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witness. He was directly interested in the Jeremiah Roth, upon the following promissory question. But that is not enough-he must be note: directly interested in the case before the court. “$200.

SALISBURY, March 31, 1871. It is clear that he could neither gain nor lose by "One year after date I promise to pay to Elevina E.

Barner two hundred dollars, with interest from date, any decision on the claiin of Chalfant and Her

without defalcation, for value received. ron, and it is equally clear that the record of

"(Signed)

SOLOMON R. KLINE. their proceeding could not be given in evidence "Credit the drawer, JEREMIAH ROTH." for or against him. Had this been a scire facias Indorsed “Jeremiah Roth.” to foreclose the mortgage, he could not be a wit Plea, the general issue. ness, being one of the terre-tenants of the land. At the first trial a compulsory nonsuit was That is all that was decided in Kinson v. Keck, entered, which was on motion taken off. 8 W. & S., 16, referred to by the learned judge The plaintiff thereupon filed an amended below in his opinion. Marshall's evidence was narr., setting forth the facts substantially as relevant and competent, whether sufficient to they afterwards appeared in evidence. establish a resulting trust or not. The Orphans' On the trial (before ALBRIGHT, P. J.), the Court in the settlement and distribution of the plaintiff testified that Kline, the maker of the estates of decedents has undoubted jurisdiction note, was indebted to herself and Roth, the deto decide upon the claims of creditors. It is fendant; that the latter desired to be secured by true, if there was no valid trust their claim could a confessed judgment from Kline, who finally only be for damages for breach of contract, and agreed to give him the desired security in connot for the balance of the purchase money of sideration for his securing to Mrs. Barner the the land. But we think there was enough debt owing her. In pursuance of this arrangehere to show a valid trust, within the decisions ment, Kline confessed a judgment to Roth, and which have been made under the etatute of Roth and Kline executed the note in suit. frauds. That statute is a shield against fraud, The defendant requested the court to charge. not a weapon to make it effectual. Certainly | inter alia : the claimants could not set up that they were | 4. It having been shown by the plaintiff that trustees ex maleficio as against their cestui que Kline owed Roth more than the amount of the trust. But suppose the parol agreement had judgment, and that it was given to secure the been in writing, can it be doubted that they debt of Roth, and there being no proof that could have claimed the balance of the purchase Roth was to pay the claim of the plaintiff out money! To say that, while the cestui que trust of the proceeds, the verdict must be for the decould insist on the specific performance of the fendant. Answer:- This is answered contract, the trustee could not, would not be to negative. (First assignment of error.) hold the scales of justice even. We think that 5. No contract has been shown in this case by the surrender of the bonds and mortgage to that can be enforced by the plaintiff, and the the mortgagors, held and produced by the claim- verdict must be for the defendant. Answer.ants, and the evidence of the payment of a con- Negatived. (Second assignment of error.) siderable sum by Watters on account of the 6. The plaintiff cannot recover on the conpurchase money, the contract was so far exe-tract declared upon, because it is not averred cuted that it would be unjust and inequitable that the consideration of the judgment was in not to carry it into full effect.

part the debt of the plaintiff. Answer:-NegaDecree affirmed and appeal dismissed at the tived. (Third assignment of error.) costs of the appellant.

8. Under all the evidence, the verdict must

be for the defendant. Answer.- Negatived. ROTH V. BARNER.

(Fifth assignment of error.)

In the general charge, the court, inter alia, Where a crelitor. in consideration of obtaining a con. said: “Kline testifies that Roth said that if he.

fessed judgment from his debtor, agrees to pay the | Kline, would confess this judgment, he would claim of another creditor, the contract is such a one see that Mrs. Barner would be made all right. as will support an action by the latter against the

He further testifies that he said he would sign a promissor. In such a case, the presumption is that the promissor

judgment if he, Roth, would see that this note could not have obtained a preference against the other would get all right, and that Roth agreed to it;

if he had not assumed the payment of the that he then gave him a judgment; that he did claim.

not say anything further about the note, except · Error to the Court of Common Pleas of Lehigh that Roth said that if he, Kline, would give him county.

another judgment, he would be satisfied. * * * Assumpsit, by Elevina E. Barner against ! "The burden is upon the plaintiff, who makes

the

this allegation, to establish it. [If the plaintiff given, the jury must have found that the plainsatisfies you from the evidence in the case that, tiff in error, in consideration of obtaining the when the judgment was given, it was agreed confession of judgment, promised absolutely and between Solomon R. Kline and Jeremiah Roth unconditionally to pay the balance due on the that Roth would pay the debt of Mrs. Barner, | note, and that the judgment for $5,000 was given it being the amount owing on this note in suit, by Kline on the faith of that promise. Any and that the judgment was confessed on condi- doubt that may bave existed as to the essential tion that Roth would pay this claim of Mrs. / features of the agreement was thus settled by Barner, and if it is proved that there was a | the verdict. That there was a good considerapromise or undertaking by Roth to pay the debt tion for the promise found by the jury can of Kline which he owed to Mrs. Barner, and scarcely be doubted. The plaintiff in error, by that that promise or undertaking induced Kline obtaining the confession of judgment wben he to confess judgment, the plaintiff can recover indid, was placed in a better position than he octhis suit.] If the plaintiff' has not satisfied you cupied before. He acquired a lien on the real that such a contract was made, and that the estate of his debtor then in failing circumstances judgment was given upon that condition, your which gave him an advantage over Mrs. Barner verdict must be in favor of the defendant. And and other unsecured creditors. While he was I say to you here that there must be an absolute thus benefitted by the preference acquired, she promise on the part of Mr. Roth. If he merely was prejudiced to the extent that her chances said that he would pay the note of Mrs. Barner, for the security, and ultimate collection of the in case Kline could not or would not, it would note were impaired. Kline was not bound to not be enough to hold him; it would not be prefer him to the exclusion of Mrs. Barner or such an undertaking as to bind Jeremiah Roth, any of his other creditors, and if, for the purand if you find that that was all that was said, pose of protecting her, he gave the judgment on your verdict must be in favor of the defendant." | condition that plaintiff in error would pay her

Verdict and judgment for plaintiff, where claim, coupled with an express promise to do so, upon defendant took this writ, assigning for it cannot be doubted there was sufficient considerror, inter alia, the answers to the above points eration for the promise. While the promise was and the portion of the general charge inclosed not made to her, it was undoubtedly intended in brackets.

for her benefit. In Hind v. Holdship, 2 Watts, For plaintiff in error, Messrs. Edward Harvey 104, it is said: “A consideration is sufficient if and M. C. L. Kline.

it arise from any act of the plaintiff, from which Contra, Messrs. Henninger & Dewalt.

the defendant or a stranger derives any benefit,

however small, if such act is performed by the Opinion by STERRETT, J. Filed October 2, 1882.

| plaintiff with the assent, express or implied, of The testimony in relation to the parol agree-| the defendant, or by reason of any damage or ment specially declared on was somewhat con- any suspension or forbearance of the plaintiff's flicting, but being clearly proper for the consid- right at law or in equity, or any possibility of eration of the jury, it was for them to say what loss occasioned to the plaintiff by the promise the parties meant, what their contract was. of another, although no actual benefit accrues After referring to the testimony, the learned to the party undertaking." It is not essential judge said, in substance, if the jury were satis- that the consideration should be adequate in fied from the evidence that, when the judgment point of actual value, for the reason that the was given, it was agreed between Kline and law does not weigh the quantum of consideraRoth that the latter would pay the debt due to tion. The presumption is that plaintiff in error Mrs. Barner; that the promise or undertaking could not have obtained a preference, whereby of Roth to pay the debt induced Kline to give | Mrs. Barner's security would be lessend, if he the judgment, and it was confessed on that con- had not assumed the payment of her claim. dition, then the plaintiff might recover; but, Again, it is worthy of notice that plaintiff in on the other hand, if the plaintiff failed to sat-1 error is not merely an irregular indorser of the isfy them that such was the contract and condi- note described in the declaration, and which he tion on which the judgment was given, their specially promised to pay in consideration of verdict must be for the defendant. He also in obtaining the judgment. The note to the order structed them that there must be an absolute of Mrs. Barner reads: “One year after date we promise on the part of Roth. “If he merely promise to pay,” etc., and is signed by both said he would pay the note, in case Kline could Kline and plaintiff in error; by the former, in not or would not, it would not be enough to hold the usual place at the right; and by the latter on him." In view of the explicit instructions thus the left, under the words “credit the drawer."

The declaration is not against him as maker, tended marriage be had and solemnized.” On but the manner in which the note is signed July 3, 1867, they were married. On November shows he is not a mere stranger to the debt he 25, 1881, Abram Ludwig died intestate. After promised to pay. Moreover, the note could his death, ample provision was made for the have been regularly negotiated by Mrs. Barner, “comfortable maintenance and support” of the and, in the hands of her indorsee, he might widow, and accepted by her for two months have been liable on his irregular indorsement. afterwards, when she refused further to accept It cannot be said, therefore, that he was so far the terms and provisions of the said ante-nuptial a stranger to the note that he was not pecunia- settlement, and demanded her dower and rights rily interested in making provision for its pay- as widow, under the intestate laws. At her rement. These features of the cause are sufficient quest, appraisers were appointed, who appraised to distinguish it from those that are mainly and set apart property to the value of $300 for relied on by the plaintiff in error.

her separate use. To such appraisement and From what has been expressed, it may safely exemption Ephraim Ludwig, one of the chilbe concluded that the parol promise declared on | dren of Abram Ludwig, excepted. was founded on a good and sufficient considera- Subsequently the court, McDERMITT, P. J., tion, and was made for the benefit of the de- dismissed the exceptions, and confirmed the fendant in error. If this be so, there appears to said appraisement and exemption. Whereupon be no valid objection to her maintaining a suit Ephraim Ludwig took this appeal, assigning for in her own name.

error the decree of the court. The assignments of error are not sustained. For appellant, Messrs. S. R. Mason, Zeigler Judgment affirmed and Bowser.

Contra, Messrs. I. A. Stranahan and Mehard. LUDWIG'S APPEAL.

Opinion by PAXSON, J. Filed December 30, A widower of fifty-seven years of age entered into an

1882. ante-nuptial contract with a destitute widow of sixty. It was decided in Tiernan v. Binns, 11 Norris, three, whereby the latter, in consideration of a good 21

248, that when a woman about to marry relin

+1 and comfortable support during her life and a decent Christian burial, agreed to release all claim in and to quisnes by an anten

quishes by an ante-nuptial contract all right of her intended husband's estate.

dower, and all interest of any kind whatever, Held, that the contract was upon a sufficient considera to which she might be entitled in the estate of tion, and that on the husband's death the widow was l her intended husband by reason of her marriage. accordingly not entitled to $300 exemption.

she waives her right to $300 of her husband's Appeal of Ephraim Ludwig from a decree of estate under the Act of April 14, 1857. the Orphans' Court of Mercer county, dismiss- It was contended, however, that this case does ing exceptions to an appraisement of three hun- not come within the rule of Tiernan v. Binns, dred dollars' worth of property, set apart for the for the reason that the ante-nuptial contract was use of Eva, widow of Abram Ludwig, deceased. a fraud upon the wife; that the provision con

The facts were as follows: About July 1, 1867, tained therein for the latter was inadequate and Abram Ludwig, the father of Ephraim Ludwig disproportioned to the means of her husband, and other children, being a widower, and pos- and that the case comes within the rule laid sessed of property worth nearly $15,000, made a down in Kline's Estate, 14 P. F. Smith, 122, proposal of marriage to Eva Rickert, a poor and where it was said that “while it might not be destitute widow. The same was accompanied necessary to show affirmatively that there was by a request for an ante-nuptial agreement. The a full disclosure of the property and circumsaid Eva Rickert accepted the proposal, and stances of each, yet if the provision secured for assented to the request. Thereupon the two the wife was unreasonably disproportionate to entered into a written agreement, whereby the the means of the intended husband, it raised the said Eva Rickert, for the sum of one dollar, and presumption of designed concealment, and threw “In consideration of her comfortable support upon him the burden of proof:Kline's Estate and maintenance during life, and a decent was well decided. It was recognized in TierChristian burial at her death,” agreed "to re- nan v. Binns, and we have no disposition to linquish, remise and quit-claim all dower and depart from it. But we are unable to see its apthirds, and right and title of dower and thirds, plication to the present case. It must be reand all other right, title, interest, claim or de- membered that in Kline's Estate the auditor mand whatsoever, in law or equity, that sbe found the fact that the wife had not only signed may acquire in the real and personal estate of the ante-nuptial contract in ignorance of her the said Abram Ludwig, in case the said in- rights, but that the extent of her husband's property had been concealed from her at the eleven children, seldom contracts a second martime of the execution of the contract. How | riage from mere sentiment. stand the facts here? Abram Ludwig was fifty- He may have thought it was enough, in view seven years of age, a widower with eleven chil- of her age and position, to give her a comfortable dren, when he entered into this ante-nuptial home, a decent support during her life, and a contract with Mrs. Eva Rickert, the appellee. Christian burial after her death. At any rate

r was at that time a destitute widow, it is very clear she was of that opinion, and that sixty-three years of age. Abram was then pos- | is an end of the case. sessed of real and personal estate worth about It would have been wiser to have fixed a sum $14,000. The contract itself recited the facts certain for the support of the widow. The failthat “the said Abram Ludwig is seized of landsure to do so, however, does not take away the and tenements situate in said county of Mercer; consideration of the contract. The estate is also certain personal property in said county," bound for her support, and, in case of disagreeand then provides that the said Abram and his ment about details or amounts, the Orphans' heirs, executors and administrators, shall give Court has ample power in the premises. and furnish the said Eva Rickert a good and All of the assignments except the last, are to comfortable support in health and in sickness errors in the opinion of the court. They need for and during her life, and at her death, I not be discussed for obvious reasons. The last furnish her with a decent and Christian burial." assignment is to the confirmation of the apThis, with the nominal sum of one dollar is praisement of the property set apart for the all the benefit Mrs. Rickert took under the widow under the Act of Assembly. This ascontract.

sigument is sustained. The consideration is ample to sustain the con- Decree reversed at the costs of the appeller, tract if it is free from fraud or concealment. and it is ordered that the record be remitted for

Upon this point we have the uncontradicted further proceedings. testimony of Judge MAXWELL, who drew the paper. He says: “I wrote this ante-nuptial

PHILLIPS v. HULL. contract. My recollection is the parties and myself were alone in the office at the time this A., the plaintiff in the judgment, purchased B.'s property contract was written. I read it to the parties

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. before it was executed. After I read this article

the residue after A.'s debt was paid. B. brought ejectI turned to Mrs. Rickert and said to her: 'Now, ment against A. for the land. Mrs. Rickert, if you sign this, you get nothing Held, that as B. had not paid or tendered the amount of from Mr. Ludwig's estate except your keeping

the judgment and interest he could not bring his action, and your decent Christian burial.' I said fur

and that A. would not be compelled to hold the prop

erty subject to B.'s right in it for an unreasonable time. ther, ‘I want you to understand what you are doing, for Mr. Ludwig has a large property;

Error to the Court of Common Pleas of Crawhow much I don't know, but whatever it is,

ford county. you will have no interest in it at his death-that! Opinion by MERCUR, J. Filed December 30, is what the paper says.' She replied to me that | 1882. she understood it."

This is an action of ejectment to recover land The widow was examined without objection bought at sheriff's sale by the plaintiff in error 'on her own behalf, but she does not say that she as the property of the defendant. The plaintiff did not understand the paper, or that she was owned and was interested in judgments against deceived or misled as to the extent of her hus- the defendant in error, aggregating about $11,000. band's estate; nor does she make any complaint The latter seeks to recover on a parol agreement of ill treatment by the children after her hus made by the plaintiff in error, by which he was band's death. She moved away from her home to sell the land at sheriff's sale, buy it, and hold because her son-in-law desired her to live with it until a private sale thereof could be made, him.

and after the amount due to him was paid, the There is not a scintilla of evidence to bring defendant in error was to have the residue. The this case within the doctrine of Kline's Estate. latter was to advance nothing, to pay nothing. If we regard the provision for the widow as in- | Without his assent the plaintiff could bave sold. adequate, it merely throws the burden of proof | The defendant made no agreement that he upon her husband's representatives, and it has would afterwards purchase the land at any been fully met. From a sentimental stand-point, price. If this were the whole case, it is very the provision for the wife would not seem to be clear the defendant in error could not recover. generous. But a widower of fifty-seven, with | As the purchase was made and the money paid

by the same person, a refusal to fulfill the agree- the sheriff''s sale, the plaintiff informed him ment is no more than the violation of a parol that he had bought the farm for $4,000. At this agreement, and equity will not decree the pur- he complained; but on being told that it was chaser to be a trustee: Kisler v. Kisler, 2 Watts, better for him, as it saved sherifl''s percentage, 323; Sidle v. Waters, 5 Id., 391; Robertson v. and should not make any difference in their Robertson, 9 Id., 32; Fox v. Heffner, 1 W. & S., bargain, he was satisfied. This subsequent as372; Jackman v. Ringland, 4 Id., 149; Barnet sent was a ratification as effective as if the bid v. Dougherty, 8 Casey, 371; Kellum et al. v. | had been previously authorized. Smith, 9 Id., 158; Bennett v. Dollar Savings The defendant testifies, that his liberty to Bank, 6 Norris, 382.

| make a private sale was not limited to any speIt is claimed, however, by the defendant in cific time. The plaintiff swears it was to be error, that the plaintiff was guilty of a trick or within one year. Three other witnesses, Beeartifice, whereby the effect of the sheriff's sale | man, McCracken and Welıb, each testifies to was avoided. It may be conceded that a trick the admission of the defendant, indicating he or artifice unknown to the defendant in error, was to have one year only in which to effect a which operated to his prejudice, would have sale. If, however, no time was specified, and that effect. If, however, he had full knowledge he was under no legal obligation to sell, he could of the alleged fraudulent act, and participated not claim his option to continue for an unreain it, or if the act now complained of did not sonable time. In fact, the plaintiff did extend operate to enlarge or affect the title, which the time for six months beyond the year. In would otherwise have passed by the sheriff''s the meantime, an offer of $13,000 was made to the sale, then the equitable rule does not aid the defendant for the land, but he refused it. All defendant in this case.

this time he was in possession of the property, The first complaint is, that the plaintiff in and, at most, paying no more than the interest error induced the Mullens, who were later judg- on the indebtedness. On demand of possession ment creditors, to stay away from the sheriff's by the plaintiff he gave it up, without being sale, and not bid against him, by representing ejected by legal process, and afterwards brought that if he bought it, the defendant was to have his suit. the privilege of selling the land at private sale. The plaintiff in error admits an arrangement for his benefit. All this conversation with the was made substantially as defendant testified, Mullens was in the presence and hearing of the varying as to the time in which the latter might defendant and his wife. They participated in sell it. But he further testifies, that at all times it. At the same time an agreement was made since the sheriff's sale, he has been, and now is as to the payment of the Mullen judgment. ready and willing, on payment of the amount The defendant in error and his wife each tes- due him, to convey the land to the defendant tifies, that plaintiff said he would give $100 on or to any person he may designate. With the it, and that they would pay $100 in corn, and exception of about one year's interest on the that he would guarantee the payment of the judgments of the plaintiff, no part of them has residue of the judgment.

been paid since the sale. The defendant in The Mullens are not here complaining. They error seeks to recover possession of the land and are not parties to this suit, nor interested in the hold adversely without making payment. His judgment. No question arises with any creditor claim is one in equity only. He must first do of the defendant. This is purely a question be- equity. He must either pay or tender payment. tween the parties, and between them alone. He has not done either. His own testimony Whatever was said and done to prevent the shows no such artifice or fraud on the part of the Mullens from bidding at the sale was with the plaintiff'as to relieve him from his obligation. knowledge and assent of the defendant. In The learned judge, under the whole evidence, contemplation of law it was as much his act as should have affirmed the first, second and tenth the act of the plaintiff. If it was wrong he was points submitted by the plaintiff in error, as well a party to that wrong. He cannot now set it as the eleventh, that the verdict be in his favor. up to affect the sheriff's sale.

In so far as the other specifications are in acThe other complaint is, that the plaintiff bid cordance with this opinion, they are sustained. only $4,000, instead of about $11,000, as he should Judgment reversed and venire facias de novo have done. If, however, in all respects, he rec-awarded. ognizes his duty and obligation to be the same for plaintiff in error, Messrs. Geo. F. Davenas if he had bid the larger sum, we do not see port, James A. Stranahan and Wm. R. Bole. how the defendant is prejudiced by the smaller / Contra, Messrs. J. B. Brawley and John J. bid. The latter testifies, that a few days after Henderson.

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