ment, enduring through the life of the policy. her mother's estate. The deed had already It was at all times obligatory upon the assured, been prepared by Esquire Leas so as to convey and as he had the policy in his own possession, the title to Bomberger, as called for by the he is not at liberty to plead ignorance of its agreement with Sherman, but Mrs. Bomberger contents. In the case of Pottsville Mutual Fire | objected to this and wanted the conveyance to Insurance Co. v. Horan, 12 PITTSBURGH LEGAL | be made to her, giving as a reason that she was JOURNAL, 24, we said: "The insured was a member of the company, had the policy in his possession, and, it must be presumed, he knew it was necessary not only to notify the company that he had erected the new building, but also to obtain the written consent to a continuance of the policy. Having failed to do this, the policy by the very terms of the condition became void." Upon the testimony of the plaintiff and his witnesses it is clear to our minds that the policy in suit was fatally vitiated by the breaches of warranty and condition to which we have referred. The defendant's tenth point, that under all the evidence, the verdict must be for the defendant, should have been affirmed. Judgment reversed. RUPP'S APPEAL. Where the wife's money goes for the purchase of land, and, at the time of the sale, she demands that the deed be made to her, but is overruled by her husband, who takes title himself, the land is subject to a resulting trust in favor of the wife. By an Orphans' Court sale whereat the purchaser takes the land free from all liens, etc., the resulting trust is transferred to the fund which is awarded to the wife in preference to judgment creditors of the husband. furnishing the greater part of the money to pay for the property. Bomberger, however, would not allow the change to be made, and, after some delay caused by this disagreement, the deed as Esquire Leas had prepared it was executed and delivered to Bomberger, who then paid the consideration money with his wife's | $1,500, and $500 of other money, which he at that time got through Esquire Leas from Henry Rife. Previous to this day Rife had promised Bomberger a loan of $1,000, on judgment security, and left the money with Leas to be handed over to Bomberger, which Leas did as soon as the deed was executed, taking for Rife therefor a judgment from Bomberger, and this became the first judgment lien on the land after the conveyance. Before paying Rife's money over to Bomberger, Leas knew that a part of the purchase money for the land was furnished by Mrs. Bomberger, and that she on that account asked to have the land conveyed to her, but when her husband refused to allow this to be done, he (Leas) suggested that if she did not get the deed she ought to have a judgment for her money, or something to show that it was not a gift to her husband. Some days subsequent to the execution and delivery of the deed, Appeal from the Orphans' Court of Cumber- Bomberger and his wife came back to the office land county. The contest in this case is over the proceeds of the sale of the six acres tract of land, the legal title to which was in Joseph Bomberger at the time of his death, and which his administrator sold on an order of the Orphans' Court for the payment of debts. Maria Bomberger, the widow, claims the money on the ground that when her husband, Joseph Bomberger, acquired the legal title he paid to the vendor $1,500 of the consideration with her money belonging to her separate estate, and that thus a trust in the property resulted to her to the extent of the amount of purchase money paid therefor with her separate estate. It appears that some months prior to April of 1878, Charles Sherman, by articles of agreement, sold this land to Bomberger for $2,000, and Esquire Leas, having been employed to write the deed, Bomberger and his wife and Sherman met at the Squire's office on the 8th of April, 1878, Bomberger having in his possession $1,500 of his wife's money, which she, on the day before that, had received on account of her share of of Esquire Leas, and Bomberger gave his wife a note for $1,500—a promissory note, which Leas drew up for them. These are the leading facts of the case, and they are established clearly and indubitably by the uncontradicted testimony of Esquire Leas and Charles Sherman. Opinion by GORDON, J. Filed May 22, 1882. To the able opinion of the learned judge of the court below little, either of force or importance, can be added. From the testimony of Sherman and Leas, nothing can be more clear than that Mrs. Bomberger advanced her own money on the purchase from Sherman, and that, under the express arrangement that the deed was to be made to her. Not only was this her previous understanding and settled determination, but at the very time of the delivery of that deed she insisted upon having it so executed, and never voluntarily agreed to anything else. But what could she do? Her husband had obtained the possession of her money, money that had been but the evening before paid to her by her brother from her mother's estate, and thus paid for the express purpose of investing it in this land; the justice had already drawn the deed in his name, and he, the husband, peremptorily refused to permit it to be altered. Not only so, but he refused, not indeed on her Suggestion, but on that of the justice, even to secure her by a judgment note. If this was a loan by Mrs. Bomberger to her husband, it was a forced one; one to which she never assented, and the note afterwards given to and accepted by her, could not, by implication, bind her to that which was, in no sense, her voluntary contract. In all this she was powerless to accomplish her own purpose, and she was compelled to succumb to the will of her husband, at this time, if we are to believe the evidence, not at all fit to transact business for himself, much less to direct and control that of his wife. Charles Sherman says: "The only reason I can give for the deed not being made in her name, was that Joseph Bomberger was a little contrary. I did not consider he was in his right mind; he had a stroke." We have here, then, every element which is necessary to constitute a resulting trust. Mrs. Bomberger's money is taken and invested in land, the deed to which was to have been made to her, but which in fact, and without her consent, was made to her husband. We think this case, in all its phases, is covered by that of Fillman v. Divers, 7 Casey, 429, in which it was said by Mr. Justice STRONG: "If it was the wife's money which paid for the lot, and if, in addition to this, this money was obtained by the husband on condition that the deed should be taken in the wife's name (as the evidence would seem to show), the law, as it was before 1848, regarded the husband as a trustee for the wife. Nor did the fact of his giving a note for the money, and subsequently a judgment, convert his situation as trustee into that of a mere debtor. But it is objected that the sale under the order of the Orphans' Court could operate only upon the interest of Bomberger; that by it nothing more than his right in the land was conveyed, hence, her equities remained undisturbed, and the money now for distribution, belongs to the estate. Had such been the only effect of the sale, this exception to the ruling of the court would be well taken, for the case would then fall within Kline's Appeal, 3 Wright, 463; but, unfortunately for this position, such is not the fact. The purchaser, having no notice of Mrs. Bomberger's equity, took the title divested of that equity. The sale was of the property as unincumbered, and the money raised by it now stands in its place, and as it can be directly and certainly divided and apportioned among the owners thereof, so must it be divided and apportioned: Thompson's Appeal, 10 Harris, 16. This case is, in principle, supported by Diehl's Appeal, 9 Casey, 405. A decedent had, in his lifetime, by articles of agreement, contracted for a tract of land on which he had paid, at the time of his death, about one-third of the purchase money. An order was made by the Orphans' Court for the sale of the property for the payment of the debts of the estate of the decedent, and it was agreed between the vendor and administrator that the sale should convey the whole title, and under this arrangement the sale was made. Held, that the administrator could be charged only with the amount for which the land sold after deducting therefrom the purchase money due the vendor. In the case in hand, the Orphans' Court sale passed to the purchaser, not only the estate of the trustee, but also that of the cestui que trust, and, following the rule as above stated, of the proceeds thus raised, the creditors of the deceased trustee are entitled to but so much as came from his estate, and the balance belongs to Mrs. Bomberger, the cestui que trust. The appeal is dismissed and the decree affirmed at the costs of the appellant. GALBRAITH v. ZIMMERMAN. The deposition of an interested witness taken in a proceeding when both parties thereto are alive is admissible after the death of one of them, in another proceeding touching the same subject-matter between the survivor and the representative of the deceased party. If, however, the deposition be insufficient to prove the fact for which it is offered, the judgment will not be reversed, although there may have been error in rejecting it on the ground of competency. Where there is some evidence as to the delivery of a deed, the question whether it has been delivered or not is for the jury. The evidence in this case as to such delivery held insufficient to justify the submission of the question to the jury. Error to the Court of Common Pleas of Montgomery county. Ejectment by William Galbraith against Joshua Zimmerman for a tract of farm land containing about twenty-one acres, situate in Upper Providence township, Montgomery county. Plea, not guilty. Before trial the defendant died, and his heirs were substituted on the record. On the trial, before Ross, P. J., the plaintiff offered evidence tending to show that sometime in 1878 the original parties to the suit made a verbal agreement to exchange certain real estate: Galbraith to convey eight houses in Philadelphia to Zimmerman, while the latter plaintiff took this writ, assigning for error the was to convey the farm in dispute to the plain- | rejection of O'Connel's deposition and the entry tiff. Afterwards the plaintiff executed the of the nonsuit. deeds for his property to Zimmerman, and sent them to be recorded. Zimmerman executed his deed, but it still remained in his possession, and was produced by the defendants in court. For plaintiff in error, Geo. N. Corson, Esq. Contra, Geo. W. Rogers, Esq. Opinion by GREEN, J. Filed May 29, 1882. We are very clear that there was error in the rejection of O'Connel's deposition. At the time it was taken, he was a competent witness, notwithstanding his interest, and under the well settled rule in such cases, the testimony then taken could be given in evidence at the subsequent trial. The former controversy was practically between the same parties and in relation to the same subject-matter. In that proceeding O'Connel's testimony was taken. The objec tion to his competency, on account of his interest in the suit, could not have prevailed if it had been then made. At the time of the trial of the present action, Zimmerman being dead, and the witness interested against him, the objection on the ground of interest necessarily prevailed, and he was properly excluded. But when his testimony, taken when he was competent, in a proceeding relative to the same subject-matter and practically between the same parties, was offered, there was no legitimate reason for its exclusion. The learned court below admitted the deposition of the adverse party, Galbraith, taken in the same proceeding, after having rejected him as a witness on the trial, but, for some reason which is not clear to us, rejected the deposition of O'Connel, who was not a party, but merely an interested witness. The following cases establish very clearly the competency of the rejected deposition : Pratt v. Patterson, 31 P. F. Smith, 114; Evans v. Reed, 28 Id., 415, and 3 Norris, 254; Hay's Appeal, 10 Id., 265. The plaintiff, for the purpose of proving the delivery of Zimmerman's deed, called one P. M. O'Connel, who, having been sworn on his voir dire, testified that he was interested in the result of the suit by having an agreement with the plaintiff, in case he recovered the land, to purchase it at a stipulated price. The witness was rejected as incompetent, and thereupon the plaintiff offered the deposition of the witness taken in an equity proceeding between the original parties in the lifetime of Zimmerman touching the same subject-matter as that involved in this suit. The deposition of the plaintiff taken in the same proceeding had been previously admitted by the court. Offer overruled and evidence rejected, the court saying: "This Act of 1869 is intended to protect the dead. It is not intended to enlarge the powers of a living witness. And though I receive Mr. Galbraith's testimony, who was a party, I receive it because I think he would have been a witness under the old law. I reject this because Mr. O'Connel would not have been a witness under the old law, and I find in looking at the statute that | the testimony of a witness authorized by this act may be had by deposition and commission issued as the case may require with such notice to the party to be examined, and to the adverse party, as it now or may hereafter be decided by the rules of the proper court touching the taking of depositions and testimony upon commission. I believe the Supreme Court have overlooked the full force and meaning of that; and while I admit that the reasoning which has been adduced is very plausible, and might be used to sustain a ruling of a contrary character, still I declare distinctly that, as he was not a witness under the old law, and as his testimony was not taken under the new statute for the special purpose of this cause, as his interest was not disclosed, or, at least, as there is no evidence that he would become a witness under the statute, neither at common law, by the rules of evidence, nor under the statute, in my judgment, is he a witness." The court entered a nonsuit, on the ground that there had been no delivery of Zimmerman's deed by him to the plaintiff. The evidence on this point is fully set forth in the opinion of the Supreme Court. A motion to take off the nonsuit having been denied, the The test of present admissibility is the competency of the testimony at the time it was given. Thus in Hay's Appeal, supra, we said, on page 268: "When the plaintiff testified, he was undoubtedly a competent witness, and nothing that occurred thereafter would have justified the court or master in excluding his testimony." In 31 P. F. Smith, on page 117, Mr. Justice MERCUR, speaking of Evans v. Reed, said: "There it was said, 'if the deposition of a party be duly and regularly taken, so as to be admissible in evidence in a pending case, it is very clear that it would be admissible in a subsequent suit between the administrators of the parties involving the same subject-matter.' Here it is a subsequent suit, tried after the death of one of the parties, and involving the same subject-matter. The very case assumed there substantially exists here. In each case the testimony was not only admissible when taken, but had actually been given in evidence." But notwithstanding we are of opinion that the learned judge of the court below was in error in rejecting O'Connel's deposition, we do not think it proper to reverse the case. The reason is that in our view it was entirely immaterial. The deposition of O'Connel has been printed, and it is returned with the record. We have read the whole of it with the utmost care, and are constrained to say that if it had beeu admitted and gone to the jury, the court would nevertheless have been bound to order a nonsuit, or direct a verdict for the defendant. | The action was ejectment for a tract of land owned by the defendant, Joshua Zimmerman, | and alleged to have been conveyed by Zimmerman to Galbraith, the plaintiff. It was proved that there was a verbal agreement between the parties for the exchange of the tract in question for eight houses and lots of the plaintiff situate in Philadelphia. It was further proved that the plaintiff had executed the deed for the eight lots to be conveyed by him, and had placed them on record. The last of them was dated January 6, 1879, and the first, August 29, 1878. The verbal agreement was partly made in the early part of August, 1878. The testimony showed, however, that it was not then completed, as Zimmerman insisted upon seeing the eighth house before he would close the bargain. He did subsequently see it, while it was in the course of construction, but it does not appear that at any time after that he was really willing to make the exchange. At an early stage of the negotiations, a written agreement for the exchange had been prepared at the instance of Galbraith, and an attempt was made to get Zimmerman to sign it, but it was unsuccessful. He never signed it. At the time the verbal agreement was made, it was proposed that a written agreement should be prepared, but both parties said their word was as good as their bond, and it was not done. At the same time O'Connel proposed to make out the papers for them, but both declined, and each said he would have his own papers prepared. Afterwards, Galbraith executed deeds for all of the eight houses, but the last one was not executed till January 6, 1879. These deeds were placed on record by Galbraith, and this, of course, constituted a good delivery on his part. A deed was also prepared and executed by Zimmerman and wife. In point of fact, it was never delivered to Galbraith or to any one for him, nor was it ever placed upon record. Delivery is a matter of fact, and a question of delivery is a question of fact, and in all ordinary cases must be disposed of by a jury. If there was evidence enough in this case to sustain the verdict of a jury to the effect that a delivery of the deed from Zimmerman to Galbraith had taken place, the court below was in error, and the judgment would have to be reversed. A most patient consideration of the testimony has convinced us that there was no such evidence in the case, including the deposition of O'Connel, and for that reason the judgment must be affirmed. It is apparent from the testimony of both the plaintiff and O'Connel that Zimmerman, not long after the execution of the deed from himself and wife to Galbraith, repented of his bargain, and determined not to carry it out. Thus Galbraith testifies: "Every time I saw Zimmerman I would speak to him about the title to the farm. He would always make excuse, and say he expected to be back in a week, or expected to be down in a week. Afterwards he told me the deed was in Norristown. When Mr. O'Connel and I met him here on January 13, 1879, he said the deed was at the Rambo House; we went there, but could find no deed. I believe there are two houses of same name or similar, and we went to both, but got no deed." O'Connel says: "I believe Mr. Galbraith and I went to see Zimmerman. I believe I took the deeds with me. We went to Zimmerman's house. I told Zimmerman I believe that these were the deeds; presented them to him, and wanted to deliver them." Then Zimmerman produced the deed, signed by himself and wife, to Galbraith, and said: "There was the deed all ready, but he wanted to see the property before he delivered it. *** He said he wanted to see the property before he delivered the deed and the house that was not finished." It is evident there was no delivery up to that time. The witness adds: "I believe I did not see Mr. Zimmerman again in Philadelphia until after this suit was brought." The date of this interview is not given, but the witness says it was after Zimmerman had seen the seven houses, and before he had seen the eighth houses. Some time later, the witness and Galbraith met Zimmerman at Norristown. He testifies: "We asked him about the deed, and he said he had sent it to be recorded. This was after his visit to the eighth house. *** I think I next saw him in January, this year (1879). Galbraith and I were going to his house, and we met him in Norristown. I had the Galbraith deeds along. I wanted Zimmerman to take them, and he refused. I don't recollect what was said; we asked where his deed was, and he said at some hotel, I think the Veranda." This is evidently of testimony that it was ever out of his posses- v. ENSMINGER. Where the secretary of a mutual insurance company declares that the company will not pay a loss, it is a waiver not only of preliminary proofs but also of a condition in the policy that suit shall not be commenced until the expiration of ninety days after proof of loss. Error to the Court of Common Pleas of Perry county. Covenant by James A. Ensminger against the Farmers' Mutual Fire Insurance Company of | Middle Pennsylvania, on a policy of insurance on a dwelling house belonging to the plaintiff. Suit was begun on April 22, 1879. On the trial, before BARNETT, P. J., the plaintiff offered in evidence the policy issued by the company defendant, dated September 12, 1878, for the term of three years, in the amount of $500. It contained, inter alia, the following conditions: the same interview described by Galbraith. The latter testified further: "On the 13th of January, 1879, Mr. O'Connel and I came to Norristown with all these deeds to be given to Mr. Zimmerman. We met Mr. Zimmerman | on the street in a carriage in Norristown, as we were gonig out. We stopped and spoke, and he told us to follow him down, where he stopped, near the depot. We were on friendly terms FARMERS' MUTUAL FIRE INSURANCE CO. then. I told him we had been to Roger's office, and the deed was not there, and I asked Zimmerman where the deed was, and he said at the Rambo House. I told him that I had written once or twice for the title to the farm, and that he had not answered my letter, and that if he did not give me the deed at once I would have to enter suit against him. Mr. O'Connel then offered him all the deeds to the houses, and said: 'Here are all the deeds and papers.' He made some excuse, and said the deed to the farm was at the Rambo House. We went there and could not find it. He then went into the car, and called me in by myself; he said: 'Galbraith, I don't want to give that farm now; I don't want houses in the city now, and the houses are with you, and the farm with me, and I would rather keep the farm.'" It is quite clear there was no delivery of the deed up to this time, and equally certain that there was no intention to deliver it. Galbraith says further: "The next and last time I saw him was on February 6, 1879." He then describes another interview, in which Zimmerman again refused to give him the farm, and the witness threatened to bring a suit at once. He also describes a meeting early in October, when the written agreement for the exchange was signed by Galbraith and offered to Zimmerman for signature, but he refused. It is too clear for argument from the testimony of the plaintiff and his own witness that the defendant, Zimmerman, refused to sign any agreement in writing; that he never delivered the deed for the farm to Galbraith, or to any one for him, and that he never recorded it, or sent it to be recorded, and further that he refused to receive the deeds of Galbraith for the eight houses, and deliberately announced to Galbraith his purpose to disregard the verbal agreement, and to refuse to convey the farm. The action is ejectment, founded upon an allegation of actual title in the plaintiff, by force of a deed executed and delivered. There is no proof of such a delivery, and had the rejected deposition of O'Connel been admitted, and the jury found a verdict for the plaintiff, it would have been the duty of the court to set it aside. The deed for the farm was in the possession of Zimmerman at the only time when it was seen; there is not a particle "The amount of loss or damage to be estimated according to the actual cash value of the property at the time of loss, and to be paid ninety days after due notice and proofs of the same shall have been made by the assured and received at this office." The plaintiff proved the total loss of the insured property by fire, on the night of January 20, 1879, and that notice thereof was given to the defendant on January 24, 1879. He then offered to prove that the secretary of the company defendant, in pursuance of said notice, made an appointment to meet the plaintiff; that at this meeting the secretary denied all liability on the part of the company, and distinctly said that it would pay nothing to the plaintiff by reason of the loss sustained by his building being burned either at ninety days or at any other time. This for the purpose of showing that there was a distinct waiver of any and all restrictions of time as to when an action should be brought. The defendant objected, because it was not proposed to show authority in the secretary to waive stipulations in the policy. Objection overruled. Evidence admitted. Exception. The plaintiff further showed that he gave the company formal proofs of loss on February 14, 1879. |