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5. That even if the defendant promised to re- not induced to purchase by the false representurn the purchase money after the sale to the tation. plaintiff, and he had been put in possession, In case for deceit, it is somewhat material under the pleadings, the plaintiff cannot re- that its requisites be established, and if any escover the amount in this form of action. An- sential point be wanting, the plaintiff ought swer.—This point is affirmed, but if the plaintiff | not to recover. Upon judgment in such action gove up possession on the promise of Cox to pay against the defendant, he is not entitled to the the money back, that is a consideration. (Fifth benefit of the statutes exempting property from assignment of error.)

execution of debt, and if he has no property, he After the jury had been for some time in con- may be arrested and imprisoned. That the sultation the court sent for them, and recharged defendant is indebted to the plaintiff upon conthem upon defendant's fifth point as follows: tract, should not be used as a make-weight “Plaintiff cannot recover, in this form, for that against him in a suit for his tort. contract, but it was evidence that he, defend- The evidence tended to show, and the jury ant, thought he was wrong and that he made a must have found, that the defendant bad made valid contract to pay it back.” (Sixth assign- a prior sale of part of the property to Ranalls, ment of error.)

who was in possession at the time plaintiff purVerdict and judgment for plaintiff for $261.65. chased. But there was also evidence tending Whereupon defendant took this writ, assigning to show that the sale to Ranalls was conditioned for error, inter alia, the admission of evidence upon his giving security, which he failed to do. and the answers to defendant's points as above If the plaintiff believed that because of Ranalls' set out.

failure to perform the condition, the contract

with him had ended, he was not guilty of deFor plaintiff in error, Joseph L. Tull, Esq.

ceit; though he might be answerable for breach This was an action on the case for deceit, of contract, if he failed to give possession to the while the testimony admitted went to show a plaintiff. The court affirmed the defendant's new contract to return the purchase money. It tbird point: “If the plaintiff knew of the was therefore inadmissible.

claim of ownership made by Ranalls to the staThe charge of the court in answer to the fifth ble before he purchased from the defendant, point was in effect to say that the defendant then, under the pleadings in the case, the plainbelow admitted he was wrong, and to get out of tiff cannot recover." We are not persuaded it promised to pay the money back.

that the words added to its affirmance, “if you

find that he knowingly bought it,” did any Contra, John Q. Williams, Esq.

injury, and the fourth assignment of error is The promise to return the money was part of not sustained. the res gestce of the transaction tending to show The fifth and sixth assignments embrace the the defendant's own conviction of the wrong of defendant's fifth point and the answer thereto: which he had been guilty.

“That even if the defendant promised to return

the purchase money after the sale to the plainOpinion by TRUNKEY, J. Filed May 22, 1882. tiff and he had been put in

tiff, and he had been put in possession, under The plaintiff avers that he was induced to the pleadings, the plaintiff cannot recover in purchase the lease, good wil, fixtures of a stable this form of action.Answer. “This point is by false and fraudulent representations of the affirmed, but if the plaintiff gave up possession defendant. His action is upon an alleged tort ; on the promise of Cox to pay the money back, not upon a contract. To support it, he must that is a consideration. Plaintiff cannot reshow that the representation was untrue; was cover, in this form, for that contract, but it is calculated to induce the plaintiff to act; and evidence that he, defendant, thought he was he, believing it, was induced to act accordingly. wrong, and that he made a valid contract to The representation must have been both false pay it back." We are of opinion that the point and fraudulent. A positive statement of a false- should have been affirmed without taking the hood, or suppression of material facts which the pith out of it. The answer should be taken as plaintiff ought to have known, would consti- a whole, for the court was entirely right in retute the falsity. As one of the questions relates calling the jury to give them any instruction to the defendant's good faith, if the jury believed which inadvertently had been omitted. Here that he honestly believed what he stated was the only inquiry is whether the instruction was true, the action would fail; for in such case the right. If the plaintiff's case depended on a representation was not fraudulent. And if the promise to refund the money, his action was plaintiff knew the truth of the matter, he was wrong. The court charged that there was not a valid sale of the lease to Ranalls, and that the judgment taken on the attachment. Held, that the defendant was seized of the possession of the

first attachment was abandoned. stable as against Ranalls. Affirmance of the John Wilkinson died in May, 1871, testate. fourth and sixth points laid the groundwork for The questions raised in the distribution of his the fifth. It is difficult to see how a contract,

estate grows out of claims of precedence of exemade after sale and delivery of possession, could cution creditors of his beneficiaries. The facts sustain an action, the gist of which was a false necessary to the decision of these questions are and fraudulent representation by the defend- | as follows: ant to the plaintiff's injury. There is evidence | By his will Mr. Wilkinson provided, inter that after the plaintiff was in possession of the alia, as follows: stable, and while Ranalls was scrambling for "I order and direct that my daughter, Ida it, the defendant promised to repay the money, Elenora Wilkinson, is to be supported out of the and the plaintiff gave up possession to Ranalls. I proceeds of my real estate, until she arrives at Evidently this is the contract and giving up of the age of twenty-one years, and that my execupossession to which the court referred in the tors loan to my sons Peter and John the sum of answer. The remark respecting it must have five hundred dollars, taking as security for the led the jury far from the gist of the case on trial. said loan of five hundred dollars, with its interNor was the mistake corrected by subsequently est, a mortgage on their share of the estate. telling them that the plaintiff cannot recover, “I do also empower my executors to sell and in this form, for that contract, but it was evi-l properly convey any real estate of which I may dence that he, defendant, thought it was wrong, die seized, as soon after my death as they may and that he made a valid contract to pay it deem fit, except my Penn street property, in the back." Here, again, the contract is given 12th Ward, city of Pittsburgh, which shall not prominence, and, with the context, was well be sold until my daughter Ida Elenora shall calculated to impress the jury that it told have arrived at the age of twenty-one years, at strongly against the defendant. Possibly, they which time all my real estate remaining unsold might have considered it as corroborative evi- shall be disposed of, and the money accruing dence, but they had no right to in fer from such therefrom be divided amongst my children in contract that the defendant had perpetrated a equal shares. * * * fraud in the sale of the property. Yet they “In case my heirs can agree upon a division were told it was evidence that he thought he of my real estate remaining unsold at the time was wrong, and the wrong the judge was talk- my daughter Ida Elenora arrives at age, I then ing about was the alleged fraud, not a breach order and direct that the same be done; if not, of contract. If this new contract was evidence then to be sold by my executors as herein before of the deceit averred in the pleadings, no other provided." testimony was necessary for its establishment. Ida Elenora Wilkinson attained her majority Parties would be exceedingly chary of making in 1878. The loan of $500 to Peter and John a contract for settlement of a dispute, if the Wilkinson was made, and their mortgage taken contract would be evidence of a prior fraud by by the executors as of the 19th day of Septemone upon the other.

ber, 1871. The executors also sold testator's real For the errors set out in the fifth and sixth estate, other than the Penn street property, on assignments the judgment must be reversed. the first day of February, 1883, and have brought

Judgment reversed and venire facias de novo the proceeds into the present account for distriawarded.

bution. The sale was made divested of the lien of the mortgage given by John and Peter Wilkinson, and it was conceded at the audit that it was entitled to priority of payment out of the

proceeds of the sale, over the execution attachIn Re Estate of JOHN WILKINSON, Deceased.

ments hereinafter mentioned.

At No. 383 March Term, 1876 (Common Pleas), (1.) The lien of an execution attachment does not cease

Robert Wailes entered judgment against John with the lien of the judgment on which it is based at

W. Wilkinson, and at No. 381 March Term, the expiration of five years. (2.) An intention to abandon first attachment may be

1876 (Common Pleas), against Peter Wilkinson, presumed from the acts of the plaintiff:

and on these judgments issued execution attachThus, an execution attachment was issued on a judg ments to Nos. 106 and 105 March Term, 1878, ment entered by confession in 1876 and served; in

respectively summoning the executors of the 1883 the judgment note was withdrawn by plaintiff from the record, re-entered and an execution attach- 1

will of John Wilkinson, deceased. No proceedment issued thereon with reference to the first, and I ings were had in the Common Pleas on these

Orphans' Court.

attachments after service. Subsequently the issued, which limits the time within which the plaintiff withdrew the notes on which the judg. ( plaintiff shall proceed to judgment: Neely v. ments had been entered, and again entered them Grantham, 58 Pa. St., 433; Cookson v. Turner, at No. 109 and 110 June Term, 1882, and upon 2 Binney, 453; Weber v. Carter, 1 Phila., 221; these judgments issued execution attachments Gemmil v. Butler, 4 Pa. St., 232. The service to June Term, 1883, and obtained judgments of the attachment gives the lien, and the lien so thereon, April 4, 1883.

| obtained continues until the attachment is disIt was objected to the first attachments issued: solved. There may no doubt be cases in which

That they have lost their lien by laches of abandonment of an attachment would be implaintiff in failing to duly prosecute them. plied from delay. But where even great delay

At No. 123 July Term, 1878, Nicholas Hack, | is explained satisfactorily it will not have that and at No. 63 July Term, 1882, Wm. M. Simcox, effect: Cookson v. Turner, supra. There is a respectively obtained judgment against Peter satisfactory explanation of the failure to proceed Wilkinson. On the former judgment execution to judgment on the original attachments issued attachment was issued, June 5, 1882, to No. 342 by Wailes. They were issued about the time July Term, 1882, and on the latter execution named by the testator for the sale of his real attachment was issued April 17, 1882, summon estate; and as the proceeds must come into the ing the executor of the will of John Wilkinson, Orphans' Court for distribution ; and that court deceased. No proceedings were had on these would have jurisdiction to determine all quesattachments after service. It was claimed, on tions involved (Lex's Appeal, 97 Pa. St., 289), behalf of these attachments, that they were en there could be no reason for incurring further titled to precedence on account of the laches of costs than those of issuance and service of the Wailes in the prosecution of the attachments attachments. If, therefore, the question of preon his original judgments. To this it was an- cedence turned upon delay, in prosecuting the swered, in support of the Wailes' attachments, original attachments issued by Wailes, there that it is the service of the attachment which can be little doubt that he would be entitled. operates to give the lien, and that the law does | But there is a more serious question involved. not limit its duration ; but that, if this is not It was held in Bank v. Mason, 4 Watts, 314, true, the judgments taken on the second at that the issuance of a second scire facias as an tachments issued by Wailes must give him pre-original evidenced an intention to abandon the cedence.

first; and that not having been issued within The executors advanced John W. Wilkinson five years from the entry of the judgment, the moneys on account of his shares on the — lien was gone. The same principle is applicable day of —- , 18—, for which they subsequently here. The second attachment was issued as an entered judgment and issued execution attach- original and can be accounted for only on the ment on his share of the estate. Judgment in theory of an intention to abandon the first. It the attachment was obtained April 4, 1883. The was for the same debt and against the same executors also claim precedence (1) because of fund. It was prosecuted to judgment, and the moneys advanced in distribution, and (2) be- first was not. It is presented here as the judgcause of judgment on their attachment.

ment of a court of competent jurisdiction; and

as a judgment, cannot be attacked here by other Opinion by HAWKINS, P.J. Filed May 14, 1883. claimants: Neff v. Barr, 14 S. & R., 166; Ul

There can be no reason to doubt that in the rich v. Vaneida, 1 P. & W., 245; Cyphert v. Mcdistribution to be made here the proceeds of Clune, 22 Pa. St., 195; Lowber's Appeal, 8 W. the sale of testator's land must be treated as per- & S., 387. As both attachments cannot be ensonal estate. This is the necessary result of the forced, and the debt thus collected twice, it must direction given by the testator to the executors be assumed, under all the circumstances of the to sell. The conversion was not the less com- case, that the intention was to abandon the first. plete in contemplation of law, because the bene- | Why this intention was formed it is not necesficiaries were given the privilege of taking the sary to inquire. land instead of its proceeds; that is a privilege The right of one attaching creditor to contest which they would have had without its expres- the claim of another is undoubted: Reed's Apsion in the will. Not having availed them- peal, 71 Pa. St., 378. selves of the privilege, they take the proceeds of The executors are entitled to reimbursements the land sold as legatees: Jones v. Caldwell, 97 | for advancements made, as against subsequent, Pa. St., 42.

but not as against prior, attachments. There is nothing in the Acts of Assembly, For attachments, Thomas Herriott, Esq. under which the attachments in this case were For executors, William M. McElroy.

Pittsburgh Legal Journal.

Supreme Court, Penn'a.

for my son, M. Swift Davis, shall have power

at their discretion, after the expiration of five ESTABLISHED 1853.

| (5) years from the date of my decease, if in their E. Y. BRECK," : : : : Editor.

judgment they shall deem it best, to give him, N.S., Vol. XIII. }

my said son, M. Swift Davis, full and complete 0. S., Vol. XXX.

No. 42.

control of his interest in my estate." PITTSBURGH, PA., MAY 30, 1883.

Testator's wife, Eliza C. Davis, and John Irwin, Jr., were the executors.

It was agreed that the debts of the testator absorbed all his personal estate, and that the

devisees, including the plaintiff, take only the WILLARD V. DAVIS.

real estate; that the defendant contracted to

purchase a portion of said real estate from said An attempt, in a will, after granting a fee simple absolute, to appoint a guardian ta take charge of the prop

devisees, and to pay the plaintiff for his sixteen erty for the life of the devisee, and to declare the one-hundredtbs interest therein the sum of one property free from liability for the debts of the owner, hundred and sixty dollars; but afterwards reis inconsistent with the grant. Especially it cannot be done without the use of apt

fused to complete the contract, averring that

the title and right of possession of plaintiff's inwords. A devise to M, of an undivided portion of testator's terest in said premises are in the trustees named estate, consisting of both real and personal property, in said will, and that plaintiff can not give a followed by a direction that the executors, as trustees, | valid title for the same. should take charge of said share, collect the proceeds and pay the same over to M., the principal, however, not to be impaired, and the said share not to be liable

Opinion by EWING, P. J. for any indebtedness of M., will not create a trust in If there be a valid trust in this case, in John the real property so devised.

| Irwin, Jr., it is an active trust, sufficient to Error to the Court of Common Pleas, No. 2, place the control of the property in the hands of Allegheny county.

| of the trustee and to sustain the provision exCase stated, in which M. Swift Davis was empting the property from the creditors of M. plaintiff and L. H. Willard, defendant, to de- S. Davis. termine whether or not the former took an es- A trust in lands is, in general terms, where tate in fee, under the will of his father, Robert one holds the legal title for the benefit of another. H. Davis, deceased, in certain real property; ! In this will the third section vests a fee simor, if said real estate vested in the testator's ple absolute in M. Swift Davis. Apt words in executors, as trustees for said plaintiff.

a succeeding part of the will might avoid or By his last will, duly proved and recorded, modify this devise. But the fourth section of the said Robert H. Davis gave to each one of the will does not put any title in John Irwin. three daughters, after payment of his debts, It but directs that he shall control the property twenty-eight one-hundredths of his estate, "and the terms might be held to apply to the perto my son, M. Swift Davis, sixteen one-hun-sonal estate only in the hands of the executors, dredths of the total amount of my estate, con- and for that it would be good. If there be a sisting of real estate and personal property of trust, for how long does it continue? There is whatsoever kind and wheresoever situated and no direction to pay proceeds to the children of found, excepting only wbatever items I may Davis. There is no attempt to create a trust for hereinafter dispose of.

the children or heirs of the devisor. If there “Fourth.-I hereby constitute and appoint be a trust in Irwin, it is either, but for the life my friend, Jobn Irwin, Jr., as trustee, to whom of M. S. Davis, with a right in the trustee to shall be given in charge by my executors the retain the property for himself after Davis' share of my son as above. Said trustee shall death, or the trust is but for life, with the fee collect the proceeds of said share, and shall pay simple in Davis after his own death. it over to my said son in quarterly payments, The attempt is, after granting a fee simple the principal not to be impaired by paying him absolute in M. S. Davis, to appoint a guardian more than what it may yield."

to take charge of the property for the life of the “The share here bequeathed to my son afore- devisee and to declare the property free from said, shall not be liable for any indebtedness of liability for the debts of the owner. This canbis."

not be done. It is inconsistent with the grant, In the codicil testator directs as follows: and especially it cannot be done without the "Item. It is my will that my beloved wife, use of apt words, which are wanting in this Eliza C. Davis, and John Irwin, Jr., trustees will.

And now, 18th September, 1882, after argu

RICHARDSON V. GLOCKNER. ment and upon consideration, the court being of the opinion that the law is with the plaintiff, Courts lean in favor of sustaining mechanic's lien when judgment is entered upon the case stated in the property is so described therein that those acfavor of plaintiff, for one hundred and sixty |

quainted with the neighborhood are able to identify it. dollars ($160) and costs of the suit.

| The mechanic's lien in this case was filed against “all

that certain two-story brick stable, having a front of To this order of judgment counsel for defend

20 feet and a depth of 88 feet, erected upon a lot situate ant excepted, and bill sealed for defendant, who in the Seventh ward, Allegheny, fronting 20 feet on thereupon took this writ, assigning the follow the eastern side of East street, and extending back 250 ing for error:

feet to Locust street." Held, that the description was

sufficient. 1. The court erred in holding that the will of Robert H. Davis did not create a valid and Error to the Court of Common Pleas, No. 2, effective trust in John Irwin, Jr., and Eliza C. of Allegheny county. Davis, in favor of his son, M. Swift Davis.

Scire facias sur mechanic's lien filed "against 2. The court erred in not finding that the all that certain two-story brick stable or buildwill of Robert H. Davis created an active trust ing, situate in the Seventh ward, Allegheny in the trustees named, which would prevent City, in the county aforesaid, and described as the cestui que trust from selling the property follows: Having a front 20 % 88 feet in depth, devised for his use.

and is built upon a lot having a front of 20 feet 3. The court erred in entering judgment on on the eastern side of East street, and extends the stated case in favor of the plaintiff.

back eastwardly, preserving the same width 4. The court erred in not entering judgment | 250 feet to Locust street, and the lot or piece in favor of the defendant.

of ground and curtilage appurtenant to said For plaintiff in error, Thos. M. Marshall, Esq.


On the trial, Andrew Spath, one of plaintiff's The reading of the will must convince any

witnesses, testified as follows: "I am acquainted fair mind that the intent of the testator was to

with the Richardson property on East street; it give the share of M. Swift Davis to trustees to

fronts on East street and the back part on Locust; prevent waste, or seizure by creditors. That

they call it Buente street; the property fronts this is an active trust is equally plain. The

on the eastern side of East street running back trustees are to act and use their own discretion in their actions.

to Locust; Locust street begins on East street

and makes a kind of angle about two hundred It is, therefore, not open to question that this

and fifty feet from East street." In answer to is an active trust: Rife v. Geyer, 9 P. F. Smith,

the question, How far is the Richardson prop393, and other kindred cases fully cover this one.

erty from the junction of Locust and East street, Contra, J. H. Baldwin, Esq.

witness replied: “The Hines property comes In order to create a trust it is necessary to between and it is sixty feet in width on East prevent the legal estate from vesting in the street-I dont know how much frontage the cestui que trust, and it is necessary that not Richardson property has, but it is about five or only the legal title, but the primary use should six hundred feet; it runs the entire length of vest in the trustee: Perry on Trusts, Sec. 304. Locust street. It runs from the Hines property

If the legal and equitable interests happen to and fronts on East street. The stable is located meet in the same person, the equitable is for- | close to the Hines property and fronts on East ever absorbed in the legal: Lewin on Trusts, *16. street. The street back they used to call Locust

Not only is the legal title vested in the de- street, they now call Buente street; they called fendant in error, but he is also the sole bene- | it by the latter name about two years. Locust ficiary of the alleged trust. He is to receive all street runs the same way as East street. There the proceeds. There is no deduction even for 1 is no other street, that they call Locust street, taxes and repairs.

| that I know of further up East street; there is Again, if this be a trust, it is without limita- / another Locust street on the other side of the tion. There is no devise over. Who shall take | hill above the Third ward school house. That the estate or its proceeds wheu M. Swift Davis doesn't run into East street at any place, and dies?

has nothing to do with that street that I know

of; this property is in the Twelfth ward. The PER CURIAM. Filed October 25, 1882.

other Locust street would be, some in the Third We affirm this judgment upon the opinion of ward and some in the Twelfth ward, it runs the learned president of the court below. | from the Third ward school house on the other

Judgment affirmed. side of the hill." It appears that when the

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