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by an execution. We have no court in which the equity of redemption canbe foreclosed.”
In Helfrich v. Obermyer, 15 Pa. St. 113, 115, Chief Justice GIBSON said:
Land is a chattel for payment of debts only when the law has made it a fund for that purpose. It then has undergone a species of conversion, so fai as may be necessary to the purpose of satisfaction, which extinguishes every derivative interest in it which cannot consist with the qualities it has been made to assume. Thus, a judgment, or a mortgage, binds it and converts it; and it is seized as personal property on a fieri facias, which•commands the sheriff to levy the debt off the defendant's goods and chattels. We readily comprehend how a sale on a judgment, a mortgage, or an order of the orphans' court, passes the land freed from dower; but the reason is not so obvious why a sale under a testamentary power, created in good faith, for the benefit of creditors, should do so. It is because the law makes a decedent's land a fund for payment of his debts by giving the creditors a lien on it, which might be enforced by judicial process, and would extinguish the widow's. dower in it. It would come to the same thing in the end, and she is consequently not injured by a process substituted by the husband to produce exactly the same result.”
It thus appears that the right of dower in Pennsylvania does not. differ in nature or extent from the right of dower at common law, except so far as the local law has made it a chattel for the payment of debts of the husband, either by converting it into personalty, in his life-time, by virtue of the effect attributed by that law to a judgment recovered against him or a mortgage executed by him, either of which could only be enforced in that state by a levy of execution in common form; or by giving his creditors, after his death, a lien upon the whole title in the land.
The state court has accordingly constantly held that, with these exceptions, the right of dower is as much favored in Pennsylvania as elsewhere; that the old decisions are not to be extended, and that neither an absolute conveyance by the husband, nor an assignment by him for the benefit of creditors, whether executed voluntarily or under a requirement of the insolvent law of the state, impairs the wife's right of dower. Kennedy v. Nedrow, 1 Dall. 415, 417; Graff v. Smith and Kirk v. Dean, above cited; Killinger v. Reidenhauer, 6 Serg. & R.531; Riddlesberger v. Mentzer, 7 Watts, 141; Keller v. Michael, 2 Yeates, 300; Eberle v. Fisher, 13 Pa. St. 526; Helfrich v. Obermyer, above cited; Worcester v. Clark, 2 Grant, 84.
In Worcester v. Clark, just cited, it was held that the sale of a bankerupt's real estate by his assignee under the bankrupt act of August
19, 1841, c. 9, did not divest the widow's right of dower. It is true that the decision was put upon the ground that the right of dower was saved by the proviso, inserted in the second section of that act, that "nothing in this act contained shall be construed to annul, destroy, or impair any lawful rights of married women which may be vested by the laws of the states respectively, and which are not inconsistent with the provisions of the second and fifth sections of this act;"
and that the judge delivering the opinion said that, were it not for that proviso, he should have no difficulty in holding that a sale in pursuance of a decree in bankruptcy would, like & sheriff's sale by virtue of either a judgment or a mortgage, bar dower. But the decision is significant as evidence that by the law of Pennsylvania a right of dower is “a lawful right, valid by the law of the state,” and as treating the question whether it was divested by proceedings in bankruptcy as depending upon a true construction of the bankrupt act. Upon this question of construction we are not bound by the opinion of the state court, and have no hesitation in disapproving the dictum, and in holding that the proviso relied on was not in the nature of an exception to or restriction upon the operative words of the act, but was a mere declaration, inserted for greater caution, of the construction which the act must have received without any such proviso, and that the omission of the proviso in the recent bankrupt act does not enlarge the effect of the assignment or of the sale in bankruptcy, so as to include lawful rights which belong not to the bankrupt but to his wife.
The result is that, so far as this case depends upon the construction of the bankrupt act of the United States, this court is of opinion that there is nothing in that act, or in the proceedings under it, to bar the wife's right of dower in lands of which her husband was seized during the coverture; and that, so far as it depends upon the law of Pennsylvania, the decision of the supreme court of that state in this case, reported in 87 Pa. St. 513, is in accord with all the previous adjudications of that court, and is strong, if not conclusive, evdence against the plaintiff in error.
It may be added that this decision is in conformity with one made 12 years ago by Judge CADWALADER in the district court of the United States for the eastern district of Pennsylvania. In re Angier, 10 Amer. Law Reg. (N. S.) 190; S. C. 4 N. B. R. 619.
(109 U. S. 75) OLIVER and others v. RUMFORD CHEMICAL WORKS, for the use, etc.
(October 29, 1883.)
PATENTS FOR INVENTIONS-LICENSE-EFFECT OF-INFRINGEMENT-ACTION AT
LAW BY LICENSEE-ADMINISTRATOR OF-ACT OF JULY 4, 1836.
The reissued letters patent No. 2,979, granted to the Rumford Chemical Works,
June 1868, for an “improvement in pulverulent acid for use in the preparation of soda powders, farinaceous food, and for other purposes," claimed, in claim 1, “as a new manufacture, the above described pulverulent phosphoric acid;" and in claim 2, the manufacture of such acid; and in claim 3, the mixing with flour of such acid and an alkaline carbonate, so as to make the compound self-raising, on the application of moisture or heat, or both. There was transferred to M., by the Rumford Chemical Works, the exclusive right to make, sell, and use, in a specified territory, for five years, self-raising flour, by the use of the acid ; he agreeing to make the flour, and to use his skill to introduce it, and to purchase all the acid from the grantor. M. died in less than three months from the date of the grant. Held, under the provisions of sections li and 14 of the act of July 4, 1836, (5 St. at Large, 121, 123,) that the right acquired by M. was only that of a licensee; that the instrument of license did not carry such right to any one but him personally; and that such right did not, on his death, pass to his administrator, so as to authorize a suit at law, founded on the license, to be brought in the name of the grantor, for the use of the administrator, to recover damages for an infringement of the patent committed after the death of M., by the manufacture and sale of self-raising flour, by the use of such acid, in said territory.
In Error to the Circuit Court of the United States for the Western District of Tennessee.
B. M. Estes and H. T. Ellete, for plaintiff in error.
George Gantt, Isham G. Harris, and Thomas B. Turley, for defend. ants in error.
BLATCHFORD, J. "On the ninth of June, 1868, reissued letters pat. ent No. 2,979 were granted to the Rumford Chemical Works, a corporation of Rhode Island, for an "improvement in pulverulent acid for use in the preparation of soda powders, farinaceous food, and for other purposes.
The original patent, No. 14,722, was granted to Eben Norton Horsford, April 22, 1865, for 14 years, for an “improvement in preparing phosphoric acid as a substitute for other solid acids," and was reissued to the Rumford Chemical Works, as No. 2,597, May 7, 1867, for an “improvement in the manufacture of phos. phoric acid and phosphates for the use in the preparation of food, and for other purposes.'
The specification of reissue No. 2,979 sets forth the mode of preparing the acid, which is a dry pulverulent acid, described as having the capacity of being intimately mixed with dry alkaline carbonates, or other sensitive chemical compounds, without decomposing them or entering into combination with them, except upon the addition of moisture or the application of artificial beat. It says:
" This requires that the phosphoric acid, or acid phosphates, be mixed with some neutral agent, as flour or starch, gypsum, etc., so that action of the acid shall be prevented while dry, and shall, when moisture or heat is applied, be prompt, thorough, and equally diffused.
It may, among other uses, be mixed with dry alkaline carbonates, carbonate of potassa, or carbonate of soda, and remain in this state without evolution of carbonic acid until moistened or heated, thus making it a substitute for cream tartar and tartaric acid in the preparation of yeast powder or baking powder. * *
*. It is suited to be employed as the acid ingredient in the preparation of self-raising farinaceous food. In order to make an article possessing these qualities, and suited to this otfice, it is necessary that a powder should be made which can be not only evenly comminuted and diluted, but one which shall bave so little affinity for the moisture of the atmosphere that it may be mixed with flour and bicarbonate of soda in the practical preparation of self-raising flour."
The claims of reissue No. 2.979 are four in number, as follows:
“(1) I claim, as a new manufacture, the above-described pulverulent phosphoric acid. (2) I claim the manufacture of the above-described pulverulent phosphoric acid, so that it may be applied in the manner and for the purposes above described. (3) I claim the mixing, in the preparation of farinaceous food, with flour, of a powder or powders, such as described, consisting of ingredients of which phosphoric acid, or acid phosphates, and alkaline car. bonates, are the active agents for the purpose of liberating carbonic acid, as described, when subjected to moisture or heat, or both. (4) The use of phosphoric acid or acid phosphates, when employed with alkaline carbonates, as a substitute for ferment or leaven in the preparation of farinaceous food.”
On the first of February, 1869, the following instrument in writing was executed and delivered by the Rumford Chemical Works to one Allen F. Morgan:
“ To all people to whom these presents shall come, the Rumford Chemical Works, a corporation transacting business in East Providence, in the state of Rhode Island, sends greeting: Know ye that the said corporation, in consideration of the agreement, of even date herewith, entered into between it and Allen F."Morgan, of Memphis, in the county of Shelby and state of Tennessee, does hereby sell
, assign, and transfer unto the said Allen F. Morgan the right to use, within the territory described in said agreement, Horsford's patent cream of tartar substitute, for the purpose of manufacturing within said territory selfraising cereal flours, with the right to use and sell the fours so manufactured; to have and hold and exercise such rights within the limits aforesaid, for and during the time, and under and subject to the conditions and limitations, named and specified in the agreement aforesaid, of even date herewith, to which reference is hereby made as a part hereof."
On the same day Morgan executed and delivered to the Rumford Chemical Works the following instrument in writing:
“To all men to whom these presents shall come: Know ye that because the Rumford Chemical Works, a corporation located at and doing business in the town of East Providence, in the state of Rhode Island, has licensed and granted unto Allen F. Morgan, of the city of Memphis, county of Shelby, and state of Tennessee, the exclusive right to manufacture, sell, and use, during the time of five years from the date hereof, the article known as self-raising flour, from cereals, by the use of Horsford's patent pulverulent phosphoric acid, in the following described territory, to-wit: Beginning at the point where the northern boundary of the state of Tennessee touches the Mississippi river; thence southerly along the said river to and including Vicksburgh; thence easterly along the line of the Mississippi Southern Railroad to Jackson; thence northerly along the line of the Mississippi Central Railroad to Granada; thence north-easterly to the junction of the eastern boundary line of Alabama with the southern boundary line of Tennessee; thence along the eastern boundary line of Middle Tennessee (so called) to the northern boundary line of Tennessee, and westerly along said boundary line to the point of beginning,-by an instrument in writing bearing even date herewith, which is made a part of this agreement, and because of other good and sufficient reasons moving him thereto that he has agreed, and by these presents does covenant and agree, to and with the aforesaid Rumford Chemical Works, that he will immediately commence the manufacture of self-raising flour in accordance with the writ. ten instructions furnished by the said Rumford Chemical Works, as to proportions and quality of flour, and that he will use all his business tact and skill, and all other means necessary, to introduce and sell the same, and to inake the sale thereof as large as in any way possible in the territory aforesaid during the continuance of the license aforesaid, and no longer, and to sell the said self-raising flour nowhere but in the territory specified, except upon the written consent of the said Rumford Chemical Works. And I further agree to accept in the aforesaid license such rights as are covered by the patents granted to Eben N. Horsford, and by him assigned to the said Rumford Chemical Works, and to maintain them at my own cost and expense in suits at law, whenever it shall be in my judgment necessary so to do, and to avail myself of such advice, counsel, and assistance as the said Rumford Chemical Works may elect to give in said suits; and to purchase all of the acid used in making our said self-raising flour of the Rumford Chemnical Works, or of their agents, as directed; and that in case of iny failure to perform the covenants and agreements hereby entered into, it shall be lawful for the said Rumford Chemical Works to annul and revoke their said license to me, and to terminate this agreement. The use of said phosphoric acid by families for domestic purposes shall not be construed as a violation of this agreement."
On the twelfth of April, 1870, the patent was duly extended for seven years from April 22, 1870. On the twenty-first of May, 1870, the extended term was assigned by Horsford to the Rumford Chemical Works. Morgan died on the nineteenth of April, 1869. In July, 1869, his widow, Kate G. Morgan, was appointed administratrix of his estate. She afterwards intermarried with J. N. Payne. A suit at law was brought in 1875 in the name of the Rumford Chemical Works, for the use of J. N. Payne and his wife, Kate G. Payne, in the circuit court of the United States for the western district of Tennessee, against J. N.Oliver and others, partners constituting the firm of Oliver, Finnie & Co., to recover damages for the infringement by the defendants for the period from April 1, 1870, to February 1, 1874, of the rights of the said Kate G. Payne and her husband under said patent, by making and selling*self-raising flour by the use of Horsford's patent pulverulent phosphoric acid in the territory before named. The theory of the suit was that the right of Morgan became vested in his administratrix as a personal asset, and continued under the extension, and that the suit brought would lie for infringements of such right committed prior to the expiration of the five years from February 1, 1869. The suit was tried by a jury and resulted in a verdict for the plaintiffs for $3,538.97 damages, and a judgment in their favor for that amount, with costs. To review that judgment this writ of error is brought.
* Various questions are presented by the record, and have been discussed in argument, but there is one which goes to the foundation of the suit, and upon which our views are such as to make it unnecessary to consider any other. The court charged the jury that the interest of Morgan in the patent did not terminate at his death, but passed to his administratrix. The defendants excepted to this charge. The evidence was that Morgan died on the nineteenth of April, 1869, and the defendants asked the court to instruct the jury that the privilege conferred on Morgan by the instrument of February 1, 1869, from the Rumford Chemical Works to him, terminated at his death, and did not pass to his administratrix, and that they should find for the defendants if they believed that Morgan died on the nineteenth