Appeal from court of common pleas, Philadelphia county.

Bill in equity brought by Mary W. Campbell against the Foster Home Association to cancel a mortgage and remove cloud from title. There was a decree for plaintiff, from which defendant appeals. Affirmed.

John G. Johnson, for appellant. John G. Lamb and Thomas Hart, Jr., for appellee.

GREEN, J. After a laborious study of this case, and a most serious consideration of the elaborate and exhaustive arguments of the learned counsel on both sides, we are constrained to say that we think the case was correctly decided in the court below. On the question whether the letter of attorney from the plaintiff to her attorney in fact, Robins, dated December 26, 1888, is to be construed as conferring a power to mortgage the premises in question, we are quite clear as to the correctness of the decision made both by the master and the court below. It is true the precise question does not seem to have been before us heretofore, but we are convinced that the considerations which prevailed in Lancaster v. Dolan, 1 Rawle, 231, and its train of cases, resulting in the declaration that a power to sell land includes a power to mortgage, are entirely inapplicable in the interpretation of a mere letter of attorney, with a naked authority to sell, uncoupled with any interest in the land or the fund. The instrument now in question was essentially of this latter class. So far as this matter is concerned, it is in the following words: "Do make, constitute, and appoint William B. Robins, of said city, attorney at law, my true and lawful attorney, for me and in my name to grant, bargain, and sell, in fee simple, all real estate owned by me, including all ground rents, on such terms and for such prices as he may see fit, and to make, execute, and deliver all necessary deeds and assurances to the purchasers, and to assign all policies of insurance on said properties or with said ground rents." It cannot be questioned that this is but an ordinary letter of attorney to sell real estate in fee simple. It is nothing but a naked authority to sell, and make deeds to the purchasers, without any interest whatever in the proceeds; without any power to invest the same, or to exercise any kind of control over them. There was no power to raise money for any trust, or to pay debts or charges, or to provide a fund for any charitable or other purpose, or for the support of any third per

In short, there was no power of any kind whatever to do more than simply to sell the property, and to make deeds to the purchasers. Under this narrow, specially de

executed a bond in the name of his principal for the payment of $7,500, and to secure the payment of the bond he executed a mortgage of her real estate, also in her name, and thereby made her a debtor in a large sum, when his only authority to act for her was to sell her real estate and bring her the proceeds. Instead of being the seller of real estate, in the enjoyment of the fruits of the sale, she was converted into a debtor, with all the duties and obligations which that relation implies. We do not know of any doctrine in the law of principal and agent which will permit such a result to be accomplished in such a mode. The books abound with endless decisions which are in utter hostility with such a transaction as a valid act. Being a debtor, the plaintiff would be subject to an obligation to pay, not only the principal sum of $7,500, but also annual sums of interest. For failure in her payments she would become personally liable for the moneys due, and be subject to a general judgment which would be a lien upon all her real estate, and upon which process of execution might issue, and be levied upon her personal property. In point of fact, a warrant of attorney for the entering of judg ment against her for the debt was contained in the bond executed in her name by her attorney under an authority which gave him only a bare right to sell her lands. It is not credible that the citizen can be held subject to such consequences, so entirely inconsistent, unexpected, and hostile to his express intent, in an instrument of such a character. Whatever else may be said of such a paper, it must be conceded that in its terms, and in its legal substance, it is a plain, simple letter of attorney, establishing the relation of principal and agent between the parties to it. It must therefore be regarded as subject to the rules and requirements of that branch of the law in any event, and if these will not permit it to be used for an ulterior purpose, such as is claimed in the present case, then it cannot be so used.

Regarded simply as a letter of attorney establishing an agency, the law concerning it is very clear. Thus, in Devinney v. Reynolds, 1 Watts & S. 328, Mr. Justice Rogers, delivering the opinion. said: "An agent constituted for a particular purpose and under a limited power cannot bind his principal if he exceeds his power. A special power must be strictly pursued, and whoever deals with an agent constituted for a special purpose deals at his peril when the agent passes the precise limits of his power." This was said of a deed made by an attorney in fact who was authorized to convey a tract of land after he had redeemed it, and he conveyed it without redemption, and it was held the purchaser took no title. In Story on Agency (Ed. 1882; § 68) the author says: "Indeed, formal instruments of this sort [letters of attorney] are ordinarily subjected to a strict

Interpretation, and the authority is never extended beyond that which is given in terms, or which is necessary and proper for carrying the authority so given into full effect. Thus a power of attorney to sell, assign, and transfer stock will not include a power to pledge it for the agent's own debt." 1 Jones, Mortg. 129. A mortgage executed under a power of attorney authorizing an attorney to sell and convey only is void. Said Mr. Justice Cooley in Jeffrey v. Hursh, 49 Mich. 31, 12 N. W. 898: "J. M. Hursh had power to sell the land, but not to mortgage it. The power is not to be extended by construction. The principal determines for himself what authority he will confer upon his agent, and there can be no implication from his authorizing a sale of his lands that he intends that his agent may at discretion charge him with the responsibilities and duties of a mortgage. Wood v. Goodridge, 6 Cush, 117; Insurance Co. v. Bay, 4 N. Y. 9; Ferry v. Laible. 31 N. J. Eq. 566; Kinney v. Matthews, 69 Mo. 520; Patapsco Guano Co. v. Morrison, 2 Woods, 395, Fed. Cas. No. 10.792; Devaynes v. Robinson, 24 Beav. 92." Deputron v. Young, 134 U. S. 241, 10 Sup. Ct. 539: In the case of a naked power, not coupled with an interest. every prerequisite to the exercise of that power should precede it. A power to make and execute deeds to convey real estate, as the same may be sold to purchasers in tracts by a third party, is a naked power to convey as sales may be made, and a deed made otherwise is a fraud upon the power. Morris v. Watson, 15 Minn. 212 (Gil. 165): As a general rule a power to sell and convey real estate does not confer a power to mortgage, and a mortgage executed under a power of attorney to sell and convey is void. The court said: "The power of attorney in this case by Mary C. Hargin to Charles S. Hargin is a power to sell and convey only. Therefore the mortgage executed by Charles S. Hargin to Moses Sherbrome under this power of attorney is void." In the case of Wood v. Goodridge, 6 Cush, 117, a power of attorney authorized the attorney, in the name and for the benefit of the principal, to buy and sell real and personal property, and to execute and deliver deeds; to transfer the same; to move and institute all necessary suits for the recovery and collection of his demands; *** especially to carry on his sawmill, and buy and sell logs and lumber; *** and in general to make such contracts for the profitable improvement and use of such property and other means as he possessed for the enlargement of his estate. The attorney made a mortgage and note for a sum of money, and the question of his power to make them arose and was decided. The court said: "Levi Goodridge, who made the mortgage and note, had no authority, under his power of attorney from Benjamin Goodridge, to do these acts, so that the mortgage and note are both invalid and without any legal effect. In accordance with the general

and well-settled principles of law, the power of attorney to Levi must be so interpreted as not to extend the authority given to him beyond that which is given in terms, or which is necessary and proper for carrying the authority expressly given into full effect. Now the power of attorney in this case very clearly did not in terms give to Levi authority to mortgage the real estate of his principal. Still less does it in terms give him the power to borrow money, and to bind his principal by a promissory note. * * * In the absence of all evidence that the money was in fact obtained for the principal, or that it was necessary for the execution of the authority given, there being no express authority to make a mortgage or negotiable note, there is an entire failure to show that Levi had any authority to make the note and mortgage; and the title of the plaintiff, being derived under that mortgage, wholly fails."

It is not necessary to quote further authorities for a proposition so plain in its character, and not opposed by any contrary decisions. As we have already said, the cases of Lancaster v. Dolan and those that follow it are not pertinent to the discussion, because they depend upon different principles and upon facts which have no existence here. We are therefore brought to the consideration of the remaining question, whether the appellant is entitled to subrogation to the $6,000 prior mortgage, which was paid off with the proceeds of the mortgage in suit. Upon that subject it is to be observed that the payment of the prior mortgage was the act of a mere volunteer. The plaintiff was not consulted about it, and had no knowledge of it. There was no privity of any kind between the plaintiff and the defendant, and the latter was under no compulsion to make the payment for the protection of its interests. The payment was doubtless made so as to make its mortgage a first instead of a second mortgage. But that consideration would give no right of subrogation to the holder of the second mortgage. It seems to us that the case of McCleary's Appeal (Pa. Sup.) 12 Atl. 158, covers every aspect of this. There the first mortgage was an undoubtedly valid lien upon the property for $925. The second mortgage was a forgery, and the holder, as here, desiring to have the first lien extinguished, paid $600 of the mortgage money ($1,400) to the agent of the owner of the property, who, with $325 furnished by the owner, paid the $925 due on the first mortgage, had it satisfied, and surrendered the bond and the mortgage to the owner. When the forgery was discovered the holder of the second mortgage filed a bill praying a cancellation of the entry of satisfaction and subrogation. Both the court below and this court held that this could not be done, and dismissed the bill upon the express ground that although the first mortgage was an unquestioned lien, and the money, to the extent of $600, was paid by the

holder of the second mortgage, he was a mere volunteer in making such payment, and was not entitled to subrogation. The same doctrine was enforced in the case of Webster and Goldsmith's Appeal, 86 Pa. St. 409, the syllabus of which is as follows, viz.: "While subrogation is founded on principles of equity and benevolence, and may be decreed where no contract exists, yet it will not be decreed in favor of a mere volunteer, who, without any duty, moral or otherwise, pays the debt of another. It will not arise in favor of a stranger, but only in favor of a party who, on some sort of compulsion, discharges a demand against a common debtor." There the maker of a promissory note for $700 gave a judgment for that amount to his indorser, to protect him against liability on his indorsement. Afterwards, at the maturity of the note, another person consented to indorse a new note, to take up the first one, upon the express assurance of the maker that the judgment should be assigned to the second indorser for his protection against liability for the same debt. The judgment was assigned shortly after to the second indorser, who was ultimately obliged to pay the note. The property of the maker being sold upon execution process, the holder of the assigned judgment claimed a share in the distribution of the proceeds as against judgments obtained subsequently to the assigned judgment. Priority in the distribution was allowed to the assigned judgment in the court, below, but this court reversed the decree, holding that the second indorser was a mere volunteer, and that, as the first judgment had served its purpose of protecting the first indorser, it could not be used to protect the second indorser, although assigned to him for that purpose by the first indorser as a condition of the second indorsement. While we decided that if the judgment had been held by the bank which discounted the note, as a part of their security, subrogation would have been granted, even against intervening judgment creditors, we held also that it could not be granted to one who came in as the indorser of a new note given to take up the first note, because he was a stranger to the first contract, and was to be regarded as a mere volunteer. Woodward, J., said: "While subrogation is founded on principles of equity and benevolence, and may be decreed where no contract exists, yet it will not be decreed in favor of a mere volunteer, who, without any duty, moral or otherwise, pays the debt of another. Hoover v. Epler, 52 Pa. St. 522. It will not arise in favor of a stranger, but only in favor of a party who, on some sort of compulsion, discharges a demand against a common debtor. Mosier's Appeal, 56 Pa. St. 76. * There was no privity of interest, and no contract relation, between Bauer and Banker. Bauer could create no duty to himself by a Tolunteered intervention for Banker's relief. He became Adam's indorser without being under any legal or moral compulsion, and he v.30A.no.5-15

**

had no existing interest, ascertained or contingent, to protect. He has no equity to entitle him to subrogation." So here the payment of the $6,000 due under the first mortgage was not made under any compulsion, or for the protection of any rights or interests previously acquired. The defendant simply loaned the money, and, in order to remove a prior lien, paid it off without the knowledge or consent of the plaintiff. If a right of subrogation is acquired in such a state of facts, we see no reason why it may not exist in every case of officious payment of the debt of another. Yet it is perfectly clear, under all the authorities, that such payments do not give any right of subrogation to the debt discharged. In Beach on Modern Equity Jurisprudence (section 801) the writer says: "But one who is only a volunteer cannot invoke the aid of subrogation, for such a person can establish no equity. He must have paid upon request or as surety, or under some compulsion made necessary by the adequate protection of his own right. In such a case, instead of creating any right of subrogation, the payment operates as the absolute discharge of the debt so paid. Thus one who discharges an incumbrance upon property which he has no interest in having relieved is not thereby subrogated to the rights of the holder of the incumbrance, and the loaning of money to discharge a lien does not subrogate the lender to the rights of the lien holder." Sheldon, in his work on Subrogation (section 240) says: "The doctrine of subrogation is not applied for the mere stranger or volunteer who has paid the debt of another without any assignment or agreement for subrogation, being under no legal obligation to make the payment, and not being compelled to do so for the preservation of any rights or property of his own." There can be no question of the soundness of the foregoing propositions, and where the facts are such as to make them applicable they are controlling. We think, for reasons already stated, they are directly applicable to the undoubted facts of the present case. It is not practicable, within the proper limits of a judicial opinion, to engage in a critical review of the numerous decisions cited in the arguments of counsel on both sides. A great many of them furnish their own answer, when the facts which distinguished them are duly noted and considered. Others, which are apparently in point, are affected by the presence of exceptional circumstances which authorize the introduction of different principles with a controlling effect. But a minute and patient attention to and consideration of the very able and exhaustive argument for the appellant has failed to convince us of any error in the treatment of the case by the learned master and the court below, and, substantially for the reasons stated by them, we think the decree should be affirmed. Decree affirmed and appeal dismissed at the cost of the appellant.

1. Three sisters, K., S., and P., were excluded by the will of their half-brother from any share in his estate. The husband of S., representing the contestants, engaged an torney, and instituted a contest; K. and S. being made plaintiffs, and P. one of the defendants. The contest was settled by the proponent of the will paying a certain sum to plain tiff's attorney. Held, on the trial of the claim of P. against the estate of S. for a share in the money so obtained, that the confidential relations of the attorney to K. and S. did not prevent his testifying that P. was a contestant, and had promised to contribute to the expenses and that he appeared for her as well as K. and S.

2. Where a contest of a will which excluded testator's half-sisters, K., S., and P., from any share in his estate, is instituted by S.'s husband, who engaged an attorney, and settled the contest for a certain amount, his declarations to the attorney during the contest that he represented P. as well as S. and K. are admissible on the trial of the claim of P. against the estate of S. for a share of money so obtained; the husband of S., as well as S., being deceased.

3. Where three sisters are by the will of their half-brother excluded from all share in it. and two of them contest the will, and contribute money to the employment of an attorney, and the other is made a defendant to the proceeding, which is settled by the payment of money by the proponent of the will to the contestants' attorney, it will be presumed that the amount received was to be divided among them equally, and the burden is on the others to show the contrary.

Appeal from orphans' court, Lehigh county; E. Albright, Judge.

Accounting by Alvin B. Knauss, administrator of Catharine Seip, deceased. From a judgment overruling exceptions to the report of the auditor disallowing the claim of Lydia Probst, claimant appeals. Reversed.

John Rupp and Marcus C. L. Kline, for appellant. James S. Biery, Thomas B. Metzger, and Reuben J. Butz, for appellee.

WILLIAMS, J. The facts to be considered in the determination of this appeal appear in the auditor's report, which was concurred in and confirmed by the orphans' court. From this report we learn that George Probst died, testate, in February, 1885, leaving a large estate. He left three half-sisters to survive him, Christian Knauss, Catharine Seip, and Lydia Probst. By his will he gave his estate to certain of his collateral relatives, excluding his half-sisters and other relatives from any share whatever therein. Those who had been thus excluded, or some of them, deter mined to contest the validity of the will; and for these Nathan Seip, the husband of Catharine, appears to have acted as agent. He consulted with and retained counsel, and took general charge of the preparation and

conduct of the proceedings. An issue devisavit vel non was framed, in which Mrs. Knauss and Mrs. Seip were named as plaintiffs, and in which Lydia Probst was named as one of the defendants. This was upon the list for trial, and in a position to be reached in a few days, when it was settled, upon the payment of $10,000 to the attorneys for the contestants.

The question now raised is, to whom did the money paid by the proponent belong? Lydia Probst alleges that she was entitled to share with her sisters in it, and they now claim the whole. This controversy was referred to an auditor, who sustained the contention of the accountant that Lydia Probst was not entitled to share in the money obtained by the settlement. It should be remembered that the three sisters stood in the same position. They had certain rights under the intestate laws that the will denied. If the estate of George Probst was to be distributed under his will, they were all alike excluded. If the will was set aside, they would be admitted on exactly the same terms, regardless of their apparent position on the record as parties to the issue, and of their contribution to the expenses of the contest. But the auditor and the court below held that the right of Lydia Probst to a share with her sisters depended on the answers to two questions: First. Was she "an active contestant on record with Mrs. Seip and Mrs. Knauss? Second. Did she contribute towards the expenses in carrying on the contest, with the understanding that she should share in the proceeds realized." The evidence relied upon to show that she was a contestant, and had promised to contribute to the expenses, consisted of the testimony of John Rupp, Esq., one of the counsel for the contestants, and the declarations of Nathan Seip, now deceased, made while the contest was being carried on and while it was in process of settlement. The testimony of Mr. Rupp was excluded, because of his confidential relations to Mrs. Seip and Mrs. Knauss. The declarations of Nathan Seip were excluded, because he was the husband of the decedent, whose estate is now for distribution. The whole of the evidence relating to the questions stated by the auditor being thus taken out of the case, the questions were decided against Lydia Probst, and the two sisters were allowed to retain the share of the third in the money realized from the settlement of the issue devisavit vel non.

Was John Rupp properly excluded on the ground of privilege? He is an attorney at law, and was employed as counsel for the contestants. If the issue had been on trial, and the proponent had undertaken to examine him about what Blackstone calls "the secrets of the cause," which had been communicated to him by his clients, it is clear that the clients could have objected, and relied on the fact that the communications made by them to their counsel, relating to the cause, were privileged. But this was not a controversy

between the contestants and their adversaries. It was a controversy among themselves. Here were three sisters standing in the same relation to the testator, and having the same interest in defeating his will. Two of them appeared as plaintiffs, and the other as one of the defendants, in the issue. Neither of them appears to have consulted counsel personally, but Nathan Seip, the husband, of one of them, did all that was done on behalf of the contestants. Whom did he represent? For whom did Mr. Rupp appear? This is the present question. It is a search, not after some communication by client to counsel, but after a fact that could be inquired into on the trial of the issue if such trial had been reached. It could have been settled in advance by a rule on counsel to file a warrant of attorney, and this at the instance of the adverse party. It is the fact of employment that creates the confidential relation. Until this relation exists, there can be no privileged communication. The mere fact of employment is not privileged; but, from the nature of the relation between client and counsel, it is open to inquiry in any court in which the counsel appears as such. So, for a very obvious reason, the fact of a settlement between litigants, and the terms upon which it was made, are open to inquiry. An attorney who assisted in adjusting the terms of such settlement is a competent witness to show what the terms were. Schubkagel v. Dierstein, 131 Pa. St. 46, 18 Atl. 1059. If an attorney represents two or more persons, he may be called as a witness in a controversy between them, and statements made to him by one of them in the presence of the others will not be treated as confidential or privileged communications. Goodwin Gas Stove & Meter Co.'s Appeal, 117 Pa. St. 514, 12 Atl. 736. And generally, where several persons employ the same attorney in the same business.-as, for example, to contest a will,communications made by them in relation to such business, while privileged as to their common adversary, are not privileged inter sese. Jackson v. French, 3 Wend. 337; 19 Am. & Eng. Enc. Law, p. 139, and note. All have a property in confidential communications made under such circumstances. One cannot waive the privilege for his cosuitor, nor enforce it against him. Beltzhoover v. Blackstock, 3 Watts, 20. In this case three sisters had a common interest in defeating their half-brother's will. A contest was entered upon. All of them were parties to it. Their position on the record was just what Nathan Seip chose to make it. This contest This contest was settled by him, acting for those interested, for the sum of $10,000. The question now raised is, to whom did this money belong? Not to Nathan Seip, for he could not have taken under the intestate laws as an heir of George Probst. It must go. says the learned auditor, to those whom Seip represented and for whom Mr. Rupp appeared. To disclose their principals, both Rupp and

Seip are competent, and no one of the parties can successfully interpose the objection of privilege. But Seip is now dead, and his declarations made to Mr. Rupp showing for whom he acted in making the contest are objected to, on the ground that he is not competent to testify against his wife. But the declarations relate only to his own conduct, and are explanatory of it. They involve no breach of domestic confidence. They relate to no act or contract of his wife. They fix no liability upon her estate. He acted as the agent for his wife, but not for her alone. For whom else did he undertake to act? Who were his principals in the litigation he began, carried on, and finally settled? The auditor finds that he was the agent of Mrs. Knauss, as well as of his wife; and in his twelfth finding of fact he says "that during the progress of the George Probst will contest, and at the time the settlement was consummated, and the money paid to the counsel of contestants, Nathan Seip attended to the business affairs of Lydia Probst, the claimant, receiving money for her, and paying bills." In other words, he was the business agent of Lydia Probst, in general charge of her affairs. We can see no way by which the auditor reached the conclusion that he was not her agent in the management of the contest over the will also, except by rejecting the testimony of Mr. Rupp and the declarations of Seip, and then holding, as matter of law, that a compromise which affected the rights of Lydia Probst gave her no interest in the sum received.

We hold that the rejected testimony was competent so far as it was offered to show for whom Seip acted as agent and for whom Rupp appeared as counsel. This disposes of the questions really raised on this record, but, before dismissing the case, it may be well to suggest another. Is it true, as the auditor seems to assume, that the money received upon the compromise of a controversy like this belongs only to those who appear as active contestants, and contribute money towards the employment of counsel? The statute provides that any person interested may file a caveat, but it is well settled that thereafter the proceedings are not strictly between the parties, but are in the nature of a proceeding in rem; and a decree, when made, is conclusive on all the world. Ottinger v. Ottinger, 17 Serg. & R. 142. For this reason, it is the duty of the court to see that all persons interested are brought in before a decree is made. In re Miller's Estate, 159 Pa. St. 562, 28 Atl. 441. If this is not done, or if a compromise is effected without notice to any of those interested, and a verdict taken in favor of the will in pursuance of such compromise, the verdict will be set aside on application of the omitted or neglected party (Hambleton v. Yocum, 108 Pa. St. 304); or the omitted party may take another appeal, if the time allowed has not elapsed (In re Miller's Estate, supra). From this it results that no contestant can