tive. This, however, is an attempt to make the time of their execution he happened to own but character of the gift depend upon an intention one-half this amount of the said stock. Neither which must be discovered, if at all, extra the will, can the second assumption be sustained, for that is to say, upon the fact that the testator had there is nothing in the language used to indivibut fifteen shares of stock. But we cannot over-duate the stock shares. Had he owned one look the fact that this is a doubt raised outside of thousand such shares any thirty would have anthe papers, and that extraneous circumstances of swered the bequests; so, had he owned none, this kind cannot be considered if we are to fol- the purchase of a like number or their money low the well-settled canons of construction where value would have fulfilled the intent of the testhe testament itself is clear and certain. Look- tator. We repeat, the whole argument is founded ing upon that instrument alone, and as we have on the fact that the testator had at the time of remarked, there is is nothing at all ambiguous in the making of his will but fifteen shares of this it. Had he, in the first place, bequeathed thirty stock. Had he had more or less or none at all, shares of this railroad stock to his cousin, instead there would be no place for contention, for then of fifteen, no one would have hesitated as to the there would be no doubt as to the generality of character of the bequest merely because it turned the legacy. Now, whilst we are willing to admit out that he in fact owned but fifteen such shares. that if we are to go out of the body of the will How, then, can it alter the matter that his first for evidence of intention, the fact here mentioned gift was of fifteen shares and that afterwards he must be allowed to have its weight in the way of added fifteen additional shares, as he says, clearly making the first bequest specific, though it would as language can make it, "in addition to what by no means be conclusive, yet, as this same I have given her in my will." Admitting, how-fact will not apply to the codicil, it follows, unever, that the first bequest was specific, what less we agree to hold that the legacy therein conmade it specific? Certainly nothing but the fact tained is but a repetition of the previous one, the that he happened to have just fifteen shares of appellant's contention has no foundation. But the stock. How, then, as to the second bequest? to assume a repetition of the former gift is someIt certainly must be general, for there is nothing thing that we cannot but consider altogether unin the codicil or out of it tending to qualify the warrantable. We may admit the force of doubts gift. But this is said to be but repetitive, the tes- and surmises, but they are not substantial enough tator intended the stock already given. If, how-to induce us to revise a plainly written will. ever, intention is to be gathered from unambiguous expression this theory cannot be adopted, for the testator has stated in language that cannot be misunderstood that what he gives to the appellee by the codicil is in addition to that given her by the will. There is thus nothing left to the appellant but the hypothesis that the testator, not having his will before him when the codicil was drawn, must have forgotten his previous gift, hence repeated it in the later instrument. This at best is but surmise that cannot be allowed to override

the positive language of the testator, and it does not follow that he would have directed differently had the will been before him. We have carefully examined the able argument of the learned counsel for the appellant and find it based on two assumptions that, in our opinion, he has failed to sustain. They are, first, that there is no evidence in the papers above named indicative of testamentary intent as to the subject matter in controversy; that is, as we understand it, which would of itself determine whether the legacy in the codicil is cumulative or merely repetitive; second, that the original legacy is specific. As to the first, we have but to repeat that no one can fail, on reading the will and codicil, to come to the conclusion that Alice Rheem was to have thirty shares of the C. V. R. R. stock, and doubt arises, not from the language of these papers, but from the altogether extraneous fact that at the

The decree is affirmed and the appeal dismissed at the cost of the appellant. Opinion by GORDON, J.

Oct. & Nov. '84, 36.

F. M. O.

October 6, 1884.

Stockwell v. McHenry.

Corporation Registry of certificate - Real estate-Notice- Recording — Index-Act of April, 21, 1854.

incorporation of a company duly organized under the Act The recording in the proper county of the certificate of of April 21, 1854 (prior to the passage of the Acts of March 27, 1865, and March 18, 1875), is constructive notice, to subsequent purchasers or mortgagees, of the conveyance to the corporation of the lands described in the certificate, whether the names of the individual grantors have been indexed in the recorder's office or not.

two of the corporators of a joint stock company organized A. and B., tenants in common of certain lands, were under the Act of April 21, 1854 (P. L. 437). Said lands became part of the common stock of the company, and were described in the certificate, which was duly registered March 26, 1865. The names of the granting parties were not, however, entered upon the index to the record. Afterwards judgment was obtained against the incorporated company, execution thereon issued and the lands were sold to C. Subsequently A. and B. executed

and delivered to D. a mortgage of their undivided interest | BROWN, P. J., entered judgment for plaintiff on in the lands mentioned in the said certificate. A scire the reserved question. Defendant thereupon facias having been issued on the mortgage the lands were took this writ, assigning for error the said judgsold under judgment and levari facias to E.:

October 20, 1884. THE COURT. The Forest County Oil and Mining Company was incorporated under the Act of 21st April, 1854; the certificate was formed on the 8th March, 1865, There being no dispute as to the facts, a ver- on that day it was signed and acknowledged by dict was taken, by consent, for plaintiff subject the corporators; on the 10th March, 1865, it to the following question of law reserved: was certified by the Attorney-General, and on "Whether the record of the articles of associa- the 26th March, 1865, it was recorded in the tion transferring the title from Alex. McAndrew office for recording of deeds, etc., in the county and Samuel Wann to the Forest County Oil and of Forest, where the business of the company Mining Co. not being indexed in the names of was to be conducted. Letters patent were the grantors, is constructive notice to the mort-issued by the Governor on the 11th April, 1865, gagee." as provided by the Act of 7th May, 1855. The lands in dispute are embraced in the cer

tificate and by the provisions of the Act of 1854, | indexing required that the names of the corconstituted part of the common stock of the porators contributing the lands, should be placed company, in which the shares, for all legal purposes whatsoever, are deemed personal estate.

On the 12th August, 1875, Roxalina McHenry, executrix of A. R. McHenry, deceased, obtained a judgment against the company, and upon execution thereon, the lands were sold. The plaintiff's title is derived through the sheriff's sale.

On the 29th July, 1874, Alexander McAndrew and Samuel Wann, two of the corporators, upon a good and valuable consideration executed a mortgage on what they recited as their undivided interest in the lands in dispute to William H. Stockwell, and the defendant's title is derived through a sale on this mortgage.

The Court below was certainly correct, in concluding that the legal effect of the incorporation was to vest in the company the title to all the lands in the certificate described, without any further conveyance or assignment. By the subsequent Act of 27th March, 1865, this was enacted to be the true intent and meaning of the original statute; but this amendatory provision was, in this respect, merely declaratory of its obvious meaning, and was perhaps intended to dissipate any doubts which might exist on that subject. A careful study of the statute of 1854 will, we think, lead to this conclusion.

with the grantors, it does not follow, that the failure of the recorder so to do invalidated the record. Prior to the Act of 18th March, 1875, at least, it was well settled that a deed was in contemplation of law recorded, when it was left in the recorder's office, and put upon the entry book for that purpose. The duty of the recorder was to record it, and the responsibility rested upon him for any default in the proper discharge of that duty; the consequences of his default could not be visited upon the owner, who had done all that the law required, in depositing the deed in the office for that purpose. A different doctrine was, perhaps, declared in Luch's Appeal (8 Wright, 519), where it was held, that mortgages must be recorded in a "mortgage book," and that they are not properly recorded in any other book, where they cannot be found by means of a

mortgage index;" but that case was expressly overruled in Glading v. Frick (7 Norris, 460), where it was said by PAXSON, J.: "We feel ourselves constrained to return to the rule laid down by Chief Justice GIBSON in McLanahan v. Rensides (9 Watts, 511)." "It is indeed," says the Chief Justice, "of no account that the conveyance and the articles were not recorded in the book set aside for mortgages; the keeping of such a book is an arrangement to promote the convenience of the officer, by contracting the surface over which he is to search for a particular thing; he is bound to furnish precise information, get it as he may, of every registry in his office, whether made in the right place or not." Clader v. Thomas (8 Norris, 343), and Paige v. Wheeler (11 Norris, 282), are to the same effect. The remark of Chief Justice WOODWARD, in Spea v. Evans (11 Wright, 141), that the index is an indisputable part of the record, is not to be regarded as an adjudication to that extent; that case turned upon the question of actual notice. (Schell v. Stein, 26 P. F. S. 395.) No duty rested upon the Forest County Oil and Mining Company to

The recorder of deeds in Forest County, however, in the recording of this certificate did not enter the names of the parties signing it among the grantors in the index of deeds and conveyances in his office; nor was the ownership of the lands otherwise manifested by actual Occupancy, improvement, or cultivation. The question, therefore, arises, whether the record of the articles of association transferring the title from Alexander McAndrew and Samuel Wann to the Forest County Oil and Mining Company, not having been thus indexed, was constructive notice to the mortgagee and those claiming under him; this was, in substance, the point reserved. By the Act of 27th March, 1865, the recorder of deeds is required so to index instruments of this character that the names of the parties sign-supervise the action of the recorder, to see that ing them, shall appear among the grantors, in the index of deeds and conveyances; by the later statute of 18th March, 1875, he is required to keep not only a direct but an ad sectum index also, and it is provided that the entry of recorded deeds and mortgages in such indexes shall be notice to all persons of the recording of the same. This certificate, however, was recorded on the 26th March, 1865, which was prior to the passage of either of the statutes referred to, and as they are not retroactive in effect, they can have no application to the case under consideration. Assuming, therefore, that the certificate was in the nature of a conveyance, and that a proper

he made the record and indexed the conveyance. (Brown and Wood's Appeal, 3 WEEKLY NOTES, 35; Wyoming Bank's Appeal, 11 WEEKLY NOTES, 567.)

Constructive notice of the conveyance must, therefore, be imputed to the holder of the Stockwell mortgage, as well as to those claiming under it; that notice being the implication which the law attaches to the registration of the certificate. We are of opinion, therefore, that the learned Court was clearly right in entering judgment for the plaintiff on the question reserved. The judgment is therefore affirmed. Opinion by CLARK, J.

G. A. H.

Oct. '83, 192.

to be followed by evidence that notwithstanding November 5, 1883. the bank held that lien against the property of William Sunderman, the bank negligently permitted it to be sold for a price greatly less than

Smith v. Arsenal Bank.

Trial Offer of evidence-Judgment-Appropri- its value, and thereby, and through their neglect

ation-Indorser.

An offer of evidence, part of which is admissible and part inadmissible, may be refused. The Court is not bound to separate that which is admissible from that

which is inadmissible.

to enforce the judgment according to the arrangement, the entire property of William Sunderman was sold out for a nominal price for amounts greatly less than its value, with the knowledge and permission of the bank and its officers, leaving the judgment held by the bank unpaid, except about $780, which was made upon the Mueller writ. This for the purpose of showing that, through the negligence of the bank, the holder of the judgment, permitting a breach of Where the plaintiff in error omits to print in his paper them, they are estopped from collecting the the relation and agreement entered into between

The Court is not bound to answer a point which assumes all the facts.

A question of law reserved must be based upon facts admitted, or found by the jury. A point reserved " upon all the evidence" is bad.

book the evidence, the fact that the defendant in error prints part of it, will not cure the deficiency.

Error to the Common Pleas No. 1, of Allegheny County.

amount thus lost by their negligence from the accommodation indorser, Mr. Smith."

Objected to, "because admitting the facts to be, as defendant offers to prove, they do not operate Assumpsit, by the Arsenal Bank of Pittsburgh to discharge the defendant from his liability on against William Smith, indorser of a note drawn the note in suit, and also as irrelevant and inby William Sunderman in favor of the Arsenal competent." Objection sustained. Exception. Bank, for $1000. (First assignment of error.)

At the trial, before COLLIER, J., the following facts appeared: William Smith had been the indorser for William Sunderman in the Arsenal Bank, to the extent of $1000. The notes having become due, Smith refused to continue indorsing for Sunderman, who then proposed to give a judgment note to the bank to secure this indebtedness, and also two other notes amount ing to $700. Thereupon Sunderman confessed judgment to the bank for $1700, and Smith indorsed the note for $1000, now in suit. Sunderman's property having been sold, the sheriff appropriated the sum of $780.39 to the judg. ment generally, and the bank applied it to the payment of the two notes for $700, and the balance, $36.14, to the note in suit, which was secured by Smith's indorsement.

In rebuttal, the following offer was made by the plaintiff, viz: "Counsel for plaintiff proposes to prove by the witness (Mr. Gerwig, cashier of the bank), that the judgment referred to by the defendant in his examination was given, not only to secure the note in suit, but also two other notes, amounting in the aggregate to $700, which notes were then past due, and that these notes were not indorsed by the defendant. This to justify the appropriation made by the bank of the proceeds applicable to this judgment to the indebtedness of $700, secured by the judgment." Objected to as irrelevant and not rebuttal; that by the confirmation of the special return the appropriation has been made, and it is incompetent to change it. Objection overruled. Exception. (Second assignment of error.)

The defendant made the following offer: "Counsel for the defendant proposes to show by the witness on the stand that the judgment note shown witness was taken and judgment entered thereon in pursuance of an arrangement between the bank, the witness, and William Sunderman, the defendant in that case, to secure and indemnify the witness against his accommodation indorsement of the promissory note, given by Sunderman to the plaintiff, of which the note in this suit is a renewal, by which it was arranged that the witness, William Smith, should continue to indorse for Sunderman, in order to keep the note alive in bankable form; but the judgment Exception. (Third assignment of error.) should be taken, retained, and used by the bank

The defendant presented the following point, viz:

"The defendant prays the Court to instruct the jury that upon all the evidence in the case the defendant is entitled to a credit upon the claim in suit for a proportionate share of the money made and appropriated to the judgment of the bank against Sunderman, No. 85, March Term, 1879, as appears by the special return of the sheriff, made at No. 179, October Term, 1879 (fi. fa.), given in evidence in this case, the amount so made being $780.39."

Answer. This point is refused and reserved.

Subsequently the Court decided the reserved for the protection of the witness, Smith, so he question in favor of the plaintiff, and entered should suffer no loss by the indorsement. This judgment on the verdict. (Fourth assignment

of error.) The defendant thereupon sued out this writ, and assigned for error the matters set forth above.

John S. Lambie (A. M. Brown with him), for plaintiff in error.

The uncontradicted testimony of the case is that Smith refused to continue to indorse for

Sunderman, and that Sunderman proposed to give him a judgment to secure him, but, inasmuch as the bank held other paper of Sunderman, the judgment was finally given to the bank to secure the whole indebtedness; the bank was satisfied, didn't want its money, and the reason given to Smith for the renewal of the note from time to time was, "to keep it alive and in bankable form." The evidence showed gross negligence on the part of the bank, in allowing Sunderman's property to be sold at a merely nominal price. The offer was to show that the arrangement was that the judgment was to be taken, retained, and used by the bank for the protection of Smith. Where collaterals are placed in the hands of a creditor, and are lost by his negligence, the loss falls upon him.

wheat from the chaff, but he did not do so, and under all the authorities he was not bound to do so.

Nor is there any merit in the second assignment. It was entirely competent to show what the judgment was given for.

The third and fourth assignments were evidently intended to raise the important question in the cause, viz., whether the money received from the sheriff should be applied pro rata on the three notes which the judgment was given to secure, or whether the bank should be allowed to apply it all to the unsecured notes held by it. The point is an interesting one, but it is not raised.

Upon the trial below the defendant asked the Court to instruct the jury" that upon all the evidence in the case the defendant is entitled to a credit upon the claim in suit for a proportionate share of the money made and appropriated to the judgment of the bank against Sunderman, No. 85, March Term, 1879, as appears by the special return of the sheriff, made at No. 179, October Term, 1879 (fi. fa.), given in evidence Lyon v. Huntingdon Bank, 12 S. & R. 61. in this case, the amount so made being $780.39." Hanna v. Holton, 28 Smith, 334. This point assumed all the facts, and the learned Sunderman's primary object was to secure Judge was not bound to answer it. He refused Smith. The effect of giving the judgment was it, however, and reserved it. Subsequently he to secure all his indebtedness. The sheriff's re-entered judgment on the verdict in favor of the turn legally determined the application of the $780.39, pro rata, to the payment of all his debts secured by the judgment. The bank had no power to charge that appropriation. The decree of distribution of the proceeds of a sheriff's sale is conclusive.

Finney's Appeal, 3 Barr, 312.

Gratz v. Lancaster Bank, 17 S. & R. 278.
Yerkes's Appeal, 8 W. & S. 224.

plaintiff.

As before stated the point was bad, because it assumed the facts and withdrew this case from the jury, and it did not help it that the Court reserved it. A reservation of a point upon all the evidence is bad. A reserved point must be based upon facts admitted in the cause or found by the jury. We have said this so often that a

Appropriation will not be made to prejudice reference to the cases is unnecessary. Nor can

a surety.

Wightman's Appeal, 10 WEEKLY NOTES, 155.
Harker v. Conrad, 12 S. & R. 301.
Chancellor v. Schott, 11 H. 68.
Greene v. Tyler, 3 Wright, 361.
Appropriation is a question of fact.

Moorhead v. West Branch Bank, 3 W. & S. 550. Thos. C. Lazear (A. C. Hoyer with him), for defendant in error, were not heard.

January 7, 1884. THE COURT. The first assignment of error cannot be sustained, for the reason that the offer of evidence was too broad. While the arrangement with the bank and the circumstances under which the judgment was given were well enough, the subsequent portion of the offer by which it was proposed to show that the bank permitted Sunderman's property to be sold for a price greatly below its value was clearly inadmissible. It was no defence. The learned Judge below might have separated the

we assume that the facts were undisputed. The plaintiff in error has not printed a word of the evidence. It is true the defendant has printed some of it-how much we do not know-but we will not patch out the plaintiff's case in that way. Beside, the history of this case and the counter statement differ about the facts in essential features.

We have, therefore, the verdict of a jury in favor of the plaintiff below, with nothing upon the record which would justify us in disturbing it.. Judgment affirmed. Opinion by PAXSON, J.

J. M. S.