by a mere recital in a deed, or by any form of to be gathered strictly from the language of his deed to which the holder of the title is not a second deed. And it may be that it defeats also party. A fortiori is this the case where the title the intention of Martha L. Tate as it may be sought to be divested is in a married woman and can only be conveyed in accordance with the prescribed statutory forms. inferred from her failure to take any active steps to set aside the trust. But the latter is by no means clear. If we are to draw inferences as The appellant argues that the deed was not to her actual intention it is hardly open to quesaccepted, and that the recital shows that the de- tion that she regarded herself the tenant for life, livery must have been for examination, and the and her son the remainder-man, as jointly ownsubsequent grant indicates that there was no ac- ing the entire fee, and intending to convey it to ceptance. But the words used by the grantor Clement. They were probably not informed as are ❝did seal and deliver," and delivery implies to the subject of contingent remainders, and did acceptance. There may be delivery in escrow, not contemplate the contingency of her survivand there may be transfer of manual possession ing her son. But the case cannot be decided on for examination or other purposes, but without inference or conjecture as to actual intentions. acceptance there is merely a tender. Delivery The evidence shows that the legal title and posimplies both tender and acceptance, and there session were in Martha Tate; there is no eviis nothing in this case to support any other than the ordinary construction of the word. dence that would enable the Court to say that W. D. N. The appellant further argues that the deed of February, 1846, not having been recorded, cannot prevail against the later deed which was duly put on record. But the grantee in the later deed was not a bona fide purchaser without notice. It is doubtful if in equity he could be treated as anything more than a volunteer, but in any case he took with notice in his deed itself, that his Post v. Berwind-White Coal Mining grantor, as against the prior conveyance, had no estate to convey. Jan. '95, 400. Company. sion-Interpleader. March 23, 1896. A vendor who retains the title to personal property as security for the purchase money, has a good title against everyone but a bona fide purchaser or attaching creditor of the vendee. It is further argued that Martha L. Tate's deed Attachment-Title to personal property-Possesto Clement was only a conveyance of her title under the trust deed of July, 1846, and therefore Clement took no more than an estate for her life. But this is a misreading of the deed. It is a conveyance to Clement, his heirs and assigns, of all the grantors' estate, right, title, etc., with special warranty, and the only reference to the deed of July, 1846, is in the description of the property as part of the land described in that deed. The granting portions of the deed to Clement passed all the estate of the grantors whatever it was, and whencesoever derived, and the grant cannot be diminished by a mere recital in the description. To make an attaching creditor's title good against the while the vendee is in possession as owner. vendee of the legal title, the attachment must be levied and then wrongfully resumes it, a levy by a creditor after If the vendee parts with posession to a new purchaser, such resumption will not avail against the legal title. A change of possession may be as well by the old owner going out and the new owner coming in while the taking it to a new place. property remains in the same place, as by the new owner So far we have considered the case solely as it was presented by the plaintiffs. But when we turn to the defendants' side we find the uncon- Appeal of the Berwind-White Coal Mining tradicted testimony of Colonel J. W. Tate, that Company from the judgment of the Common Martha took possession of this land in April, Pleas No. 3, of the County of Philadelphia, en1846, after the conveyance to her and before the tered in a feigned issue in a sheriff's interconveyance to Black as trustee. And she re- pleader under a foreign attachment by the aptained the possession except of the portion she pellant against the Philadelphia Dredging Comsold until she died in 1893. In addition there- pany. fore to the presumptions from the recital in the The facts of the case, as they appeared before deed of July, 1846, she is thus shown to have the referee, Frank P. Prichard, Esq., were as been a grantee in actual possession when that deed was made to Black, and her possession was notice to him of her title. There is no doubt that the result thus arrived at defeats the intention of Samuel Tate if it is follows: On May 27, 1891, by a written agreement, Charles O. Thompson, as receiver under certain proceedings in New York of the North American Dredging and Improvement Company, sold to James A. Mundy, John M. Sharp, and Clar- ment: Provided, however, That in case of any ence M. Busch, of Philadelphia, for the price of default in payment the trustee shall not take pos$135,000, certain vessels then in New York, in- session of the property until thirty days after cluding the vessels now in dispute. Twenty- mailing written notice to the purchasers of his five thousand dollars of the price was to be paid intention to take such possession; and the puron the departure of the vessels from the port of chasers may at any time prior to the trustee's New York, and the balance was to be paid in taking possession of the property pay the amount certain instalments with interest at the receiv- for which they are in default, and thereby diser's office in New York. For the deferred pay- charge the trustee's rights of possession as to that ments notes were to be given, and all the de- particular default. ferred payments were to become immediately due in case any liens were allowed to attach to any of the vessels so as to take precedence of agreement, both against marine and fire risks, the title of the trustee thereinafter named. The making the loss thereunder, if any, payable to agreement then provided as follows: the trustee. "3. The purchasers shall keep the said vessel insured to the full amount due under the said "Upon the receipt of the two cash payments, 4. Upon the full payment of the various amounting to $25,000, provided for in the first sums specified in the said agreement, and upon clause of Article II, of this agreement, the said the full compliance by the purchasers with the receiver will execute bills of sale of the forego- other terms of the said agreement and of this ing vessels to H. A. V. Post, as trustee, who agreement, the trustee shall execute and deliver shall hold the title to the said vessels as collat- to the purchasers bills of sale of the said veseral security for the payment of the various sels." sums stipulated to be paid in the said Article After the execution of the original agreeII. and of the notes given for such payments. ment of sale, but before the execution of the Such written stipulations and instruments shall bills of sale and the trust agreement, the be executed by him and the parties of the second three purchasers, Mundy, Sharp, and Busch, part (Mundy, Sharp, and Busch) with reference formed a corporation under the laws of New to their possession and use of the said vessels as Jersey, entitled the Philadelphia Dredging are usual in car trusts." Company. The authorized capital was $500,On August 31, 1891, in accordance with the ooo, but Mundy, Sharp, and Busch, who toforegoing agreement, Thompson, as receiver, gether subscribed for $100,050 of stock, were executed a bill of sale for the tug "James the only three incorporators named, and they Bowen" to H. A. V. Post, trustee, which bill continued to be the sole stockholders. On July was duly recorded at the United States Custom 13, 1891, the officers were authorized to purHouse at New York. On the same date the chase for the sum of $210,000, inter alia, the said Charles O. Thompson executed and ac- vessels purchased from C. O. Thompson, reknowledged to H. A. V. Post, trustee, a bill of ceiver, with the exception of the scows, which sale for the remaining vessels, being two dredges and fourteen scows. On October 2, 1891, a trust agreement was executed between Post, trustee, and Mundy, Sharp, and Busch, which recited the purchase from the receiver, the provision above quoted in the agreement, and then provided as follows: were not mentioned. Subsequent entries, commencing in September, 1891, on the corpora tion books showed that the payments theretofore made on account of all the property purchased from C. O. Thompson, receiver, were credited to Mundy, Sharp, and Busch, as payments on account of capital stock, and the balance due for said property was assumed by the corporation as its debt and payments made on account of it. "1. Until default shall be made in the payment of any of the sums provided to be made by the said agreements, or until any maritime The Philadelphia Dredging Company took or other liens shall attach to any of the said ves- actual possession of the vessels mentioned in the sels, the purchasers shall be entitled to the ex- trust agreement, including the vessels involved clusive use and possession of the said vessels. in the present interpleader, and paid some of "2. In case default shall be made in the pay- the instalments of purchase money. It used the ment of any of the sums provided for by the vessels in removing the islands in the Delaware terms of the said agreement when the same re- river at Philadelphia. While engaged in this spectively become payable, or in case any mari- work, the vessels were stationed in the river. time or other liens shall be allowed to attach to The company had an office at No. 426 Delaany of the said vessels, the trustee shall there- ware avenue in the city of Philadelphia. On upon have all the rights and powers, so far as either side of the entrance was a sign, "The the possession and use of said vessels are con- Philadelphia Dredging Company," and undercerned, which are usually exercised in such cases neath were the words, "Office James A. Mundy by a trustee under the ordinary car-trust agree- & Co.” On the vessels themselves there was no sign or indication of ownership, except that on James A. Mundy & Co. (the terms of which the dredge "Columbus" there was a sign, "North did not appear), and would not remove any American Dredging and Improvement Com- part of the plant without replacing it by a pany." similar article of equal or greater value or In the latter part of 1891 the Berwind-White Coal efficiency. Mining Company solicited, and from time to time This contract was signed by Mundy, Sharp, thereafter, received from the Philadelphia Dredg-and Busch individually, and also "Philadelphia ing Company orders for coal to be delivered Dredging Company, James A. Mundy, presito and used on the dredging vessels. dent." The latter company did not appear in In pursuance of this purchase Stevens took actual and exclusive possession of the plant and operated it until August 15, 1892. Не осси The course of dealing was as follows: The the instrument as a party, nor was its seal scows and tugs of the Philadelphia Dredging affixed thereto. Company would call at Greenwich Point with an order for a certain number of tons of coal. The coal would be delivered to them by the railroad company which brought it from the pied the office formerly occupied by the Philamines. The captains of the vessels would sign delphia Dredging Company. He did not put bills of lading for the coal to be delivered to up any sign at this office. He continued to the Philadelphia Dredging Company, and those order coal from the Berwind-White Coal Minbills of lading would be sent to the office of ing Company, using for this purpose the blank the Berwind-White Coal Mining Company, orders formerly in use by the Philadelphia which would then send a bill, with the bills of Dredging Company, and which contained in lading attached, to the Philadelphia Dredging the upper left-hand corner the words, "PhilaCompany. delphia Dredging Company," and in the lower On February 2, 1892, by a written agree-right-hand corner the printed signature, "Philament, Mundy, Sharp, and Busch, describing delphia Dredging Company, per themselves as the sole stockholders of the Phila- Across this printed signature Stevens stamped delphia Dredging Company, sold to C. Amory his name, "C. Amory Stevens, per Stevens certain vessels therein specifically in red letters, and underneath the words “The enumerated, constituting the plant then in use Philadelphia Dredging Company;" in the upin improving the harbor of Philadelphia, and per left-hand corner he stamped in red letters, including the vessels purchased from C. O."Office 426 South Delaware avenue." Thompson, called in said agreement "the When he paid his coal bills Stevens sent his Thompson plant," to distinguish them from own check, accompanied by a voucher filled up certain other vessels called "the Philadelphia on a printed blank with the following headplant." The consideration named in the agree-ing: ment was $87,000 and the assumption by said Stevens of a balance of $90,000 due on the purchase money notes given to C. O. Thompson, receiver. The agreement contains the following provisions: PHILADELPHIA, C. Amory Stevens, , 189-. 426 South Delaware Avenue, Address "3. The title of the Thompson plant shall remain as at present in the trustee to secure the About the time of the purchase by Stevens, payment of the Thompson notes; the title to N. H. Rand, who had been in the employ of the Philadelphia plant is hereby transferred to the Philadelphia Dredging Company as bookthe party of the second part (Stevens), to whom keeper in charge of the office, and who conthe title to the Thompson plant shall be trans- tinued to serve Mr. Stevens in the same caferred immediately upon payment of the Thomp-pacity, told the cashier of the Berwind-White son notes and the performance of the condi- Coal Mining Company, in explanation of the tions of said agreement with Charles O. Thomp- non-payment of a bill, that their accounts had son. been kept back by the government, but that they "4. All interest which the parties of the first were going to get a Mr. Stevens in with them part (Mundy, Sharp, and Busch, sole stock- who was a man having considerable money and holders, etc.) have in said Thompson plant is considerable experience. How Mr. Stevens hereby transferred to the party of the second was to come in was not explained, nor did the part (Stevens)." cashier of the Berwind-White Coal Mining ComThe agreement also contained provisions that pany inquire. The latter company continued Stevens would keep the said plants or other to charge all the coal to the Philadelphia Dredg plants equivalent thereto upon the work until ing Company and render bills in that name, and the performance of the provisions of this agree- when Mr. Stevens' checks were received in payment and of a certain other agreement with ment they were credited to the Philadelphia Dredging Company. The bills of lading for the change of possession, was invalid as to creditors coal, made out by the railroad company and of the Philadelphia Dredging Company. signed by the captains of the vessels who received it, continued to be made out in the name of the Philadelphia Dredging Company. Clow v. Woods, 5 S. & R. 275. Dick v. Cooper, 24 Pa. 221. E. Cooper Shapley, for appellee. On August 15, 1892, Mundy, Sharp and Busch took forcible possession of the plant, inThe dredging company being in possession cluding the property in dispute. Stevens said at the time of the attachment the levy gave apthat the property was wrongfully and unlawfully pellant a lien enabling it to raise the questaken from his possession by these parties. This tion of title. statement was not contradicted by any evidence, The presumption is that personal property is and it did not appear from any evidence in the owned by him who has it in his possession. If cause what, if any, grounds were alleged by another person desires to make out a title he said Mundy, Sharp and Busch to justify the has the burden of proof to show how he came seizure. They continued to obtain coal from by it and explain why it is not in his own custhe Berwind-White Coal Mining Company un-tody. til December 22, 1892, and to operate the plant in the name of the Philadelphia Dredging Company, and they continued to retain possession of the plant until December 24, 1893, when it It was found by the referee, and is not queswas attached by the sheriff under a writ of for- tioned, that Post, as trustee, occupied the posi eign attachment in a suit by the Berwind-White tion of a conditional vendor. The contract to Coal Mining Company against the Philadelphia this effect was perfectly valid as between the Dredging Company. H. A. V. Post, as trustee, parties to it. The condition was a condition made claim to the property now in dispute, and the present interpleader issue was allowed, the property being delivered to claimant. At the time of the attachment the amount due on the purchase-money notes, to secure which the title was made to H. A. V. Post as trustee, was $60,302.34, but since that time he has sold the property in dispute and paid out of the proceeds $48,241.87, leaving a balance unpaid of $12,060.46, together with certain unpaid fees and expenses. The referee found in favor of the claimant; to his report exceptions were filed, which having been dismissed by the Court, and the report confirmed, this appeal was taken. Richard C. Dale and Henry C. Terry, for appellant. So long as Post, trustee, the claimant, was not in possession, and the issue raised by the interpleader is wholly between him and the attaching creditors of the Philadelphia Dredging Company, his title must be held to be invalid without regard to the question whether as against Stevens the dredging company had either title or possession. Tremont Coal Co. v. Manly, 60 Pa. 384. The sale and transfer from the Philadelphia Dredging Company to Stevens was invalid, because of actual fraud or failure to change the apparent possession, and therefore the title and possession remained as to creditors in the Philadelphia Dredging Company. The sale be precedent; and, until it was performed, the sale Forrest v. Nelson, 108 Pa. 481. Hineman v. Matthews, 138 Id. 204, 207. Though a conditional sale is void as to creditors of the vendee, it is only such creditors as seize the property under a writ, while in the vendee's possession, who can acquire any rights superior to those of the conditional vendor. This principle, as laid down by the learned referee, is fully sustained by the decision cited by him. Hineman v. Matthews, 138 Pa. 204. It has long been the law of this State, that a mere wrong-doer in possession can confer no greater rights than he has; and a creditor or innocent purchaser from him can obtain no title. This is so, even if the sale is made publicly, the Pennsylvania Courts having at the very outset declined to recognize the doctrine of market overt, which was part of the common law of England. Hosack v. Weaver, 1 Yeates, 478. It has long been the settled law of this State, ing merely colorable and unaccompanied by that on appeal to this Court from a judgment entered in the Court of Common Pleas, upon a company left for the attachment to grasp, for it referee's report, only questions of law can be re- had all passed to Stevens prior to the levy. The viewed; and the facts found by the referee are attaching creditor was, therefore, not within the just as conclusive as if they had been found by a excepted class, and as already said, against all jury. others, the legal title of Post was good and must prevail. Lee v. Keys, 88 Pa. 175. Brown v. Dempsey, 95 Id. 247. Bank v. Sullivan, 11 WEEKLY NOTES, 362. Secondly, the question of legal or constructive fraud in the sale to Stevens has already been disposed of. The referee finds that there was no collusion or fraud in fact. It is true the change July 15, 1896. MITCHELL, J. The hinge of of ownership was not made as apparent as would this case is the character of the sale to Stevens. have been prudent in view of the circumstances It may be conceded, as it was by the learned re- and the dealings of the parties Mundy, Sharp feree, that Mundy, Sharp and Busch were vendees and Busch from whom he bought, but there seems in possession, and that the outstanding legal to be no doubt that Stevens paid a fair price and title in Post being merely security to the vendor thereafter operated the plant himself, with his for the purchase money, could not prevail own money, including repeated payment of this against an attaching creditor of the vendees. very appellant's coal bills with his own check. For the same reasons a bona fide purchaser for We think on the evidence that the referee was value if without notice would take a superior entirely correct in his view of the facts. title and if with notice, though he would take subject to the legal title as security for the purpose named, yet his title would be good as against all others. Thirdly, the appellant argues that even if the title and possession of Stevens were valid, yet the dredging company having retaken the property, and being in actual possession at the time The learned referee finds that Stevens "act- of the attachment by its creditor, the latter's ually, for a valuable consideration, purchased, lien must prevail. If this resumption of possestook possession of, and thereafter exclusively sion had been in pursuance of any contract or operated the plant." This puts an end to any any right which remitted the company to its question of constructive fraud. It is true that prior title, or gave it a new one, the position the location and use of the property was not would be sound. But it was not. The referee changed. It could not well be, as it was em- finds that it was "entirely tortious," and that ployed in the work of removing the islands in "without any shadow of right, Mundy, Sharp and the Delaware river opposite Philadelphia, under Busch forcibly possessed themselves of the propcontract with the United States, and had to stay erty and were in possession simply as any other where the work was. But a change of posses- wrong-doer would be in possession of property sion may be as well by the old owner going out of which he wrongfully took possession, but and the new owner coming in while the prop-which really belonged to other persons." Of erty remains in the same place, as by the new course such a possession could not give an atowner taking it away to a new place. The dif- taching creditor of the wrong-doer any more ference is not in legal effect, but in facility of right than the wrong-doer himself. proof. With this cardinal fact thus established, the solution of the three questions presented by the appellant is not difficult. Judgment affirmed. W. D. N. Superior Court. May 5, 1896. McCullough v. The Hartford Fire Insur First, it is argued that even if Stevens' title is good, it cannot be set up to help the plaintiff, Post. It is true that the rule in sheriff's interpleaders is that the claimant must recover on his April '96, 14. own title and not on one outstanding in a third person, but it has no application here because Post's title is good against all the world but certain excepted parties, to wit: creditors of the dredging company having a lien by levy or attachment on the property, and such lien must be acquired while the property is in the ownership or possession of the debtor. The attaching creditor here had no such lien, for both title and possession had passed out of its debtor the dredging company before its attachment was levied. There was no title or interest of the dredging ance Co. Fire insurance-Agent--Corporation-Contract -Seal-Construction of agent's certificate of appointment. The powers of an agent as between the public and his principal are those which the principal has in effect held out the agent as possessing, and are prima facie co-extensive with the business entrusted to him, and no limitations placed upon the authority of the agent by the principal |