W. M. Derr, for appellant. Josiah Funck, for appellees.

MCCOLLUM, J. Reuben L. Light and his wife mortgaged their farm of 123 acres, in Lebanon county, to secure the debt of the husband to Christian Henry, mortgagee. The mortgage was a first lien. The husband owned one-seventh of the farm and the wife six-sevenths of it. At a sale upon a judgment against the husband his interest in it was purchased by David W. Zeller, with notice that the wife joined in the mortgage as surety. After he received a deed of the land so purchased it was levied upon and advertised for sale by virtue of a writ issued upon a judgment obtained on the mortgage. A sale on this writ would have passed to the purchaser the title which Reuben Light had when he executed the mortgage, and extinguished the equity of redemption which Zeller acquired by his purchase. To prevent such a result the latter proposed to buy the mortgage, and, on the refusal of the mortgagee to sell it, paid the mortgage debt, with interest and costs, to the sheriff, and served notice on him to pay the money into court. He then moved for and obtained a rule on the mortgagors and mortgagee to show cause why the mortgage should not be marked to his use. This rule after argument and due consideration, was discharged, and from the order discharging It he appealed. The single question raised by his appeal is whether he is entitled to subrogation to the rights of the mortgagee against the property of Susanna Light. In considering this question it should be borne in mind that Mrs. Light was simply a surety for the mortgage debt, and, while her land was pledged for it, she had an equity to require that the mortgagee should sell her husband's land before resorting to hers for satisfaction of any part of it. It may be conceded that if she was liable as a principal for any portion of this debt, Zeller, having paid the whole of it in order to save the interest he acquired as a purchaser at the sheriff's sale, might be subrogated to the rights of the mortgagee, to enable him to collect such portion from her land. But the entire debt was her husband's, and his land was primarily chargeable with it. Zeller bought this land subject to the mortgage, and by his purchase acquired the right which the husband had in it when the judgment was entered on which the sale was effected. What was this right? Nothing more nor less than an equity of redemption, a right to hold the land by paying the debt for which it was morgtaged. He was not personally bound for this debt, but by paying it to prevent a sale of the land he purchased subject to it the surety was as effectually released as if the principal debtor paid it. If he had bought, taken an assignment of, and sold the land upon the mortgage, and at the sale had purchased the land for less

than the debt, he would have no valid claim against the principal debtor or mortgagor for the balance of it. Bank v. Burns, 87 Pa. St. 491; Cooley's Appeal, 1 Grant, Cas. 401; Hansell v. Lutz, 20 Pa. St. 284. The application to this case of the principles on which the cases cited were determined is a sufficient answer to the appellant's claim, because it is similar law that the surety is discharged by that which extinguishes or satisfies the obligation of the principal. The specification of error is overruled. The or der discharging the rule to show cause is affirmed, at the costs of the appellant.

CONTRIBUTION BETWEEN SURETIes- Set-Off AGAINST LEGACY-BONA FIDE PURCHASER.

One of two cosureties on a bond left a legacy to the other, who sold it to B. There after the principal on the bond having defaulted, and the surviving surety refusing to pay any part of the amount of such bond, the executors of the deceased surety paid the whole. Held, that the right to set off against the legacy the half of the amount of the bond for which the legatee was liable, and which he refused to pay, was an equity existing even before the payment thereof by the executors, and hence that B. took the legacy subject to such right of set-off.

Appeal from orphans' court, Chester county; Jos. Hemphill, Judge.

In the matter of the distribution of the estate of Richard B. Bailey, deceased. From a decree dismissing her exceptions to the auditor's report on the executor's account and on distribution, Elizabeth Jackson, a residuary legatee, appeals. Reversed.

The auditor's report on distribution was, in part, as follows:

"Francis Worth is entitled to a legacy of four thousand dollars under the will of Mr. Bailey. This legacy he sold and assigned to J. Mitchell Baker, on October 3, 1890, and upon the same day the executors accepted notice of the assignment. On the 13th of October, 1890, Mr. Baker secured a bond of indemnity from Francis Worth, with Samuel P. Webb as surety, on which they covenant to pay and make up any deficiency to Mr. Baker which may exist or arise with said legacy by reason of any deduction or diminution in the hands of the executors. On March 25, 1891, the executors paid to Cloud Pyle, guardian of Jessie Anna Phipps, the sum of $3,681.96, being the amount due upon a bond given by Ebenezer Worth, a former guardian, and upon which Richard B. Bailey and Francis Worth were cosureties, and jointly and severally both. The executors claim the right to set off the onehalf due on said bond by Francis Worth against his legacy of four thousand dollars in their hands, and J. Mitchell Baker claims

took it upon the faith of these représentations and loss occurs, it must fall upon those whose acts occasioned the loss, for it is a well-established principle that where a loss must fall upon one of two innocent persons it shall be borne by him whose act occasioned it. Mr. Baker, therefore, being a bona fide purchaser for value, prior to the right of contribution, and without notice of any defalcation or defense upon the part of the executors, is entitled to take this legacy by virtue of his assignment, and it will be awarded to him in the distribution."

Chas. H. Pennypacker, Warren W. Hole, and Butler & Windle, for appellant. Thomas W. Pierce, for appellee.

MCCOLLUM, J. Richard B. Bailey and Francis Worth were cosureties, jointly and severally liable for the default of their principal, and in their relation to each other each was a principal for one-half the amount recoverable for such default, and a surety for one-half of it. If either was compelled to pay the whole amount, his rights and remedies against his cosurety for the half were the same as against their principal for the whole. Croft v. Moore, 9 Watts, 451; Mosier's Appeal, 56 Pa. St. 76; Hess' Estate, 69 Pa. St. 272; and Wright v. Machine Co., 82 Pa. St. 80. If a surety gives a legacy to his principal, the latter cannot recover it from the estate of the former until he has satisfied, or furnished indemnity against, the demand for which the testator was his surety. Ross v. McKinny, 2 Rawle, 226. If the debt of the principal has been paid by the surety or his estate, such payment may be relied on to satisfy or reduce the amount of the legacy, and this is so although the payment was made by the estate after proceedings for the recovery of the legacy were instituted. Beaver v. Beaver, 23 Pa. St. 167. It is clear, therefore, that in a proceeding by Worth for the collection of the legacy to which he was entitled under and by virtue of the will of Richard B. Bailey the estate could deduct therefrom the amount it was compelled to pay by reason of his default as the testator's cosurety. It was thought, however, by the learned court below that, as Baker purchased the legacy before the payment was made by the estate, such payment was not available as a partial defense to his claim for the whole of it, and in accordance with this view it, less the collateral inheritance tax, was awarded to him. In support of this decree it is urged that when Worth transferred the legacy the estate had no demand against him which was applicable to it, nor equity for the protection of which the executors could withhold from him the whole or a part of it, until indemnity was furnished, or his liability as cosurety was discharged. We think this contention, to' the extent that it denies the existence of such an equity in the estate at the time of

the transfer, is unsound. It fails to give proper effect to the relation between cosureties, and to duly consider the rights and liabilities which spring from it. Prima facie this relation is established between two persons when they unite with a third in an obligation for the payment of his debt, and by this act they become, as we have already seen, his sureties for the whole debt, and sureties of each other for half of it. If their principal fails to pay his debt, and the cosureties pay it in equal proportions, he becomes their debtor, and their liabilities to each other as such are discharged; but if one of them is compelled to pay the whole debt he is entitled to contribution from his cosurety, and may enforce it. by an action of assumpsit, or by subrogation to the rights of the creditor. While the action for it cannot be maintained until default and payment, as above stated, it is nevertheless true that the right to have and the liability to make contribution inhere in the transaction by which the sureties were jointly and severally bound for the debt of their principal. In Agnew v. Bell, 4 Watts, 31, Kennedy, J., in delivering the opinion of the court, said: "It is certainly too well established now to be questioned that where any one or more of those who are cosureties have had to pay, as such, the debt of their principal, or any part thereof, and he is unable to reimburse it, the loss arising therefrom must be borne equally by all of them. Hence has arisen the right to contribution. This right has been considered as depending rather upon a principle of equity than upon contract; but it may well be considered as resting alike on both for its foundation, for although generally there is no express agreement entered into between joint sureties, yet from the uniform and almost universal understanding which seems to pervade the whole community that from the circumstance alone of their agreeing to be and becoming accordingly cosureties of the principal they mutually become bound to each other to divide and equalize any loss that may arise therefrom to either or any of them, it may with great propriety be said that there is at least an implied contract. Deering v. Earl of Winchelsea, 2 Bos. & P. 270; Craythorne v. Swinburne, 14 Ves. 160. This liability between sureties to contribution in case of loss through the inability of their principal to pay being known to them at the time of their becoming sureties, may well be considered a great, if not the main, inducement in many instances to their becoming such." It is therefore incorrect to say that the estate, before payment of the principal's debt, had no equity against the testator's cosurety and legatee which would enable it to withhold payment of the legacy until it was indemnified, or the inability of such cosurety to pay one-half of that debt in case of the principal's inability to pay it was discharged. It clearly had such an equity which in a suit by Worth for the legacy

would have been to the extent mentioned available as a defense. This equity was not destroyed, nor the defense founded upon it affected, by the assignment of the legacy to Baker. He acquired by his purchase such right to the legacy as his assignor had, and this right, as we have seen, was qualified by the estate's equity against the latter as cosurety of the testator. The learned counsel for the appellee concedes in his printed argument that "if the decedent was surety for Worth, and that relation existed at the time of the transfer, the legacy would be abatable by the amount subsequently paid by the estate, or the legacy might be held to await the determination of the liability of the estate." It seems to us that this concession is fatal to the appellee's claim, because in the relation of cosureties established between Bailey and Worth there was an implied promise by each to the other to pay one-half of their principal's debt in case of his inability to pay it, and, as they were jointly and severally bound for such debt, their relation to each other for half of it was that of principal and surety. In the acceptance by the executors of notice of the assignment there is nothing prejudicial to the interests of the estate, and we fail to discover anything in the evidence which prevents the residuary legatees from successfully asserting on distribution its rights to the deduction claimed. We therefore sustain the second, fifth, and sixth specifications of error, and overrule the first, third, and fourth. Decree reversed, and record remitted to the court below, with instructions to enter a decree in accordance with this opinion.

(156 Pa.-St. 613)

FREDERICK v. BOROUGH OF LANSDALE.

(Supreme Court of Pennsylvania. Oct. 2, 1893.)

DIRECTING Verdict-OVERFLOWING LANDS-EVIDENCE.

1. In an action against a borough for changing a drain, thereby causing the flow of surface water on plaintiff's land to be increased, where the evidence was conflicting as to whether the increase was caused by the borough or by the residents of the neighborhood, it was error to direct a verdict for plaintiff.

2. The defendant could show in such case that less surface water flowed through the ditch after than before the change made by the borough.

Appeal from court of common pleas, Montgomery county; H. K. Weand, Judge.

Action by Benjamin S. Frederick against the borough of Lansdale. Judgment for plaintiff on directed verdict. Defendant appeals. Reversed.

The following are defendant's specifications of error: "(1) The court erred in overruling the objection of the defendant below to the plaintiff's offer to show by B. S. Frederick and others 'that the owner of the property upon which certain clay pits are situated,

or some other person, had erected a bank to prevent the natural overflow of the clay pits towards the east, and that the water was conducted from those clay pits by an artificial ditch, and drained upon Broad street, and conducted along the gutters of Broad street, and thrown upon Hudson alley.' (2) The court erred in not allowing the defendant below to show by B. S. Frederick, on cross-examination, 'that there was no other stream or no other manner in which to take the water out of the basin in which this Hudson alley lay.' (3) The court erred in not allowing the defendant below to show 'that there was less water came from the direction of Ridge avenue than originally came from the same place.' (4) The court erred in not allowing the defendant to show 'that the acreage drained was lessened by the grading of the streets of the borough.' (5) The court erred in not allowing the defendant appellee to ask the witnesses whether the territorial drainage flowing into this ditch was greater or less at the time of suit brought than before the laying out of the streets and grading of the same. (6) The court erred in holding the defendant borough liable in damage. (7) The court erred in instructing the jury to find a verdict in favor of the plaintiff below and appellee for six cents damages and six cents costs. (8) The court erred in not instructing the jury to find a verdict for the defendant below or appellant."

Hallman & Place, for appellant. Louis M. Childs and Montgomery Evans, for appellee.

GREEN, J. The questions at issue in this case were questions of fact. The action is trespass. The narr. is not printed, and both the history of the case and the counter statement omit to state what was the cause of action claimed; but, as we gather from the statements of the parties and from the testimony, the claim was to recover damages for causing the flow of more water than was by nature accustomed to flow through a gully or ditch passing the rear of the plaintiff's land. Apparently, the plaintiff's allegations were that the defendant borough changed somewhat the manner in which the surface water was formerly discharged through the ditch in question, and thereby increased the quantity of the natural flowage, and, by that means, caused the cellar of the plaintiff's house and his land, at times, to be overflowed with water. The testimony took a very wide range and embraced questions of fact as to whether the borough, in laying out and opening its streets, and providing for their drainage, caused more water to flow through the ditch than was accustomed to flow there before the streets were opened. Incidentally, it was alleged by the plaintiff, and denied by the defendant, that a greater territorial area was drained than formerly, and that a greater

flow was thus induced. The defendant alleged, and gave evidence to prove, that the drainage was less in extent, and less in the volume of the water discharged through the ditch, after the streets were opened than before. The defendant also alleged, and gave evidence to prove, that the changes in the size and course of the ditch were produced by the acts of the plaintiff and other lot owners in digging out foundations, in filling up low places, and in other modes, and claimed that the borough was not responsible for the effect of such changes on the flow of the water. The effect of opening a certain brick yard, and digging pits in it, in the vicinity, upon the flow of the water, was also a subject of much contention, and of quite considerable testimony of a conflicting character.

For some reason, which is not explained, and which we are unable to understand, as there was no opinion or charge, the learned court below withdrew the case from the jury, and gave a binding instruction to them to find a verdict for the plaintiff for six cents damages and six cents costs. No explanation has been furnished us by the court below, or by the counsel for the appellee, to show why this quite unusual course was adopted, and, after the expenditure of much time and effort in an endeavor to understand it, we are obliged to abandon the attempt. The questions were purely of fact. A great amount of testimony was given, very much of which was of a seriously conflicting character, and nothing but the verdict of a jury, after a consideration of all the testimony, could reach their solution. We cannot at all understand how the court could undertake to dispose of such a case, in such a condition of the testimony. We are constrained to hold that the binding instruction was erroneous, and that the case should have been given to the jury, with proper explanations and directions as to the questions before them and the treatment of the conflicting testimony. We must therefore sustain the sixth and seventh assignments of error.

The eighth assignment is not sustained, because it complains only of a refusal of the court to give a binding instruction in favor of the defendant. The court was not asked to do so by any point submitted, and it would have been error to affirm such a point if it had been presented.

The remaining assignments, except the first, are to the rejection of certain offers of proof by the defendant. These offers seem to us to be admissible, as they relate to various aspects of the several contentions of the parties. While it seems likely that some of the testimony offered and rejected did get into the case, we can only pass upon the offers as they were made, and, doing so, we sustain the second, third, fourth, and fifth assignments. The first is not sustained, as the subject of the offer

1. Where a right of way is granted to a railroad company on payment of the "damages" caused to the landowner by the construction of the road, the measure of damages is the difference in the value of the entire property or tract, as a whole, as it was before the railroad was laid upon it, and as it is affected by the railroad after it is finished and completed.

a

2. A landowner, desirous of having a railroad constructed over his land, executed written agreement "releasing to the company which undertakes to construct such road the right of way of lawful width through my land; * the damages to be assessed when the road is located, and the amount of such damages to be paid in stock in said railroad." Held, that the acceptance of such agreement by a railroad company by a resolution of its board of directors, followed by a construction of the road on the right of way so granted, rendered the agreement binding on the landowner without formal written notice of acceptance, since the construction of the road was equivalent thereto.

3. A delay of three years in the construction of the road after the agreement was executed is not unreasonable, in view of the nature of the work to be done, including the organization of a company, and the raising of money necessary for the enterprise; and hence such delay does not invalidate the acceptance, time not being declared to be of the essence of the contract.

4. The agreement between the landowner and the company, providing for the assessment of damages when the road was "located," required the assessment to be made when the roadbed was located and constructed on the land, and not when the final line had been duly adopted by the directors.

5. A written contract granting a right of way to a railroad company on the east side of a creek, and providing for the assessment of damages to buildings there located, is not subject to impeachment by the uncorroborated evidence of the landowner that he was induced to execute it on the faith of a parol representation that the road would be constructed on the west side of the creek.

6. A landowner who agrees to take the stock of a railroad company in payment of damages to his land caused by the construction of the road is bound to take it, like any other subscriber, at its par value, and not its market value.

7. An erroneous admission by counsel on a former trial as to the proper construction of a written contract will not estop his client from insisting on the correct construction on a subsequent trial, where the adverse party has not acted on the admission, or changed his position by reason thereof.

8. Since the written contract provides for the payment of damages in stock, it was proper for the jury to return a verdict finding a specific sum as damages, and directing its payment in stock.

Appeal from court of common pleas, Co lumbia county.