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testimony that he was active in the arrangement which resulted in the conveyance of the land by the plaintiff to the adult and minor children, and no advantage must be permitted to ensue to the grantees from this conveyance without the performance of any just obligation which induced the execution and delivery of that conveyance. The judgment of John F. Kuhn No. 185 of January T. 1872 was not a lien upon the life estate of David Lingg, if the fee to the land was in his wife, as she was living at the date of that judgment. The Act of 1 April, 1863, 2 Purd. Dig. 1009, pl. 33, deprived that judgment of any such effect.

Whatever was just and right in the original transaction and whatever was then designed in good faith must be maintained. If there was any unlawful act on the part of David Lingg, that led to the execution of the conveyance by the plaintiff to the children, the children must not profit by it.

Neither on the other hand must they suffer by it, but the principal parties should be relegated to their original position. I would remark further that in a matter of such consequence as this, Joseph F. Lingg, the absent defendant should either appear in person or be represented upon a power of attorney expressly for the purpose intended. have a solemn record of a regular judgment against the three adult children. The petitioners have no other parol testi

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Then if the levy of the fi. fa. after the wife's death created a lien upon the husband's life estate, it would appear doubt-mony than that of themselves. They

ful whether the proceedings of sale were regular and legal, no evidence being offered of an order of Court for the issuing of the vend ex. or of any notice of the application for the writ being given to the tenant for life. It may be that it was the life estate that was sold by the Sheriff,

the sale was void and conferred no title on the purchaser; Kintz v. Long, 30 Penn. St. 5or: Snyder v. Christ, 39 ibid 499, vide last proviso to sect. 4 Act 24 January 1849, 1 Purd. Dig. 652, 653, pl. 90.

But there was a judgment in favor of Wm. Haeffer v. John Lingg and David Lingg, to No. 8o of November Term 1875 for $676, which was a lien upon the interest of John Lingg in real estate and also upon the life estate of David Lingg assuming that the fee had been in the wife of the latter. And it may be very reasonably conjectured as alleged in the sworn answer of the plaintiff, that the indebtedness of John and the father to the plaintiff were readjusted in the conveyance by the plaintiff to the children. In the light of the testimony to Mr. Woods, it is certainly very proper, and needful perhaps, as was suggested by the plaintiff's counsel upon the argument, that the testimony of David Lingg should be taken. I am unwilling to open the original judgment v. John Lingg, Joseph, Francina and the guardian, to No. 46 of August Term 1876, under the testimony presented. According to the deposition of Mr. Woods, David Lingg was the party who procured the amicable confession in that case. The act of David Lingg and the testimony of his son John are in conflict.

have no other witnesses to testify in their to the material statements of the petition, behalf. The sworn answer is responsive and if the latter is to prevail, the answer should be overcome by the testimony of two witnesses or one witness corroborat

ed by other circumstances and facts; Burks' Appeal, 38 Leg. Int. 314.

The petition expressly sets out that the original judgment to No. 56 Aug. T. 1876, was taken against the petitioners, as a purchase money judgment and as part payment of the consideration money of the conveyance. It is said however that Francina C. Lingg one of the three adult defendants was a married woman at the time of the issuing of the Sci. Fa. and that her husband was not joined in the writ, and the disposition of this woman is offered and read, in which she swears that she was born in 1856, which if true would also show that she was a minor at the time of the original confession of judgment in 1876, although it was admitted before me, upon the hearing at chambers that she was an adult at that time, the date of the deed from the plaintiff, which is even date with the confession of judgment. This party in cross-examination swears "I know I was born in 1856, because it is down in the Bible. I have a recollection of my birth. I always recollect that, I recollect that I was born on the 28th of Sept. I state that from my recollection and that is the only source. Of course some of this testimony is simply absurd. No Bible record is offered and there is no corroboration of this defendant's statement by any other witness.

And there is no allegation in the petition of her infancy, and consequently no such question was in issue, and the testimony on the subject is therefore irrelevant. It may be that the testimony is true, and if the issue is made and proper proof be adduced, ground will be constituted for opening the judgment as to her. Elizabeth Fleming gave better testimony as to her age, but speaks also of the record of her birth in the family Bible, and swears that it is at home in her father's house. David swears "I was born 23rd of February 1863, I think, no 1862. I saw my age in the family Bible, that is the way got at it."

I

Such kind of testimony demands the production of the primary Evidence. In looking over the depositions it also occurs to me, that it would be well to know, if any further testimony should be taken on the subject of the time of birth of any of the defendants, and the declaration of the father are given in evidence whether such declarations were made post litem motem or not. 2 Starkie on evidence 606. This suggests itself, as it may be that David Lingg the father discerns, that if the rule in this case were made absolute, and the adult defendants as well as the guardian, relieved from liability under the judgment he as well as John might escape the payment of their former indebtedness to the plaintiff, and his children hold an absolute title to the land, without any equivalent for the life estate, to which the children in their petition say the land was subject. A rule will be granted on David Lingg to show cause why he should not be made a party to this proceeding and to answer, if the plaintiff desires and moves for such a rule. It further suggests itself that whilst manifest care was exercised in hav

ing a guardian appointed for all the minors, it is somewhat remarkable that an effort is now made to show that Fran

cina was also a minor at the time of the appointment of the guardian for the

others.

In Glass v. Warwick, 4 Wr. 140, a scire facias sur mortgage which was given for purchase money of real estate was sustained against a married woman without her husband being joined with her.

In Patterson v. Robinson, 1 Casey 81, a married woman gave her own judgment bond for balance of purchase money of land. The judgment was opened, the coverture was admitted, but judgment

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If the plaintiff desires to treat Elisabeth as an adult at the time of issuing of the sci. fa. the judgment thereon can be opened as far as she is concerned, and a pluries sci. fa. be issued against her and her husband. As to the minors, it is said in Wilhelm v. Folmer, 9 Barr 300, "it is perhaps also true that where a trustee from the nature of it, cannot properly discharge his trust, without the exercise of power over the subject intrusted to him the law conceeds to him the necessary authority and discretion, so far as is essential to effectuate the object of the trust."

In the case at bar, the Orphan's Court of Adams county, upon the petitions of Elizabeth R. Lingg and David Lingg, both being over 14 years of age, and on the petition of the father as the procheim ami of the other three minors, appoint Jacob H. McMaster guardian for the distinct and express purpose to secure an undisputed title to real estate in which they conceive they had an interest, and to take care of their interests in the premises. It is quite manifest that the confession of judgment by the guardian was in execution of the object of his appointment See also Miller v. Ege, 8 Barr 352. If Jacob H. McMaster, the guardian, bebe permitted, if he was so disposed, to comes party to this proceeding, should he defeat the very purpose for which he was wrest the judgment from Mr. Heaffer or appointed?

And now to wit, June 25, 1883. The stay of execution is continued, with leave to any of the parties to move to the court to take any further action that may be appropriate, just and necessary, such leave to terminate on the 20th day of August next, and such stay and leave are granted particularly for the purpose of enabling the parties in the meantime to honestly, calmly, fairly and amicably adjust the equities between them and terminate the litigation, the lien of the levy to continue.

VOL. IV.

THURSDAY, JULY 5, 1883.

No. 18.

YORK LEGAL RECORD. two judgment notes with interest thereon, being then due from said Henry to his said wife Margaret; all which the said Samuel Laird then and there well knew, and as your orators believe, the said Edward D. Bentzel, Esq., also knew.

COMMON PLEAS-IN EQUITY.

Bierbower et ux. v. Laird and Bentzel. Equity--Action at Law-Specific performance.

3. That Samuel Laird, before the payment by him of the money as bail for Henry C. Bierbower, prevailed upon

A., as surety for B., paid a judgment recovered against Margaret to consent and agree to make

them. B.'s wife, to indemnify A., assigned two judgments which she held against B. Upon the distribution of B.'s assigned estate, A. received a dividend on the two judgments and also on his claim against B. by reason of his payment of the debt on which he was surety. Afterwards, E., as assignee of A., attached B.'s legacy under D.'s will and received a sum much larger than the original debt. B. and wife then filed a bill in equity, alleging that the assignment of the judgments by the wife to A. was fraudulent; or if not, that she was entitled to receive from A. and E., or either of them, the amount received by them over and above the original sum of money paid by A. as surety for B., and praying that the whole of the moneys received by A. and E., or all received by them in excess of the amount paid by A. as aforesaid, be decreed to be paid to the wife of B. HELD, on demurrer, that a bill in equity will not be in this case.

All the facts necessary to a complete remedy at law are known in this case, and the whole matter relates to a single transaction. It is clear that an adequate remedy exists at law, and therefore equity will not entertain jurisdiction.

Under such a state of affairs, the filing by plaintiff's

counsel of a certificate setting forth that in his opinion the case is of such a nature that no adequate remedy can be obtained at law, will not avail to save the proceedings.

Demurrer to bill in equity.

an assignment of her two judgment notes to him as collateral security for the indebtedness of her husband to Laird,

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ing out of a liability of Laird to pay the bail money, and that all monies that should be realized by him on said two judgment notes, over and above the amount of said bail money, should be paid over by him to her.

4. That on the 12th day of March, 1879 the said Samuel Laird came to the residence of the Bierbowers and produced a paper writing as follows:

"Know all men by these presents that I, Margaret Bierbower, in consideration of the sum of money due on the within

The bill in equity substantially sets judgment note, have granted, bargained, forth the following facts:

I. That the administrators of Jacob Myers, deceased, brought suit against Henry C. Bierbower and Samuel Laird (surety on a note for $625,) and recovered judgment, and that Samuel Laird, on April 5, 1879, paid counsel of said administrators $457.77 in full of the balance due on said note with interest and costs.

2. That at the time said Samuel Laird so paid said bail money for said Henry C. Bierbower, the latter was in embarrassed circumstances and insolvent. That at the same time, his wife, the said Margaret, held in her own right and as her own separate property, two several judgmentnotes, each for the payment of five hundred dollars with interest from date, against her husband, the said Henry C. Bierbower; first of said judgment notes being dated April 1, 1875, payable one year after date; and the whole amount of said

transferred, assigned and made over unto Samuel Laird, his heirs, executors, administrators and assigns, the within judgment note, together with all the benefits and advantages that may be obtained thereby. Witness my hand and seal this 12th day of March, 1879.

MARGARET BIERBOWER." This assignment was written on the back of each of the judgment notes.

5. Judgment was entered on these notes against Bierbower, and the assignment to Laird marked on the docket.

6. Bierbower executed a deed of assignment to Laird for the benefit of creditors, excepting the wife's separate estate.

7. Before the Auditor distributing Bierbower's estate, Laird presented a claim for $790, paid by him as surety for Bierbower: and the two judgment notes assigned to him as above-mentioned. He received a dividend of $116.87, on the

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E. D. Bentzel, Esq., received said amount from the executors of Melchinger. This was $724.08 over and above the true balance of the indebtedness of Bierbower to Laird as surety aforesaid.

12. Alleges the retention by Bentzel and Laird, or either of them of said sum of $724.08 in fraud of the rights of Bierbower and wife, and charges :

a.

That the said assignments by the said Margaret Bierbower of her said two judgment notes, to the said Samuel Laird, in manner and form as stated in the fourth paragraph of this bill, were null and void in law.

b. That the said assignments were obtained fraudulently, and conferred no legal rights whatever upon the said Samuel Laird.

C. That even though the said assignment of the said two judgment notes by the said Margaret to the said Laird were not fraudulent and void as to said Margaret Bierbower, yet the same were held by him as collaterals as stated in this, and all and every use the said Laird has made of said collaterals, or the monies realized thereon, in violation of said agreement to hold and use them as collateral, are fraudulent and void as to the equitable rights of the said Margaret Bierbower.

13. Wherefore, your orators, having no adequate remedy at law, pray your honorable court for relief in equity, and to this

end pray Honors to order and decree that the said defendants account to your orators for the use aforesaid, for all monies received by them or either of them on the said two judgment notes, the judgments and attachments thereon, and to pay the same over to your orators for the use aforesaid, with interest thereon.

14. Or that your honors may order and decree the said defendants and each of them to account and pay over to your orators for the use aforesaid, all monies received by them or either of them on said collaterals, with interest over and above

the true balance of the said indebtedness of the said Henry C. Bierbower to the said Samuel Laird, after deducting and crediting the sum of $116.87, dividends received as aforesaid by the said Laird out of the assigned estate of H. C. Bierbower; and that your orators may have such other and further relief in the premises as to your Honors shall seem meet and the nature of the case may require, and to award a writ of subpoena, &c. that end may it please your Honors to

To this bill the defendants filed the following demurrer :

The defendants demur to the whole bill of complaint of said plaintiffs, and for cause of demurrer show:

First-The defendants have not by their said bill made or stated such a case as doth or ought to entitle them to such relief as is therein sought or prayed for from or against the defendants.

Second-There is a complete and adequate remedy at law for the plaintiffs against the defendants, to redress the said alleged grieviences set out in the plaintiff's bill of complaint; and their remedy for said alleged greviences is not in equity.

Wherefore the defendants do demur to

said bill of complaint, and pray the judgment of the Court whether they shall be compelled to make any other or further answer to said bill, and pray to be hence dismissed with their reasonable costs, in their behalf sustained.

I, H. L. Fisher, counsel filing the bill in this case, hereby certify that, in my opinion, the case is of such a nature that no adequate remedy can be obtained at law, and that the remedy at law will be attended with great additional trouble, inconvenience and delay; and I hereby respectfully ask leave of the Court to be allowed to

I12.

Plaintiff's counsel on the argument filed sary for a full and equitable adjustment of the following paper: the controversy." But all this would be an idle ceremony in this case, in which all the facts necessary to a complete remedy at law are already known, and where the whole matter relates to a single transaction. 3 P. & W. 297; 6 Wh 625; 5 Wr. Mrs. Bierbower assigned two judgment notes to Laird one of the defendants, out of which to reimburse himself for any loss he might sustain by reason of his suretyship for her husband. The precise amount he received, and the amount necessary to make him whole, have already been ascertained, and are specifically set forth in the bill.

file this certificate as amendatory of the bill in this case.

John W. Bittinger, for demurrer.

H. L. Fisher, contra.

July 2, 1883. WICKES, P.J. The certificate filed by plaintiff's counsel after the argument of the demurrer, will not avail to save the proceeding. It is clear that an adequate remedy exists at law, and it is conceded that when such a remedy is open, equity will not entertain jurisdiction.

This is really in the nature of a proceeding to compel the specific performance of a contract, although not placed upon that footing, nor could it be, as it is not sought to have the property assigned returned in specie, nor is there any uncertainty as to the measure and calculation of damages. (Brightley's Equity 184-5.) But it is

said an action of account render would have lain on the common law side of the

Court, and that therefore after filing the certificate above referred to under the provisions of the Act of 1880; (Purdon 591, pl. 4.,) the plaintiff has a right to proceed by bill in equity. Account render

It is said, first-That the assignment of the judgment notes were fraudulent and void. And, secondly-If not fraudulent and void, that under an express agreement the plaintiff is entitled to recover whatever balance remains in Laird's hands. There would seem to be no difficulty about sustaining a common law action about such circumstances. Said the Court in Lee v. Gibbons, 14 S. & R. 111, “a man may disaffirm the act ab initio by reason of the fraud and bring his specific action and recover his actual damages, or affirm it and demand the money—he may make his election." Why may they not in this case, do the same? I am of the opinion that the demurrer be sustained, and the bill dismissed at the costs of the plaintiff.

COMMON PLEAS.

however would be a most inappropriate Spangler v. Keystone Mutual Benefit Asso

remedy under the facts set forth in the bill.

The first judgment in such an action is properly quod computet, and then either by Auditors or by a jury in the sound. discretion of the court, an account is settled and a balance ascertained.

The acts 1840 and 1831, provide for the compulsory production of "books, documents or papers as may appear to be neces

ciation.

Life Insurance---Suit against Mutual
Company--Forum.

A was insured in York in the defendant company, which has its office in Lehigh county. Afterward, she assigned the insurance to B., then moved to Baltimore, and died there. B. brought suit against the defendant company in York county, the writ being directed to the Sheriff of Lehigh county, and by him served on the defendant.— HELD, that the service must be set aside.

The Act of 1857 permits suit to be brought in the county where the property insured is located; this is tantamount to saying where the property insured is destroyed. The place where the loss occurs determines the jurisdiction, for then only does the right of action accrue. So in life insurance, the place of death is the place of loss, and the suit must be brought in that forum.

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