gage was in default, and not entitled to the sum of $150. Nor has the acceptant any just ground of complaint that the costs of audit were taken out of the fund for distribution. On the authority of Parker v. Rawle, supra, the auditor would have been justified in imposing all the costs of audit upon the exceptant."

G. S. Rumbaugh, Edward E. Robbins, and John E. Kunkle, for appellant. J. J. Johnston, for appellee.

PER CURIAM. The fund distributed, $2,013, was paid into court by the mortgagor under the act of April 3, 1851 (P. L. 871), and the only contention here is as to the right of George W. Geiger, the mortgagor, to participate in the distribution to the extent of $150.97 awarded to him by the learned auditor and court below. We have considered the question, and are satisfied that there is no error in the distribution. that can be profitably said on the subject is contained in the opinion of the learned president of the common pleas, and on it we affirm the decree and dismiss the appeal, with costs to be paid by the appellant, James Rumbaugh.

All

MECHESNEY v. UNITY TP. (Supreme Court of Pennsylvania. Oct. 15, 1894.)

TOWNS-DANGEROUS EMBANKMENT-CONTRIBUTO

RY NEGLIGENCE.

In an action against a township for injuries caused by a skittish horse plunging over an embankment left unprotected by a guard rail, where plaintiff knew of the danger, and there was another road which he might have traveled, the negligence of the township in leav ing the embankment unguarded, and of plaintiff in not traveling the other road, are questions for the jury.

Appeal from court of common pleas, Westmoreland county; J. H. Longenecker, Judge. Action by William P. Mechesney against Unity township for personal injuries. There was judgment for plaintiff, from which defendant appeals. Affirmed.

In the morning of the 30th day of May, 1883, the plaintiff, William P. Mechesney, together with a neighbor and relative, Steele Mechesney, drove from the plaintiff's home, in Unity township, Westmoreland county, into the town of Latrobe, about 31⁄2 miles distant, to attend the Decoration day exercises. They drove a young horse hitched for the first time, singly, in a buggy. The plaintiff lived on the road leading from New Alexandria to Latrobe, traveling from plaintiff's home towards Latrobe, a distance of two miles. The road forks at Wise's watering trough. One branch, called the "Upper Road" leads into Latrobe, through West Latrobe, across the Chambers Mill bridge. The other branch, which was the one taken by the plaintiff, called the "Lower Road." leads into Latrobe on Ligonier street, running at right angles

Both

with the entrance of the upper road. branches are of about equal length from the forks. The Loyalhanna creek forms the boundary line between Latrobe and the township of Unity, defendant, and is crossed by a bridge on the road taken by the plaintiff, having approaches at either end, widening as they recede from the bridge, with wing walls of stone. The perpendicular distance from the roadbed on the approach to the ground on the Unity township side, where the accident happened, was about 12 to 15 feet. Between 4 and 5 o'clock in the evening, as the plaintiff and his companion were returning home, and had crossed the bridge onto the approach, the horse suddenly shied and stopped. It was then struck with a whip by plaintiff's companion, on the right-hand side, and then jumped over the right-hand wing wall, carrying the buggy and occupants with it, and causing the plaintiff's injury. There were no guard rails or other barriers on the side where the horse and buggy went over. The roadbed at the place of the accident was from 13 to 19 feet wide. The plaintiff's principal injury, as shown by his evidence, was to his spine and back. No bones were broken, but the testimony shows him to have been confined to the house for a period of five or six weeks, under medical treatment, and that thereafter he was under medical treatment at different periods for several years, and, as he testified, is still suffering from its effects, and that his injuries have never been cured, but in recent years have disabled him from performing physical labor, such as he was able and accustomed to do before the accident. On May 21, 1889, he brought his action of trespass against the defendant to recover damages for his injuries. The declaration was in the usual form, claiming a gross sum covering all the several elements of his damages,-for permanent injury, loss of time, earning power, and expenses incurred for medical treatment, etc. The action was grounded on the alleged negligence of the defendant in failing to put up guard rails at the approach, which he alleged and testified was a dangerous place, requiring such duty of defendant. The case was tried before Longenecker, president judge of the sixteenth judicial district, specially presiding, on December 20, 1893. The defense was that plaintiff's injury was the result of his own negligence; that the proximate cause of the injury was the striking of the horse with the whip after it shied and stopped; the driving of a young horse unbroken to this kind of work; the failure to take such precautions on his part as the day and circumstances required; that plaintiff received another hurt from a fall in his barn several years after, and that the principal part of his suffering was endured thereafter; that in fact the plaintiff recovered from his injury at the bridge, and for several years after engaged in his usual labor as a farmer; that the plaintiff's claim as to the extent of his injuries

was inconsistent with his declarations in writing, made three and four years after the accident, and two and three years before suit brought, to medical examiners, in his application to procure life insurance. On the trial of the case, after the defendant had closed, having offered no evidence of the character of the Upper road, above described, the plaintiff made the following offer, with the appended objections by defendant, and the ruling of the court thereon. The testimony being admitted, the defendant then, in surrebuttal, produced some evidence in answer thereto: "Plaintiff further proposes to prove, in support of his case in chief, the character and condition of the road crossing the creek to West Latrobe, and across the railroad down to the intersection with the road trayeled by the plaintiff at Wise's watering trough, not in rebuttal, but for the purpose of giving the character of the road as regards safety, as compared with the road used by the plaintiff, which is a renewal of his offer before he rested his case, for the purpose of showing that the road leading through West Latrobe was not as safe as the road taken by the plaintiff." "To which offer counsel for defendant object, for the reason that by the offer it is proposed on the part of the plaintiff to contradict the testimony of the plaintiff himself, and also the testimony of the witnesses for the plaintiff on that subject; (2) it is, if anything at all, a part of the plaintiff's case in chief, and not rebuttal; (3) it is irrelevant and immaterial as to what was the condition of the road leading from Chambers' bridge to Wise's watering trough; and (4) that the proposed testimony is not in answer to any issue raised by the defendant in the case." By the Court: "The court admits this testimony. Exception to defendant." After the close of the evidence, the charge of the court, and instructions on the point presented, the jury, on December 24, 1893, returned a verdict for plaintiff for $1,770.83. A motion for new trial was filed, which on March 24, 1894, was refused. March 28, 1894, judgment was entered on the verdict. April 16, 1894, the present writ was sued out and filed.

G. Dallas Albert and Albert H. Bell, for appellant. J. R. Spiegel, M. N. McGeary, J. A. Marchand, and Paul H. Gaither, for appellee.

PER CURIAM. It would have been plain error to have withdrawn the case from the jury, as substantially requested in defendant's eighth point. In view of the testimony tending to prove negligence of defendant, contributory negligence of the plaintiff, etc., the case involved questions of fact which it was the exclusive province of the jury to determine; and it was submitted to them by the learned president of the sixteenth judicial district, who specially presided at the trial, in a clear and comprehensive charge, in

which there appears to be no substantial error. It would subserve no useful purpose to notice the specifications seriatim. An examination of the record has satisfied us that neither of them should be sustained. Judgment affirmed.

PHILLIPS v. WILSON.

(Supreme Court of Pennsylvania. Oct. 15, 1894.)

EXECUTION SALE-INADEQUATE PRICE.

A sale on execution made at a grossly inadequate price may be set aside, on timely application by a mortgagee whose lien would be lost by such sale, and who was misled as to its effect, when accompanied by an offer to bid a much larger sum for the property.

Appeal from court of common pleas, Westmoreland county; L. W. Doty, Judge.

Action by J. G. Phillips against A. J. Wilson. There was judgment for plaintiff. Certain property was levied upon and sold. On application by a mortgagee, such sale was set aside, from which order plaintiff appeals. Affirmed.

The following is the opinion of the court below: "We are asked by counsel for exceptant to put in writing our reasons for setting aside the sale. The petition to set aside the sale is made by George D. Hamor, Esq., in his own behalf and as attorney for the land title and trust company, and the answer to the rule is made by John C. Robinson, Esq., on behalf of the purchaser and execution creditor. Both the petitioner and respondent are members of this bar. The property was sold for $195. The petition avers that it is easily worth $2,300, and this averment is not denied. The property was therefore sacrificed at the sale. The price was grossly inadequate, being less than one-tenth of its admitted value. Mere inadequacy of price is not sufficient ground for setting aside a sheriff's sale, although there is an intimation in Gorman v. Ensign, 155 Pa. St. 464, 26 Atl. 657, that a sale should be set aside where application is made promptly and the application is accompanied by an offer to bid a considerable increase over the price brought at the sale. In the present case prompt application was made, accompanied by an offer to bid $1,305 over the price of $195, brought at the sale, The rule is stated in Retter v. Getz, 161 Pa. St. 648, 29 Atl. 112, that, when the price is grossly inadequate, the court is at liberty to seize upon any other circumstance in order to give relief. It is very evident that the attorney for the mortgagee was misled. The bid was little more than sufficient to cover costs. No attempt was made to protect the mortgage creditor. The counsel for the execution creditor avers that Mr. Hamor knew the lien of the mortgage would be discharged. The petition affirms the contrary, and the fact is evident that he did not know the lien was discharged, as he permitted the property to be sacrificed without any effort to protect his

client. The liens prior to the mortgage had been paid, excepting costs, but the liens were unsatisfied. The petitioner was in error as to the law. Purchasers who buy under the impression that a mortgage is discharged are sometimes relieved when it turns out that the mortgage in fact is not discharged. We are of the opinion that the order setting aside the sale was right, because the price was grossly inadequate, and because it is evident that the counsel for the mortgagee was misled. The execution creditor has no right to complain, as he can realize nothing from the sale. The small fund arising from the sale will go first to costs, and whatever balance there may be to the mortgagee. If sale is confirmed, the property is sacrificed, and the mortgagee realizes nothing. To prevent this wrong, and for the reasons already given, the sale was set aside."

John C. Robinson and Frank B. Hargrave, for appellant. J. S. Moorhead and Jno. B. Head, for appellee.

PER CURIAM. This appeal is destitute of merit. Instead of showing such abuse of judicial discretion on the part of the court below, in setting aside the sheriff's sale in question, as would justify our interference, the record shows quite the contrary. From what appears therein, we are satisfied that, in making absolute the rule to show cause why the sale should not be set aside, the learned court acted within the lines of sound judicial discretion. Further comment is unnecessary. The correctness of the decree complained of is sufficiently vindicated in the opinion filed at the instance of appellant's counsel, and sent up with the record. Decree affirmed, and appeal dismissed, with costs to be paid by appellant.

MCGREW v. HARMON. (Supreme Court of Pennsylvania. Oct. 1, 1894.)

COVENANTS-QUIET ENJOYMENT-BREACH-CONSTRUCTIVE EVICTION.

In an action for breach of covenant for quiet enjoyment, plaintiff cannot recover as for an eviction from the whole of certain lands, on proof that one claiming under a paramount title had recovered in ejectment an undivided half interest therein, as such recovery is not a constructive recovery of the other half interest for his cotenants.

Appeal from court of common pleas, Warren county; C. H. Noyes, Judge.

Assumpsit by James McGrew against Hosea Harmon for breach of covenant. There was a judgment for plaintiff for part of the damages claimed, from which he appeals. Affirmed.

The court below rendered the following opinions on the hearing and on exceptions to his judgment:

"By stipulation of the parties, trial by jury

in this case was waived, and the case submitted to the court under the act of assembly. The plaintiff claims to recover damages for breach of the covenant of warranty contained in a deed from the defendant to one from whom the plaintiff derived title. The material facts are practically undisputed, and are as follows: Findings of fact: (1) By deed dated the 15th of December, 1881, the defendant, Hosea Harmon, and his wife, in consideration of the sum of $300, conveyed to one W. W. Wentworth a piece of land, part of tract No. 230, situated in Pittsfield township, Warren county, Pa., containing 74 acres or thereabouts, and inserted in the deed the following covenant of warranty: 'And the said party of the first part, his heirs. executors, and administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, his heirs and assigns, that the above-bargained premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all and every person or persons lawfully claiming or to claim the same, or any part thereof, and will forever warrant and defend.' (Sic.) (2) By deed dated December 15, 1881, W. W. Wentworth conveyed the same premises to the plaintiff, James McGrew, who, by deed dated November 14, 1887, conveyed the same to David Warner, with covenant of warranty, and Warner entered into possession of the premises under the said deed. (3) At number 47, September term, 1888, an action of ejectment was brought in this court by one Eli B. Wentworth against David Warner, to recover the land described in the deeds referred to above. On the trial of the case before a jury a verdict was rendered for the plaintiff for the undivided three-fifths of the land described in the writ; but no judgment was entered upon the verdict. Afterwards, and before the bringing of this suit, Warner relinquished the possession of the land, and Wentworth entered thereon under the titleclaimed by him in the ejectment. The defendant, Harmon, had no notice of the ejectment. nor the claim of Wentworth before the surrender of possession by Warner. After the surrender of possession, and before the bringing of this suit, the plaintiff, upon demand made by Warner, paid him $700, being the consideration paid by Warner to the plaintiff for the land conveyed as aforesaid; and January 27, 1890, which was also after the surrender of possession, and before the bringing of this suit, the plaintiff demanded of the defendant the sum of $300, the consid eration paid by Wentworth to the defendant at the time of the conveyance aforesaid. (4) June 11, 1858, Alfred and Edgar Huidekoper, executors of the last will of Harm Jan. Huidekoper. deceased, conveyed the land described in the deeds, above referred to, toJohn McKinney, their deeds containing the following recital: That the said H. J. Huidekoper, by virtue of divers goods conveyances

and assurances in law, was in his lifetime lawfully seised in his demesne as of fee of and in the piece and parcel of land hereafter described,' etc. The title thus conveyed became, in 1865, vested in the Chicago Petroleum & Mining Company, by which company it was conveyed to the defendant, Hosea Harmon, by deed dated the 22d of August, 1879, unless it had been previously divested by the sales for taxes hereinafter mentioned. (5) In the year 1870 and 1871, there was assessed in Pittsfield township, Warren county, Pa., as unseated, a tract of land described as 'No. 230.' containing 197 acres, owner unknown; and said land was charged in each year with its proportionate amount of taxes. The taxes upon 100 acres of said land were paid before sale by E. Livermore, and the balance, 97 acres, was sold to P. Falconer for taxes in arrears, and deed made and delivered to him by the treasurer accordingly. On June 6, 1873, 44 acres were redeemed by the estate of E. Livermore. Similar assessments were made for the years 1874 and 1875. The taxes on 144 acres were paid before sale by the estate of E. Livermore, and the balance, 53 acres, was sold to P. Falconer, June 13, 1876, and deed made and delivered accordingly. It was conceded that the deeds, assessments, and sales covered 53 acres of the land described in the deed from the defendant to Wentworth, hereinbefore referred to. (G) P. Falconer, the purchaser at the tax sales, died in 1876, intestate, leaving surviving him seven children, two of whom died prior to 1887, unmarried, without issue and intestate. Three of the surviving heirs conveyed their interests in the land in question to W. I. Bachop, in 1887, who conveyed the same interest to Eli B. Wentworth; but in 1885 one of the three heirs so conveying to Bachop had conveyed all his interest in these with other lands to the same W. I. Bachop and Charles H. McCauley, jointly. His deed, therefore, in 1887, passed no title so far as he was concerned; and the actual fractional interest vested in Bachop at the time of his conveyance to Eli B. Wentworth was but five-tenths or one-half.

"The questions arising upon the facts above found, and which have been argued by the counsels. are the following: (1) Has the plaintiff shown that the title to the land in question, at the time of the assessments of taxes in 1870, 1871, 1874, and 1875, was out of the commonwealth, so as to subject it to taxation? (2) Does the evidence identify the land sold and remaining unredeemed with the land sold by the defendant to Wentworth, and as to which he warranted the title? (3) Has the plaintiff shown that David Warner was evicted from the possession of the land, the title to which was warranted by the defendant by title paramount? (4) It appearing that Eli B. Wentworth, by whom David Warner is alleged to have been evicted, had but the undivided half of the title, can the plaintiff in any event recover

damages as for an eviction from more than one-half the premises warranted?

"The defendant, Harmon, not having been notified of the adverse claim to the land set up by Eli B. Wentworth against the tenant in possession, has heretofore had no opportunity of contesting that claim. He is therefore in no way concluded by the proceedings in the ejectment suit of Wentworth against Warner; nor do they even show a prima facie valid title in Wentworth, since no judgment was ever entered upon the verdict. It is incumbent upon the plaintiff, therefore, to show in this suit all that it would have been necessary for Eli B. Wentworth to show in order to recover the premises from Warner. It is not enough that Warner was evicted from the possession of the land, but it must affirmatively appear that he was so evicted by a title paramount to that conveyed by the defendant. Until this is done, it is a matter of no importance whether Harmon, at the time of his conveyance, had any title or not. The plaintiff here must recover upon the strength of Eli B. Wentworth's title, and not upon the weakness of that held by Warner under the defendant. In respect to the question of title, we regard the case as precisely the same as if Eli B. Wentworth were now seeking to establish his title against Warner in possession. and Harmon vouched in to defend that possession. The plaintiff gave no direct evidence of title out of the commonwealth. He did offer a survey and patent for the tract of land, but does not even claim that the land therein described can be identified so as to include the land in question. Unless the recital in the deed from the executors of Huidekoper to McKinney, to the effect that their testator was seised in his demesne as of fee, is evidence in favor of the plaintiff, and against the defendant, there is no evidence of title out of the commonwealth, unless it may be safely assumed, as it is intimated by the present chief justice in Jones v. Bland, 112 Pa. St. 181, 2 Atl. 541, may sometimes be done. But, if the recital may be regarded as such evidence, it seems to me sufficient to establish that fact. It is in the nature of an admission or solemn declaration that, before the date of the deed containing this recital, the title was out of the commonwealth; since otherwise it could not have been vested in H. J. Huidekoper. The recital is undoubtedly evidence against the grantors in the deed and all their successors in title. It is not conclusive. amounting to an estoppel, except as against themselves and their privies, and in favor of persons in privity with them. But when set up by a stranger, though not conclusive, it is evidence, subject to be rebutted as other evidence may be; and, in the absence of any countervailing proof, is sufficient to establish the fact. Whart. Ev. §§ 923, 1039–1041. In In Strayer v. Johnson, 110 Pa. St. 24, 1 Atl. 222, it is suggested that a purchaser at tax sale is to be treated as in

the

da

privity with the title divested by that sale, which may be so or not. I find, as a deduction from the recital in question. that the title to the land in controversy was out of the commonwealth at the date of the assessment and sale for taxes to Falconer. The assessment upon which the sale to Falconer rests included the whole tract of 197 acres, and therefore necessarily included the land in dispute. This is also a necessary postulate from the admission of the defendant's counsel that the land sold covered 53 acres of the land concerning which this controversy has arisen. The payment of taxes before the sale and the redemption of the land after the sale are matters which are proper to be shown in avoidance of a title under a tax sale. It is not necessary that one who claims under such sale should affirmatively prove the nonpayment of taxes or the nonredemption of the land. These are matters which the original owner must establish to relieve his land from sale. There is in this case no specific evidence locating and defining the land upon which the taxes were paid by Livermore, or which was redeemed for him after the first sale to Falconer. If the tract contained precisely 197 acres, it is possible that there was included in this payment or redemption some portion of the 74 acres claimed by Wentworth; but, in the absence of any evidence, we cannot assume this to be so, nor locate what part, if any, of the 74 acres was redeemed. The assessment of the land, and the fact that taxes did not appear by the record to have been paid at the time of sale, is sufficient to sustain the tax title; and the evidence failing to show that any part of this particular land was redeemed, or intended to be, we are constrained to hold that the tax title under the first sale, at least, was valid as to the entire piece of land.

"It follows from the foregoing conclusion that the title of Eli B. Wentworth was paramount to the title held by David Warner, at least as to the undivided one-half. I am of opinion that the facts shown constitute an eviction in law, at least to the extent of the undivided one-half of the land. The suit in the ejectment, though not even prima facie evidence of title in the plaintiff, there being only a verdict but no judgment thereon, was nevertheless a demand by Eli B. Wentworth upon Warner for the possession of the land; and it is well settled that a warranty is not required to defend his possession until actually forced out before he can avail himself of the covenant of warranty. He may yield to a mere demand for the possession, or to an ejectment, which is the legal and orderly substitute for an entry, without contest; only, by so doing, and neglecting to vouch in his warrantor, he assumes the burden of showing that the title to which he yields is actually paramount to his own. Had Warner given notice to Harmon and defended the ejectment by showing everything which has now been shown in this action, he must

have been evicted from the undivided onehalf of the premises. In my opinion, the plaintiff's vendee, Warner, having yielded to the demand of possession by Eli B. Wentworth. without notifying Harmon, can only claim to have been evicted to the extent that he would have been had the case proceeded to judgment. It is beyond dispute that Wentworth could dispossess Warner only to the extent of the undivided one-half. As to the other half, there is no evidence that Warner's possession was ever lawfully disturbed. The owners of the other half of the tax title have never demanded possession, so far as the evidence shows, in any way; nor did the exigencies of the case require it to be shown who the real owners of the title were at the time of Warner's eviction. For all that appears in the case, it may be that Warner himself or the defendant may be the owner. Bush v. Gamble, 127 Pa. St. 43, 17 Atl. 865.

"My conclusions of law, briefly stated, are as follows: (1) That the recital in the deed from the executors of Huidekoper to McKinney is evidence that the title to the land in question had before that time passed out of the commonwealth. (2) That the records and other evidence given by the plaintiff do establish the assessments and sale of the land in question for taxes as unseated, and there is no evidence sufficient to establish either that the taxes upon any part of the land were paid before the sale in 1872, or that any portion of the land in question was redeemed from that sale. (3) That the facts shown by the plaintiff established in law an eviction of David Warner from such undivided part of the land in question belonged to Eli B. Wentworth, under the tax sale. (4) That Eli B. Wentworth, at the time of the eviction of Warner, having but the undivided one-half interest in the land in question, could evict Warner only to that extent, and therefore the plaintiff's recovery is limited to damages for the undivided half of the land; that, under all the evidence, the plaintiff is entitled to recover one-half of the consideration paid by W. W. Wentworth to the defendant, to wit, the sum of $150, with interest thereon from the 27th of January, 1890.

"Answer to plaintiff's points: The plaintiff's first point is answered in the affirmative. The second point is answered in the affirmative. The third joint is answered in the negative. The fourth point is answered in the affirmative. The fifth point is answered in the negative.

"Upon the whole case, I find that the plaintiff, James McGrew, is entitled to recover from the defendant, Hosea Harmon, the sum of $175, with interest thereon from this date, November 6, 1893. And, unless exceptions are filed, judgment is directed to be entered accordingly."

Opinion of court on exceptions:

"The exceptions filed by the plaintiff complain of the rulings of the court by which the plaintiff's recovery was limited to the one