author: Willard, J.,

text:
    Hardman Heitzenreither, Appellant, v. J. E. Long, M. W. Wise, P. S. Weber, L. A. Brady, William Wingert, C. C. Hindman, Sidney Fuller, trading as the Bank of DuBois.

      Compromise settlement — Assent of creditor — Question for jury.

    The members of an insolvent banking firm agreed to turn over certain individual property in consideration of a release from individual liability. In a suit by a creditor the crucial question was as to his alleged participation in an agreement to accept the partners’ proposition. The question was properly one for the jury, and their verdict is decisive of a common purpose among the creditors participated in by the plaintiff to secure the payment of their claims by compromise and settlement, and their verdict will not be disturbed in view of the fact that plaintiff reaped the full benefit of the settlement with the other creditors.

      Trusts and trustees — Assignmentfor creditors — Settlement with creditors.

    A person who happens to be a member of an insolvent banking institution may assign his individual property in trust to aid the bank in paying its debts without having his act declared a general assignmentfor the benefit of all his creditors, unless it appears that the assignment is made because of his inability to pay his debts.

      Practice, C. P. — Duty of court in answering point.

    It is the duty of the court to answer points, and it is its right and privilege to so answer them as to place before the jury the true question to be decided.
    Argued March 15, 1897.
    Appeal, No. 38, Feb. T., 1897, by plaintiff, from judgment of C. P. Clearfield Co., May T., 1895, No. 416, on verdict for defendant.
    Before Willard, Wick-ham:, Beaver, Reeder, Orladv and Smith, JJ.
    Affirmed.
    Assumpsit to recover for a deposit of $210.
    The defendants were doing business under the name of The Bank of DuBois, which closed its doors on March 14, 1895, by reason of insolvency. On the same day the bank closed its doors, and immediately thereafter, nearly all the defendants confessed judgments for large amounts for obligations outside of any bank transactions, which were entered of record, and some of them conveyed part of their property to relatives and other friends.

      Other facts are sufficiently recited in the opinion of the court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were among others (1) In its answer to plaintiff’s first point. The point and answer thereto are as follows : “ 1. The plaintiff had a legal cause of action against the defendants on tbe day on which he brought this suit against them, to wit: on the 22d of March, 1895, to recover the amount due him from the bank of DuBois. Answer: This point, as an abstract proposition of law, we affirm, but it does not follow that the plaintiff is entitled to recover. If the jury determine, under the evidence, that the claim sued for has been settled or paid since the bringing of the suit, then the defendant could not recover the amount sued for March 22, 1895.” (8) In its answer to plaintiff’s third point. The point and answer thereto are as follows: “3. If the jury believe from the evidence in the cause that the plaintiff was requested, with other creditors of the bank of DuBois, to be present at a meeting which is said to have been held in July, 1895, to hear a proposition that the stockholders or copartners of the bank of DuBois had to submit to its creditors, and if the plaintiff attended said meeting he would not be bound by the action then and there taken by other creditors if he did not participate or take part in the proceedings of said meeting. Ansioer: If the jury find the facts as stated in this point, the fact that he was present at the meeting and took no part might not of itself bind him to the terms of the contract of composition, yet if he were present when the proposition of settlement was submitted to the creditors’ meeting, and adopted without any dissent on bis part and he after-wards accepted the benefit of the terms of settlement there proposed and accepted by the creditors’ meeting, he would be bound by the same and could not recover.” (4) In its answer to plaintiff’s fourth point. The point and answer thereto are as follows : “ 4. The fact that the plaintiff brought this suit on March 22,1895, the evening of the day on which the first meeting of the creditors was held, is evidence that he did not intend to be bound by the action which might be taken by other creditors, or to place the management of his claim against the bank in the custody and control of anyone else than his attorneys. Answer: This point simply involves a question of fact for the jury. The jury must determine the intent of plaintiff from his acts and conduct. And we therefore decline to affirm this point.” (7) In its answer to plaintiff’s seventh point. The point and answer thereto are as follows: “ 7. There is not sufficient evidence in the cause of the plaintiff participating in any meeting of the creditors or of his approval of the proceedings or action taken by any meeting or committee of creditors that would deprive him of the right to prosecute his claim against the defendants to verdict and judgment. Answer: This point involves questions of fact for the jury under the evidence, to be determined by the jury under the rules of law laid down by the court in its general charge, and we decline to affirm the point as stated.” (8) In its answer to plaintiff’s eighth point. The point and answer thereto are as follows: “ 8. The fact that the plaintiff received from Hugh McCullough, receiver of the bank of DuBois, a portion of his claim, would not estop him from prosecuting his action to judgment, as he had a legal right to receive his proportionate share of all the money in the hands of Hugh McCullough as assignee of the defendants or receiver of the bank of DuBois, which the said Hugh McCullough received in trust for the benefit of the creditors of the bank of DuBois. Answer: The evidence in the cause conclusively shows that the receiver had received from the stockholders, of their individual assets, thirty per cent of the fifty per cent paid to plaintiff, under the terms of the composition agreed upon between the stockholders and the creditors at a creditors’ meeting held in July, 1895, which were assets that did not come into his hands by virtue of his authority as receiver! To this fund the plaintiff had no legal claim at the time. .We therefore, under the evidence in the cause, cannot affirm this point.” (9) In its answer to plaintiff’s ninth point. The point and answer thereto are as follows: “ 9. The defendants had it not in their power under the laws of tins state when they transferred property or paid money to Hugh McCullough as trustee for the creditors of the bank of DuBois, to give any preference to creditors who might sign a release of the copartners from liability. The said property and money so placed in the hands of Hugh McCollough inured to the benefit of all of the creditors of the bank of DuBois and was an assignment for the benefit of creditors under the laws of this state. Answer : If this point assumes that the agreement of composition submitted to the creditors’ meeting held in July, 1895, and accepted by said creditors’ meeting without any dissent, was an assignment for the benefit of creditors, we decline to affirm the point.” (10) In its answer to plaintiff’s tenth point. The point and answer thereto are as follows: “ 10. The stipulation in the transfers of property of the defendants to Hugh McCullough in trust for the creditors of the bank of DuBois, that it was only for the benefit of such creditors of the bank as might release the stockholders from further liability, was void under the laws of this state, and such transfer and assignment of money or property inured to the benefit of all the creditors, pro rata, without preference, and the plaintiff was entitled to his share thereof, without being bound to release the defendants from further liability, and without depriving him of the right to recover from the defendants the balance due him. Answer: We decline to affirm this point.” (11) In its answer' to plaintiff’s eleventh point. The point and answer thereto are as follows: “11. It appearing from the petition offered in' evidence by the defendants, wherein the plaintiff petitioned the court for a rule on Hugh McCullough to show cause why he should not pay the plaintiff 50 per cent of his claim against the bank out of the moneys and the proceeds of property placed in his hands by defendants for the benefit of the creditors of the bank of DuBois, that plaintiff expressly denied that he had entered into any combination or was represented by any committee of creditors, or was bound by their action, but claiming the said percentage under his legal rights as an individual creditor, and no answer having been filed to said petition, and the rule having been made absolute by the court, and the decree unappealed from, it is thereby judicially declared that the plaintiff received said payment in accordance with his petition, and his receipt of said payment does not estop him from prosecuting his claim to verdict and judgment in this case for the balance due to him by defendants. Answei': Whether or not the facts stated in this point of themselves would operate as an estoppel it is not our province to determine, as the facts stated therein must be considered by the jury in connection with the other facts in the case, which if found by the jury and taken together may constitute an estoppel to plaintiff’s right to recover. We therefore cannot affirm this point.” (12) In its answer to plaintiff’s twelfth point. The point and answer thereto are as follows: “ 12. From the undisputed evidence in this case the defendants were indebted to the plaintiff, when defendants’ bank closed its doors and ceased to do business, by reason of the inability of the defendants’ bank to meet its obligations and to pay its depositors, in the sum of two hundred dollars ($200), and the plaintiff is entitled to your verdict for said sum, with interest from March 14, 1895, after deducting therefrom the sum of one hundred dollars ($100), paid on account of said claim June 10,1896. Answer: We refuse to affirm this point.” (13) In the following portion of the charge to the jury: “We say to you the money raised under that agreement and put into the hands of the receiver did not operate in law as an assignment for the benefit of partnership ereditors. It was a fund separate and distinct from that which would come into the hands of the receiver by virtue of his appointment.” (14) In the following portion of the general charge: “ So, the question then comes down, did the plaintiff have knowledge of this contract of composition between these creditors, and, having that knowledge, did he avail himself of the benefits of it and appropriate the proceeds on account of his claim? If he did, then he is precluded from recovering against these stockholders, who raised that money, in this action. You are to determine that question. We submit that question of fact to you and you are to determine it from the facts, from the weight of evidence.” (16) In the following portions of the general charge: “ And, if you find from the evidence that the plaintiff was at the meetings and knew the nature of the compromise proposition submitted, and in pursuance of that proposition of composition among the creditors, and accepted by them, that a large sum of money, $22,000 in cash and $9,000 realized out of real estate converted, or out of a portion of the real estate so conveyed, and that he accepted a portion of that fund which had been raised by virtue of this proposition of composition and knew of it, as we stated before, by himself, from his communication with other parties, in the testimony of Mr. Arnold or others, or that his counsel had knowledge and accepted the results of that agreement of compromise, then he is bound by it and he is precluded from pursuing this suit against these individual stockholders, and it would be your duty then to render a’ verdict for the defendants. If, however, you can find under the evidence that he had no knowledge of this settlement, that he was ignorant of it, then he would not be bound by it, if he wasn’t a party to it; that is, the proposition is, that where aman has knowledge and accepts the benefits of a contract, he thereby becomes a party to it and he cannot accept the benefits of it and repudiate the contract, as has been stated by our Supreme Court and others. And, therefore, if you find under the evidence that he had knowledge of the proposition, which is a binding contract and ample consideration for it in this case as any others, then he would be bound by it.” (17) In its answer to defendant’s second point. The point and answer thereto are as follows: “ 2. That as it appears by the undisputed testimony in the cause that a settlement was agreed on between the defendants and Austin Blakeslee, William Osburn and William Cannon, a committee appointed by creditors of said bank of DuBois, at a public meeting of the creditors; and it also appearing .by the undisputed testimony that the defendants in pursuance of said settlement conveyed a large amount of real estate and paid in cash to Hugh McCullough, receiver of said bank, $22,000 ; and that the said receiver was authorized and directed by the court to carry out said settlement, and did so; and it further appearing from the plaintiff’s petition filed to No. 2, May term, 1895, and from other uncontradicted testimony, that he knew that a portion of the money then being distributed by the receiver was from the cash and real estate received by the receiver under the settlement, and having obtained the order of the court upon the receiver to pay him his pro rata share of the proceeds arising from said settlement and received the same, he has thereby ratified the action of the committee and is estopped from denying that the defendants shall be.discharged from further liability even if he was not actively participating in any of the meetings at which the creditors appointed said committee or voted upon the proposition recommended and accepted by the committee, and their verdict must be for the defendants. Answer: If the jury find the facts as stated in this point, it is affirmed. For further answer refer to our general charge.” (18) In its answer to defendant’s third point. The point and answer thereto are as follows : “ 3. It appearing from the undisputed evidence in the cause that at a meeting held of a large number of the creditors of the defendant bank, a committee consisting of Austin Blakeslee, William Osburn and W. H. Cannon was appointed, and was authorized to act for the best interests of all the creditors and do whatever-they deemed best in that behalf; that the committee did make a settlement, by which, in consideration of the payment of $22,000 and the conveyance of a large amount of real estate to Hugh McCullough, receiver, the defendants were to be released and discharged from further liability, and it further appearing by the undisputed evidence that plaintiff asked for and received his pro rata share of the funds in the receiver’s hands arising from this cash fund so paid, and from the sale of a portion of the real estate so conveyed to the receiver under the settlement with the committee aforesaid, he has thereby ratified the previous action of the committee and is bound by their action and the terms of the settlement made by them, even if he was not present or participating in any of the meetings, and the verdict must be for the defendants. Answer: If the jury find that the plaintiff knew of the composition of settlement made with the defendants and he availed himself of the benefits thereof, as stated in the point, then he cannot recover.”

      Frank Fielding and Singleton Bell, for appellant.
    — We have clearly a trust created for the benefit of creditors. We have all the essentials of a trust estate. We have here property, a trustee, a trust and creditors of an insolvent who are to take under it: Lucas v. R. R. Co., 32 Pa. 458.
    It seems almost unnecessary to trouble this court with a citation of authorities to sustain our position that this transaction constitutes under the laws of this state an assignment for the benefit of creditors. Our position is clearly sustained in Driesbach v. Becker, 34 Pa. 152. See. also Wallace v. Wainwright, 87 Pa. 263; Fallon’s Appeal, 42 Pa. 235; Chaffees v. Risk, 24 Pa. 532.
    In principle this case is not distinguishable from the Miners’ National Bank’s Appeal, 57 Pa. 192.
    All preference of the plaintiff under the assignment was annulled by the act of 1843: Heckert’s Appeal, 24 Pa. 483; Vanarsdale v. Richards, 1 Whart. 408.
    Preferences in a deed of assignment for the benefit of creditors do not render the deed ineffectual as a general assignment: Kern v. Powell, 98 Pa. 253; Hondenpuhl v. Hines, 160 Pa. 466; Bell’s Appeal, 166 Pa. 134.

      P. L. Krebs of Krebs $ Paterson, witb him Murray Smith, for appellee.
    — The legal questions are all readily grouped under three heads:
    First. — Did the plaintiff by his presence and actions at the meetings called in behalf of the creditors make himself a party to the “ settlement ” made by the “ committee ” and which was subsequently approved by the meeting of creditors? Second.— If he was not a party thereto, did the plaintiff subsequently ratify the settlement made by the committee of creditors, with the individual members of the partnership trading as the “ Bank of DuBois,” so as to be bound thereby? Third. — Was that settlement and adjustment made an assignment for the “ benefit of creditors ” under the provisions of the Act of Assembly approved April 17, 1843, P. L. 273?
    The plaintiff with knowledge of the terms of the settlement ratified it and is bound thereby. A subsequent ratification is equivalent to a previous authority: Culver v. Ashley, 1 Am. L. C. (4th ed.) *589; Paley on Agency, 324; Ward v. Evans, 6 Modern, 36; s. c. (2 ed.) Raymond, 928; Thorold v. Smith, 11 Modern, 88; Wilson v. Poulter, 2 Strange, 859; Clarke v. Ryall, 1 W. Blackstone, 642; Herring v. Polley, 8 Mass. 113; Lent v. Paddelford, 10 Mass. 238; Clement v. Jones, 12 Mass. 60.
    The decisions of our own courts are equally clear and strong upon this question of ratification: Mundorff v. Wickersham, 63 Pa. 87; Keough v. Leslie, 92 Pa. 425; Imbrie v. Ins. Co., 178 Pa. 6.
    This principle, that one who demands and receives the benefit that flows from the acts done or contracts made by another assuming to act for him, cannot be permitted to repudiate the residue of the arrangement, and deny the authority under which he receives the benefit, is distinctly recognized in the following cases: Boyd v. Smith, 128 Pa. 205-213; Goldbeck v. Kensington Bank, 147 Pa. 267; McCulloch v. McKee, 16 Pa. 289.
    It would be an anomolous thing in law, if a party can enforce a part of a contract, by a proceeding based on the contract, and' repudiate the other part of the contract, and say I am not bound thereby because the party who made it had no authority to act for me: Despatch Packets v. Bellamy Co., 12 N. H. 206; Finney v. Ins. Co., 46 Mass. 192; Patton v. Brittain, 10 Ire. 8; Newell v. Hurlburt, 2 Vt. 351.
    April 19, 1897:
    The settlement made with the “ creditors’ committee ” is not within the Act of April 17, 1843, P. L. 273.
    The Act of April 17, 1843, P. L. 273, sec. 1, was never intended to defeat the conveyance of property to pay all the creditors of a partnership or of an individual. The case in hand differs from all assignments for the benefit of creditors, in this, that the “ creditors’ committee ” as agents of all the creditors negotiated and consummated the settlement. The settlement was made in good faith. The “ creditors’ committee ” were active and able business men. It was the best thing to do. More than nineteen twentieths of the creditors promptly accepted, and it remained for six or seven individuals to come into court, demand their pro rata proportion of the benefits flowing from this settlement, and after receiving the same, refuse to be bound by the terms of the settlement. The law will not tolerate this. In the language of Shabswood, J., in Mundorff v. Wickersham, 63 Pa. 87, “ He cannot ratify that part which is beneficial to himself and reject the remainder, he must take the benefit to be derived from the transaction cum onera.”
   Opinion by

Willard, J.,

The bank of DuBois was a private banking company or co-partnership. J. E. Long, M. W. Wise, P. S. W eher, L. A. Brady, William Wingert, C. C. Hindman and Sidney Fuller were the members of the copartnership. On the 14th day of March, 1895, the bank closed its doors and suspended payment. On the 22d of March a meeting of the creditors was called for the purpose of formulating and adopting a plan of action for the best interest of all the creditors. At this meeting a committee of five creditors was appointed to act for themselves and, other creditors, and they were instructed to procure a judgment bond in the sum of $100,000 to be signed by the individuals composing the copartnership. On the 23d of March by a decree of the court of Clearfield county in equity, Hugh McCullough was duly appointed as receiver to take charge of the partnership property and effects and wind up its business according to law, subject to the order and direction of the court. To this proceeding there was no objection raised by debtors or creditors. On the 24th or 25th of March a second meeting of the creditors assembled and to this meeting the committee of five reported that they had procured a judgment bond for $100,000. It was signed by all the alleged copartners except Sidney Fuller. The committee also reported that they had procured the appointment of Hugh McCullough as receiver. The report of the committee was approved by the meeting. At this meeting the committee was reduced to three in number and constituted a permanent committee, to act for the creditors. They were authorized and empowered by the meeting to bring suits and do whatever they deemed necessary in their judgment to secure the interest of the creditors of the bank of DuBois as a whole. This committee subsequently received a proposition from the individual members of the banking firm proposing a settlement as follows: J. E. Long to turn over property and convey real estate of the value of $32,400 ; M. W. Wise to convey real estate of the value of $13,350; P. S. Weber to convey real estate of the value of $3,350; and L. A. Brady of the value of $1,000, amounting in all to the sum of $50,050. The individual members of the firm were also to contribute $22,000 in cash with a further guaranty, of $6,750 to meet any necessary deficiency. That this proposition, if accepted, should discharge the copartners from all liability to the creditors or depositors of the bank.

The committee being satisfied with the proposition agreed on their part to procure the assent of the creditors, and for that purpose called another meeting in July, 1895. By a vote of that meeting the proposition was accepted and by another vote it was agreed that the money should be turned over to Hugh McCullough and that he should take conveyances of the real estate and hold it for 'the creditors until it could be converted into cash for the benefit of all the creditors.

At this time the receiver had realized cash from the assets of the bank of DuBois equal to twenty per centum of the claims against the bank. The monej'- and real estate furnished by the individual partners under the agreement, after it passed into the hands of Hugh McCullough by the joint action of the creditors and the .persons who furnished and conveyed it, appears to have been'treated by orders and decrees of the court as under its jurisdiction and control and no one appears to have objected thereto.

On tbe 16th of January, 1896, on presentation of tbe receivers’ petition reciting the offer of settlement and the action of the creditors thereon, the court made the following order: “ The receiver, Hugh McCullough,- is authorized and directed to do whatever is necessary to be done in order to carry out and consummate the arrangement and proposition mentioned in the within petition.”

In January, 1896, the receiver had in his hands, undistributed, a sufficient sum of money, derived from the assets of the bank, to pay to its creditors twenty per centum of their claims, and a sufficient sum derived from the property turned over to him by the individual copartners, under the direction of the committee and the agreement made between them, to pay thirty per centum of all the claims. Most of the creditors took the dividend and released the stockholders in writing according to the offer. This the appellant refused to do and the receiver refused to pay him unless he would sign a paper releasing the copartners. Whereupon the appellant filed his petition in the equity proceeding setting forth that there were large sums of money in the hands of the receiver derived from the copartnership assets and from the assets of the members of the copartnership, which was a proper fund for general distribution among the creditors; that in the negotiations attending the transaction of the affairs of the bank by the receiver or creditors he had not joined; that he had not been represented by any person or committee of creditors' authorized to act for or bind him; that Hugh McCullough, the receiver, had paid to some of the creditors and depositors about fifty per centum of their claims; that he had demanded of the receiver the same pro rata payment that he had paid to other creditors of the bank, but had been refused except as to the twenty per centum derived from the assets of the bank; that he is informed that the receiver will pay him fifty per centum of his claim if petitioner will sign a paper discharging the persons composing the copartnership, late trading as the bank of DuBois, from further liability, and the refusal of your petitioner to sign said agreement is given by the receiver as his reason for refusal to pay your petitioner fifty per centum.

Upon this petition a rule was granted as prayed for on Hugh McCullough, receiver, to show cause why he should not forthwith pay to the petitioner the same pro rata dividend upon his claim that he had paid to other creditors and depositors of the bank of DuBois. On the return of the rule, no answer having been filed, the court made the following order: “ Now, June 1, 1896, the rule in this case is made absolute, and the receiver of the bank of DuBois, Hugh McCullough, is hereby directed to pay unto the petitioner fifty per centum of his claim, being the amount he has paid to the other creditors of the bank of DuBois, and for so doing, this shall be his sufficient voucher in the settlement of his accounts as receiver.”

The plaintiff brought his action on the 22d day of March, 1895, to recover the sum of $200 deposited by the plaintiff in the bank of DuBois and unpaid. On the trial there was positive testimony that each question relative to the settlement was determined by a vote of the creditors in three meetings thereof, and that upon each question, including the appointment and authority of the negotiating committee, there was an unanimous affirmative vote. There was also testimony that the appellant was present at each of these meetings. He denied that he was present at the last two meetings, but the question was submitted to the jury. In January, 1896, the receiver forwarded to the appellant a notice and form of receipt, which receipt was signed and returned by the appellant’s attorney under date of June 10, 1896 ; it is as follows:

“DuBois, Pa., January, 1896. “Mb. H. HeitzenbeitHeb:—
“ Your account on the books of Bank of DuBois is $200.
“Enclosed find check for $100, being a 20 per cent, dividend of said account from assets of said bank, and 30 per cent, special dividend from funds contributed by stock holders pursuant to agreement.
“ Please sign the receipt below and return to me at once.
“ Hugh McCullough,
“ Receiver of Bank of DuBois.”
“ Received, June 10,1896, of Hugh McCullough, Receiver of the Bank of DuBois, $100, as a payment of a dividend of account against Bank of DuBois.
“Singleton Bell,
“ Attorney for H. Heitzenreither. ”

Indorsement on back of receipt:

“No. 606. Voucher. Claim of H. Heitzenreither versus Bank of DuBois.
Dividend 20 per cent..... $
Special 30 per cent......
Total 50 per cent...... 100.00.
Deduction 6 per cent......1.20.
Am’t. Check remitted, .... 98.00.
“The amount deducted above is, your pro. rata share of the 1 per cent, of your claim which you agreed to pay to creditors’ committee.”

To the action in the court below the defendant pleaded payment. The jury found a verdict for the defendant.

When the appellant brought his action in the court below he had an undoubted right to recover the full amount of his deposit in the bank of DuBois, as set forth in his statement of cause of action. If however he subsequently compromised and settled his claim, that fact could be shown on the trial under the plea' of payment. In affirming appellant’s first point the learned trial judge added no more by way of qualification than the facts of the case demanded in order to protect the rights of the parties. It is the duty of a judge to answer points, and it is his right and privilege to so answer them as to place before the jury the true question to be decided.

The copartnership assets, when converted into cash, were sufficient to pay only twenty per centum of the creditors’ claims. By an agreement, however, fully set forth in our statement of the facts, certain money was turned over and certain real estate was conveyed to the receiver, in trust, to be by him applied in payment of the claims of all the creditors, with the agreement that the turning over of the money and the transfer of the real estate should discharge the individual copartners from any further liability to the creditors. This transfer, it is claimed by the appellant, was not a contract to which he was a party, but amounted to a general assignment for the benefit of creditors, and he having received but a portion of his claim from the assignee was entitled to a verdict for the balance ; while on the part of the appellees it is contended the property was placed in the hands of Mr. McCullough'under an express agreement that it was for the purpose of paying all the creditors alike, with the single condition that the assignors should be discharged from further liability on turning over the property, and that the appellant was a party to that agreement and, therefore, a purchaser for value, and having received a part of his purchase money he is now estopped from asserting that the transaction amounted to a general assignment for the benefit of creditors.

If the jury arrived at a correct conclusion under proper instructions, that the appellant was a party to the agreement, and by said agreement his claim was settled and paid, it matters not by what name it is designated. But as the appellant’s printed argument is directed largely to this question, we have carefully considered it.

The bank of DuBois, as a partnership concern, came far short of responding to the just claims of its creditors. The individual members of the firm saw fit to make up the deficiency in part at least out of their individual property, stipulating at the same time for immunity from further liability. This, under the circumstances of this case, they had the right to do without having the transaction declared a general assignment on their part for the benefit of creditors. If the assignors were insolvent at the time of the transfer and conveyances and unable to pay their debts, and made the assignment for that reason, there might be some force in the appellant’s contention. The act of assembly relied upon apply to persons making assignments on account of the inability of such assignors to pay their debts. The question of the inability of these assignors to pay their debts at the time they made their transfer of the property to Hugh McCullough was only adverted to incidentally in the court below, one or two witnesses on cross-examination expressing the opinion that they could not collect their claims in full out of the copartners. But so far as this record throws light upon the subject, the fact is not established that the members of this firm were unable to pay their debts at the time of the transfer of property by them to help out the bank of DuBois in paying its creditors. The question of their ability or inability to pay their debts was not raised in the issue tried, nor was it submitted to or passed upon by the jury. Therefore, two essentials to make this transaction a general assignment under our statutes are wanting, to wit: First, inability of the assignors to pay their debts; second, assignment on that account: In re Bryden, Trustee, 42 Leg. Int. 80.

That a person who happens to be a member of an insolvent banking institution may not assign his individual property in trust to aid the bank in paying its debts without having his act declared a general assignment for the benefit of all his creditors, is a proposition that cannot be entertained, unless it appears that the assignment is made because of his inability to pay his debts.

Many of the points presented by the appellant in the court below involved disputed questions of fact. The points were affirmed with a proviso that the jury found the facts as therein stated. It would have been error to have affirmed them without the proviso. The sérious question involved in this case turns upon the agreement between the creditors and the appellees, and the appellant’s connection therewith. After the bank closed its doors, there was the usual excitement attending the failure of a bank and the locking up of moneys placed on deposit for safe keeping. A meeting of the creditors was soon called for consultation and to dévise a plan of necessary concerted action. A committee was appointed by the meeting to act for the creditors and the appellant was present at that meeting, and according to the testimony the action of the creditors was unanimous. At a second meeting a permanent committee was appointed and empowered to'act for the best interests of the creditors. At a third meeting of the creditors the proposition of the appellees was presented and acted upon, and according to the testimony was unanimously adopted. There was evidence that the appellant was present at the last meetings; 'he denied it upon the witness stand and it was left for the jury to decide. There was also evidence of conversation between the appellant and other creditors and persons concerning the proposition, and that through his attorney he received and receipted for fifty per centum of his claim under the terms of the agreement.

The agreement was not equivocal or difficult to comprehend, it provided for the turning over of certain property by the appellees to increase the fund for distribution among the creditors, and the turning over was conditioned ’upon the release of the appellees from further liability. The acceptance of the property, or the proceeds thereof when converted into cash, was evidence in connection with'other evidence in the case to warrant the jury in finding the appellant a party to the agreement and bound thereby. It is urged, however, that because the money was paid to him under an order of the court based upon certain facts alleged by him in his petition, that by reason of said order and allegations the appellant was not estopped from proceeding and recovering the balance of his claim. In reply to a point put to the court upon this subject the court answered: “ Whether or not the facts stated in this point of themselves would operate as an estoppel, it is not our province to determine, as the facts stated therein must be considered by the jury in connection with the other facts in the case, which if found by the jury, and taken together may constitute an estoppel to plaintiff’s right to recover.”

The appellant’s petition was filed in the proceeding in equity and was the foundation for a rule on Hugh McCullough, receiver. We do not think the order or allegations conclusive upon the appellees in the action against them as copartners. If Hugh McCullough did not answer the allegations contained in appellant’s petition, it was no fault of the- appellees. They had the right to answer the same allegations when confronted with them in this action, and appear to have done so to the entire satisfaction of the jury. The petition and decree were put in evidence on the trial of this case without objection, and considered by the jury-with the other evidence. We think the answer to the point was correct.

The fact that there was a stipulation for a written release of the appellees from further liability by all who accepted the proposition, and the appellant’s refusal to sign it, is a circumstance urged and relied upon by the appellant. The jury have found under sufficient evidence and proper instruction as to the effect of the evidence, that the appellant was a party to the agreement, reaped its benefits and received his full pro rata share of the money derived therefrom and receipted therefor under its terms.

The evidence in the case fairly submitted to the jury established the fact of a common purpose among the creditors to secure the payment of their claims by compromise and settlement. Relying upon each other and each influenced by the presence, action and acquiescence of the others, meetings were held and by united action without a dissenting voice questions were Aroted upon and decided, committees were appointed and authorized to act according to their best judgment for the whole body of creditors, the action of the committees adopted, resulting finally in the adoption and ratification of the proposition presented by the individuals composing the copartnership, and a receipt of a large sum of the money by the creditors, under the terms of the accepted proposition. Under the evidence submitted as above stated, the jury was fully warranted in finding the appellant a party to the settlement by his presence, action, acquiescence and subsequent ratification. He reaped the full benefit of the settlement with' the other creditors, and we see no reason why the verdict in this case should be disturbed.

After a thorough examination of the testimony, the charge of the court and the answer to points, we are satisfied that this case was carefully tried in the court beloAV, and every question fairly presented for the consideration of the jury.

■ The specifications of error are all overruled and the judgment affirmed.

Smith, J., concurs in the judgment.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Mary J. Stewart, Appellant, v. Rebecca A. Dampman and Elhanan Dampman, her husband, and James E. Manifold.

      Mortgage — Defective acknowledgment — Act o/T878.
    A court of equity will not reform a defect in the acknowledgment o£ a mortgage under the provisions of the Act of May 25, 1878, P. L. 149, when the rights of third parties without noticedmve intervened, it being well settled that the defective registry of a deed is a nullity which a purchaser is not bound to notice.

      Statutes — Defective acknowledgment — Notice—Act of 1891.
    The Act of May 12, 1891, P. L. 53, is not retroactive so as to vitalize a defective acknowledgment to a mortgage which as it stood was not a recordable instrument, and therefore a nullity which a purchaser was not bound to notice.
    Argued March 9, 1897.
    Appeal, No. 24, March T., 1897, by plaintiffs, from judgment of C. P. York Co., Jan. T., 1896, No. 2, on demurrer.
    Before Rice, P. J., Willard, Wickham, Beayer, Reeder and Orlady, JJ.
    Affirmed.
    Demurrer to bill in equity. Before Bittenger, P. J.
    Tbe bill alleged that Mr. and Mrs. Dampman executed and delivered a mortgage to the plaintiff April 1, 1870, .against real estate belonging to Mrs. Dampman, that they acknowledged it, and the separate examination required by law was duly made by a justice of the peace on the same day; and that however, the certificate of acknowledgment appended to said mortgage neglected to disclose that the wife had been examined separately and apart from her husband.
    It further appears that the mortgage was duly recorded June 21, 1870. On April 30, 1883, Mr. and Mrs. Dampman executed another mortgage of the same premises to Eliza G. Irwin, which was recorded May 9,1883, and that the property was sold on the scire facias issued on the said second mortgage, and purchased by J ames E. Manifold, the other defendant, and that notice had been given him before the sale of the Stewart mortgage.
    The relief prayed for was the reformation and correction of the justice’s certificate in accordance with the actual facts.
    The defendant, James E. Manifold, demurred on the ground that neither the mortgage nor the record thereof ever had any validity as against an innocent intervening third party or one claiming under him; that the certificate could not be reformed so as to affect the rights of James E. Manifold claiming under the subsequent mortgage of such innocent third party; that notice to Manifold at the time of the sale of the Stewart mortgage, invalid on its face, could not affect him, .and that the plaintiff had been guilty of laches.
    The court below entered judgment for the defendant on the demurrer. Bittenger, P. J., filed the following opinion:
    This bill is filed under the provisions of the Act of May 25, 1878, P. L. 149. This act was intended to provide a remedy for cases of formal defects in certificates of acknowledgments of deeds, mortgages, etc.: Gas Co. v. Douglas, 130 Pa. 283.
    It is also said in the opinion of the court in that ease that, because the proceeding is by a bill in equity there is no reason why it should not carry with it the usual attributes of equitable remedies, among the most important of which is that the court shall have before it all the parties in interest as parties to the bill, and determine at once the rights of all the parties.
    Therefore, James E. Manifold, the last named defendant, and the present owner of the real estate described in the bill, is the principal party in interest, and is consequently joined as a defendant.
    The act of 1878 is as follows : “In every case when it shall be alleged by any party in interest that any deed, mortgage, power of attorney, or contract in relation to real estate, to which is appended a certificate of acknowledgment, defective in form, was in fact really and properly acknowledged in due form of law, by tbe grantor or grantors therein named, it shall be lawful for the court of common pleas of the county in which the land deeded, mortgaged or contracted is situated, to examine into the truth of such allegation, and if satisfied of its truth, to make a decree for the reforming of such certificate of acknowledgments in accordance with the actual facts provided that this act shall not apply where suit or suits have already been commenced to recover the real estate conveyed by such instruments of writing, to which is appended said certificate of acknowledgment defective in form.”
    It is not a retrospective act validating deeds, mortgages, etc., defectively executed, or the recording of such instruments so defectively executed, but provides for the perfecting of the certificate of acknowledgment according to the facts of the particular case.
    The act unquestionably applied in this case, inasmuch as the certificate is palpably defective. The only question for determination is whether the special demurrer of James E. Manifold shall be sustained. He is a purchaser for value without notice, and the present owner of the legal title to the land mortgaged and described in the bill. He holds under Eliza Gr. Irwin, a second mortgagee, on a mortgage recorded in mortgage book “ 2 F,” page 448, recorded May 9,1888, the said James E. Manifold having purchased the property at sheriff’s sale on a scire facias, on said mortgage, on the 9th day of February, 1895.
    The bill should not be sustained as against James E. Manifold unless the instrument would be enforceable against him after its reformation, otherwise the court would be doing a merely useless thing.
    No actual notice to Eliza G. Irwin, the second mortgagee, who was a purchaser for value, is alleged in the bill. The mortgage to the plaintiff was defectively executed and was not a recordable instrument. By Simon v. Brown, 3 Yeates, 186, followed in Heister v. Fortner, 2 Binn. 40, it was established that the defective registry of a deed is a nullity which the purchaser is not bound to notice: Bolton v. Johns, 5 Pa. 145.
    “ A mortgagee is regarded as a purchaser and is protected from all secret equities and contracts of which he had no notice: Heister v. Fortner, 2 Binn. 40; Cover v. Black, 1 Pa. 493. Notice to the purchaser at the sheriff’s sale on the mortgage comes entirely too late, if the mortgagee had no notice when the mortgage was executed : ” Martin v. Jackson, 27 Pa. 504; reaffirmed in Logan v. Eva, 144 Pa. 312.
    Clearly the mortgage of the plaintiff, Mary J. Stewart, at the time of the execution of the mortgage to Eliza G. Irwin, was a nullity as against a bona fide purchaser for value by reason of its defective registay. The operation of a retrospective law must be carefully restricted to the parties to the original contract, and to such other persons as may have succeeded to their rights, with no greater equities. They cannot affect hona fide purchasers : Cooley’s Constitutional Limitations, 6th ed. p. 465.
    It is contended, however, that the mortgage was validated by an act of assembly. The only act cited by the learned counsel for the plaintiff that can be at all relied upon as applicable, is the Act of May 12, 1891, P. L. 53, which is as follows:
    “No grant, bargain and sale, feoffment, deed of conveyance,' release, assignment or other assurance of lands, tenements and hereditaments whatsoever, bearing date prior to the year 1890, made, executed and delivered by husband and wife to bona fide purchasers for a valuable consideration, and acknowledged before any officer duly authorized by law to take such acknowledgment, shall be deemed, held or adjudged invalid or defective, or insufficient in law, by reason of any informality in such acknowledgment, but all and every such grant, bargain and sale, feoffment, deed of conveyance, release, assignment or other assurance so made, executed and acknowledged as aforesaid, shall be as good, valid and effectual in law for transferring, passing and conveying the estate, rights, title and interest of such husband and wife, of, in and to the lands, tenements and hereditaments mentioned in the same, as if all the requisites and particulars of such acknowledgment mentioned in the act entitled, ‘ An act for the better confirmation of the estate of persons holding or claiming under feme covert, and for establishing a mode by which husband and wife may hereafter convey their estates,’ passed February 24, 1770, 1 Sm. 307, were particularly set forth in the certificate thereof; and the record of the same duly made in the proper office for recording of deeds in this commonwealth, and exemplifications of the same, duly certified, shall be legal evidence in all cases in which the original would be competent evidence: provided, that this act shall not apply to suits now pending and undetermined.”
    An examination of this act shows that it makes the instrument mentioned therein, defectively acknowledged, good between the parties, and prescribes that the record of such defectively executed instruments, made in the proper office for the recording of deeds in this commonwealth, and exemplifications of the same duly certified, shall be legal evidence in all cases in which the original would be competent evidence. It does •not, like the validating Act of May 5, 1854, P. L. 572, enact that if such defective deed is recorded, such record thereof shall be as good and effective as if the acknowledgment of the execution of the same deed had been in the same and like manner and form, taken and certified according to the requisites existing at the time of its execution.
    By reason of the validating of the recording of the instrument defectively acknowledged or certified, the Supreme Court in Journeay v. Gibson, 56 Pa. 57, held that a purchaser after such record and before the passage of the act was bound to take notice of it, adding: “Much as we may disapprove of such legislation and unjust as it is, when retrospective, we are shut up to the conclusion that it is operative.”
    The decision of the court in that case went to the extreme, in holding a purchaser for value to be held to be required to take notice of such a record of a defectively acknowledged and recorded deed, afterwards validated by act of assembly. The court evidently .recognized that an injustice was done to the purchaser for value, but felt bound to hold the act constitutional.

      We are pleased that we feel absolved from following the law of Journeay v. Gibson, supra, by reason of the very distinct difference between the act of 1891, and the sweeping provisions of the act of 1854, which validated the record as well as the execution of the defectively acknowledged and recorded deed.
    In our opinion the act of 1891 makes the deed effective between the parties and makes the record and exemplification of the same admissible in evidence, but does not make the record notice to purchasers for value as did the act of 1854. Retroactive acts are to be strictly construed. “ Retroactive statutes are not to be extended beyond the plain intent of the legislature: ” Journeay v. Gibson, supra.
    [We think it is clear that the rights of the defendant, James E. Manifold, should not, and cannot be affected by the mortgage of the plaintiff, as it is asked to be reformed after such reformation, and therefore we must sustain the demurrer.] [1]
    Judgment in favor of the defendant on the demurrer.

      Errors assigned were (1) to portions of the opinion in ruling and decreeing: “We think it is clear that the rights of James E. Manifold should not and cannot be affected by the mortgage of the plaintiff as it is asked to be reformed after such reformation, and therefore we must sustain the demurrer.” (2) In sustaining the demurrer to plaintiff’s bills. (3) In decreeing judgment in favor of the defendant on the demurrer.

      Henry O. Niles, with him George E. Neff, for appellant.
    — A defective acknowledgment is cured by the Act of May 12, 1891, P. L. 53.
    Such legislation has been declared to be retroactive and constitutional: Tate v. Stooltzfoos, 16 S. &. R. 35; Journeay v. Gibson, 56 Pa. 57; Stevens v. Martin, 18 Pa. 101; Schrawder v. Snyder, 142 Pa. 1; Land Co. v. Weidner, 169 Pa. 359.
    The Act of May 25, 1879, P. L. 148, was intended to provide a method whereby the actual facts could be proved and the advantage of them obtained while the witnesses were yet alive.
    . Olías. A. Hawkins, for appellee.

      April 19, 1897:
   Opinion by

Beaver, J.,

A bill in equity was filed in the court below by the appellant, a mortgagee, in accordance with the provisions of the Act of May 25, 1878, P. L. 149, praying for a decree for the reforming of a certificate of acknowledgment to a mortgage defective in form but which it was alleged was in fact really properly acknowledged in due form of law by the mortgagors. If the bill had included as defendants none but the mortgagors, and no intervening rights had accrued, and if the facts alleged in the petition had been properly proved, the plaintiff would have been entitled to a decree in accordance with her prayer. One, Manifold, a purchaser at sheriff’s sale under a subsequent mortgage, was, however, included as a defendant, who demurred to the bill “ on the ground that neither the mortgage nor the record thereof ever had any validity as against an innocent intervening third party or one claiming under him; that the certificate could not be reformed so as to affect his rights; that notice to him at the time of the sale (which was alleged in the bill) of the Stewart mortgage invalid on its face could not affect him, and that the plaintiff had been guilty of laches.” After careful consideration, in a thoughtful and well considered opinion, the court entered judgment upon the demurrer in favor of the defendant. ' Before considering the single question involved in the case, it may be well to remark that the act of 1878, supra, is not in any sense mandatory. It simply gives power or makes it lawful for the courts to do that which in the contemplation of the act itself it was right to do.

If the premises upon which the appellant bases his argument were sound, his conclusion would be irresistible, but they are not sound. The mortgage of the Dampmans to Mrs. Stewart was not a recordable- instrument, even as to the husband. The .acknowledgment was not a compliance with the provisions of 'the act of February 24, 1770, and the instrument was, therefore, .a nullity.- This abundantly appears from many adjudicated -cases: Spencer v. Reese et Ux., 165 Pa. 158, and the authorities 'there cited. At the time when the mortgage of Dampman et Ux. to Mrs. Irvin was recorded, their property was unincumbered, at least so far as third parties and their relation to the mortgage to Mrs. Stewart was concerned. But it is alleged in the bill and is, of course, to be taken "as true that Manifold had actual notice of the existence of Mrs. Stewart’s mortgage at the time of the sale. What was the effect of that notice ? Simply to compel him to make inquiry. It drove him to the records ; nothing more. It could give no validity to what was upon its face invalid. It could give no life to that which never had existence. It created no lien, when upon the face of the records none confronted him: Bolton v. Johns, 5 Pa. 145.

It is claimed by the appellant, however, that by the Act of May 12, 1891, P. L. 53, the acknowledgment is validated and the mortgage good as against Manifold. If this were so, it would not be necessary to resort to a bill in equity under the provisions of the act of 1878, supra; but it is not so. The act of 1891, supra, although probably passed to meet the requirements of a particular case, is general in its -terms, and is to be given full force and effect. It was evidently intended to apply to cases where purchasers for a valuable consideration were claiming by virtue of a deed or other instrument defectively acknowledged. It certainly was not intended and cannot be held to apply to third parties claiming against the validity of such a deed whose rights were acquired prior to the passage of the act. It is claimed that Journeay v. Gibson, 56 Pa. 57, goes to this extent. We must hold that Journeay v. Gibson is law according to’ its facts, and have no difficulty in doing so, although heartily joining Mr. Justice Stbong- who wrote the opinion, in his disapproval of such legislation, and his remark as to the injustice of its retrospective character. Its facts are, however, entirely different from those of this case. On the 14th of June 1853, Eno executed a mortgage to Gibson to secure a bond for $1,200 which on the same day was acknowledged before James A. North, a justice of the peace of Genesee county in the state of New York. It was recorded on the 4th of April, 1854, in Crawford county, Pennsylvania, where the land covered by the mortgage lay. Eno conveyed the same land on the 3d of May, 1854, to George B. Webb. On the 5th of May, 1854, an act of assembly was passed intended to make valid and effectual in law, instruments acknowledged before officers of'other states, who by the laws of those states had authority to take acknowledgments, although prior to that time such acknowledgments were not valid in Pennsylvania. Subsequently to the passage of this act Webb conveyed this land, and on the 22d of December of the same year, Keyes, who had acquired the title, mortgaged the land to A. Journeay & Co. Under proceedings on this mortgage the land was sold by the sheriff and conveyed to Journeay, September 3,1860. All that was decided in this case was that Journeay, at the-time he took the mortgage, was bound to take notice of' the provisions of the act of the 5th of May, 1854, which validated an acknowledgment before that time invalid. If the case had been one as to the rights of Webb who took the conveyance from Eno before the passage of the act, a very different question would have been presented, and one which as to its facts would have been more nearly similar to the present. The opinion of the court below fully covers the points involved in the case, and we have only elaborated one or two of them, because of the ingenious argument of the appellant’s counsel, both in his paper-book and orally before this court.

For the reasons herein given, as well as those contained in the opinion of the court below, the decree is affirmed and the appeal dismissed at the costs of the appellant.


author: Wickham, J.,

text:
    Czar Cycle Company v. John W. Holmes, trading as J. W. Holmes and Bicycle Exchange, Appellant.

      Affidavit of defense — Sufficiency.
    An affidavit of defense is sufficient which sets forthwith reasonable precision (1) a release; (2) a return of a portion of goods; (8) partial payment; (4) acceptance of a promissory note which had not been returned, and of which defendant had no knowledge whether or not the same had been negotiated.
    Argued April 13, 1897.
    Appeal, No. 68, April T., 1897, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1896, No. 396, for want of a sufficient affidavit of defense.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Assumpsit for $823.06 balance due on book account.
    The facts sufficiently appear in the opinion of the court.

      April 19, 1897:
    The court below entered judgment for $823.06 for want of a sufficient affidavit of defense. Defendant appealed.

      Error assigned was in making absolute the rule for judgment for want of a sufficient affidavit of defense.

      J. Chas. Eielcen, with him John C. Thompson, for appellant.

      Galen C. Hartman, for appellee.
   Opinion by

Wickham, J.,

The affidavits of defense in this case, set forth with reasonable precision, four matters of fact. First, that after the purchase of the merchandise, for the price whereof suit has been brought, the plaintiff agreed to look for payment to J. W. Piolines Company, Limited, a concern organized under the Act of June 2, 1874, P. L. 271 and its supplements, after the goods were bought, and doing business at the defendant’s former stand, and that thereupon the plaintiff released the defendant from further liability. Second, that certain of the articles purchased, amounting in value to $302.50, were returned to the plaintiff, and it agreed to allow a credit for that sum, but failed so to do. Third, that no credit was given for a payment of $150, made May 9, 1896, and accepted by the plaintiff, on the account in suit. Fourth, that on the day last mentioned, J. W.Holmes Company, Limited, gave and the plaintiff accepted, on the same account, a negotiable promissory note for $310, which note had not been returned, and the defendant had no knowledge whether or not the same had been negotiated.

In this multitude of defenses the defendant found no safety. An unqualified judgment was entered against him for the whole amount claimed. We think that the affidavits contained enough to entitle him to be heard before a jury.

Judgment reversed and a procedendo awarded.


text:
    Estate of Daniel Mickley, deceased. Appeal of Daniel N. Stephey.

      Will — Construction—Scheme—Distribution—Intent—Equality.
    Where the scheme of a will is equality among the children, the substitution of grandchildren, eo nomine as legatees in place of their deceased mother, makes no change in the method of determining such distribution, and the children take their mother’s share subject to advances made to her.

      Will — Buies of construction — Intent.
    The first object in the construction of a will is to ascertain the intention of the testator. And a will will be construed by its four comers, and a scheme of a will will be adopted being in favor of equality which the law favors when such scheme is the apparent intention of the testator from a common sense point of view.
    Argued March 16, 1897.
    Appeal, No. 39, March T., 1897, by Daniel N. Stephey, from the definitive decree of O. C. Franklin Co., affirming exceptions to auditor’s report.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Exceptions to auditor’s report. Before Stewart, P. J.
    It appears from the report of the auditor that the' question arose on the distribution of the estate of Daniel Mickley who died testate on the 29th day of May, A. D. 1895, in relation to the share passing to the children of Elizabeth Stephey, daughter of the decedent. The question being whether the children of Elizabeth Stephey avIio were recited by him as distributees under the will, took their mother’s share, subject to the advancements made by the testator to her on loans, or only subject to advancements made to them after her death, the auditor holding that they took the full share of the mother less the advancements made to them after their mother’s death. To this finding of the auditor, exceptions were filed, which were sustained by the orphans’ court in an opinion by Stewart; P. J., and amended distribution made by the auditor in accordance with the decree of the court.

      Errors assigned among others were (1) in sustaining the first exception filed to the report of the auditor, which exception is as follows: “ The learned auditor erred in not taking into account the advancement made by the testator to Elizabeth Stephey, and in not charging with said advancement the share of the heirs of Elizabeth Stephey. The exceptants contend that the testator intended that all his children, including his deceased daughter, Elizabeth Stephey, should be charged with the advancements made by him and recorded in his advancement book.” (3) In sustaining the sixth exception filed to the report of the auditor, which exception is as follows: “ The learned auditor erred in his exclusion of the evidence of Daniel Mickley. This evidence was competent to show the testator’s intention with respect to the advancements he made to his family. For this purpose it was competent and should have been considered.” (8) In confirming the amended report of the auditor, in so far as the said report charges the heirs of' Elizabeth Stephey, deceased, with the advancements charged in the testator’s book against Elizabeth Stephey, their mother, and deducts the'same from their distributive shares, under the will of the testator.

      O. O. Bowers, with him J. B. Buthrauff, for appellant.
    — The bequest here is of personalty; there is therefore no question as to what persons are meant by the “heirs of Mrs. Elizabeth Stephey, dec’d.” They are those entitled to her estate under the statutes of distribution, viz: her three children, Daniel N. Stephey, Oscar H. Stephey and Anna M.TPrice, and the effect is the same as if the bequest were to “ the children of Mrs. Elizabeth Stephey, dec’d,” naming them: McKee’s App., 104 Pa. 571; Baskin’s App., 3 Pa. 304; Eby’s App., 84 Pa. 241; Bender’s App., 3 Grant, 510; Ashton’s App., 134 Pa. 390; Dorrance’s App., 154 Pa. 523.
    Where there is no ambiguity in the terms of a will, a doubt suggested by extraneous circumstances cannot be permitted to effect its construction: Sponsler’s App., 107 Pa. 95; Baker & Wheeler’s App., 115 Pa. 590.
    The question in expounding a will is, not what the testator meant, but what is the meaning of his words: Hancock’s App., 112 Pa. 532.
    The cardinal rule for the construction of wills is, that the intent of the testator must be gathered from the will itself: Baker & Wheeler’s App. 115 Pa. 590.

      W. U. Brewer, with him W. T. Onnvake, for appellee.
    — The legacy given here is a substitutional one. It is given to the persons who, at the testator’s death, are heirs of Elizabeth Stephey. If her father had died intestate the persons the law designates heirs and who thereby succeed to her share in the estate, by way of representation, would have taken her share subject to the advancement, and in no possible way could they have secured her share divested of this burden: Eshleman’s App., 74 Pa. 42; Storey’s App., 83 Pa. 89.
    • Looking into the will itself, it seems that its construction presents no serious difficulty. The testator intended that all the advancements made to his children and grandchildren, participating in the distribution, should be considered and accounted for, and in this manner should be determined the equal shares designated by him, and only by this method of distribution can there be the equality intended by the testator. From this, therefore, it results that the advancement made Mrs. Stephey, must be considered as if it were a part of the testator’s estate in making the distribution. In short, it must be brought into hotchpot: Whitman’s App., 2 Grant, 323; Price v. Douglass, 150 Mass. 96; Eichelberger’s Est., 135 Pa. 160; Hughes’s App., 57 Pa. 179; Wagner’s App., 38 Pa. 122; Boyd’s App., 83 Pa. 89; Fairlamb’s App., 100 Pa. 385; Park’s Est., 21 W. N. C. 227; Hill v. Bloom, 4 Cent. Rep. (N. J.) 845.
    Even if the will left in doubt what the testator intended with respect to the advancement made to Mrs. Stephey, the court would adopt such construction as would make the distribution thereunder conform to a distribution under the intestate laws. There is always a presumption that a testator intends equality among his children and their heirs unless the will clearly evinces the contrary.
    Technical rules of construction are disregarded when a strict adherence to them would overturn a testator’s well defined scheme of distribution among children and their issue with equality for its central and controling purpose, and this is especially the case when the will is prepared by a layman: Knoble’s Estate, 87 Pa. 51; Carpenter’s Appeal, 170 Pa. 140; Suplee’s Appeal, 16 W. N. C. 378; Grim’s Appeal, 89 Pa. 333; Weaver’s Appeal, 63 Pa. 309; Smith’s Appeal, 23 Pa. 9; Passmore’s Appeal, 23 Pa. 381; Long v. Labor, 8 Pa. 229.

      April 19, 1897:
   Opinion by

Beaver, J.,

The single question, the kernel of each assignment of error in this case, is the construction of a sentence in the will of Daniel Mickley which is as follows: “To the following named persons I give and bequeath the residue or balance of my estate in such proportion as shall make the shares of each equal, after deducting from each so much as has already been given them (which amount is recorded in my book kept by me for that purpose) as follows: to Mrs. Kate Bell, Mrs. Mary Bell, Mrs. Susan Good, Jacob Summers, son of Sarah Summers, deceased, heirs of Mrs. Elizabeth Stephey, deceased, an equal proportion of one share, and to Daniel W. Mickley, Simon Mickley.” The sole question is whether under the terms of tins bequest the heirs of Mrs. Elizabeth Stephey take the share bequeathed to them in equal proportions subject to or freed from the burden of advancements made to the said Elizabeth and charged against her by the testator. It is claimed by the appellant that the heirs, who in this case are the children of Mrs. Elizabeth Stephey, being personae designate, take their share, without deducting the advancements made by their grandfather to their mother in his lifetime.

The substance of this will was dictated by a plain layman to a scrivener who was not learned in the law. The instrument is singularly wanting in technical terms and expressions and, if construed by the person who wrote it or by any ordinary layman, there would probably be little difficulty in reaching a conclusion as to what the intention of the testator was, and it is only when the technical rules of strict construction are applied to the terms used that difficulties appear.

The first object in the construction of a will is to ascertain the intention of the testator. As was well said by Bailey, J., in Wickham v. Turner, 2 D. & R. 398 (16 E. C. L. 96): “We certainly are not empowered to make a will for a testator, but we are empowered, and it is our duty also to construe the will he has made so as to give effect to that which upon the whole may reasonably be taken to have been his intention and object. We are to act either upon express words or upon a manifest intention, and where the language is at all doubtful in one part we are to construe that part by reference to and comparison with former parts (or latter) as a key to explain the particular word which gives rise to the doubt entertained.” In reaching a conclusion as to the intention of the testator, as Lord Kenyon has-forcibly expressed it, “You are to look into all the four corners of the will.” In the paragraph of the will in question which follows the one already quoted the testator provides that “The following named persons, having already received their share and proportion of my estate, are not considered in my will as follows: heirs of Abraham Mickley, deceased, heirs of Henry Mickley and Mrs. Clara Funk.” Carefully considering the will as a whole, it is very evident that the main thought in the mind of the testator was equality in the shares of his estate, and not equality among the individual legatees; and, in order to insure that equality, he makes as part of his will, or at least as the means of establishing the equality of the shares into which his estate is to be divided, the book of advancements which had been kept by him for that purpose. In this book it is admitted that Elizabeth Stephey, his daughter, is charged with advancements amounting to $2,280, beginning in 1850 and ending in 1866, with a tombstone and coffin, the latter presumably after her death. In the same book are contained charges against Abraham Mickley extending from 1855 to 1873, amounting to $3,735.35. In addition to the advancements made to Elizabeth Stephey, as contained in the book of the testator, he made advancements of $400 to each of "her three children Feb. 1st and Sept. 17, 1888, with which they admit they should be charged and for which they gave him receipts in the following form: “ Received of Grandfather Mickley my portion of my mother’s legacy Three Hundred Dollars,” and a similar receipt for $100 each. It does not clearly appear in the evidence when Elizabeth Stephey died but, as no charge is made in the book against her after the one for the tombstone and coffin, it would appear as if the advancements were made for tombstone and coffin for her after her death. This entry and the form of receipt which the grandfather took from his grandchildren, who were the children of Elizabeth Stephey and which antedates his will, would seem to indicate what his intention was as to the share which the heirs of Elizabeth Stephey were to take. The receipts are for each one’s portion of “my mother’s legacy.” It is true that the will is made about five years after these receipts were given; but, taken in connection with the book which was in evidence and to which the testator specially refers in his will, they are in onr opinion significant. Looking “ into the four corners of the will ” the court below reaches a conclusion as to its general scheme by the reference to the heirs of Abraham Mickley who are said by the testator to be “not considered in my will” “ having already received their share and proportion of my estate.” In the book of advancements referred to, as before stated, Abraham Mickley is charged with the sum of $3,735.35. There is no evidence whatever of any advancements having been made to his heirs after his death. The court concludes therefore that the share of Abraham’s heirs, as referred to in the will, was exhausted by the advancements made to their father in his lifetime. The appellant very ingeniously endeavors to destroy the force of the position taken by the court below by arguing that, there being no evidence in the book or elsewhere of advances being made to the heirs of Abraham Mickley, it will not do to assume that no such advances were made, and that it is also an assumption to say that the advances charged to Abraham Mickley in the book were regarded by the testator as those which influenced him in not considering the heirs of Abraham Mickley in his will. As to this it may be said that the general scheme of the will being fairly apparent from a common sense standpoint, and that scheme being in favor of the equality which the law favors, and the fact of the advancements to Abraham Mickley affirmatively appearing in the testator’s book, this fact cannot be rebutted by a mere assumption that there may have been other advancements not charged anywhere made to the heirs of Abraham Mickley after his death. Whilst it may be strictly and technically true that there is no evidence that “in point of fact nothing had been advanced to the heirs of Abraham Mickley,” it is quite as true that there is no evidence to show that anything had been so advanced. The court below was, therefore, in our opinion, justified in using the clause of-the will referring to the share of the heirs of Abraham Mickley and the facts relating thereto as they appear in the evidence as a help in the effort to reach a conclusion as to the intention of the testator. We have no doubt as to the correctness of the conclusion reached. Fairlamb’s Appeal, 100 Pa. 385, is in point and is a case in which the conclusion reached was based upon grounds much narrower than those upon which this case stands. The evident intent of the testator will be best carried out by distributing his estate in accordance with the last report of the auditor based upon the opinion of the court below.

The decree confirming that distribution is, therefore, affirmed, and the appeal dismissed at the costs of the appellant.


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    Assigned estate of Winfield S. Love. Appeal of T. T. Shirk.

      Assignee's sale — Effect of lien creditor's agreement — Discharge of his lien — Junior judgments.

    It is a maxim that anyone may renounce the benefit of a privilege provided for himself.
    A mortgage creditor whose mortgage is a lien prior to all others, except another mortgage, under an agreement with the assignee for creditors and a verbal notice given at the hour of the assignee’s sale made under the order of court founded on the Act of February 17, 1876, P. L. 4, can agree that the lien of his mortgage shall be divested by the sale so that he may participate in the distribution of the fund realized from the sale to the exclusion of a subsequent judgment creditor who was present at the sale, heard the notice, made no protest at the time, participated in the sale as a bidder, and filed no exceptions to the return of sale made by the assignee.
    What effect such sale would have upon the rights of judgment creditors, whose liens were divested thereby and who were not present and had no knowledge of the verbal notice given thereat, not considered.
    Argued March 12, 1897.
    Appeal, No. 38, March T., 1897, by T. T. Shirk, from definitive decree of C. P. Blair Co., June T., 1896, No. 54, overruling exceptions to and confirming report of the auditor appointed to distribute funds in hands of the assignee for the benefit of creditors of Winfield S. Love.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orladt and Smith, JJ.,
    Affirmed.
    Exceptions to auditor’s report. Before Bell, P. J.
    Winfield S. Love executed a deed of assignment for creditors to C. O. Templeton on June 24, 1895. The only real estate passing by said assignment was an improved farm. At the date of sale there were due two mortgages, the liens of which were prior to all other liens thereon: the first, in favor of James Love’s executors, for $2,200 and the second, in favor of the citizens’ B. & L. Assn., for the real debt of $1,200.
    The assignee presented his petition for leave to sell under the Act of February 17, 1876, P. L. 4, discharged of liens. On October 12, 1895, after due advertisement and'one adjournment the property was sold and bid in by the assignor for his wife for $1,020, subject to the payment of a first mortgage for $2,200, in favor of the executors of James Love. On October 30, the sale was confirmed absolutely.
    The assignee filed his account showing a balance in his hands arising from the sale, of $900.50. No exceptions having been filed said account was confirmed absolutely. An auditor was appointed to distribute the balance in his hands. Before the auditor the fund was claimed by the Citizens’ Building & Loan Association No. 2, a second mortgage creditor for $705, which claimed the right to participate in the distribution; and by T. T. Shirk, the appellant, a subsequent judgment creditor for $465.23 and by other judgment creditors who did not appeal.
    At the sale of the property it appears that in accordance with the agreement made by the second mortgagee notice was given that the sale would be made discharged of the second mortgage by virtue of said agreement.
    The appellant was present at the sale, heard the notice and was one of the bidders for the property. The auditor awarded the payment of the second mortgage as a prior lien on the fund, which distribution was confirmed by the court below.

      Errors assigned among- others were (1) In not awarding to T. T. Shirk the full amount of his judgment debt, interest and costs. (2) In awarding any portion of the fund realized from said sale to the Citizens’ Building and Loan Association, No. 2, on its mortgage. (3) In overruling appellant’s seventh exception, which exception is as follows: “7. In not finding that the lien of the mortgage of the Citizens’ B. & L. Association No. 2, is prior to all other liens upon the real estate of the assignor, from the sale of which said fund was realized, except another mortgage due to the executors of James Love, deceased; and that the lien of said mortgage of the Citizens’ B. &. L. Association No. 2, was not destroyed or in any way affected by the sale made by C. O. Templeton, Esq., assignee, by virtue of an order of the court of common pleas of Blair county, made under the provisions of the act of assembly of February 17, 1876.” (4) In overruling appellant’s eighth exception, which exception is as follows: “ In not finding that the proceeds arising from said sale can only be appropriated to liens extinguished by virtue thereof according to their priority; and that the lien of the mortgage of said Citizens’ Building & Loan Association No. 2, was not extinguished by said saló. ” (5) In confirming the report of the auditor absolutely.
    Stevens, Owens $ Pascoe, for appellant.
    — -The Act of March 23, 1867, P. L. 43, forbids the court to discharge such a debt: Penn. Square Building Association’s Appeal, 81* Pa. 330.
    In Loomis’s Appeal, Black, C. J., delivering the opinión of the court, after reviewing the authorities, says: “We cannot choose but hold, that while a contract may be made, at the time of the sale, in some sense legally binding upon those who make it, it can have no validity whatever against those who are not parties to it. To give it the effect of continuing a lien on the land, it must have the consent, not only of the purchaser, but of all the lien creditors : ” Loomis’s Appeal, 22 Pa. 312, 318.
    The rights of the lien creditors junior to the mortgage were vested rights, and the sheriff could not divest them, either in whole or in part. The law gave them the entire fund raised by the sale, and without their consent no portion of it could be diverted to the payment of another class of creditors: Devine’s Appeal, 30 Pa. 348, 351.
    “We do not in the least mean to impugn the rule that, as a general thing, judicial sales discharge all liens which are not protected from discharge by law or their own nature: ” Thompson, C. J., in Ashmead v. McArthur, 67 Pa. 326, 329.
    Moreover, the rights of those claiming to participate in the proceeds of a sheriff’s sale are to be determined by their status, as shown by the record at the time of sale. The rule is a presumption of law, not rebuttable; and in case of its violation, the inference of injury to junior incumbrances, is drawn as a presumption juris et de jure, and the rule is a rule of policy in the interest of certainty in judicial sales: Coyle’s App., 163 Pa. 222; Indiana Co. Bank’s App., 95 Pa. 500.

      April 19, 1897:
    As showing the inutility of a notice to change the status of creditors, fixed by the records: Coyne v. Souther, 61 Pa. 458, 459.

      Sicks & Templeton, for appellee.
    — The assignee having full title to the land under his deed of assignment, and having obtained under the act of assembly an order of the court to sell the land clear of all incumbrances, except first mortgages, may he not by agreement and consent of the holders of such first mortgages and notice to all lien creditors and bidders sell the land for its full value free from all incumbrances for the benefit and advantage of the estate ? Who can be injured by such an agreement and such a sale ? Certainly no one.
    The Supreme Court has frequently, for equitable reasons, enforced conditions annexed to sales made by a sheriff, who is a mere agent of the law, as is well shown by the opinion of the learned court below, citing Zeigler’s Appeal, 35 Pa. 173; Crooks & Cooper v. Douglass, 56 Pa. 51; Ashmead v. McArthur, 67 Pa. 326; Tospon v. Sipe, 116 Pa. 588.
    The lien creditors may, in advance of the sale, promise to release the land of their liens, in order thaif the full price may be 'obtained, in consideration of the assignee’s undertaking that the money shall be applied to their liens in their order. A sale made in pursuance of this contract would discharge the land of the liens. The creditors would be obliged to look to the purchase money instead: Trickett on Assignments in Pa., sec. 122, and cases there cited.
   Opinion by

Beaver, J.,

The appellant in his argument embodies the various assignments of error in this case in two questions. These can be combined in one and for the sake of clearness and fullness should have two or three additional facts added which are in no way disputed but are practically admitted. This is the question : Can a mortgage creditor whose mortgage is a lien prior to all others, except another mortgage, under an agreement with the assignee and a verbal notice given by the assignee at the hour of the assignee’s sale made under an order of court founded on the act of February 17, 1876, agree that the lien of his mortgage would be divested by the sale, divest the lien of Ms said mortgage, so that he may participate in the distribution of funds realized from said sale to the exclusion of a subsequent judgment creditor whose lien would be divested by said sale, and who was present at the sale, heard the notice given by the assignee, made no protest at the time, participated in the sale as a bidder, and filed no exceptions to the return of salé as made by the assignee ?

The purposes of the Act of February 17, 1876, P. L. 4 are plainly apparent. They are, first, to enable an assignee for the benefit of creditors to make advantageous sales of real estate, that is, sales advantageous to the creditors for whom the assignee is trustee, and to this end to empower the courts of common pleas to direct the sales of real estate incumbered by liens freed therefrom; and, second, to preserve the rights of mortgagees the lien of whose mortgages it is not necessary to divest, in order to make such a sale advantageously. The language of the act which relates to the preservation of the lien of first mortgages is as follows: “ which sale or sales, after being confirmed by said court, shall discharge all liens against the real estate so sold, excepting that where the lien of a mortgage upon real estate is or shall be prior to all other liens upon the same property, except other mortgages, ground rents and the purchase money due the commonwealth, the lien of such mortgages shall not be destroyed nor in any way affected by any sale made by virtue or authority of any sale made under the provisions of this act.” It is very clear that the court of common pleas having jurisdiction of and control over assigned estates could not by an order of sale direct the divestiture of the lien of a mortgage which by the terms of the act above quoted is directed to be preserved, nor could the assignee make sale of real estate so ordered to be sold divesting such lien, without the express consent of the mortgagee. The provisions of the act which apply to such mortgages do not, however, tie the hands of the mortgagees. Such provisions are merely directory and not mandatory. They do not prevent and were not intended to prevent those who were to be benefited under the act from waiving or relinquishing the benefits thereby conferred. As was said by Mr. Chief Justice Gibson in Berger v. Hiester, 6 Wharton, 210, “ It is a maxim that anyone may renounce the benefit of a privilege provided for himself.”

In the present case a Building & Loan Association was the holder of a second mortgage upon the premises about to be sold by the assignee. The amount due under the mortgage or which would necessarily be paid by the purchaser, if the lien of the mortgage remained, was uncertain. This uncertainty would necessarily deter bidders and prejudice the rights of creditors who were to share in the fund arising from the sale. It was therefore wise on the part of the assignee to secure, if possible, an agreement on the part of the holder of this mortgage that its hen should be divested. Such an agreement was secured. Announcement thereof was made at the sale. The appellant in this case, after the announcement was made, was a bidder. He made no protest at the time. He acquiesced in the sale and in the sufficiency of the price of the land sold by allowing the bidder next higher than himself to take the property. He made no complaint, when the return of sale was made by the assignee, and is not heard in derogation of the bona ñdes of the sale or of the sufficiency of the price of the property sold, until the proceeds thereof are brought into court for distribution, and even then his complaint is not that there was bad faith, not that the price is insufficient, but that the lien of the building association mortgage was not divested notwithstanding the agreement. In Burkholder’s Appeal, 94 Pa. 522, Mr. Justice Stbrjrett delivering the opinion of the court says : “ It has been definitively settled that by the final confirmation of a sale made by an assignee for the benefit of creditors under the act of February'17, 1876, the land is converted into money as of that date, and at the same time discharged from all such then existing liens ás are intended to be divested by the sale, and that the liens so divested are to be paid out of the proceeds of sale according to their priority on the date of confirmation, with interest to that date.” He does not say the liens divested under the provisions of the act referred to, but such liens as are intended to be divested by the sale. There is we think clear recognition of what has been the almost universal practice under the act of 1876 of the divestiture of the lien of the mortgage by consent of the mortgagee where such divestiture was for the benefit of the assigned estate. Under the peculiar circumstances of this case, we are clearly of the opinion that the assignee was enabled to make a more advantageous sale of the real estate sold by being able to announce that the lien of the mortgage held by the building association, uncertain in amount and uncertain also as to the number of payments and the duration of time within which such payments were to be made, would be divested by the sale than if the lien had been allowed to remain, as was possible under the provisions of the act of 1876, above referred tó. The appellant was in no way a sufferer. He was represented at the sale. He heard the notice. He was a bidder and, if he had been a purchaser, would have been entitled, of course, to claim the benefit of the agreement made by the assignee and the mortgagee as to the divestiture of the lien of the building association mortgage. If for any reason he were dissatisfied with the terms of the sale, it was his duty to make his protest on the spot or at the time the assignee made his return. The agreement between the assignee and the holder of the building association mortgage was undoubtedly valid and could be enforced: Loomis’s Appeal, 22 Pa. 812. It would be unfair, therefore, for the appellant charged with the knowledge of the facts to take the proceeds of .'the sale as against the holder of the building association mortgage and compel him to have recourse to the property which, in the hands of the purchaser at the assignee’s sale was divested of the lien of the mortgage by the agreement of the mortgagee himself.

We are not called upon to consider what the effect of this sale upon the rights of judgment creditors, whose liens were divested thereby and who were not present and had no knowledge of the verbal notice given thereat, might be. As to the present appellant, we are satisfied that the distribution made by the auditor and confirmed by the court below should stand.

The decree is, therefore, affirmed and -the appeal dismissed at the costs of the appellant.