so ascertained you may add-and it would be which it can be distinguished, and therefore proper to add-interest to this date. For plaintiff, L. B. Duff, Esq. Contra, Messrs. Knox & Reed. Orphans' Court. distribution is to be made pro rata to all the creditors. In Jones v. The Bank, 42 Pa. St., 536, and 44 Id. 253, the bank account was opened in the name of "Thomas C. Jones, agent," and included the moneys of different persons, and although Mr. Justice READ strongly recom In Re Estate of CHARLES W. RADO, Deceased. mended that in such accounts the principals Where a bank account is opened in the name of one as agent, in which is deposited money belonging to differ ent principals, it is not necessary that the names of the principals should be designated on the face of the deposit to preserve the fund for them as against general creditors of the agent. Decedent collected moneys belonging to different persons as agent and deposited them in the same bank account, the word "agt" following his name in the account. None of his own money being deposited therein. The balance due on said account was the fund for distribution, and the estate being insolvent: Held, that the debts due the cestuis que trustent of the decedent were preferred to those due general creditors. Decedent appropriated a portion of the trust moneys to his own use, it not appearing whose money he thus appropriated. Held, that distribution should be made to the trust creditors pro rata. แ C. W. Rado, the decedent, was an alderman and real estate and fire insurance agent in Allegheny City. The rents and premiums on policies collected by him as agent, and other trust moneys received by him, he deposited in the Enterprise Savings Bank, the word "agt" following his name in the account. This was the only bank account he kept. At his death there was a balance to his credit on said account of $1,147.88, which was made up entirely of trust moneys. His administrator received this balance, has charged himself with it in his account, and it is the fund for distribution. He was indebted to Schomaker & Co. on a judgment obtained against him in the sum of $1,607.42, with interest from February 7, 1881, upon which a claim was presented against his estate. Numerous claims were also presented by persons and insurance companies, for whom he collected and received money as agent, amounting in the aggregate to $- - The balance in the hands of the accountant for distribution is $1,006.67. Opinion by OVER, J. Filed April 28, 1883. As the fund for distribution is not sufficient to pay all the creditors in full, the question arises as to whether the debts due the cestuis que trustent of the decedent are preferred. It is contended that, as the bank account did not designate the persons for whom he was agent, and as the money belonging to different persons was mingled, that it has no ear marks by should be designated; yet as it was shown that the account was strictly and exclusively an agency account, composed entirely of trust moneys, it was held that Jones' general creditors could not recover it on execution attachments. It would certainly be a great hardship if it were necessary to designate the principals to protect trust moneys from liability for an agent's debts. As in all probability no bank, in a case like this, where the principals were numerous and the amounts due each small, would be willing to open an account in that way. And the result would be that a person involved in debt as the decedent was could not be safely employed to make collections, and might, therefore, be deprived of the means of subsistence. That the balance in this account was made up entirely of trust funds admits of no doubt. And that it was strictly and exclusively an agency account, composed entirely of the money of other persons, is shown by the weight of the evidence. His clerk testified that he made most of the collections and deposited them in bank, and that it was the custom of the decedent to deposit the moneys collected by him. He also testified that he deposited the money he received from all sources in this account, but as the decedent does not appear to have had any other income than from his commissions on rents and fees as alderman, which, according to his own statement, were not sufficient to buy him a suit of clothes, and as he evidently appropriated a portion of the trust money in his hands to his own use, it is apparent that he had no money of his own to deposit, and that the account was composed entirely of trust funds. It seems clear, then, under the authority of Jones v. The Bank, supra, and The Bank v. King, 57 Pa. St., 202, that the whole of the fund is to be distributed to the cestuis que trustent of the decedent. It is not sufficient to pay them in full, but as it does not appear whose money he appropriated to his own use, distribution must be made to them pro rata. For accountant, N. W. Shafer, Esq. For Schomaker & Co., J. M. Acheson, Esq. For trust creditors, Messrs. I. N. Patterson, S. W. Cunningham and T. D. Chantler. judicious counselor. He was a man of spotless integrity and honor in his profession. In his social and private life, he left no duty under human limitations undone or even carelessly performed, and was especially noted for his large and unostentatious charities. He crowned all other excellencies by a devotion to religious duties which was altogether free from parade or intolerance, and evidently guided and governed his life. That life is a conspicuous example and ought to be to us a potent inspiration. Equable in temper and gentle in manners, he made no enemies and gave no occasion for hostility. Happy are they who can live so beloved and die so hon. ored and lamented. Remarks were made by H. W. Weir, S. Schoyer, Jr., A. M. Watson and Thos. M. Marshall, Esqs., and it was ordered that a copy of Action of the Allegheny County Bar on the Death of the resolution be presented to the family of Mr. G. L. B. Fetterman, Esq. FETTERMAN. A meeting of the members of the Bar of this EX-CHIEF JUSTICE GEORGE SHARSWOOD. county was held on the 28th ult. to take action on the death of G. L. B. FETTERMAN, Esq. The Hon. J. W. F. WHITE presided, and the vicechairmen were the other county judges. C. F. McKenna, Charles B. Kenny and Josiah Cohen, Esqs., were elected secretaries. On motion the following committee on resolution was appointed: W. D. Moore, D. D. Bruce, M. Swartzwelder, Malcolm Hay, Thos. M. Marshall, John Coyle and S. Schoyer, Jr. The committee reported the following minute which was unanimously adopted: Once more, and after but brief interval since we were last convened to mourn the death of one of our number, the memory of another, called in the prime of his life and the fullness of his power, from the joys and duties of this earthly existence to the unknown future whither all our steps are tending. On the evening of the 25th of May, 1883, G. L. B. FETTERMAN, Esq., died suddenly; though he had been ill for some months, but little apprehension was entertained of death, and the news came to his many friends with the shock of a painful surprise. He had the honor to have General Lafayette, who was in 1824-5 visiting this country, and was well known to and on friendly relations with the family as his godfather. His classical education was completed at Mount St. Mary's College, Emmittsburg, Md., and at its conclusion he entered upon his legal studies in the office of Messrs. Loomis & Metcalf and N. P. Fetterman, Esq., and was admitted we are summond together to pay our kindly tribute to to the Bar in 1850. He continued in active practice in partnership with his uncle until the death of the latter and until his own last illness. He came of a distinguished family of lawyers. His father, W. W. Fetterman, Esq., was a leading practitioner for almost a generation; his uncle, N. P. Fetterman, Esq., already spoken of, in all the counties of Western Pennsylvania, especially Beaver and Allegheny, was known and honored in his profession. His cousin, C. S. Fetterman, has continued the family record, and for a time occupied the Bench of Common Pleas of this county. The subject of our notice was surrounded, therefore, by associations connecting him from his youth with our profession, and it may be added, by such associations as were calculated to stimulate and guide an honorable ambition. That he profited by them, it is hardly necessary to say to those who knew him. He was not a brilliant advocate, but a wise, thoughtful and The Hon. GEORGE SHARSWOOD, LL. D., exChief Justice of the Supreme Court, died in Philadelphia on the morning of May 28th ult., at 6:45 o'clock. He was born in the city of Philadelphia July 7, 1810. After graduation by the University of Pennsylvania in 1828, he began the study of law under the preceptorship of Joseph R. Ingersoll, and was admitted to the Bar on September 5, 1831. In 1835 he was chosen one of the vice-provosts of the Philadelphia Law Academy. In 1837 he was elected to the Legislature of Pennsylvania, and the next year to the Select Council of Philadelphia. In 1841 and 1842 he was re-elected to the Legislature. The affairs of the United States Bank having become involved, a committee of stockholders was chosen to examine its condition, of which GEORGE SHARSWOOD was made secretary. He prepared the report, which will be found in the columns of the United States Gazette of April 8, 1841. He was also the author of the second report of this committee, designed to answer attacks upon the former report. On April 8, 1845, Governor Shunk appointed him an Associate Judge of the District Court of Philadelphia. Judge JONES having resigned the presidency of this court, Judge SHARSWOOD was appointed its president on February 1, 1848. In 1850 he was chosen Professor of Law in the University of Pennsylvania. By a constitutional amendment of that year the judiciary was made elective. Judge SHARSWOOD was nominated by the Democratic, the Whig, the Native American, Temperance, and Workingmen's Judicial Conventions; and his election following of course, he was continued on the Bench as President Judge of the District Court for the term of ten years, beginning January, 1852. In the same year a full faculty in Law Supreme Court, Penn’a. NICHOLS v. McDONALD. having been organized for the University, Judge SHARSWOOD was chosen to the Chair of Institutes of Law, which he occupied until April 31, 1868. In 1854 he became Provost of the Law Academy. In 1861 he was re-elected President Judge of the District Court without opposition. Prior to the Act of 1881 a grantor might prove by parol In 1867 he was elected an Associate Justice of the Supreme Court of Pennsylvania, and took that his deed, which purports to be a conveyance, is in reality only security for a debt or liability. terms, and seeks to convert it into a mortgage, the proof of the alleged agreement necessary to change its character, must be clear, explicit and unequivocal.. his seat as such on the first Monday of January, When a party sets up title against a deed absolute in its 1868. By seniority of commission he became its Chief Justice in January, 1879, and continued to preside in that court until the expiration of his term of service on the first Monday of January, 1883. Such is an outline of his public career. Error to the Court of Common Pleas of Crawford county. Opinion by MERCUR, J. Filed December 30, 1882. This is an attempt by the plaintiff below to recover land against a deed made by himself, absolute on its face. He alleges no fraud or mistake in its execution; but claims, although it is apparently indefeasable; yet it was executed under an agreement which in law makes it a mortgage. There is no attempt to prove the alleged defeasance by any instrument in writ During his career as Judge, he continued his work as author and annotator without interruption. His first important contribution to legal literature was an Article on the Revised Code of Pennsylvania, published in the American Quarterly Review of June, 1834. His first edition of Roscoe on Criminal Evidence was issued in 1835; the last in 1874. He edited Leigh on Nisi Prius in 1838. In 1843 he was made the editor of the American Law Maga-ing, but wholly by parol evidence. The rule is zine, a quarterly publication, which was discon- well settled in Pennsylvania, prior to the Act tinued in 1846. He issued an edition of Stephens' of 1881, that a grantor may prove by parol that Nisi Prius in 1844. The same year he edited his deed, which purports to be a conveyance, is Russell on Crimes, which subsequently extended in reality only security for a debt or liability. through nine editions, the last of which he an- When the attempt is made, he claims as a mortnotated in 1877. In 1847, in connection with gagor seeking to redeem. Although the action Mr. George W. Biddle, he prepared an Index to may be ejectment in form, yet in substance it is volumes 1 to 47 inclusive of the English Com- a bill in equity to compel a reconveyance of the mon Law Reports. His first edition of Byles land from the mortgagee in possession. Each on Bills was issued in 1852. In 1853 he began form of procedure is subject to the same equitaediting the English Common Law Reports, and ble principles. If the parol evidence be insuffiannotated the volumes from 66 to 90 of that cient to move a chancellor to decree a reconveyseries. He also annotated volumes 4, 5 and 6 ance, it is insufficient to justify a recovery in of the British Crown Cases. In 1854 he pub-ejectment. In each case the judge administers lished Professional Ethics; this was followed equitable powers. It is in the discretion of a in 1856 by his Popular Lectures on Commer-chancellor whether he will send an issue to the cial Law. In 1859 his edition of Blackstone's jury. When sent, their province is to aid him Commentaries appeared. While professor in the University he delivered many introductory lectures, a selection of which was published in 1870, under the title of Lectures Introductory to the Study of the Law. In 1873 he prepared the American edition of Taylor's Leading Cases in Mercantile and Maritime Law. In 1876 he issued the tenth American edition of Starkie on Evidence. His last edition of Smith on Contracts was prepared in 1879. During the present year the first volume of Leading Cases in the American Law of Real Property, compiled by him in connection with Mr. Henry Budd, was published; and at the time of his death he was engaged upon that work. in ascertaining the facts; but their verdict is advisory only. It is not conclusive on him. He is still judge of the equity and of the facts. So on the trial of an action of ejectment founded on an equitable title, it is the duty of the judge to consider and to weigh the facts for himself. They must be proved to his satisfaction, as well as to the satisfaction of the jury. If he be of opinion that the evidence does not make out a case which would induce a chancellor to decree a conveyance, it is his duty to give the jury binding instruction to that effect: Brawdy v. Brawdy, 7 Barr, 157; Todd v. Campbell et al., 8 Casey, 250. When a party sets up title against a deed absolute in its terms, and seeks to convert it into a mortgage, the proof of the alleged agree ment necessary to change its character must be clear, explicit and unequivocal. It should not rest on the subsequent admissions and declarations of the alleged mortgagee only, but must establish an agreement substantially cotemporaneous with the execution and delivery of the deed. Less than this will defeat the wise provisions of the statute of frauds: Plummer v. Guthrie, 26 P. F. Smith, 441. It is not sufficient that the jury may be convinced on the evidence given; but the question is, ought they to have been convinced? It appears McDonald had been convicted of selling liquor contrary to law, and a fine imposed on him, which was unpaid. He was again arrested, charged with a like offense, and desired Nichols to pay the fine and become bail for his appearance on the latter charge. He was otherwise indebted, and owned two pieces of land. Some agreement was entered into, whereby Nichols was to make some payments and assume liabilities, and take a conveyance of the lands. The main contention is, whether the conveyance was intended as an absolute sale and purchase of the lands or as a mortgage only. McDonald testified, that Nichols asked for a deed; but he refused and said he would give a mortgage; and when the deed was executed a few days thereafter, he was told by Mr. Richmond, who drew it, that it would be for security only, and when the debt was paid, the property should be reconveyed to him. ceeded to say: "Now, in consideration and full satisfaction of said purchase, said Nichols agreed to pay the fine and costs in the case of the Commonwealth v. McDonald, the fees and charges of Richmond & Sons, six lien judgments specified, to receipt McDonald's indebtedness to him, and give him his note for $350, payable in two years, with the understanding that any liability said Nichols may incur by becoming bail for McDonald's appearance at the next court shall be a payment on said note." The note of $350, given by Nichols at the same time, recited the same "understanding." Mr. Richmond testified, "I read to him (McDonald) the papers, and explained them to him; and these are the papers, and he understood them; I not only read them, but explained them and their purport." Thus not only is the evidence of Richmond in conflict with that of McDonald as to what occurred at the execution of the papers, but Nichols also swears that there was no agreement in any way or form, at the making of the deed, that the land should be reconveyed to McDonald. The note and agreement were left in the custody of Mr. Richmond when the writings were executed. The defendant in error seeks to assail by his own evidence, not only the absolute character of the deed, but to contradict the written contract and note executed by Nichols "in consideration and full satisfaction of said purchase." The vendor is the only witness who testifies, George Dean, a tenant of McDonald, and liv- that either before or at the time of the execution ing on the lands, was present and heard the of the deed, there was any agreement whereby agreement. Both he and Nichols positively it was to be given or accepted as a mortgage. and unequivocally contradicted McDonald, and The vendee and another witness present at the swear the sale was to be absolute. Each swears alleged parol agreement, and the vendee and that Nichols absolutely refused to assume any conveyancer present at the execution of the obligation and accept the lands as security. He writings, each not only expressly and positively declared, if he took the land he must take it just denies any such understanding, but swears to as he would buy from any other person, and an agreement in entire harmony with all the would not give McDonald any chance to redeem written instruments. Thus the material facts it. The latter then asked how much he would averred by the vendor are not denied by the give. Nichols replied, sixteen hundred dollars, vendee alone, but also by another witness presand not a dollar more. He concluded to accept | ent at the agreement and at the execution of the it. The execution of the deed was postponed until the records should be searched. Nichols was to assume certain obligations and give his note for the residue, amounting to $350. The writings were prepared by Mr. Richmond, a reputable member of the Bar, a few days thereafter, and were executed in his presence on the 23d of May, 1879. deed. The evidence of what occurred contemporaneously with the making of the agreement and the execution of the deed is overwhelmingly against the version now given by the vendor. It is very clear, upon all the evidence referred to, that no chancellor should reform the deed or change its absolute character. They were three in number, to wit, the deed It is, however, contended by the defendant from McDonald to Nichols, and an agreement in error that there is other evidence tending to and note of the latter to the former. The agree- sustain bis view. There is some. In fact, the ment, after reciting, whereas, Nichols had pur- | value of the property appears to have been much chased two several farms of McDonald, pro- | more than $1,600, and there is some evidence of subsequent admissions of the vendee indicating that he held it as security. Yet all these are overthrown by the declarations and acts of the vendor. Some of them may be stated. A few days after the execution of the deed the vendor and the vendee went together to the farm on which Dean was residing, and stated to him that Nichols had purchased it, and Dean was thereafter to be his tenant, and that McDonald was to have nothing more to do with the farm; that Dean must look to and transact his business with Nichols. The vendor further saying to Dean, that he had sold the property to Nichols, as they had talked on the occasion when he was present. Thenceforth for a year Dean did continue in possession as the tenant of Nichols without any interference or molestation on the part of McDonald. Mr. Richmond testifies, that some time after the execution of the deed, McDonald said to him, he would like to "buy back" one piece of the land called the homestead, and asked if he thought Nichols would sell it to him. At that time he made no allegation or claim of any right to redeem the land. On the 20th of September following the parties made a written agreement, whereby Nichols agreed to sell and McDonald to buy the homestead lot. On that day they appear to have settled all purchase money due from Nichols on his note and contract of 23d of May. McDonald gave a written order on Richmond, requesting him to "deliver to S. Nichols one note in favor of John McDonald, for three hundred and fifty dollars, against S. Nichols; also one other paper with statement for purchase and payments on farms for which I have received satisfaction this day, and also my books and receipts." There is evidence of some other admissions by each party. On the one side, indicating the original transaction was considered an absolute purchase, and on the other side, that the transfer was merely a security; but they are wholly insufficient to destroy the force and effect of the testimony to which we have referred. The unsatisfactory and strongly contradicted evidence of the vendor, as to alleged facts cotemporaneous with the making of the deed, is still further weakened by his subsequent acts. The operation of the statute of frauds cannot be suspended, nor a title to real estate by deed absolute on its face be destroyed by such evidence. The learned judge should have given binding instructions to that effect, and affirmed the point covered by the first specification of error. It is therefore unnecessary to consider the remaining specifications. Judgment reversed. For defendant in error, J. B. Brawley, Esq. | TOWNSHIP OF RUSH v. COUNTY OF SCHUYLKILL. On a sale of unseated lands bid in by the county commissioners at a sale for taxes, in accordance with the provisions of Act of 1824, when the proceeds of such commissioners' sale are not sufficient to pay both county and township taxes, the township is entitled to its proportion from the amount realized. In a case stated, where the parties neglect to ascertain the sum for which judgment is to be rendered in the event of an opinion favorable to the plaintiff, it is the duty of the court to refuse to proceed to the argument until the case is perfected, and if the parties refuse to amend, to set aside the case stated. Error to the Court of Common Pleas of Schuyl kill county. The Commissioners of the County of Schuylkill, at several sales made by the treasurer of said county, for non-payment of State, county, road and school taxes, became the purchasers on behalf of the county of a number of tracts of unseated lands situate in Rush township. The purchase in each instance covered the amount of taxes assessed, together with costs, but the county has at no time paid any part of its several bids except the costs on each sale. These lands, not having been redeemed by their respective owners within the statutory period of five years, were sold by the county at public sale for the best price that was offered (Act of 29th of March, 1824, Dunlop's Dig., 388). The purchase money was paid to the county, and deeds delivered to the purchasers, as directed by the act regulating commissioners' sales. In some instances the amount received by the county was sufficient to pay all the taxes, viz: Those for the non-payment of which sales were made by the treasurer, and those assessed by the county commissioners during the five years the county held the lands for redemption, and the costs; in other instances the amount realized by the sales was insufficient to pay the taxes and the costs. For plaintiff in error, Messrs. W. J. Whitehouse, Conrad F. Shindel and Charles W. Wells. Contra, A. W. Schalck, County Solicitor. Opinion by TRUNKEY, J. Filed October 2, 1882. By the Act of March 13, 1815, Sec. 5, P. L., 177, the county commissioners were required to bid off any tract of unseated land for the use of the county where no other person had bid a sum equal to the amount of the taxes and costs charged against said tract. A supplement of March 13, 1817, P. L., 111, makes it discretionary with the commissioners what lands they will purchase in for the use of the county. They are not required to bid a sum sufficient to pay all taxes and costs against the land. |