PENNSYLVANIA. SUPREME COURT. APPEAL OF Caroline SMITH. estate of her husband. The contract was dated September 26, 1867, about one month before her marriage to the testator. The testator, by this agreement, granted to a trustee a warehouse property on Front Street, near Market Street, in trust to permit the said Caro 1. In the absence of proof of fraud or con-line, after testator's death, to receive the rents cealment a widow cannot avoid an during her life; and the said Caroline after reantenuptial settlement. 2. Although fraud or concealment may 4. It is not essential to the validity of a 5. A widower fifty-two years of age, with six children and worth about $175,000, married a woman forty-three years old, who had no property. In an antenuptial settlement, she released, in consideration of real estate producing $1,200 a year, all her interest in his estate. The deed of settlement remained in the husband's possession and was never recorded. He died worth about $400,000. In addition to the real estate settled he bequeathed to her the interest of $15,000 for life. The residue of his estate he gave to his children. Held, that the settlement was valid and binding upon the wife. JAN (Argued Jan. 28, Decided Feb. 28, 1887.) leasing her thirds, covenanted that the testator should have the right to convey all the rest of his estate without her becoming a party to the deed or deeds of conveyance. The deed was not recorded until after the testator's death, and it was found among his papers by his legal representatives. The question does not seem to be attended must be admitted that the parties to an antewith difficulty. In the interest of the widow it nuptial settlement stand in a relation which compels the exercise of the largest good faith, and excludes from their dealings the thought of any material concealment by either. Kline v. Kline, 57 Pa. 120. This doctrine has been so sedulously adhered to that a provision made by the prospective husband, which was manifestly disproportioned to the value of his estate, has been held to raise a presumption that he has practiced such concealment. Bierer's App. 92 Pa. 265; Kline's Est. 64 Pa. 122. The principle was invoked by the widow of Stephen Smith. She showed that the testator's real estate was valued at $56,500 or thereabouts, and that the inventory of his personal estate footed up $358,493.10, with a net fund for distribution of $334,543.83. The property set apart for her use was assessed for taxation in the sum of $12,500, and has now a rental value of $1,200 per annum, out of which $231.25 must be deducted for taxes. She also showed that this property is in bad order, and that when the testator last repaired it he declared that he did so only to keep it in tenantable conbe-dition during his own life. He did not record the deed of settlement, nor deliver it to the trustee, but kept it among his own papers. These circumstances, it was claimed, were sufficiently indicative of bad faith to cast upon his legal representatives the burden of showing the contrary. ANUARY Term, 1886, No. 431, E. D., fore Mercur, Ch. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Appeal from a decree of the Orphans' Court of Philadelphia County, confirming an adjudication. Affirmed. The facts, as they appeared at the audit of the account of Alfred Smith and Horace F. Smith, executors of Stephen Smith, deceased, before ASHMAN, J., were stated in the adjudication, which was as follows: Stephen Smith died October 9, 1884, leaving a will dated November 9, 1878, and a codicil dated May 11, 1881, which were afterwards duly proved, and by which he gave to his executors $15,000, in trust to pay the income to his wife Caroline Smith during her life or widowhood; the principal thereafter to fall into the residuary estate. He gave the residue of his estate as follows (to his children) * * * He left surviving, his widow (by a second marriage), Caroline Smith, and six children, all by his first marriage, viz.: Alfred, Alonzo, Angelia, Stephen, Ellwood, and Horace F. Smith; all being of full age. The widow elected to take against the will. Her right to do so was contested, upon the ground that in consideration of a certain interest conveyed to her by an antenuptial settle ment, she had released all further claim to the In answer to this [the solemn admission of the widow, that the testator had apprised her of the value of his estate, which appeared in the deed, may be used in two ways; it either throws upon her the burden of showing that she had been deceived; or if the onus is with the accountants, it is affirmative proof in their hands that she was not deceived.] The language of her covenant is: "The said Caroline Reimer, after full consideration, and with full knowledge of all the other estate of the said Stephen Smith, in consideration of said intended marriage, and of the provisions of this deed, and for other good and valuable consideration her thereunto moving, doth," etc. [The law presumes that she understood the force of these expressions when she used them over her signature.] But the case does not rest upon her admissions. When the contract was executed, the present widow was forty-three years of age, without property, and earning her livelihood, as an assistant in her brother's photograph establishment. The testator was fifty-two years old, with a family of six children. His estate was then worth, as shown by his books, $129,396.16, personalty and $50,000 in realty, and the property which he assigned to his wife yields now, at a time of low rentals, nearly $1,000 a year net. [It is wholly outside the question, that the estate has enormously enhanced in value since the marriage contract], because the possibility both of its increase and diminution was a problem which was mutually waived by the parties. The only flaw in the testator's case is his fail ure to record the deed. [He certainly did not intend to destroy it, because it was found as carefully preserved as his own deeds.] [He did not convey the property, although the deed of settlement empowered him to convey it, without his wife's joinder, but subject to the trust. Hence, the widow has suffered no injury from his omission.] But the testator did not stand upon the legal provision which he had made for his wife; he supplemented it by a testamentary gift of the income of $15,000 for her life. Grouping these circumstances together, the auditing judge feels bound to decree that [the widow's right of election is gone.] If authority were needed to show that the consideration was adequate, and that it was not affected by the after acquisition of property by the husband, he would cite Ludwig's App. 101 Pa. 535, and Rahe v. Bank, 96 Pa. 128. *** And now, December 23, 1885, the account, subject to the payment of clerk's costs, is confirmed nisi. To this adjudication the widow filed exceptions, inter alia, to the findings inclosed in brackets above; but the court dismissed them and confirmed the adjudication absolutely. The assignment of error specified, inter alia, these findings. Messrs. George Robinson and L. R. Fletcher, for appellant: The antenuptial contract was signed by the husband and wife and the trustee on the 26th day of September, 1867, and the marriage did not take place until nearly a month afterwards. There was no express evidence of a delivery of the contract, and it is submitted that from the circumstances of the case delivery should not be presumed. The trustee was a party to the contract, and his acceptance of the trust was nothing more than an execution of the contract, for until the marriage took place the contract was executory. But if it is to be considered that the contract was delivered, it is submitted that the fact that the husband recognized the wife's rights, by her joining in a deed of conveyance, raises the presumption that at the time of the conveyance there had been a revocation of the contract, or that he did not consider it in force, and that the burden is on his legal representatives to overcome the presumption. The fact that the husband, by his will, made a bequest to his wife should have but little weight; for although it may appear that he considered the contract in force, at the time he made the will, if by any act it had been revoked, he could not by this means revive it. Marriage articles which may affect the title to land should be recorded. Foster v. Whitehill, 2 Yeates, 259. The contract not being recorded, it was possible for the husband to defeat the wife in the provision made for her. He could have mortgaged the property or even sold it; and in the case of sale she would have been entitled only to her thirds after his death. Wilson v. McCullough, 23 Pa. 440. If the provision for the wife be disproportionate to the means of the husband, it raises the presumption of designed concealment, and throws on him and his representatives the burden of proof. Kline's Est. 64 Pa. 122. Messrs. H.Clay Haines, Bowers, Gormley & Snare and Crawford & Dallas, for appellees: It is the marriage, and not the fortune which supports and upholds an antenuptial settlement, marriage being the highest consideration. Nairn v. Prouse, 6 Ves. 752; Ford v. Stuart, 15 Beav. 499; Peachy, Marriage Settlements, 56; Magniac v. Thompson, 7 Pet. 393, 394 (32 U. S. bk. 8 L. ed. 725). Delivery may be either actual, by doing something and saying nothing, or else verbal, by saying something and doing nothing, or by both. 1 Shep. Touch. 578. Dayton v. Newman, 19 Pa. 199. If one execute a deed with a view to its being delivered, that is, if he does all that is necessary to perfect it, with the intention of having it delivered to the grantee and it afterwards comes into his hands, a jury may infer the assent of the grantor and the fact of delivery. Arrison v. Harmstead, 2 Pa. 193. Where an instrument is formally sealed and delivered, and there is nothing to qualify the delivery but the keeping of the deed in the hands of the executing party, nothing to show that he did not intend it to operate immediately, that is a valid and effectual deed, and delivery to the party who is to take by it, or any other person for his use, is not essential. Pa. Co. v. Dovey, 64 Pa. 267. That the settlement was not recorded does not invalidate it. In some States, statutory provisions for recording marriage settlements exist, some expressly to protect creditors, some general; but even there the contract, although unrecorded, is good between the parties. Stewart, Mar. & Div. § 36 and notes; Tyler, Coverture, § 328. In this State there is no statutory requirement for recording articles of marriage settlement, except that so far as they relate to interest in land, they fall under the general Recording Acts, and if not recorded are good, except as against bona fide purchasers for value without notice, and this is the whole effect of the cases of Foster v. Whitehall, 2 Yeates, 259, and Wilson v. McCullough, 23 Pa. 440. Any provision which an adult before marIf of comriage agrees to accept is sufficient. petent age she may bargain away her rights under a marriage contract, as her husband could have done. Bishop, Mar. Wom. § 422; Schouler, Husb. & W. § 360; on Domestic Relations, § 183. The whole effect of the appellant's contention would be to pass a large part of the decedent's estate from his children through the childless wife to strangers to his blood. Mr. Justice Paxson delivered the opinion of the court: We see no reason why the appellant should not be held to her antenuptial contract. It is true she has repented of her bargain. This, however, is not sufficient in the absence of proof of fraud or concealment practiced upon her in the procurement of said contract. While her husband was a much richer man at the time of his death than when the contract was made, yet this fact does not enter into the question of its validity. Aside from this, he left her by his will the income of $15,000 for her life, which was over and above what he was bound to do by the contract. We cannot say that the provision made for her was so disproportioned to his means as to create a presumption of fraud and concealment. She was a second wife, past middle age, and her husband had a large family of children living. She was not the mother of his children, nor had she aided him in the accumulation of his fortune. Situated as the appellant was at that time, she probably thought that a provision of about $1,200 a year after her husband's death was reasonable. At any rate she agreed to it; and having enjoyed the benefits of the contract she cannot now repudiate it for no better reason than that she would like to have more. She nowhere alleges that she was deceived; on the contrary, she declared over her hand and seal in the contract itself that she entered into it "after full consideration, and with full knowledge of all the other estate of the said Stephen Smith." The deed was not recorded and was found in Stephen Smith's possession after his death. From this it was argued that there was no delivery. We are unable to see the force of this. He was the proper custodian of the paper, as he was the party alone interested in its preservation. It would have been an act of folly to give it to his wife; it was not recorded and her interests would have been promoted by its destruction. It was not essential to deliver it to the trustee; the latter had no duties to perform during Stephen Smith's life. Nor was recording essential to its validity. The appellant has no case. The decree is affirmed and the appeal dismissed, at the costs of the appellant. H. M. GROVE, Piff. in Err., v. George McALEVY et al. 1. In an action of trespass for entering premises of plaintiff and destroying herbage, etc., therein growing, held, that a division fence established by owners of adjoining lands, and acquiesced in by them and their successors for twenty-one years, is conclusive upon them and those holding under them. 2. Held, further, that plaintiff could not recover unless he was in actual possession of the premises at the time of the alleged trespass. (Argued Feb. 3, Decided Feb. 14, 1887.) JANU ANUARY Term, 1887, No. 225, E. D., before Mercur, Ch. J., Gordon, Paxson, Sterrett, Green and Clark, JJ. Error to the Common Pleas of Crawford County, to review a judgment on a verdict for defendants in an action of trespass on lands. Affirmed. The facts sufficiently appear from the charge of the court to the jury given below. The plaintiff presented the following points: 1. If the jury find from the evidence that the boundary line between the lands of the plaintiff and defendants was fixed and established in the year 1851 by William Williams and John B. Hawthorn, and the division fence between said parties' lands was built upon the line so fixed and established, and was acquiesced in by the said Williams and Hawthorn, and their respective successors in title, for upwards of twentyone years, the said line cannot now be altered, and their verdict should be for the plaintiff. 2. If the jury believe that at the time of the purchase by Hawthorn from Williams the vendor and vendee went to the ground and marked upon it the north line of the land bought by Hawthorn from Williams, the line so marked fixes the northern limit of the purchase by Hawthorn and all claiming under him. 3. If the jury should find that at the time Hawthorn purchased by articles of agreement from William Williams, or shortly thereafter, and more than twenty-one years before the committing of the trespass or entry by the defendants, they, Williams and Hawthorn, consented to a boundary line between them, and the same had been acquiesced in for upwards of twentyone years, their verdict should be for the plaintiff. 4. If when Hawthorn bought from Williams, Williams was the owner of other land south of the piece he was conveying to Hawthorn, and he conveyed by courses and distances, and in pursuance thereof the parties ran the lines, and agreed upon the line between them and erected a fence thereon, agreeing that it should be the division fence or line between them, such acts on the part of Williams and Hawthorn were conclusive upon them, and those holding under them, and the verdict should be for the plaintiff. The defendants presented no points. The court, CHURCH, P. J., charged the jury as follows: This is an action of trespass brought by H. M. Grove, against George and Thomas McAlevy, to recover damages for an alleged entering upon the freehold of the plaintiff, and the destruction of certain herbage, timber, fruit trees and shrubs growing thereon. [It seems that the defendants were in possession of these premises; that is to say, they had the actual foot possession of the premises at the time of the trespass alleged to have been committed.] An action of trespass sounds, it being a possessory action, rather of an action to recover the foot possession. A party plaintiff could not recover anything, unless he was in actual possession of the premises at the time of the trespass alleged to be committed. In this case the plaintiff was in possession of his strawberry patch and some other of his property. The defendants have pleaded that it is their own tenement, their own free tene Some other testimony, which is altogether for you, is the testimony of Mr. Lippincott, who appeared on the ground two or three weeks ago, and surveyed this ground. [He took the deed from Williams to Hawthorn; according to the description in that deed he began and made a survey. You heard him describe what he did, and what he found in pursuance of that survey. When he found the courses and distances in this deed, he found marked corners and lines just exactly where these deeds put them.] The deeds were made in 1860, and the agreement in 1851. The witness says the place where the defendants claim to now, namely: on the north, comes, so far as courses and distances are concerned, up to these deeds; and that on the line claimed to by the plaintiff, he found no mark or any line there at all. He found a fence partly rail and partly brush. ment, that they entered upon. That plea, hav- | I say slight, but it is sufficient for you to coning been pleaded, raises the issue of title upon sider, and as such you will consider it.] the strip of property upon which a trespass has been committed. It raises the question of whether the strip of land five or six rods wide and some rods long resides in and belongs to the plaintiff or the defendants; and that is the first question you have to determine, because if you determine it against the plaintiff, you have nothing further to say, and no damage is committed. If you find that the property is the legal, lawful property of the plaintiff, he has the title thereto, then you determine the question of damages; how much the plaintiff has been damnified. But you will first direct your attention to the question as to whether the property belongs to the plantiff or defendants. [The defendants allege that this property once belonged to Mr. Shubal Williams, who deeded it prior to 1860.] He owned both pieces of property, on the north and on the south, the plaintiff, Grove, on the north, and the defendants on the south; and he sold the piece on the south to John B. Hawthorn, and thence by sundry conveyances the title became vested in A. D. Smith, about 1873, and from Smith to McAlevy. He owned the property on the north that Grove bought. And they allege that, no matter where the real line may be, Shubal Williams, owning the whole property, and he selling a number of acres to Hawthorn, and he to Smith, under whom McAlevy claims, that he surveyed off a certain piece to Hawthorn, and that being the case that is the line that must govern these pieces. [I cannot do better, although somewhat out of order, to state succinctly the claim of the defendants, than by reading the defendants' points of law.] Defendants' first point read and affirmed. [So you will perceive that from the defendants' standpoint their statement of law is correct] provided you believe the evidence as to establishing and marking out the lines upon the ground and building fences. [But all these points are hypothetically stated, that is, if you believe so and so, and that it is the line claimed to by the defendants. This is all true.] [To arrive at the facts in this case you have to determine from the evidence whether the line claimed to by Grove is the line run by Williams and Hawthorn. If it is they are entitled to recover.] It is for you to determine under the conflicting evidence, and under all the evidence, whether the line Hawthorn bought to, and subsequently Smith, and subsequently McAlevy, these defendants, bought, was the line that Mr. Lippincott surveyed, was the line they bought to, and are entitled to maintain and hold in this suit. And as a part of that consideration, you will consider whether the fence put there by McAlevy some time ago, last August or October, is, as the defendants claim, upon the line marked by Williams and Hawthorn. I say nothing about the weight of the evidence; you will consider all the evidence in the case bearing upon that. It is alleged that these witnesses upon the part of the plaintiff, however truthful they may be about Williams and Hawthorn putting and designating a line, are mistaken about the fence of the plaintiff's being upon that line. But they say that the fence put there by the defendants, was put there on the ruins of the very fence Williams and Hawthorn laid out. The discoveries of Mr. Lippincott, when he surveyed the grounds by courses and distances of that deed, the marks on the ground, the corners and lines, are evidence-you have a right to consider as to whether the fence upon the north is the true line fence, or whether that upon the south is the true line fence. If you find that the title is in the defendants, then they have committed no trespass, they have done that which they had a right to do, put their fence there, cut down timber and plow up the strawberry patch. If you find the property is the property of the plaintiff, then you determine the question That was argued very fully on Saturday, of damages; and there is a variety of opinions and I have nothing to say upon the probabili- as to the value of his strawberry patch. It conties or improbabilities of witnesses being cor-sisted of an old bed of plants, which of them rect. year's crop. We say to you that the plaintiff cannot recover for the next year's crop. selves were not worth very much, and the value [It is alleged on the part of the plaintiff that consisted mostly in the runners, susceptible of the sons of Shubal Williams are talking about being transplanted. One witness puts the dama different fence, and that the fence that Haw-ages at $100 for that and at $200 for the next thorn and Williams run is not the one the plaintiff claims to now. It is an old fence on which the defendants, Smith or McAlevy, put their fence afterwards. There is some evidence, it may be slight, to be sure, that the fence put on the ground four or five rods north is upon the remains or ruins of the old fence. If you find for the plaintiff, you find what that piece of strawberry patch was worth, not what it was worth to the plaintiff, but what it was worth, lying there, in the market. Then there was some wood and some rails taken away, variously estimated at from $15 to $18. The question of damages is altogether for you. We simply state to you that when one of these witnesses calls damages for next year's crop, it is not an element to be considered by you. It is just what those strawberry plants were worth, the same as if they were so many oak, pine, or hemlock trees on the ground, provided you find for the plaintiff at all. If you find for the defendants you have nothing to say as to the amount of damages. If you find for the plaintiff under the evidence, and under the rules we have given you, you find what the plaintiff has reasonably suffered. The jury returned a verdict for defendants. The assignments of error specified the portions of the charge inclosed in brackets; the action of the court in not answering all the plaintiff's points affirmatively without qualification, and in not affirming without qualification plaintiff's points as plaintiff's points; and the whole charge of the court, as being erroneous and misleading, and tending to prejudice the cause of plaintiff in the minds of the jury. Messrs. Haskins & McClintock and Thomas Roddy, for plaintiff in error: The charge of the court was prejudicial. In the second paragraph of the charge the court says: "It seems the defendants were in possession," etc.; when in fact the plaintiff was in possession as is admitted by all parties. The court also says in the charge: "It is alleged on the part of the plaintiff that the sons of Shubal Williams are talking about a different fence," etc. There was no such allegation or contention by plaintiff, but by the defendants. Again, the court says: "I cannot do better *** to state succinctly the claim of the defendants, than by reading the defendants' points of law." The court then immediately follows this by reading and affirming plaintiff's points and then says: "So you will perceive that from defendants' standpoint their statement of law is correct. The defendants presented no points. Messrs. W. R. Bole and J. W. Smith, for defendants in error: Mary J. SOWERS, Plff. in Err., v. Ellen LOWE et al. 1. The natural flow of water from a higher to a lower lot can not, as a general rule, give a cause of action to one injured thereby. 2. Plaintiff and defendant owned adjacent lots. Plaintiff's house was close to the line; defendant's thirty-two feet from it. The intervening space was sandy, and sloped from defendant's house to plaintiff's. Plaintiff's cellar was always dry until defendant changed the spouting which had formerly discharged into the street the water from defendant's house, and turned the spouts upon the space between the houses. The water then percolated through the sand and plaintiff's cellar became damp and the house was damaged. Held, that plaintiff had no right of action against defendant for the damage thus caused. (Argued Feb.--,Decided February 28, 1887.) ANUARY Term, 1886, No. 298, E. D. JANUA Error to the Common Pleas of Lycoming nonsuit in an action of trespass on the case. County, to review a judgment of compulsory Affirmed. CUMMIN, P. J., were stated in his opinion, The facts as they appeared at the trial before overruling a motion to take off the nonsuit, which was as follows: This was an action to recover damages from the defendants for injuries done to plaintiff's caused the surplus water from their land to flow real estate, by reason of the defendants having on the land of the plaintiff. rected a nonsuit to be entered, with leave to file When plaintiff closed her case the court dia motion to take it off. The parties to this suit own adjoining lots of land on the west side of Market Street, between the P. & E. R. R. and Fourth Street, in the City of Williamsport. The plaintiff showed this state of facts: railroad to Fourth Street; that her lot had a That the land naturally descended from the frontage of twenty-six feet, which was nearly all taken up with her dwelling house; that defendants owned the next lot above her, which house was on the upper part of their lot, leav was fifty-two feet in width; that defendants' It is true the stenographer's report of the charge makes His Honor call the plaintiff's points, defendants' points. That is as likely to be the stenographer's mistake as the court's. It is probable if such a lapsus linguæ had occurred, the counsel would have corrected it at the time. But, if we concede that the court by inadvertence spoke as the stenographer's notes show, the mistake was too palpable and ing an open space on defendants' lot of about patent to mislead the jury or injure the plaintiff and defendants; that the ground about there thirty-two feet between the houses of the plaintiff. The plaintiff's points had been presented and read to the court by counsel; and, the defendants having no points, the jury could not be misled by the court's calling them defendants' points. Per Curiam: 10 is of a sandy character and naturally descends towards plaintiff's property; that previous to 1882 plaintiff's cellar had always been dry; that during that year the defendants changed the spouting on their house, which theretofore cast the rain water on the street, so that this water was thereafter cast upon this open space between the houses; that sometime afterwards water was found in plaintiff's cellar after heavy rains, or in the spring when the snow and ice which had accumulated on this open space would melt; that in 1884, at the request of the plaintiff, the defendants changed their spout 463 |