is not the agent for the other.
    In the case of a partnership after its dissolution, one partner cannot by his acknowledgment revive a partnership debt so as to deprive the other partner of the benefit of the statute of limitations: Levy v. Cadet, 17 Ser. & R. 126; Searight v. Craighead and Ege, 1 Pa. Rep. 135 et seq. One of the partners cannot enter into a new contract or engagement for his associates, nor bind them by a new promise, and if one acknowledges an account it will not affect the other: Per Bell, J., Schoneman v. Fegley, 7 Barr 438. After dissolution the several members of the firm have the power to settle and liquidate claims, and are agents for each other in winding up the affairs; and if with this general power, the acknowledgement of an account by one will not affect the other, it is respectfully submitted that, for greater reason, the acknowledgment of a surety will not affect the principal, so as to defeat, as to him, the plea of the statute.
    In the case of Zent’s Executors v. Heart & Eyster, 8 Barr 337, the payments, by which constructive acknowledgment of the debt was inferred, were made by the principal; in the present case they are made by the person who appears on the face of the instrument as a surety.

    The right of action on the note was not barred by the statute of limitations at the time of the endorsement by Sartwell, and Sartwell and Coleman were at that time under a legal obligation to pay it; and without some consideration, which is not alleged or pretended, the new promise inferred from the endorsement is a mere nudum paetum, and no cause of action can arise or be derived from it: Case v. Cushman, 1 Barr 246. This doctrine should control an attempt to charge co-debtors on a subsequent acknowledgment of one.

      Brown, for defendant.
    That the defendants are joint contractors is shown by Craddock v. Armor, 10 Watts 258, in which it is ruled that the annexation of the words “ surety for the fulfilment of the above” to the name of the joint promissor in a note, will not change his character of promissor to that of guarantor, but that he was jointly liable in the same suit with the other promissors. The case of Whitcomb v. Whiting, Douglas 652, directly decided that the admission or acknowledgment by one joint maker of a note, takes the case out of the statute as to the others; and that doctrine seems now to be firmly established in England and most of the United States.
    Zent’s Executors v. Heart and Eyster, 8 Barr 337, rules this case. That was an action upon a joint and several promissory note of a principal and surety in which defendants severally pleaded non assumpsit infra sex amos. The principal had paid the interest regularly within six years as. it accrued on the note, and it was held that such payments by the principal were constructive acknowledgments of the debt by both him and the surety, and as such operated as a new promise by both to pay according to the terms of the note. The Court say that the act of one joint contractor is the act of the other, if performed while their responsibility remained the same as at first. This doctrine is directly opposed to 2 Comstock 523, relied on by plaintiff. In the case of Levy v. Cadet, cited contrá, it is decided that one partner can by his acknowledgment take the case out of the statute as to the others, if made during the existence of the partnership; or in the language of the Chief Justice in 8 Barr 337, “while their responsibility remained the same as at first.” Case v. Cushman was doubted in Morgan v. Walton, 4 Barr 322, and overruled in Forney v. Benedict, 5 Barr 225. (See also 9 Barr 259.)
   The opinion of the Court was delivered by

Lowrie, J.

Coleman and Sartwell (the latter as surety) gave their joint promissory note to Fobes, and within six years a small payment was made by Sartwell, and six years after the maturity of the note, suit is, brought, and the defendants rely on the statute of limitations. The Court below ruled that the payment of one removed the bar of the statute as to both. Is this right ? It is supported by Zent’s Executor v. Heart, 8 State Rep. 337, which is founded on English authorities; but which is certainly inconsistent with the principles applied in this state to the statute of limitations.

We cannot but regard the case of Whitcomb v. Whiting, Doug. 629, which declared that a payment by one joint debtor was a new promise by all, as being at the bottom of all the confusion that exists in the decisions, in England and in this country, on the subject of this statute in its relation to joint debtors. That case has often been questioned: 2 B. & C. 23; 1 B. & Ald. 467; and it is contrary to the earlier case of Bland v. Haselrig, 2 Vent. 151, and it is so regarded by Abbott, C. J., 2 Barn. & C. 23. It set an example which cannot be consistently followed out, because it violates the cardinal rule requiring a new promise, though it professes otherwise. It is, therefore, not surprising to find it carried to the extreme of sanctioning the judgment that the payment of part by the distribution of a bankrupt’s estate, 2 H. Bl. 340, or by a bankrupt debtor, in fraud of his co-debtors, 3 Ad. & Ellis N. S. 839, will revive- the debt as to the others; and that payment by a principal on the principal security will revive a collateral engagement by a surety: 11 Mees. & W. 329. In none of these cases is there anything like a new promise; for neither the party thus declared to b'e bound, nor any one constituted as his agent, had done any act from which a new promise by him could be inferred.

Burleigh v. Stott, 2 Barn. & C. 36, and several other modern English cases, 10 Id. 122, 2 Bing. 306, fully sustain Whitcomb v. Whiting. And because it seemed, in Atkins v. Tredgold, 2 Barn. & C. 23, and Slater v. Lawson, 1 B. & Ad. 396, to be carrying the precedent too far to decide that, where one of two debtors is dead, either the survivor or the administrator of the decedent could revive the debt against the other; therefore the distinction is attempted that their liability is severed by the death of one of them, and consequently the power of each over the other is gone. But this is an artificial distinction, depending merely on the form of the remedy, not attempted in the analogous case of Jackson v. Fairbank, 2 H. Bl. 340, and not at all affecting the substantial relation of the debtors to each other; a distinction, good enough perhaps for breaking the influence of a bad precedent, but a very bad one, if allowed, to affect real promises.

The distinction put forward in Pitnam v. Foster, 1 Barn. & C. 248, is no less artificial, where one of the joint debtors was a single woman, and had become married before the new promise by her co-debtor. It was held that, because a married woman-could make no contract, no new promise could he implied as against her from that of her co-debtor. Why not ? All these cases assume the principle that the power of co-debtors to act for each other is of the essence of the relation of co-debtors, and that could not be changed by her own act of contracting marriage; If it is not so, then the new promises were artificial, not real, being implied from a supposed duty in order to fit the form of action; and ivhy not admit, such an implication even against a married woman ?

All these exceptional cases are illogical evasions of the principle of Whitcomb v. Whiting, a vice of which the case of Wood v. Braddick, 1 Taunt. 104, is not chargeable, where one was allowed to bind his late copartners, though by their dissolution they had revoked the power of each over the other so far as a mutual agreement could have that effect. Equally illogical is the conclusion in Davies v. Edwards, 7 Exch. Rep. 22, that a payment of the bankrupt estate of one debtor does revive the debt as to the others ; thus overruling the more logical judgment of Jackson v. Fairbank.

We have said that the case of Whitcomb v. Whiting violates the rule that requires a new promise; and yet it professes to follow it. But how? It declares that each joint debtor is the agent of the others, and thus makes the admission 'of one 'the admission, and hence the promise, of all. But in Perham v. Raynal, 2 Bing. 206, this principle seemed to need some aid; and these joint creditors are regarded as jointly concerned, and therefore as standing in a position analogous to that of co-trespassers, in the cases where the declarations of one are evidence against the others. In a Georgia case this idea takes another form of expression, and the right of one to affect all is put upon their community of interest:” Cox v. Bailey, Georg. Rep. 447; 1 Liv. Law Mag. 19. It is evident that it would not do to enlarge the influence of this idea; for it would most seriously endanger the rights of property in all cases where there is a joint or common ownership or possession. It is an unsuccessful effort to justify the assumption that joint debtors have power over each other.

It is not true that joint debtors as such merely are the agents of each other. Partners are so while the relation continues, and this is part of the law and essence of that relation, but not of that of joint debtors. The distinction is palpable, when it is noticed that a joint contract by persons not partners can have no inception, and cannot be changed in time, amount, subject, form, or substance, without the several act of each of the joint contractors. Their interests are joined only in so far as the contract joins them. Their contract or understanding by which they agree together to enter into the joint liability to the creditor, is one thing, and the joint contract with the creditor anothér thing. Their relations to each other are defined by the former, and their joint relations to their creditor by the latter; and their joint relations in one aspect, in no sense define those in the other. Whether as among themselves, one is to pay all, or half, or none, depends, not upon the contract with the creditor, but on their own arrangement. One alone may be the real debtor, and may be so abundantly able to pay that the others may be said to have no real interest in the matter. And even if they are, as among themselves, equal debtors, there is no real community of interest, for by enforcing contribution, each is made to answer for his true share.

To carry out this principle of Whitcomb v. Whiting, would allow a debtor that is hopelessly bankrupt to bind' others by his new promise, and even to be hired to do it, and thus far the example has led in England: 3 Ad. & El. N. S. 839. And it would of course allow a surety to make a new promise that would bind his principal, though the principal alone would be affected by it, which appears to be the present case.

A distinction has been attempted on the supposition that there is more virtue in a part payment than in a new promise; but the supposition is groundless, and we know of no decision that gives it countenance. It is an act from which a new promise is inferred; but if such an inference is to be a thing of truth, and not of fiction, it can only be of a promise by him who did the act. In Whitcomb v. Whiting, it is said that the co-debtor “ has had the advantage of a partial payment, and therefore must be bound by it.” How had the advantage ? In no way, if the fact of payment charges him, when, without it, he would have been discharged; or merely substitutes the duty of contribution for that of direct payment.

In Pennsylvania we have adhered more closely to the rule that there must be a new promise, or circumstances from which one can be properly implied, in order to remove the bar of the statute; and this has saved us from many errors into which others have fallen. Thus, with us, a new promise by one late partner, as such merely, does not bind the others: 17 Ser. & R. 128; 5 Whart. 538; 1 Penna. R. 138; 3 W. & Ser. 345; 7 State Rep. 438. These decisions are in direct opposition to the case of Whitcomb v. Whiting; for by the dissolution of a partnership, partner debtors become mere joint debtors; and the case of Zent v. Heart is a plain departure from our decisions. We hold that a general direction in a will to pay debts (1 Binney R. 209; 8 State R. 508; 4 Id. 56) and an acknowledgment to a stranger (17 State Rep. 286, 302; 1 Liv. Law Mag. 114) do not remove the bar of the statute, because no new promise can be inferred from such' acts. Elsewhere all these points have had a contrary decision: 1 Taunt. 104; 4 Cowen 494; 1 Salk. 154; 1 Eq. Ca. Ab. 305; 4 Esp. 46. In order, therefore, to preserve, as near as possible, the consistency of our own decisions, to avoid the invasion of the cardinal rule that requires a new promise, and to escape the confusion into which others have fallen, we must regard our case of Zent’s Executors v. Heart as a mistake.

We are of opinion that a partial payment by one of several joint debtors, not partners at the time, is not such an act as justifies an inference of a new promise by the others, so as to remove the bar of the statute of limitations.

Judgment reversed, and a new trial awarded.


text:
    Long versus Maguire.
    1. Where evidence is admissible as to one of two defendants, a general objection to it is not sustainable.
    2. Where a deposition received in evidence was admissible against one of two defendants, it will be presumed that the Court controlled its application to its legitimate purpose, where the contrary does not appear from the record.
    Error to the Common Pleas of Warren county.

    This was an action of ejectment by Hugh Maguire v. George Long and William Long, to September Term, 1848. Plea, not guilty.
    On the trial, on the part of the plaintiff was offered in evidence the record of the Court of Common Pleas of Warren county, No. 41, June Term, 1847, Hugh Maguire v. William Long, being an action of trespass quare clausum fregit, together with the evidence of James A. Alexander, which, taken from the President Judge’s notes of the same, was as follows: I was a witness in the trial of that trespass ease; this William Long is the same that was party in that. The controversy there was about the same strip of land; * * * * the question of title pretty much in the same way on that trial as on this.
    Plaintiff then offered to read in evidence the deposition of Ebenezer Pelton, being part of the record aforesaid; to which defendants objected, because Q-eorge Long was not a party to that suit. The Court overruled the objection, and allowed the deposition to be read, because “ prima facie it appears now that the same title was involved before as now; nor does it appear that the additional party defendant has or claims any title different from the other, or any title whatever, but merely that he is in possession.” Defendant’s counsel excepted.
    December 8, 1849, verdict for the plaintiff.
    It was assigned for error that the Court erred in admitting in evidence the record and deposition.

      Brown, for plaintiff in error.
    Reference was made to the Act of Assembly of 28th March, 1814, which provides that a deposition which was admissible in the cause in which it was taken, shall be admissible in any subsequent cause wherein the same matter shall be in dispute between the same parties or persons, &c. But a deposition taken in an action between A. and B. is not admissible in an action between A. and B. with notice to C. as term tenant, when it is sought to charge C.’s land: 7 Watts 200-1, Good v. Good; 3 Barr 422; 3 Watts 470; Wharton’s. Digest, Evidence, IV., page 804.

      Scofield, contà,
    the Court declined to hear. In the argument submitted, reference was made to 9 W. & Ser. 82, Spencer v. Campbell; 1 Greenleaf’s Ev. sec. 189.
   The opinion of the Court was delivered by

Knox, J.

This was an action of ejectment. Upon the trial, Maguire, who was the plaintiff below, offered in evidence the record of a suit in trespass quare clausum fregit brought by himself against William Long, in which the title to the same land was in controversy; and also offered the deposition of Ebenezer Eelton taken in that suit.

The defendant objected to the record and deposition, upon the ground that it was between other parties, George Long not having been a party to the record. The objection was overruled, and the evidence admitted. This is the error assigned.

It is clear that the evidence was properly admitted as against William Long, one of the defendants, and it does not appear that it was used for any purpose against George. Where evidence is admissible as to one of several defendants, a general objection cannot be sustained. If the record showed that it was used against Gteorge Long, he would have just cause of complaint. Rut this does not appear, and the presumption is, that the Court controlled its application to its legitimate purpose.

Judgment affirmed.


author: Black, C. J.

text:
    Burson's Appeal.
    1. The Act of 1848, relating to the rights of married women, was not intended to divest the interest which a husband, before the passage of that act, had in the real estate of his wife. Such action would be unconstitutional.
    2. The Court of Common Pleas, either under the 11th section of the Act of 26th April, 1850, or otherwise, has no power, on the application of a married woman, to appoint a trustee, to take charge of the interest of the wife in real estate which she had at the time of her marriage, instead of her husband. The latter is entitled to the control of his wife’s real estate, of which he cannot be deprived by a trustee so appointed.
    3. Though the Common Pleas, on the petition of the wife, has appointed a trustee to take charge of her interest in such real estate, the same Court, either under the same or another President Judge, may, on the application of the husband, vacate the appointment.
    4. The fact that the real estate had been allotted to one of the heirs from whom the wife, as the widow of a former husband, was entitled to receive the interest of her portion annually, does not alter the case.
    Appeal from the decree of the Common Pleas of Greene county.

    Sarab Burson, the appellant, was first married to John Walton. After bis death she intermarried with Levi Burson. The second marriage was contracted before the passage of the Act 11th April, 1848, to secure the rights of married women. Under proceedings in partition the estate of her first husband was valued, and one-third of the valuation was directed to remain charged thereon during her natural life, the interest thereof to be paid to her annually. This annuity, amounting to several hundred dollars, was received by her second husband for several years. Differences having existed between them she left his house, and at September Term, 1850, her petition for the appointment of a trustee was presented to the Court. In the petition it was represented that at the time of her marriage with the said Burson, she was domiciled in the said county of Greene. That in consequence of the death of her former husband, John Walton, late of Washington county, she was at the time of her second marriage, and still is entitled to an estate in dower in the lands of said John Walton, lying in the counties of Washington and Greene, as her own separate property, and has no trustee of the same, and praying the Court to appoint a suitable person as a trustee of the same in pursuance of the provisions of the 11th section of the Act, viz., the Act of 25th April, 1850, and recommending a person as trustee.
    The said section is as follows: “ That whenever, by the provisions of the Act, &c., passed the 11th day of April, 1848, the property of a married woman is secured to her, and she shall have no trustee, it shall be lawful for any such married woman to apply to the Court of Common Pleas of the county where she was domiciled at the time of her marriage, for the appointment of a trustee of the same, and such Court shall appoint a trustee of the same, not being the husband of the said petitioner.”
    The appointment was resisted by her husband, but at the November Term of the Court, 1850, a trustee was appointed.
    At May Term, 1851, Levi Burson, the husband, obtained a rule to show cause why the appointment of the trustee should not be vacated. No change of circumstances was alleged. At March Term, 1852, the rule was made absolute, another President Judge being on the bench, and from such decree or order Sarah Burson appealed.

      McKennan, for appellant.
    No new state of facts existed after the first action of the Court in appointing the trustee, and it was contended that the Court below had no power to revise the first-judgment. Also, that the interest of a widow in the valuation money of the real estate of her deceased husband is an incorporeal hereditament, ranking as real estate/ That in this a second husband cannot have an estate by the curtesy. He can be tenant by the curtesy only of an estate of inheritance in the wife, and not of a life estate in land or an incorporeal hereditament for life in the wife. Though by common law he is entitled to'the possession of his wife’s real estate, the possession is in her right, resulting from an incapacity in the wife to hold separately from him. But by the Act of 1848 a separate legal status is given to the wife ; the common law fiction of the inseparable identity of husband and wife is abrogated. Her personal estate is withdrawn from his control, and as to her real estate she is invested with a capacity of separate seisin, use, and enjoyment. It was said that this did not trench upon any estate vested in the husband, but only precluded a right of possession which he had before for his wife, and only because she had no distinct legal existence: Cumming’s Appeal, 1 Jones 275.

      Deford, with whom was Montgomery, for appellee.
    The same Court had the power to correct a mistaken judgment. It made no difference whether the power was exercised by the judge who made the mistake, or by another: 5 Clark & Finn. 129. The error appeared on the face of the record. The property was stated in the petition to be an interest which the petitioner had in the estate of her first husband, and which “ she was entitled to at the time of her second marriage.” The matter was therefore said to be within the purview of a bill of review, 6 Barr 403, and could be reheard; 2 Mad. Ch. Pr. 483; 2 Smith’s Ch. Pr. 26 to 36; 2 Ch. Gen. Pr. 585 to 604; 3 Danl. Ch. 1603-1622; 1649-50; 2 Atk. 152; Id. 439. A rehearing is within the discretion of the Court: 1 Page Ch. 256; 7 John. C. R. 250; 1 Id. 48-166; 1 Ired. Ch. 36; 9 Verm. 41; 3 John. Ch. 587; 6 Id. 255.
    It was said that the interest which a widow has in the real estate of her deceased husband is realty, and upon the confirmation to the heir in proceedings in partition or valuation it remains realty: 3 W. & Ser. 456, Miller v. Leidig. By marriage the husband acquires an absolute right to his wife’s personal estate and to the possession of her real estate: 1 Jones 275. In Boose’s Appeal, 6 Harris 392, it was decided that the husband has the power to appropriate to his own use the interest of his wife in real estate left by her first husband. The case of Lancaster Bank v. Stauffer, 10 Barr 398, cited; also 2 Miles 278.
    It was further contended that the interest of the husband in such estate of his wife being vested before the passage of the Act of 1848, was not divested by that Act: Opinion of Loweie, J., in Boose’s Appeal, before cited. Also cited 10 Barr 505, and 6 Harris 506, Peck v. Ward.
    No charge of ill-treatment is alleged in the petition in this case, and there was no evidence of unwillingness on the part of the husband to live with and maintain his wife.
   The opinion of the Court was delivered by

Black, C. J.

Mrs. Burson, the present appellant, who was a married woman and had a husband in full life, petitioned the Court of Common Pleas for the appointment of a trustee to take charge of her separate property, agreeably to the 11th section of the act of 25th April, 1850. The property to which she was entitled is mentioned in the petition;' but it is not stated when she became the owner of it. The fact now seems to be that it accrued to her before the act of 1848, relative to married women, was passed, and that she was then married to her present husband. A trustee was appointed, but at a subsequent term the subject was reconsidered and the appointment revoked. The petitioner appeals from the last order, and asks us to reverse it and reinstate the first one.

The legislature have not attempted by the Act of 1848, nor by any other law passed since that time, to divest the interest which a husband may have had in the real estate of his wife before the Act of 1848. They could not do so if they would.

On the face of this petition the property which the wife desired to put into the hands of a trustee for her separate use was real estate. It is described as an estate in dower in lands.” The common law right of the husband to control and have it in his possession is wholly unaffected by any statute. The fact that it had been appropriated and allotted to one of the heirs, who pays her a certain annuity in lieu of dower, makes no difference; for it is settled (3 W. & Ser. 456) that the widow’s interest in the land of her husband is not changed into personalty by proceedings in partition.

The Court had no power to appoint a trustee for the purpose desired in this ease. If the appointment had stood, it would have been practically a nullity; for the wife’s trustee could not have taken into his hands the money or property whose custody, control, and possession legally belonged to the husband. The judge, therefore, who made the first order, must either have been misinformed about the facts of the case, or else proceeded on a misconstruction of the law. The former reason probably accounts best for the error. But it matters not how the mistake occurred. It was a mistake, and we are not convinced by the argument of the appellant’s counsel that it was wrong in the same Court, though under the presidency of a different judge, to correct it.

Decree affirmed.


author: Woodward, J.

text:
    Boyle versus Rankin.
    1. An assignment or mortgage of personal property for a valuable consideration, unaccompanied by possession, though void as to creditors is binding on the assignors; and if the possession be improperly withheld it may be enforced by an-action of replevin.
    2. Two partners being indebted to another assigned to him, a “ stock of merchandise, accounts, bonds, notes, judgments and accounts of the firm,” as as collateral security, that they would give to him a bond and approved security for the debt within five days thereafter. It was Held, that the assignment, though unaccompanied by possession, was valid as between the parties; and that the promised security not having been given within the time specified, no creditors having intervened, the possession could be enforced by an action of replevin.
    Error to the Common Pleas of Fayette county.

    This was an action of replevin to March Term 1851, by Thomas Rankin v. Robert Boyle and John P. Boyle, and was brought under the following circumstances.
    On a settlement between Robert and John P. Boyle and Thomas Rankin, on the 19th December, 1850, the said Robert and John P. Boyle were found to be indebted to Thomas Rankin to the amount of about $3488, for which the latter agreed to wait for one and two years, provided they gave him security for the payment of the same at that time. Robert and John P. Boyle had a store in Masontown, about twelve miles distant, conducted in the name of John P. Boyle & Co., and not being at the time prepared with security, they assigned and released to the said Rankin, all their right, title, interest, and claim “ to the stock of merchandise, accounts, bonds, notes, judgments, and accounts of the firm of John P. Boyle & Co., doing business at Masontown, as a collateral security that the said Robert Boyle shall make, execute, and deliver to the said Thomas Rankin the bond and approved security above mentioned, in five days from this date.” It was added: “ Then it is understood on his compliance with said agreement that this assignment is to be null and void.”
    It was dated 19th December, 1850, and signed by Robert Boyle and John P. Boyle, and sealed.
    The goods and effects were not delivered, and remained in the possession of John P. Boyle & Co., as before; nor was there any schedule, inventory, or appraisement of the property taken. John P. Boyle & Co., at the end of five days, refused to deliver the goods and effects; whereupon Thomas Rankin sued out the writ of replevin, gave bond to the sheriff, and replevied and took possession of the goods and effects, which, according to the appraisement attached to the sheriff’s return, amounted to $5602.84.
    The goods were subsequently sold by the direction of Rankin.
    The narr. was in the usual form. The pleas non cepit and property. The plaintiff having died before the trial, the administrators of his estate'were substituted.
    On the part of the defendants it was contended, on the trial, that Thomas Rankin acquired no interest in the property by virtue of the assignment; that the assignment was nothing but a pledge, and the goods and effects never having been delivered, the assignment as such, was absolutely void; that he was not entitled to the possession of the goods, and that the action would not lie.
    March 17, 1853, a verdict was entered for the plaintiff by consent, with leave to the Court to enter judgment for the defendants, non obstante. On June 23, 1858, the Court directed judgment to be entered on the verdict for the plaintiff.

    The opinion of the Court was as follows:
    “We are satisfied that the instrument of assignment constituted a mortgage, which may be with or without a delivery of the possession of the goods. In the case of a pledge the thing itself passes, but in' a mortgage the title to the thing passes, either with or without possession. The pledgee has but a special property in the pledge. It is the actual bailment of personal property as a security for some debt or engagement. In the case of a mortgage the legal title passes to the mortgagee, subject to be reclaimed at a time stipulated, and if not, then the title becomes absolute, though equity will interfere to compel a redemption: Story on Bailments, secs. 286, 287, 288.
    “ It is not necessary to inquire whether the possession of the goods could have been required from the mortgagors before the expiration of-the-five days; but certainly after that period they were entitled to the possession. If the agreement contemplated leaving the goods in the possession of the mortgagors, under any pretext whatever, it would be void per se as to creditors: Clow v. Woods, 5 Ser. & R. 275. But it would not be void as between mortgagor and mortgagee, and.here no,ereditors interfered. Why, then, should not the contract be completed by the delivery of the goods ? The plaintiffs had the right of possession, and this action was at their service to enforce it. Judgment, therefore, upon the verdict, upon payment of the jury fee.”
    It was assigned for error: 1st. The Court erred in deciding “that the instrument of assignment constituted a mortgage.” 2d. In not entering judgment for the defendants, on the verdict.

      Kaine and Howell, for plaintiffs in error.
    It was contended that if the instrument of assignment constituted but a pawn or pledge, then Thomas Rankin acquired no interest, as possession was not delivered: Story on Bailments, secs. 286-7, 297, 300. But if it were a mortgage, it was said that it was also void for want of delivery of the property: Clow v. Woods, 5 Ser. & R. 278. It was however contended that it was not a mortgage—that merchandise, accounts, bonds, notes, and judgments were not the subject of mortgage. As to distinction between pledges and mortgages, reference was made to 4 Kent 138. It was said that the authorities referred to showed that if the property had been delivered, it would have been a pledge ; and it not having been delivered, the instrument passed no interest in the property. Case of Pritchett v. Jones, 4 Rawle 266, also referred to.

      Veech, for defendants in error.
    “By a grant or conveyance of goods in gage or mortgage, the whole legal title passes conditionally to the mortgagee; and if not redeemed at the time stipulated, the title becomes absolute at law, though equity will interfere to compel a redemption:” Story on Bailments, sec. 287. “A mortgage may be without possession, but a pledge cannot be without possession:” Id. Sec. 288. “A pledge is not a property-created upon a condition of defeasance, like a mortgage. It has no analogy to the case of a right, which is absolute to vest, or to be defeated on the happening of an event:” Kent, C. J., in Cortelyou v. Lansing, 2 Caine’s Ca. in Er. 206. A parvnee of stock is not bound to bring a bill of foreclosure, but may sell without it: Chancery cases of Tucker &c. v. Wilson; and Kemp v. Westbrook. Although the assignment unaccompanied by possession would have been unavailing as against execution creditors of the assignors, yet as against themselves it is valid: 7 Watts 545; 7 W. & Ser. 373, Vandyke v. Crist, a case of replevin; also 3 Barr 50, Dennis v. Alexander; Addison’s Rep. 131, Woods v. Nixon; 3 Harris 513, Harlan v. Harlan, also a case of replevin. It is unnecessary to inquire whether the assignment in question is a pledge or a pawn, a mortgage or a sale. In either case, Rankin had a right of possession, as against the assignors, for if he had not, the instrument would be without meaning. If there be a surplus after payment of debts and expenses, the assignors are entitled to it.
   The opinion of the Court was delivered by

Woodward, J.

It has long been settled in Pennsylvania that replevin lies wherever one man claims goods in the possession of another: Weaver v. Lawrence, 1 Dallas 157; Woods v. Nixon, Addison 134. And this whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession: Harlan v. Harlan, 3 Harris 513.

That the assignment of the Boyles of the 19th December, 1850, passed their title in the goods and property mentioned, cannot be doubted without impeaching the fairness of the transaction, and that is not questioned. Equally clear is it that when the five days elapsed without their giving Rankin the promised security, he was entitled to take possession of the assigned property. Without possession the assignment was no security; for though valid and binding between the parties, it would have been held void as against creditors levying on the property in the hands of the Boyles, and it would have been void also as against bonâ fide purchasers without notice.

Such mortgages of personal property by debtors in failing circumstances are mere ropes of sand as against their creditors, as a volume of cases from Clow v. Woods, 5 Ser. & R., demonstrates, but binding and obligatory, nevertheless, between the parties ; and good even against creditors, if possession, which is the decisive badge of ownership, be taken under the mortgage before creditors take process. The objects of this assignment, which were fair, could not, then, be accomplished without possession taken by Rankin, and the replevin was the appropriate action to put him into possession.

It is unnecessary to trace distinctions between a pawn or pledge and a mortgage, which would serve only to embarrass a simple transaction with the discussion of artificial rules. The debtors intended to pledge their property to secure a bonâ fide creditor; and to make it security, he compelled them, by this action, to surrender the possession to him. This has often been done, and where there are no creditors to question the transaction, it is not subject to objection from the debtors themselves.

The judgment is affirmed.


author: Lewis, J.

text:
    Woods versus Wallace.
    1. A written mortgage cannot be converted by parol into a conditional sale. The rule is applicable to both parties to the instrument.
    2. An interest in land may pass by a writing not under seal; so a valid mortgage may be created by a written instrument not under seal.
    3. The remedy upon such an instrument or the effect of recording it, not decided in this case.
    Error to the Court of Common Pleas of Beaver county.

    This was an action of assumpsit by Hugh Woods v. Daniel H. Wallace, instituted on 19th July, 1850, on a promissory note, as follows:
    “27th June, 1846.
    “ Four years after date, I promise to pay to Hugh Woods the sum of Five Hundred Dollars, with four per cent, interest, it being for a lot of goods bought of him, for which he holds a mortgage on half a lot of ground, owned by my father, at Hardscrabble.
    “Daniel H. Wallace.”

      It was stated that the plaintiff, on the 27th June, 1846, sold to the defendant a lot of store goods, for which he gave the note above referred to. The plea was payment with leave, &c.
    The note having been given in evidence, Robert Wallace was called on the part of the defendant, and it was offered to prove by him certain matters specified; to which objection was made on part of the plaintiff, but the objection was overruled.
    The testimony of Robert Wallace was, inter alia, as follows:

      Robert Wallace.—The first I knew about the matter, Woods came to my house in the evening, and said he had a lot of goods on hand, which he wanted to dispose of. * * * He said he thought it would suit him (Daniel Wallace) to buy them. I said I had no money, and I did not think that Daniel had any money to buy them with; but that if the goods would suit Daniel, and he (the plaintiff) would take the half of a lot at Hardscrabble, below the Lockhouse lot, Daniel might take the goods. He (Woods) said, “won’t you give me the whole of it?” I said no. I will give you the one-half of it for the goods, and that is all I will 'do. I said, I won’t do that, unless you give four years, so that Daniel may redeem it (the half of said lot) if he is able. That run us till night. I wrote an instrument, showing that I would make a deed if the money was not paid;, and the note was given at that time. He (the defendant, Daniel Wallace) had the right to redeem the lot.
    Woods came down here in the beginning of 1850, and asked me if I could not sell that lot for him, that he would sooner have the money than the lot. I told him he had better sell the lot himself. He said he was so confined at the paper mill, that he could not attend to it, This was before the note was due. I notified him of a survey to take place to divide the lot. He said he would not have anything to do with the lot, and would not go. I was ready to make the deed at any time.. I notified him that he might have' his choice of the halves of the lot. He said he would not have anything to do with the lot. I was in readiness to deliver a deed for the lot. Daniel notified him that he would not redeem the lot. It was before this, he (Woods) told me to try to sell it for him. He said he would let it go at a sacrifice. He was notified that there was a survey to be made.
    Cross-examined.—I notified the 'plaintiff (Woods) of the survey in 1851. I owned it all when the note was drawn. It was bought from Charles Morrow. Fisher rented it from me since this transaction. I offered to sell the' whole lot to Dr. Shoenberger, before and after the bargain with Woods. Freeman never made me an offer for the same. It is eleven or more miles from Brighton. I think I did offer to sell it to Dr. Shoenberger after the contract between Woods and Daniel H. Wallace. I offered it for $1200.

      Examined by defendant’s counsel.—I expected to sell to Shoenberger, and that was the reason of the right of redemption being reserved. I would not have done anything in violation of the contract.
    The paper termed a mortgage, referred to in the note, was as follows:
    “Know all men by these presents, That I, Robert Wallace, for and in consideration of the sum of Five Hundred Dollars, in store goods, sold to my son Daniel, for which he, the said Daniel, has given his bond, bearing even date herewith, and stands bound unto Hugh Woods of Brighton, in the above sum of five hundred dollars. That in order the better to secure the said Woods, that I have granted, bargained, sold, assigned and set over, and by these presents do grant, bargain, sell, assign, and set over unto the said Hugh Woods, his heirs and assigns, the within Indenture of Mortgage for the one-half of a lot of ground laying alongside of the canal, below the Hardscrabble Dam, commencing below the Lock-house lot, and running down the Canal to Robinson’s lot, containing two acres and a half, be the same more or less, to have and to hold one-half of the above described property, granted and assigned, or to be unto the said Hugh Woods, his heirs and assigns for ever. Subject, nevertheless, to be redeemed at anytime during the term of four years, or at any time said Daniel Wallace pays the above sum, any time during the above term. In witness whereof, I have set my hand this 27th of June, 1846. Robert Wallace.”
    The charge of the Court was as follows:
    “This is an action of assumpsit, brought to recover the amount of a promissory note. * * * * * *
    “The defence to the note is, that, at the time it and the paper called a mortgage, were given, the agreement between the parties was, that if the amount was not paid at the expiration of four years, the lot upon which the mortgage was given, was to be taken by the plaintiff, in full satisfaction of the claim, and that a deed had been executed and tendered, in pursuance of the agreement, which was refused.
    “The plaintiff denies the allegation of the defendant, alleging that the mortgage was given as collateral security to the noté; and further, that if any such agreement was made, it was procured by the fraudulent misrepresentations of the defendant.
    “ The jury will inquire, 1st. What was the agreement between the parties when the note was given ? Did the plaintiff agree to take a conveyance of the mortgaged property, in full satisfaction for his claim; or was the mortgage merely given to secure the payment of the note ?
    “ The papers upon their face sustain the position of the plaintiff; and the burden of proof is thrown upon the defendant to show clearly that the transaction was different from what appears in the written instrument.
    “If the jury are clearly satisfied that the agreement was, that the lot should be received as an extinguishment of the claim, unless redeemed within the four years, at the option of the defendant, the remaining inquiry is, as to the fairness of the agreement; and here the,, burden of proof is upon the plaintiff.
    “ Did the defendant, knowingly and wilfully, misrepresent the value of the lot, or the offers that had been made to his father for it ? and was the plaintiff induced to enter into the agreement by these representations ? If so, it is not binding, and your verdict should be for the plaintiff.
    “ But if the agreement is found to have been as represented by' the defendant, and there was no fraud in it, and the deed was duly tendered, there can be no recovery.”
    March 25, 1853, verdict for defendant.
    Error was assigned to the admission of the testimony of Wallace. 2. In charging the jury that they will inquire, first, what was the agreement between the parties when the note was given ? and whether the plaintiff agreed to take a conveyance of the mortgaged property in full satisfaction of his claim, or was the mortgage given merely to secure the payment of the note.

      Fetterman, with whom was Roberts, for plaintiff in error.
    It was not alleged on the offer that there had been either fraud or mistake, and they are the only exceptions to the rule that parol evidence is not admissible to contradict, alter, add to, or diminish a written instrument. The note on its face is absolute, and the testimony was offered to change it into a conditional one. The rule of excluding oral testimony has been applied generally “ to simple contracts in writing, and with the same exceptions as to specialties and contracts under seal:” 1 Greenleaf, sec. 276. That the evidence was inadmissible further reference was made to 1 Greenleaf, sec. 275-7; 1 Dallas 426; Id. 340; 3 Ser. & R. 607; 10 Id. 339; 2 Watts 187; 4 W. & Ser. 472; 1 Barr 454; 4 Id. 493; 2 Watts 89; 7 Ser. & R. 115.
    The instrument contained words of present conveyance subject to the right of redemption within a specified time, and not an assurance that the lot should be conveyed to the plaintiff at some future time. If a mortgage, it would always remain so: 6 Watts 408, Huston, J. The offer was to show a conditional sale, for which purpose .the evidence was not admissible; but if admitted, the Court should have charged the jury that it should not have that effect: 3 Watts 197, Colwell v. Woods. A conveyance absolute on its face may be shown to be a mortgage; but a mortgage cannot be shown to be a conditional sale by the same means: 6 Watts 126, Kunkle v. Wolfersberger.
    That the instrument was not under seal, does not make it less a mortgage. Under the Act of 1772, for the prevention of frauds and perjuries, a writing, not under seal, signed by the parties, showing a contract for the purpose, is sufficient to pass an interest in land: 5 Watts 528, Colt v. Selden. The word parole in that act means not in writing: 3 Pa. Rep. 240.
    It was said that any agreement of and concerning lands, although not under seal, may be recorded: 4 Rawle 440, Heilman v. Heilman: 3 W. & Ser. 54; Id. 334.
    Cunningham, for defendant in error.
    It was contended that the testimony was admissible to show the transaction between the parties: 10 Ser. & R. 292, Tilghman, J., in Miller v. Henderson; 16 Id. 424; 6 W. & Ser. 516; 1 Id. 464; 5 Id. 363; 14 Id. 326; 1 W. & Ser. 324; 3 Id. 389; 9 Id. 484.
    It was further contended that the instrument in question was not a mortgage neither in form nor by the intention of the parties; that a mortgage must be under seal; that a sci. fa. could not be issued on the one in question, because it is not a deed. It was said that all contracts are by specialty or parol—that there is no third class of contracts in writing: 7 T. R. 350; 3 Pa. Rep. 414. It was said that therefore there is no such thing as a parol mortgage of lands: 3 Pa. R. 240; 3 Barr 233.
    It was said that in this case there was an attempt to use the instrument for a different purpose than that for which it was originally designed.
    2. If the written instrument is not to be understood without reference to facts dehors the writing, the jury may be allowed to judge of the whole: 12 Ser. & R. 131; 14 Ser. & R. 311; 11 Id. 280; 5 Binn. 499.
   The opinion of the Court was delivered by

Lewis, J.

Notwithstanding the numerous exceptions which have been recognised by the Courts, the rule is not denied that where the parties have deliberately put their engagement into writing, parol evidence is inadmissible to contradict or vary the written instrument. It is not because a seal is put to the contract that it shall not be explained away, varied, or rendered ineffectual, but because the writing itself is the best possible evidence of the meaning of the parties: 1 Gfreenl. Ev. sec. 275-6. And the rule, therefore, applies as well to simple contracts in writing as to instruments under seal: Id. A seal is not necessary in a contract for the sale of land. It is sufficient, and is within the protection of the rule, if it be “ in writing and signed by the parties 5 Watts 525-8. If an interest in land may- pass by writing, not under seal, there is no. reason why an encumbrance upon it may not be created by a similar instrument. We have no doubt that a valid mortgage may be created by a written instrument not under seal. We are not now to decide any question in regard to the remedy upon such an instrument, or the effect of recording it. Between the present parties no such questions can arise in this action.

In cases of fraud, or mistake of material facts, where it would be unconscientious to enforce the agreement according to its written terms, or where ,the parties mistook the meaning of any particular words, or to decipher words, or explain their technical or local meaning, or where extraneous facts are necessary to a proper understanding of the contract, or where there is a latent ambiguity, and perhaps in some other cases, parol evidence has been received. Where a grantee fraudulently attempts to. convert into an absolute sale that which was intended to be only a security for a debt, the evidence has also been received: Morris v. Nixon, 17 Pet. 109. This last is upon the double ground of fraud and a breach of trust. In Pennsylvania the rule is well settled that a deed, absolute on its face, may be shown, by parol evidence, to have been given as a mortgage. But it seems to be equally well settled, that an instrument of writing, appearing upon its face to be a mortgage, cannot be converted by parol evidence into a conditional sale. In Brown v. Nickle, 6 Barr 391, it is stated by the whole Court that in Colwell v. Woods it was “determined that a'conveyance and simultaneous covenant to reconvey on repayment of the purchase-money before a given day, must be construed to be a mortgage, though it appear by parol that the parties did not intend it to be so and that in Kerr v. Gilmore, “it was decided that it is not competent to the parties to prove by parol that the defeasance was a subsequent and independent agreement.” In Brown v. Nickle, the point was distinctly decided that “ the understanding of the parties must be gathered from the instrument, and cannot be gathered from parol proof,” so as to convert a written mortgage into a conditional sale. In that case the plaintiff offered evidence that “ the parties and scrivener intended a conditional sale, and not a mortgage.” The evidence was rejected, and upon error the decision of the Court upon that point was affirmed by this Court: 6 Barr 391. The law looks with such disfavor upon every attempt to convert a mere security for a debt into a conditional sale, that where the instrument is a mortgage, a written stipulation that, “ if the money be not paid at the day named, the estate is to be absolute without further deed, and that the instrument is not to be considered in the nature of a mortgage,” will be inoperative—it is still a mortgage: Rankin v. Mortimere, 7 Watts 372. In Kunkle v. Wolfersberger, 6 Watts 126, the rule is explicitly stated that “a formal conveyance may certainly be shown to he a mortgage by extrinsic proof, while a formal mortgage may not be shown to be a conditional sale by the same means. In the one case the proof raises an equity consistent with the Writing, and in the other would contradict it,” “which,” adds Chief Justice Gibson, “seems to he the principle of Woods v. Colwell, 3 Watts 188.” Here the rule and the reasons upon which it is founded are stated. In the one case there is an equity to be protected, which is perfectly consistent with a legal conveyance. The equity of redemption, so far from being in contradiction of a conveyance, presupposes its existence. Parol evidence to establish this equity, therefore, does not contradict the written conveyance. Besides, an equitable defence of this character commends itself to the consideration of the chancellor, and fixes itself upon the conscience of the grantee, as a trust, which it would be a fraud to violate. In the other case, where the instrument is a mortgage, the parol evidence to prove it a conditional sale, would directly contradict the writing. This will be apparent the moment the difference between the two contracts is considered. A mortgagee has no estate in the land—it is not subject to lien, to sale on execution, to dower, or to curtesy. It is a mere security for a debt, and passes by parol sale and delivery of the debt without writing. Upon the death of the mortgagee it goes to his personal representatives, as a chose in action. While, on the other hand, the estate of the mortgagor is real estate, subject to curtesy, dower, lien, and sale on execution, will not pass without writing, and goes, like other real estate, to the heirs. Where the instrument is nothing but personal estate, a mere chose in action, it is plain that parol evidence, to convert it into a conveyance of land, or into a contract for the sale of real estate, contradicts its whole nature, object, and effect. But there is another objection to such evidence. It tends to create an estate in land “ by parol, without writing signed by the parties,-” and is forbidden by the statute of frauds and perjuries. All the dangers which that statute was intended to provide against, demand its application to a case of this kind, as imperiously as to any other. To permit the mortgagor, the man who wrote the instrument in his own way, without fraud or mistake of any kind, to be himself the witness to impeach it, for the purpose of forcing upon the mortgagee a conveyance of the land in satisfaction of the debt, while, by the terms of the contract, and by the legal effect of it, the former reserved an indefinite right of redemption, would not only be attended with danger of perjury, but must necessarily produce injustice. Whether we take this contract as it is expressed in the written instrument, or as it is explained by the parol testimony of the mortgagor, it is clear that the mortgagee had no right to the land upon the failure to pay within the time stipulated. He could have enforced no claim to the property as real estate. It was not subject in his hands to any of the rights or incidents of ownership. “ Once a mortgage always a mortgage,” is an elementary principle which would meet him at every step, in his efforts to enforce the rights now attempted to he raised in his behalf. No delay of payment would have vested in him any estate in the land without the consent of the mortgagor. There is no mutuality, and, therefore, hut little justice in such a defence. The rule that a written mortgage cannot be converted by parol into a conditional sale, is laid down in general terms. It is not founded upon the form, but upon the substance of the instrument. It rests upon a sound principle of policy, and .is enforced by positive statute. The reason for its existence is equally applicable to both parties, and justice demands that it should be enforced, not partially against one, but equally against both. It was said in Iddings v. Iddings, 7 Ser. & R. 115, that “the rules admitting parol evidence to affect written instruments, ought rather to be restrained than enlarged.” It is not our intention to attempt the vain effort to reconcile the cases on this subject; hut we believe the authorities in support of the rule, as now applied to this case, are not in conflict with any other decisions which we are hound to regard.

Among other matters in the offer, it was proposed to prove “ that before the note became due, Woods agreed to take the said lot or one-half lot, and authorized the witness to sell it for him, as his agent.” But the evidence given did not support the offer in this particular. No subsequent agreement to take the lot was shown. If any such agreement had been made upon sufficient consideration, an action might have been maintained upon it, in which the difference between the contract price and the value of the lot might, under ordinary circumstances, have been the measure of damages. So these damages, under proper pleadings, might have been set off against the plaintiff’s demand. These, it is presumed, would have been small in amount, as the defendant below would retain the lot. As the contract, if established, would be but in parol, its specific performance could not be enforced in any form, because it is prohibited by the statute of frauds and perjuries.

But on a careful examination of the testimony of Robert Wallace, the mortgagor, we do not see that he states, with precision, any parol agreement whatever, in opposition to the note and mortgage. He states a conversation between himself and Woods, about the sale of the goods and the lot, or half of the lot, but does not state that anything was agreed upon. On the contrary, the conversation is represented as continuing until night. He then adds, “ I wrote an instrument, showing that I would make a deed if the money was not paid; and the note was given at that time. He (the defendant, Daniel Wallace), had the right to redeem the lot.” His statement, that Daniel had the right to redeem the lot, accords with the terms of the mortgage; but his declaration that the written instrument shows “ that he would make a deed if the money was not paid,” was not even parol evidence of a contract contradicting the written one. On the contrary, it is only the mistaken construction of its legal effect, or what is equally objectionable, the misstatement of its contents, when the instrument is neither lost nor withheld, hut is produced in Court, and must show for itself. The remaining parts of Mr. Wallace’s testimony relate to subsequent conversations and transactions, which fail to establish the existence of any contract different from that expressed in the writing.

We are of opinion that there was error in deciding to admit parol evidence of the conditional sale, as proposed in the bill of exceptions; and also in submitting to the jury the evidence which was given under the offer, as sufficient ground for defeating the plaintiffs’ recovery. Upon the evidence given, as stated in the paper-hook of the defendant in error himself, the Court ought to have instructed the jury that the plaintiff was entitled to recover.

Judgment reversed and venire facias de novo awarded.


text:
    Kaine versus Weigley.
    1. The proposition that “ fraud must be proved and not presumed,” is to be understood only as affirming that a contract honest and lawful on its face, must he treated as such until it is shown to be otherwise by evidence either positive or circumstantial. Fraud may be inferred from facts calculated to establish it.
    2. Where the consideration money, specified in a conveyance of real estate made by an insolvent, was not paid at the time of the conveyance, it was the duty of the grantee, in an ejectment by one claiming as purchaser at a sheriff's sale subsequent to such conveyance, to show that such consideration money was afterwards paid—that it was a full price for the property and that the same was not purchased with an intent to hinder or defraud creditors.
    Error to the Common Fleas of Fayette county.

    This was an ejectment by Daniel Kaine v. Alexander Weigley, and Alexander Stewart and Isabella Stewart his wife, for a house and lot of ground.
    Both parties claimed under George G. Neal. In the spring of 1848, George G. Neal and John D. Scott, doing business in the name of Neal & Scott, commenced merchandising at Morris Cross Roads, in Fayette county, and bought their goods on credit principally in Baltimore. They became involved, and in December of that year failed. On the 15th of December, 1848, a judgment was entered against them in favor of Ford, Stannard & Co., of Baltimore, for $1063.48; and on the same day another judgment was entered against them in favor of Morris & Searight for $600. These judgments were given for debts previously contracted. On these two judgments (amounting, including debt, interest, and cost, to about $1700), executions were issued and all their personal property (consisting of store goods) was levied on and sold for about $1301.94. They owned a lot of ground at Morris Cross Roads, upon which, about the time they commenced keeping store, they built a store house, which cost from two to three hundred dollars. This was paid for principally out of the store. The house was occupied by them as a store room until their goods were sold by the sheriff in December, 1848. This house and lot George G. Neal conveyed to his brother-in-law, Alexander Stewart, and his sister Isabella Stewart (wife of the said Alexander), by deed dated Dec. 7, 1848, when he was in debt and insolvent. The consideration of this deed was stated to be two hundred and fifty dollars; under it they were in possession of, and claimed the property.
    On the 1st of January, 1849, King & Carey obtained a judgment against Neal & Scott- for $111, upon which a fi. fa. was issued and levied upon the house and lot. Under this-judgment the property was sold by the sheriff on the 4th of March, 1850, to Daniel Kaine, who took the deed in his own name for the benefit of his clients, King & Carey, who were merchants in ^Baltimore. Alexander Weigley was the tenant of Stewart and wife.
    On the part of the defence was shown the will of Isabella Neal, in which she devised to Isabella Neal, her daughter, $100, and appointed George G. Neal her executor. The will was proved 27th January, 1842.
    Also deed from Lyons and wife to George G. Neal, dated April 1, 1848, for the lot in dispute—consideration $100.
    Also deed from George G. Neal to Alexander Stewart and Isarbella his wife, for $250, dated December 7, 1848, for the property in dispute.
    A witness called by the defendants, said: “ I went to Stewart’s and wrote out the deed; signed it as a witness that night; no other person there.” When the deed was handed over, Neal said, you will give up the note. Mrs. Stewart went into the room and came out with one paper and some money rolled up in her hand, and laid both down on the table. Neal picked up the paper and said, “ This is my note,” and put it into his pocket and said, “ Squire, count out the money.” I picked up the money and counted; there was fifty dollars. Neal took the money. I had not the note in my hand; there was but. one paper.”
    On part of the plaintiff, it was testified that the property was worth from three to four hundred dollars. The plaintiff claimed to recover the property on the ground that the conveyance by Neal was fraudulent as to his creditors, and therefore void; and it was contended that the defendants were bound to show that the conveyance was fair and honest, and that the consideration mentioned in it had been paid.
    Gilmore, President J., charged, inter alia, as follows:.
    “ It is also contended that the conveyance of George G. Neal to Alexander Stewart and Isabella his wife (the real defendants), dated 7th December, 1848, is fraudulent and void, being voluntary and without consideration, and made to defraud creditors. The question of fraud in this case is one of fact, and for your determination. There can be no question but that Neal was indebted, and largely so, when he made the conveyance, and if it is without consideration, such as is expressed in the deed, it would be fraudulent and void. Is, then, the declaration in the deed, that the grantor received the consideration therein expressed, true, or is it false ? We have said that fraud would destroy the deed, and make it void and of no effect. This being the important consequence of fraud, it is also held, and juries are always instructed, as we now instruct you, that it must be proved, and cannot be presumed or surmised. That is, you must be satisfied of its existence, not merely suspect it. In other words, you must be able to say, under your Oaths— to swear in fact to its existence.

      “ You must be so well satisfied as to be able to swear that the consideration money of two hundred and fifty dollars, mentioned in the deed from George G. Neal to Stewart and wife was not paid, otherwise the defendants will be entitled to your verdict.”
    It was assigned for error, that the Court erred in charging, “ If it (the deed) is without consideration, such as is expressed in the deed, it would be fraudulent and void.”
    2. In charging, “ In other words, you must be able to say under your oaths—to swear in fact to its existence;” and also to the next following paragraph in the charge as printed.

      Kaine, with whom was Ewing, for plaintiff in error.
    It was said that as the statute of Elizabeth avoided all conveyances made with intent to defraud creditors, the payment of the consideration money, if it had been paid, would not validate the deed if the parties to it designed to commit a fraud upon the creditors of the grantor: 3 Watts 230, McKee v. Gilchrist; 11 Ser. & R. 328; Cowper 434.
    The doctrine that fraud must be proved, not presumed, is subject to the qualification that it may be established, like other facts, by presumptive evidence: 4 Watts 360, Rogers v. Hall; 4 Harris 488, Zerbe v. Miller; 1 Rawle 349, Geiger v. Welsh.

      As to the second assignment was cited Rogers v. Hall, also Zerbe v. Miller, and Lloyd v. Williams (9 Harris 327).

      Veech, contrá.
   The opinion of the Court was delivered by

Black, C. J.

This was an ejectment for a house and lot formerly owned by one Neal, under whom both parties claim. Neal conveyed it to his sister and her husband, the defendants in this cause, before judgments were entered up against him, but after he had become hopelessly insolvent. His creditors after-wards caused it to be sold for their debts, and the plaintiff, making title through a sheriff’s deed, avers that the previous conveyance was fraudulent and void.

One who has a bonâ fide debt against an insolvent man, may take property at a fair price in payment of it, without danger of having his title afterwards impeached. But when a person in failing circumstances sells land to one who is not his creditor, his motives are suspicious, for he can, if he pleases, put the money out of reach, and defeat those who are entitled to it. If the vendee knows that such is the vendor’s purpose, he must take the consequences in the loss of his title, though he has paid an outside price for it. When it is sold either in payment of a debt or for cash at a price considerably below its real value, the conveyance may be impugned by creditors .without proof of more than the vendee’s knowledge that the vendor was indebted. In such a case the parties cannot choose but know, that the creditors are cheated to the extent of the difference between the price and the value; and the transaction being touched with fraud is tainted throughout. If the transfer is made without any consideration at all, it is nakedly fraudulent, and it requires no evidence beyond that fact alone .to overthrow it.

In the present case it is alleged, that the conveyance was made when both parties knew the vendor to be insolvent; that the grantees were a brother-in-law and a sister of the grantor; that the consideration stated in the deed was less than the value of the land by twenty or twenty-five per cent.; that, .of the sum, which was said to be the price, only fifty dollars were paid when the deed was delivered, and that amount was handed to the grantor by his sister after they had gone together into a private room, from whence she returned with the money in her hand. I say these facts are alleged. I do not say that they were fully proved, or that if proved, the jury were bound to infer from them any actual dishonesty. But if true, they make out a very serious case, which ought to be submitted with no instructions tending to prevent a verdict for the plaintiff, unless the jury should be able to explain the evidence in some way consistently with the fairness of the transaction.

It is said that fraud must be proved, and is never to be presumed. This proposition can be admitted only in a qualified and very limited sense. But it is often urged at the bar, and sometimes assented to by judges, as if it were a fundamental maxim of the law, universally true, incapable of modification, and open to no exception: whereas it has scarcely extent enough to give it the dignity of a general rule; and, as far as,it does go, it is based on a principle which has no more application to frauds than to any other subject of judicial inquiry. It amounts but to this : that a contract, honest and lawful on its face, must be treated as such until it is shown to. be otherwise by evidence of some kind, either positive or circumstantial. It is not true that fraud can never be presumed. Presumptions are of two kinds, legal and natural. Allegations of fraud are sometimes supported by one and sometimes by the other, and are seldom, almost never, sustained by that direct and plenary proof which excludes all presumption. A sale of chattels without delivery, or a conveyance of land without consideration, is conclusively presumed to be fraudulent as against creditors, not only without proof of any dishonest intent, but in opposition to the most convincing evidence that the motives and objects of the parties were fair. This is an example of fraud established by mere presumption of law. A natural presumption is the deduction of one fact from another.. For instance: a person deeply indebted, and on the eve of bankruptcy, makes over his property to a near relative, who is known not to have the means of paying for it. From these facts a jury may infer the fact of a fraudulent intent to hinder and delay creditors. A presumption of fraud is .thus created, which the party who denies it must repel it by clear evidence, or else stand convicted. When creditors are about to be cheated, it is very uncommon for the perpetrators to proclaim their purpose, and call in witnesses to see it done. A resort to presumptive evidence, therefore, becomes absolutely necessary to protect the rights of honest men from this, as from other invasions. Upon such evidence the highest criminal punishments are inflicted, and the most important rights of property constantly determined. Fraud in the transfer of goods or lands may be shown by the same amount of proof which would establish any other fact, in its own nature as likely to exist. In any case, the number and cogency of the circumstances, from which guilt is to be inferred, are proportioned to the original improbability of the offence. The frequency of fraud upon creditors, the supposed difficulty of detection, the powerful motives which tempt an insolvent man to commit it, and the plausible casuistry with which it is sometimes reconciled to the consciences even of persons whose previous lives have been without reproach; these are the considerations which prevent us from classing it among the grossly improbable violations of moral duty; and therefore we often presume it from facts which may seem slight. Resides, when a man, who knows himself unable to pay his debts, disposes of his property for a just purpose, he can easily make and produce the clearest evidence of its fairness. If he sells for the benefit of his creditors, he can prove that he applied the proceeds to their use. It is no hardship upon an honest man to require a reasonable explanation of every suspicious circumstance, and rogues are not entitled to a veto upon the means employed for their detection.

We do not propose to say how much evidence is required to raise a presumption of actual fraud, either in this case or any other. The jury must weigh, on one hand, the facts which are adduced to prove it, and on the other, the nature of the accusation and the improbability of its truth arising from reasons a priori, together with the exculpatory facts, and then decide according as they find the preponderance to be. If the reasons pro and con are so evenly balanced that they can come to no conclusion, they must find the transaction honest, not upon the principle of the criminal law which gives the benefit of every doubt to the party accused, but because the burden of proof was on the other party at the start; and if he has done no more than create an equilibrium, he has failed to make out his case.

When the judge of the Common Pleas said that fraud was not to be presumed, he was right only if he meant that, in such a case as this, the law would not presume it from the naked transaction, without reference to any attendant facts. Rut it might be understood as an instruction that the jury could not infer it from the evidence which had been given. There was error in this, as well as in the concluding part of the charge where, according to our construction of it, the Court relieved the defendants from the burden of explaining the circumstances attending the transfer of the property, and threw it too heavily on the plaintiff. If the consideration mentioned in the deed was not paid at the time the deed was delivered, it became the duty of the defendant to show that it was paid afterwards; that it was a full price, and that it was agreed upon with no intent either to hinder, delay, or defraud creditors.

Judgment reversed and a venire facias de novo awarded.