Imagens da página

District Court, United States.

no standard; each case must stand on its own four legs, as the parties built it up."

Western District of Pennsylrania, This instruction was not calculated to aid the jury in arriving at a correct conclusion. In

IX ADMIRALTY. view of the character of the evidence, it was not only inadequate but misleading and erroneous.

THE D. S. NEWCOMB. The attentions, from which the jury were permitted to infer a promise of marriage, were of an equivocal character. The plaintiff in error

The general maritime law gives no lien for services in

raising a sunken vessel, rendered in her home port, bad been in the house of the prosecutrix but

Nor is a contract for raising a sunken vessel within four times, according to her own statement and

the purview of a local statute which gives a lien for that of her mother, and then only for a short work done or materials furnished “in the building, time. He met her out in the evenings, some repairing, fitting, furnishing or equippirty" vessels, times at church, walked home with her, and

although the execution of the contract involves the

bulk-heading, planking up and closing the breaks in left her at the gate. This is not the kind of in

her hull to keep her afloat while being towed to the tercourse that usually takes place between per-| docks. sons engaged to be married. It may tend to

Sur exceptions to libel. matrimony but is quite as likely to lead to something else. Circumstantial evidence of an en

Opinion by ACHESOX, D. J. Filed July 15, gagement of marriage is to be found in the proof

1882. of such facts as usually accompany that rela- It is conceded that the libellant's services tion. Among them may be mentioned letters, were maritime, and that the libel sufficiently presents, social attentions of various kinds, avers that they were rendered upon the credit visiting together in company, preparation for of the D. S. Newcomb, the objection to this housekeeping and the like. These and similar libel in rem, that they were performed at the circumstances, especially when the attentions home port of the boat, still remains. That in are exclusive and continued a long time may such case no lien exists by the general maritime well justify a jury in finding a promise of mar- law is settled : The Lottawanna, 21 Wall., 558; riage. But the court below ignored all these | The Monongahela Navigation Co. v. The Steammatters as being no longer essential, or rather tug Bob Connell et al., 27 PITTSBURGH LEGAL as belonging to a past age, and virtually in- | JOURNAL, 123. structed the jury that attentions paid to a wo- ('an the libel be sustained under the local man "in a secluded place" are quite as satis- statute? The steam-tug D. S. Newcomb had factory evidence of such promise.

been sunk in the Allegheny river at the foot of We cannot assent to this proposition. The Thirteenth street, in the port of Pittsburgh, circumstances which will warrant a jury in and the libellant's services were in raising and finding an intention to marry must be of those putting her afloat ready for the dry-dock. The pure acts, which mark an honorable purpose Act of Assembly, it seems to me, gives no lien and not attentions which are consistent only for such services. “All debts contracted * * * with the pursuit of lust.

for or on account of work and labor done or The instruction complained of in the fourth materials furnished * * * in the building, reassignment, while not positive error, was well pairing, fitting, furnishing or equipping" vescalculated to mislead the jury in the absence of sels, is the language of the act: Par. 97. In any adequate instruction upon the law of the | the present case the contract was for raising a case.

sunken boat for a specified sum of money. It The fifth assignment does not appear to be is true the libel avers that this “involved the sustained by an exception and moreover is im- necessity of making material repairs to said material.

vessel by bulk-heading, planking up and closWe can not say it was error to refuse to with-ing breaks and opening in her hull, and makdraw the question of seduction from the jury. ing the same seaworthy, so that said vessel There was some proof that plaintiff' in error ad could be towed and navigated and taken to the mitted the promise to marry. The mere evi- docks located on the Ohio river, in the lower dence of his attentions to the young woman part of Allegheny City." But the main thing was not sufficient to carry the case to the jury. was the raising of the boat, and the alleged re

The judgment is reversed, and it is ordered pairs were merely incidental, and but tempothat the record, with this opinion setting forth rary expedients to keep the boat afloat while the causes of reversal, be remanded to the court being towed to the neighboring docks for rebelow for further proceedings.

| pairs. The Act of Assembly is not to be en------- - - - - -larged by construction. I am of opinion that there anything to show that this new lease has it does not embrace the libellant's contract. any connection with the mortgage, except that

The third exception to the libel is sustained. a copy (apparently landlord's copy) is recorded

Let a decree be druen dismissing the libell in the same book and on the same day as was with costs.

the mortgage. Nor is the new lease mentioned For libellant, Messrs. John Barton & Son.

in the writ of scire facias.

The mortgage, in addition to the leasehold, For exceptants, Jessis. Knox & Reed.

mentioned as expiring 1st January, 1877, has

the following clause: “And also, all the right, Court or Common Pleas, No. 2. title, interest, claim and demand of same lessce,

of, in, to and out of said premises, accruing or M. D. ERWIN et ux. v. MICHAEL DORIS.

to accrue from a renewal of said lease."

Is this sufficient to extend the lien of the

mortgage to the after-acquired leasehold, by a The conveyance or pledge, by a married woman, of a chattel real, to be thereafter acquired, is void.

married woman? A mortgage of a mere ex

pectancy or possibility, is void as such. At best Questions of law reserved.

it is but a contract to execute such mortgage. Opinion by EWING, P. J. Filed July 29, When the title has been acquired, to make such 1882.

contract binding, there must be a good legal It is not necessary to determine as to whether and equitable consideration : Baylor v. Comor not, the leasehold property mentioned in the monwealth, 4 Wright, 42, and cases there cited. mortgage, a town lot with store and dwellings The general rule of law is that a married thereon, is the subject of a mortgage under the woman cannot convey or bind her estate. To Acts of Assembly.

hold her conveyance or mortgage good, we must The judgment on the scire facias is conclu- find authority in the Acts of Assembly for her sive between the parties as to the amount of the deed. On looking to the statutes on the subdebt, and that the interest of the mortgagee atject, the wording appears to exclude either in the date of the mortgage is to be taken in exe- words or by implication any authority to concution for the payment of the debt. The judg- vey or mortgage anything beyond her existing ment cures all formal defects and concludes interest. detenses. If on its face the mortgage is abso In the absence of statutory authority her conlute, as a fee simple title, it would take any veyance or pledge of a chattel real, to be theretitle acquired by the mortgagor up to the date after acquired, would be void. The mortgage of judgment: Hartman v. Osborn, 4 P. F. on its face shows the mortgagor to have been a Smith, 120, and cases there cited. What in- married woman, and shows that her mortgage terest then does the mortgage itself cover? On of anything beyond her existing right or interits face it is the existing leasehold interest of a est was void: Baylor v. Commonwealth, supra. married woman in the property described, and This fact stares in the face any purchaser, and the lease is recited as being dated 30th Septem- we are unable to see how the judgment could ber, 1867, and the term expiring 1st January, cure this patent defect or want of power, or how 1877. This lease was then of record as appears it can cure the failure to show on record any from the certificate in evidence, though that connection between the lease mortgaged and fact is not referred to in the mortgage, nor was the new lease on which the plaintiff' now claims it recorded with the mortgage. It had expired to hold the property. This case differs essenbefore the mortgage was recorded, and of course tially from the recent case of The Market Bank before the scire facias issued. That lease con- | 1. Daum and wife, in which this court held tained no agreement for renewal, and so far as that the judgment on scire facias concluded the appears from the evidence, Mrs. Johnston had defendant from setting up the defense that land neither legal nor equitable right to any term had been included in the mortgage by mistake. beyond the expiration of her existing lease at The mortgage in that was absolute, the descripthe 1st of January, 1877.

tion was not ambiguous, and Mrs. Daum was Mrs. Johnston procured a new lease, dated absolute owner in fee simple at the date of the 30th December, 1876, running to 1st January, mortgage. For these and other reasons we are 1893, on terms and conditions essentially differ- of the opinion that the law is with the plaintiff ent from those of the lease mentioned in the on the questions reserved. mortgage. There is nothing in the lease to in

And judgment is ordered accordingly. dicate that this is a renewal of, or that it had. For plaintiff, J. HI. While, E-g. any connection with the former lease. Nor is / Contra, Messrs. John Coyle and C. C. Taylor.

Pittsburgh Legal Journal.

Supreme Court, Penn'a.

performed, is clearly recognized.

[ocr errors]

received from the said James E. Brown, now

deceased, the money at the time of the making ESTABLISHED 1853,

and delivery of the said note and collateral E. Y. BRECK,

: Editor. thereto. X. S., Vol. XIII.

That the notes in suit were received by James 0. S., Vol. XXX. }

No. 2.

E. Brown, now deceased, as aforesaid, before PITTSBURGH, PA., AUGUST 23, 1882.

maturity, for a valuable consideration. There was no notice to him that either Frederick Miller, the maker, or Adam Miller, the indorser of these notes, had any defense thereto at the time

they were received by him. He received them HILLER v. POLLOCK et al.

in the usual course of business, paid his money therefor, and thus became the bona fide holder

and owner of the same. The distinction between a merely collateral security and a security given as an inducement to an act which is

Neither of the aforesaid notes given by S. G.

W. Brown to James E. Brown, now deceased, The discounting of new notes on the faith of certain to which the notes in suit were received as colother notes, that were given with them as collateral

lateral, were paid, or reduced below the original before maturity, was a new and valuable consideration passing between the parties at the time, and the

| amount for which they were severally given, principal notes not having been paid, the holder of | nor were the notes in suit paid, or any part them and the collaterals was entitled to recover on the | thereof, but were duly protested for non-paysaid collaterals.

ment, and suit brought thereon by James E. Our statutes of amendments have been liberally construed, and it has been repeatedly held that parties

Brown, now deceased, against Adam Miller, might be stricken out or added whenever by so doing the indorser. the cause can be tried on its merits, and the right to so | To the plaintiff''s claim or demand in suit, amend is not confined to a mere inistake of fact in the

in the the defendants plead payment, fraud, etc., to name of a party.

which the plaintiff filed a counter-affidavit deError to the Court of Common Pleas of Butler

| nying the payment and fraud, etc. county.

Prior to the trial of the case James E. Brown, On the 19th of March, 1877, James E. Brown, the plaintiff, died, and the record was amended now deceased, whose administrators are the by substituting his administrators, James Mosplaintiffs below, received from S. G. W. Brown grove and William Pollock, and the pleadings the first note in suit, made by Frederick Miller, | were amended accordingly. On the trial the for $861.93, payable six months after date to the evidence disclosed the fact that James E. Brown, order of Adam Miller, indorsed by Adam Mil- now deceased, was and always had been the ler and S. G. W. Brown, as collateral security owner of the notes in suit by indorsement, as to a note that day made and delivered by the aforesaid, and that they now belonged to his said S. G. W. Brown to the said James E. estate, and that the suit, as originally brought, Brown, deceased, for the sum of $1,011, due in in the name of the Kittanning Insurance Comone month after date, to which note said col- pany, was by mistake. The court thereupon, lateral was attached, for wbich note of $1,011, on motion of the plaintiff's counsel, allowed with collateral attached, the said S. G. W. the record to be amended accordingly, so that Brown received from the said James E. Brown the case night be tried upon its real merits, the money at the time of the making and de- | the defendant not claiming surprise, but being livery of said note and said collateral thereto. willing to go to trial. On the trial the plaintiff

On the 7th of May, 1877, James E. Brown, de- proved the negotiation of the notes as aforesaid, ceased, whose administrators are the plaintiff's set forth by S. G. W. Brown to James E. Brown below, received from S. G. W. Brown the other for value before maturity, and without notice note in suit, made by Frederick Miller, for of any defense thereto. There was no offer on $878.37, payable twelve months after date to the the part of the defendant to prove payment of order of Adam Miller, indorsed by Adam Mil- the notes in suit to James E. Brown, or his ler and S. G. W. Brown, as collateral security estate, the owner and holder of them, or an acto a note that day made and delivered by the ceptance by James E. Brown of any valuable said S. G. W. Brown to the said James E. consideration in payment or satisfaction of said Brown for the sum of $1,018, due three months notes or any part thereof. after date, to which said note said collateral The negotiation and settlement stated by the was attached. For the said note of $1,018, with plaintiff in error, between A. L. Ivory, Adam collateral attached, the said S. G. W. Brown Miller, Frederick Miller and S. G. W. Brown, form no part of the history of the case, are for- Leading Cases, 234, and numerous authorities eign to the issue, and therefore denied.

there cited. In several of these cases the disUpon the above stated facts given in proof, tinction between a merely collateral security the jury found for the plaintiff for the amount and a security given as an inducement to an of the notes in suit, with interest.

act which is performed, is clearly recognized. For plaintiff in error, Messrs. H. H. Goucher Such of the facts above stated as were not and Lev. McQuistion.

admitted by the defendant in the court below, Contra, Messrs. S. F. Bowser and L. 2. were clearly proved by competent and unconMitchell.

tradicted evidence, and there was, therefore, no

error in giving the jury binding instructions as Opinion by STERRETT, J. Filed January 2, / to its legal effect. There was not a particle of 1882.

| evidence in the case on which they could have The real difficulty in the way of a successful based any other conclusion. defense in the court below was the fact, estab-! While the third and fourth assignments are lished by uncontradicted evidence, that the not according to rule, and therefore not entitled negotiable notes in suit had passed before ma- to notice, it is very evident from what has been turity for a valuable consideration into the said that the points therein referred to were hands of a bona fide holder, since deceased, rightly refused for the reasons given at length whose personal representatives were the plain- by the learned judge in his answers thereto. tiffs of record. This presented an obstacie that the fifth and sixth assignments of error are the defendant below could not overcome by the not sustained. The offers of evidence embraced aid of any evidence in the cause, or any evi- in the former were rightly refused for the readence which he proposed to introduce. The sons given by the court below. There was no notes made by Frederick Miller to the order offer to show payment, either legal or equitable, of and indorsed by defendant below were de- / to the holder of the notes. livered to Samuel G. W. Brown, in considera- As to the amendment complained of in the tion of the sale and transfer of his interest in first and second assignments, we are of opinion the firm of Brown & Ivory to Frederick Miller, that it was fully authorized by the letter as well the maker. Having thus originated in a regular as by the spirit of our statutes on that subject. business transaction, the notes were undoubt. The cause of action was unchanged. In its inedly valid in the hands of the first indorsee, ception the suit was against the payee and first who, before maturity, and for a valuable con- lindorser of the notes by a party supposed to sideration passing to him at the time, indorsed be the legal holder thereof. But it clearly apand delivered them to James E. Brown whose peared during the progress of the trial that this personal representatives are the plaintiff's be- was a mistake; that instead of the Kittanning low. Each of the notes was separately taken Insurance Company being the legal and James by James E. Brown as collateral to a larger E. Brown the equitable owner at the time suit note made by Samuel G. W. Brown and simul- was brought, the latter was both legal and taneously discounted for him on the faith of beneficial owner of the notes, and hence the the collateral, and the proceeds drawn by him. amendment was properly allowed in order that The larger notes were renewed, but neither of the case might be tried on its merits. The Act them was ever paid or reduced. It is therefore of May 4, 1852, expressly authorizes the court, a mistake to suppose that James E. Brown did at “any stage of the proceedings, to permit not thus become a bona fide holder of the notes amendments by changing or adding the name in suit for value. It is true they were indorsed or names of any party, plaintiff or defendant, and delivered to him as collateral security, but whenever it shall appear that a mistake or not as collateral for a pre-existing indebtedness. omission has been made in the name or names The discounting of the larger notes on the faith of any such party." Our statutes of amendand credit of the note that accompanied eachments have been liberally construed, and it has respectively, was a new and valuable considera- been repeatedly held that parties might be tion passing between the parties at the time, stricken out or added whenever by so doing the and the principal notes not having been paid, cause can be tried on its merits, and the right either in whole or in part, the collaterals were to so amend is not confined to a mere mistake outstanding and valid in the hands of James E. of fact in the name of the party. As is said in Brown for their full face, and, according to well Commonwealth ex rel. v. Dillon, 32 P. F. Smith, settled principles, the plaintiffs were entitled to i 44: “An action may be commenced in the recover: Munn 1. McDonald, 10 Watts, 270 ; name of a wrong party by mistake of law, and Spering's Appeal, 10 Barr, 235; in American the Legislature meant the power of amend-- - - ment to extend to that case." If the defendant ing acts. The Act of 15th April, 1828, authorbelow was surprised by the amendment he had izing such releases to be recorded, requires that a right to ask a continuance, but, instead of they shall be executed "before at least two comdoing so, his counsel informed the court that petent subscribing witnesses.” The present rehe did not claim surprise nor ask a continuance. / lease has but one subscribing witness and does

We discover nothing in the record of which not come within the act: Hellerman v. Hellerthe plaintiff in error has just reason to com- man, 4 Rawle, 440, The 24th section of the plain. The insuperable difficulty was, as stated | Act of 26th April, 1850, P. L., 581, authorizes in the outset, that he had no available defense the recording of such releases only when they to the payment of the notes in the hands of a shall have been duly acknowledged or the exebona fide holder for value.

cution thereof proved by the existing laws for Judgment affirmed. | the acknowledgment and proof of the execution

of deeds or other instruments of writing conPOWELL'S APPEAL.

cerning any lands or tenements.” As the re

lease of Mrs. Powell was not so acknowledged, A release of a legacy charged on land by a married wo- it is manifest the Act of 1850 does not apply. man to her husband, is not a conveyance of land, and

Nor is the case affected by the Act of April 11, hence does not fall within the provisions of the Act of February 21, 1770, relating to acknowledgments; but

| 1848. The acknowledgment by the wife referred unless duly acknowledged the same would not come

to in said act is where the husband seeks to within the recording acts.

convey or encumber her separate estate. The Effect of such a release upon judgment creditors of the

1st section of the Act of April 11, 1856, P. L., husband, who are induced and misled thereby to loan

| 315, repeals so much of the married woman's money to the husband,

Act of 1848 as provides that the acknowledgment Appeal of Joanna Powell from the decree of

of a deed or mortgage conveying the separate the Court of Common Pleas of Franklin county.

estate of a married woman may be made differAppeal of James R. Wilson, Anna M. Fiery,

ently from her acknowledgment when joining executrix of Solomon Fiery, deceased, and Sam

her husband in conveying his real estate. uel McCreery from the same decree.

This release is not void, however, because not Opinion by PAXSON, J. Filed October 3, 1881. so acknowledged as to bring it within the re

It was contended that the release of Joanna cording acts. As before observed, it was not a Powell in her husband's favor, for the one-half conveyance of an interest in lands. It conof the legacy of $3,000 charged upon his land, cerned personal property, was a mere chose in was invalid, for the reason that it was not prop- action, and as such within her own control with erly acknowledged. The acknowledgment was the consent of her husband. As this release made before a justice of the peace, who certified was made to her husband, at his request and that before him “personally appeared the within for his benefit, his consent is to be presumed. nained Joanna Powell and acknowledged the | It was held in Bond v. Bunting, 28 P. F. Smith, foregoing instrument of * * * signed by her to 210, that a married woman, her husband joining be her act and deed, and that the same was done therein, could assign her choses in action withwithout any coercion of her husband, Benja- out acknowledgment of any kind, and the dismin M. Powell, and desired that the same might tinction is there pointed out between a chose in be recorded as such * * * and further, the said action and a mortgage; the latter, though a Joanna Powell acknowledged the release sepa- security for money, is also a conveyance of land. rate and apart from her said husband." It is This release is sufficient in form, however, true the justice does not certify that the contents defective the acknowledgment may be. It was of the paper were made known to Mrs. Powell said to be in valid, however, for the reason that as required by the Act of February 21, 1770. it was not executed by Mrs. Powell of her own That this omission is a fatal defect in convey- free will; that she did not know what she was ances of real estate is decided in numerous cases. signing, and that she received no consideration I cite only two of the recent ones: Miller v. therefor. And it was urged that if the release Wentworth, 1 Norris, 280; Hornbeck v. The was invalid as to her husband, it was equally so Building Association, 7 Id., 64. This, liowever, as to his judgment creditors, who merely stand was not the case of a conveyance of land. Mrs. upon the foot of their debtor. Powell had no dower in her father's estate and The only witness called to attack the release could have had none. What she held was a was Mrs. Powell herself, who, although incommere legacy. That it was charged upon land petent, was permitted to testify by agreement. makes no essential difference. A release of a Giving entire credit to what she says, she fails legacy charged upon land is within the record- | to show any fraud practiced upon her in the

« AnteriorContinuar »