The facts of the case were as follows: On | appears, turned out to be worthless because of July 14, 1880, M. C. Earley, as use plaintiff, the insolvency of the defendant. Then, on the obtained a judgment for $476.93 against the 14th of June, 1881, the borough council at a borough of Pleasant Valley. On August 30, special meeting passed an ordinance directing 1880, a mandamus was issued to collect the the purchase of said judgments from Hoban for same, which was served September 29, 1880, on the sum of $150.00. It does not appear from M. T. Hoban, the treasurer of said borough, this ordinance for what reason or purpose these and answer made that no money was in the judgments were purchased, but Hoban in his treasury of said borough to pay the same. In testimony explains that he brought about the May, 1877, said Hoban obtained two judgments arrangement, and made the assignment for the against said Earley aggregating $620.20. On purpose of having them collected through the June 14, 1881, the council of said borough by aid of the borough. ordinance purchased said judgments from Hoban for $150, upon his agreeing to indemnify it for any costs and expenses that might be incurred by reason of such purchase. On June 15, 1881, the said borough obtained rules upon said Earley to show cause why the judgments of $620.20 should not be set off against his judgment of $476.93, which rules, after argument, the Court, RICE, P. J., made absolute, holding that the said borough had a right to purchase the said judgments of Hoban, and to set off the same against the said judgment of Earley. Whereupon appellant took this appeal, assigning for error the decree of the Court allowing the set-off of said judgments. John McGahren (Garrick M. Harding with him), for appellant. When the borough council purchased said judgments from Hoban, it acted beyond the scope of its authority, and therefore the purchase was void. Const. of 1874, Art. IX., § 7. Green's Brice's Ultra Vires, 42, note. John T. Lenahan (James L. Lenahan with him), for appellee. As the borough is the absolute owner of the judgments against Earley, it is not in his power to assail the title by which they were obtained. Ramsey's Appeal, 2 Watts, 228. Blanchard v. Commonwealth, 6 Watts, 309. May 21, 1883. THE COURT. On the 11th of September, 1879, a judgment was obtained by Roger Wood for the use of M. C. Earley against the borough of Pleasant Valley in the sum of $476.93. On the 30th of August, 1880, a mandamus was issued for the collection of this judgment, which was returned served upon M. T. Hoban, the treasurer of said borough, who, for answer thereto, alleged that there was no money in the treasury. It seems that at the same time, Hoban, the treasurer, was the owner of two judgments against Earley, numbered 378 and 379, of May Term, 1877, which, as it It further appears that he agreed to indemnify it for any costs and expenses that might be incurred by its officers in the conduct of this business. The meaning of this transaction is easy of comprehension; the borough was to be used as an instrument for the collection of Hoban's judgments; hence we find that the next step which was taken after the alleged purchase by the borough was to obtain the rule to show cause why these judgments should not be set off against that which Earley was endeavoring to collect from the borough, and this rule the Court below, on the 16th of July, 1882, made absolute. Granting, however, that these judgments were bought and paid for in good faith, and for the sole purpose of subserving the interests of the borough, there yet remains this question to be disposed of: Whence did this municipality acquire the power to purchase the outstanding judgments or other obligations of its creditors? We confess that even with the help of the argument of the learned counsel of the appellee, we have not been able to solve this proposition. It does seem to us that if a borough, city, township, or county may buy up the judgments, bonds, or notes of its creditors, it may buy those of any other thus in effect beperson, and may must in the nature of things arise from the excome a broker or banker. But the evils, which ercise of such a power by the various municipalities of this Commonwealth, are so obvious and the power itself so contrary to every idea that we, as a people, have hitherto entertained concerning the constitution of these public corporations, that we may set it down as certain that it accords not with the policy of our government, and that its exercise is therefore not allowable. But, as we have already observed, the facts of this case demonstrate that the borough is here being used as a mere instrument for the collection of the whole or part of Hoban's claim against Earley. Hoban for this purpose could not use the process of attachment; hence, as a substitute, a sale and assignment were resorted to, and in this manner he gets the borough's right of set-off; that is, he is credited with that right as against Earley. But as this is clearly a loan of the credit of the municipality, it comes within The two executors first named subsequently the ban of the seventh section of the ninth died, after which the survivor alone managed article of the Constitution of 1874, and we are, the estate. Upon a sale of certain real estate therefore, compelled to pronounce against this belonging to testator, the purchaser thereof recarefully planned and ingenious scheme for the fused to accept a deed in fee simple for the collection of a debt. same, alleging that the said surviving executor The decree of the Court below is now re-had no power under the will to make title. versed and set aside, and it is ordered that the appellee pay the costs. A. died, and C., D., and E. were appointed his executors by a will providing, inter alia, as follows: "If any of my executors shall die, or decline the executorship, it shall be the duty of the acting executors to appoint another in the place of the executor so dying or declining, and to make such conveyances, and do such acts as may invest the said substituted executor, from time to time, as occasion may arise, with the same rights and powers which are given to the executors named in this my will." Subsequently C. died, and D. also died, and E., as surviving executor, sold certain real estate of decedent's under direction of the Orphans Court: Held, that E. was properly authorized and empowered by the Act of February 24, 1834 (P. L. 73), to convey title to said premises. Held further, that an express direction by testator, such as above set forth, does not conflict with the provisions of the said Act. Error to the Common Pleas No. 2, of Philadelphia County. Case stated, wherein James Dundas Lippincott, surviving executor and trustee under the last will and testament of James Dundas, deceased, was plaintiff, and The Philadelphia Trust, Safe Deposit, and Insurance Company, trustee under the will of William Richardson, deceased, was defendant. The facts, as agreed upon, are fully set out in the report of the case in the Court below, 14 WEEKLY NOTES, 125. Briefly, it appeared that Joshua Lippincott, Richard Smethurst, and James Dundas Lippincott were appointed executors of the will of James Dundas, deceased, which provided, inter alia, as follows:— Item 17. "If any of my executors shall die, or decline the executorship, it shall be the duty of the acting executors to appoint another in the place of the executor so dying or declining, and to make such conveyances, and do such acts as may invest the said substituted executor, from time to time, as occasion may arise, with the same rights and powers which are given to the executors named in this my will." The Court entered judgment for the plaintiff in the sum of $12,187.50, being the purchasemoney of the real estate in question, being of opinion that the plaintiff, as surviving executor, was authorized to execute the deed in question. Whereupon the defendant took this writ, assigning for error the entry of said judgment. R. L. Ashhurst and Samuel Dickson, for plaintiff in error. It cannot be disputed that, at common law, there being no provision for a survivorship, or giving the survivors the right to execute the trust, the power could not have been executed after the death of either. Evans v. Chew, 21 Smith, 49. Peyton v. Bury, 2 Peere Wm. 627. Newman v. Warner, I Sim. (New Rept. 463). The Act of 1834 provides that the power shall survive, except when the testator directs otherwise. In this case he did direct otherwise by item 17, which shows that he intended always to have three executors and not confide this power to one. The Act of 1800 does not apply. The argument ab inconvenienti is of no force, because, under the Act of 1849 (P. L. 597), the Orphans' Court can appoint trustees to fill the vacancies. From the whole tenor of the testator's will it is evident he intended the power to be exercised by three and not by one. Perry on Trusts, vol. ii. ?? 286 and 497 (3d ed.). Lonsdale v. Beckett, 4 De G. & Sm. 73. Will of Mary Hadley, 5 Id. 67. Reid v. Reid, 30 Beav. 388. Doe v. Roe, I Anst. 86. Hulme v. Hulme, 2 M. & K. 682. Mass. G. H. v. Amory, 12 Pick. 445. Caswell v. Allen, 7 Johnson (N. Y.), 63. City v. Donath, 9 WEEKLY NOTES, 415. R. R. v. Lehigh Nav. Co., 12 Casey, 212. Att'y-Gen. v. Floyer, 2 Vern. 748. Att'y-Gen. v. Bishop, 5 Ves. 831. John G. Johnson and George W. Biddle, for defendant in error. The power to fill vacancies could only be ex ercised by two. There being but one left, it is now impossible to exercise it. The powers of sale being conferred, not for the benefit of the estate, but of the cestui que trust, it will be punishing the parties in interest for the default of the executors in not appointing, to hold that the powers cannot be exercised. The Acts of March 12, 1800 (3 Smith, 433), and February 24, 1834 (P. L. 73), make the power survive, unless the testator directs otherwise. The testator does not so direct, but, on the contrary, insists that all powers shall be exercised without reference to the Courts. deed when the property is subject to certain easements and incumbrances not mentioned in the agreement, although the deed by the grantor to a third party creating the easecovenant was entered into. ments and incumbrances was on record at the time the It is the duty of the Court, and not of the jury, to construe a written contract; it would have been error to have submitted to the jury the question whether the defendant had orally agreed to purchase from the plaintiff subject to the rights of a third party, when there was neither allegation nor proof of a mistake or omission in the written contract. Error to the Common Pleas of Fayette County. On the trial, before WILLSON, P. J., the following facts appeared : April 21, 1884. THE COURT. We concur in Covenant, by Peter Pegg, against Joseph J. opinion with the Court below that the sole sur-Rist, to recover $5000, with interest from Sepviving executor has lawful power and authority tember 23, 1881, being the first payment on to convey title to said premises. When a devise articles of agreement for the sale of real estate of real estate is made to executors for the purpose made between the plaintiff and defendant on of sale or otherwise, and in general terms they March 18, 1881. are authorized to sell the same, the Act of 24th February, 1834, in clear and explicit language, gives power to the survivor or survivors to execute that power as fully as all of them might have done, when the testator has not directed otherwise. The will of James Dundas contains no language of a special character sufficient to indicate an intention to restrict the right to convey to all of his executors, nor to prevent the sole surviving executor from executing the power in pursuance of the Act of 1834. To hold he cannot so do, would defeat the main purpose and object of the Act. While the Act of 1849 does authorize the Orphans' Court of Philadelphia, when the will has there been admitted to probate, on application of a party in interest, with the consent of the continuing executor, to appoint a trustee or trustees, in the place of those dying or ceasing to act, with the same power as those in whose stead they were appointed; yet this action is not essentially necessary to a proper exercise of the power given to the executors by the testator. Unless such appointment be actually made, the surviving executor may exercise the whole power under the Act of 1834. It follows the Court correctly entered judgment in favor of the plaintiff below on the case stated. Judgment affirmed. Opinion by MERCUR, C. J. July, '83, 71. Pegg v. Rist. H. J. S. February 6, 1884. Covenant-Easement-Incumbrances- Peter Pegg, on March 18, 1881, entered into a contract with Joseph J. Rist, to convey to him in fee simple about forty-six acres of land near Uniontown, Fayette County, less the coal underlying the same, clear of all incumbrance, on or before April 1, 1881, in consideration of $7000, $5000 of which was to have been paid on delivery of the deed, and the balance on April 1, 1882. It appeared that Mr. Pegg had, prior to this agreement, to wit, on the 22d August, 1879, conveyed to one B. F. Ruff, all the coal underlying this tract of land, except "the three-foot and five-foot veins, with the right to mine, extract, and dispose of the entire body of coal underlying said tracts, without reservation, substitution, or liability for damages, together with all privileges, rights of way, etc., necessary for the convenient mining and transporting of the same, with the right also to transport through the drifts, shafts, slopes, headings, entries, rooms, passages, ways, etc., used for transporting the same, any coal or mineral from adjacent tracts of land." Before the commencement of the action, Pegg executed and tendered a deed to Rist for the land, excepting the coal he had conveyed to Ruff by the deed dated August 22, 1879, and all the other coal underlying the land, which the defendant refused to accept; whereupon Pegg brought suit for the amount of the first instal ment. On the trial, the defendant requested the Court to charge the jury as follows: "That if the plaintiff by his deed to B. F. Ruff, dated August 22, 1879, recorded in the Recorder's office of Fayette County, Pa., in A covenant to convey land in fee simple, subject to Deed Book 37, page 95, has conveyed to said the reserved right in the grantor to all the coal underly- Ruff all the coal underlying the piece of land, ing the same, does not bind the covenantee to accept a | afterwards agreed to be sold to the defendant, except the three-foot vein and the five-foot vein, I R. H. Lindsey (with whom were Boyle & 'with the right to mine, extract, and dispose of Mestrezat), for defendant in error. the entire amount and body of coal underlying That the Court below was right in treating this said tracts, without reservation, substitution, or action of covenant as a substitute for a bill in liability for damages, together with all privileges, equity for specific performance is clear. It was right of way, etc., necessary for the convenient a suit brought to recover the first payment upon mining and transporting of the same, with the a contract for the sale of real estate, and the right also to transport through drifts, shafts, defendant had the right to interpose the same slopes, headings, entries, rooms, passages, ways, defences that he might have set up in an answer, if etc., used for transporting the same, any coal or the plaintiff had filed a bill in equity for the mineral from adjacent or other tracts of land,' specific performance of that contract. The case and afterwards by contract now sued on, agreed of Herzberg v. Irwin (11 Nor. 48) is similar, and to sell to defendant the said land less the coal this Court there reiterates the opinion many underlying the same, and stipulated that the times before expressed, that such a suit was a deed was not to convey any of the coal under-substitute for a bill in equity to be governed by lying said land, without more, plaintiff cannot the same principle. enforce said agreement and recover in this Nicol v. Carr, 11 Casey, 381. action, because the defendant cannot have what he would otherwise be entitled to under his agree-had already been conveyed to Ruff, viz., "the ment on account of the right and privileges so right to mine, extract, and dispose of the enas aforesaid granted to said Ruff.” tire amount or body of coal underlying said tract, without reservation, substitution, or liability for damages, together with all privileges, rights of way, etc., necessary for the convenient mining and transporting of the same, with the right also to transport through drifts, headings, entries, rooms, passages, ways, etc., needed for transporting the same, any coal or minerals from adjacent or other tracts of land.” The Court affirmed the point, and instructed the jury to render a verdict in favor of the defendant. Verdict and judgment accordingly, thereupon the plaintiff took this writ, assigning for error the affirmance of the defendant's point, and the charge of the Court as above. Edward Campbell, for plaintiff in error. The Court seems to have considered this action as being in the nature of a bill in equity by a vendor to enforce specific performance of a contract for the sale of lands. If it had been such a bill itself, how could a Chancellor under the evidence have refused his decree for specific performance? The brief allusion in the article between the parties to this suit, to the conveyance of the coal to Ruff, is to be taken, as between the parties to that article, to be just as potential as if that whole conveyance had been incorporated in their agreement by way of exception. How else can this matter stand? Ruff's deed had been recorded a year and a half when Rist buys from the plaintiff in error. Suppose the plaintiff in error had agreed, instead of accepting the Ruff purchase as he did, specifically to sell to Rist all the Connellsville vein of coking coal and the same privileges which he before sold to Ruff, and besides that, to sell Rist the surface, Ruff's deed being on record at the time of the making of the contract, what right would Rist have to withhold any part of the consideration money? The law would hold Rist to know as well as it would hold Pegg to know, that Pegg could not convey what he did not own, and, in the absence of fraud, accident, or mistake, the utmost that Risk could ask would be a reasonable abatement on the purchase-money, and it is very doubtful whether he could obtain that. The deed professed to convey to Rist what O. C. R. R. Co. v. R. R. Co., 7 Smith, 72. March 3, 1884. THE COURT. Peter Pegg covenanted to convey the land, less the coal underlying the same, to Joseph J. Rist, in fee simple, clear of all incumbrances, on or before April 1, 1881; and Rist covenanted to pay $5000 on delivery of the deed, and $2000 on April 1, 1882. The agreement contains no reference to the deed by Pegg to Benjamin F. Ruff. Before the commencement of this action, Pegg executed and tendered a deed to Rist for the land, excepting the coal he had conveyed to Ruff by deed dated August 22, 1879, and all other coal underlying the land. By said deed to Ruff, Pegg conveyed all the coal underlying the land, except "the three-foot and the fivefoot veins," with the right to mine, extract, and dispose of the entire body of coal, "without reservation, substitution, or liability for damages, together with all privileges, rights of way, etc., necessary for the convenient mining and transporting of the same, with the right also to transport through the drifts, shafts, slopes, headings, entries, rooms, passages, ways, etc., used for transporting the same, any coal or minerals from adjacent or other tracts of land." That the deed to Ruff subjected the land to incumbrances not incident to the convenient mining of the coal under the same, is too plain for question. Were it conceded that a grant of the coal includes the right to remove the whole of it, without liability for damages to the owner of the surface land, beyond that Ruff has the right of way to transport any coal or minerals from other tracts. Such right of way is not embraced in the agreement between Pegg and Rist. Error to the Common Pleas of Luzerne County. Issue, to test the validity of a judgment opened by the Court, wherein E. E. Thomas, the judgment creditor was plaintiff, and E. E. Hendrick, the judgment debtor, was defendant. By agreement of counsel, the judgment was to stand for a declaration, with plea of payment with leave, etc. No money was payable to Pegg until delivery On the trial, before WOODWARD, J., the folof the deed, and Rist was not bound to accept lowing facts appeared: The judgment was for a deed subject to incumbrances not mentioned $8616. A levy had been made thereunder, and in the agreement. Ruff's deed was recorded at pending proceedings in inquisition, while there the time of making the contract, and Rist might was a legal controversy, Hendrick, the defendhave seen it, perhaps he did; but it does not ant, paid Thomas, the plaintiff, $6000, and reappear that he consented to take the land subject ceived his receipt, not under seal, as follows:to that incumbrance. The vendor was bound "Luzerne County, ss. by the terms of his contract; if he failed to clear off the incumbrances, he was unable to perform his covenant, and without performance he is not entitled to the purchase-money. (Withers v. Atkinson, I Watts, 236; Stitzel v. Kopp, 9 W. & S. 29.) Judgment-Restricted judgment—Payment— Accord and satisfaction-Execution. Payment, by way of compromise, of part of a judgment upon which execution can be issued against certain property only, constitutes a valid accord and satisfaction. A. held a judgment entered against B. upon a judgment bond. By the terms of the bond no judgment founded thereon could be collected from other than cer tain specified property. A. having issued execution on the judgment against other property of B., said parties, pending a rule to restrict the collection of the judgment and stay execution, agreed upon a compromise. A. accepted part of the judgment in cash in full of his claim, giving a full discharge and acquittance to B. B. also promised to procure A. employment, but no mention of this was made in the receipt: Held, that the compromise was founded upon a valuable consideration, and was binding on the parties. Held further, that upon failure of B. to procure A. employment, the remedy of the latter was to sue for breach of contract, and that he could not, on that account, elect to set the compromise aside, treat the sum paid him as a payment on account, and issue an alias writ of execution to collect the residue. "E. E. Thomas v. E. E. Hendrick. "In the Court of Common Pleas of said county of Luzerne, of Nov. Term, 1879, No. 200. Pleas, of October Term, 1873, No. 1828. "And now, to wit, January sixth, A.D. 1881, received This receipt was attached to the writ, and it was stayed by plaintiff's counsel, but afterwards plaintiff's counsel detached the receipt. The judgment was not satisfied of record. Subsequently, on March 6, 1882, plaintiff issued an alias execution, when defendant applied for a rule to open the judgment, which was made absolute, and this issue framed. The plaintiff at the trial admitted the above receipt and settlement, but claimed that he was to have received, in addition to the $6000, a position as superintendent of a coal-breaker, and that defendant failed to get him this. (The facts are stated more at length in the opinion of the Supreme Court.) The Court charged the jury, inter alia, as follows: "If you believe the statements of the plaintiff as to the nature of this settlement, then besides the $6000 which he received in money, he was to have something else which he has not received, so far as the evidence shows, and if he is accurate, truthful, correct, his answer in rebuttal would be a good one under the circumstance." (First assignment of error.) is correct, his answer is made out. |