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tablish his ward in the business of a tavernkeeper. The court be-
low overruled the exceptions, and the ward appealed.

Anderson and Lewis, for appellant, cited Konigmacher v. Kimmel,
1 Penns. Rep. 207 ; Johnson's Appeal, 12 Serg. fy Rawle 325 ; Pirn
v. Downing et al., 11 Serg. fy Rawle 66.

Evans, for appellee.

PER CURIAM. There is a principle to be enforced in this case
which is to be distinctly understood. No guardian can set up his
ward in business at the risk of the ward ; and least of all, in the bu-
siness of a publican, which requires habits of temperance to have
been previously formed and established. Why does the common
law withhold from an infant capacity to bind himself, except in cases
of extreme necessity 1 Undoubtedly, to protect him from the conse-
quences of inexperience. But if the effect of putting him in a state
of pupilage is but to expose him the more certainly to the dangers
from which the want of legal capacity was intended to guard him,
it would be better that he should have no guardian at all. If the
effect of the office is but to enable him to do indirectly what he could
not do directly, it becomes no more than an instrument to evade the
wisest provisions of the law. Such, however, is not its effect. It
is the business of a guardian to manage, in person, the estate of the
ward for the ward's benefit; and if he do not, he must take the con-

May 1835.] OF PENNSYLVANIA. 85

[Eichelberger's Appeal.]

sequences. If he trade with the fund for his own benefit, he must
bear the loss, if any there be ; and a fortiori he must bear it if he
suffer the ward to trade with it. But there are circumstances in
this case of an aggravating stamp ; and the fact that the tavern-
house belonged to the guardian, while the ostensible keeper of it
was his insolvent son-in-law, might, were it necessary, warrant an
inference of wilful abuse. The principle, however, is sufficient for
the case ; and all the credits which depend on it, as well perhaps as
a few others which it is necessary to indicate but by the decree,
are to be struck out of the account, and the decree affirmed for the

Decree accordingly.

Price against Junkin.

Upon the trial of an issue involving a question of fraud, when evidence has
been given tending to prove a fraudulent arrangement between two persons
to effect an object, the acts and declarations of either, although not in the pre-
sence of each other, may be given in evidence.

Although a sale of land by an executor, in pursuance of powers contained in
a will, may be fraudulent and void as respects the purchaser, because of his
having been a party to the fraud, yet as respects a subsequent and innocent
purchaser from him, the title will be good.

ERROR to the common pleas of Mifflin county.

This was an action of ejectment by Richard Miles, administrator
de bonis non of William Junkin deceased, against Joseph Price and
John Moist. William Junkin, by his will, appointed David Lusk to
be the executor, with power to sell his real estate. The executor
offered the land for sale at public vetidue, and sold the same to
Joseph Price, one of the defendants, for 3100 dollars. An applica-
tion was made by the heirs of William Junkin to the orphan's court,
to dismiss David Lusk from his executorship, for several reasons;
and, among others, that the sale of the real estate to Joseph Price
WHS fraudulent, having been made for a consideration much below
the value of the land, and for the benefit of himself, as well as Price.
David Lusk was dismissed by the orphan's court, and letters of ad-
ministration de bonis non were issued to Richard Miles, the plaintiff;
who brought this ejectment to recover the land for the benefit of the
devisees and legatees of William Junkin, the testator, on the same
ground, that the sale by Lusk the executor to Price was fraudu-
lent. After the plaintiff had proved that on the same day of the
sale to Price the land had been struck down to another person for
4000 dollars, and the executor, Lusk, had immediately demanded
the money, and because it was not paid refused to confirm (he sale ;

86 SUPREME COURT [Hamsburg

[Price v. Junkin.]

and that another substantial man had offered 3500 dollars cash for
it, which the executor refused, and put it up again at public sale,
after all the bidders were gone but Price, and struck it down to him
for 3100 dollars; and also several other circumstances, tending to
show that there was a fraudulent arrangement between Lusk and Price,
by which the property was to be struck down and conveyed to Price,
for the benefit of both : he offered in evidence the declarations of Lusk,
the executor, made in the absence of Price, that the purchase was
for their joint benefit, and also many other acts and declarations of
his, leading to, the establishment of the same fact. This evidence
was objected to, on the ground that the title of the defendants could
not be affected by the declarations of the grantor not made in the
presence of the defendant. But the court (Burnside, president) de-
cided, that, inasmuch as evidence had already been given tending
to establish a fraudulent combination between Lusk and Price,
any declaration or act of either or both, which tended to establish
the fraud, might be given in evidence. The plaintiff then proved
the admission of Lusk to the scrivener who wrote the deed, that he
was equally interested with Price in the purchase. It was also
proved that Lusk and Price, at different times, declared that the
land was worth more than it was sold for.

While Price was in possession of the land under his purchase, he
sold part of it to John Moist, the other defendant. There was evi-
dence on the part of the defendants, that part of the purchase money
had been paid by Price to Lusk, after the deed was made. The de-
fendants requested the court to charge the jury, that the plaintiff
could not recover without first tendering to the defendant the amount
of the money which was actually paid by him to Lusk. And, also,
that, if John Moist was not a party to the alleged fraud, but an inno-
cent purchaser for value from Price, there could be no recovery
against him. To which the court answered, that if the original
contract between Lusk and Price was fraudulent, it was void, and
no title was in Price ; that there was no necessity to refund the
money paid; and that Moist was in no better situation than Price
from whom he purchased.

The errors assigned were : the admission of the evidence men-
tioned, and the instruction of the court on the two points above

Jl. 8. Wilson, for plaintiff in error. As to the admission of the
evidence: cited, Ruchart v. Castator, 5 Binn. ; Whiting v. Johnson,
11 Serg. fy Rawle 328; Wolfv. Carothers, 3 Serg. fy Rawh 240.
And as to the interest of Moist being affected by the fraud : Covert
v. Irwin, 3 Serg. fy Rawle 283 ; Heister v. Fortner, 2 Binn. 40 ;
Scott v. Gallagher, 14 Serg. <$ Rawle 333 ; Harris v. Bell, 10 Serg.
fy Rawle 39; Gonzalus v. Hoover, 6 Serg. fy Rawle 118; Plumer
v. Robertson, 6 Serg. <$ Rawle 179. That the purchase money
should be refunded : Youst v. Martin, 3 Serg. # Rawle 423.

May 1835.] OF PENNSYLVANIA. 87

[Price v. Junkin.]

Miles and Potter, contra, cited, Heldreth v. Sands, 2 Johns. Ch.
35 ; Inhabitants of Worcester v. Eaton, 13 Mass. Rep. 374.

The opinion of the Court was delivered by

SERGEANT, J. The defendant's bills of exception to evidence were,
in this case, fourteen in number. They all depend very much on
the same principle. The first four are chiefly relied on. We think
the reasons assigned by the court below for the admission of the
plaintiff's evidence conclusive, arid that there was no error in receiv-
ing it.

In the charge of the court no error has been exhibited, except in
that part of it which relates to the claim of the defendant, Moist.
This involves an important principle, and one which the court de-
cided incorrectly. The defendants requested the court to charge,
" that Christian Moist, being an innocent purchaser for a valuable
consideration, cannot be affected by any act of Price and Lusk."
The court answered, "if the sale was fraudulent, and Lusk had an
interest in it, then the sale was utterly void, arid Moist, having
purchased from one of the parties to that fraud, will not be pro-
tected." And again ; " our opinion is, that Moist is in no better
situation, under all the evidence in this case, than Price."

The tract of land for which this ejectment was brought, had be-
longed to William Junkin deceased, who died seised, leaving a will
by which he authorized his executors to sell it. David Lusk, the
only executor who acted, advertised the land for public sale in No-
vember 1827, and it was struck off to the defendant Joseph Price,
to whom Lusk made a deed in January 1828. Letters of adminis-
tration with the will annexed, were afterwards issued to the plain-
tiff, (in consequence of proceedings in the orphan's court against
Lusk) and the plaintiff instituted this ejectment to April term 1832,
alleging the sale to Price to have been a contrivance between Lusk
and Price to defraud the children of the testator, by purchasing the
land in the name of Price, at an inferior value, for their mutual
benefit. In April 1831, Price executed a deed to the other defend-
ant, Christian Moist, in consideration of 518 dollars and 75 cents,
for twenty acres and one hundred and forty-one perches, part of the

An innocent purchaser of the legal title, without notice of trust or
fraud, is peculiarly protected in equity, and chancery never lends its
aid (o enforce a claim for the land against him. The children of
Junkin, through the administrator de bonis non as their trustee, seek
to set aside a conveyance made by an executor acting under a
power in their father's will. They ask to enforce an equity : to
declare the grantees under the executor trustees for them, and to
reinvest them in the title. As between the original parties, Lusk
and Price, there is no difficulty in doing so, when it is shown that
the conveyance from one to the other was fraudulent and collusive.
But to go further, and hold that an innocent purchaser shall be

88 SUPREME COURT [Hmrisbwrg

[Price T. Junkin.]

made a trustee for them, would be to destroy, in their favour, a para-
mount equity. No doctrine is more firmly settled in chancery, than
that though a purchaser has notice of an equitable claim by which
his conscience is affected, yet a person purchasing from him, bona
fide, and without notice of the right, will not be bound by it. Sugd.
Vend. 531. Otherwise the innocent purchaser would be the victim
of fraud, and titles would be unsafe : especially in a country like
ours, where deeds and wills are registered, and their contents confid-
ed in as muniments of property, instead of covenants of title, out-
standing terms, and other devices of the English system of convey-
ancing. Here Price had a conveyance from Lusk, the executor
empowered to convey, and Moist had no reason, so far as appears, to
question or suspect it. If a loss is to happen by the exercise of that
power, it should be borne by those representing the testator who cre-
ated it, and thereby enabled the executor to transfer the legal estate ;
not by the person who trusted to a title derived under that power,
and on its face fair and legal. In such case equity would not de-
clare Moist a trustee for the children, nor interfere to divest the title
he has acquired.

If the title to Price could be treated as a nullity, when proved to
have been fraudulently obtained, it would not thence follow that the
title of Moist, acquired from Price, was a nullity. The principle
has long been established at common law, and repeatedly sanctioned
in equity, that though a deed be fraudulent in its creation, and void-
able by a purchaser (that is, would become void by a person's pur-
chasing the estate), yet it may become good by matter ex post facto.
As if a man make a feoffment by covin, or without any valuable
consideration, and then the first feoffee enter, and make a feoffment
for a valuable consideration, the feoffee of the first feoffee shall hold
the lands, and not the feoffee of the first feoffor. For although the
estate of the first feoffee was, in its creation, covinous or voluntary,
and therefore voidable ; yet when he enfeoffed a person for a valua-
ble consideration, such person shall be preferred. Sugd. Vend. 472.
This doctrine is elucidated and confirmed in the case of Anderson .
Roberts, 18 Johns. Rep. 515, in which it is shown, that the statutory
enactments (generally more unyielding in their construction than
the common law) fully protect such purchasers, as well against cre-
ditors as subsequent purchasers. On this error the judgment is

Judgment reversed, and a venire facias de now awarded.

May 1835.] OP PENNSYLVANIA. 89

Ell maker against Ell maker.

Technical words in a written contract must have a technical interpretation :
hence, a relinquishment of all right of dower to, in or out of an estate which
the releasor had in law or in equity, or in any way might or could possibly have,
will not exclude a widow from a share of the personal estate under the statute
of distributions.

WRIT of error to the district court of Lancaster county.

This was an action for money had and received by Margaret Ell-
maker against William Hiester, administrator of Isaac Ellmaker
deceased ; in which the plaintiff claimed to recover 7746 dollars wilh
interest, being the one third of the personal estate of her husband,
the defendant's intestate. The defence was, that the plaintiff and
Isaac Ellmaker, previously to their marriage, entered into a contract,
by which she, if she survived her intended husband, should receive
a certain sum in lieu of her interest in his estate : and the cause
turned upon the interpretation of that contract, which was in these
words :

" Articles of a marriage contract made, concluded and agreed
upon by and between Isaac Ellmaker of the one part, and Margaret
Smith of the other part, both of Earl township, Lancaster county,
and state of Pennsylvania, witnesseth : that the said parties have
agreed to enter into the bonds of matrimony upon the following con-
ditions : that is to say, that after marriage, if she, the said Margaret,
shall survive the said Isaac, then, and in that case, the heirs, execu-
tors or administrators of the said Isaac, as the case may be, shall
pay to the said Margaret the sum of 1000 dollars in one year
after the decease of the said Isaac ; and the sum of 300 dollars
yearly thereafter, during her natural life, and no longer : and, in
consideration of the above sum or sums so agreed to be paid to her
the said Margaret, she, the said Margaret, does hereby relinquish
and quit claim to all right of dower to, in or out of the estate of the
said Isaac, which she, in law or in equity or in any way, might or
could possibly have. In witness whereof, we, the said parties,
have hereunto set our hands and seals, this 30th day of May, A. D.


" Witnesses present Catherine Ellmaker, Anthony E. Roberts."

The court below was of opinion, and so instructed the jury, that
the legal interpretation of this marriage contract was a bar to the
plaintiff's recovery ; and they found accordingly. This was the
error assigned,
iv. M

90 SUPREME COURT [Harrisbwg

[Ellmaker v. Ellmaker.]

Montgomery and Jenkins, for plaintiff in error, cited, Co. Litt. 31, o ;
Jacobs' '*" Law Die., tit. Doicer ; Prac. in C'n. 244 ; Galbraith v. Green
and Wife, 13 Serg. fy Raicle94; Killinsren t?. Reidenhauer, 6 Serg.
# Rawle 531 ; 1 Penns. Bl. 38? ; 3 Smith's Laics 145, 148 ; 2 Hop.
on Prop. 1 ; Jackson t?. Stevens, 16 Johns. 110; Wlmllon v. Kauff-
mnn, 19 Johns. 104; 1 Penns. Bl. 31 ; IP. Wms 530; 2 Penns. Bl.
152, 155; Whart. Dig. 393, pi 66 ; 2 ^/fc. 592.

Champneys and Ellmaker, for defendants in error, cited, 3 Code Nap.
316, ed. of 1824 ; Paley's Philosophy 95 ; 1 Poc. on Con. 224, 370 ;
Co. Litt. 183, 6 ; /oid 112, 6 ; 1 .Fond. Eq. 434, note b ; 1 Mad.
Ch. 29 ; Hollingsworth v. Fry, 4 Da//. 347 ; Lessee of Hauer v.
Sheetz, 2 Binn. 537; Pothier 41 ; 1 Penns. #/. 387 ; Pringler. Ga\v,
5 Serg. 4- Rawle 536 ; Bayley's Die., tit. Doicer ; 4 Gri/f. Reg. 619 ;
Killingen t?. Reidenhauer, 6 Serg. $>. Rawle 534.

The opinion of the Court was delivered by

GIBSON, C. J. Ambiguity is the effect of words that have either
no definite sense, or else a double one ; and if it be found in the set-
tlement before us, it is because the word dower has a restricted sense
in legal proceedings, and an extended one in familiar use. It is said
by Mr Chitty, that the plain, ordinary and popular meaning shall
prevail, in preference to the strict, grammatical and etymological
meaning; but, that the language of a contract may have acquired,
by the usage of trade or the like, a peculiar sense distinct from the
popular one, and that then such peculiar sense shall prevail. Law
of Cont. 20. Now, if commercial terms be taken in their commer-
cial sense, though used by one who was not a merchant ; why shall
not legal terms be taken in a legal sense, when used by one who was
not a lawyer ? Nothing is said by Mr Chitty, and but little by any
one else, expressly in regard to the application of terms of art; bul
is there an instance in which the technical words of a written con-
tract have received any but a technical interpretation? "Words
used as terms of art," says Comyn, "ought to be observed." Parols,
.#. 2. The difference in this respect between a deed and a will is a
familiar one. The technical words of a devise sometimes yield to
the apparent intent, in consideration of (he frequent inability of dying
men to command professional assistance ; but the technical words
even of a testator are to have their legal effect when they have been
used without qualification ; and it is only when they appear from
the context to have been used in a different sense, that the apparent
intent is suffered to prevail. Such is put for the result of the cases
in Mr Coxe's note, 2 P. Wms 478. But the parties to a written con-
tract, having acted by the advice of counsel, or standing chargeable
with supineness if they have not, are entitled to no indulgence on
the score of ignorance ; and cannot have the legal meaning of their
words perverted to let in what they may allege to have been their
actual intent. This principle alone would decide the question. But

May 1835.] OF PENNSYLVANIA. 91

[Ellmaker v. Ellmaker.]

even treating the settlement as a will, and extracting its meaning
exclusively from the context, we should find that there is nothing in
it to deprive the word dower of its peculiar meaning as a word of
art, or to indicate an intent which is inconsistent with itslegnl effect.
The relinquishment is of dower in the estate generally, which, in
the broadest sense, undoubtedly includes both real and personal ;
but the word being technically inapplicable to any thing but land,
required no express restriction of its effect to a subject exclusively
implied by the* use of the term. Nothing is more distinctly expressed
by any word in the law than is the initiate freehold of the wife by
the word dower. The subjoined words, in law or in equity, seem to
be expletives, thrown in, as is usual even witli experienced scriveners,
without a definite object. Were it necessary to assign something
as a subject for their action, in order to leave nothing inoperative, it
might he found in the land ; for the wife is dowable, by our law, of
an equitable as well as of a legal estate. They certainly do not point
to chattels. Were we even to admit the existence of an intrinsic
ambiguity, we could not imagine a reason to enlarge the signification
of the word beyond its legal effect. I lay out of the case the con-
ceded fact, that the husband who penned the settlement was a lay-
man. Having thought fit to act in the business of his own head,
on him be the consequences of his blunders. They are entitled to
less indulgence than would be conceded to a blunder even of counsel,
inasmuch as a party who has taken professional advice is chargeable
with neither negligence nor presumption. Now it will not be said
thai the words of a deed prepared by counsel do not operate inva-
riably according to their legal effect. But what reason is there to
think the legal effect of the instrument is not in accordance with the
actual intent 1 There was no need of an antenuptial relinquish-
ment to preclude an indefeasible interest in the husband's chattels ;
and it is therefore not to be presumed to have had that object. He
may doubtless have thought a general provision necessary to guard
against it ; but why not a special one ? Beside, the argument would
come round again to an assumption of ignorance on his part, and a
claim of indulgence for it which would be incompatible with cer-
tainty of title. But the assumption is not founded in fact. Who
so ignorant as not to know that a husband may dispose of his chat-
tels during the coverture without his wife's consent, and freed of
every post mortem claim by her; or that he can dispose of his land
freed of her dower but with her concurrence 1 The current trans-
actions of life publish the former ; and a knowledge of the latter is
proved by experience to be universal. The effect of the marriage
settlement, therefore, is not to exclude the wife from a share of the
personal estate under the statute of distribution.
Judgment reversed, and a venire de novo awarded.

92 SUPREME COURT [Harrisburg

Brisbane against The Bank.

Bank stock subscribed in the name of a minor by his guardian, is the pro-
perty of the ward when he arrives at full age, and under his control ; and his
right to recover it and its proceeds cannot be affected by evidence of acts of
ownership done by the guardian, or by his representatives after his decease.

WRIT of error to the common pleas of Dauphin county.

This was an action by James Brisbane against the Harrisburg
Bank for refusing to permit him to assign eight shares of the capital
stock of the bank, and also for certain dividends declared upon the
said stock. The case is very fully stated in the opinion of the Court,
which was delivered by t

ROGERS, J. The facts of this case, so far as I have been able to
collect them from the testimony on the record, appear to be these.
The late Mr John Coxe, who was the guardian of the plaintiff, re-
ceived for his ward, at different times, large sums of money arising
from various sources, and particularly from the rent of a valuable
farm in the county of Lancaster. This money it became necessary
from time to time to invest ; and the presumption is, that the stock
in question was one of the investments made by the guardian with
the money of the ward, and intended for his benefit. It is invested
in his name, and prima facie constitutes part of the minor's estate.
I think it will hardly admit of question, that if the guardian proved
to be insolvent, the stock, standing as it did in the name of the
ward, could not have been taken for his debts ; nor could it properly
be taken into the inventory of his estate. There is a propriety in
keeping the estates of the ward and the guardian as distinct as pos-
sible ; so that there may be no difficulty in distinguishing them.
This course is reciprocally beneficial ; for when ordinary care is used
and good faith observed, as the ward is entitled to the benefits arising
from the transaction, so the guardian would be protected from any
loss which might attend it caused by vicissitudes and changes in
the ordinary course of business. As the stock stands in the name of
Brisbane, it is prima fade his property, a presumption which it will
be incumbent on the defendant to remove. If the defendant be able
to prove that the stock was purchased with the money of the guar-
dian, and that in the settlement which took place between them the
guardian has not received a credit for the amount advanced, it would
remove the presumption which the law raises that the stock belongs
to the plaintiff. If the facts be so, they must be susceptible of the
clearest proof from the books of Mr Coxe, and the settlement which

May 1835.] OF PENNSYLVANIA. 93

[Brisbane v. The Bank.]

was made between him and his ward. But the defendant was per-
mitted to prove, that the administratrix of John B. Coxe claimed
the stock in controversy, with the dividends, and has given notice
to the bank of her claim. That Brisbane arrived at lawful age in the

Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 4) → online text (page 10 of 60)