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Orphans' Court.

so ascertained you may add-and it would be which it can be distinguished, and therefore proper to add-interest to this date.

distribution is to be made pro rata to all the For plaintiff, L. B. Duf, Esq.

creditors. Contra, Messrs. Knox & Reed.

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 recome In Re Estate of CHARLES W. RADO, Deceased. mended that in such accounts the principals

should be designated; yet as it was shown Where a bank account is opened in the name of one as that the account was strictly and exclusively

agent, in which is deposited money belonging to differ- an agency account, composed entirely of trust ent principals, it is not necessary that the names of moneys, it was held that Jones' general creditors the principals should be designated on the face of the deposit to preserve the fund for them as against gen

could not recover it on execution attachments. eral creditors of the agent.

It would certainly be a great hardship if it were Decedent collected moneys belonging to different per- necessary to designate the principals to protect sons as agent and deposited them in the same bank

trust moneys from liability for an agent's debts. account, the word “agt" following his name in the account. None of his own money being deposited

As in all probability no bank, in a case like therein. The balance due on said account was the

this, where the principals were numerous and fund for distribution, and the estate being insolvent: the amounts due each small, would be willing Held, that the debts due the cestuis que trustent of the to open an account in that way. And the redecedent were preferred to those due general creditors.

sult would be that a person involved in debt as Decedent appropriated a portion of the trust moneys to his own use, it not appearing whose money he thus

the decedent was could not be safely employed appropriated. Held, that distribution should be made to make collections, and might, therefore, be to the trust creditors pro rata.

deprived of the means of subsistence. C. W. Rado, the decedent, was an alderman

That the balance in this account was made and real estate and fire insurance agent in Al- | up entirely of trust funds admits of no doubt. legheny City. The rents and premiums on And that it was strictly and exclusively an policies collected by him as agent, and other agency account, composed entirely of the money trust moneys received by bim, he deposited in

of other persons, is shown by the weight of the the Enterprise Savings Bank, the word “agt" evidence. His clerk testified that he made following his name in the account. This was most of the collections and deposited them in the only bank account he kept. At his death bank, and that it was the custom of the decethere was a balance to his credit on said account dent to deposit the moneys collected by him. of $1,147.88, which was made up entirely of trust

He also testified that he deposited the money moneys. His administrator received this bal- he received from all sources in this account, but ance, has charged himself with it in his account, I as the decedent does not appear to have had any and it is the fund for distribution.

other income than from his commissions on He was indebted to Schomaker & Co. on a rents and fees as alderman, which, according to judgment obtained against him in the sum of his own statement, were not sufficient to buy $1,607.42, with interest from February 7, 1881, him a suit of clothes, and as he evidently apupon which a claim was presented against his propriated a portion of the trust money in his estate. Numerous claims were also presented hands to his own use, it is apparent that he had by persons and insurance companies, for whom no money of his own to deposit, and that the he collected and received money as agent. | account was composed entirely of trust funds. amounting in the aggregate to $— The It seems clear, then, under the authority of balance in the hands of the accountant for dis-Jones v. The Bank, supra, and The Bank v. tribution is $1,006.67.

King, 57 Pa. St., 202, that the whole of the

fund is to be distributed to the cestuis que trustOpinion by OVER, J. Filed April 28, 1883. ent of the decedent.

As the fund for distribution is not sufficient. It is no sufficient to pay them in full, but as to pay all the creditors in full, the question it does not appear whose money he appropriated arises as to whether the debts due the cestuis to his own use, distribution must be made to que trustent of the decedent are preferred. It them pro rata. is contended that, as the bank account did not For accountant, N. W. Shafer, Esq. designate the persons for whom he was agent For Schomaker & Co., J. M. Acheson, Esq. and as the money belonging to different per- For trust creditors, Messrs. I. N. Patterson, S. sons was mingled, that it has no ear marks by W. Cunningham and T. D. Chantler.

Pittsburgh Legal Journal.

judicious counselor. He was a man of spotless integrity

and honor in his profession. In his social and private ESTABLISHED 1853.

life, he left no duty under human limitations undone or

even carelessly performed, and was especially noted for E. Y. BRECK, : : : : Editor.

his large and unostentatious charities. He crowned all

other excellencies by a devotion to religious duties which N. S., Vol. XIII. I

was altogether free from parade or intolerance, and evi0. S., Vol. xxx.}.

No. 43.

dently guided and governed his life. That life is a conPITTSBURGH, PA., JUNE 6, 1883.

spicuous 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 honored and lamented.

Remarks were made by H. W. Weir, S. Schoyer, Jr., A. M. Watson and Thos. M. Mar

shall, 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.


In Memoriam.

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

The Hon. GEORGE SHARSWOOD, LL. D., exHon. J. W. F. WHITE presided, and the vice- | Chief Justice of the Supreme Court, died in chairmen were the other county judges. C. F. Philadelphia on the morning of May 28th ult.. McKenna, Charles B. Kenny and Josiah Cohen,

at 6:45 o'clock. He was born in the city of PhilaEsqs., were elected secretaries.

delpbia July 7, 1810. After graduation by the On motion the following committee on resolu- | University of Pennsylvania in 1828, he began tion was appointed: W. D. Moore, D. D. Bruce,

the study of law under the preceptorship of M. Swartzwelder, Malcolm Hay, Thos. M. Mar- Joseph R. Ingersoll, and was admitted to the shall, John Coyle and S. Schoyer, Jr. The

d. S. Schoyer, Jr. The Bar on September 5, 1831. In 1835 he was committee reported the following minute which

chosen one of the vice-provosts of the Philadelwas unanimously adopted:

phia Law Academy. In 1837 he was elected to Once more, and after but brief interval since we were

the Legislature of Pennsylvania, and the next last convened to mourn the death of one of our number,

year to the Select Council of Philadelphia. In we are summond together to pay our kindly tribute to the memory of another, called in the prime of his life and

1841 and 1842 he was re-elected to the Legislathe fullness of his power, from the joys and duties of this ture. The affairs of the United States Bank earthly existence to the unknown future whither all our

having become involved, a committee of stocksteps are tending. On the evening of the 25th of May,

holders was chosen to examine its condition, of 1883. G. L. B. FETTERMAN, Esq., died suddenly; though he had been ill for some months, but little apprehension

which GEORGE SHARSWOOD was made secrewas entertained of death, and the news came to his many tary. He prepared the report, which will be friends with the shock of a painful surprise. He had the found in the columns of the United States Gahonor to have General Lafayette, who was in 1824-5

zette of April 8, 1841. He was also the author visiting this country, and was well known to and on friendly relations with the family as his godfather. His

of the second report of this committee, designed classical education was completed at Mount St. Mary's to answer attacks upon the former report. On College, Emmittsburg, Md., and at its conclusion he en

April 8, 1845, Governor Shunk appointed him tered upon his legal studies in the office of Messrs. Loomis

an Associate Judge of the District Court of Phila& Metcalf and N. P. Fetterman, Esq., and was admitted to the Bar in 1850. He continued in active practice in

delphia. Judge JONES having resigned the partnership with his uncle until the death of the latter presidency of this court, Judge SHARSWOOD and until his own last illness. He came of a distinguished was appointed its president on February 1, 1848. family of lawyers. His father, W. W. Fetterman, Esq.,

In 1850 he was chosen Professor of Law in the was a leading practitioner for almost a generation; his uncle, N. P. Fetterman, Esq., already spoken of, in all

University of Pennsylvania. By a constituthe counties of Western Pennsylvania, especially Beaver tional amendment of that year the judiciary and Allegheny, was known and honored in his profes was made elective. Judge SHARSWOOD was sion. His cousin, C. S. Fetterman, has continued the

nominated by the Democratic, the Whig, the family record, and for a time occupied the Bench of Common Pleas of this county. The subject of our notice was

Native American, Temperance, and Workingsurrounded, therefore, by associations connecting him men's Judicial Conventions; and his election from his youth with our profession, and it may be added, following of course, he was continued on the by such associations as were calculated to stimulate and

Bench as President Judge of the District Court guide an honorable ambition. That he profited by them, it is hardly necessary to say to those who knew him. He

for the term of ten years, beginning January, was not a brilliant advocate, but a wise, thoughtful and 1852. In the same year a full faculty in Law

Supreme Court, Penn'a.

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

NICHOLS v. MCDONALD. 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 that his deed, which purports to be a conveyance, is in the Supreme Court of Pennsylvania, and took reality only security for a debt or liability.

When a party sets up title against a deed absolute in its his seat as such on the first Monday of January,

terms, and seeks to convert it into a mortgage, the proof 1868. By seniority of commission he became

of the alleged agreement necessary to change its characits Chief Justice in January, 1879, and continued ter, must be clear, explicit and unequivocal.. to preside in that court until the expiration of

Error to the Court of Common Pleas of Crawhis term of service on the first Monday of Janu

ford county. ary, 1883. Such is an outline of his public career.

Opinion by MERCUR, J. Filed December 30, During his career as Judge, he continued his | 1882. work as author and annotator without inter- This is an attempt by the plaintiff below to ruption. His first important contribution to recover land against a deed made by himself, legal literature was an Article on the Revised absolute on its face. He alleges no fraud or misCode of Pennsylvania, published in the Ameri- take in its execution; but claims, although it is can Quarterly Review of June, 1834. His first apparently indefeasable; yet it was executed edition of Roscoe on Criminal Evidence was under an agreement which in law makes it a issued in 1835; the last in 1874. He edited mortgage. There is no attempt to prove the Leigh on Nisi Prius in 1838. In 1843 he was alleged defeasance by any instrument in writmade 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 in ascertaining the facts; but their verdict is the University he delivered many introductory advisory only. It is not conclusive on bim. He lectures, a selection of which was published in is still judge of the equity and of the facts. So 1870, under the title of Lectures Introductory to on the trial of an action of ejectment founded the Study of the Law. In 1873 he prepared the on an equitable title, it is the duty of the judge American edition of Taylor's Leading Cases to consider and to weigh the facts for himself. in Mercantile and Maritime Law. In 1876 he They must be proved to his satisfaction, as well issued the tenth American edition of Starkie as to the satisfaction of the jury. If he be of on Evidence. His last edition of Smith on Con- opinion that the evidence does not make out a tracts was prepared in 1879. During the present case which would induce a chancellor to decree year the first volume of Leading Cases in the a conveyance, it is his duty to give the jury American Law of Real Property, compiled by binding instruction to that effect: Brawdy v. him in connection with Mr. Henry Budd, was Brawdy, 7 Barr, 157; Todd v. Campbell et al., 8 published; and at the time of his death he was Casey, 250. When a party sets up title against engaged upon that work.

a deed absolute in its terms, and seeks to conrert it into a mortgage, the proof of the alleged agree

ment necessary to change its character must be ceeded to say: “Now, in consideration and full clear, explicit and unequivocal. It should not satisfaction of said purchase, said Nichols agreed rest on the subsequent admissions and declara- to pay the fine and costs in the case of the Comtions of the alleged mortgagee only, but must monwealth v. McDonald, the fees and charges establish an agreement substantially cotempo- of Richmond & Sons, six lien judgments speciraneous with the execution and delivery of the fied, to receipt McDonald's indebtedness to him, deed. Less than this will defeat the wise pro- and give him his note for $350, payable in two visions of the statute of frauds: Plummer v. .years, with the understanding that any liability Guthrie, 26 P. F. Smith, 441. It is not sufficient said Nichols may incur by becoming bail for that the jury may be convinced on the evidence McDonald's appearance at the next court shall given; but the question is, ought they to have be a payment on said note.The note of $350, been convinced?

given by Nichols at the same time, recited the It appears McDonald had been convicted of same “understanding." Mr. Richmond testiselling liquor contrary to law, and a fine im-fied, “I read to him (McDonald) the papers, posed on him, which was unpaid. He was and explained them to him; and these are the again arrested, charged with a like offense, and papers, and he understood them; I not only desired Nichols to pay the fine and become bail read them, but explained them and their purfor his appearance on the latter charge. He port." Thus not only is the evidence of Richwas otherwise indebted, and owned two pieces mond in conflict with that of McDonald as to of land. Some agreement was entered into, what occurred at the execution of the papers, whereby Nichols was to make some payments but Nichols also swears that there was no agreeand assume liabilities, and take a conveyancement in any way or form, at the making of the of the lands. The main contention is, whether deed, that the land should be reconveyed to the conveyance was intended as an absolute sale McDonald. The note and agreement were left and purchase of the lands or as a mortgage only. in the custody of Mr. Richmond when the writ

McDonald testified, that Nichols asked for a ings were executed. deed; but be refused and said he would give a The defendant in error seeks to assail by bis mortgage; and when the deed was executed own evidence, not only the absolute character a few days thereafter, he was told by Mr. Rich-of the deed, but to contradict the written conmiond, who drew it, that it would be for security tract and note executed by Nichols “in considonly, and when the debt was paid, the property eration and full satisfaction of said purchase.'' should be reconveyed to him.

The vendor is the only witness who testifies, George Dean, a tenant of McDonald, and live 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 acceptent at the agreement and at the execution of the it. The execution of the deed was postponed deed. until the records should be searched. Nichols The evidence of what occurred contemporanewas to assume certain obligations and give his ously with the making of the agreement and note for the residue, amounting to $350. The the execution of the deed is overwhelmingly writings were prepared by Mr. Richmond, a against the version now given by the vendor. reputable member of the Bar, a few days there. It is very clear, upon all the evidence referred after, and were executed in his presence on the to, that no chancellor should reform the deed or 23d of May, 1879.

| 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 | TOWNSHIP OF RUSH v. COUNTY OF that he held it as security. Yet all these are

SCHUYLKILL. overthrown by the declarations and acts of the vendor. Some of them may be stated. A few On a sale of unseated lands bid in by the county comdays after the execution of the deed the vendor

missioners at a sale for taxes, in accordance with the

provisions of Act of 1824, when the proceeds of such and the vendee went together to the farm on

commissioners' sale are not sufficient to pay both which Dean was residing, and stated to him county and township taxes, the township is entitled that Nichols had purchased it, and Dean was to its proportion from the amount realized. thereafter to be bis tenant, and that McDonald

In a case stated, where the parties neglect to ascertain

the sum for which judgment is to be rendered in the was to have nothing more to do with the farm;

event of an opinion favorable to the plaintiff, it is the that Dean must look to and transact his busi

duty of the court to refuse to proceed to the argument ness with Nichols. The vendor further saying until the case is perfected, and if the parties refuse to to Dean, that he had sold the property to Nichols, amend, to set aside the case stated. as they had talked on the occasion when he was Error to the Court of Common Pleas of Schuylpresent. Thenceforth for a year Dean did con- | kill county. tinue in possession as the tenant of Nichols The Commissioners of the County of Schuylwithout any interference or molestation on the kill, at several sales made by the treasurer of part of McDonald.

said county, for non-payment of State, county, Mr. Richmond testifies, that some time after road and school taxes, became the purchasers the execution of the deed, McDonald said to on behalf of the county of a number of tracts of him, he would like to “buy back" one piece of unseated lands situate in Rush township. The the land called the homestead, and asked if he purchase in each instance covered the amount thought Nichols would sell it to him. At that of taxes assessed, together with costs, but the time he made no allegation or claim of any right county has at no time paid any part of its several to redeem the land. On the 20th of September | bids except the costs on each sale. following the parties made a written agreement, These lands, not having been redeemed by whereby Nichols agreed to sell and McDonald their respective owners within the statutory to buy the homestead lot. On that day they period of five years, were sold by the county at appear to bave settled all purchase money due public sale for the best price that was offered from Nichols on his note and contract of 23d of (Act of 29th of March, 1824, Dunlop's Dig., 388). May. McDonald gave a written order on Rich- | The purchase money was paid to the county, mond, requesting him to deliver to S. Nichols and deeds delivered to the purchasers, as directed one note in favor of John McDonald, for three by the act regulating commissioners' sales. In hundred and fifty dollars, against S. Nichols; some instances the amount received by the also one other paper with statement for purchase county was sufficient to pay all the taxes, viz: and payments on farms for which I have re- Those for the non-payment of which sales were ceived satisfaction this day, and also my books made by the treasurer, and those assessed by the and receipts."

county commissioners during the five years the There is evidence of some other admissions by county held the lands for redemption, and the each party. On the one side, indicating the costs; in other instances the amount realized original transaction was considered an absolute by the sales was insufficient to pay the taxes purchase, and on the other side, that the trans- and the costs. fer was merely a security ; but they are wholly For plaintiff in error. Messrs. W. J. Whiteinsufficient to destroy the force and effect of the houe

e house, Conrad F. Shindel and Charles W. Wells. testimony to which we have referred. The un

Contra, A. W. Schalck, County Solicitor. satisfactory and strongly contradicted evidence of the vendor, as to alleged facts cotemporaneous | Opinion by TRUNKEY,J. Filed October 2, 1882. with the making of the deed, is still further By the Act of March 13, 1815, Sec. 5, P. L., weakened by his subsequent acts. The opera- 177, the county commissioners were required to tion of the statute of frauds cannot be suspended, bid off any tract of unseated land for the use of nor a title to real estate by deed absolute on its the county where no other person had bid a face be destroyed by such evidence. The learned sum equal to the amount of the taxes and costs judge should have given binding instructions charged against said tract. A supplement of to that effect, and affirmed the point covered by March 13, 1817, P. L., 111, makes it discretionary the first specification of error. It is therefore with the commissioners what lands they will unnecessary to consider the remaining specific purchase in for the use of the county. They are cations.

Judgment reversed. I not required to bid a sum sufficient to pay all For defendant in error, J. B. Brawley, Esq. I taxes and costs against the land.

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