Orphans' Court. In Re Estate of RACHEL HALL, a Minor. (1.) F. was discharged as guardian, being insolvent, and filed his account, showing a balance due by him. In a subsequent proceeding in partition, in which he was attorney for petitioner and his successor a party, he was allowed a fee. Held, that his successor should have retained his ward's proportion of the fee. (2.) A judgment against a guardian may be inquired into as between guardian and ward on settlement of the guardian's account. (3.) The measure of the liability of a guardian for failure to pay taxes, make repairs, etc., on real estate of his ward, is the loss resulting. John S. Ferguson was appointed guardian of a small estate of three of the five children (of whom Rachel was one) of John S. Hall, in 1873. In 1876 John S. Hall died hopelessly insolvent, leaving a widow and these five children surviving him. His estate consisted of valuable improved property in Allegheny City. In 1877 John S. Ferguson was discharged from his guardianship, and the present accountant, J. H. McCreery, appointed his successor. (1.) On his discharge Mr. Ferguson filed an account showing a balance due Rachel. He was then, and has been since, insolvent, and nothing could have been made by execution. After his discharge a fee of $300 in a proceeding in partition, in which he was attorney for petitioner and Mr. McCreery as guardian of Rachel Hall et al. was a party, was allowed by the court. Mr. McCreery paid Mr. Ferguson his proportion of the fee, although there was then more than that amount due from Mr. Ferguson as guardian. It was claimed that accountant could and should have secured this fee on account of the balance due from Mr. Fergu son. (2.) During his guardianship Mr. Ferguson, at the instance of and through Mr. Hall, sent Rachel to Dr. Taylor's boarding school, and agreed with Mr. Hall that the expenses should be paid out of Rachel's estate. He made no contract with Dr. Taylor. He believed Mr. Hall at that time to be worth $50,000. Dr. Taylor's bill not having been paid, Mr. McCreery as his attorney brought suit against Mr. Ferguson as guardian and obtained judgment for $314.14. Mr. McCreery now claims credit for the payment of this item, and exception is taken thereto. (3.) From the time of the death of Mr. Hall until his real estate was under, and threatened with, execution, Mr. McCreery did not pay the taxes nor keep the property in repair; but it does not appear that the amount of rent received by him was less than if he had paid taxes, etc. Opinion by HAWKINS, P. J. Filed June 20, 1883. (1.) The fee taxed to John S. Ferguson, Esq., as attorney for petitioner in the partition of the estate of Robert Hall, deceased, was part of the costs of the case payable to the clerk of the Orphans' Court in the first instance, and was therefore not attachable: Act 27th April, 1864, Purd. Dig., 437, pl. 157; Hutchinson & Co. v. Gormley, 48 Pa. St. 270. But there is no apparent reason why Mr. McCreery should not have retained his ward's proportion of the fee on account of the balance due from Mr. Ferguson as late guardian: Sollidey v. Biner, 12 Pa. St., 347. Certainly no court of equity would under the circumstances have enforced its payment. (2.) A judgment against a guardian is not conclusive as respects the ward, but may be inquired into on the settlement of the account between the guardian and ward, and if found to be erroneous, be disregarded: Morris v. Garrison, 3 Casey, 226. The credit claimed by accountant for the judgment obtained by him as attorney for Dr. Taylor against John S. Ferguson as guardian is therefore a proper subject of inquiry. It will be admitted that the primary liability for the support and education of Rachel Hall was on her father, John S. Hall; and that her estate could only be made to bear the burthen on the production of evidence satisfactory to this court of the inability of her father and of the sufficiency of her estate. There is not only no evidence of the inability of John S. Hall to educate his daughter, but positive evidence of his ability. But had it been shown that he could not afford the expense, there is not satisfactory evidence to justify throwing it on her estate. (3.) When all the circumstances of this case have been taken into consideration it will ap pear that the loss resulting from the conduct of the guardian, with reference to his ward's real estate, is not in the amount of rents with which he charges himself, but in the depreciation of the real estate itself. There was no hope from the first, and there is now no allegation that the real estate could have been preserved for the ward; and consequently there was no loss suffered by her by reason of the conduct of her guardian. Had the estate been solvent the result must have been different. For accountant, W. C. Erskine, Esq. they might in order that they might show how promptly they would pay. Garner accordingly accepted the position and among other applications for insurance procured one from the defendant. Garner subsequently discovered that the statements as to the solvency were grossly untrue, and he immediately placed the insurances obtained by him into other companies and returned the "Sunbury" policies to them for cancellation. Whether Humble's policy was so returned was one of the facts in dispute. The defendant offered to prove that the representations made by Price to Garner were made with the assent of the company. Offer objected to by plaintiffs. Objection overruled. Evidence admitted. Exception. (First assignment of error.) Plaintiffs requested the court to charge, inter alia, as follows: First.-If the statements made by John C. Garner to the defendant were believed by him Error to the Court of Common Pleas of Schuyl- and he made them in good faith, it would not kill county. Assumpsit, by the Sunbury Fire Insurance Co., by its receivers, against Thomas Humble to recover for an assessment alleged to be due by the defendant as a member of the Mutual Insurance Company plaintiff. Plea, non-assumpsit. be a fraud on his part, and if it is true, as said Garner testified, that the defendant took the insurance and gave his premium note on the belief expressed by Garner that the company was good, and if the defendant made his application and gave his premium note on the faith of the opinion expressed by Garner, then the On the trial before GREEN, J., the following representations made by Garner as to the condifacts appeared: แ tion of the company, would be immaterial and the plaintiff would be entitled to recover. An The Sunbury Insurance Company was originally incorporated as The Sunbury Cattle In-swer.-It is true as a general principle, that if surance Company," for the purpose of insuring cattle on the mutual plan. Two years later the Legislature granted an amendment to the charter authorizing the directors to take risks on losses by fire on the mutual plan. This amendment was subsequently followed by a change of name, which was granted on condition that the capital be increased to $200,000, which should be invested in real estate upon which the stockholders should have the first lien. On March 6, 1876, the Common Pleas of Dauphin county, at the suggestion of the attorney-general, dissolved the corporation on the ground of insolvency and appointed receivers. The defense showed a large extravagance in the management of the company both before and after the decree dissolving the corporation, and the following facts: John C. Garner testified that one Hiram Price, an agent of the company, called upon him and requested him to act as agent for the company, representing to him that the company had a paid-up capital of $200,000, and had assets amounting to between $20,000 or $30,000 more, that they had never had a loss, and wished the party relied upon mere opinion, and not upon the false representations made, he cannot set up the falsity of the opinion in order to avoid the contract, and to that extent we affirm this point. But, if the jury find that false statements as to material matters were made by the company to Garner, as to the condition of the company, with the design of making him believe that it was a good company, and so that, as agent of the company, he should express that belief to others, and thereby induce them to take policies in the company, this would be such a fraud upon the defendant as would avoid the policy, if this was the inducing cause of the taking of the policy, and particularly if the false statements communicated to the agent were by him communicated to the defendant. Second. That the statement made by Garner that the company had a paid-up capital of $200,000 could not and did not mislead or defraud the defendant, because the Act of 1870, creating a capital stock for this company provided it should be exclusively invested in real estate, and that the stockholders should have the first lien upon the same-and hence this real estate was not applicable to payment of fire losses. Refused. In the general charge the court said: * * * "As a matter of law, we say to you, that if you find that false statements as to material matters were made by the company to Mr. Garner, as to the condition of the company, with a design of making him believe that it was a good company, so that, as an agent of the company, he would express that belief to others, and thereby induce them to take policies in the company, then it would be such a fraud on the defendant as would vitiate the policy if such | statements made to the agent were by him communicated to the defendant, and they were the inducing cause of his taking the policy. If the agent himself was deceived by the company, or its authorized agent, so that he himself might, in turn, deceive others, and they appoint him agent so that he might add the weight of his character or opinion in the attempt to deceive others, if this was the design of the company in making this appointment and these representations, then we think that, where the agent, on the strength of those false statements made to him, represented to the insured and gave it as his opinion, based upon those false representations so made to him, that it was a sound company, the insured would have a right to take advantage of such false representations to avoid the policy, even though he were to swear that it was the opinion of the agent as to the character and solvency of the company that induced him to take his policy." Verdict and judgment for defendant. Plaintiffs thereupon took this writ, assigning for error, inter alia, the admission of the testimony above cited, the answers to his points, and the portion of the charge above quoted. For plaintiffs in error, Messrs. James Ryon and William A. Marr. Contra, Messrs. John W. Ryon and M. R. Kaercher. Opinion by PAXSON, J. Filed October 2, 1882. In this connection it is proper to say that it matters little what were the powers of the agent, who made the fraudulent representations, by means of which the defendant was induced to take his policy, nor whether the agent himself believed them to be true. The company having accepted the policy is affected with any fraud on the part of the person in obtaining it. In other words, it cannot repudiate the fraud and yet retain the benefit of the contract. It takes it cum onere. This is familiar law. See Jones v. The National Building Association, 13 Norris, 215, and authorities there cited. The remaining question in the case need not be discussed at length. The court could not properly say to the jury, as requested by the plaintiff's second point, that Garner's statement that the company had a paid-up capital of $200,000 could not have deceived or injured the defendant. This was not a question of law, but a question of fact and was properly submitted to the jury. The reason given by the company in support of its position is so remarkable that I insert it here without comment. It is "because the Act of 1870, creating a capital stock for this company, provided it should be exclusively invested in real estate, and that the stockholders should have the first lien upon the same-and hence this real estate was not applicable to the payment of fire losses." No errors are perceived either in the answers to points or in the general charge, and the questions of the cancellation of the policy and the legality of the assessments were submitted to the jury under proper instructions. Judgment affirmed. KITTANNING INSURANCE CO. v. SCOTT et al. KITTANNING INSURANCE CO.'S APPEAL. The lien of a judgment is neither destroyed nor affected by an order of court opening the judgment for the purpose of letting the defendant into a defense. Where, pending proceedings under a rule of court to open a judgment for the purpose of letting the defendant into a defense, the judgment is transferred to another county by exemplification of the record, the lien of the judgment is not lost or affected by the proceedings to open it in the original court in which it is entered. Where a court has made absolute a rule to strike off a judgment from the judgment docket, the proper mode of removing the case for revision to the Supreme Court is by writ of error, and not by appeal. Error to the Court of Common Pleas of Butler The evidence referred to in the first assignment of error was offered for the purpose of showing that the representations made by Mr. Price in the preceding January were made by and with the authority of the plaintiff company and assented to by it as correct. We think the learned judge was right in admitting it. There was abundant evidence to show that the com-county and appeal from a decree of said court. pany was a fraud from its inception, and there was ample evidence to submit to the jury that it deceived its agents as to its financial condition in order that they in turn might deceive innocent parties who desired to insure their property. On March 24, 1877, judgment was entered in the Common Pleas of Armstrong county upon a judgment note given by John Scott et al. to the Kittanning Insurance Company. On May 8, 1877, Scott obtained a rule to show cause why said judgment should not be opened and he be ❘ of Common Pleas of Butler county. When the let into a defense. Depositions were taken on certified copy of the record was filed in that this rule, and finally, on February 18, 1878, the court, it was the duty of the prothonotary to same was made absolute. enter it as he did. The act declares that a judgment thus transferred and docketed, shall have the same force and effect as to lien, revival, execution, etc., as if it had been entered in the court to which it is transferred. By virtue of the transfer, the judgment, originally obtained and continuing in force against both defendants in Armstrong county, became a judgment against them in Butler county, and the court was clearly wrong in making the order complained of. On April 28, 1878, an exemplification of the record of the above case was transferred to Butler county, and the name of John Scott was duly entered in the judgment docket in said county, thus indicating that the judgment in said case constituted a lien upon certain real estate of Scott, situated in Butler county. Scott then obtained a rule to show cause why said entry in the judgment docket should not be stricken off, alleging that the judgment in ques- | tion, having been opened, constituted no lien The order of court, making absolute the “rule upon his real estate. to show cause why the entry made by the prothonotary in the judgment or lien docket, should not be stricken off as to John Scott," is reversed and set aside, and it is now ordered that the rule be discharged. The court, in an opinion by MCJUNKIN, P. J., subsequently made the rule absolute. Plaintiff thereupon took the present writ of error and appeal, assigning for error the making of the rule absolute. For plaintiff in error, Messrs. E. S. Golden and L. Z. Mitchell. Contra, R. P. Scott, Esq. | Opinion by STERRETT, J. Filed December 11, 1882. The only subject of complaint in this appeal is, that the court below erred in ordering the Opinion by STERRETT, J. Filed December entry of appellant's judgment, entered on ex11, 1882. One of the incidents of every judgment is a lien, for five years from the date of its entry, on all the real estate then owned by the defendant and situated within the proper county; and that incident is neither destroyed nor affected by an order opening the judgment for the purpose of letting the defendant into a defense: Steinbridge's Appeal, 1 P. & W., 481; Cope's Appeal, 15 Norris, 294. In such cases a special order is sometimes made ex majore cautela that the judgment shall stand as security, but that is wholly unnecessary. Without any such order, it continues to be a judgment with all its incidents and for all purposes, except execution. Pending the defense to a judgment opened for that purpose, it may be revived and the lien thereof continued by issuing a scire facias thereon. If the issue is undetermined, and the plaintiff wishes to continue the lien of his judgment, he must proceed by scire facias within the five years, as in other cases: Cope's Appeal, supra. It follows, therefore, that the order of court in Armstrong county, opening the original judgment as to Scott, one of the defendants, did not disturb the judgment as to either of them any further than was necessary for the purpose of making the defense. For all purposes, except execution against Scott, it remained a valid judgment against both defendants in that county, and pursuant to the provisions of the Act of 1840, Purd., 821, pl.14, it was transferred to the Court emplification of record from the Court of Com mon Pleas of Armstrong county, to be stricken from the judgment docket as to one of the defendants therein. The appropriate remedy was a writ of error, and of that the company appellant has availed itself. An appeal in such cases is unauthorized. Appeal quashed. CRAWFORD v. DAVIS. A change of location of the property is not essentially necessary. If the purchase was in good faith and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession cannot, as matter of law, be held insufficient. Error to the Court of Common Pleas of Chester county. Opinion by MERCUR, J. Filed October 2, 1882. The general rule is that a sale of personal property is not good against the creditors of the vendor, unless possession be delivered by the vendor in accordance with the sale. In determining the kind of possession necessary to be given, regard must be had not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties is required. In view of the language of the first point submitted by the plaintiff, we cannot say the learned judge erred in not affirming it. The remaining assignments are sustained. Thus, where two brothers engaged in the busi- find whether the sale was in good faith or merely ness of manufacturing coaches, became embar- colorable. rassed, and sold their stock in trade to a third brother who had been about the establishment before the sale, and who went into possession, continued the business at the same place, changed the sign to his own name, procured another book-keeper, and opened new books, but both the vendors remained in his employ, each of them superintending a particular department of the work at stipulated wages, it was held there was not such a want of corresponding change of possession, as matter of law, to make LUKENS v. CITY OF PHILADELPHIA, to use. the sale void against creditors of the vendor: Dunlap v. Bournonville, 2 Casey, 72. The same principle is recognized in Born et al. v. Shaw, 5 Id., 288; McKibben v. Martin, 14 P. F. Smith, 352; Evans v. Scott, 8 Norris, 136; Pearson v. Carter, 13 Id., 156. Judgment reversed and venire facias de novo awarded. For plaintiff in error, Messrs. Sidwell & Johnson. Contra, Charles H. Pennypacker, Esq. Where on a scire facias on a municipal claim for paving in the city of Philadelphia, the defense is set up that the charge has been made according to the frontage rule of assessment, whereas the property in front of which the paving has been laid is rural, the classification of the property by the Board of Revision of Taxes for purposes of taxation is not conclusive evidence as to its rural character. It is for the jury to decide from all the evidence in the case whether the property is rural or not. Error to the Court of Common Pleas, No. 4, of Philadelphia county. Scire facias sur municipal claim by the city of Phiadelphia to the use of Emanuel Peters. against Charles Lukens and Eliza, his wife, for the amount due to the use plaintiff for paving Orthodox street in front of certain premises owned by Eliza Lukens, defendant. Plea, that the labor performed and work done were charged for according to the frontage rule of assessment, whereas the ground in front of which said pav time of doing said work rural property, and assessed as such. On the trial it appeared that the work was done by the use plaintiff in pursuance of an ordinance of councils, and of a contract regularly entered into by him with the city. The evidence was conflicting as to whether the prop Evidence was given in the present case tending to prove the vendor to have been an aged and infirm man, residing on a farm under a parol lease, and his son, the plaintiff, resided with him. By reason of infirmities and poverty the father was unable to carry on the farm; he therefore sold and transferred the property now in contention to his son, the plaintiff, in consideration of the latter agreeing to support his father and mother and pay the rent of the farm; that in pursuance of the agreement plaintiff took charge of the farm, bought and put additional stock on it, using the whole, paid the rent, put a man in the farm house to work the farm for him while he was at work on the rail-ing and curving were done is and was at the road, but he returned home nights, employed and paid for the labor on the farm, supported his father and mother until the death of the former, and still supports his mother; that after his purchase his father gave no attention to the farm, but it was worked, managed and controlled exclusively by the plaintiff. As the father and son continued to live after the trans-erty in question was rural or not. Defendants fer of the property in the same house in which they had previously resided, and the property in question remained on the farm, the learned judge charged, as matter of law, that there was not such a change of possession as the law required to protect the property from sale by a creditor of the vendor. In this he erred. A change of location of the property is not essentially necessary. If the purchase was in good faith and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendor assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession cannot, as matter of law, be held insufficient. The case should be sent to the jury to showed that at the time the paving was done said property was classified by the Board of Revision as "suburban," and so appeared on the tax books, being assessed as such. Defendats requested the court to charge, inter alia, as follows: "The fact that the Board of Revision of Taxes had classified the premises in question as rural or suburban in 1873 for the purposes of taxation, is conclusive evidence in this action that they were rural or suburban." Refused. The court charged, inter alia, as follows: "The defense made in this case is that the property was so situated, relatively, to the city that this rule or method of taxation could not be constitutionally or legally applied to it. That |