text:
    Lloyd versus Williams.
    1. A conveyance by a son to his mother is not fraudulent, though she knows that he is in debt to others beyond the value of his property, if there be no inadequacy in the consideration, or taint of dishonesty about the transaction.
    2. A mother is held to stricter proof of her honesty in dealing with her son than a stranger would be; but, if she can show clearly that she has a just debt against him, she has the same right to secure it by taking a judgment or a conveyance that any other creditor would have.
    Error, to the Common Pleas of Blair county.

    This was an ejectment by William M. Lloyd v. William Williams, for a house and lot of ground, No. 14, in Hollidaysburg.
    On the 9th Nov. 1847, Wm. Williams, the nominal defendant, owning a large amount of real estate in and adjoining Hollidaysburg, free from encumbrance, sold and conveyed to his mother, the real defendant, a small part thereof, viz.: lot No. 14, the premises in controversy. On the 10th of Nov. 1847, and subsequently, a number of judgments were entered of record against William Williams, the largest of which was a cautionary judgment in favor of the Exchange Bank of Pittsburgh for $30,000. On this judgment a fi.fa. was issued to No. 8 of Dee. Term, 1849, under which the sheriff levied on all the real estate of William Williams, including such interest as he had in lot No. 14. After an amicable condemnation, and by consent, the property was sold in lots to different persons, for the entire sum of $28,000; lot No. 14 having been struck down at $2500 to Wm. M. Lloyd; who purchased with record and actual notice of the conveyance to Sarah Williams, on the 9th Nov. 1847. This ejectment was brought by William M. Lloyd against Wm. Williams; but by agreement of the parties filed, Sarah Williams was made the real defendant. It was stated that the authority to confess the judgment in favor of the bank was executed on the 9th Nov. 1847, the date of the conveyance to Sarah Williams.
    On the part of the plaintiff was given in evidence the record of the judgment above mentioned, in favor of the Exchange Bank, for $30,000, entered 10th November, 1847, together with the sheriff’s deed.
    On the part of the defendant was given in evidence the conveyance to Sarah Williams; and, to repel the presumption of fraud, it was shown that in 1810 William Barns, the father of Sarah Williams, conveyed to,his grandson, William Williams, a lot in G-reensburg, Pa., accompanied by a parol trust in favor of Sarah Williams. This property was held by William Williams for many years in trust for his mother, who improved it, lived on it, rented a portion of it, and exercised other acts of ownership over it until 1826, when she yielded her permission to her said son to sell it, on condition that out of the proceeds of sale he would purchase for her a comfortable home. The property was then sold for $2000. In 1836 William Williams having failed to invest the money, gave to his mother his note for $1800. This' note was shown to be in his handwriting of that date, and to have been in the possession of Mrs. Williams for many years previous to 1847. It was stated to be all she had of her father’s bounty j and it was said that to secure this claim Wm. Williams executed and delivered the deed of 9th Hov. 1847.
    Taylor, J., inter alia, instructed the jury that it was disclosed by the evidence that Williams, at the date of the conveyance to his mother, was indebted to an amount equal to the value of all his property. That the conveyance to his mother was made the same day the judgment-note was given to the bank, although the judgment was not entered until the day following. That it was done in contemplation of that act did not admit of a doubt. That, under these and other facts attending the transaction, he was asked to instruct the jury that the conveyance was fraudulent, and, so far as it interfered with the rights of creditors, -was void. He declined to do so, saying that there were facts in controversy, and he referred to the jury to decide, whether a good consideration for the conveyance had been shown, stating to the jury that if the sale or conveyance had been shown to have been made in discharge of an honest debt, a good consideration had been shown. 2dly. Were the circumstances of William Williams, as disclosed in the evidence, known to Sarah Williams at the time she took the conveyance, and was the conveyance taken at that particular time in view of her son’s large indebtedness, and to secure to herself the property before it could be reached by the Exchange Bank, or his other creditors ? If so, they were instructed to regard the conveyance as fraudulent' and void, and not standing in the way of the plaintiff’s recovery, although they should find it to have been upon good consideration. He added, There can be no doubt that William Williams made the conveyance in view of his indebtedness, and intended confession of judgment to the bank. “ The question is, was she influenced by the same facts ?”
    The first point submitted on the part of the plaintiff, was, That the peculiar circumstances attending the conveyance raised a presumption of fraud, and cast upon the defendants the necessity of rebutting the presumption. This point was answered in the affirmative.

    To another point he said, that the indication of haste in recording the deed was a circumstance to be considered by the jury in determining her knowledge of the circumstances and intent of William Williams; but that he would not say that it was conclusive evidence upon the point.
    In conclusion he referred to the jury to determine whether the deed was upon good consideration. 2. Whether it was also “ upon the part of Sarah Williams, bond fide, or taken by her to satisfy a true debt, and without any knowledge of his large indebtedness, and his intention immediately afterwards to give judgment to the bank, and thus to hinder, delay, and defraud his creditors.” He said, “If either of these questions be decided against Sarah Williams, verdict must be for the plaintiff. If both of them be decided in her favor, your verdict will be for the defendant.”
    October 29, 1850, verdict for defendants.
    Error was assigned to the charge as respected the knowledge of Sarah Williams of the fraudulent design of the grantor; also to the answer as to the recording of the deed; also to the answer to a point which was to the effect, that the bank having an. undocketed judgment to an amount exceeding the resources of William Williams, his deed to his mother, given without proof of the payment of the consideration-money at the time of the transfer, and under proof that the note alleged to be its consideration was in her hands three, four, or five days afterwards, uncancelled, the lien of the judgment bound the property in dispute.
    The answer was, that the point was correct if the jury find the facts to be as stated or assumed in it.
    And to the answer to the 6th and last points, viz.: That the undisputed facts in evidence rendered the deed fraudulent as to. creditors,
    •The Court declined so to charge, and referred to the general charge and to the answer to the first point.

      Lowrie, for plaintiff in error.
    — It was contended that the peculiar circumstances attending the transaction raised a legal presumption of fraud and collusion in the parties, and threw the burden of explanation on the defendants: 4 Watts 362; 10 Ser. & R. 424; 2 Whar. 308; 1 Story’s Eq. § 369. It was said that Mrs. Williams must show a valuable consideration for the deed, a bond fide intention in herself, and an acceptance of the conveyance without notice of a fraudulent intent in William Williams, the grantor : Statute of Elizabeth Oh. 5; 1 Story’s Eg. § 369. Reference was made to Twyn’s Case, 3 Coke's Rep. 81.
    If the transaction be not bond fide, the circumstance of it being done for a valuable consideration would not alone take it out of the statute: Cowper’s Rep. 434, Cadogan v. Kent; 1 Rawle 353. Where there is a presumption and allegation of fraud, the party claiming should clearly prove payment of the consideration-money, and otherwise elucidate the transaction: 2 Vesey 516; 4 Johns. 581; 14 Id. 493; 4 Harris 497, Zerbe v. Miller.
    It was contended that under the undisputed facts of the Gase, the Court should have charged in favor of the plaintiff. Fraud is a question of law where there is no dispute about the facts : 1 Burrow 474; Id. 497; 9 Johns. 337; 1 Blade Rep. 196; 1 Rawle 349; 5 Barr 478; 1 Harris 584, Ashmead v. Hean & Moulfair.
    The Court declined to hear the counsel of defendant. Qreswell, McMurtrie, and Blair, were for defendant.
    Hofius, for plaintiff, the Court declined to hear, inasmuch as none of the counsel for defendant had been heard.
   The opinion of the Court was delivered by

Black, C. J.

— This was ejectment for a house and lot in Hollidaysburg, which the plaintiff claims as vendee of the sheriff under an execution against William Williams, issued by the Exchange Bank of Pittsburgh. The defendant claims it under a deed from William Williams, dated before the bank’s judgment was entered up.

It is asserted that the deed to Mrs. Williams, who is the mother of William Williams, was fraudulent. Yet it is not denied that she had a just debt against her son, which he was bound in all good conscience to pay. He chose to pay it by a conveyance of the property in dispute, and she agreed to accept it in satisfaction. There was no inadequacy or taint of dishonesty about the consideration. But the bank had a claim against Williams at the same time, and the defendant’s conduct in getting a conveyance before the bank could or would obtain a lien, seems to be thought such inexcusable wickedness that nothing can save her but full proof that she was ignorant of the bank’s claim. The court below conceded this. The jury were told that they might find for the plaintiff, if they believed the defendant (though her debt was just) knew her son’s circumstances, and took the deed to secure the property to herself before it could be reached by his other creditors. This was far beyond anything the plaintiff had a right' to look for. Suppose she did know that he was failing ? What rule of duty required her to wait until his other debts were satisfied before she made an effort to secure her own ? She was no more bound to take care of the bank’s interests, than the bank was to see that hers did not suffer. If it could be held that a conveyance of a debtor to his creditor is fraudulent, because he knows that there are other creditors besides himself, the maxim which gives the advantage to the vigilant would be reversed; for those who would sleep soundest and longest would get the most. Two creditors equally honest are equally favored in equity, and when they come into a court of law their rights are determined according to priority. Either may secure his debt by taking a judgment or a conveyance from the debtor, though he does know that the other’s chances of security will thereby be diminished. The doctrine laid down in this case by the court below was countenanced by the act of 1849, and the construction given to it in Summer’s Appeal. But several unreported cases, not known at the time of this trial, have exploded it utterly.

The relationship between the plaintiff and the grantor in the deed was a fact which held her to stricter proof of her debt and of her honesty in the whole transaction, than would have been required of a stranger. But she met this suspicious circumstance with evidence so clear that it silenced every doubt; and this made her case like that of any other honest creditor.

All the evidence produced by the plaintiff to show that the transaction was unfair, including the declaration of Mrs. Williams to Robinson, made after the deed, that she could show the notes, was submitted to the jury in a manner entirely unexceptionable. The view taken by the Court of the whole case, from beginning to end, was much more favorable to the plaintiff than the law required.

Judgment affirmed.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Senseman’s Appeal.
    1. The appointment of a guardian is a final decision upon the right to the care and control of the person of the minor or to the possession or management of his estate, and from such decree an appeal lies to this Court.
    2. Where the father of a minor is in full life, and within the jurisdiction of the Court, he ought to have notice of the proceeding for the appointment of a guardian for his child.
    3. The Act of 1832 providing that “ No executor or administrator shall be admitted or appointed by the Orphans’ Court guardian of a minor, having an interest in the estate under the care of such executor or administrator Held, that it was not necessary that the land devised to the minor should be placed under the care of the executor, in order to his being disqualified from appointment as guardian of the minor. If any portion of the land be devised to the minor, he is entitled to the appointment of a proper guardian to protect his interest.
    4. The settlement of the account of the executor in the Orphans’ Court, and the distribution of the balance without refunding bonds, it not appearing that the minor had a guardian to attend to his interests in the matter, is not a justification of the appointment of the executor as guardian.
    5. The uncle of a minor whose father is alive and within the jurisdiction of the Court, has no right to petition for the appointment of a guardian, without any necessity being alleged for the action of the former in the matter.

      Appeal from the decree of the Orphans’ Court of Cumberland county, in the matter of the appointment of Christian Titzel, as guardian of two minor sons of Jeremiah Senseman, the appellant.
    On the 4th day of June, 1847, Michael Hoover, the maternal grandfather of the above-named minors, made his will, which after his death was proved on the 31st day of July, 1847, and letters testamentary were issued to Christian Titzel, the executor, appointed therein. In his will, after certain bequests, &c., he devised all the residue and remainder of his real estate to his daughter, Mandilla, for and during her natural life, the same to be for her sole and separate use; and at her death, should she leave children and grandchildren, or either of them, living at that time, then he directed that said real estate should go to and belong to them, their heirs and assigns, in fee. simple, each child to take an equal share, and the grandchildren by representation only such share as their parent, if living, would have taken.
    His daughter, Mandilla, afterwards married the appellant, Jeremiah Senseman, by whom she had two children, the minors before named. The mother is dead.
    On the 17th of August, 1852, shortly after the mother’s decease, John Hoover, the uncle of the minors, it was alleged without the knowledge or consent of the father, Jeremiah Senseman, petitioned the Orphans’ Court of Cumberland county, it being stated in the petition that the minors, by the will of their maternal grandfather, were entitled to certain real estate in the county, to take charge of their interests in which they had no guardian. He prayed for the appointment of Christian Titzel as guardian of their said estates.
    The Court accordingly appointed Christian Titzel as guardian, he being then the executor of the will of Michael Hoover, deceased.
    On the 23d August, 1852, a petition, by the father and by the grandmother of the minors, was presented to the said Orphans’ Court, in which it was stated that the petition of Hoover was without the knowledge of the father, who had made arrangements to apply for the appointment of a guardian; objecting to the appointment of Titzel, and asking that it be revoked, and another person appointed. A rulé was entered as to Titzel, to show cause why his appointment as guardian should not be revoked, but it was afterwards discharged, G-raham, the President Judge, dissenting.
    Appeal was taken by the father of the minors, and exception was taken to the refusal to revoke the appointment of Titzel.

      Miller, for appellant.
    — The Act of 1832 was cited as forbidding the appointment of the executor as guardian of minors who were interested in the estate. It was said that Titzel was not on terms' of friendship with the father of the minors.
    Biddle, contrá.
    — It was said that Titzel, the guardian, had notun'der his charge any estate in which .the minors had an interest. The personal estate of the testator was devised to the widow, his brother John, and to his daughter Mandilla, so that the legacy, if it had not been paid to her, would at her death have been payable to the administrator of her estate, and not to her heirs. The real estate was devised away, and the executor had nothing to do with it, and it was said that he could not have had in any contingency, as it was provided in the will, in case of the death of the devisees therein, that Levi Markle should be a trustee to sell the same, and distribute the proceeds.

      Bephurn, in reply.
    — John Hoover had no interest in the matter, and should not have petitioned for the appointment. If the Act of 1832 forbids the appointment of Titzel, the appeal should be sustained.
   The opinion of the Court was delivered by

Lewis, J.

— It is the duty of a father to maintain, protect, and educate his offspring. His power over them is derived from that duty. The latter could not be performed without the existence of the former. The authority of a guardian bears a near resemblance to that of a father, and is plainly derived out of it; the guardian being only a temporary parent. He usually performs the office of both tutor and curator of the Roman law; the former of which had charge of the maintenance and education of the minor, and the latter the care of his fortune. From the existence of the parent’s authority, and the just obligations the child is under to him for his care and protection, he is apt to forget that his only compensation is its affection, obedience, and services. He has no right to the estate which it may have received from the bounty of others. To place its property or money in his hands has been found unfavorable to the interests and happiness of both. It throws obstacles in the way of enforcing the rights of the minor, not likely to be encountered in a contest with a stranger. For these reasons it is deemed improper to appoint the father the guardian of his child’s estate. Rut his duty and power to protect its interests remain; and where he is in full life, and within the jurisdiction of the Court, he ought to have notice of the proceedings, and is entitled to be heard. The case before us is an illustration of the necessity of this. For want of such notice, the Court was misled, and an appointment procured of one whose interests are likely to conflict with those of the minor, and who is clearly ineligible on that account.

The appointment of a guardian is a final decision upon the right to the care and control of the person of the minor, or to the possession and management of its estate, or to both, as the case may be. It is not an interlocutory order, 'but a “ definitive decree,” from which an appeal lies to this Court. It is conceded that the Orphans’ Court may exercise its discretion in the selection of suitable persons, so long as it takes care not to violate the positive rules of law. Where these are violated, the error may be corrected here.

The Act of Assembly declares that “ no executor or administrator shall be appointed guardian of a minor having an interest in the estate under the care of such executor or administrator.” The will of Michael Hoover shows that Christian Titzel was appointed his executor, and. that the minors are devisees of a portion of the real estate. It establishes the fact that the estate of Michael Hoover was “placed under the care” of Titzel as much as estates are usually placed under the care of executors, and quite as much as they are ever placed under the care of administrators; and it also establishes the additional fact that the minors are “ interested in that estate.” It is not required that the particular tract of land devised to the minors should be placed under the care of the executor in order to disqualify him. This is seldom done, and never in the case of administrators. If any portion of the land be devised to a minor, he thereby becomes interested in the estate of the decedent, and it is necessary for the protection of that interest that he should have a guardian to keep an eye upon the executors, to see that they are faithful in the collection of the assets, in the application of the personal estate to the payment of debts, and in their general management of the estate under their care. If this be not properly attended to, the real estate of the minor might be unjustly swept away from him by a sale for the payment of debts which ought to have been satisfied out of the personal estate, or which never had any just foundation, or have in fact been paid. We do not regard the statement on the paper-book of the appellee, relative to the settlement of the executor’s accounts, and the voluntary distribution of the assets, as forming a part of the record. These facts do not appear to have been presented to the Court below. If they had been, the case would stand no better.

A settlement of the accounts of the executor, when the minor had no guardian to see that they were properly settled, and the distribution of the assets without a refunding bond, is neither a discharge of the executor, nor a justification of his appointment as guardian. On the contrary, the reason is the more urgent for the appointment of one whose interest will not be identical with that of the executor, and who may examine the proceedings and ascertain whether the minor’s estate is properly secured from the debts of the testator. •

John Hoover, the uncle of the minors, had no authority to present the petition as their next friend, without alleging any necessity for his interference instead of the father. If the father, on being applied to, had refused to take the necessary measures to protect their interests, the uncle might have made the application.

It is ordered and decreed that the decree of the Orphans’ Court of Cumberland county, appointing Christian Titzel guardian of the estates of John Senseman and Jeremiah A. Senseman, be reversed, and that the petition of John Hoover be dismissed, at his costs.


author: Lowrie, J.

text:
    Spangler’s Estate.
    1. Where an executor or other trustee settles his accounts in Court with undue frequency, the remedy is for the Court to impose the costs on him.
    2. Where one-third of the residue of an estate is bequeathed to be invested by the executors who are to pay the interest to the widow during life, the executors are entitled to compensation out of the income for their services in administering the fund.
    3. All kinds of trustees are entitled to a reasonable compensation for their services as they are rendered, and, unless a contrary intention appear, the compensation must come out of the income of the fund with which they are intrusted.
    Solliday v. Bissey, 2 Jones 347, commented on.
    Appeal from tbe Orphans’ Court of York county, in the matter of Charles Weiser’s account as testamentary trustee of Catherine A. Spangler.
    In 1843 Jacob Spangler died, having made his will, in which he appointed Charles Weiser and Herman Alricks, the executors. Weiser appears to have been the acting executor, and in 1844, -’46, and ’47, he settled his accounts as executor, and received the usual allowances. The account of 1847 seems to be a full settlement of all the assets to which the executors were entitled, and shows the amount to be invested for the legatees or paid to them in pursuance of the will.
    The provision in the will in favor of the widow, the appellant, is as follows: “ My wife Catherine shall have the interest of the dower-fund or third part of the whole; the real estate when sold pha.11 be subjeet.to my wife’s dower-fund, which shall be lien on the same, except the land which is to be sold in lots to be free of the dower-fund as mentioned in the within parts of my will, which said interest shall be paid my said wife annually, during her natural life or widowhood, which said dower-fund shall he vested out on good real estate, and the other two-thirds of my real and personal estate shall be equally divided amongst all of my children, share and share alike, my son Jacob to account for the two-thirds of the valuation of his land, as hereinbefore mentioned, provided he accepts it.”
    After the death or marriage of the widow the fund was to be divided equally among the children.
    On July 19, 1852, the said Charles Weiser exhibited in the register’s office an account of the fund held for the benefit of the widow, charging himself merely with the interest due to Mrs. Spangler, and taking credit for the moneys expended on her account. The Court below, Pearson, J., allowed him his costs on that settlement, and three per cent, commission for his services, out of Mrs. Spangler’s share of the fund; and these allowances were the matters complained of here.

      Chapin, for the appellant,
    argued that the last account was unnecessary, as it consisted of interest only; and relied upon Richardson v. Richardson, 9 Barr 431; Com’th v. Barnitz, 9 Watts 522; Shenks’ Account, 5 Id. 84; Clauser’s Estate, 1 W. & Ser. 214. To show that the accountant was not entitled to commissions out of the widow’s annuity, he cited Solliday v. Bissey, 2 Jones 347; Brinton’s Estate, 10 Barr 408.

      Burhee, for appellee,
    claimed the benefit of the general rule as to compensation to trustees, and insisted that the case of Solliday v. Bissey was an anomalous exception; and that it was unreasonable that the children should pay for taking care of the income for the widow.

      Chapin, in reply.
    — He contended that the widow was to get the fund without diminution; that the executor was entitled to compensation, but that it was to come out of the estate.
   The opinion of the Court was delivered by

Lowrie, J.

— The costs of this proceeding are objected to on the ground that the accountant had no right to settle such an account in Court, since he had no account to render, except of the interest accruing on the fund and of his payments to the beneficiary. And is not this enough ? She had a right to demand an account from him in the Orphans’ Court, and his right to a settlement there was no less. If a trustee unduly multiplies such accounts, the remedy is for the Orphans’ Court to impose the costs on him; and this Court will not be very free in interfering with the discretion exercised by the Orphans’ Court in such a matter. If this account was improperly filed with the register, instead of the clerk of the Court, this has done no harm.

It is further objected tha.t, in such a case as this, an executor or testamentary trustee ought not to be allowed compensation, at least not out of the widow’s income; and the case of Solliday v. Bissey, 12 State R. 347, is cited as sustaining this objection in its broadest sense; and it seems to do so. But' it must have been by some oversight that this Court, on that occasion, adopted the views of the Court below. It surely was not intended to say that charity in a trustee is matter of legal duty, or that either an executor or trustee is bound to administer the funds committed to him without compensation. It is more probable that the Court meant to say no more than that a legacy of the annual income of a certain fund, is intended to be certain, like to a definite legacy, and not chargeable with the expense of administering the fund. It may be also that there was something special in the form of the bequest.

The fund in this case was uncertain at the time of the bequest, being one-third of the residue of the testator’s estate, which has been converted into money, and invested in pursuance of the will, which directs that the interest, that is to say the income, shall be paid to the widow during her life, and after her death the principal is to be divided among the children. The other two-thirds of the residuary estate was bequeathed to the children.

There is nothing to indicate that the expense of administering the fund was to await the death of the widow and then come out of the principal, or that the widow was to get the income clear of the expense of administering it. It must, therefore, come out of the income, and there is no shadow of reason for saying that an executor, acting as trustee after the general estate has been settled, is entitled to no compensation for investing and managing the trust funds remaining in his. hands, in carrying into effect the trusts of the will. All trustees are entitled to a reasonable compensation for their services as they are rendered, and, unless a contrary intention appear, the compensation must come out of the income of the fund with which they are intrusted.

Decree affirmed at the costs of the appellant.


author: Woodward, J.

text:
    Shollenberger’s Appeal.
    A guardian, on the settlement of whose account in the Orphans’ Court a balance in his favour is decreed, may, by the Orphans’ Court Act of 1832, have a writ of fieri facias to collect the balance out of the ward’s estate. Richard’s Case, 0 Ser. <& 22. 462, commented on.
    As to jurisdiction of Orphans’ Court, see the opinion in this case, page 341.
    This was an appeal from the decree of the Ornhans’ Court of Berks county.

      Jacob Leibersperger and Caroline bis wife, late Caroline Eetherolf, cited John Shollenberger, late guardian of said Caroline, to render his account. April 5, 1850, the account was filed, and it was referred to an auditor, who made report to the Orphans’ Court of Berks county — finding a balance of $1055.90 due accountant. Leibersperger and wife filed exceptions to the report; and May 26,1851, the Court reduced the balance to $832.57, and decreed that balance in favor of Shollenbergei’.
    January 20, 1852, on motion, the Court granted a rule to show cause why Shollenberger should not have an execution in nature of a fi. fa. against said Leibersperger and his wife, for the balance of $832.57, and interest, to be levied of the goods and chattels, lands and tenements of said Caroline Leibersperger. On 20th August, 1852, the rule was discharged by the Court after hearing and argument, and from that decree Shollenberger appealed.
    Exception was taken to the discharge of the rule to show cause; in not awarding a writ of execution in the nature of fieri facias for the balance decreed in favor of Shollenberger, and in not giving him relief by attachment, sequestration, or execution.

      Davis, for the appellant.

      Smith, contrd.
    July 25, 1853,
   The opinion of the Court was delivered, by

Woodward, J.

— -Under the Acts of Assembly before 1821, it was decided in Richards’ Case, 6 Ser. $ R. 464, that the Orphans’ Court had no power to decree a balance against a ward in favor of his guardian — that the guardian is to account with the ward and not the ward with the guardian — that the guardian cannot cite the the ward to a settlement, but, if he has advanced beyond what he has received, he may, if the expenditure were proper and fitting to the estate and condition of the ward, create a responsibility that would be enforced elsewhere. The reasons on which this ruling was rested were drawn from the inadequacy of the legislative provisions for notice to the ward, and it was considered to be going far enough to say the confirmation of the account shall discharge the guardian without directly involving the ward in personal liability. It does not appear from the report of the case how the guardian was brought to settlement, whether by citation, or his own desire to be discharged; nor whether he was guardian of the estate or of the persons of the minors, but his accounts, presented to the Orphans’ Court, were referred to auditors, who reported a balance due him from each of the children except one, amounting in the aggregate to $5000. The Court having dismissed the exceptions and confirmed the report, the wards offered to appeal to the Supreme Court, but the Orphans’ Court refused to allow the appeal unless they gave security for the balances found against them. A rule was then obtained in this Court to show cause why an appeal should not he allowed on giving security for costs only, and this was made absolute and the appeal entered. Thus it is apparent that the precise question ruled in Richards’ Case was, whether wards might appeal to the Supreme Court from a decree of the Orphans’ Court charging them with a balance due their guardian, without giving security for the balance. Entertaining great respect for the doctrine taught by the eminent Judge who delivered the opinion, it is impossible to say the case is really authority for anything more than the point ruled, and that does not touch the case before us.

The case of McCormick v. Joyce, 7 Barr 248, cannot he regarded as adding essentially to the authority of the dicta in Richards’ Case, for though quoted and approved, they manifestly had no application to the facts before the Court. There the guardians’ account was settled voluntarily under the provisions of the 11th section of the Act of 29th March, 1832, relating to Orphans’ Courts — was settled during the minority of the ward, and without the appointment, expressly required by that section of the Act, of some suitable person to appear and act for the ward in the matter of the settlement. The point ruled was that the decree of the Orphans’ Court confirming a settlement so made, was not evidence for the guardian in an action at law against the ivardfor recovery of the balance.

This conclusion might, we apprehend, have been rested on the higher ground, hereafter to he developed, that since the Act of 1832 an action at law is not maintainable for balances resulting from settlements of guardianship accounts in the Orphans’ Court, but beyond doubt, the facts of the case, and the altered law of the Orphans’ Court since 1821, rendered the views advanced in Richards’ Case unnecessary and inappropriate.

The opinion in Richards’ Case was grounded, as we have seen, on the inadequacy of legislative provisions for notice to the ward, an objection which as to its general application has been obviated by various provisions in the Act of 1832, and which can have no special application to the ease before ns, because here the guardian was the guardian of the estate, the ward was a married woman and of full agp before the account was finally adjusted, and the guardian was brought to the settlement by citation sued out by the ward and her husband, who were before the auditors and in Court to watch her interests and to see that justice was done to her. And that there was no failure of justice to the ward may be inferred from their acquiescence in a final decree in favor of the guardian without an attempt at appeal or review. These are the circumstances under which the question is directly presented, whether the Orphans’ Court has power to enforce payment out of the ward’s estate, of a balance found due to her guardian on a final settlement of his account; and there is nothing in the two cases already noticed which can be regarded as decisive of this question.

At common law the remedy of the ward against his guardian was by action of account render; but since the growth of equity jurisprudence in England, the Court of Chancery has drawn to itself the general superintendence* and protective jurisdiction over the pei’sons and properties of infants, and compels guardians to account, whether they be chancery, statute, or testamentary guardians, on the same grounds that it does agents, trustees, and others in fiduciary relations. As in the common law action of account render it was possible for a guardian, after judgment against him quod computet, to have report of a surplusage in his favor, for which if execution could not issue, an action would lie, McCall v. Crousillat, 3 Ser. & R. 7, so in a bill in equity against him, a decree may pass in his favor; for though in general no person but the plaintiff in equity can entitle himself to a decree, yet in bills for an account both parties are deemed actors, when the cause is before the Court on its merits; and if a balance is ultimately found in favor of the defendant, he is entitled to a decree for such balance against the plaintiff: 1 Story’s Equity Pl. 522. Another principle of chancery jurisdiction, coincident with the above and peculiarly applicable to questions of account, is, that the jurisdiction having once rightfully attached, it shall be made effectual for the purposes of complete relief; or as better expressed by Justice Bell in McGuire v. Remington, 2 Jones 63, When once a Court of equity takes cognisance of a litigation, it will dispose of every subject embraced within the circle of contest, whether the question be of remedy, or of distinct yet connected topics of dispute.

Our Orphans’ Court, a creature of the constitution, is essentially a Court of Chancery. Its powers, originally small, have by gradual accretion grown into great magnitude and importance, and, that they may be clearly understood, they should be conformed to some model, and regulated by known and established principles. The chancery jurisdiction is the model, arid contains the principles most congenial to this institution, and the legislature have in very many instances sanctioned and enjoined the application of these principles to proceedings in the Orphans’ Court.

The judicial mind inclines in the same direction, and for my own part I think it would be well if the practice in this most important branch of our judiciary were, in all possible points, uniformly fashioned after precedents in chancery, bating only their unnecessary circumlocution and verboseness.

The Orphans’ Court is sometimes called a Court of limited jurisdiction. This is true, if regard be had to the derivation of its powers, for it possesses none inherently, and exercises such only as are conferred by or implied from legislation; and it is true also as to the subjects of its jurisdiction, for these are set down in the statutes; but within its appointed orbit its jurisdiction is exclusive, and therefore necessarily as extensive as the demands of justice.

The 4th sect, of the Act of 1832 gives the Orphans’ Court jurisdiction in the settlement of guardians’ accounts, and the 57th sect, clothes it with ample power to compel obedience to its orders and decrees. The 11th clause of this section is in these words: “ Compliance with an order or decree of the Court may be enforced by attachment or sequestration, or in case of a decree for the payment of money against a party who has appeared, the complainant may have a writ of fieri facias, which writs may be allowed by the Court, or by any judge in vacation.” Before the Act of 1882, legislation and judicial decision had so advanced the Orphans’ Courts beyond what were esteemed its powers when Richards’ Case was decided, that in Bowman v. Herr, 1 Penn. R. 282, decided in 1830, it was held to be a Court of equity for settling accounts between guardian and ward, and capable of compelling a guardian to pay over the balance in his hands by attachment or sequestration. To these remedies the Act of 1832 added the fieri facias.

But this remedy is given, say counsel, only to the complainant, and they insist a guardian cited to settlement cannot become a complainant within the meaning of the Act, and so is not entitled to the fieri facias.

This were a narrow interpretation of a remedial statute, without authority in the expressed views of the codifiers, and in direct conflict with the ehaneery character of the Orphans’ Court. We have seen that in bills in equity for an account both parties are actors, and that their decree may pass in favor of either plaintiff or defendant. Accounts in their nature include mutual claims, and balances may result either way. Did the legislature intend this Court of equity should have power to enforce its decree, if it happened to be in favor of one of the parties litigant, but be utterly powerless to enforce it in favor of the other party ? Equality is equity, but such a rule would be most unequal and unreasonable. Th e fieri facias is given where the decree is for “the payment of money,” and he rvho applies to the Court or to a judge in vacation to allow the writ, is the “ complainant” within the meaning of the statute. And this writ-is particularly the remedy of a party who seeks his ascertained dues out of the estate of another, for it touches nothing but visible property. We are of opinion, therefore, that this guardian was within the words as well as the meaning of the Act, and that he was entitled to a fieri facias against his wards’ estate for the balance decreed to be due him.

If, indeed, such be not his remedy, he has none. It was decided in Carl v. Wunder, 5 Watts 97, that a guardian cannot maintain, an action against his ward for moneys advanced before he has settled his account in the Orphans’ Court, and if thus driven into that jurisdiction, he must find his remedies there. It is a rule founded in statutory enactment, that where a remedy is provided, or duty enjoined, or anything directed to be done by Act of Assembly, nothing shall be done agreeably to the provisions of the common law further than shall be necessary for carrying the Act into effect; and accordingly as soon as the legislature, by the Act of 24th February, 1834, gave to legatees whose legacies are charged on land a bill in equity in the Orphans’ Court for their recovery, it was decided that the common law remedy was gone, and that the Orphans’ Court is the only forum in which testamentary charges on land may be recovered: Craven v. Bleakney, 9 Watts 20; Donner v. Donner, Ibid. 60; Mohler’s Appeal, 8 Barr 29.

In like manner, if advances made by guardians must be settled in the Orphans’ Court, and the duty of enforcing their decrees results out of legislative enactment as well as chancery principles, the conclusion is inevitable that this appellant is seeking redress in the only form in which the law can administer it.

Doubtless the instances are rare where Courts have been called on to administer relief to a guardian against his ward; but the suggestion of counsel that no case can be found in which chancery has decreed a balance to be paid to a guardian is not quite accurate. Hooper v. Eyles and Rideout, 2 Vernon’s Ch. 480, was this: Rideout, the infant, having an estate charged with <£150, and the money being called for, Anne Rideout his aunt and guardian, borrowed it of the plaintiff and paid off the encumbrance, and died before she had given the plaintiff security for it. Eyles was her administrator. The plaintiff by his bill sought to have satisfaction out of the infant’s estate, his money having gone to pay off the encumbrance on it, but the lord keeper refused so to decree, because money had no ear mark, and without a contract could not be followed into the land. But the aunt having disbursed more than she had received out of the inf and s estate, that account was decreed to be taken, and what was due to the aunt to be raised out of the estate and applied as assets to satisfy plaintiff’s debt. So in Raynesford v. Freeman, 1 Coxe Ch. R. 417, the lord chancellor expressed his reluctance to go beyond the maintenance the Court had fixed for the infant, but nevertheless decreed the guardian to be allowed for what had been expended by him beyond the former allowance.

Advances by a guardian for the permanent improvement of the ward’s estate, were allowed out of the principal of the estate in Jackson v. Jackson, 1 Grattan 143; see also Freeman v. Murray, 7 Leigh 412; Long v. Norcum, 2 Ired. Ch. R. 354, and Whitledge v. Callis, 2 J. J. Marshall 408.

These authorities are sufficient to show that Courts of equity do not disregard the claims of guardians when just and well founded. It is a salutary jealousy with which the law regards the conduct of guardians; but where they have advanced moneys to educate their wards — to pay off encumbrances, or to repair and improve their estates, and where the advances have not been imprudently made and are not disproportioned to the value of the estates, natural justice demands that they should be reasonably compensated. Happily for us our Orphans’ Court, which is the constitutional guardian for infants, has power to inquire into all circumstances— may appoint audits and send issues to the Common Pleas, the better to inform its conscience, and when it falls into error may have it corrected by bill of review or by appeal to the Supreme Court. It is difficult to see how more safeguards could be thrown around infants and their estates. Fraud, imposition, and improvidence are as effectually excluded as in the conduct of human affairs is possible. But when a guardian is adjudged to have performed his whole duty, and to be honestly and fairly the creditor of his ward,’ even-handed justice, which is no respecter of persons, must afford him the remedies which the law has provided.

The deeree of the Court dismissing John Shollenberger’s petition for a writ of fieri facias is reversed, and a writ of fieri facias against the ward’s estate is awarded.


author: Black, C. J.

text:
    Auman versus Auman.
    1. A conveyance of land to A. and his wife, for and during their natural lives, or the life.of the survivor, and after their decease to the lawful heirs of them the said A. and wife, gives to the first takers a joint estate in fee simple.
    2. The whole estate goes to the survivor, and a conveyance by the wife after the death of the husband gives the grantee an estate in fee simple.
    3. It is not the less a freehold for life in the grantee, because the words used in creating it are demise, lease, &c., without impeachment of waste, and reserving a rent of one peppercorn, provided the deed taken altogether does substantially give the grantee an irrevocable right to hold and eDjoy the premises for life at least.
    4. The legal construction, as well as the grammatical meaning of the phrase heirs of them, is the same as their heirs.

      5. When legal terms are used in a deed, they must be understood in their legal sense.
    ■ 6. The word heirs, even in a will, has a fixed sense which will adhere to it until explained away.

      7. The rule in Shelly’s Case is a rule of property in Pennsylvania, and must he adhered to, even when it comes in apparent conflict with the particular intent of the grantor.
    Error to the Common Pleas of Berlcs county.

    This was an amicable action of ejectment by George Auman and Others v. Elizabeth Auman, for a house and piece of land, containing above nine acres.
    Matthias Eaftzinger was, in 1813, the owner of the premises. His indenture, made the 25th March, 1813, in consideration of five shillings, witnessed that he “ doth demise, lease, and to farm let unto Peter Auman and unto his wife Magdalena,” daughter of the said Matthias, the premises in question, &c., to have and to hold the said demised premises, with appurtenances, unto the said Peter Auman and Magdalena his wife, from the date above written, for and during the natural lives of them, the said Peter Auman and Magdalena his wife, without to be impeached for any waste, only yielding and paying therefor yearly and every year during the life of the said Peter and Magdalena, or during the life of the survivor, unto the said Matthias, his heirs, executors, and administrators, the rent of one peppercorn. And the said Matthias Haftzinger for himself, his heirs, executors, and administrators, the said above described messuage, tenement, and tract of nine acres and seventy-seven perches of land, hath and hereby doth grant, bargain, sell, release, and confirm, after the decease of the said Peter Auman and Magdalena his wife, unto the lawful heirs of them, the said Peter and Magdalena his wife, in fee simple. And the said Matthias Haftzinger, for himself, &c., doth covenant, &c., with the said Peter Auman and Magdalena his wife, and their lawful heirs,” that he the said land and premises, “ demised to Peter Auman and Magdalena his wife, and granted and confirmed in fee simple • to their heirs after their decease,” against him, the said Matthias and his heirs, &e., shall and will warrant and for ever defend.
    Under this deed Peter Auman and Magdalena his wife entered upon and took possession of the'premises, and remained in possession until his death.
    Peter Auman died leaving his wife Magdalena surviving him; and the said Magdalena, by deed dated July 8, 1851, conveyed the premises to Elizabeth Auman, the defendant, in fee simple, and the latter was in possession. Peter Auman and wife had no issue at the time of the conveyance to them, and had none at the death of either of them.
    Some of the plaintiffs were brothers and sisters of Peter Auman; and others were brothers and sisters of Magdalena. The question was, what estate, if any, the defendant took under the deed from Magdalena Auman, the survivor.

      If the title to the premises was in the defendant, judgment was to be entered in her favor.
    February- 26, 1853, judgment was entered in favor of the defendant with costs. Such judgment was assigned for error.

      Kagenman and BanJcs, for plaintiffs in error.
    — It was contended that by the instrument executed by Naftzinger was first created a lease for life at a stipulated rent'. That after the lease was completed, he then proceeded to make a distinct and independent grant of the land. In the clause of warranty he bound himself to warrant the land demised to the said Peter and Magdalena and granted and confirmed in fee simple to their heirs after their decease. That the words “heirs of them,” differ from the word heirs when used in a legal and technical sense. That “ heirs of them” were a mere descriptio personarum, designating the children or issue of Peter and wife, as no one would answer the description, unless he were a child of Both of them:" 1 Durnford & East 630, Nightingale v. Quaitly; Fearne on Rem. 48. The words “ heirs of them,” meaning children, in the deed, are words of purchase,' because the children are made the terminus or stock, by reference to whom the future succession is regulated, and do not comprehend the whole class of heirs of Peter and wife. When words of explanation are annexed to the word heirs, showing that he meant by it a mere designation of persons to take, *and a new estate of inheritance is grafted upon the heirs who are to take, it is then a word of purchase: 4 Kent Com. 221. The rule in Shelly’s Case will not apply where the word heirs or issue is explained to mean children, for the rule has no application to a limitation to children: Hayes on Real Estate 109, 7 Law Lib.

    When the word heirs operates only to give the estate imparted by it to the heirs described originally, and as the persons in whom the estate is considered as commencing, and not derivatively from or through the ancestor, they are words of purchase: Fearne 108; 3 Bin. 139, Findlay v. Riddle; 1 Ser. & R. 374, Wager v. Wager; 2 W. & Ser. 435, Ellet v. Paxson; 3 Id. 160.
    In this case the estate was to be without impeachment of waste ; showing, it was said, that nothing more than a lease for life was given to Peter and wife, otherwise such words would be inoperative: 10 Ser. & R. 431, Carter v. McMichael.
    If Peter and wife took more than a leasehold estate for life, it was but' an estate tail special, and not in fee simple. The words “heirs of them,” in this case, is the same as their issue, they being husband and wife, and being but one person in law: Co. Litt. 187, a; 1 D. & East 635; 6 W. & Ser. 319; 2 Ro. Abr. 416, F. 1; Dy. 99; 1 Leon. 102; 1 Harris 344, Hileman v. Bouslaugh; 4 Harris 379, Maurer v. Marshall. If this was an estate tail, then on the failure of issue to take, and the entailment not having been barred, the plaintiffs, sons and daughters of the grantor, have title to the land in controversy.
    Strong, for defendant.
    — The rule in Shelly’s Case is, “ When the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail.' in such ease, the term heirs is a word, of limitation of the estate, and not of purchase: 1 Hep. 93. This is the rule in Pennsylvania; 1 Dallas 47; 2 Yeates 410; 1 Harris 344, Hileman v. Bouslaugh. The present case is within the rule. There is a grant of the freehold to Peter and Magdalena Auman, an estate for life is a freehold: Cruise Pig. tit. 1, sec. 13-14-15. 4 Kent 23. The words by which it is created, are immaterial. It is the duration of the estate which gives character to it. The word demise in its extended signification is a conveyance either in fee for life, or for years: Bouvier’s Dic. 402; 2 Inst. 483. The rent of a peppercorn is not material, for a fee simple may be charged with a rent. Peter Auman and wife being thus seised of an estate for life, a freehold, the grantor by the same deed conveyed a fee simple to their heirs immediately. The word heirs is therefore a word of limitation. The intention of the grantor is immaterial: 7 Law. Lib. 109; 1 Harris 351, Hileman v. Bouslaugh; 4 Maule & Selwyn 363; 4 Harris 104, George v. Morgan.

      In a will the word heirs may by the context be construed to mean children or issue; not so in a deed.

    The words without impeachment of waste, at most only indicate a particular intention to give an estate for life, which is ineffectual to prevent the operation of the rule in Shelly’s Case: 10 Ser. & R. 431, Carter v. McMichael. The words “heirs of them” do not mean different persons from the words their heirs.

    July 25, 1853,
   The opinion of the Court was delivered, by

Black, C. J.

— The sole question in this cause is, whether the deed of Mathias Haftzinger to Peter Auman and wife, conveyed merely a life estate, or whether they took a joint estate in fee simple. If it be within the rule in Shelly’s Case, the judgment of the Common Pleas was right.

It demises, &c., the land to them during their joint lives, or the life of the survivor, without impeachment of waste, and reserves the yearly rent of one peppercorn.

This undoubtedly gives a freehold to Auman and his wife. The reservation of a rent cannot diminish the estate. The clause “without impeachment of waste,” is found in many deeds and devises which are held to create freeholds (Pappillon v. Voice, 1 P. Wms. 471; Burnet v. Earl of Tankerville, 19 Ves. 170). Nor does it. seem to be material what words are used to give the estate. A departure from the phrases ordinarily employed, and the Substitution of others, such as demise, let, or lease, can have no influence on the question of freehold or not, provided the deed, taken altogether, does substantially give the grantee an irrevocable right to hold and enjoy the premises for the term of his natural life at least.

It being thus settled, that Auman and wife took a freehold estate, is it made an estate of inheritance by the limitation which the same deed contains, to their heirs after their death ? No one denies that the operation of the rule in Shelly’s Case will have that effect if the deed be within it. Nor is it pretended that we have not fully adopted that rule in this state. It is a part of the law here, as much as it ever was in England.

Is there any peculiarity about the deed before us which takes it out of that rule ? It is contended, that the life estate being given to a husband and wife, and the fee to “the heirs of them,” the word heirs cannot be taken in its proper technical sense. This argument is ingenious and somewhat far-fetched. It is based on the notion that “the heirs of them,” must be the heirs of both; nobody can be the heirs of both except the children of both; therefore the word heirs in this deed is equivalent to children, and a word not of limitation but of purchase. But there is no reason whatever, and just as little authority as reason, for holding that a joint freehold estate to a man and his wife, with a fee to their heirs, is not within the rule. In Miller v. Seagreaves (Roberts on Gavelkind 96, see 6 Cruise 353), the life estate was in a husband and wife, just as it is here. We have no power to assign to the words any but their legal signification. The parties to a deed having either acted with the advice of counsel, or standing chargeable with supineness if they have not, are entitled to no indulgence on the score of ignorance; and legal terms in such an instrument must be understood in their legal sense, whether used by a lawyer or a layman (4 Watts 90). Even in a will, supposed to be made when the testator is inops consilii, the word heirs has a fixed sense, which will adhere to it until it is explained away; and this, it has been said, can only be done by making the contrary intent appear so plainly, that no one can misunderstand it. (3 Bos. & Pul. 620.) In Tyson v.Wright (2 Bligh 1), it was held that “heirs of her body” used in a will, created an estate tail, which could not be cut down, even by inconsistent and repugnant expressions. It may be that these rules should be somewhat softened in the interpretation of wills; but their soundness, as applied to deeds, can hardly be questioned. If we understand the word heirs according to its legal import, and as a word of limitation, the deed gave Au-man and his wife a joint estate in fee simple, and they'ws aecrescendi not being taken away by the statute where husband and wife are joint tenants, it goes to the heirs or assigns of the survivor.

We do not perceive the distinction taken by the counsel of the plaintiff in error between the phrase “ their heirs” and “ heirs of them.” The legal as well as the grammatical meaning of both is precisely the same. The one means children or issue no more than the other. In. the case cited (1 Durn. & E. 630), the word heirs was neeessarily a word of purchase, because neither of the ancestors took a preceding estate. Being a word of purchase, it was by the same necessity deseriptio personae; and no one could take who did not meet the description of a right heir to both the ancestors named. But that principle does not apply here.

We encounter here, again, the argument so often met in cases like this; namely, that we will defeat the intention of the grantor if we give the fresh takers a fee. I think it very probable, nay, almost certain, that the grantor meant to give no more than a life estate to Peter and Magdalena Auman. But if such was his intent, it must be overruled by the legal construction of the words. The very purpose and object of the rule in Shelly’s Case is to control such intentions, and (in all cases properly within it) to substitute a totally different operation from that designed by the donor. The intention of the grantor to give a mere life estate was as clearly expressed in the deed to Edward Shelly as it is here. The same may be said of the deed in Baughman v. Baughman (2 Yeates 410), or in the late case of Hileman v. Bouslaugh (1 Harris 345), and of the will in Evans v. Davis (1 Dall. 47), as well as of the instrument in almost every case where the rule has been held to apply. And there are other decision's which go much further. In Robinson v. Robinson (2 Ves. 225), ‘the words of the will were for life, and no longer. In Cook v. Cooper (1 East 229), the devise was to R. C., for the term only of his natural life. In Roe v. Broford (4 Maule & Selw. 362), after expressing the intention to give no more than a life estate in terms perfectly unequivocal, a declaration was added, that the tenant for life should not have it in her power to defeat that intention. Perrin v. Blake (4 Burr. 2579), was still stronger, if we take the judgment of the Exchequer Chamber reversing the King’s Bench to be right. There the testator declared that the devisee should not sell or dispose of the estate for a longer term than his life, and to that intent gave him but a life estate. Although, therefore, the grantor in the present case may have intended to give the grantees a life estate only, yet if he did at the same time, and by the same conveyance, give an estate in the same lands to their heirs, we must read the deed as if it were an ordinary conveyance of the fee to the first takers, striking out all the words which denote his wish to make it less than a fee.

Magdalena Auman having survived her hushand, was tenant in fee-simple at the date of her d§ed, and had a right to convey it. The' present defendant stands in her shoes, and the judgment of the Court below was according to law.

Judgment affirmed.


text:
    Keeney versus Good.
    1. Possession and use of personal property by one indebted is evidence of his ownership, unless it has been sold under judicial process and purchased in for him, or is held by him in.trust. But by the Act of 1848 a married woman may have property in her own right which will not be subject to levy for her husband’s debts. Of such property possession by the husband is no test of title.
    2. But to bring the property of a married woman within the protection of the Act of 1848, it is necessary to prove that she owns it,' as being hers before marriage or that she acquired it afterwards and in what way. Mere evidence that she purchased it is not sufficient to give her title — it must be satisfactorily shown that it was paid for with her own separate funds. In the absence of such evidence the presumption is violent that the husband furnished the means of payment.
    3. This last rule applies to real as well as personal estate.
    4. No mere agreement between husband and wife whether in writing or verbally, will avail as against creditors of the husband without proof that the property belonged to the wife independent of agreement between themselves.
    5. An arrangement between a husband and wife that the husband purchase property on her credit and manage it as her agent and pay for it out of its proceeds, will not protect it from his creditors.
    6. A suit to recover damages for personal property of the wife sold under execution as the property of the husband, should be brought in the name of the husband and wife for the use of the wife, and not in the name of the wife alone.
    Error to the Common Pleas of Cumberland county.

    This was an action of trespass by Maria Good, a married woman, against Samuel Keeney, D. Smith, and others, for levying and selling twenty hogs, which she alleged belonged to her, and which were sold by Smith, as sheriff, under an execution issued on a judgment obtained in January, 1852, in favor of Keeney, against John M. Good, the husband of the plaintiff.

    John M. Good, in 1847, was the owner of the real estate on which he and his wife resided. He failed in 1847, and by deed of voluntary assignment for the benefit of creditors, dated the 31st March, 1847, conveyed real estate to assignees who acted in trust, and distributed through an auditor about $13 or $14 in the hundred to Good’s creditors, leaving him largely insolvent, and among his creditors was Samuel Keeney, one of the defendants. The real estate of John M. Good was sold by his assignees at public sale to Jacob Rheem for $1100, and by him sold to Maria Good, the defendant in error, on 16th October, 1848, for $1500, $50 to be paid in hand, and the balance in annual payments of $241.60, with interest. She gave the $50 to Rheem, but where she got it or how it was obtained was not shown on her part; but on the part of the defendants it was proved that in 1844 she got $50 from her mother. It was not shown that she had received in her own right any more money. After this alleged purchase by her was made, Good and his wife entered into an agreement, under seal, by which she appointed him her agent to carry on the distillery and the farm in her name, for which she agreed to pay him $20 per month for his services. The distillery was carried on, and stock was purchased, whiskey made and sold, and various payments made on account of the real estate, two of the instalments remaining unpaid to Rheem.
    A witness on part of plaintiff testified that seventeen at least of the twenty hogs sold by the sheriff, had been purchased by Good, as agent of his wife. That he knew that Good was doing business for his wife.
    Another witness testified that in January, 1852, Good purchased grain from him; that he charged it to him as agent; that he credited him on the strength of being the agent of his wife. Due-bill was given, signed by him as agent.
    Several of the witnesses, produced on the part of the defence, testified that after the purchase from Rheem, they transacted business with Good, and did not understand from him that he was acting as agent of his wife. One of them, however, Kauffman, testified that he worked at the distillery for fourteen months; that the business was done in Good’s name ; that he was hired by Good and paid by him; that he received some money from the wife on account of his wages. He further testified, under objection, that (food told him, whilst he was living there, that he was doing business for his wife. That he quit work there in 1851. That he had got small sums from Mrs. Good.
    A policy of insurance, dated 16th July, 1849, was taken by Good as agent of his wife.
    On the part of the plaintiff, points as follows were submitted :
    1. That upon the insolvency of a husband it is not unlawful that he should become the agent of his wife in the transaction of business, either upon her own capital or that furnished or intrusted to her by others. 2. And in this case, if Maria Good purchased the real estate upon her own credit, for the purpose of carrying on the business of distilling, and her husband John Good carried it on as her agent, and thereby the means of paying for the property were earned, it was a legal and rightful appropriation of the means and not fraudulent. 3. If the facts be as stated in the first and second points, and the hogs, the value of which is the subject of this suit, were purchased by and in the name and upon the credit of Maria Good, it was a lawful transaction; and the fact that they were paid for by the labor and exertions of John Good, her husband, acting as her agent, does not make it less so.
    On the part of the defendants was submitted a point as follows :—
    The plaintiff claims to be the owner of the property charged in the declaration to have been taken away, by purchase during her coverture and after the insolvency of her husband. Under such circumstances she must show by evidence which does not admit of a reasonable doubt, that she bought it with her own money, and paid for it with funds which were not furnished by her husband. No such evidence has been given in this case. The plaintiff therefore is not entitled to recover, and the verdict should be for the defendants.
    Graham, J., answered in the affirmative the points submitted on the part of the plaintiff.
    As to the defendant’s point, he said,. “ We answer the first part of this point in the affirmative. The plaintiff must show by evidence which does not admit of a reasonable doubt that she bought the property with her own money, and paid for it with funds which were not furnished by her husband; but we decline saying to you that there is no such evidence in this case, and that therefore the plaintiffs cannot recover.”
    He added: “ You will inquire whether the agency was a fair bond fide transaction, entered into between the husband and wife for the purpose of enabling an insolvent man to support his wife and family. If it was, and if Mrs. Good paid the fifty dollars, hand money on the purchase of the real estate, out of her own means not furnished to her by her husband, and if the balance which has been paid on the real estate and the price of the hogs bought was made out of the business conducted honestly and fairly by her husband for the object stated, then the plaintiff may recover; but you must be satisfied of these facts by clear, satisfactory, and undoubted evidence on the part of the plaintiff.
    “ On the contrary, if the agency of the husband was merely colourable; if the arrangement was entered into to enable the husband to secure his property from his creditors, with an understanding that the property was his and not his wife’s, then the law would not lend its sanction to such arrangement, and the defendants would be entitled to your verdict.”
    Verdict was rendered for plaintiff for $247.24.
    Error was assigned: 1st. To the admission of the evidence of Kauffman. 2d. To the answer to the 2d and 3d points of plaintiff. 3d. In not answering affirmatively the points of defendants. 4th. In submitting to the jury as a question of fact to be determined by them, without any evidence in the case to support it, whether these hogs were purchased and paid for by Mrs. Good with her own money independent of her husband. 5th. In saying to the jury that “ although no action could be brought against Mrs. Good on a note signed in this way, she would be liable in another form of action for the amount, if the purchase was made by her husband, as her agent, and she received the property thus purchased, or the benefit of it.” 6th. In submitting to the jury as a question of fact to be determined by them, whether the agency of John M. Good for Maria Good was a fair and bond fide transaction, &c.
    In the Act of 11th April, 1848, it is inter alia provided, “ Every species and description of property, whether consisting of real, personal, or mixed, which may be owned or belong to any single woman, shall continue to be the prbperty of such woman as fully after her marriage as before; and all such property, of whatever name or kind, which shall accrue to any married woman during coverture by will, descent; deed of conveyance or otherwise, shall be owned, used, and enjoyed by such married woman as her own separate property; and-the said property, whether owned by her before marriage, or which shall accrue to her afterwards, shall not be subject to levy and execution for the debts or liabilities of her husband, nor shall such property be sold, conveyed, mortgaged, transferred, or in any manner encumbered by her husband, without her written consent first had and obtained, and duly acknowledged, &c. Provided that her said husband shall not be liable for the debts of the wife contracted before marriage. Provided, that nothing in this Act shall be construed to protect the property of such married woman from liability for debts contracted by herself, or in her name by any person authorized so to do, or from levy and execution on any judgment that may be recovered against a husband for the torts of his wife, and in such case execution shall be first had against the property of the wife.”

      Hepburn and Biddle, for plaintiff in error.
    — The declarations of the husband were not admissible in favor of his wife: 6 Harris 363, Gamber v. Gamber.
    A married woman generally has no capacity to contract with or without her husband: Chitty on Contracts 176-7. The husband is entitled to all moneys earned by her skill or labor: Glaney, page 3; 15 East 606. A husband and wife cannot by agreement between themselves change their legal capacities, and a woman cannot be sued as a feme sole whilst her husband resides in the kingdom: 8 Term, Rep. 545; 2 Story, sec. 1372, 1375. Personal savings and profits which the husband allows her to apply to her separate use are allowed to vest in her as against her husband, but
      not against Ms creditors: Story 1875; 2 Kent 166; 7 Pick. 533-7. (See 8 Harris 308, Raybold v. Raybold.)
    There are no feme sole traders in Pennsylvania, but such as come within the Act of 1718: 5 W. & Ser. 346. For money borrowed by a wife to carry on a business with the husband’s assent, the husband is liable: 2 Freeman 215.
    The Act of 1848 was meant to protect the property of married women owned by them before marriage or acquired fairly after marriage — meaning that in case of purchase the consideration should be paid out of her own means. It was not designed to affect the common law incidents of marriage further than is provided in it: 6 Harris 363, Gamber v. Gamber.

      Watts, with whom was Parker, for defendant.
    — The fairness of the transaction was decided upon by the jury. The declarations of the husband were admissible as part of the transaction. Whatever were the common law rights of the husband and wife, equity always protected the separate property of the wife from the improvidence or misfortune of her husband. The husband may be trustee for his wife ; and if property be settled to the separate use of the wife, and there be no trustee to support it, the husband will be considered trustee, though he was not a party to the instrument : 2 Kent 162 The 6th section of the Act of 1848 provides that all property that shall accrue to a married woman shall be owned, used, and enjoyed by her as her own separate property; that it shall not be liable for his debts, and that he shall not transfer it. It is contended on part of the plaintiffs in error, that if the husband be insolvent he shall not aid his wife in the use of her property without the risk of subjecting it to his debts. But it was said that one object of the Act of 1848 was to enable a wife to have separate property, and if she pleased, do business in order to support her family. Also cited 7 Watts 547, Holdship v. Patterson; 5 W. & Ser. 323; 1 Jones 275, Cumming’s Appeal; 1 Harris 480, Goodyear v. Rumbaugh; 4 Id. 134; 5 Barr 157; 5 Wh. 138.
    July 25,
   The opinion of the Court, filed was delivered by

Black, C. J.

— The plaintiff is the wife of John M. Good, who owned certain lands on which a distillery was built. Becoming insolvent in 1847, Good made an assignment for the benefit of his creditors. The assignee sold the land to one Rheem for $1100, and by Rheem it was subsequently conveyed to Mrs. Good, the present plaintiff, for the consideration of $1500. Of this sum, $50 were paid at the time the deed was made, and the bonds and mortgage of both the husband and wife were afterwards given for the balance. About $1000 of principal and interest seems to have been paid on the bonds. Immediately after the deed to Mrs. Good, she and her husband made a written agreement that the husband should carry on the business of farming and distilling in her name, accounting to her for the profits, and receiving from her wages at the rate of $20 per month. While he was doing business under this agreement, £e bought a lot of hogs, brought them to the distillery, and fed them there for a time. The defendants levied on them as the husband’s property, and the wife brought this action of trespass.

Upon these facts the defendants asked the Court for a peremptory charge in their favor. This the Court refused, but on the contrary submitted the case to the jury, with instructions to find for the plaintiff if the agreement was an honest one, made for the purpose of enabling an insolvent man to support his family, and if the first $50 was paid with the wife’s money, and the balance out of the profits of the business.

An insolvent man is well protected in Pennsylvania. The barbarous system of imprisonment for debt is totally abolished, and thrown aside among the rubbish of the dark ages. He can retain real property or goods to the value of $300, which his creditors may not touch. He cannot be prevented from applying the fruits of his personal industry to the maintenance and education of his family; for the wages of his labor are not liable to attachment. But after supporting his family, he must give the best exertions of his mind and body to his creditors. Tins is but his reasonable duty — a duty sanctioned by all laws, moral, civil, and divine. Ho effectual mode of evading it has yet been invented. The usual device of covering the property of the debtor under the name of some friend, or a member of his family, will only answer the purpose as long as it remains undiscovered. I need not say how deeply all such shams are branded by the law with the marks of its detestation.

Creditors may regard the mere possession and use of personal property by a debtor as evidence that no stranger has a right to it, unless it has once already been taken for his debts, and bought in for him at a judicial sale, or unless he has it as a borrower or other bailee. But by the act of 11th April, 1848, a married woman may have property in her own right which shall not be subject to levy for her husband’s debts. Of such property possession is no test of title. The rule in Twyne’s Case, cannot, in the nature of things, be applied to a wife’s goods in favor of her husband’s creditors, without either compelling a separation or rendering the law inoperative. He may ride in her carriage, eat at her table, sleep in her bed, and live in a house filled with her furniture, without making what he uses liable to be seized under an execution issued against him. Under such a system, what is to restrain an indebted man from keeping all he has in the name of his wife ? The one human being whose whole earthly interest is bound up in his own, is freed from the restraint of a rule which is necessary to prevent even strangers from becoming the instruments of his frauds. It is easy enough to let the wife make all the purchases; or the husband may make them himself professedly as her agent. And jf the burden of proving that the money was furnished by the husband is thrown upon the creditors, their hope of justice must always be a forlorn one. Thus administered, the act of 1848 would be the worst one ever passed, and the most poisonous to the morals of the people. It would hold out constant temptations to families in embarrassed circumstances to commit wrongs of the worst kind, and to uphold them by imposture and falsehood.

But there is nothing in the act of 1848 which makes such consequences at all necessary. To bring the property of a married woman under its protection, it is made necessary by the letter, as well as the spirit of the statute, to prove that she owns it.' She must identify it as property which was hers before marriage, or show how she came by it afterwards. Evidence that she purchased it amounts to nothing unless it be accompanied by clear and full proof that she paid for it with her own separate funds. In the absence of such proof, the presumption is a violent one that her husband furnished the means of payment. This was the rule laid down in Gamber v. Gamber (6 Harris 363), and must be rigidly ádhered to. It applies to purchases of real estate as well as personal. No agreement of the husband and wife about the property of either, whether it be made in writing or by parol, can avail against creditors without proof which will render the fact indubitable that it was hers independent of all agreements between themselves. An arrangement to buy property on her credit, and have it managed and paid for by him as her agent, is too unsubstantial and too easily shammed to be at all satisfactory. All these things can be done by mere words, and words are but breath.

The hogs in question here were purchased and paid for by the husband himself. It is said he paid for them as his wife’s agent out of the profits of her distillery. But what was the evidence of her title to that ? It was nominally conveyed to her, and she handed the first fifty dollars over to the grantor. There was no spark of evidence that the money she paid was her own: her counsel have not asked us to believe that these were the same fifty dollars which she had received four years before from her father’s administrator. All the subsequent payments were met by the husband. Prom these facts we can make but one inference, and that is that Good paid for the land himself. It was therefore his to all intents and purposes, and all it produced was his. An agreement with his wife to manage his own property as her servant, and to account to her for the profits, will of course not protect it against his creditors.-

We are unanimously and clearly of opinion that the defendants had a right to the instructions they prayed for. They were as well entitled to a verdict as if the plaintiff had given no evidence at all.

The suit should have been brought in the name of the husband and wife, to the use of the wife. The form of the action was not objected to, and is no reason for reversing the judgment. I mention it merely to show that it has not our approbation.

Judgment reversed and ven. fa. de nov. awarded.


text:
    Southampton Road.
    1. A petition was .presented praying for the vacation of a road between two points and instead of it for a road beginning at the first point and running to a point at or near a school-house, on a public road which led thence to the other extreme point. Held, that a report vacating the old road and laying out one terminating on the public road near to the school-house was regular, and that it was not necessary to resurvey the old road.
    2. The point near the school-house was not an intermediate point but the terminus of the new road.
    Certiorari to the Court of Quarter Sessions of Cumberland county.

    A petition was presented to the Court of Quarter Sessions, in which it was stated that the petitioners labored under inconvenience for want of a road to Oak Grove school-house, and one of them complained of a road passing through his land and injuring it, which injury might be avoided by changing the route and location of the road. The part which was suggested to be vacated began at or near a corner of land of Bomberger and Neivcomer, thence, about a mile in distance, to the house of Coover, which was situate at a point of junction with a road leading to McCune’s mill. The road proposed to be laid out, instead of the fart to be vacated, began at or near the corner of lands of Bomberger and Newcomer, thence to a point at or near Oak Grove school-house. The schoolhouse was on a public road leading from Coover’s past the schoolhouse towards McCune’s mill, and it was about 141 perches distant from Coover’s.
    The Court appointed three persons to view the road between the points to be vacated, and if they or any two of them agree that it has become inconvenient, and that there is occasion for another in lieu thereof, that the same be laid out by them, &c.
    The viewers reported that they viewed the road, &c., and that two of them report in favor of vacating the road desired to be vacated, and in lieu thereof located a road beginning at the same point, and running, by a diiferent course from the one proposed to be vacated, tbence 280 perches to a point in the public road leading to McCune’s Mill; the said point of intersection being 25 perches from Oak Grove School-House. — The said point of intersection was between the school-house and Coover’s house.
    Exceptions to the report were filed: — one was as follows: 1. The petition is to vacate part- of a road, and supply the part vacated by another in lieu thereof; and the viewers vacate the said part and do not supply its place by another road, but lay out a new road between other points and running in a different direction.
    2. The petition and order fixes a point on the route between the points to be vacated, and requires the viewers to locate the road/ supplying its place at or near said point.
    3-. The viewers do not report that the part of the road vacated has become useless, inconvenient, or burdensome, without which the Court have no authority to vacate it.
    The Court below said that it was the duty of the viewers to lay out a new road, so as to supply the place of the part vacated, and form a connection between the parts of the old road which have not been vacated. That this could have been done by carrying the road on the bed of, the old road leading to Coover’s, had the petitioners not limited them to a point at or near the school-house: 2 Rawle 422. The Court thought the petition was not in proper form, and that it trammelled the viewers in the performance of their duty: Newville Eoad Case, 8 Watts 172. The proceedings were set aside.
    This was assigned for error.
    Watts, with whom was Parker, for plaintiffs in error.
    — “ Oak Grove School-House” is situate upon a public road, and public interests required that a road should be laid out from Bomberger’s to that point, and the establishment of such a road would supersede the necessity of the old one. The 18th section of the Act of 1836 seems to have been intended to meet such a case as this one. The Act provides that the Court shall have power upon petition “ to change or vacate the whole or any part of any private or public road.” It does not necessarily follow that both the termini of the road prayed for shall be upon the route of the old road. If the petitioners had prayed for a public road from Bomberger’s to the “ Oak Grove School-House” and no more, the viewers might not have sanctioned such a road, for the reason that the old road ran so nearly between the same points that both were not necessary. If they had prayed for the vacation of the old road alone, that might not have been sanctioned, because one road was absolutely necessary. No good could have resulted from so shaping the petition as would have required the viewers to run over the public road from “ Oak Grove School-House” to “ Coover’s,” and although the Court say in 2 Bawle 422 that it will do no harm, yet that it is unnecessary.

      Colwell, contó.
    — The location -of a road to Oak Grove SchoolHouse is not contested; but the objection is that under the petition the viewers could not lay out such a road without vacating the other road. Both the old and the new road may be necessary, yet the viewers had no discretion in the matter, and if they considered the new road necessary, they wrere obliged to report in favor of vacating the old one. There should have been two petitions, one under the first section of the Act, which renders the appointment of viewers olligatory on the Court; the other under the 18th section, under which the appointment of viewers is discretionary: Newville Road Case, 8 Watts 172.
    The petition is to vacate a part of a road, and supply the part vacated by another instead of it. But the viewers vacated the said part and did not supply its place by another road. They have vacated the part of the old road between Bomberger and Hewcomer’s corner and Coover’s house; and have laid out a new road from the first point to Oalc Grrove School-House. It was intimated that the one laid out could not supply the place of the part of the old road vacated, when the school-house is 141 perches distant from Coovers. It was added that if the viewers in the exercise of their discretion, had thought proper to lay out a new road by Oak Grove School-House, they had the right to do so, if they had continued it so as to connect with the part of the old road not vacated. That this could have been done, by laying it out on the route of the old road leading to Coover’s and beyond that: 2 Bawle 422.
    2d exception. In the petition an intermediate point between the extreme points should not have been designated. The viewers should not be thus limited in their action.
    3d exception. The viewers should have reported whether the road desired to be vacated had become inconvenient. The Court should have had information as to that from the report.
    See case of Hess’ Mill Road, antea 217, &c.
    July 25,
   The opinion of the Court, filed was delivered by

Black, C. J.

— This is very nearly the same case with “ Hess’s Mill Road,” in Lancaster county, decided at the present term. It is desired to vacate an old road, which has become useless, inconvenient, and burdensome ; and to supply it by another. But the best way to supply it is to use another road already established for part of the distance. In “Hess’s Mill Road” we held that the viewers might adopt such portions of the other old road as they thought proper, though the petition made no reference to it, hut merely prayed in general terms that the road to be vacated might be supplied by another, to be laid out in lieu of it. In the present case, the petition asked for the vacation of a road from Bomberger’s to Coover’s, and that it might be supplied by a new road from Bjfomberger’s to Oak Grove School-House, which, at the latter point, would intersect another road (McCune’s mill road), running thence to Coover’s. By this means the parts of the old road not vacated are connected together. If this could have been done by the viewers on their own judgment, I know of no principle which makes it the worse, because the petitioners also desired it, and expressed their wish for it. Oak Grove School-House was not an intermediate point, but the terminus of the new road. It was not necessary to re-survey or lay out anew McCune’s mill road, and therefore it was proper enough to make the school-house the terminus.

The order of the Court, setting aside the report of viewers, is reversed. The report is reinstated, and the record is remitted to the Court of Quarter Sessions, to be proceeded in according to law.


text:
    Henderson versus Lauck.
    1. If a vendor of personal property rely on the promise of the vendee to pay, and delivers the property absolutely, the right of property is changed though the same be not paid for.
    2. Where corn was delivered to be .paid for on the delivery of the last load, and when delivered, was, in the presence of one of the vendors, placed on a heap with other corn of the vendee; Beld, that the corn not being paid for, the mixture did not prevent the reclamation of as much of the corn as the vendors delivered, and that replevin lay therefor.
    Error to the Common Pleas of Cumberland county.

    This was an action of replevin brought by John and Peter Lauck, as partners, v. William M. Henderson, administrator of the estate of James Preston, deceased, for 742 bushels of corn, of the value of $371, delivered to Preston on 12th April, 1852, at a mill which Preston had on lease. The defendant gave bond, and plead non cepit and property. ■
    John and Peter Lauck sold to James Preston a quantity of corn, to be paid for on delivery at a mill which Preston had rented, and situate about two miles from Carlisle. On the 19th, 25th, and 28th of March, 1852, one of the plaintiffs delivered the corn at the mill, and as each load was delivered he took a receipt, stating it to he for the use of Preston. It was thrown on a pile with other corn then in the mill, in his presence, and without objection. When he delivered the last load, on the 28th of March, Preston was ill. After Lauck delivered the corn, and saw it placed on the pile with other corn, he took the receipts, and went to Carlisle, and found that Preston was so ill that he could not see him. In the afternoon he returned to the mill, and notified the miller that he had not been paid, and would reclaim the corn. Thus matters stood until after Preston’s death, which took place on the 30th March, 1852, after which Henderson took out letters of administration on his estate. Lauck afterwards came to the mill, and was proceeding to measure off corn from the pile to the extent of the quantity which he had delivered. Henderson objected, on the ground that his corn could not be identified, and the action of replevin was instituted. It appeared that several lots of corn had been thrown on the same pile. That delivered by Lauck was the last which was thrown on the heap. There were six or seven hundred bushels on the pile before Lauck delivered that which he brought. The rest of the corn on the pile belonged to Preston. The corn of the Laucks was to be paid for as soon as the last of it was delivered; it was not paid for.
    The defendant’s counsel submitted points. The first was to the effect that, if the plaintiffs could not identify the corn they had delivered, they could not recover.
    2d point. “ That if the vendors relied on the promise of the vendee to perform the conditions of the sale, and delivered the goods absolutely, the right to the property was changed, although the conditions were never performed.”
    3d point. “ That if the vendors delivered the corn from time to time, and saw it mixed with other corn then in the mill, it was such an absolute parting with the dominion of it as changed the property.”
    Graham, J., refused to charge that to enable the plaintiffs to recover, the corn delivered should be identified with certainty; but instructed the jury that if they believed that the corn could be identified with reasonable certainty, they could recover.
    The second point the Court answered generally in the affirmative, but added: But if plaintiffs did not rely on the promise of Preston to pay, but relied on receiving payment as soon as the last load was delivered, agreeably to the contract, and one of them immediately came to Carlisle, and ascertained that Preston could not pay him, and returned the same day, and gave notice to the miller to whom he had delivered the corn, that Preston had failed to comply with his contract, and that the corn was his (Lauck’s), and not Preston’s, and that the miller should not use it, and the corn remained as it then was till the writ of replevin was served, the plaintiffs might recover.

      Answer to the third point: If there was such a commingling of plaintiffs’ corn with other grain, as to prevent it being identified with reasonable certainty, then he could not recover in this action. But we do not see the evidence of such commingling in the present case.
    Error was assigned to the answers to the three points; to the comments on the facts, and “placing the identification of the corn on the ground of reasonable certainty.”

      Henderson, Miller, and Oallagher, were for plaintiffs in error.
    —To maintain replevin, the property claimed should be clearly or precisely indentified: 2 Rawle 427; 20 Vin. 419; 5 Johns. Rep. 348; 6 Id. 168; 10 Id. 287; Comyn on Land, and Ten. 385; 6 Law Lib. 216. It was said that the Court erred in charging that the plaintiffs could recover if the grain could be indentified with reasonable certainty.

    By the doctrine as do confusion of goods, each owner of goods mixed has an interest in the whole to the extent of his portion: but if this doctrine were applicable to the grain in question, replevin would not be maintainable: 1 Black. Com. 405; 5-Barr 211.
    As to the second point was cited 1 Yeates 528-9, Leedom v. Philips; 1 Harris 146, Bowen v. Burk; 3 Ser. & R. 20, Harris v. Smith.

      Watts, contó.
    — Lauck never relinquished any part of the terms agreed upon, and was not guilty of remissness in the matter.
    July 25, 1853,
   The opinion of the Court, filed was delivered by

Lowrie, J.

— The instructions of the Court were clearly right as to the questions of the sale and conditional delivery of this grain; and thus the reál question is fairly raised — Does the fact, that, on receiving it, the buyer mixed it with other grain of his own, of the same kind in one heap, prevent its specific reclamation?

The answer of the Court was in the negative, and so is the Roman law, Inst. 2, 1. 28; Dig. 6, 1, 3, 2, and Eod. tit. L. 5; and such is the very point in Inglebright v. Hammond, 19 Ohio Rep. 337 ; 11 U. S. Dig. 95, as to grain; and of Ryder v. Hathaway, 21 Pick. 305, as to cord-wood. In all these cases the owner is allowed to take back his own share of the bulk, kind for kind, measure for measure. It does not change the result that the seller saw the mixture take place, without objection: for, by consenting to such a mixture, the owners acknowledge that each parcel is of like quality, and that each one may take out the proportion that he cast in: Dig. 41, 1, 7, 8. It was not the seller that was wrong in allowing the mixture, relying on the promise of the buyer; and to permit the buyer to allege the mixture in bar of the right of reclamation, is to permit him to gain by his own fault.

Indeed every principle of law is against the buyer, for it was he that did the wrong in mixing the grain, if he was not ready to pay for it; and the usual rule would give the bulk to the seller until the buyer should separate his own. But this does not apply to goods so undistinguishable as grain, if the measure of each one’s share be known. On the general subject of confusion of goods and effects, the rule is, that he,, who wrongfully causes it, must submit to all the risk and inconvenience of making a clear and well defined identification and- separation: 30 Maine R. 237, 295, 370; 7 Conn. 275; 20 Verm. 333; 15 Ves. 436; 8 Id. 50; 2 Johns. Ch. R. 108; 2 Blackf. 383; 7 Mass. 127; 8 Pick. 443. Evep. debts due to a principal, and mixed up by an agent with his own, may be specifically followed: 2 Pick. 86; 5 Id. 7; 3 Mass. 232.

Judgment affirmed.

Lewis, J., dissented'.