Moore v. Commonwealth, 8 Pa. 260; Bell v. Bell, 12 Pa. 235; Russell v. First Presb. Church, 65 Pa. 15. that the money had been paid, or if not paid, | be the one or the other. A receipt is, like any that the party had actually given the property other parol admission by the party, open to and made use of this deed as the means of ef- contradiction, explanation or correction. It fecting that gift.] Then you have the testi- may be shown that it was given under a mismony of the others to whom I have referred, take, either of fact or law. the daughter, and these other witnesses whose testimony I have read to you, and you are to consider the whole evidence and find this fact: Did Monroe pay for this property? Has the plaintiff shown you such evidence as would induce the jury to believe, that at that time when this property was conveyed to Monroe the old man intended this as a sale of the property, for the full consideration mentioned in this deed, and taking into consideration the other evidence, the evidence of Fister, was that to be paid by Monroe? ["Or, taking into consideration the other evidence in the cause, did the old man give this property to Monroe by this deed? Did he intend it, beyond the payment of his debts, as a gift to Monroe? Now just as you find these facts, so your verdict will be. If you find that Monroe was to pay the full consideration as mentioned in this deed, and if you find that he did not pay it, then for such sum as he did not pay the plaintiff will be entitled to a verdict with interest from the first day of April, 1881. On the question whether the old gentleman intended that Monroe should pay his debts, and that through this deed this property should be given to Monroe, you will take into account all the evidence to which I have referred, and any other evidence in the case which the jury will remember, to which I have not referred. If you find that the old gentleman intended to give this property to his son, James M. Buck, then your verdict will be in favor of the defendant."1 Verdict and judgment were for the defend ant. The assignments of error specified the portions The consideration mentioned in the deed, as already stated, is a money consideration. Mrs. Wharton's testimony was not offered to show that this money consideration mentioned in the deed was a mistake, and that the old gentleman intended that the conveyance should be for another consideration, nor does her testimony warrant any such instruction. The court had no right to instruct the jury, because she testified that the old gentleman said that the property belonged to Monroe, that they could find that the conveyance was a gift of the farm to the son. If any part of the consideration in the deed was for natural love and affection, that could have been shown by parol evidence. But the defendant offered no such testimony. He, however, could not show by parol evidence that there was no consideration of money, as that would be in direct contradiction of the deed. Hayden v. Mentzer, 10 Serg. & R. 333; Lewis v. Brewster, 57 Pa. 410; Buckley's App. 48 Pa. 491; Taylor v. Preston, 79 Pa. 436. A receipt in a deed can only be either an acknowledgment of the payment of the consideration, or, after being varied or explained, the passing of a gift. It cannot be both. It must The same liberty extends to receipts indorsed in deeds. Whart. Ev. § 1065. The court should therefore have instructed the jury that the receipt was only an acknowledgment of the payment of the money therein stated; and that having been rebutted by the plaintiff, the court should not have instructed them, without proof contradicting or explaining its contents, that they could also find that it was evidence of a gift of the property to the son. Messrs. J. H. Marx and Garrett B. Stevens, for defendant in error: A conveyance made by deed of bargain and sale, although purporting to be for a consideration of money, may be shown to have been in part thereof intended and given as a present from father to son. Such evidence would be in necessary contradiction of the deed. Hayden v. Mentzer, 10 Serg. & R. 333, decides merely that one cannot show that there was no consideration of money, as that would annul the deed. Such would, however, not be the case where the consideration proved is merely different from the one expressed in the deed. See also Jack v. Dougherty, 3 Watts, 151. In Lewis v. Brewster, 57 Pa. 410, the consideration expressed in the deed, was $300. The grantee was permitted to show that there was no money paid, that it was a gift to her, a daughter-in-law. The court said: "Evidence may be given of a consideration not mentioned in a deed, provided it be not inconsistent with the consideration expressed in it. If the deed appears to be a voluntary conveyance, a valuable consideration may be proved by parol. And there seems to be no reason why what appears to be a valuable consideration should not be proved by parol to be a gift for a good consideration.' It is always esteemed unfair to select a single sentence or two in a charge and insist on it as error, without reference to other portions which explain its meaning and exhibit its bearing. We must look at the state of the case before the jury to determine its effect. Watts v. Cummins, 59 Pa. 88. It is neither analysis nor criticism, but rude surgery-mere amputation. Reeves v. Delaware etc. R. R. Co. 30 Pa. 454. It would be treating the courts of common pleas and their suitors with great unfairness if we should take a detached sentence without reference to other parts of the charge, and the testimony in the case. Kerr v. Sharp, 14 Serg. & R. 399; Carothers' v. Dunning, 3 Serg. & R. 373. The court is responsible for the general effect of the charge, on the minds of the jury; and this is to be judged of, not by sentences culled here and there, but by salient points of the charge, and the thoughts that permeate it through and through. If as a whole the charge was calculated to mislead the jury, there is error on the record; if not, there is none. Reeves v. Delaware etc. R. R. Co. 30 Pa. 454. Per Curiam: The uncontradicted evidence is that the defendant paid no money to his father at the time the deed was executed. The contention is whether he was to pay the full consideration mentioned thereafter, or was the land a gift to the son. This is purely a question of fact for the jury, to which it was properly submitted. Judgment affirmed. APPEAL of Salmon B. ROWLEY et al. 1. In an action to compel a company defendant to recognize plaintiff as a stockholder, and to give him a certificate for stock subscribed for by him, an answer by a defendant who is president of the company that plaintiff agreed that his subscription should be for the use and benefit of said defendant and that he would transfer the same to him and that plaintiff was never the real owner of any shares, is responsive to the bill. 2. An affidavit by such defendant that the statements made in the charter of the company was true, annexed to such charter which contained plaintiff's name as a subscriber and stated the number of shares subscribed for by him, is sufficient corroboration of plaintiff's testimony to overcome the an swer. 3. The charter itself, as against him who made oath that the statements therein are true, is written evidence of a high character to repel an allegation which is irreconcilable with those statements. (Argued Jan. 10, Decided March 21, 1887.) JANUARY Term, 1886, No. 168, E. D., before Mercur, Ch. J., Gordon, Trunkey, Sterrett and Green, JJ. Appeal from a decree of the Common Pleas No. 2 of Philadelphia County, in favor of complainant in a bill in equity to enforce recogni tion of complainant as a stockholder in respondent corporation. Affirmed. Bill in equity filed by William Tillyer against Salmon B. Rowley, Francis W. Kennedy and the Hero Fruit Jar Company. Heard on bill, answer, replication and proofs taken by a master. The facts appear from the following opinion by MITCHELL, J.: The bill sets out the incorporation of the respondent company; that complainant was one of the original corporators and subscribed for 100 shares of stock; that he has tendered the amount of the subscription already due, and is ready and willing to pay the rest; and that in violation of his rights respondents refuse to receive his subscription and issue his stock. The bill also set out that complainant was a director and was excluded from his proper rights to examine the books, etc. This part of the bill, however, is not now pressed, as the term for which complainant was elected a director has expired since the bill was filed. The three respondents filed separate answers, that of Kennedy disclaiming any interest in the suit and any personal knowledge of the plaintiff's title to the stock claimed. The answer of the other respondents, the Company by Rowley as president, and Rowley for himself, are in substance the same. They do not deny that complainant was an original subscriber to stock, but set up an agreement with Rowley, Kennedy, and four others (among whom complainant is inferentially included, for it is not in any place categorically averred that he was one of the four), by which the whole of the stock was to belong to Kennedy and Rowley, who were to be the Company, and the other four were to be mere figure heads, without any rights of their own, and put up merely to make an apparent compliance with the requirements of the statute under which the Company was to be incorporated. The case having gone to an examiner, the complainant put in evidence the charter of the Company, and testified to the facts substantially as set forth in his bill, and also explicitly denied being a party to or having any knowl. edge of the agreement set up in the answers. The respondents offered no testimony, but rested on their answers. Upon the case, as thus presented, we find the following facts: the complainant was a subscriber to 100 shares of stock in his own the amount of his subscription due at the time name and his own right; that he has tendered of filing his bill, and therefore that, upon payment of that installment and anything that may become due since the filing of this bill, he will be entitled to a certificate or other proper evidence of his ownership of the stock, and all the other rights of a stockholder. 1. The complainant's case is made out prima facie by his testimony. The answers do not deny the facts of subscription, tender, etc., as averred in the bill, but set up a certain agreement between complainant and others which alters complainant's rights, as they would be on the facts on the bill. It is not, therefore, a denial by answer responsive to the bill, entitled to the weight of such answer in equity, but new matter in confession and avoidance, putting the burden of proof of the agreement on those averring it. 2. Even if the answer should be treated as a denial responsive to the bill, we think the complainant's testimony is supported by such corroborative evidence as to overcome the answer even under the strictest rules of equity practice. The certificate of association for the purpose of obtaining a corporate charter sets forth, inter alia, that, "The undersigned, having associated themselves together for the purpose of manufacturing and selling glass," etc., "and desiring that they may be incorporated," etc., "do certify *** that the names and residences of the subscribers and the number of shares subscribed by each are as follows: * * * William Tillyer, 100 shares." This certificate was signed by six subscribers, including the respondents, Rowley and Kennedy, three of whom, again including the | on consideration by the court, it is ordered, respondents, Rowley and Kennedy, made affi- adjudged, and decreed as follows: davit before the recorder of deeds "that the statements made in the foregoing instrument are true." This was a statement under oath by the respondents, in a solemn instrument required by law for the purpose of obtaining a charter. The Governor's order was based upon it, and recites that "Having examined the within application and found it to be in proper form," etc., he directs letters patent to be issued thereon according to law. We regard this as ample corroboration of the facts, as they are set out in the bill and testified to by the complainant. 1. That the said Hero Fruit Jar Company, defendant, be required to receive from the plaintiff the sum of $2,000, and to execute and deliver to him a certificate or other proper evidence of his ownership of 100 shares of the stock of the said Company, and the said payment to be made and received as an installment of 20 per cent on the said 100 shares of stock subscribed for by the plaintiff, and mentioned in the bill, said amount to be paid to and received by the said Francis W. Kennedy, or whoever may now be treasurer of said Company defendant. 2. That the said Hero Fruit Jar Company, and the said Salmon B. Rowley, president, and Francis W. Kennedy, treasurer thereof, and the officers, agents, and employees of the same be, and they hereby are enjoined and perpetually restrained from refusing to recognize the plaintiff as the owner of said 100 shares of stock in said Corporation, and from refusing to pay him any dividends which may have been heretofore, or may hereafter be declared thereon, and from interfering with his rights and privileges as such owner, in any way whatsoever. 3. So far we have considered the answers as they stand, but we are also of opinion that the defense set up by them, even if clearly made out, could not be permitted in a court of equity. | The Act of April 29, 1874, grants certain privileges to five or more persons associated for any of the purposes named in the Act; and the certificate of the respondents already referred to sets forth the names, etc., of six persons as actually associated for the formation of the defendant corporation. The answers aver boldly that this was done "in order to comply with the requirements of the Act of Assembly," and go on to say that complainant (and the three others in like situation) "had no right or interest in the said shares" subscribed for, and "simply consented to the use of his name." The use of his name for what? To make aand in his own right. sham compliance with the requirements of the Act. This defense, if true, was a plain fraud on the law. If the facts as now alleged by the respondents had been truly set forth in their application, the Governor would not have granted them a charter. By joining in an application which set forth the complainant and others as corporators according to law, the respondents estopped themselves from contesting the truth of that fact. The assignments of error specified the action of the court: 1. In finding that the complainant was a subscriber to 100 shares of stock in his own name 2. In finding that the answers of the defendants the Hero Fruit Jar Company and S. B. Rowley were not responsive to the bill. 3. In finding that the complainant's testimony was supported by such corroborative evidence as to overcome the effect of the answer. 4. In finding that the certificate of incorporation was ample corroboration of the statements contained in plaintiff's bill. 5. In holding that the transaction stated in defendant's answers was a fraud in the law. 6. In directing the defendant, the Hero Fruit sum of $2,000, and to execute and deliver to him a certificate or other proper evidence of his ownership of 100 shares of the stock of said Company, said payment to be made and received as an installment of 20 per cent on the said 100 shares of stock subscribed for by plaintiff. It is of no avail to say that many corporations are formed where a few leading corpora-Jar Company, to receive from the plaintiff the tors hold practically the whole stock. The law does not fix the amount of stock which each must hold, but it does fix explicitly the number who shall unite in the association. By the Act of May 13, 1876, three persons may form a banking company; by the Act of May 1, of the same year, it requires ten to form an insurance company. The Act of 1874, under which defendant company was chartered, requires five. 7. In directing the defendants to recognize the plaintiff as the owner of 100 shares of stock, and to pay him such dividends as may be de 8. In not dismissing the plaintiff's bill with costs. Messrs. John G. Johnson and Samuel Dickson, for appellants: It is not for the court, still less for these re-clared thereon. spondents, to say that these requirements are mere formalities, and that a mere nominal compliance will be sufficient. The law fixes the number plainly and imperatively, and although the interest of some of them may be small, it must be real. Even, therefore, if the agreement set up in the answers were fully proved, the respondents could not be permitted, against the policy of the law, to make it available as a defense. On each of the above grounds there must be decree for the complainant. And now, April 25, 1885, this cause came on to be heard on bill, answer, replication, and proofs, and was argued by counsel; whereupon, 3 РА. C. R., V. VII. 33 An answer which is limited to stating the whole transaction is as truly responsive as one which is limited to a categorical denial of the plaintiff's averments. Eaton's App. 66 Pa. 483; Cresson's App. 91 Pa. 168; Burke's App. 99 Pa. 350; Audenreid's App. 89 Pa. 114; Campbell v. Patterson, 95 Pa. 447. There is nothing in the transactions stated in the defendant's answers which is contrary to public policy. The defendants do not deny that six persons 563 associated themselves together to form a corporation, the Hero Fruit Jar Company, under the provisions of the Act of April 29, 1874, and that each one of the six is liable to the full extent of his subscription, and that in all matters relating to the relations of the Corporation to the Commonwealth, and to creditors and other persons dealing with the Corporation, the defendants are estopped from denying the relations established by the certificate of incorporation; but in the present case the Commonwealth, creditors and parties dealing with the Corporation, upon the faith of the articles, are not interested. The question simply is whether, as between the parties themselves, any agreement which affects no persons other than themselves shall be enforced according to its terms, or whether the plaintiff, under a plea that an agreement which he has made is a fraud upon the statute, shall obtain the aid of a court of equity to enforce a right which only finds its existence in the repudiation of the solemn agreement of the parties. It cannot be pretended that Rowley could not have purchased Tillyer's stock after the Company was organized; and if so, how is any public policy infringed by enforcing an antecedent contract to sell? Messrs. Geo. Tucker Bispham and Wayne MacVeagh, for appellee: I. It will be seen from the decisions that when the plaintiff in his bill alleges the existence of certain facts, everything in the answer is responsive which denies or otherwise calls in question those facts. Eaton's App. 66 Pa. 483; Cresson's App. 91 Pa. 168; Burke's App. 99 Pa. 350; Eberly v. Groff, 21 Pa. 251; Pusey v. Wright, 31 Pa. 387. The decisions are not authority for the position that when a plaintiff states his case upon certain facts, the defendant may obtain the advantage of a responsive answer by alleging the existence of other facts, and connecting them with the facts averred by the plaintiff merely by the statement that they are part of the transaction to which the plaintiff in his bill refers. II. But it is not at all necessary to the appellee's case to rely upon the above position that the answers are not responsive. Even though their responsiveness be conceded, still the testimony of the appellee, abundantly supported as it is by corroborative circumstances, must prevail. III. The vice of appellants' argument is that it first assumes the existence of the agreement, and then affirms that the appellee attempts to repudiate it. But the fact is the alleged agreement had no existence, excepting so far as it is possible to establish it by the answers. The bill ignored it, and the testimony of the appellee denied it. The bold demand of these appellants, then, is, after acknowledging themselves parties to a fraud, that they be permitted to establish by their testimony the fact of the fraud, in order to avail themselves of the benefit of it, as a defense to an honest and legitimate claim of the appellee. They practically concede the righteousness of the appellee's demand by their assertion that "each one of the six is liable to the full amount of his subscription;" for it is elementary corporation law that when the corporation may enforce the subscription, the subscriber has a right to his shares; this right of the subscriber constituting in the main the consideration by virtue of which the corporation may enforce his subscription. Taylor, Corp. § 40, note. Mr. Justice Trunkey delivered the opinion of the court: The bill sets forth, among other things, that the capital stock of the company consists of 5,000 shares of the par value of $100 each; that the plaintiff as one of the original stockholders, subscribed for 100 shares, and that the defendants have refused to give him a certificate and have confederated to deprive him of his rights as a shareholder. With reference to that, in the answer, Rowley denies that the plaintiff was ever the real owner of any shares, and says that the plaintiff consented to the use of his name as subscriber for 100 shares of stock under an agree ment that upon demand he would transfer and assign the same to said Rowley as the true and equitable owner, which he has since refused to do. The answer shows that at the time the plaintiff subscribed he agreed that his subscription should be for the sole benefit of Rowley. Admitting the act of subscribing, it declares that the act was accompanied with an agreement that the subscription was wholly for the use of one of the defendants. This is not subsequent matter alleged in avoidance; if true, it is a material portion of the facts in the case of the plaintiff, which he accidently omitted. We think the answer is responsive. Eaton's App. 66 Pa. 483; Burke's App. 99 Pa. 350. We are of opinion that the learned judge of the common pleas rightly ruled that "The complainant's testimony is supported by such corroborative evidence as to overcome the answer, even under the strictest rules of equity practice." In pursuance of the statute, the charter of the intended Corporation was subscribed by six persons, and in it were written the names and residences and the number of shares subscribed by each, and the number and names of the directors for the first year. Rowley, Francis W. Kennedy and Henry H. Kennedy deposed that the statements made in the charter are true. How could they have made the affidavit if they knew or believed that four of the persons were not good faith subscribers, that in fact Rowley and F. W. Kennedy owned the entire stock, and that three of the five directors named owned no stock and had no interest in the Corporation. The charter, with the requisite affidavit, is in evidence. That oath was essential in obtaining the charter. The statements, acknowledgments and affidavit, prescribed by law, are not formal and idle. Although the burden is on the plaintiff, the testimony of one witness has corroboration fully equal to the testimony of another. Indeed, the stronger evidence is the charter itself. As against him who made oath that the statements therein are true, it is writen evidence of high character, to repel an allegation which is irreconcilable with those statements. It being determined that the plaintiff is a stockholder as alleged in the bill, we express no opinion on the question raised in the fifth assignment of error. Decree affirmed and appeal dismissed, at question and assigned the lease made to Buck costs of appellant. to Daniel B. Boyer and Charles Hagy. In 1868 Daniel B. Boyer sold his interest in the tract to Charles Hagy. In 1875 said Hagy PHOENIX IRON CO. et al., Plffs. in Err., died, leaving a widow and children, defend v. Lawrence LEWIS et al. 1. In an action of ejectment to recover possession of the underlying mineral ore, from the owner of the surface, the defendant claimed title to the ore under a release alleged to have been executed by a former owner of the mineral right to a former owner of the surface, nearly forty years before suit brought, and lost or destroyed. Held, on the facts of the case, that secondary evidence offered to prove the contents of such instrument was properly rejected. 2. Where the plaintiff in ejectment for unmined mineral ore shows title to the mineral right, the fact that defendant, who is entitled to the surface, has been in possession of the land for any length of time, without taking pos session of the mineral by mining it, cannot constitute an adverse possession in his favor as against the owner of the mineral right. ERR (Decided March 15, 1886.) RROR to the Common Pleas of Berks County, to review a judgment on a verdict for plaintiffs in an action of ejectment to recover possession of iron ore in a tract of land in possession of defendants. Affirmed. This action was brought by Lawrence Lewis and others against the Phoenix Iron Company, Daniel K. Hagy and others. The plaintiffs at the trial in the court below, before HAGENMANN, J., offered in evidence a deed dated December 7, 1772, from Thomas Rutter and wife and Samuel Potts and wife, to Henry Stauffer, which conveyed the premises of which the tract in question is a part, reserving to the grantors the iron ore contained in said tract. Plaintiffs showed title, by divers mesne conveyances and descents cast from said Rutter and Potts, to the entire ore reserved in such tract of land including the ore under the tract in controversy. Defendants showed a clear title by divers mesne conveyances from Henry Stauffer, to the surface of this tract of land and claimed title to the underlying ore under the following alleged facts: In 1847, when Robert M. Lewis and Lawrence Lewis were the owners of the mineral reserve, and Henry Boyer was the owner of the surface of the land, the former, as alleged by defendants, released the mineral reserve for valuable consideration to said Boyer. March 1, 1854, Boyer, being then the owner of the surface and minerals made a lease of the surface and iron ore for twenty-eight years and nine months to one Buck who, February 2, 1857, assigned the same to the Phoenix Iron Company. In 1857 Henry Boyer died, and in the following year his executors, acting under the direction of his will, sold the tract of land in ants in this suit, who in July, 1883, renewed the lease with the Phoenix Iron Company for thirty years from the date of its expiration. The lease from Henry Boyer to Robert S. Buck was duly recorded in Berks County, as was also the lease from the Hagy heirs to the Phoenix Iron Company. During the entire period covered by these leases, the tract has been assessed for taxation, exclusively, to Henry Boyer and his successors, including the Hagys. Defendants further allege that after the death of Charles Hagy, the title papers of the tract, comprising the deeds of Charles Hagy and the alleged release of the mineral reserve given by the Lewises to Boyer and the lease from Boyer to Buck, were left with Levi Koons, a justice of the peace of Boyertown, Berks Coun the agent of the Hagy heirs for the collection ty, where the mines are situated, Koons being of the royalty on the lease for the ore mined by the Phoenix Iron Company. Koons died September 25, 1882; and upon searching for the title papers of defendants in this action, the only paper which could be found was the lease from Henry Boyer to Buck. It was admitted that defendants had been in possession of the surface of the whole tract since 1847, but denied that they had mined any coal out of the bed in question, except just previous to the commencement of this suit. The defendants offered to prove by Walton K. Hagy, one of the defendants, that he saw a release, signed, or purporting to be signed and sealed, by Robert Lewis and Lawrence Lewis, dated about the year 1847; that he saw the paper last with the title papers of this ore tract at Boyertown in the month of July, 1882; that the papers, that is to say, the deed from the executors of Henry Boyer to Charles Hagy and Daniel Boyer, the lease which is in evidence, and the said release were then in the possession of Levi Koons, who was at the time the agent of the heirs of Charles Hagy to collect the royalty accruing upon the lease of the mineral tract in suit here, from the Phoenix Iron Company, one of these defendants and the lessee of the Hagys; that Levi Koons died in the month of September, 1882, and that the witness called upon the widow of the said Levi Koons for the papers and caused a thorough search for them to be made; and that the deed and the release, together with some papers belonging to other third parties, were not to be found; and that the only paper which he received was the lease which has been offered in evidence; this to be followed with the evidence of other witnesses in proof of the same facts. The plaintiffs objected: 1, because the witness is incompetent, being a party to the record and in interest, and Lawrence Lewis and Robert Lewis, the persons named, being dead, and their heirs at law and devisees being plaintiffs in this action; 2, before the loss of a deed can be shown and secondary evidence of its contents offered, there must be previous proof of its due execution, which includes proof of |