which enacted that no lien created by virtue of the Act of 1824 should be construed to be within the meaning of the Act of 6th April, 1830, and thereafter a sale on a posterior incumbrance would not destroy the grasp of a precedent mortgage, (being within the Act of 1830), though it was subordinate to the prior lien of a municipal tax or charge, (13 Pa. State Reports 116; Id., 202), and I take this to be the law, whether the tax was assessed after or before the date of the mortgage where the sale was not upon a claim for the tax itself.

ABSTRACTS OF RECENT DECISIONS.

Supreme Court of Pennsylvania, Wills-Construction of Advancements.-Appeal of Mary C. Porter.-Opinion by TRUNKEY, J., May 17, 1880.-6 The Lancaster Bar, 21.-In the construction of a will the intention of the testator, as expressed in the instrument itself, must govern; parol evidence, though competent to determine which of several persons or things was intended, is inadmissible to show the actual intentions of the testator. While technical words and phrases may sometimes, in the construction of the will of an illiterate person, be disregarded, yet they cannot be so construed as to defeat the obvious intentions of the testator. An advancement is an irrevocable gift by a parent, in his lifetime, to a child, on account of such child's share in the parent's estate; it is to be valued as of the time of the gift, and, unless clearly directed, interest is not chargeable thereon. When a parent gives money to a child for which he takes an obligation, such gift is a debt, and if the obligation be void, the debt is not thereby turned into an advancement; but a parent may, by his will, turn a debt into an advancement, and when he does so he gives it all the incidents of an advancement,

Taxation-Charities-Words "purely" and "purely public" construed.-The Rector, etc., of St. Stephen's Church, Trustees of The Burd Orphans' Asylum, etc., v. The School District of Upper Darby.-Opinion by GREEN, J., May 17, 1880.-37 Leg. Int., 254.-The objects of the Burd Orphan Asylum being the maintenance, education, etc., of (1) white female orphans between the ages of four and eight years who shall have been baptized in the Protestant Episcopal Church in the city of Philadelphia; (2) The same class, baptized in the same church in the State of Pennsylania; (3) All other white female orphans, without respect to any other description or qualification whatever, except that in every case the orphan children of

This then being the meaning of the Act of 1824, as interpreted by the Act of 1835, it was extended to this county by Act of 5th April, 1844, that act declaring: "That all and singular the provisions of said act shall be deemed and taken to apply to taxes, rates and levies imposed or assessed for either state, county or corporation purposes by authority of any law of the Commonwealth or by authority of the county of Allegheny, or of any city or other corporation in said county, upon real estate situate in said corporation or county, except water rents." etc. Assuming that school and road taxes are liens under the Act of 1824, as extended by the Act of 1844, the former comes here impressed with the construction put on it by the Act of 1835, and they therefore do not divest the lien of a mortgage falling within the provisions of clergymen of the Protestant Episcopal Church shall have the Act of 1830, where the sale is upon a subsequent mortgage or judgment not obtained upon a claim for taxes, although in such case the taxes would be payable out of the proceeds of sale. But we are of opinion that school and road taxes are such as do not fall within the meaning or purview of the Act of 1824, as extended to Allegheny county, and that they are not liens upon seated lands at all, and that in the case in hand the claim for road and school taxes were improperly allowed by the sheriff.

The return of the sheriff is therefore ordered to be corrected as follows: The allowance of $32.24 for school taxes, and $26.24 for road taxes, is directed to be stricken out, and said amounts are to be applied to the lien next in order, which would appear to be the judgment in favor of George C. Burgwin, the lien on which the property was sold; but inasmuch as the validity of said judgment is contested by proper parties, it is now ordered that a feigned issue be awarded to try the same upon the questions of fact raised by the affidavit of the United States Bank.

And now, August 21, 1880, all the exceptions filed except so far as they concur with the foregoing conclusion, are dismissed.

BY THE COURT.
For plaintiff, Hill Burgwin, Esq.
For defendant, John S. Lambie, Esq.

the preference. Held, to have been a purely public char-
ity within the constitutional provision, and within the
letter of the Act of 14th of May, 1874, and therefore ex-
empt from taxation. The word "purely " is not to have

its largest and broadest significance when used in this
connection; it is not necessary that a charity to be "purely
public" be open to the whole public, or to any consider-
able portion of the public; when the charity is public,
the exclusion of all fdea of private gain or profit is equiv
alent in effect to the force of "purely" as applied to pub-
lic charity in the Constitution. The circumstance that
the beneficiaries are to be of a particular faith is only of
importance as designating the class. GORDON, TRUNKEY
and STERRETT,
JJ.,
dissent.

-An action for assualt and battery decided last month in the Supreme Civil Court at Boston, involved a question of some moment as to the rights of railroad passengers. The material point of the case was to determine whether a corporation, having agreed to carry a passenger over a through route at a reduced rate, less than that asked for transport to some intermediate station, has a right to prevent the passenger from stopping at that station until he has paid additional fare. The decision of the court holds that the company has no such right. The

plaintiff bought an ordinary limited ticket over the Old Colony line, from Boston to New York, for $1. Arriving at Newport, to which place the regular fare is $1.60, he started to go ashore, when he was stopped by an officer of the company and not allowed to leave the boat until he had paid the sixty cents difference in fare. He acceded to the demand, and then brought the above action. According to the decision, it seems that a railroad or steamboat company can not lawfully prevent a passenger from leaving the cars or boat at any station when a regular stop is made for the exchange of passengers. The company may demand the difference in fare between local and through rate, and, if payment is refused, recover the same in a civil action, but have no other remedy.-The Central Law Journal,

Editor.

PITTSBURGH, PA., SEPTEMBER 1, 1880.

OBITUARY.

defeasible deed in the nature of a mortgage shall be a lien until such mortgage or defeasible deed shall have been recorded or left for record; *** Provided that no mortgage given for purchase money of the land so mortgaged shall be affecNo. 3. ted by the passage of this act, if the same be recorded within sixty days from the execution thereof."

Except in a mortgage for purchase money, no mortgage is a lien until recorded or left for record. On this the following cases are authority : Adams' Appeal, 1 Barr, 447; Nice's Appeal, 4 Smith, 200; Lunch's Appeal 8 Wr. 519; Brook's Appeal, 14 Smith, 127. While actual knowledge of an unrecorded mortgage may in distribution postpone a subsequent judgment, it is not a lien until left for record, and no amount, knowledge or notice will make it a lien. A purchaser too at private sale, with notice of the existence of an unrecorded mortgage, stands in relation to it and holds the premises precisely as did the mortgagor. So far as it effects its relation to the premises; Britton's Appeal, 9 Wr.,

Hon. LAWRENCE L. McGUFFIN died in New Castle, on Monday, the 23d ult., after a lingering illness. He was born in Wilmington, Delaware, July 28, 1813, and in 1836 he removed to New Castle and engaged in the cabinet making business. While doing so he read law and recited to Hon. John J. Pearson, who then was practicing law at Mercer, Pa. He was admitted to the bar in due time and became a very successful and popular attorney. In 1864 he was appointed by Governor Curtin as Judge of the Seventeenth Judicial district, then composed of the counties of Butler, Beaver and Lawrence, to fill the vacancy occasioned by the Hon. DAN-172, and cases cited. IEL AGNEW's promotion to the Supreme bench. He was afterwards elected by the counties of Butler and Lawrence to the same position. He served over eleven years, and was an honest and upright Judge, always very anxious to do justice to the humblest citizen.

Since his retirement from the bench, and, in fact, for some time before, he was severely afflicted with rheumatism and for the last two or

three years was unable to leave his house. He was the last link that connected the present generation with the past. He possessed in an unusual degree the respect and confidence of all his fellow-citizens, and his loss is deeply felt by the community. The Bar of Lawrence county met on the 25th.ult. to pay tribute to the memory of the deceased, at which time they adopted a memorial and suitable resolution, and adjourned to attend the funeral in a body.

UNRECORDED MORTGAGES

STRUED.-II.

Where there is an absolute deed and separate defeasance, and the latter is not recorded, although the deed is recorded, it is only an unrecorded mortgage; Friedly v. Hamilton, 17 S & R., 70; Bank v. Bank, 7 W. & S. 335; Jaqus v. Weeks, 7 Watts, 261; Meder v. Musselman, 6 Wharton, 354; Lunch' Appeal, 8 Wr. 519; Rhines v. Baid, 5 Wr. 256; Netberd v. Boveer, 1 Grant 266; Horn v. Pattison, 1 Grant, 304; Uhler v. Hutcheson, 11 Harris, 110, and a judgment without notice of such mortgage, has preference over an unrecorded mortgage in distribution.

A purchaser at private sale, with notice, takes the premises subject to the mortgage, although it is not recorded. In such case he is not an innocent purchaser, notice does not and cannot alone make a lien, but notice will subject the premises to an unrecorded mortgage in the hands of a purchaser at private sale. Hence a HOW CON- scire facias may be issued and a lien acquired by the mortgage subsequent to such purchase at private sale.

An instrument when ascertained to be a mortgage, is a mortgage, and so treated, no matter whether the defense be written or oral in the conveyance, or contained in a separate writing. Once a mortgage always a mortgage, is a maxim applied, and all the requisites of any ordinary mortgage are resolved. The questions generally arise on the constructions of the rights and duties of the mortgagee, and of these, first, the mortgage must be recorded.

The Act of March 28, 1820, Purdon's Digest, page 478, Sec. 103, provides: "No mortgage or

But the law is different in the case of a purchaser at sheriff sale. Judicial sales, discharge all liens, except those saved by some express statute or agreement. A mortgage when it is the first lien, is not divested by a judicial sale on a subsequent judgment, because its lien is preserved by the Act of 1830, and it is not entitled to participate in the proceeds of sale. The purchaser at sheriff sale pays his money, and the law applies it to the claimants according to to the principles of equity. Hence it is that an unrecorded mortgage may be entitled to the

money over a judgment, Not because the mortgage is a lien, but because distribution is made under the equitable powers of the court. Harper's Appeal, 14 Smith, 315; Brinton's Appeal, 9 Wr. 172, and others which affirm the same principle. Judge STRONG says, in Brinton's Appeal, supra: "Nor does such a rule interfere with a purchaser at sheriff sale under the judgment. They are not effected by notice to the plaintiff in the execution, but stand on the independent footing of purchasers for value." The case of Corpman v. Baccastow, 3 Nor.. 362. Corpman made a deed absolute in terms to Baccastow on the 6th day of April, 1868, and on the 23d day of the same month, Baccastow executed a writing by which he agreed to reconvey to Corpman, on the payment of $1,740 in a stipulated time, and if Corpman failed to pay as agreed upon, Baccastow was to sell the premises, pay his own claim and expenses, and pay the excess, if any, to Corpman. The deed was recorded July 9th, 1868. This defeasance was not recorded.

Judgment was entered against Corpman on the 18th day of January, 1869, in favor of Ballou and Scott, on which the land was sold by the sheriff, and purchased by W. S. Corpman, previous to this, however, Baccastow had sold and conveyed the premises pursuant to the power contained in the defeasance, to Daniel Wagner, who paid the purchase money and took possession. W. S. Corpman, the purchaser at sheriff sale, thereupon brought ejectment. Justice PAXSON uses the following language: "The deed of Jacob Corpman to John Baccastow, dated April 6, 1868, and the agreement of April 23, 1868, were executed at the same time and taken together, constituțe a mortgage. The deed was recorded prior to the entry of the Ballou and Scott judgment. The agreement has never been recorded. The plaintiff claims title by virtue of a sheriff's sale under said judgment; the defendants claim title by virtue of a sale in pursuance of a power contained in the mortgage. The sale under the mortgage was prior in point of time to the sale under the judgment. It was contended by the defendants that a sale under the mortgage divested the lien of the judgment, and that Jacob Corpman had no interest in the land at the time of the sheriff's sale.

This raises a question of priority of lien. Its solution is not difficult. It was decided in Friedly v. Hamilton, 17 S. & R. 70, that an absolute deed and defeasance made at the same time, constitute a mortgage, and if the defeasance be not recorded it is to be considered as an unrecorded mortgage, and postponed to a judgment of subsequent date, notwithstanding the absolute deed has been duly recorded. This

principal has been distinctly recognized and affirmed in Jaques v. Weeeks, 7 Watts 261; Bank v. Bank, 7 W. & S. 335; Wilson v. Shoenberger, 7 Casey 295,and other cases, while in no case has it been doubted or denied. It was contended, however, that this case does not come within the rule referred to, for the reason that by the terms of the agreement, Baccastow held the legal title for the purpose of selling to pay debts. The force of this proposition is not ap

parent. He had no authority to sell for the payment of debts generally. He could only sell for the payment of the particular debt secured by the mortgage.

The mortgagor and mortgagee had by their contract provided a special remedy in case of default of payment of the money. This instrument was none the less a mortgage by reason of this provision contained therein. Its character and legal effect remained unchanged. It was further contended by the defendants that the sale by | Baccastow being under a power divested the lien of the judgment. This might have been so had the lien of the judgment been subject to the power. But it was not. The power of sale was merely a remedy created by the mortgage, and as against the judgment the mortgage was not a lien, by reason of the failure to record the defeasance." As this case was ejectment for the land, the question of who was entitled to the proceeds of the sheriff's sale could not arise. Under the principles and decisions stated before, the mortgage of Baccastow would have been entitled to the proceeds if Ballon and Scott at the time their debt was contracted had notice of Baccastow's unrecorded mortgage. The purchaser, however, at sheriff sale, in all cases with or without notice, takes the premises discharged of all possible claim or liability by virtue of an unrecorded mortgage.

Some have contended that in case the mortgagee is in possession under his mortgage, which is not recorded, that possession is equivalent to the record. For some purposes possession may excuse recording of a deed or mortgage, but possession cannot make it a lien. And this is the point in such case. A mortgagee in possession under an unrecorded mortgage cannot hold until his mortgage is paid as against a purchaser at sheriff's sale. A sale of the mortgagee's title on a judgment the terms of which attached before the mortgage was recorded. In such case the purchaser buys both the title of the mortgagor and mortgagee,-the legal title as well as the equity of redemtion. This point was distinctly decided in Wilson v. Shoenberger, 10 Casey, 121. This was an action of ejectment in which Dr. Peter Shoenberger was plaintiff and Wilson and others were defendants. The

ond suit conceded the character of the deed but contended that the mortgagor or the purchaser at sheriff's såle should not recover possession or redeem until he had accounted with his mortgagee and repaid him his advances. WOODWARD, J., again delivers the opinion and says: See 10 Casey, 124. "The answer is that the plaintiff is not the mortgagor but a purchaser at sheriff's sale made on a judgment whose lien attached to the premises prior to that of the mortgage. Dr. Peter Shoenberger, whose executors are plaintiffs, purchased under a judgment entered on the 2d or 7th of February, 1850. Both dates are given in the appendix of the paper books, but it is not material which is right or wrong for both are prior to the recording of the mortgage. Indeed the mortgage has never been recorded at all. The part of it which conveyed the estate to Wilson was put on record the 12th of February, 1850, more than six months after its date, and five days at least subsequent to Dr. Shoenberger's judgment un

facts are substantially as follows: Both parties claimed under Edwin F. Shoenberger, who, on the 14th day of May, 1849, conveyed the premises to Andrew P. Wilson, one of the defendants, by deed recorded February 12, 1850. Andrew P. Wilson on the same day the deed was delivered to him executed six bonds in favor of Edwin F. Shoenberger, the grantor, in the sum of $10,000 each, conditioned "that if the above bounden Andrew P. Wilson shall well and truly pay E. F. Shoenberger, his executors or assigns, the full sum of $5,000, etc., out of Juniata forge property, then the above obligation to be null and void or else remain in full force and virtue." At the time of the execution of the deed to Wilson and delivery of the bonds to Shoenberger, an agreement in the nature of a defeasance was entered into in writing between Edwin F. Shoenberger and Andrew P. Wilson, which agreement among other covenants contained the following, to wit: "And upon the lifting and delivering of said bonds by said Shoenberger to said Wilson, said Wilson cove-der which he purchased, but the accompanying nants to reconvey such title as he has and holds in said forge and rolling mill property and premises to the said Edwin F. Shoenberger, for all such estate, title and interest as he may have and hold in the same under the conveyance aforesaid. In deciding the case in 7 Casey, Judge WOODWARD says:

defeasance which Wilson gave to Shoenberger, not having been recorded, it is the case of an unrecorded mortgage. Friedly v. Hamilton, 17 S. & R., 70. The position of the defendant is, therefore, that he as the holder of an unrecorded mortgage which never became a lien upon the premises, has a right to retain them as against the purchaser at sheriff's sale until he is repaid the mortgage debt. To sustain such a proposition would repeal our recording acts and to nullify the effect of judgment liens. Be it so that equity would not turn out a mortgagee and admit a mortgagor until the mortgage debt is paid, these plaintiffs are not here as mortgagors but as purchasers under a lien paramount to the mortgage. They acquired all the rights both of mortgagor and mortgagee in the land, and to insist that they shall account is to insist that they shall account with themselves. On them the mortgagee has no claims, either in equity or law." And in Maffitt v. Rynd, 19 Smith, 387, SHARSWOOD, J., says: "To insist on what was really a mortgage, as a sale, is in equity a fraud, which cannot be successfully practiced under the shelter of any written papers, however precise and complete they may appear to

"It is the settled law of the Pennsylvania mortgage that though in form a conveyance of title it is in realty both at law and equity only a security for the payment of money or performance of other collateral contract. And none the less so because the defeasance instead of appearing in the original deed is contained in an accompaning or subsequently executed instrument. Before our numerous coherent and well considered decisions on this point can be set aside something more must be shown than an isolated English case which does not enter at all into the spirit and reason of our law. Notwithstanding Wilson's possession and acts of ownership in respect to the property in dispute he must be considered as a mere trustee of E. F. Shoenberger, or else the case involves the solecism of a vendor selling real estate for the bonds of the vendee, which are not to be asserted against the vendee under a penalty of $500. | be." This would be the most remarkable sale of real estate on record."

A second ejectment was entered by the same plaintiff against the same defendant for the same land, in order to settle forever the title of the plaintiff by two verdicts and judgments. The nature of the deed and defeasance having been adjudged in the former trial and pronounced a mortgage, the defendants in the sec

Beneficial Societies-By-laws-Binding Effect of Upon Members.-St. Patrick's Beneficial Society v. Mc Vey.-Opinion by GORDON, J.-8 W. N. C., 537.—A member of an incorporated beneficial society, in which the benefits to be derived are regulated by the by-laws, does not stand in the relation of a creditor to the society, but can claim only

such privileges and under such regulations as are prescribed by the by-laws existing at the time of his appli

cation for relief.

.

Appeal from the Supreme Court of the Dis- mony, and the court on final hearing made a trict of Columbia.