this allegation, to establish it. [If the plaintiff satisfies you from the evidence in the case that, when the judgment was given, it was agreed between Solomon R. Kline and Jeremiah Roth that Roth would pay the debt of Mrs. Barner, it being the amount owing on this note in suit, and that the judgment was confessed on condition that Roth would pay this claim of Mrs. Barner, and if it is proved that there was a promise or undertaking by Roth to pay the debt of Kline which he owed to Mrs. Barner, and that that promise or undertaking induced Kline to confess judgment, the plaintiff can recover in this suit.] If the plaintiff has not satisfied you that such a contract was made, and that the judgment was given upon that condition, your verdict must be in favor of the defendant. And I say to you here that there must be an absolute promise on the part of Mr. Roth. If he merely said that he would pay the note of Mrs. Barner, in case Kline could not or would not, it would not be enough to hold him; it would not be such an undertaking as to bind Jeremiah Roth, and if you find that that was all that was said, your verdict must be in favor of the defendant." Verdict and judgment for plaintiff, whereupon defendant took this writ, assigning for error, inter alia, the answers to the above points and the portion of the general charge inclosed in brackets.

given, the jury must have found that the plaintiff in error, in consideration of obtaining the confession of judgment, promised absolutely and unconditionally to pay the balance due on the note, and that the judgment for $5,000 was given by Kline on the faith of that promise. Any doubt that may have existed as to the essential features of the agreement was thus settled by the verdict. That there was a good consideration for the promise found by the jury can scarcely be doubted. The plaintiff in error, by obtaining the confession of judgment when he did, was placed in a better position than he occupied before. He acquired a lien on the real estate of his debtor then in failing circumstances which gave him an advantage over Mrs. Barner and other unsecured creditors. While he was thus benefitted by the preference acquired, she was prejudiced to the extent that her chances for the security, and ultimate collection of the note were impaired. Kline was not bound to prefer him to the exclusion of Mrs. Barner or any of his other creditors, and if, for the purpose of protecting her, he gave the judgment on condition that plaintiff in error would pay her claim, coupled with an express promise to do so, it cannot be doubted there was sufficient consideration for the promise. While the promise was not made to her, it was undoubtedly intended for her benefit. In Hind v. Holdship, 2 Watts,

Contra, Messrs. Henninger & Dewalt.

Opinion by STERRETT, J. Filed October 2, 1882. The testimony in relation to the parol agreement specially declared on was somewhat conflicting, but being clearly proper for the consideration of the jury, it was for them to say what the parties meant, what their contract was. After referring to the testimony, the learned judge said, in substance, if the jury were satisfied from the evidence that, when the judgment was given, it was agreed between Kline and Roth that the latter would pay the debt due to Mrs. Barner; that the promise or undertaking of Roth to pay the debt induced Kline to give the judgment, and it was confessed on that condition, then the plaintiff might recover; but, on the other hand, if the plaintiff failed to satisfy them that such was the contract and condition on which the judgment was given, their verdict must be for the defendant. He also instructed them that there must be an absolute promise on the part of Roth. "If he merely said he would pay the note, in case Kline could not or would not, it would not be enough to hold him." In view of the explicit instructions thus

it arise from any act of the plaintiff, from which the defendant or a stranger derives any benefit, however small, if such act is performed by the plaintiff with the assent, express or implied, of the defendant, or by reason of any damage or any suspension or forbearance of the plaintiff's right at law or in equity, or any possibility of loss occasioned to the plaintiff by the promise of another, although no actual benefit accrues to the party undertaking." It is not essential that the consideration should be adequate in point of actual value, for the reason that the law does not weigh the quantum of consideration. The presumption is that plaintiff in error could not have obtained a preference, whereby Mrs. Barner's security would be lessend, if he had not assumed the payment of her claim.

Again, it is worthy of notice that plaintiff in error is not merely an irregular indorser of the note described in the declaration, and which he specially promised to pay in consideration of obtaining the judgment. The note to the order of Mrs. Barner reads: "One year after date we promise to pay," etc., and is signed by both Kline and plaintiff in error; by the former, in the usual place at the right; and by the latter on the left, under the words "credit the drawer."

The declaration is not against him as maker, but the manner in which the note is signed shows he is not a mere stranger to the debt he promised to pay. Moreover, the note could have been regularly negotiated by Mrs. Barner, and, in the hands of her indorsee, he might have been liable on his irregular indorsement. It cannot be said, therefore, that he was so far a stranger to the note that he was not pecuniarily interested in making provision for its payment. These features of the cause are sufficient to distinguish it from those that are mainly relied on by the plaintiff in error.

From what has been expressed, it may safely be concluded that the parol promise declared on was founded on a good and sufficient consideration, and was made for the benefit of the defendant in error. If this be so, there appears to be no valid objection to her maintaining a suit in her own name.

The assignments of error are not sustained. Judgment affirmed.

LUDWIG'S APPEAL.

A widower of fifty-seven years of age entered into an ante-nuptial contract with a destitute widow of sixty

three, whereby the latter, in consideration of a good

and comfortable support during her life and a decent

Christian burial, agreed to release all claim in and to

her intended husband's estate.

Held, that the contract was upon a sufficient consideration, and that on the husband's death the widow was accordingly not entitled to $300 exemption.

Appeal of Ephraim Ludwig from a decree of the Orphans' Court of Mercer county, dismissing exceptions to an appraisement of three hundred dollars' worth of property, set apart for the use of Eva, widow of Abram Ludwig, deceased. The facts were as follows: About July 1, 1867, Abram Ludwig, the father of Ephraim Ludwig and other children, being a widower, and possessed of property worth nearly $15,000, made a proposal of marriage to Eva Rickert, a poor and destitute widow. The same was accompanied by a request for an ante-nuptial agreement. The said Eva Rickert accepted the proposal, and assented to the request. Thereupon the two entered into a written agreement, whereby the said Eva Rickert, for the sum of one dollar, and "In consideration of her comfortable support and maintenance during life, and a decent Christian burial at her death," agreed "to relinquish, remise and quit-claim all dower and thirds, and right and title of dower and thirds, and all other right, title, interest, claim or demand whatsoever, in law or equity, that she may acquire in the real and personal estate of the said Abram Ludwig, in case the said in

tended marriage be had and solemnized." On July 3, 1867, they were married. On November 25, 1881, Abram Ludwig died intestate. After his death, ample provision was made for the "comfortable maintenance and support" of the widow, and accepted by her for two months afterwards, when she refused further to accept the terms and provisions of the said ante-nuptial settlement, and demanded her dower and rights as widow, under the intestate laws. At her request, appraisers were appointed, who appraised and set apart property to the value of $300 for her separate use. To such appraisement and exemption Ephraim Ludwig, one of the children of Abram Ludwig, excepted.

Subsequently the court, McDERMITT, P. J., dismissed the exceptions, and confirmed the said appraisement and exemption. Whereupon Ephraim Ludwig took this appeal, assigning for error the decree of the court.

For appellant, Messrs. S. R. Mason, Zeigler and Bowser.

Contra, Messrs. I. A. Stranahan and Mehard. Opinion by PAXSON, J. Filed December 30, 1882.

It was decided in Tiernan v. Binns, 11 Norris, 248, that when a woman about to marry relinquishes by an ante-nuptial contract all right of dower, and all interest of any kind whatever, to which she might be entitled in the estate of her intended husband by reason of her marriage, she waives her right to $300 of her husband's estate under the Act of April 14, 1857.

It was contended, however, that this case does not come within the rule of Tiernan v. Binns, for the reason that the ante-nuptial contract was a fraud upon the wife; that the provision contained therein for the latter was inadequate and disproportioned to the means of her husband, and that the case comes within the rule laid down in Kline's Estate, 14 P. F. Smith, 122, where it was said that "while it might not be necessary to show affirmatively that there was a full disclosure of the property and circumstances of each, yet if the provision secured for the wife was unreasonably disproportionate to the means of the intended husband, it raised the presumption of designed concealment, and threw upon him the burden of proof:" Kline's Estate was well decided. It was recognized in Tiernan v. Binns, and we have no disposition to depart from it. But we are unable to see its application to the present case. It must be remembered that in Kline's Estate the auditor found the fact that the wife had not only signed the ante-nuptial contract in ignorance of her rights, but that the extent of her husband's

property had been concealed from her at the time of the execution of the contract. How stand the facts here? Abram Ludwig was fiftyseven years of age, a widower with eleven children, when he entered into this ante-nuptial contract with Mrs. Eva Rickert, the appellee. The latter was at that time a destitute widow, sixty-three years of age. Abram was then possessed of real and personal estate worth about $14,000. The contract itself recited the facts that "the said Abram Ludwig is seized of lands and tenements situate in said county of Mercer; also certain personal property in said county," and then provides that the said Abram and his heirs, executors and administrators, shall give and furnish the said Eva Rickert a good and comfortable support in health and in sickness for and during her life, and at her death, furnish her with a decent and Christian burial." This, with the nominal sum of one dollar is all the benefit Mrs. Rickert took under the contract.

The consideration is ample to sustain the contract if it is free from fraud or concealment.

Upon this point we have the uncontradicted testimony of Judge MAXWELL, who drew the paper. He says: "I wrote this ante-nuptial contract. My recollection is the parties and myself were alone in the office at the time this contract was written. I read it to the parties before it was executed. After I read this article I turned to Mrs. Rickert and said to her: 'Now, Mrs. Rickert, if you sign this, you get nothing from Mr. Ludwig's estate except your keeping and your decent Christian burial.' I said further, 'I want you to understand what you are doing, for Mr. Ludwig has a large property; how much I don't know, but whatever it is, you will have no interest in it at his death-that is what the paper says.' She replied to me that she understood it."

The widow was examined without objection on her own behalf, but she does not say that she did not understand the paper, or that she was deceived or misled as to the extent of her husband's estate; nor does she make any complaint of ill treatment by the children after her husband's death. She moved away from her home because her son-in-law desired her to live with him.

There is not a scintilla of evidence to bring this case within the doctrine of Kline's Estate. If we regard the provision for the widow as inadequate, it merely throws the burden of proof upon her husband's representatives, and it has been fully met. From a sentimental stand-point, the provision for the wife would not seem to be generous. But a widower of fifty-seven, with

eleven children, seldom contracts a second marriage from mere sentiment.

He may have thought it was enough, in view of her age and position, to give her a comfortable home, a decent support during her life, and a Christian burial after her death. At any rate it is very clear she was of that opinion, and that is an end of the case.

It would have been wiser to have fixed a sum certain for the support of the widow. The failure to do so, however, does not take away the consideration of the contract. The estate is bound for her support, and, in case of disagreement about details or amounts, the Orphans' Court has ample power in the premises.

All of the assignments except the last, are to errors in the opinion of the court. They need not be discussed for obvious reasons. The last assignment is to the confirmation of the appraisement of the property set apart for the widow under the Act of Assembly. This assignment is sustained.

Decree reversed at the costs of the appellee, and it is ordered that the record be remitted for further proceedings.

PHILLIPS v. HULL.

A., the plaintiff in the judgment, purchased B.'s property at sheriff's sale, on the agreement that he should hold it for a year and sell it at a private sale, paying to B. the residue after A.'s debt was paid. B. brought ejectment against A. for the land.

Held, that as B. had not paid or tendered the amount of the judgment and interest he could not bring his action, and that A. would not be compelled to hold the property subject to B.'s right in it for an unreasonable time. Error to the Court of Common Pleas of Crawford county.

Opinion by MERCUR, J.

1882.

Filed December 30,

This is an action of ejectment to recover land bought at sheriff's sale by the plaintiff in error as the property of the defendant. The plaintiff owned and was interested in judgments against the defendant in error, aggregating about $11,000. The latter seeks to recover on a parol agreement made by the plaintiff in error, by which he was to sell the land at sheriff's sale, buy it, and hold it until a private sale thereof could be made, and after the amount due to him was paid, the defendant in error was to have the residue. The latter was to advance nothing, to pay nothing. Without his assent the plaintiff could have sold. The defendant made no agreement that he would afterwards purchase the land at any price. If this were the whole case, it is very clear the defendant in error could not recover. As the purchase was made and the money paid

by the same person, a refusal to fulfill the agreement is no more than the violation of a parol agreement, and equity will not decree the purchaser to be a trustee: Kisler v. Kisler, 2 Watts, 323; Sidle v. Waters, 5 Id., 391; Robertson v. Robertson, 9 Id., 32; Fox v. Heffner, 1 W. & S., 372; Jackman v. Ringland, 4 Id., 149; Barnet v. Dougherty, 8 Casey, 371; Kellum et al. v. Smith, 9 Id., 158; Bennett v. Dollar Savings Bank, 6 Norris, 382.

It is claimed, however, by the defendant in error, that the plaintiff was guilty of a trick or artifice, whereby the effect of the sheriff's sale was avoided. It may be conceded that a trick or artifice unknown to the defendant in error, which operated to his prejudice, would have that effect. If, however, he had full knowledge of the alleged fraudulent act, and participated in it, or if the act now complained of did not operate to enlarge or affect the title, which would otherwise have passed by the sheriff's sale, then the equitable rule does not aid the defendant in this case.

The first complaint is, that the plaintiff in error induced the Mullens, who were later judgment creditors, to stay away from the sheriff's sale, and not bid against him, by representing that if he bought it, the defendant was to have the privilege of selling the land at private sale for his benefit. All this conversation with the Mullens was in the presence and hearing of the defendant and his wife. They participated in it. At the same time an agreement was made as to the payment of the Mullen judgment. The defendant in error and his wife each testifies, that plaintiff said he would give $100 on it, and that they would pay $100 in corn, and that he would guarantee the payment of the residue of the judgment.

The Mullens are not here complaining. They are not parties to this suit, nor interested in the judgment. No question arises with any creditor of the defendant. This is purely a question between the parties, and between them alone. Whatever was said and done to prevent the Mullens from bidding at the sale was with the knowledge and assent of the defendant. In contemplation of law it was as much his act as the act of the plaintiff. If it was wrong he was a party to that wrong. He cannot now set it up to affect the sheriff's sale.

The other complaint is, that the plaintiff bid only $4,000, instead of about $11,000, as he should have done. If, however, in all respects, he recognizes his duty and obligation to be the same as if he had bid the larger sum, we do not see how the defendant is prejudiced by the smaller bid. The latter testifies, that a few days after

the sheriff's sale, the plaintiff informed him that he had bought the farm for $4,000. At this he complained; but on being told that it was better for him, as it saved sheriff's percentage, and should not make any difference in their bargain, he was satisfied. This subsequent assent was a ratification as effective as if the bid had been previously authorized.

The defendant testifies, that his liberty to make a private sale was not limited to any specific time. The plaintiff swears it was to be within one year. Three other witnesses, Beeman, McCracken and Webb, each testifies to the admission of the defendant, indicating he was to have one year only in which to effect a sale. If, however, no time was specified, and he was under no legal obligation to sell, he could not claim his option to continue for an unreasonable time. In fact, the plaintiff did extend the time for six months beyond the year. In the meantime, an offer of $13,000 was made to the defendant for the land, but he refused it. All this time he was in possession of the property, and, at most, paying no more than the interest on the indebtedness. On demand of possession by the plaintiff he gave it up, without being ejected by legal process, and afterwards brought his suit.

The plaintiff in error admits an arrangement was made substantially as defendant testified, varying as to the time in which the latter might sell it. But he further testifies, that at all times since the sheriff's sale, he has been, and now is ready and willing, on payment of the amount due him, to convey the land to the defendant or to any person he may designate. With the exception of about one year's interest on the judgments of the plaintiff, no part of them has been paid since the sale. The defendant in error seeks to recover possession of the land and hold adversely without making payment. His claim is one in equity only. He must first do equity. He must either pay or tender payment. He has not done either. His own testimony shows no such artifice or fraud on the part of the plaintiff as to relieve him from his obligation.

The learned judge, under the whole evidence, should have affirmed the first, second and tenth points submitted by the plaintiff in error, as well as the eleventh, that the verdict be in his favor. In so far as the other specifications are in accordance with this opinion, they are sustained. Judgment reversed and venire facias de novo awarded.

For plaintiff in error, Messrs. Geo. F. Davenport, James A. Stranahan and Wm. R. Bole. Contra, Messrs. J. B. Brawley and John J. Henderson.