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fore and after William Feather was offered as a witness; mutual
releases were executed between Feather and Peter in March pre-
vious to the trial, but he was still objected to, admitted, and excep-
tion taken. Although he stated something not mentioned by Hartz-
field, and their testimony was in some things contradictory, yet he
agreed that the article above given was executed by him and Peter,
and did not allege that it was not drawn according to their agree-
ment. As the principal stress of the cause lay on the admission of
Feather as a witness, and the construction and effect of this article
of agreement, I shall consider them in part together. Catherine
Garber and Hartzfield would prove that the agreement was made at
John Strohecker's, and in his presence, though executed afterwards
at Hamburg. Feather says Peter and he spoke about the agree-
ment at the old man's, but did not conclude it until Peter came to
Hamburg. But it appears old John Strohecker knew what was
doing, and that Feather and Peter were to pay his debts, or assume
them.

These facts proved, as related to the previous understanding of
all parties, and the situation in which they stood, what does the



May 1840.] OF PENNSYLVANIA. 1S9

[Hoffman v. Strohecker.]

agreement itself prove? It is very explicit thai Peter and Fea-
ther are to hold the property conveyed to them respectively, jointly,
so that the property conveyed to Peter in fee is still bona fide as to
one moiety or equal undivided half part the property of William
Feather; and so the property conveyed to William Feather in fee,
is bona fide, as to one moiety or equal half part, the property of
Peter Strohecker. It then agrees that if the debts assumed are paid
out of the proper means of John Strohecker, it shall be for the bene-
fit of the joint concern, no matter through which of their hands it
goes; and that the property of Feather shall be sold to pay the
debts of the joint concern, and go to the benefit of both contracting
parties; and this for the purpose of retaining the property conveyed
to Peter; and that the expenses shall be borne equally, so that every
item of said transaction shall be, and actually is, of mutual, joint,
and equal concern. Now this makes Feather equally interested
with Peter in the tract in question, and equally liable for all costs;
he is clearly interested, and in the language of the court, whether
his name appears on the record or not is immaterial. 3 Penn. Rep.
177.

But further, in Smith v. Boyer, 3 Watts 449, it is decided that a
landlord who receives, or is to receive, the rents, is liable for mesne
profits, though his name is not on the record. Though in one
respect his differs from what it would be if on the record; he may
controvert the right but all who aid in a trespass are trespassers,
and equally liable to damages for the trespass and Feather, who
is equal owner, or was so till the releases, cannot by any arrange-
ment between hirn and Peter cut himself loose from his liability
both to costs and mesne profits; and this will be strengthened if it
be satisfactorily made out that he took an active part in the defence.
Certainly before the releases he was bound to pay, or if Peter paid,
to allow for his half of all expenses; and there is some evidence
that he summoned at least one witness to attend the trial. There
was error in admitting him as a witness. John Strohecker was
not a party to the article above recited, though there is parol evi-
dence that he knew of it, perhaps present when the terms of it
were settled, but suppose he was. The sale to John Strohecker
seems unquestionably neither legal nor fair; and, supposing it in-
valid, the whole stress of the cause has been put on the question
whether his to Peter was a fair bona fide transaction a sale to an
innocent purchaser for a fair consideration, which has been fully
paid before notice of any defect or unfairness in the title of John
Strohecker. The doctrine that an innocent purchaser might be pro-
tected, though buying from a person whose title was fraudulent
and void, is found in our books from Lazarus v. Bryson, 3 Bin.
84, down to this time. There are some cases as to what must
appear to rmke a bona fide purchase, and to evidence it in Hale
v. Rogers, 4 Watts 359, 362, it is stated that a receipt from the
vendor is not sufficient evidence of payment of the consideration,

IX. H



190 SUPREME COURT [Harrisburg

[Hoffman v. Strohecker.]

as against a creditor charging a fraud ; and it is said to be unreason-
able to impose on the creditor proof of a negative: the man who
alleges payment of considerations must prove it; and in United
States v. Marto, 2 Watts 406, it is said, " A bargain by which the
purchaser may get the estate at an undervalue, by the happening
of a contingency is clearly within the statute. An estate worth
8000 dollars might be bought for a fourth of that sum, if a purchaser
of it for 2000 dollars, but subject to incumbrances to the amount of
the remaining 6000 dollars, could procure the incumbrancer to take
satisfaction out of the debtor's other property. In order to insure
fair dealing it is necessary that the purchaser should be bound to
pay the worth of the property in any event, either directly to the
vendor, or in discharge of liens; not merely to pay a sum less than
the value in the first instance, and take his chance for the residue.
The counsel pray a direction that as the vendee did not pay the
encumbrances, the conveyance was fraudulent on that account.
The court thought it enough to rebut the inference of fraud, that
they were paid out of the land. The objection lies deeper than
seems to have occurred to the court or the counsel. The validity
of the conveyance depends not on supplementary acts, but on the
character of the conveyance when executed."

These cases apply to many parts of this cause; it might be right
to read the cancelled bond, which is no more than a receipt, and
to prove payments for John Strohecker in 1832 or 1834, but these
without more will not suffice to prove a bona fide purchase or pay-
ment of consideration. Peter Strohecker could not be a bona fide
purchaser without knowing it. What did he and Feather state
that they did know; why that conveyances had been made to them
separately amounting to about 8000 dollars; that they had assumed
to pay some debts for the old man; that they expected to pay part
of these out of the proper means of John Strohecker; that, to say
nothing of the Northumberland property, they expected to pay all the
debts out of what was conveyed to Feather, and save the property
conveyed to Peter for their joint use; now it is impossible to read
this without seeing that both Feather and Peter considered it a
family arrangement intended to give them the tract conveyed to
Peter for 5500 dollars, and for which they did not expect to pay a
dollar.

The keeping back the article until its existence and contents had
been proved by the testimony of witnesses by parol, was not in the
ordinary course of proceeding in court, and I feel convinced that the
respectable gentlemen engaged for Peter now see that it ought to
have been produced in the first instance on the notice. There was
some difference between the witnesses on some matters but little
connected with the point in issue. They both proved that after
talking about it, at the old man's, it was drawn and executed by
both Feather and Peter and there was no allegation that it did not
contain what they agreed on and intended it should contain. If



May 1840.] OF PENNSYLVANIA. 191

[Hoffman v. Strohecker.]

there had been different statements of its contents by witnesses,
yet when produced and read it made an end of all parol proof of its
contents. It spoke for itself and plainly, and it proved that the deed
and bond did not represent the sale by John to Peter, as Peter and
Feather understood it, and as they intended and accepted it.

When we recur to the facts, that this land was bound by a
recognizance to Susan Deern for her share of her father's land: that
the part allotted to her had been swept away by an old mortgage:
that the administrators of her father's estate had settled an account
by which they acknowledged a large balance in their hands: that
John Strohecker was their bail in their administration bond: that
suit had been brought against him on this bond: and when we see
that he had joined in proving a sale of this property on a judgment
satisfied, and so to his knowledge: that after bidding in the pro-
perty lie paid no money on it for nearly four years, nor then, but
two years after bidding it in brought a suit against the administra-
tors who had joined him in procuring this illegal sale and obtained
a judgment against Garber's estate which was set off against his
purchase-money: and wheji we remember that this sale to John
Strohecker was contrived to overreach the recognizance to Susan
Deem, it throws a cloud over the whole business so as to require
clear proof that the sale to Peter was not what the articles between
him and Feather prove they understood it to be; i. e. a plan to give
it to Peter apparently for 5500 dollars cash paid, when in fact
Peter and Feather knew that no such money was paid or expected
or intended to be paid. Admitting that S. Deem told John Stro-
hecker he wished him to purchase, this goes for nothing if he
thought the sale was to be fair. If he knew it was not fair but
fraudulent and intended to deprive his wife of her share of her
father's estate, it will not injure her; even a fraudulent and volun-
tary sale of her interest would not affect her right to recover; and
this is proved and admitted to be by her trustee and for her use.

Judgment reversed, and a venire de novo awarded.



192 SUPREME COURT [Harrisburg



Orlady against M'Nainara.

If an award of arbitrators be set aside on the allegation that the declaration
contains no cause of action, it is the subject of a writ of error: and if the judg-
ment of the court be erroneous, it will be reversed, and the award and judg-
ment upon it reinstated.

Quaere. Whether the court below could, after the time for an appeal has
elapsed, and execution has been issued, set aside an award on the allegation of
a defect in the pleadings?

ERROR to the common pleas of Huntingdon county.

Martin Orlady against George M'Culloch and Thomas M'Na-
inara, trading under the firm of M'Culloch & M'Namara. This
was an action of debt, in which the writ was served upon M'Na-
mara alone; and the plaintiff filed a declaration and referred the
cause to arbitrators, who made a report in favour of the plaintiff
for four hundred and twenty-six dollars. The defendant did not
enter an appeal, but after execution issued, he came in and asked
the court to set aside the award on the ground that the declaration
contained no cause of action.

The court below (Burnside, president, dissenting) set aside the
award.

Bell and Orbison, for plaintiff in error, cited 2 Dull. 229.
Miles and Blanchard, contra, cited 14 Serg. 8? Rawle 149; 5
Serg. Sf Rawle 526; 8 Watts 530.

PER CURIAM. This case differs from the Erie Bank v. Brawley
in an essential particular. There, the award was set aside because
it was supposed the cause of action was not within the compulsory
arbitration law; a result which left the action depending and open
to further prosecution, as if it had never been out of court upon a
rule. Here the award was set aside upon the allegation that the
declaration contains no cause of action; a result which would de-
prive the plaintiff of a right to proceed. He might perhaps be per-
mitted to amend; but as a valid amendment would substitute a
cause of action substantially different, his amendment would be of
grace and not of right. But having perhaps laid his cause of action
truly, he might have no amendment to ask; and the court, having
pronounced his cause of action bad, would not suffer him to occupy
its time further, with what it had pronounced a nullity. He would
thus stand in a predicament analagous to what is produced by an
arrest of judgment after verdict. By setting aside the award there-
fore, the cause was at an end ; and this writ of errror lies. Then
if it were open to the court below in a proceeding of this sort to
look into the pleadings, still there was a cause of action laid ; and
thn interference for the supposed want of it was an error.

Judgment reversed, and award affirmed.



May 1840.] OF PENNSYLVANIA. 193



Lyon against Houk,

The purchaser of a lease who has gone into possession of the premises, may
tender to the lessor the amount of rent due, and thus relieve himself and the
lessee from liability to distress; he is not a stranger to the lessor, but the lessee
in an action of replevin, on the issue of rent or no rent in arrear, may avail him-
self of such tender by his assignee of the term.

ERROR to the special court of common pleas of Cumberland
county.

This was an action of replevin by Jacob B. Lyon against George
Houk and Peter M'Laughlin, for one hundred pieces of bloom iron
of the value of 200 dollars. Declaration in common form. The
defendant George Houk avowed the taking upon a distress for rent
upon a lease of the premises, when the distress was made, dated the
13th June 1836, as follows:

" Article of agreement, made and entered into betwixt George
Houk and George Himes of the one part, and Jacob B. Lyon of
the other part. The said Houk and Himes agree to let and lease
to the said Jacob B. Lyon, Salome Forge and sawmill, with all
the water privileges thereunto belonging, situate in Dickinson
township, Cumberland county; said lease to commence the fifteenth
of this present month, and to expire on the first of April 1838. The
said Houk and Himes also let and lease to the said Lyon for the
period aforesaid, the houses now occupied by Michael Mullan and
Philip M'Farlane, also the smith-shop and coal and iron houses,
and all the privileges belonging to said houses near the said forge,
the said Houk reserving to himself the privilege of passing and re-
passing through the said forge and saw-mill yards to his fields and
meadows, also the ducks and geese of the said Honk to have the
entire and exclusive use of the dam of said forge. The said Houk
and Himes agree and bind themselves to raise the main wing of
the dam of said forge, sufficiently high to swell the water back to
the creek common water mark. They also agree to pay half the
expense of removing the gravel out of the head and tail races to a
depth that the said Lyon shall consider sufficient. They the said
Houk and Himes agree to give the said Lyon wood land of the
Lusk tract of mountain land during the period of the lease afore-
said at the rate of five dollars per acre, the wood to be taken square
across the land along the lines running east and west. They also
agree to build a frame house eighteen by twenty-six feet, one and
a half stories high, to be finished the fifteenth of July next. They
also agree to give sufficient ground for gardens, for the houses afore-
said, and allow the tenants sufficient fire wood of dead and fallen
ix. R*



194 SUPREME COURT [Harrisburg

[Lyon v. Ilouk.]

timber as said Houk shall direct. In consideration of the leases
and privileges aforesaid, the said Jacob B. Lyon agrees and binds
himself to pay to the said George Houk and George Himes and
their assigns, at the rate of five hundred dollars per annum, to be
paid as follows : one hundred and twenty-five dollars to be paid
on the first of July next, and one hundred and twenty-five dollars
on the 15th September next, and one hundred and twenty-five dol-
lars three months thereafter, and every three months to the first of
April 1838. The said Jacob B. Lyon is to find his own tools and to
keep up repairs at his own expense. The said Lyon agrees to keep
the head gates at the dam in repair, and to deliver up the premises
and houses aforesaid, to the said Houk and Himes on the said 1st of
April 1838, in as good order as they are now, wear and tear and
accidents excepted. In testimony whereof the said parties have
hereunto set their hands and seals, this 13th day of June 1836."

Upon this lease the defendant claimed 125 dollars, rent for three
months, due in advance on the 15th March 1837.

The plaintiff then gave in evidence the following agreement :
"Article of agreement made and concluded this 13th day of
February 1837, between George Houk, of Dickinson township,
Cumberland county, of the one part, and A. G. Ege, of Carlisle, in
said county, of the other part, witnesseth, that the said George
Houk, for the consideration hereinafter mentioned, doth covenant
and agree to and with the said A. G. Ege, that he the said George
Houk will, on or before the 5th of April next, grant, convey and
sufficiently assure to the said A. G. Ege, his heirs and assigns, by
deed in fee simple, with special warranty clear of all incumbrance,
all the said George's undivided half part of Salome Forge, and all
the lands connected therewith or in any wise appertaining thereto
with the appurtenances. Same consisting of the forge tract, con-
taining 120 acres, bought at sheriff's sale, in company with John
Moore and George Himes a tract containing 60 acres, and pur-
chased after the first mentioned one at sheriff's sale by the said
Himes, Houk and Moore. Also, the Lusk tract of mountain land,
containing 123 acres, more or less, bought at sheriff's sale by said
Houk, Himes and Moore, and also the saw-mill tract, containing 45
acres, more or less, purchased by said Honk and Himes said four
several tracts having all been sold by the sheriff as the property of
Adam Houk, deceased and the interest which the said John
Moore had in the said property having been conveyed by him to
said George Houk, who thereby became an equal owner of said
property with said George Himes. The said George Houk further
agrees that he will give possession of the said property hereby
covenanted to be conveyed at and upon the execution and delivery
of the deed aforesaid. And further that he will transfer and assign
to the said A. G. Ege, all his the said George Houk's interest in
the lease made by the said Houk and said George Himes to Jacob
B. Lyon of a portion of the forge property aforesaid, which said



May 1S40.] OF PENNSYLVANIA. 195

[Lyon v. Houk.]

lease of the forge, &c., terminates on the 1st of April 1838, said
Houk covenanting that the whole interest in said lease is in him
by the written agreement of the said George Himes, and that he
will assign his said interest to the said Ege when he executes the
deed as aforesaid. It being agreed that all fences to be made and
repairs to be completed, by any agreement heretofore made by the
said George Houk, are to be made and completed by him the said
George and not by the said A. G. Ege. In consideration whereof
the said A. G. Ege covenants and agrees that he will pay therefor
to the said George Houk, the sum of 5200 dollars, to be paid as
follo*ws, to wit: 2700 dollars on or before the 5th of April next,
when the said deed, &c., is to be delivered, and the remaining
2500 dollars on or before the 1st of April 1838, without interest.
And the said Ege further agrees that he will, on the delivery of the
deed aforesaid to him by the said Houk, demise and lease unto the
said George Houk from said day of delivery, until said of 1st April
1838, all the arable and cleared land belonging to said forge pro-
perty, (not included in the lease aforesaid to the said Jacob B.
Lyon,) with liberty to use dead trees and tops of trees for fire wood,
and timber for rails. The said Ege to charge no rent for said lease;
it being understood that Himes has rented his half of said arable
land to said Houk until the 1st of April 1838, with same privileges
as those, to be granted in said lease by A. G. Ege, as herein before
stated. It is further understood and agreed, that the taxes for the
present year are to be paid as follows, to wit: A. G. Ege pays the
tax for 1837, for that part of the property leased as aforesaid to
Jacob B. Lyon, and the said George Houk pays the tax for the
said year 1837 for the residue of said property. It is further under-
stood, that the said Houk is entitled to the rent from J. B. Lyon
till the 5th of April next, ensuing the date hereof, the residue he is
to assign to said Ege. And further, that the rails cut by said Houk
are to be used only for fencing the premises and completing his
contract with said George Himes, and for no other purpose. Wit-
ness our hands and seals, the 13th of February, 1837."

It was admitted that this agreement was duly executed and ful-
filled on the 5th of April 1837; on the 3d of March 1837, Jacob B.
Lyon and A. G. Ege entered into the following agreement :

" Memorandum of an agreement made this 3d day of March 1837,
by and between Jacob B. Lyon, of Dickinson township, Cumber-
land county, and state of Pennsylvania, of the one part, and Andrew
G. Ege, of the borough of Carlisle, county and state aforesaid, of
the other or counter part, witnesseth, that the said Jacob B. Lyon,
for and in consideration of the covenants to be kept and performed
by the said A. G. Ege, doth transfer, assign and set over unto the
said Ege, the right he enjoys under lease from George Houk and
George Himes, dated the 13th of June 1836, of Salome Forge,
which is by its terms to continue until the 1st of April 1838, at and
on the same terms he the said Lyon has and holds the same, and



196 SUPREME COURT [Harrisburg

[Lyon v. Houk.]

to deliver the possession of said forge and premises on the 15th of
March instant, and in consideration thereof the said Ege agrees to
take the several articles of personal property at said forge, which
belongs thereto and is used there with, together with the cord wood
in rank set up in pit or pits, the cord wood at sixty cents per cord,
and the other personal property at the fair cash valuation thereof,
a schedule and valuation thereof to be made out and attached to
this agreement also the wood lease of timber land which said
Lyon has from Dr. W. C. Chambers, at the rate of five dollars per
acre for the residue thereof. The said Ege hereby covenants and
agrees to pay the price of said property in two equal payments, the
first on the 1st of April, and the other on the 1st of May, ensuing
the date hereof, obligations to be given therefor when the possession
is delivered as above specified notice to be given by said Lyon
to the wood choppers to cease chopping immediately.

"In witness whereof the said parties have hereunto set their
hands and seals the day and year first above written."

Deposition of Michael Mullen: " Cumberland county, ss. Agree-
ably to the annexed notice, personally came before- the subscriber,
a justice of the peace in and for said county of Cumberland,
Michael Mullen, who being duly sworn according to law, doth
depose and say: I was authorised by A. G. Ege to make a tender
of the rent of the forge due up to the 1st of April 1837 to George
Houk, and I undertook to make the tender some time before the
distress was made of the goods of the said A. G. Ege by the said
George Houk, at the saw mill along side of the forge; I was at the
saw mill, and Mr Houk came along riding on horseback, and I
told him that I had the money for the rent due up to the 5th of April.
I had it in specie; I had not time to count it, as he rode off; when
he was going away he said he would have nothing to do with it or
with A. G. Ege; I do not recollect which; the amount was either
27 dollars and some cents, or 28 dollars and some cents; I under-
stood from Mr Ege that it was the rent up to the 5th of April 1837.
I had the money yet when Mr M'Glaughlin made the distress,
and told him that morning that he was ready and willing to pay
it; I afterwards returned the money to Mr Ege's manager, Mr
Beelman."

Cross-examined by George Houk, Esq., the witness further
saith:

" I understood that Mr Lyon had rented the property of Mr
Houk; I understood that Mr Lyon was to pay 500 dollars a year,
and it was to be paid quarterly; I understood from Mr Lyon and
Mr Ege that Mr Ege had bought Mr Lyon's lease; I did not get
time to show the money to Mr Houk, because Squire Houk rode
off after I told him, before I had time to unfold it; on the morning
that the distress was made, I was at the forge in company with
M'Glanghlin, the constable, and George Houk, about fifteen mi-
nutes; I told Mr M'Glaughlin not to make the levy, that I had the



May 1840.] OF PENNSYLVANIA. 197

[Lyon v. Houk.]

money for the rent up to the 5th of April; I stated to M'Glanghlin



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