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heirs of his body,' he takes a fee-tail; but if it be < heirs ' generally, he takes
a fee-simple. This rule is law in Pennsylvania, and the only question is, do
the words or terms of the devise to James Henderson come within the rule,
taking the whole of the will of Hugh Henderson together? We have all list-
ened to a very learned discussion touching this question. Numerous authori-
ties and decisions of the supreme court have been cited by the counsel in
their address to the court in your hearing. We have examined these, and
have come to a conclusion for ourselves touching the proper force which should
be given to this devise. This is a matter purely for the court. Before stat-
iTig the conclusion we have reached, we may say that plaintiff's counsel con-
tend that the word »heira,' as used in this devise, is synonymous with 'chil-
dren,' and should be so interpreted. We cannot agree with him in this re-
gard. We see nothing upon the face of the whole will that would justify us
in cutting out of this devise the word 'heirs,' as used, and placing in its
stead the word * children.' Words may be supplied or differently interpreted
in a will where, from the face of the whole will, it appears that the intent of
the testator was to give a different effect to the words themselves; but, we
repeat, we shall not take from this devise the word ' heirs,' and place in its
stead the word 'children,' as contended for by the learned counsel for the
plaintiffs. Now, then, admitting that the evidence will justify you in find-
ing that the plaintiffs are the only children and heirs of James Henderson, —
and we have no doubt about the sufficiency of the proof,— the duty and re-
sponsibility lies with us to instruct you as to the law of this case. Briefly,
then, we say to you that the devise to James Henderson comes within the
rule which we have given you, and gave him and those holding under him
the fee-simple of the land in dispute; and the defendants having shown suf-
ficient conveyances from him through Joseph Rumbaugh, they have estab-
lished their title to the land, and your verdict should be for the defendants,
and you are now instructed to return a verdict in their favor." Verdict for
defendants, and plaintiffs bring error.

' Laird <§ Keenan, for plaintiffs in error. Wentling dt Miller^ for defend-
ants in error.



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Pa.] IK RB ROAD IN WBITBLSY TP, 895

Per Curiam. The cjbarge of the learned judge states in clear and explicit
terms the law governing the case in hand, and it follows that he properly
instructed the jury to return a verdict for the defendants. The judgment is
affirmed.



Patkb et al^ v. Eohols.

(Supreme Cowrt of Pennsylvanicu October 29, 1888.)

VBin)0R AND Vendee— -Thb Contbaot— To CJonvbt with Wabbxntt— Spbcial Wah-

BANTY.

A contiraot to "sell and convey " land **by a deed of warranty " is complied with by
the delivery to and acceptance by one of the three vendees of a deed of special
warranty.

Error to court of common pleas, Venango county; Charles E. Taylor,
Judge.

Covenant by Abbie M. Payne, administratrix of the estate of N. H. Payne,
deceased, and A. G. Egbert, who survived C. E. Taft, to the use of said Ab-
bie M. Payne, administratrix, etc, against E. W. Echols. Verdict and judg-
ment for defendant, and plaintiffs bring error.

O. Heydrick and Carl /. Heydi-vck, for plaintiffs in error. Mackey <& Foihes
and James D, Hancock, for defendants in error.

Per Cvriah. The contract which forms the foundation of this suit hav-
ing been fully executed by the payment of the purchase money on the one
part, and by the execution and delivery of the deed on the other, it is clear
that no action can be maintained upon it. Echols covenanted ''to sell and
convey by a deed of warranty, '* and that covenant was fulfilled by the de-
livery of a deed of special warranty. Such being the case, a delivery to one
of the co-tenants or co-contractors would be a delivery for all, for by that act it
passed from the possession and power of the grantpr, and, when it was re-
ceived by Egbert, he necessarily received it, not only for himself, but also for
his associates. It is true, had the deed not been such as the covenants of the
articles of agreement required, the receipt of it by Egbert would not have
bound the others; but, as it did accord with those covenants, the delivery was
perfect. The exception to the evidence comes to nothing, because the ad-
mission of the evidence complained of did the plaintiff no harm, and the de-
fendant no good. Had there been a question Of fraud or mistake, it would
have been relevant. As the case stood, however, when it went to the jury, it
was simply irrelevant, in that the defendant's case was complete without it.
The judgment is affirmed.

In re Boad in Whitelet Tp.
{Supreme Court of PennsyUxmia. October 29, 1888.)

1. iHioHWATS— Establishment bt Statutobt Pboceedings— Modipicatiok of Olb

Road.

It is no objection to the power of the court of quarter sessions to lay out a new
road that it is a modification of part of a road previously laid out in place of a
still older road.

2. Same— Rbpobt of Viewebs—Cbktaiktt— Roads Vacated.

a report of road-viewers is not void for uncertainty because its only statement
of the roads vacated is by reference to a draft attachea to the report on which such
vacated roads are so indicated.

Certiorari to court of quarter sessions, Greene county.

Petition to lay out a public road in Whiteley township, Greene county, Pa.,
from Abner Bailey's to Dennis White's. The proposed road would be a modi-
fication of part of a public road from Newtown to a point near Baiiey^s bridge.
This latter road had been laid out at Ko. 13, April, sessions, 1884, pursuant
to petition filed April 19, 18S4, ai)d had been worked, thoagh never entirely



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806 ATLAMtIO BBFOBTEB* [Pa.

opened. The court appointed three road viewers, who made the follow-
ing report: **To the RonoixihU tJie Judges of the Court of Quarter Sessions
of Vie Peace for the County of Qreene: We, the underaigned persona, ap-
pointed by the order of court hereto attached to view the road in said order
mentioned, respectfully report that, after ten days' notice had been given by
written advertisements, a copy of which is hereto attached, of the time and
place of the view, posted in the most conspicuous places along the line of said
road, we met at the residence of A. T. Shriver, in Whiteley township, on
Wednesday, March 23, 1887, and, after being duly sworn according to law,
proceeded to view a site for a road from a point near the residence of Ab-
ner Bailey to a point near the residence of Dennis White, in Whiteley town-
ship, as called for in the order, and parts adjacent, and have laid out and
do return for public use a road between said points^ as shown and more
particularly described by the draft hereto attached, and which is made a
pai*t of the report, which road as aforesaid laid out we are of the opinion
is necessary for a public road. Any and all roads made useless by the new
location, and so indicated upon the draft, we have vacated. We assess the
damages done the property of Abner Bailey at $46|: that of Bowen Stephens
at 616f . Dennis White signed a release, which is also hereto attached. ^Vit-
ness our signatures, this 2d day of April, A. D. 1887. J. E. Throck-
morton. William Gordon. Thomas Hook." To this report Bowen Ste-
phens and Abner Bailey, through whose farms the proposed road passed, filed
the following exceptions: *' First, The court had no power or Jurisdiction
to make the order of January 29, 1887, appointing John Throckmorton,
Thomas Hook, and William Gordon viewers to lay out a road, as set forth in
the petition, and to vacate any and all roads made useless by said hew road,
(1) because the road at No. 18, April sessions, 1884, was a road laid out on a
petition to view, to vacate, and supply an old road, and the said view did va-
cate the old road from a point near Abner Bailey^s house to Dennis White's,
and supplied tlie same with a new road, wliich said new road, on January 29,
1887, was partly opened, at a cost of about $200, or upwards, and the road was
in the same condition on March 23, 1887, when the present view was had,
and is still so; (2) becauke the coui-t had no power to vacate the road at No.
13, April sessions, 1884, after the same had been conOrmed and partly opened
upon the petition presented in this case. Second. The report of the viewers
is void for uncertainty, l)ecause it does not state with sufficient certainty what
roads or parts of roads are vacated." The court overruled the exceptions,
and confirmed the report, and Stephens and Bailey sued out this writ of cer-
tiorari,

Purman & Ross, for Bowen Stephens and Abner Bailey. B. F. Downey^
for petitioners.

Fbr Curiam. The proceedings in this case are afflrmed.



Appeal of Barelet.
{Sv/prepnie Court of PennsuJmania. October 29, 1888.)

PABTmON— AWAKD OF WiFE'S POBPART TO HuSBAND— RiOHT OF WiFB.

Where a married woman, suing for partition, obtains a decree by which one por-
tion of the land is awarded to her husband, and none to her, and her interest in the
entire estate is applied in part payment for such portion, she cannot resist the col-
lection of the resiaue of the price of such portion by a suit to review the proceed-
ings in partition; the effect of the decree being to give title to the husband for her
benefit

Appeal from orphans' court, Washington county; MoIlvaine, Judge.
This is ah action by Josephine Barlcley against Joseph Wilson, Kate A.
Crozier, Louisa Van Gorder, A. M. Murra^, Clara Adams, Maiy A. Beningert



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Pa.] APPEAL OF BAKKLBT. 897

Dayjd Bantley* Joseph Bentlej, ArrriUa Murray, W6s(B. Freacb, guardian
of John» Herbert and Edgar Cox, T. Jeff. Duncan, John JBL Mutdoob, West
E. Fr^ioh, William Adaii]a» and: BenJaraiB Bentley, atidli^g out of the fol-
lowing state of facta: On February 23, 1883, Mrs, Josephine Barkley* by
her husband, W. F. Barfcley, petitioned the orphans* court of WashingUm
county for partition of the real estate of her deeeased unele, George Bentley.
Josephine Barkley was entitled to one-eleventh of the estate. The jury of in-
quest divided the land into eight purparts, and appraised purpart A, contain-
ing 155 acres and 84 perches, at 8100 per acre. The inquest was approved
June 14, 1888, and a rule granted upon the heirs to come into court, on Sep-
tember 10, 1888, and accept the real estate at the appraised value, or show
cause why the same should not be sold. The heirs were called in open court
on September 11, 1888; whereupon W F. Barkley accepted purpart A in his
own right. The court decreed the various pui-parts to the parties accepting
them, and directed them to enter into recognizances to secure the shares of
the parties not accepting; therecognizances to be conditioned for the payment
thereof within two years from the date of the decree, with interest from Jan-
uary 1, 1884. The record shows the condition of the recognizance given by
Mr. Barkley to be as follows: ''Upon condition that the above W. F. Bark-
ley shall, within two yeai*s from this date, pay over to the heirs and legal rep-
resentatives of said deceased their respective distribution shares of the valua-
tion money of the real estate this day decreed to W. F. Barkley by the or-
phans' court of Washington cou^ity, in the said commonwealth* with interest
thereupon from the 1st day of January, 1884." On November 7, 1883, a
statement was filed in the orphans' court, which was confirmed nisi 20 days,
and directed to be spread upon the docket as part of the proceedings in the
partition of said estate. Distribution was directed to be made in accordance
therewith, unless exceptions were filed within 20 days. This statement pur-
ports to show distribution to heirs and parties in interest, and to exhibit the
amounts due them. It shows that the nt^t amount for distribution was $53,-
417.18; that Mrs. Josephine Barkley was entitled to one-eleventh of this
amount, to- wit, 84,856.10; that her husband, William F. Barkley. had ac-
cepted purpart A of the real estate at a valuation of $15,521.25, which, less-
$155.21, his proportion of the costs, left $15,366.04; and that this sum to be
paid by him was reduced to $10,509.94, by concentrating the interest of his
wife in this one purpart, and tlien appropriating it towards the payment of
the purchase money thereof. In other words, Mrs. Barkley*s entire interest,
to-wit, $4,856.10, was credited on her husband's purchase, and her interest
in the real estate of her uncle was extinguished. There were no exceptions
filed to this calculation, and its confirmation became absolute on Kovember
27, 1883. In April, 1884, W. F. Barclay took possession of the land em-
braced in purpart A, and has since resided thereon, paying the taxes, and ex^
pending about $1,000 in repairs. On October 2, 1885, Kate A^ Crozier and
T. Jeff. Duncan, parties in interest, petitioned the orphans' court of Wash-
ington county for a citation on W, F. Barkley, to show cause why an order
should not be made for the payment of the balance of the valuation money of
purpart A of said real estate, to wit, $10,509.94, to those entitled thereto.
Answering this citation, W. F. Barkley set out tliat he was advised that the
court was without authority to award to him this purpart of the real instate
of George Bentley, deceased, and that the decree so made was null and voi4«
He further offered to relinquish all rights he might have acquired in the par-
tition proceedings, and to restore the heirs of George Bentley to their rights
in said purpart A, although he had made improvements thereon costing over
a thousand dollars. On November 9, 1886, the orphans' court decreed that
W. F. Barkley pay the amount found by the calculation to be due other heirs,
with interest from January 1, 1884. A vi^rit of levari facias was directed t6
issue, unless the money was paid within 40 days from the date of the decree.
v.l5A.no.l4 — B7



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898 ATLANTIC SEPORTEB. [Fa^

The money was not paid, and the writ issued, bf virtue whereof the sheriff
levied on the real estate embraced in this purpart, and advertised to sell the
same on Monday, February 14, 1887. On that day Mrs. Barkley began this
suit to review the partition proceedings, and obtained from the court an or-
der staying the writ of levari faciei. Subsequently she filed an amended pe-
tition, to which the respondent filed an answer, and at the hearing her pet!**
tion was dismissed. From this decree Mrs. Barkley appeals.

/. If. BradeUf for appellant. John H, Murdoch, J. W. c& A. JDonnan, and
Aiken <& Duncan, for appellees.

Per Curiam. We have not been perauaded that the court below erred in
the disposition of this case. Mrs. Josephine Barkley. through the agency of
her husband, was the actor in this partition; and that the purpart was
awarded to him instead of to her matters little, seeing, that her money was
used to pay the owelty. She was in equity the owner of the land, and could
have compelled a conveyance to herself. Under such circumstances, she can-
not now be allowed to resist the collection of the recognizance. Decree af-
firmed, and appeal dismissed, at costs of appellant.



Laird et al. v. Walkinshaw.

Appeal of Laird.

(Supreme Court of Pennsylvania. October 29, 1888.)

1. Partition— Attorney's Pee— Review— Error, Writ of.

An allowance for counsel fees, in actions of parti tiov>, being warranted by stat-
ute, the supreme court cannot, on writ of error, inquire whether the amount al-
lowed is excessive, where the proceedings are regular on their face.

2, AppEAii— When Lies— Partition— In Common Pleas.

An appeal does not lie from the court of common pleas In an action of partition.

Error to and appeal from court of comQion pleas, Westmoreland county;
James A. Hunter, Judge.

Action of partition brought by Francis Laird against H. P. Laird, John M.
Laird, Francis L. Stewart, Thomas H. Stewart, Bobert L. Stewart, Anna
McJunkln, William McJunkln, Jane McAteer, John McAteer, Mary M. Lea-
son, and Thomas S. Leason. The land was taken by defendant H. F. Laird
at the appraised valuation. The court taxed the fee of plaintiff's attorney,
H. W. Walkinshaw, at $400, and allowed the same as costs. From this de-
cree H. F. Laird appeals, and also, in connection with the other defendants,
brings error.

Laird & Keenan, for appellant and plaintiffs in error.

Fer Curiam. It is a mistake to suppose that an appeal lies from a court
of common pleas in an action of partition. The facts involved in such a case
can be reviewed in this court only on a writ of error. We must therefore
disregard the appeal; and as on the certiorari we can only pass on the regu-
larity of the record, which in this case seems to be unexceptionable, we can
do no otherwise than affirm the action of the court below. An allowance for
counsel fees is warranted by the statute, and, whether the amount fixed by
the common pleas was or was not too large, we have no means of judging,
as we are not permitted to pass upon the evidence which induced the action
of the court. The judgment is affirmed.



Appeal of Sowers.
(Supreme Court of Penn8yiA}ania. October 1^, 188S.)

BUBKOOATION— To RiGHTS OF CbBDITOR.

Where the vendee of land incumbered with two judgment liens deposits money
' Into court to pay the senior judgment, he becomes subrogated to the rights of saon



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Pa. J AFSBAL OF flOWSBft; 899

judffmeiit cveaitor to tbe extent of bis' pAymont, as aio^Bt the Junior fadgment
crocutor, though by mistake the amount deposited is not quite enough to satisfy
the senior judgment in full

Appeal from court of common pleas, Indiana connfy.

This is an afppeal by Jonas Sowers from the final decree distributing money
in the hands of the sheriff arising from the sale of land of Abram Stiver
upon writs of ft. fa. in tlie actions of William G. Lewis agam-^t Abram Sti-
ver and of Jonas Sowers against Michael Smith and Abram Stiver. The.
ol)inion of the court below was as follows:

"Stiver was the owner of two pieces of land, one of 125, and the other of 31
acres. Wbile so owning^ various judgments were entered against him We
may name only those important in determining this controversy. These were

twoof W. G. Lewis against Abram Stiver, numbered, respectively, ■- of

term, 18-t-. They were revived, Lewis «. Stiver, No. 85, Match term,

1885, for $92.06, and costs, [not material here, probably;] and the other, Lewis
V. Stiver, No. 84, March term, 1885, for $879.10, interest from March 18, 1885,
and costs. This is the one in question. Then, a test. ft. fa. followed by a
t^t, vend. ex. No 2, September term, 1886, of Jonas Sowers v. Michael Smith
and Abram Stiver, for $402.15, which includes costs. The contention arises
between Heiflick and Sowers; Hefflick contending, by reason of certain mat-
ters hereinafter stated, he is subrogated to the rights of Lewis on judgment
No. 84, March term, 1885, to the amount of $490, which he advanced and
paid into court on that judgment, and should be allowed such amount out of
the proceeds of sheriff's sale distribution; while Sowers, the next judgment
creditor, by reason of his test. vend. 6a?. denies Hefflick's claim of subrogation,
and contends the money Hefflick paid into court is but a credit and extinguish-
ment, pro tanto, of the Lewis judgment No. 84. March term, supra. To de-
cide this contention, we wiU inquire further about the facts. June 5, 1884,
Stiver conveyed the 31-acre piece for the consideration of , by deed re-
corded December 15, 1884. At that time Stiver owned the 125-acre piece, and
all the judgments were then subsisting liens against both pieces of land. On the
Lewis judgments, suprct^fi.fas., respectiveljr, 38 and 89 of September terra,

1886, were issued, and both pieces of land were levied and sold at sheriff's
sale, September 10, 1886, — the 125-acre lot for $1,805, and the 31-acre piece,
described in levy as 27 acres, for $525; making together $2,330. Hefflick, as
terre-tenant in the Lewis judgments, and Stiver's vendee for the 31 acres, for
which it appears he had paid all the purchase money to Stiver, presented his
petition to set aside the sale of the 31 acres, complaining that he had par-
chased, had a deed, and paid for them to Stiver; and the sale would destroy
bis interest in this land, and asking tlje sale to be set aside,, so that he could
have opportunity to make some arrangements to protect his interests. This
petition seems to liave been mislaid or lost. While the court delivered no
opinion reciting the history of the matter, and giving the reasons for its ac-
tion, yet the circumstances and arguments of counsel are refreshed to the
mind of the court by referring to the orders of record made at the time. While
the court may properly consider what occurred judicially before us in another
stage of the controversy, yet we will only take the matters now found of rec-
ord, with the reasonable and legitimate inferences resulting, in determining
the particuhir question now in hand. Lewis and Sowers both resisted setting
aside the sheriff's sale of the 31 acres.

"It would appear, had the sale of both pieces been confirmed, taking the
list of liens in their order, as reported by the auditor, that the Sowers lien
would have taken nothing out of the proceeds, and the Lewis judgment, No.
84, March term, 1885, in question, would not have been paid in full. This
appears as follows: Whole proceeds, $2,330. The costs of audit, $53.44, de-
ducted, would leave $2,276.56 for distribution. The aggregate amount of
liens before reaching the Lewis Judgment, in question* is $1,803.01;. leaving



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900 JLTLANnC ItSFOBaSEB. [Pa.

but $472.75 to apply on tliis Lewis Judgmtot^ while Its entire amoant seems
to be $512.08. Sowers' lien, being subsequent to this, wouid have received
nothing. This appears clear, taking the amount of the judgments reported
by the auditor. Although the auditor reports that a small amount of the first
sale would have gone to Sowers, jet we cannot so find, after a careful com-
putation of the judgments on the auditor's report. It is quite true a small
an^ount, ptobably $14, would have gone to the Sowc^ judgment had no au-
ditor been appointed. But we mu9t take the situation as we fMd it. The
court, after hearing some affidavits and the argument of counsel, on the Up*
plication about the sale, set it aside. On the record appears the following:
* September 22, 1886^ exceptions to confirmation of sale to W. €r. Lewis filed;
and now, October 4, 1886, by leave of the court, John Heffliok, the exceptant,
pays into court the sum of $490, without prejudice to his rights to withdraw
such portion thereof as may hereafter appear to be unnecessary to pay the
judgments of W. G. Lewis v. Abram Stiver.* Then, following the atH)ve, in
regular succession, on the page of the record, we find the following order set-
ting aside tlie sale: < And now, to-wit, October 4, 1886, it appearing to the
court that $490, which is said to be the amdunt of the judgments of W. G,
Lewis, the execution creditor, the sale made of the 27 acres to Wm. G. Lewis
is now set aside, upon condition, however, that within 20 days from this date
John Helfiick, the exceptant, shall pay to Wm« G. Lewis, the sum of $15 for
the reasonable expenses of the said Lewis in and about the sale, and, on fail-
ure to pay such $15, the setting aside the sale shall be of no effect.' It ap-
pears further on the record that the $490 were received by the prothonotary
from Mr. Hefflick. In his receipt he recites, • Paid in as per leave of court.'
Then $481.20 of this, being $490, less the prothonotary's commission, are re-
ceipted by Mr. Lewis' attorney. After this sale was set aside, the testa, oen.

ex. No. of term, 1886, was issued, and on it this Sl-acre piece

was again sold, for the sum of $430, to Levi McGregor. The record also
shows the $15 were paid into court and received by Mr. Lewis' attorney in
fulfillment of the court's order about expenses. The whole fund, arising
from the sales, being $1,805 and the $480, making $2,285, were before the
auditor for distribution. Why,' then, should not Hefflick, under all the dr-
cumstances of the payment of his money into court be subrogiited to the right
of Lewis; not, however, in any way to prejudice Lewis' full claim? While
it is true there has been no forma) subrogation, yet equity will regard that



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