A mortgage given upon real estate to secure the amount | act and deed, and desired that the same might be recorded of a judgment held by the mortgagee against the mort- as such. gagor is founded upon a lawful and valid consideration as against other creditors of the mortgagor. Judgment creditors of the same debtor cannot inquire into the consideration for the assignment of his judgment by one of their number to a third party. When a justice of the peace, in taking the acknowledgment of a mortgage, subscribes himself as "justice of the peace," the fact that the acknowledgment fails to show that the officer was a justice for the county where the lands lay, is not a fatal defect. It will be presumed that he was a justice for some county in this State, and that is sufficient. Appeal of W. L. Ross & Co. and J. Leman Ellsbree, lien creditors of Reuben Morley, from a decree of the Common Pleas of Bradford County, distributing the proceeds of a sheriff's sale of Morley's real estate. "Witness my hand and seal the day and year aforesaid. "J. S. WILLISTON, J. P. [Seal.]" The indenture of mortgage was made between Reuben Morley, of Burlington Borough, Bradford County, Pennsylvania, of the first part, and Luther Putnam, Jr., of the borough aforesaid, of the second part, and recited that it was executed for the purpose of better securing the payment out of said premises of the said judgment debt assigned to the use of the mortgagee. Ross & Co. and J. Leman Ellsbree, on September 14 and 15, 1882, respectively issued writs of venditioni exponas, under which the premises were sold December 1, 1882. The distribution of the fund was referred to an Auditor (D. A. Overton, Esq.), before whom The facts of the case, as they appeared from each of said parties claimed the fund. L. Putthe report of the Auditor, were as follows: On nam, Jr., however, merely presented his mortJuly 5, 1882, Isaac Morley died intestate, seised gage, not the judgment, and claimed the fund, of certain real estate. Reuben Morley, son of less cost of sale and audit, because the appelIsaac Morley, became therefore entitled, under lants' executions had not been indexed, as rethe intestate laws, to a certain undivided interest | quired by the Act of April 22, 1856, sec. 3 (P. in said real estate. Previous to this time A. and L. 532); claiming that, therefore, as to his mortJ. Morley, J. Leman Ellsbree, and W. L. Ross gage, the liens of the appellants' executions did & Co., respectively, had obtained judgments not commence or continue. To this it was reagainst Reuben Morley, which remained unsat-plied, that inasmuch as the mortgage was given isfied. On August 14, 1882, W. L. Ross & Co. issued an execution on their judgment, and a levy was made on the said interest of Reuben Morley on the real estate above specified. On August 15, 1883, Ross & Co. issued a scire facias to revive and continue the lien of the judgment. On August 17, 1882, J. Leman Ellsbree issued an execution on his judgment, on which levy was subsequently made on said interest. to secure the payment of the antecedent judgment, the holder was not bona fide for value; and that, as the mortgage was defectively acknowledged, and so recorded, it was not notice to the appellants, who were prior lien creditors. The Auditor, relying upon Fuhrman v. Loudon (13 S. & R. 387), held that, inasmuch as the parties to the mortgage, as well as the lands described therein, were stated to be in Bradford County, it might be presumed that the magisThe fi. fa. on the judgment of W. L. Ross & trate was a justice of the peace of the same Co. was indexed on the day of issue in the judg-county. And as to appellants' claim he reported ment index docket, and the same day the writ that, except a bare allusion to the subject in was received by the sheriff and levy made. There Wilson's Appeal (9 Norris, 370), there was no appears to have been no entry on the index what- decision on the subject; but that the language ever made in the case of J. Leman Ellsbree. of the Act was imperative, and admitted of but On September 14, 1882, A. and J. Morley one intepretation, that as regards the priority obtained an amicable confession of revival of over purchasers and mortgagees of executions their judgment, and assigned the same to Luther levied upon after-acquired real estate, if the levy Putnam, Jr., the appellee. was not indexed there was no lien. But it follows that, disconnected from the mortgage, the money for distribution would have to be appropriated first to the payment of the first execution. The mortgage was given for a sufficient consideration, and did not have such relation to the judgment as would in any way change its lien as a judgment. Assuming, then, that the mortgage was duly acknowledged and recorded, it was the first lien against the lands then, because the judgment which it was given to secure antedates it as a lien four days, the statutes enacting that the lien of certain mortgages shall On September 16, 1882, a mortgage of Reuben Morley's interest in his father's real estate, dated September 15, 1882, by Reuben Morley to L. Putnam, Jr., to secure the payment of said judgment out of his interest in said lands, was acknowledged and recorded. The certificate of acknowledgment was defective, being without caption, in the following words : "On the 16th day of September, Anno Domini 1882, before me, a justice of the peace, personally appeared the above-named Reuben Morley, and in due form of law acknowledged the above indenture of mortgage to be his not be affected by judicial sales, do not prevent | missioners, 1 Watts, 300; Packer's Ap., 6 Barr, the mortgagee receiving the fund on his mort- 277.) It is, therefore, clear that the Ross & Co. gage. and Elsbree fi. fas., by virtue of their levies upon the land from the sale of which the money in dispute was raised, were liens at common law; and that, in point of date, these liens outranked the Putnam mortgage is not disputed. But as these executions with their levies were not docketed as prescribed by the Act of the 22d of April, 1856, they were not, as to purchasers and mortgagees, statutory liens. "The lien of no exe Exceptions were taken to the findings and report of the Auditor, which were dismissed and a decree entered by the Court (MORROW, P. J.), in accordance with the recommendations thereof. Ross & Co. and Ellsbree thereupon took this appeal, assigning for error the decree of the Court. Rodney A. Mercur, for appellants. fit of the Act of April 22, 1856, must be bona Dickerson v. Tillinghast, 4 Paige, 215. De Lancey v. Stearns, 66 New York, 157. 1 Jones on Mortgages, sect. 458, and authorities cited. The certificate of acknowledgment has no caption. It does not state that the officer is a justice of the peace of any county or State. It was wrong to presume him to be a justice of Bradford County. This may only be proved aliunde. Scott v. Gallagher, 11 S. & R. 347. Angier v. Schieffelin, 22 Smith, 106. tate, shall commence or be continued, as against any purchaser or mortgagee, unless the same be indexed in the county where the real estate is situated." Now, it is idle to say that the docketing of the fi. fas. alone was either a compliance with the Act, or constructive notice to the mortgagee. It is the execution levied that is the lien both under the Act and at common law, hence, if the levy does not appear of record, there is, and can be, no statutory lien. So, the question of constructive notice is put out of the case from the fact that, had the mortgagee looked just where he was bound to look, he would have found an execution without a levy. It is said, however, that the Putnam mortgage was void for want of consideration. We cannot see the matter in this light. This mortgage was given to marked to the use of Putnam. The considerasecure the Morley judgment, which had been tion, therefore, moving Reuben Morley to the execution of the mortgage was valid and lawful, and further than this we need not go. It may be that the assignment of the A. and J. Morley judgment, may not, as between them and Putnam, have been good for the want of consideration, but that is a matter between themselves, and with which the appellants have nothing to Edward Overton, Jr. (John F. Sanderson do. It is further urged that the execution of the with him), for appellee, cited— Rigler v. Cloud, 2 Harris, 361. Livingston . Kettelle, 1 Gilman, 116; S. C., 41 American Decisions, 166. May 19, 1884. THE COURT. As long ago as the case of Colhoun z. Snider (6 Bin. 134) it was held that a pre-existing judgment was not a lien on after-acquired real estate, and the doctrine of this case has been followed without doubt or hesitation from that time to this. Upon | such property an independent lien may be created by an execution issued from such judgment, but in order to accomplish that result it must be accompanied by a levy. (Stauffer v. The Com mortgage is worthless as notice, in that it does not appear in the certificate of acknowledgment, that the officer taking it was a justice of the peace for the county of Bradford. The person thus certifying, however, subscribes himself as a justice of the peace, and, as was said in Fuhrman v. Loudon (13 S. & R. 386), it cannot be supposed that he would have received the acknowledgment of a deed or mortgage for or on lands in Pennsylvania, unless he had been a justice of the peace for some county in the State. (See, also, Angier v. Schieffelin, 22 P. F. S. 106.) Notwithstanding, therefore, the able and ingenious argument of the counsel for the appellants, we cannot see our way clear to reverse the Court below. The appeals are dismissed, and the decree affirmed at the costs of the appellants. Opinion by GORDON, J. [Cf. Wilson's Appeal, 9 Nor. 370.] H. L. N. The K. I. Company had leased from A. et al. certain land supposed to contain iron ore. In an action for rent by the lessors, the lessees set up as a part of their defence that the title of the lessors to a part of these lands was bad. The jury found, however, that the lessees had accepted the lease with knowledge of the title of the lessors, and at their own risk. Subsequently, in an action of ejectment, the real owners recovered this portion of the leased property. In an action afterwards brought by the lessors to recover other rent due, the lessees offered in evidence the record in this ejectment suit, "for all purposes for which the said action of ejectment and eviction for part of the same premises is admissible as evidence:" Held, that the former action had conclusively estab lished that the lessees took with notice of the defective title to this tract, and agreed to take the risk of it, and, therefore, that an eviction from this portion of the leased premises could not be set up as a defence to this action; but: Held, also, that as a material question in the case was whether there was enough ore in the land leased to produce, on a royalty of fifty cents per ton, the sum claimed by the lessors; and as without this tract from which the lessees were evicted, there may have been a failure both in quantity and quality, that for the purpose of showing that this portion of the leased premises should be excluded from the determination, the record offered was competent. Held, also, that while it might be true that in determining the question the jury left this particular tract out of consideration, or that in point of fact it contained little or no ore; still, as the Court ought to have directed the jury to exclude this tract from their consideration, and did not do so, the Supreme Court must take it for granted that it was considered with the rest. The lessees offered to prove that the premises did not contain forty thousand tons of workable, merchantable ore, fit for use in a furnace. At the royalty fixed by the lease more than this quantity would have been necessary to produce the amount of rent or royalty claimed by the lessors : Held, that the lease contained no guaranty that the ore should be such as in the present condition of the iron market could be worked profitably, hence the Court might have refused to adopt the word "merchantable;" but: Held, also, that in contracting about iron ore the parties must be taken to have meant something that could be properly used in an iron furnace, and something that, in at least some possible condition of the iron market, would be worth working; and hence, an offer to show that the ore contained in the leased premises was not of this character, was material, and ought to have been admitted. STERRETT, J., dissents. Error to the Common Pleas of Bedford County. Covenant, by Anna M. Scott and Miriam A. Bickley, executrices, and James P. Scott, executor of Thomas A. Scott, deceased, Henry A. Stiles, executor of Robert H. Gratz, deceased, Samuel L. Russell, and John Lutz, administrator of Jonathan H. Seymour, deceased, against The Kemble Coal and Iron Company, to recover $20,000 rent on a lease under seal. On the trial, before BAER, P. J., the following facts appeared: In 1872 plaintiffs (or plaintiffs' decedents) leased to defendant, for eleven years, certain tracts of land supposed to contain iron ore. The lease provided that defendants should pay fifty cents for each ton of ore mined, and that "For the first year of the lease, the parties of the second part are to pay rent on as many tons as they may be able to mine, but for any period of three years thereafter the rent in the aggregate is not to be less than $10,000, whether ore to that extent is mined or not, unless the irregularities of the ore-veins should, to the satisfaction of the said parties of the first part, prove so great as to prevent the said parties of the second part from taking out ore to that amount." In case of disagreement on this point provision was made for arbitration. The most valuable portion of the property leased was known as the Mench tract. In pursuance of this lease the defendants went to work to put in a tunnel for the purpose of mining the ore. They purchased ten acres of land to get an entrance to the ore and on which to put their buildings. No ore was taken from the leased premises at any time, however. In 1876 the present plaintiffs brought a suit to recover $10,000, being the rent under the lease for the preceding three years. The defence was that the veins were thin and irregular, and the ore of poor quality; that the provision relating to the payment of $10,000 every three years was a mere stipulation, and could be avoided by relinquishing the contract, and that the title of the lessors to the Mench tract was bad. The jury found for the plaintiffs, giving a verdict for $11,075.00; "and further, that the defendant took the Mench tract No. 3 with the knowledge of the title and at its own risk." Judgment was entered on the verdict, and a writ of error was taken to the Supreme Court, and the judgment of the Court below was affirmed. (9 Norris, 332.) In 1879 Jeremiah Baughman and Jacob J. Barndollar recovered this Mench tract, in an action of ejectment brought by them against the plaintiffs in this case. In 1882 plaintiffs brought this action to recover rent for the two triennial periods since 1876. The defendant called Horace Patterson, and made the following offer: "Defendant offers to prove by this and other witnesses, that he and they are experts as miners, furnacemen engaged in the manufacture of iron, as geologists, metallurgists, chemists, and mining engineers; that they examined the premises embraced in the lease, and that said premises do not contain iron ore in sufficient quantity to enable defendant, or any other party or persons, to mine and take therefrom 40,000 tons of iron ore, in addition to the 20,000 tons for which a recovery was had in the former action, in any period of six years of the lease. That they do not contain 40,000 tons of term lost, and the mesne profits paid the paraworkable, merchantable ore, fit for use in a fur-mount owner. nace, much less the 60,000 tons to which defendant was entitled during the nine years immediately following the first year of the lease; and that the irregularities of the ore-veins in said premises were and are so great as to prevent the defendant from taking therefrom 20,000 or 40,000 tons, in addition to the 20,000 tons for which they have already paid." Objected to. THE COURT. "The objection is overruled, and all that is proposed under the offer is admitted, except so much of the offer as proposes to prove that the ore found upon the premises covered by the lease is not workable, merchantable ore fit for use in a furnace. There is no clause in the lease that relates to the quality of the ore other than it must be iron ore. (First assignment of error.) Defendant also made the following offer: "The defendant offers the record of No. 296, September Term, 1879, Jeremiah Baughman and Jacob J. Barndollar against Thomas A. Scott, Samuel L. Russell, Jonathan Seymour, and the heirs of Robert H. Gratz, deceased, the present plaintiffs, and the Kemble Coal and Iron Company, the present defendants, action of ejectment for tract No. 3, mentioned in the plaintiff's narr. in this action for the land and iron ore mining rights contained therein, showing a recovery by the plaintiffs in that action, writ of error to the Supreme Court by the defendants, the affirmance of the judgment by the Supreme Court, habere facias possessionem, and delivery of possession to the plaintiffs; writ issued by plaintiffs November 15, 1878; offered for all purposes for which the said action of ejectment and eviction for part of the same premises is admissible as evidence." Objected to. Objection sustained and offer overruled. (Third assignment of error.) Verdict and judgment for plaintiffs for $23,566.67. Defendants took this writ, assigning as error, inter alia, the points above noted. Wayne MacVeagh (John Cessna with him), for plaintiffs in error. W. H. Koontz and R. M. Speer (Russell & Longnecker with them), for defendants in error. The ruling of the Court on the first point worked no injury to the defendants, for the Court really admitted all that they requested. It is not consistent with law or sound morals that the lessees of four tracts of land, who take the lease with knowledge of a defect of title to one tract, could hold on to the others and set up, as a defence to the whole rental eviction, from that part. May 26, 1884. THE COURT. The Court below was undoubtedly right in holding that the previous verdict and judgment, as found in the case of the Kemble Coal and Iron Company v. Scott et al. (9 Norris, 332), had finally and conclusively determined the fact that the defendant entered into the lease in controversy with knowledge of the defect in the title to the Mench tract, and had agreed to take upon itself the risk of that title, and therefore that an eviction from this part of the leased premises could not be set up as a defence in the present action. Had the offer of the record of the ejectment, Baughman and Barndollar v. Scott et al., been intended to raise and re-try the question as above stated, its exclusion would have been entirely proper; but such was not the case. The offer was general and for all purposes, hence, if it was admissible for any purpose the Court ought not to have rejected it. The defendant might have been compelled to state specifically the use intended to be made of it, or the Court might have limited its application, but it was a mistake to reject it altogether. One very material question was whether there was iron ore enough in the land, which, at the rate of fifty cents per ton royalty, would amount to the sum claimed by the plaintiffs, and to determine this it was certainly neces sary to ascertain the extent of the ore-bearing territory. With the Mench tract the quantity may have been entirely sufficient and the quality unobjectionable, whilst without it there might be a failure both in quantity and quality. For the purpose, then, of showing that this part of the leased premises was to be excluded in the determination of the question, as above stated, the record offered in evidence should have been admitted. There is an implied covenant in the lease that the ore, if any, in the land was merchantable ore, fit for use in a furnace. The lessors knew the character and purposes of the lessees, and it is a natural and fair inference that they knew the It may, indeed, be true that in the trial of the purposes for which they took the lands. It can- case this tract was in fact excluded, and it may not be pretended that it was incompetent for de- also be that the amount of ore contained in it is defendant to show that the ore was perfectly use-insignificant, but of these things we have no lawless. The "taking of the Mench tract with ful information, and whether there was much or knowledge of the title and at its own risk," did little ore in this part of the leased premises is not not include a liability for rent for years after the question; for from it the defendants were eviction. The only things waived by the knowl- evicted by a title paramount to that of the plainedge were the right to recover damages for the tiffs; hence it ought not to have been in the case at all. The Court might have remedied this matter by directing the jury to exclude this Mench tract from their consideration; but it did not do Common Pleas—Equity. so, and we must take it for granted that it was considered by that body with the balance of the leased lands. C. P. No. 3. Oct. 25, 1884. Hey v. Estabrook et al. We also feel ourselves obliged to sustain in part the first assignment of error. The defend- Equity-Injunction-When preliminary injunc ant offered to prove, inter alia, that the premises did not contain forty thousand tons of workable, merchantable ore, fit for use in a furnace. This part of the offer was refused by the Court below. We think in this there was a mistake; for though the Court might have refused to adopt the word "merchantable," as depending too much upon the present condition of the market, yet certainly the ore which the defendant was required to pay for should be workable and fit for use in a furnace. tion will not be granted-Dispute as to a matter of fact-Remedy at law-Interference with a public officer in the execution of his duty. Sur motion for preliminary injunction. Bill in equity, by David Hey against John D. Estabrook, Chief Commissioner of Highways, John B. White, Assistant Commissioner of Highways, Samuel L. Smedley, Chief Engineer and Surveyor, George Wolf, and John Dougherty. The bill set forth the plaintiff's ownership for more than twenty years of a tract of land in the Whether it was such ore as, in view of the Twenty-second Ward of Philadelphia, fronting on present condition of the iron market, could be Germantown Avenue, formerly the Germantown worked profitably, is not the question, for of this and Perkiomen Turnpike Road; that Cresheim there is no guaranty in the lease, but when the Creek had for fifty years run across and over this parties were contracting for and about iron ore, tract, furnishing plaintiff with power for running they must be taken to have meant something that his mills erected upon said land; that for more could be properly used in an iron furnace, and than seventy-five years there had been on said something that, in at least some possible condi- Germantown Avenue, across said Cresheim tion of the iron market, would be worth work- Creek, a stone arched bridge, having a width ing. The parties did not contract on the basis across said avenue of thirty-three feet and along of chemical analysis or future possibilities, but said avenue, a length of one hundred feet, used upon the obvious facts of every-day life; hence, as a public highway; that Germantown Avenue the material question was, Could the ore found in front of plaintiff's land has never been more in the leased premises, under the present meth- than forty feet wide; that an ordinance of ods of making iron, be properly used for the Councils had been approved September 5, 1884, purpose indicated? If it could be so used, and authorizing and directing the construction of there was enough of it, the plaintiffs had a right" a stone or brick arched bridge across Germanto require a full performance of the contract; if, however, there proved to be a failure in either of these particulars, then was the defendant released from payment, either in whole or in part, as the case might happen. In nothing else, than as above stated, do we discover error in the rulings of the Court below, hence the remaining assignments are dismissed without comment. The judgment is reversed and a new venire ordered. town Avenue at Cresheim Creek, Twenty-second Ward, at a cost not to exceed $6000; to be built according to plans and specifications of the Chief Engineer and Surveyor;" that Samuel L. Smedley, said Chief Engineer and Surveyor, had prepared the plans and specifications for the building of a bridge to be sixty feet in breadth, and so that the course of said Cresheim Creek will be so altered as to divert it from its former, course and cause it to run upon and flow over other of plaintiff's land that has never before been used for such a purpose. It was also alleged that Chief Commissioner Estabrook had contracted with the defendants Wolf and Dougherty for the building of said bridge according to said. plans and specifications; that under the superintendence of Assistant Commissioner White, said Wolf and Dougherty had begun to tear down the old bridge and intend to go upon and have gone upon plaintiff's land for the purpose of building a portion of said bridge to the extent of from ten to thirteen feet in width and about sixty-nine feet in length, and "intend to take a large quantity of plaintiff's land for the purpose |