the power of State taxation, and hence our Act | cember 19th, but remained a lien until February of 1868 is inapplicable to the case.

For these reasons I feel obliged to dissent from the opinion of the majority of the Court reversing the judgment of the Court below.

A petition for reargument was subsequently filed by the plaintiff in error on the ground that the attention of the Court had not been called to a contract entered into between the States of Pennsylvania and New Jersey in 1771, whereby it was agreed that the river Delaware should be and remain a common highway free to both contracting parties.

Act of Penna. March 9, 1771, 1 Sm. L. 322.
Act of N. J., Dec. 22, 1771, Allinson's Laws, 347.

October 31, 1881. THE COURT. Petition for rehearing refused.

10, 1873, when it was paid.

"On the 27th of February, 1872, Ward conveyed to C. B. Porter, for the consideration of $6000, a portion of the building covered by the policy in this case. It included all the land and first story of the building, twenty five feet on Main Street and sixty feet deep on Poplar Street. About a month after this purchase Porter went into possession, and remained in possession until the entire building burned, September 8, 1876.

"Ward made application December 20, 1872, to the defendant for an insurance of $3000 on the hotel property and $2000 on his dwelling, situate directly in the rear of the hotel building. The rate on the hotel was sixty cents per $100 and forty cents on the hundred dollars on the dwelling-house. The policy covering both properties was issued the 24th of the same month, and was to continue in force until annulled by the defendant. Assessments were made and paid until the fire occurred. The dwelling was but slightly injured by the fire, to wit: $4.25, as found by the jury. The hotel building was entirely destroyed.

A perpetual policy of insurance covered a hotel and contiguous dwelling-house. The hotel was burned, and suit was brought on the policy. The insurer discovered that a warranty in the application was untrue, and de-a fended on that ground. Pending the action, the insurer treated that portion of the policy covering the dwelling. house as still in force, by levying assessments on it for

two successive years, which were paid:

Held (sustaining the judgment of the Court below), that whether the contract was entire or not, the rights of the parties were fixed on the occurrence of the fire; and the levy of assessments did not impose upon the insurer any new liability, quoad the subject-matter of the suit, nor estop it from availing itself of the effect of the false war

"In the years 1877 and 1878 the defendant laid two assessments on the policy, to wit: on $2000, the amount of the insurance on the dwelling. These assessments were paid by the plaintiff. At the time they were levied and paid, the defendant had knowledge of the Smith encumbrance, and also of the Porter purchase.

"Mr. Ward, in his application, agreed that his answers to the interrogatories were given as warranty on his part as to the description of the property to be insured. He stated he was the sole and undisputed owner of the property, and that it was unencumbered; that the building was 100 feet on Main Street by 55 feet deep, and four stories high. He made no reservation or mention of the part owned by Porter, but covenanted and engaged in his application that 'the representation given in the application for the insurance is a warranty on the part of the assured, and contains a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, and value of the property insured.'

"The jury found for the plaintiff in the sum of $2614, including $4.25, injury to the dwelling-house, and specially as follows:

The cause was tried in February, 1879, and "1. That defendant corporation levied assessthe facts developed, the findings of the jury, and ments numbered thirteen and fourteen at the the points reserved, sufficiently appear in the dates stated, viz., years 1877 and 1878, and refollowing opinion of the Court below, per MOR-ceived pay thereon from Ward on the following ROW, P. J., on the motion for judgment non ob- dates, viz., 1877 and 1878. That at the time stante veredicto. of such levy and assessments, the defendant had "On the 2d of December, 1871, C. T. Smith knowledge that the Smith encumbrance existed obtained an award of arbitration against John when the application was made; also of the conO. Ward for $650. It was appealed from De-veyance to Clark B. Porter. That the defendant

had knowledge that $10,000 additional insurance | to give these acts of the defendant an effect; for had been taken by Ward on the Ward House, it is probable that they were equivalent to a sevand also $2000 additional on his dwelling-house. erance of the contract, and had Ward's house "All the facts stated, including the special finding of the jury, are undisputed; at least, the facts in the special verdict are to be taken as true, and those contained in our statement are undisputed.

"The points reserved are:
"Ist. Was the contract entire.

"2d. If so, were the rights of the parties-as they existed immediately upon the occurrence of the fire (Sept. 8, 1876)—altered, changed, or affected by the facts found in the special verdict? and

been destroyed while the policy was treated as in force, he could have recovered. Indeed, I think that was the effect of levying and collecting these assessments after the Ward House' was burned. Whether it was or not, I am of the opinion that the defendant incurred no new or additional liability in this suit, and that taking all the undisputed evidence into consideration in connection with the special findings of the jury, the plaintiff cannot recover.

"And now, to wit, October 11, 1879, it is ordered that judgment be entered for the defend"3d. Can the plaintiff recover under the un-ant upon the reserved points, non obstante veredisputed evidence of the case? dicto."

The plaintiff took this writ, assigning for error the entry of the judgment, non obstante veredicto. John F. Sanderson (with whom were Edward Overton, Jr., and N. C. Elsbree), for the plain

"A decision of the last point involves the whole, so they need not be discussed separately. "The claim on the part of the plaintiff is that even if the policy was void, it was made valid by the assessments numbered thirteen and four-tiff in error. teen, when the defendant had knowledge of the Smith encumbrance and Porter purchase, that the contract was simple and entire, ratified and made effectual by this act of the defendant.

"The application and policy constituted but one contract. They are to be taken and construed together. The representations made in the application were untrue, both as to the encumbrance on and ownership of the hotel property. The plaintiff stipulated that his representations were true, and should be a warranty on his part. They were untrue in fact, and the policy was void. (Cooper v. Farmers' Ins. Co., 14 Wright, 299.) Therefore whether the contract was entire or not, the plaintiff brought suit, and based his claim upon a contract which was void, and how could it be made valid by the acts of the defendant, which treated that portion of it relating to the dwelling-house as in force. The rights of the parties, so far as they relate to this suit, were fixed upon the occurrence of the fire. Suit was brought in a few weeks thereafter. No assessment was made until 1877. Admitting that the contract was entire (Fire Association v. Williamson, 2 Casey, 196, and Gottsman v. Penna. Ins. Co., 6 Smith, 210), it was at an end by the destruction of one building and a partial destruction of the other; that is to say, the plaintiff no longer held a policy of insurance against loss by fire, but he had a chose in action or right of action against the insurer and company. That right was based upon the policy. To hold that the defendant in treating the policy in force as to Ward's dwelling-house, incurred a new liability in the suit that was then pending would be to hold what was not intended or thought of by the parties, and against reason. It cannot be said that this is a refusal on the part of the Court

The contract was entire. were insured is immaterial.

That two properties

Fire Association v. Williamson, 2 C. 196.
Gottsman v. Pa. Ins. Co., 6 Sm. 210.

The breaches of warranty rendered the policy voidable, not void.

Pearsoll v. Chapin, 8 Wr. 9.

Negley v. Lindsay, 17 Sm. 217
Hummel's Appeal, 28 Id. 320.

Cumberland Valley Ins. Co. v. Mitchell, 12 Wr. 374. The breach of warranty was waived by the assessment.

Pearsoll v. Chapin, ante.
Negley v. Lindsay, ante.

State Ins. Co. v. Todd, 2 N. 272.
Buckley v. Garrett, 11 Wr. 204..
Ins. Co. v. Slockbower, 2 C. 199.

Elliott v. Lycoming Ins. Co., 16 Sm. 22.
The question of severance of the contract
should have been left to the jury.

Coursin v. Pa. Ins. Co., 10 Wr. 323.
Dumpor's Case, 1 Smith's L. C. III.
Carnochan (Davis with him), for the defend-
ant in error.

The truth of the warranty was a condition precedent to recovery.

State Mutual Ins. Co. v. Arthur, 6 C. 332.
Smith v. Ins. Co., 12 H. 320.

Cooper v. Farmer's Ins. Co., 14 Wr. 299.
The assessments having been made long after
the cause was at issue, could not affect the rights
involved in it. The insured was not misled by the
assessments therefore no estoppel could operate.
The contract was severable.

Wood on Insurance, 298.

Clark v. N. E. Mut. Fire Ins. Co., 6 Cushing, 342.
March 21, 1881. THE COURT. We affirm
this judgment upon the opinion of the learned
President of the Court below.
Judgment affirmed.
PER CURIAM.

Licenses to sell liquors in Allegheny County-sified and rated Local Act of April 3, 1872, not repealed by yearly sales shall be less than $4000, the fifth class and shall general Act of April 12, 1875.

Bruce (Negley with him), for the defendant in

On April 18, 1873, Henry H. Miller executed a mortgage of the above premises to S. Schlegel, This case is ruled by Kilgore v. Com'th (10 to secure the sum of $3400. Said mortgage re

error.

Pitts. L. Jour. N. S., 230).

cited at length the above clauses of the will of Henry Miller, and was made payable in one

October 17, 1881. THE COURT. After hear-year from the date thereof. Default being made ing the able argument of the learned counsel for in the payment of the interest thereon, this suit the plaintiff we see no reason to change the was brought in 1878 by the executors of the opinion expressed by this Court in Kilgore v. The mortgagee. Com'th (10 Pittsburgh Legal Journal, N. S., page 230), "that neither directly nor by implication does the Act of 1875 repeal that of 1872." The Act of 1872 was unquestionably constitutional when it was passed, and it must continue to be the law until repealed. Judgment affirmed. PER CURIAM.

Jan. '80, 21.

Miller v. Schlegel.

Affidavits of defence were filed by the defendant, Henry H. Miller, trustee, and by Abraham Miller, the cestui que trust, suggesting that the trustee had no power under the will to execute a mortgage payable in one year, or at any time during the life of the cestui que trust, and that, as the mortgage recited the power at length, the mortgagee had full notice. Plaintiff thereupon obtained a rule for judgment for want of a sufficient affidavit of defence. After argument, the March 4, 1881. Court (SASSAMAN, J.) entered judgment for the plaintiffs, delivering the following opinion :

Mortgage-Will-Testamentary power to mortgage-Construction of.

A. devised to B. a piece of land in trust for C., for life, subject to the payment of a sum of money to A.'s executors. B. was authorized to mortgage the land to repay said sum, and after C.'s death to sell the same, in order from the proceeds to pay the said sum. B. executed a mortgage upon the land in C.'s lifetime, payable in one year from date. Suit being brought thereon prior to C.'s death:

Held, that the power did not oblige B. to execute a mortgage payable after C.'s death, but that he had full authority to execute a mortgage payable when he pleased, and that therefore the mortgagee was entitled to judg.

ment.

Error to the Common Pleas of Berks County. Scire facias sur mortgage by M. and E. Schlegel, executors of S. Schlegel, deceased, to use, etc., against Henry H. Miller, trustee under the will of Henry Miller, deceased.

Henry Miller by his will devised a piece of real estate to his son, Henry H. Miller, defendant, subject to the payment of $3400 to testator's executors; the said property to be held in trust for one Abraham Miller for life. The will further provided, inter alia, as follows:

"And I do hereby authorize and empower the said Henry H. Miller, his heirs, executors, or successors, to mortgage the whole or any part of said lands for the security and repayment of said sum of three thousand four hundred dollars, and I do authorize and empower the said Henry H. Miller to sell said lands as soon after the death of the said Abraham Miller as he conveniently can, either at public or private sale, for the best price that can be obtained for the same, and out of the proceeds of said sale to pay and discharge the said sum of three thousand four hundred dollars, and any unpaid interest thereon, and out of the balance of the said proceeds to pay unto each of the children of the said Abraham Miller, then liv. ing, the sum of one hundred dollars."

"Both the trustee and the cestui que trust file suggestions of defence on matters arising under the recitation of the power of the trustee incorporated in the mortgage and derived from the will of Henry Miller, deceased, creating the trust estate, with power to encumber by mortgage, to a limited extent for a specified purpose. The power to mortgage certainly includes the power to promise to pay interest and principal of the loan at a certain time, and whatever time so agreed upon was fixed in the mortgage is the period of maturity of the obligation to pay. There is no question made that such time has not elapsed. We are referred to Maurer's Appeal (5 Norris, 380), which, it is claimed, decided a point that would be a legal barrier to a recovery here. That case only considered what would be the limit of the power to mortgage, and what the effect would be if that power were exceeded. Such a point does not arise here. The point here is whether, if there is power in a trustee to mortgage, and he does mortgage, such mortgage can be collected before the termination of the trust. A mortgage for the security of a loan is a matter of contract, and like all other contracts must be construed by its terms, as between borrower and lender. If the lender could not, at maturity, recover his loan from the borrower, such a power to borrow, vested in a trustee, could hardly be executed at all. It would produce too much uncertainty, and, from the necessity of the case, the power would become a powerless gift. We conceive the law would not allow such a result to occur. The point that the defendants contend for, if upheld, would likely prove disastrous to them as borrowers. The only safe way to construe such matters, we think, is to regard such powers as efficient, and to uphold contracts made under

them the same as other contracts are upheld and enforced.

"The rule for judgment is made absolute, and judgment for plaintiff for debt and interest.'

The defendant took this writ, assigning for error the entry of judgment for plaintiffs for want of a sufficient affidavit of defence.

R. L. Jones, for plaintiff in error.

The bill averred that the defendant, Gibson, being the owner of a lot of ground in the First Ward of the city of Philadelphia, divided the same into fifteen lots, and on April 28, 1877, executed and delivered to Chas. D. Knight fifteen mortgages of $400.00 each, one upon each lot. These mortgages were second liens. The mortgages were duly acknowledged and recorded, but no consideration was given for them. On March 16, 1878, the lots, upon which there were then three houses in the course of erection, were sold by the sheriff under an execution issued upon a judgment obtained subsequent to the mortgages.

This is a question of power, and not of contract. The power directs that the mortgage shall be payable out of the proceeds of the sale of the property, to be made after the death of cestui que trust. The conclusion of the Court below entirely defeats the intention of the testator, as that was clearly to secure to the cestui que trust At the time of the sale the complainant was a the means of living. Under the judgment below, mechanics' lien creditor, and purchased the preall the property must be swept away by the sale.mises at the sheriff's sale to protect his interest. Maurer's Appeal, 5 Norris, 380.

G. F. Baer, for defendants in error. The power to mortgage is not connected with the power given later in the will to sell the land after the death of cestui que trust. Their contention would make us wait supinely until the death of the cestui que trust, during which time defendant need pay nothing, and our security would soon become useless. Their contention would have rendered the power to mortgage utterly useless, if it had been made at the time the mortgage was created, for nobody would have loaned the money upon such terms.

If the sale takes place, it is not true that the trust will be destroyed; the proceeds, after payment of the amount of the mortgage, will be subject to the same trusts.

March 14, 1881. THE COURT. We affirm
this judgment upon the opinion of the learned
Judge in the Court below.
Judgment affirmed.
PER CURIAM.

No money was ever paid on the mortgages until after the sheriff's sale. On August 10, 1878, Knight, at the request of Gibson, executed an assignment of four of said mortgages to Bergner & Engel, which said assignment was duly recorded.

The said assignment was negotiated entirely by Gibson, the mortgagor, who received the consideration; and Bergner & Engel took the same with full knowledge of the facts attending the existence of the said mortgages, and knowing that they were owned by Gibson, and not by Knight, and were made without consideration, and for the mere purpose of raising money by their sale; and further, with full knowledge of the fact that Gibson's ownership of the properties covered by them had ceased, and that the title to the same was vested in complainant.

The bill further averred that the existence of the mortgages unsatisfied was a cloud upon complainant's title, that the injury thus done him was irreparable, that there was no remedy at law, and that defendant Gibson was entirely insolvent, and that, with the exception of the four mortgages assigned to Bergner & Engel, the whole of them were in the hands of Gibson, but that there was danger of their being assigned to bona fide purchasers. The prayers were :—

"I. That the Court will quiet complainant's

Common Pleas Equity. title in and to the said premises, in such manner

as to the Court shall seem proper; whether by a decree for the cancellation and delivery up of the said mortgages so held or pretended to be held by the said several defendants, and by declaring the same void and of no effect, or by ordering an assignment by the said defendants thereof to him, or the entry of satisfaction thereon respectively.