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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 8) online

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and acquit the said William Chamberlain of and from all claims,
demands, liabilities and offsets, for any cause whatsoever hereto-
fore existing. In witness whereof the said parties have hereunto
set their hands and seals.



WM. CHAMBERLAIN,
JAMES M'CLURG,
ALEX. M'CLURG,



SEAL.]

'SEAL.]

SEAL.1



The defendants requested the court to charge the jury :
1. That if they believe that the transaction was intended as a
loan of money, that the deduction of $2*235 by the plaintiff from
the principal sum or from any portion thereof, and the taking of
securities for the said principal sum of $44,700, with interest
thereon from the date of the transaction, constitutes an usurious
transaction, and the said sum of $2235 should be deducted from
the plaintiffs claim as of the date of the transaction.



Sept. 1844.] OF PENNSYLVANIA. 35

[Chamberlain v. M'Clurg.]

2. That if the jury believe that the transaction was a loan of
money, so intended by the parties, and any of the securities, by
means of which the said loan was intended to be effectuated by
the plaintiff to the defendant, failed to be realized without any
default of the defendant, but by reason of an original defect in the
security itself, then the defendant is entitled to a deduction on the
mortgage for the amount so failing to be realized and his expenses
in attempting to collect the same, with interest as of the date of
the transaction, and for the expenses as of their date.

3. That if the jury believe that the transaction was intended
as a loan of money, and the defendant was necessarily put to any
expense in collecting the money due on the securities, by which
the said loan was intended to be effectuated, that the defendant is
entitled to a deduction for the amount thus necessarily expended
by him with interest.

4. That the agreement of 1840, or any acts or declarations of
the defendant, cannot operate as a confirmation of the original
usurious contract, or render the same valid, so far as relates to
the aforesaid sum of $2235, or any other various part.

5. That the said agreement of 1840 cannot operate as a waiver
of any legal defence which the defendant then had to the claim
of the plaintiff on the mortgages.

The court below instructed the jury in answer to the first point,
that inasmuch as the transaction between the parties was partly
in writing and partly in parol, it became a matter of fact for the
determination of the jury, whether it was usurious or otherwise.
If it were an exchange of securities of unequal value known and
estimated by the parties in the execution of their agreement, it
was a violation of no law and must be carried into effect. But if
the parties sought in disguise and attempted to cover a loan of
money under a pretence of sale or exchange of securities, then it
was usurious and the jury should deduct the amount of the pre-
mium as set out in the statement.

In answer to the second point, the court said that the failure of
the consideration to the amount of the mortgage and judgment
of Bullick and Tracy, if due diligence had been used in its col-
lection, was a good defence to that amount, but that the expense
of collection was not available to the defendant as matter of
defence.

The third point the court answered in the negative. The
fourth and fifth points the court answered in the affirmative.

MCandless and Biddle, for plaintiff in error, cited 2 Call 92;
4 Hen. $ Munf. 490 ; 3 Wend. 62 ; 14 Eng. Com. L. 82 ; 1 Dall
448 ; 14 Serg. $ Rawle 291 ; 5 Whart. 446 ; 1 Watts $ Serg.
153 ; 5 Walts $ Serg. 436 ; 1 Serg. $ Rawle 52 ; Doug. 631 ;
3 Penn. Rep. 451 ; 3 Whart. 599.



36 SUPREME COURT [Pittsburgh

[Chamberlain v. M*Clurg.]

Lowry, for defendant in error, cited 3 Watts < Serg. 261, 266;
8 Cow. 398, 691 ; 4 Serg. $ Rawle 487 ; Com. on Usury 165.



The opinion of the Court was delivered by

ROGERS, J. Whether the contract was usurious is a question
of fact that was properly referred to the jury under instruction
from the court, to which no exception can with justice be taken.
Considering, therefore, as we must do after the verdict of the
jury, that the original agreement is usurious, it becomes necessary
to examine the effect of the agreement of the 9th March 1840.
The principal grounds of defence consist of two distinct items,
viz: $2235, the amount alleged to be usurious, and a bond and
mortgage of Bullick and Tracy for $2000, which formed part of
the consideration of the mortgage on which the suit is brought.
The defendant alleges he never received the money due on that
mortgage, nor any part of it, although he used due diligence to
recover it. To avoid error the points of defence must be kept
separate and distinct.

As to the first, we think it very clear that the agreement cannot
operate as a confirmation of the original contract so as to estop
the defendant from availing himself of any defence he may have
arising out of the statute against usury. The principle which
applies to this part of the case is ruled in Duncan v. M*Cullough,
Adm. of Findley, (4 Serg. fy Rawle 486). When there has been
actual and positive fraud, or the adverse party has acted mala fide,
there can be no such thing as a confirmation ; what was once a
fraud will be always so. The reason is, that a contract infected
with fraud is not merely voidable but void, and confirmation, with-
out a new consideration, would be nudum pactum. So of usurious
contracts, all the authorities concur that no subsequent confirma-
tion will be available. Is, then, the agreement of the 9th April
1840 a simple confirmation of the original contract, or is it a new
contract on new terms and conditions and upon a good and suffi-
cient consideration ? The point is not without difficulty ; but I
have come to the conclusion that it is nothing more (so far as
respects the usurious consideration) than a confirmation of the
original contract, with an extension of time for the payment of
the money. The suit is on the first contract, no new security
having been given or contract made. If a new bond and mort-
gage had been executed upon a new consideration, it would have
presented a different aspect, unless it could have been shown that
the transaction was a colourable shift to evade the statute against
usury, devised when the money was originally lent and the bonds
and mortgages given. There is nothing to prevent parties to an
usurious contract from entering into a new agreement on a new
consideration, if done under circumstances which negative the
idea of imposition or undue advantage. If, therefore, on another
trial, the jury should find that the contract is tainted with usury,



Sept. 1844.] OF PENNSYLVANIA. 37

[Chamberlain v. M'Clurg.]

nothing has been subsequently done which can avail the de-
fendant.

And now for the second point. The Bullick and Tracy mort-
gage was part of the original consideration, it being one of the
securities assigned by Chamberlain to M'Clurg. The defence (so
far as respects this item) is simply a failure of consideration pro
tanto. It is neither fraudulent nor usurious, and consequently it
may be the subject of confirmation or of compromise, as cannot be
doubted. From the evidence it would seem that Chamberlain,
while he admitted that M'Clurg had used diligence in attempting
to recover the amount due on the mortgage, denied he was to suf-
fer the loss, inasmuch as he had not guaranteed the recovery of
the money. On the latter point it would appear that the parties
were at issue. In a letter, dated the 27th January 1840, from
Chamberlain to M'Clurg, which appears to have been in answer
to a letter from the latter to the former, he uses this language : " I
have made inquiry about the Bullick and Tracy affair, and find
that everything has been done that is possible in the business. As
I did not guarantee the claim, I consider that I have no further
interest in it." Not quite three months afterwards the last agree-
ment is made, which purports to be as well for the settlement of
all variances as for the consideration afterwards mentioned, viz :
the extending of the time for the payment of the money lent by
Chamberlain to M'Clurg. In the agreement, Alexander and James
M'Clurg expressly release and acquit Chamberlain from all claims,
demands, liabilities and offsets, for any cause whatsoever, hereto-
fore existing. If, therefore, the Tracy mortgage was one of the
differences in the contemplation of the parties, there is an end of
this part of the defence, for the settlement of existing controver-
sies is a good consideration of a new contract; and if the jury
believe this to be the case, the defendant will be estopped from
setting up a defence which otherwise might have availed him.
There is nothing in the bills of exception, for a party is not con-
cluded or estopped by an usurious deed or security from showing
external circumstances which prove the contract to be corrupt.
A contrary doctrine would be a virtual repeal of the statute
against usury. A party is permitted to prove circumstances and
conversations, before and after a written agreement, for the pur-
pose of showing the transaction was usurious. And on the con-
trary, if the agreement appears prima facie to be usurious, the
party is not concluded from showing that the true agreement was
that only legal interest should be paid.

Judgment reversed, and venire de novo awarded.

VIII. D



38 SUPREME COURT [Pittsburgh



Elliott against Pearsoll.

A devise of land to A. "to be enjoyed during his life, and at his death to be
enjoyed by his heirs, so on in tail for ever," creates an estate tail.

A sheriff's sale of the estate of a tenant in tail does not so devest him of the
inheritance that he may not afterwards execute a deed, in pursuance of the Act
of Assembly, for the purpose of barring the issue in tail.

ERROR to the Common Pleas of Fayette county.

Elizabeth Elliott and others, children of John Elliott deceased,
against William Pearsoll and Isabella M'Cormick. This was an
action of ejectment to recover a tract of 286 acres of land. The
questions arose upon the following facts :

Edward Elliott by his last will and testament, dated 13th March
1811, and proved 22d September 1813, devised the tract of land
in dispute as follows :

" I give, devise and bequeath unto my son, John Elliott, all the
remainder of lands, to be by him enjoyed during his life, and at
his death to be enjoyed by his heirs, so on in tail for ever ; pro-
viding he shall, nevertheless, pay unto my two grandsons, Edward
Elliott and Thomas Elliott, the orphan sons of my son Felix Elliott,
the sum of $250, to be equally divided between the two when they
shall arrive at the age of 21 years, or to the survivor of them, in
case either of them should die."

John Elliott entered into possession of the land upon the death
of his father.

The Union Bank of Pennsylvania obtained a judgment against
John Elliott, upon which a fieri facias was issued, the land in dis-
pute levied, condemned, and on a writ of venditioni exponas sold
by the sheriff to Dennis Springer for $1500. The next spring
after the sale John Elliott left the land, viz., in 1820, and Springer
took possession under his deed from the sheriff, dated 6th Decem-
ber 1819. It was proved that Springer paid the grandsons of the
testator, Edward and Thomas Elliott, their legacy of $250 accord-
ing to the will.

A deed was given in evidence from John Elliott (who was then
married) to Dennis Springer, to bar the entail of this land, dated
llth September 1829, in consideration of $50, which had been
presented in the Court of Common Pleas, and ordered to be entered
of record as sheriffs' deeds are, November 24th 1829. This deed
was not signed by the wife of John Elliott, who is still living. John
Elliott was not in possession of the land at the time of the ac-
knowledgment of the deed to bar the entail, nor had he been in
possession for nearly nine years preceding.



Sept. 1844.] OF PENNSYLVANIA. 39

[Elliott v. Pearsoll.]

Dennis Springer and wife then conveyed the land, April 1st
1834, to James M. Wykoff, who conveyed to Eli Cope, from whom
the land was conveyed through several persons until it was pur-
chased by the present defendants, William Pearsoll and Isabella
M'Cormick.

It was proved that John Elliott died 4th November 1841, and
that the present plaintiffs were his children, living at the time of
his decease ; that Edward Elliott's widow, and Thomas Elliott,
eldest son of Edward Elliott, the testator, were dead.

EWING (President) instructed the jury that John Elliott took an
estate tail under the will of Edward Elliott, and that the estate was
well barred by the deed executed for that purpose, and entered
upon the records of that court.

Blacklcge and Wells, for plaintiff in error, cited Fearne on Rem.
188; 1 Co. Rep. 88; 1 Co. Lit. 103; 2 Burr. 1106; 1 Serg. $
Rawle 157; 1 East 2G8; 3 Binn. 162, 139; Willes Rep. 149; 2
Watts # Serg. 434.

Dawson and Howell, contra, cited 2 Black. Rep. 1229 ; 1 Co.
Rep. 104 ; 2 Black. Rep. 698 ; 5 Watts 105 ; 5 Rawle 1-12 ; 2
Bro. Ch. 206 ; Feame on Rem.28 ; Har. Law Tracts 555 ; 1 Black.
Rep. 672; Doug. 323; 4 Maule $ Selw. 362; 1 Burr 38-51 ; 1
P. Wms. 605 ; 1 Dall. 47 ; 10 Serg. $ Rawle 229 ; 1 East 229 ;
3 Rawle 59 ; 6 Watts 605.

The opinion of the Court was delivered by

GIBSON, C. J. It is a postulate of the plaintiffs' case that their
father, John Elliott, took no more than an estate for life by the will
of their grandfather, David Elliott, and that they took in remainder
as purchasers ; but he took clearly a fee-tail. The land was de-
vised " to be enjoyed by him during his life, and at his death to
be enjoyed by his heirs, and so on in tail for ever." What heirs ?
Not his children merely, but such as should be capable of inherit-
ing from him as issue, and consequently as heirs of his body.
The devisor probably knew not the exact nature of a fee-tail, and
consequently meant not to use the words " in tail" in their techni-
cal sense. If he meant to give them a technical effect, there is an
end of the question; but he certainly intended that the estate
should not go over to the general heirs till there should be a failure
of the issue of the first devisee, else why attempt to make the
estate inalienable in the hands of John's heirs, as well as in John's
own? In Robinson v. Robinson, (1 Burr. 52), an express estate
for life in the first taker was enlarged to an estate tail by implica-
tion, to give effect to such a general intent at the expense of par-
ticular and inconsistent intentions. There are many other in-
stances of the enlargement of an estate for life by implication.
This testator evidently meant that those who should take at the



40 SUPREME COURT [Pittsburgh

[Elliott v. PearBoll]

death of John should inherit, else why did he designate them by
the word heirs as not specially applicable to them in their father's
lifetime ? It is always a word of limitation where there is no par-
ticular circumstance or thing in the will to show that the testator
used it as a word of purchase ; and there is nothing of the sort
here. He meant to give John a restricted estate of inheritance, in
other words a fee-tail; and the question is whether it was barred
by John's conveyance to the sheriff's vendee, acknowledged and
recorded in court pursuant to the statute.

Tenant in tail is seised of an estate of inheritance which cannot
be devested by any conveyance under the Statute of Uses, or by a
sheriff's deed, which passes no more than he could legally convey
himself. He may part with the enjoyment of the land during his
life by a deed of bargain and sale, or the sheriff may sell it on an
execution ; still he continues to be seised of the inheritance ; and
it is he, not the purchaser, who transmits it to the issue claiming
through him, per formam doni, at his death. Why then can he not
do any act to bar it, after his immediate interest has been sold,
which he could have done before it? A conveyance by sheriff's
deed, which, unlike a feoffment, passes no more than the debtor
could legally pass, works no discontinuance of the estate ; and the
tenant in tail, still being seised of the inheritance, may bar the
issue either by a common recovery, as was done in Sharp v. Petitt,
(4 Yeates 45), or as effectually by a deed acknowledged in court.
The policy of the country requires lands to be subjected to pay-
ment of debts, and it is our duty to lean, where we can, towards
giving it effect. But no leaning is necessary in the case before us.
John Elliott, though deprived of the enjoyment of the estate, was
still tenant in tail within the letter and meaning of the statute ;
and his conveyance pursuant to it had the force of a common
recovery.

Judgment affirmed.



Bentz against Armstrong.

Where several persons unite in the purchase of a piece of ground, and divide
the same into smaller lots, upon each of which a house is built, and then parti-
tion is made between them, each must so regulate and grade his own lot as that
the water that falls or accumulates upon it shall not run upon the lot of his
neighbour.

ERROR to the District Court of Allegheny county.
Robert Armstrong against William Bentz. John Wilkinson
being the owner of a lot 50 feet in front on Quarry street, in Pitts-



Sept. 1844.] OF PENNSYLVANIA. 41

[Bentz v. Armstrong.]

burgh, agreed that his two partners in the plastering business,
Bentz and Crawford, should be equally interested with him, and
he conveyed .to them accordingly ; after which they divided the
same into two lots of fifteen feet each, one of sixteen feet, and an
alley of four feet between them for the accommodation of all, and
they built three houses upon them. Upon the dissolution of their
partnership, each took one of the houses and lots. Upon the lot
of Crawford a spring of water rose. Crawford sold to Armstrong,
the plaintiff. The water from the spring and from the house and
lot of Armstrong, in consequence of a natural descent in the
ground, ran over the lot of Bentz, who at his own lot placed an
impediment in its way, which stopped it, and it ran back into
Armstrong's cellar; and for the injury done thereby, this action
was brought.

Robinson, for plaintiff in error.
Lowrey, for defendant in error.

The opinion of the Court was delivered by

KENNEDY, J. The principal error in this case is an exception
to the charge of the court upon a point on which it was thought
the plaintiff's right to recover mainly depended. The plaintiff
below claimed a right to turn the water which fell upon his lot
from rain, as also that which arose from a spring on it, upon the
adjoining lot of the defendant below. This claim of the plaintiff
below was resisted by the defendant, who placed an obstruction
on his own lot, so as to prevent the water running on it from the
plaintiff's lot ; but the consequence seems to have been that the
obstruction caused the water to run down on the plaintiff's lot,
so as to produce some inconvenience, at least, if not injury to him.
For this cause he brought this action, and the court, in their
charge to the jury, instructed them, in regard to this matter, that
if they believed the facts testified to, the plaintiff had established
his right to an easement; that is, a right to turn the water off his
own lot upon that of the defendant, so as to get clear of it, and
prevent his being incommoded by it in the occupation and enjoy-
ment of his buildings. This was, in effect, deciding the cause in
favour of the plaintiff below ; for the only remaining fact upon
which the plaintiff's right to recover rested, was that of the de-
fendant's having obstructed and prevented the water from running
over his own lot from that of the plaintiff's, which was not con-
tested. Being desirous at all times to sustain the charge of the
court to the jury, when it can be done fairly and truly, all the
facts testified have been carefully examined and looked into with
that view, and it does not appear to us that any facts have been
testified to, going in the slightest degree to establish the plaintiff's
right to an easement, such as he claims in this case. We therefore

VIII 6 D *



42 SUPREME COURT [Pittsburgh

[Bentz v. Armstrong.]

think that the court erred in their instruction to the jury on this
point.

In the argument, something was said about the natural forma-
tion of the surface of the ground of the two lots, and that, accord-
ing to it, the water as it fell in rain was naturally inclined to run
off from the lot of the plaintiff on to that of the defendant below,
and the latter was therefore bound to submit to it. This, however,
I take to be a non sequitur ; for in the purchase of lots of ground
laid out and sold for the purpose of building up towns or cities
thereon, it has ever been understood, and such has been the prac-
tice and usage too, that the natural formation of the surface will,
and indeed must, necessarily undergo a change in the construction
of the buildings and other improvements that are designed and
intended to be made. In doing this, it would seem to be right
that the common benefit and convenience of the respective owners
of adjoining lots should be consulted and attended to ; but cer-
tainly no one ought to be restrained from improving his lot in such
a manner as to make it answer the purpose for which it was laid
out, sold and purchased, if practicable without overreaching upon
his neighbour's lot. He ought to be permitted to form and regu-
late the surface of it as he pleases, either by excavation or filling
up, as may be requisite to the convenient enjoyment of it ; taking
care, however, not to produce any detriment or injury to his neigh-
bour in the occupation or enjoyment of his adjoining lot. It is of
great importance that the water upon each lot, arising from rain
or other cause, should be conducted by the owner or occupier
thereof, if he wishes to have it removed, directly from it to a sewer
or other place appropriated for the receipt and discharge of the
same, and not be turned or led on to an adjoining lot, without the
consent of the owner ; and it appears to me to be the duty of the
owner of each lot, if he improves it, to do it in such way, if prac-
ticable, as to lead and conduct the water that happens to fall or
be on it, off in the way just mentioned, without regard to the ori-
ginal formation of the surface of his lot. If the rear of his lot
should be elevated so much above the front that he cannot conduct
the water to the rear, so as to discharge it into a sewer or other
appropriate place, then he ought to bring it to the front of his lot,
where he must of necessity have some place to discharge h, with-
out throwing it upon his neighbour's ground. This he ought to
do, even if he should be compelled to carry it under or through
his house or buildings. As to the exceptions to evidence, we can-
not say that they ought to be sustained ; for if what the witnesses
were called to testify to occurred before the commencement of this
suit, it is not denied that it would be admissible; but to render it
inadmissible, it ought to appear distinctly that it occurred after
the suit was commenced, which is not the case. Whether it
occurred before or after was, therefore, a question to be referred



Sept. 1844.] OF PENNSYLVANIA. 43

[Bcntz v. Armstrong.]

to the jury, with a direction from the court, if they should be
satisfied that what the witnesses testified they saw was before the
commencement of the suit, then it was evidence for their consider-
ation ; otherwise, not. The judgment, however, must be reversed
on the first ground mentioned, and a venire facias de novo
awarded.



Foreman against Schricon.

To entitle a party to judgment by default under the Act of the 13th June 1836,
he must have his declaration filed at the time prescribed by the Act.

ERROR to the District Court of Allegheny county.

This was an action of debt founded upon an insolvent bond, by
Henry Schricon against Hugh Bean and George D. Foreman,
brought to January term 1842, and the writ duly served upon the
defendants. The defendants did not appear. On the 27th August
1842, the plaintiff's attorney filed a declaration and signed judg-
ment for want of appearance, which the court below refused to
set aside.

M'Clure and M'Candless, for plaintiffs in error, cited Act of
13th June 1836, sees. 33, 34; 6 Binn. 88; 8 Serg. < Rawle 157.

Dunlop, contra, cited 6 Serg. fy Rawle 554.

PER CURIAM. A judgment like the present was sustained in
Morrison v. Wctherel, (8 Serg. fy Raivle 502), though it had been
signed palpably in violation of the Act of 1724-5. The justifica-



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 8) → online text (page 4 of 56)