Section 5 of the Act of 1815 directs the commissioners "to provide a book, wherein shall be entered the name of the person as whose estate the same shall have been sold, the quantity of land, and the amount of taxes it was sold for, and every such tract of land shall not thereafter, so long as the same shall remain the property of the county, be charged in the duplicate of the proper collector; but for five years next following such sale, if it shall so long remain unredeemed, the commissioners shall, in separate columns in the same book, charge every such tract of land with reasonable county and road tax, according to the quality of the said land, not exceeding in any case the sum of six dollars for every hundred acres."

Section 6 provides that the owner of the land may redeem the same within five years after the sale, by paying to the "treasurer of the county all the taxes and costs due thereon at the time of the sale, and interest therefor for the same time, and also the taxes which shall have been assessed thereon from year to year after the sale, and interest of each assessment to be counted from the time it ought to have been paid," and "the moneys so received for road taxes shall be paid to the supervisors of the roads of the townships within which such lands shall lie."

Secti on 7 provides that if the land shall not be red eemed within said period, the county commissioners shall sell the same, "but no tract shall be sold for a sum less than the amount of taxes, costs and interest which shall be due at the time of such sale by the commissioners." The Act of 1824, P. L., 167, authorizes the commissioners to sell such lands for the best price that can be obtained for the same.

It is manifest that the commissioners are not bound to pay the road taxes assessed on lands purchased by them at treasurer's sales until said lands shall be redeemed, and if unredeemed, not until they shall be sold at commissioners' sale. The provisions of section 3 of the Act of 1815, and of the Act of 1817, relative to the payment by the purchaser at treasurer's sales, of his bid or so much thereof as may be necessary to pay the taxes and costs, do not apply where the commissioners' purchase for the use of the county. The amount of taxes for which the land was sold are charged against it, and each year for five years following the sale, if the land shall remain so long unredeemed, it shall be charged with reasonable county and road taxes. When redeemed by payment of the taxes for which it was sold, and also the taxes subsequently assessed, with interest, then the moneys received by the treasurer for road taxes shall be paid to

the supervisors. The time of payment is explicitly fixed by the statute. It is not the duty of the commissioners to advance money for road taxes. They are made the public agents to buy in the lands, when they think it would advantage the public to do so, where otherwise they would not sell for the amount of taxes charged thereon, to the end, if possible, that the taxes may be realized.

After the time for redemption shall have expired, the title of the county is absolute, and the commissioners may sell the lands. Prior to 1824 they could not sell for a sum less than all taxes, costs and interest; since they may sell for the best price that can be obtained. At the date of sale the road taxes become due and payable by the county, as in case of redemption. If the proceeds of sale are sufficient, the county shall pay not only the taxes due to the supervisors at the time of the treasurer's sale, but also the taxes charged on the tract for each year during the five years allowed for redemption. It could not have been otherwise when the commissioners were required to sell for a sum that would cover all taxes. The road taxes charged from year to year, during the redemption period, belong to the township, and must be paid to the township now, as before 1824, when the proceeds of sale are sufficient. But If the proceeds are insufficient to pay all taxes, are any preferred? It is noticeable that county and road taxes are treated alike throughout the statute. The commissioners assess and charge both during five years, unless the land be sooner redeemed, and after the end of said period until sale, neither tax is assessed and charged. No preference is given to either. If the fund is not enough to pay all, the county is liable to pay the township its proportion.

The road taxes became due from the county at the date of the commissioners' sale, not the treasurer's, and the statute of limitations is not a bar to the recovery of such taxes when the suit was commenced within six years from the commissioners' sale. If six years had expired, nothing in the facts of this case prevents the application of the statute.

What has been said expresses our opinion upon all points submitted. They were passed upon by the court below and fully argued here, and we have considered them because the case goes back for another trial. The facts agreed upon are well stated so as to enable the court to determine if the plaintiff has a right to recover, but the sum is not ascertained in case of judgment for the plaintiff. If the case agreed be too uncertain for a judgment thereon, it will be set aside and further proceedings directed. When

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: Whitesides v. Russell, 8 W. & S., 44; Kingsley v. Coyle, 8 P. F. Smith, 461.

The schedule referred to in paragraph 3 of the case stated is not furnished. One is printed as schedule "A." which does not show the dates of the treasurer's or commissioners' sales, nor the prices paid to the county by the purchasers at commissioners' sales, nor the amount of any taxes charged during the period for redemption. Judgment reversed, the case stated set aside, and procedendo awarded.

WARD v. ORR.

There are cases in which a contract to purchase real estate, not in writing, may be sustained, notwithstanding the statute of frauds, but they are cases where possession has been taken and valuable improvements put up which cannot be compensated in money. A contract in writing, duly signed, need not be in one paper; it may be in two or three, and may be gathered from letters and receipts, but they must be signed by the parties and show, taken together, a contract to purchase and sell.

Such contract must show sufficiently the property sold

and the terms of sale-the price and manner of pay

ment.

Sufficiency of evidence of sale to take case out of the statute of frauds.

Knox & Son continued to supply Ward with flour up to about November, 1877, when the firm ceased doing business. Andrew Knox, the son, died on February 2, 1876, and his interest in the premises was sold at Orphans' Court sale and conveyed by his administrator to James B. Orr, the plaintiff, by deed dated April 7, 1880. Robert Knox, the father, died in July, 1879. After the bringing of this action James B. Orr, also, died, and his children and heirs at law were substituted as plaintiffs.

The defendant introduced evidence showing that the Knoxes had purchased the lot and made the improvements, on his behalf, and produced two receipts, viz:

"Received, Allegheny, July 21, 1873, from Hugh Ward, one thousand dollars, which is on account of payment on property, No. 269 Franklin street. R. KNOX & SON."

"$1,000. "Received, Allegheny, August 12th and September 7th and 22d, 1874, from H. Ward, eleven hundred ($1,100) dollars on property account.

"R. KNOX & SON.

"Allegheny, November 4, 1874." Thomas Wilson was called on behalf of defendant, and testified that from 1872 to November, 1877, he had been in the employ of R. Knox & Son as salesman and book-keeper, that on the day of the $1,000 payment Andrew Knox said to him: "That is on account of the property on Franklin street, Mr. Ward is to get that property, we built it for him," or words to that effect, and that "it would be his when he paid for it, and he was paying for it;" Mr. Ward made

Ejectment, by James B. Orr against Hugh Ward, for the undivided one-half of a lot of ground in the Sixth ward of the city of Allegheny.

In 1870 Robert Knox and Andrew Knox, father and son, were engaged in the flour and grain business in Allegheny City as copartners under the firm name of R. Knox & Son. Hugh Ward is a baker, and had been carrying on business also in Allegheny, and procuring his supplies from the Knoxes.

On the 2d December, 1870, Mrs. Margaret M. Carnahan executed a deed to Robert and Andrew Knox, as tenants in common, for the premises at No. 269 Franklin street, Allegheny City, who contracted with John Huckestein, a builder, to put up a building-dwelling, storeroom and bake-house, suitable for a bakery, on this lot, which was begun in the latter part of 1870 and finished in June, 1871. While the work was going on Ward, at his own expense, built the oven, etc., which were covered over by the building when erected.

another, it amounted to $2,100 altogether; an entry was made on the books of these payments; Mr. Ward paid money every month, almost, on account of that property; that the account on the book says: "Hugh Ward in account with Knox & Son, rent Franklin street house; that Ward paid at first at the rate of $52, then when the $1,000 was paid, he paid at the rate of $42.80, and after he paid more money the monthly payment was reduced to $34.63; that when it dropped to $34.63 in October, 1874, old Mr. Knox said to witness: "That brings it down; he has paid some money on account of the property, and that reduced his rent;" the books of the firm show that the cost of the property was $6,665.42; that the monthly payments were entered on the book as rent; Ward was charged on one side of the book with the month's rent and credited on the other side with the rent as paid.

Dr. W. R. Hamilton testified that he had put the Knoxes in communication with Mrs. Carnahan for the purchase of the lot of ground on Franklin street; Andrew Knox stated that he

and his father wished to buy that lot for Ward, the baker, who had become financially embarrassed, and they wanted to start him in business as he was a good customer of theirs. Adam Fahey testified that about the time the house was built he had dug a well and drained the cellar and had done some other work, amounting to $287.10; that Ward paid him; that being at Knox's store one day, young Knox said: "I bought that lot and built that house for Ward, and have given him a chance to pay for it." Robert B. Ward, son of defendant, testified that his father built the bake-oven outside of the shop, had the wells dug, pavements laid, and fences built. James Lester and John Huckestein testified that they had heard Knox & Son say that they were going to build a house for Ward, to help him along.

Defendant's counsel offered tax receipts from 1873 to 1880 on property in the Sixth ward, Allegheny.

The plaintiffs requested the court, inter alia, to charge :

2. That there is no evidence of any agreement between said parties which is not void under the statute of frauds.

3. That under all the evidence in the case the verdict of the jury should be for the plaintiff for the undivided one-half of the lot described in the writ, both of which points were affirmed. The court (EWING, P. J.), also charged, inter alia, as follows: "The deed, on its face, is absolute to R. and A. Knox as tenants in common, and it is shown that they built the house and paid for it. The testimony in relation to their buying a lot and building a house for Mr. Ward is all consistent with it having been done for him to use and rent, as is often done in the case of an owner of property building a house for some particular friend who is to go into it as a tenant. There being no evidence of a trust, in my opinion, the transaction must stand on a contract to purchase. There are cases in which a contract to purchase, not in writing, may be sustained, notwithstanding the statute of frauds, but they are cases where possession has been taken and very valuable improvements put up that can not be compensated in money. I do not think, however, that this is such a case. The evidence indicates a payment of rent and that all the improvements that Mr. Ward made were not more than are frequently put up by tenants in the way of fixtures and accommodations for their own convenience, and especially where they have confidence in the landlord and expect to be allowed to remain for a considerable length of time. To my mind the only question in the case is as to whether or not, taking

together all the writings that we have, there is evidence of a contract in writing; a contract in writing, duly signed, need not be in one paper; it may be in two or three, and may be gathered from letters and receipts, but they must be signed by the parties and show, taken together, a contract to purchase and sell. Such contract must show sufficiently the property sold and the terms of sale-the price and manner of payment. In this case, I think, there is no written evidence of the price or manner of payment, and that the defense, therefore, set up by the defendant fails in law, and your verdict should be for the plaintiffs for the undivided one-half of the land described in the writ, with six cents damages and costs."

Verdict and judgment for plaintiff, whereupon defendant took this writ, assigning for error the affirmance by the court of the plaintiffs' second and third points above.

For plaintiffs in error, Messrs. Barton & Son. There was sufficient evidence to take the case

out of the statute of frauds.

Ward has paid all repairs, all taxes, and a sum (annually) sufficient to pay ten per cent. interest on the value of the property, and also $2,100 purchase money: Haslet v. Haslet, 6 Watts,,464; Richards v. Ellwell, 12 Wright, 361; McGebbeny v. Burmaster, 3 P. F. Smith, 332; Lauer v. Lee, 6 Wright, 171; Lee v. Lee, 9 Pa. St., 169; McKee v. Phillips, 9 Watts, 85; Bunker v. Bunker, 7 Barr, 53.

We have here "proof of a parol contract for the sale of land, delivery of possession pursuant thereto, part payment of the purchase money, and valuable improvements, the full measure of what is required to take a case out of the statMilliken v. Dravo, 17 P. F. ute of frauds:" Smith, 230.

Where one procurs a conveyance to be made to him upon the promise and assurance that he will hold in trust for another and refuses to carry out such promise, it is a fraud, and because of the fraud the vendee is a trustee ex maleficio : Seylar v. Carson, 69 Pa. St., 81; Hill on Trustees, 224, 225; Thompson v. White, 1 Dallas, 424;

Gilbert v. Sloffman, 2 Watts, 66; McCullough v.

Cowhert, 5 W. & S., 430; Jackson v. Summerville, 1 Harris, 359.

Contra, Messrs. David W. Bell and S. A. McClung.

Improvements that cannot be compensated for in damages, will not take a case out of the statute: McKee v. Phillips, 9 Watts, 86; Hilll v. Meyers, 7 Wright, 171; McKowen v. McDonald, 7 Id., 441.

The evidence shows that Ward took posses

sions aa tenant, paying rent nearly three years before the date of the first receipt, viz., on January, 1871.

Possession must be taken pursuant to a contract to purchase to escape the operation of the statute: Aitkins v. Young, 2 Jones, 15; Milliken v. Dravo, 17 P. F. Smith, 230.

He who seeks to recover in ejectment by virtue of a verbal contract of purchase is held to full, complete, satisfactory and indubitable proof of a definite and unequivocal contract in all its terms; what land it embraces; the price and payment of it; that possession was delivered in pursuance of such contract, and that valuable improvements, which cannot be compensated in damages, have been made: Woods v. Farmare, 10 Watts, 195; Dougan v. Blocker, 12 Harris, 28; Charnley v. Hansbury, 1 Id., 21; McKowen v. McDonald, 7 Wright, 443; Ackerman v. Fisher, 7 P. F. Smith, 460; Vanloon v. Davenport, 1 W. N. C., 320; Overmeyer v. Kærner, 2 Id., 6.

And this contract must be proven by at least two witnesses: Sowers v. Weaver, 1 W. N. C., 499.

PER CURIAM. Filed October 23, 1882. Upon a careful examination of the whole evidence, we think there was not enough, to submit to the jury of a sale.

We could not say what were the terms of the sale, and without that it is clearly insufficient. It is entirely consistent with a parol lease, and the learned judge below was clearly right in withholding the case from the jury.

Judgment affirmed.

DUNKLE v. HARRINGTON.

Some of the personal property that had been levied upon and advertised for sale was loaned by the sheriff to a third party, the sheriff told the bidder at the sheriff's sale that the property loaned by him was to be sold with the other property in his actual possession. Held,

that the bidder could recover from the sheriff.

swer thereto, the sheriff informed him that there was that amount of casing which belonged to the property; that he had loaned it to some one interested in an oil well on the Booth farm; that it was to have been returned before the sale; that it should be included in the sale, and that he would deliver it to the purchaser. He also repeated publicly that he would include the casing in the sale, and that he would deliver it to the purchaser. This is the testimony of the two Brennemans and of Charles Harrington; it is corroborated by the evidence of Miles Sloan, and is contradicted by no one except the defendant himself. Induced by this declaration and agreement of Dunkle, the plaintiff bid off the property for the sum of $385, and at once paid this amount to the sheriff's clerk.

The learned counsel for the defendant contends, that the evidence ought not to have been submitted to the jury for the purpose of establishing a personal undertaking on part of the sheriff to sell and deliver the casing. But why not? Had he as a private person been selling the property as his own, no one, we think, would contend that he would not have been bound by such a contract. His duty as an officer was a plain one; he had but to pursue the directions af his writ without undertaking either to sell or deliver what was not in his possession. Doubtless he would have so done but for the fact that he had previously and unwarrantably intermeddled with the property, and made himself personally liable therefor by loaning it to an operator on the Booth farm. Herein is found not only the reason, but the consideration for this anomalous contract. By this arrangement with a purchaser at his sale, the sheriff relieved himself from the undoubted obligation which he was under, to the plaintiff in the writ, to account for the casing which he had disposed of. If, then, this contract was made for his own benefit, why was it not personal, and why cannot it be enforced as such? We have as yet heard no reason which ought to induce us to adopt a contrary

sustain the second and fourth assignments of the plaintiff in error.

Of the two remaining exceptions little need be said, as they are of no consequence. The writ of injunction, or prohibition, was properly admitted for the purpose proposed, the contradiction of the defendant. It was directed to the sheriff and by him executed, and it might fairly be presumed that he knew its contents. In fact, however, an inspection of the paper shows it to have been of so little account as a matter of evidence that we may well wonder why its admission was thought worthy of an exception.

As to the ruling out of the parol proof of the contents of the advertisements, we may, as an abstract proposition, admit that that action of the court was wrong; nevertheless, as we cannot see how evidence of that kind could affect the case in any way, we will not consent to reverse on a worthless abstraction, and this the rather as the defendant successfully opposed the introduction of the very same kind of evidence on part of the plaintiff. The preceding acts of Dunkle as sheriff had really little or nothing to do with the main point of the case; the point on which alone it turned, the fact of there having been a personal contract at the time of the sale, by which he undertook to deliver the property to the plaintiff. Upon the question of that contract the character of the advertisements could have no effect; hence their admission or rejection was alike unimportant.

The judgment is affirmed. For plaintiff in error, Messrs. Maffett & Ross. Contra, Messrs. Wilson & Jenks.

CHILCOAT'S APPEAL.

Where a person makes an assignment for the benefit of creditors, reserving to himself by a clause therein the benefit of the exemption law, he must, in order to entitle himself to such exemption, claim the same within a reasonable time.

Where such person is guilty of undue laches he waives all right to the benefit of the exemption law. Peterman's Appeal, 26 P. F. Smith, explained and distinguished.

A. made an assignment for the benefit of creditors, reserving to himself the benefit of the $300 exemption. He never designated any specific property to be set aside to him, nor did he have any appraisement made.

The assignee subsequently sold both real and personal property, the proceeds of which were distributed to holders of judgments against the assignor, some of which contained waivers of exemption. The assignor made no claim on these proceeds, and stated to various parties that he did not intend to claim his exemption. Three or four years afterwards the assignee realized a certain sum on building association stock belonging to the assignor, and just as he was about to file his account said assignor claimed his exemption from said

sum.

Held, that under the circumstances of the case he was not entitled to set up such claim.

Appeal of B. F. Chilcoat from a decree of the Court of Common Pleas of Huntingdon county, dismissing his exceptions to and confirming the report of the auditor appointed to distribute the balance in the hands of B. F. Chilcoat, assignee of James S. Chilcoat.

The facts of this case were as follows: On January 3, 1876, James S. Chilcoat executed an assignment for the benefit of his creditors to B. F. Chilcoat. The deed was duly recorded and

reserved to the assignor his $300 exemption. The assignee filed his account on September 15, 1880; exceptions thereto having been filed, it was referred to an auditor who found as follows: The assignor's household goods and merchandise and his real estate were duly appraised and sold, and the proceeds were paid in discharge of judgment liens, some of which contained waivers of exemption. The assignor had also owned five shares of stock in a building association. The assignee took an assignment of these shares in his own name, and paid the monthly dues thereon under the understanding that, when the stock ran out and was paid off, it should be divided proportionally. Later, the assignee ceased these payments and drew out $280 from the association, no portion of which sum was, however, included by him in his accounts; the auditor surcharged him with $141.06, being the proportional amount, with interest added, of this sum due the assigned estate. The assignor demanded before the auditor his $300 exemption from the balance; this was resisted on the ground that it had been abandoned.

The auditor found as to the question of the abandonment as follows: "From the foregoing testimony, these facts seem to be clearly established, viz., that James S. Chilcoat reserved $300 in his deed of assignment; that he did not have an appraisement of property for that amount, setting the same apart to him; that he more than once declared that he would not, or could not claim the $300 exemption because of the existence of certain exemption notes; and that at a later period he reasserted his claim, which was refused. Another fact is now apparent, to wit: that the non-exemption notes, on which judgment had been entered at the period of the assignment, had been paid (except one small judgment), and there would still be a balance in the hands of the assignee, after the payment of this small judgment."

On the authority of Peterman's Appeal, 26 P. F. Smith, 116, the auditor was of opinion that the assignor was still entitled to claim his exemption, and accordingly awarded to him the balance of $266.50.

Exceptions were filed to this report by the assignee and by other parties, but were dismissed and the report confirmed, whereupon B. F. Chilcoat, assignee, took this appeal, assigning for error the said action of the court.

For appellant, Messrs. John M. Baily and L. H. Beers.

Contra, Messrs. H. E. Shaffer and B. J. Devor. Opinion by GREEN, J. Filed October 2, 1882. The amount awarded to the assignor ($266.50)