(Reigart v. Ehler.)

Mr. Phillips for the plaintiff in error, argued in support of these exceptions. He cited 6 Binn. 45, 427.-2 Binn. 468.

Mr. C. Ingersoll (with whom was Mr. Perkins) for the plaintiff in error, was stopped by the court.

The opinion of the court was delivered by

SERGEANT, J.-The first question arising on the bill of exceptions to the evidence is, whether the deed of the 28th September, 1830, and its recitals, were admissible in evidence. It was offered by the defendant, to show that Mrs. Stevenson, for whose use the conveyance of the 22d July, 1829, was taken by her father, had, on being apprised of its existence, dissented from it, declared it to be null and void, and in conjunction with her husband, settled the pro perty in a different manner. Had Mrs. Stevenson been a third person, wholly unconnected with this suit, the deed of 1830 would have been evidence for this purpose. It was her solemn, deliberate act, under her hand and seal, and acknowledged before a magistrate, and was the highest evidence, short of a record, of her dissent from the former deed, on which this suit was founded. But in addition to this, Mrs. Stevenson was a party to the present suit. It was marked to her use on the day of the trial, and she was entitled to the whole beneficial interest in the rent claimed, even supposing that the deed of 22d July, 1829, conveyed to her no more than an equitable interest. That deed was to her father, his heirs and assigns, to have and to hold to him, his heirs and assigns, in trust for the sole use, benefit, and behoof of Mrs. Stevenson, and her heirs. In an ordinary case, such a deed would not create a trust in her, but a use executed by the statute, (1 Prest. Estates, 191,) and would, therefore, on its face, have passed to her the whole legal estate in the premises. So that she would be the party legally as well as beneficially interested in this suit; and any act or declaration or recital of hers would be evidence against her. The only ground on which it can be contended that no more than a trust passed to her, is that it is conveyed for her "sole use, benefit, and behoof," which means for her separate estate; and in that case, a trust being necessary to support her separate interest, such construction might be given to it. On the construction of similar words, some nice distinctions have been made by the English Courts, (Clancy on Married Women, 267,) and the decisions in Pennsylvania are collected and examined in the opinion of this court delivered by Mr. Justice Kennedy, in the case of Evans v. Knorr, (4 Rawle, 66.) It is not necessary, nor do I mean to express any opinion on this point, because, if Mrs. Stevenson had the equitable interest in the demand in this suit, her declarations and recitals respecting her interest in the matter in controversy, would be evidence for the defendant; and the recitals in question, being contained in an indenture, are to

(Reigart v. Ehler.)

be considered as the words of all who are parties to it. I am therefore of opinion, there was no error in admitting in evidence the deed of 28th September, 1830, and its recitals.

The next question is, whether the court were right in charging the jury that the deed of 22d July, 1829, was void, and the deed of 28th September, 1830, was good. I do not perceive on what ground it can be pretended, that Mrs. Stevenson can again set up the first deed, and recover upon it, after her solemn declaration in the last deed, that the former was executed without the knowledge, consent, or approbation of herself, and husband, that it was null and void, and after having conveyed the same property to another trustee, and settled it to other uses and purposes, and when that settlement has been carried into execution by the trustee's demanding and recovering the rents from the tenants under it, for the benefit of her and her husband. She had the undoubted right and power, if the first deed was made without her knowledge and consent, to annul it at the first opportunity; and on availing herself of this power, and exercising it by a deliberate act, the deed was absoIntely null and void ab initio. It was not merely voidable so as to be good for the intervening time: it had no validity from the beginning, the assent of the ostensible parties to it being wanting. The property never passed by it for any purpose whatever; and the settlement of the estate by the deed of 28th September, 1830, was made on the ground, that Mrs. Stevenson remained free and untrammelled, and at liberty to settle the estate as she pleased. Having done so, it is clear, that the deed of 29th July, 1829, never had any legal existence, and that the deed of 1830, was valid and binding. If so, Mr. Porter, the trustee under the deed of 1830, was alone empowered to receive the rents; and though the evidence is not very clear, there is reason to believe, that he, or Mrs. Stevenson, did receive them.

Another exception to the charge is, that the court below stated that there was no presumption from any evidence, that Ehler, the defendant, had assented to the tenancy under the plaintiff. The only facts that could be supposed to justify such a presumption, are the evidence of a witness for the plaintiff, that the defendant had occupied one of the houses from the 1st of April 1830: and that the witness had occupied another of the houses and paid the rent to Mrs. Stevenson. But there was no evidence under whom Ehler rented or held the premises. He paid some, if not all his rent, to Mr. Porter, the trustee under the deed of 1830: and the jury must have been altogether at a loss to determine under whom he held. In order to estop a person from denying the title of one claiming rent as his landlord, the allegation that he held under him as tenant ought to be clearly and positively established. It ought not to rest on conjecture. If Ehler really rented from the plaintiff, or acknowledged his title, the fact is susceptible of proof, and the plaintiff was

(Spring Garden v. The Northern Liberties.)

bound to adduce such proof before he could avail himself of the rule of law that the tenant shall not deny his landlord's title. No such proof was given, nor any evidence from which the jury could be justified in presuming it. The other errors assigned are without foundation.

Judgment affirmed.

[PHILADELPHIA, JANUARY 5, 1836.]

THE COMMISSIONERS OF THE DISTRICT OF SPRING GARDEN and Others against THE COMMISSIONERS OF THE INCORPORATEĎ DISTRICT OF THE NORTHERN LIBERTIES.

The public wharf or landing place, called "The Hay-scales Landing" in the Northern Liberties, of the city of Philadelphia, and the public wharf or landing place on the south of and adjoining Callowhill street, in the same district, were, by the act of the 16th of March, 1819, vested in the board of commissioners of the incorporated district of the Northern Liberties, in trust for the use of the public generally; and neither the district of Spring Garden, nor the township of Penn, nor the unincorporated part of the Northern Liberties, has any right to any part of the value or income of those wharves or landing places or either of them.

THIS case came before the court in pursuance of an act of the Legislature passed on the 12th day of April, 1828, (Pamphlet Laws, 356;) reciting that by an act passed on the 16th of April, 1819, certain wharves and landing places in the incorporated district of the Northern Liberties, were vested in the commissioners thereof, and that it had been represented to the Legislature that the control and benefit of the said wharves, &c. ought not to be exclusively in the said commissioners, and therefore providing that it should be lawful for the commissioners and inhabitants of the Kensington District of the Northern Liberties, the commissioners of the district of Spring Garden, and the supervisors of the public roads and highways in the unincorporated townships of the Northern Liberties and Penn, to apply by petition to the Supreme Court of Pennsylvania, for the Eastern District, praying the court to inquire into the merits or claims of the districts and townships aforesaid to any part or portion of the value or income of the said wharves and landing places, and to make such order in the premises as justice and equity may require.

The act then directed the method of proceeding to be pursued, and the relief to be given by the Supreme Court, if they should consider the claim of the petitioners well founded.

VOL. I.

(Spring Garden v. The Northern Liberties.)

By an act passed on the 6th day of April, 1833, (Pamphlet Laws, 188,) the Supreme Court was authorized to take cognizance of the case on the application of either of the said districts or townships.

The claim of the several districts and townships to participate in the income and benefits of these wharves, arose from an act passed on the 20th of February, 1768, entitled, " An Act for raising by way of lottery, the sum of 2000 pounds, for purchasing a public landing in the Northern Liberties, and paving the streets of the City of Philadelphia," the preamble of which was as follows:

"Whereas, it has been represented to the Assembly of this province, by petition from sundry inhabitants of the city of Philadelphia and Liberties thereto adjoining, that the few public landings at the north end of said city and in the said Liberties thereof, are scarcely sufficient for the accommodation of its present inhabitants and the king's barracks. And whereas, it hath been also represented from the commissioners for pitching and paving the streets, lanes, and alleys, of the city of Philadelphia, that the moneys granted or lent for pitching, paving, and keeping clean the said streets, &c. for some time past have all been expended; that the annual taxes on the inhabitants amounted to no more than scarcely sufficient to pay scavengers, and make the necessary repairs in the pavements, and that a considerable part of the said city remains still unpaved to the great inconvenience as well of travellers as of the inhabitants of the said city."

The act then proceeded to direct the method of raising money by a lottery, and directed the appropriation thereof as follows:

"And be it further enacted by the authority aforesaid, that after the payment of the sums due to the fortunate adventurers in the said lottery, and defraying the costs and expenses attending the same, the neat sum of money remaining in the hands of the treasurer aforesaid, shall be applied in manner following, that is to say, two thousand pounds thereof for, and towards purchasing a landing in the Northern Liberties nearly opposite the barracks, and improving the same with the landing at the end of Callowhill Street, as hereinafter is directed, and the remainder to be paid to the city commissioners, for pitching and paving the streets, lanes, and alleys of the city of Philadelphia, or to their treasurer, the better to enable them so to pitch, pave, and keep clean the streets, lanes, and alleys aforesaid.

And be it further enacted by the authority aforesaid, That the commissioners of the county of Philadelphia, in trust for the public. by and with the consent and approbation of the justices of the peace of the said county, in their court of Quarter Sessions, shall

(Spring Garden v. The Northern Liberties.)

and they are hereby required and enjoined, to buy a landing nearly opposite the said barracks, and receive the deeds thereof in trust for the public, and further, to build or cause to be built thereon, a good wharf, and a pier for the use of the public. And the said county commissioners for the time being, or a majority of them, with the approbation of any three justices of the peace for said county, are hereby enjoined and required for ever hereafter, to have the care, direction, and management of the said landing, in letting the same out to any person or persons for the purposes of repairing and improving the same from time to time, for ever hereafter as the said commissioners and justices or a majority of them for the time being, may judge most for the public good.

And whereas, the honourable the proprietaries of the province of Pennsylvania, have continued Callowhill street in the Northern Liberties aforesaid, into the river Delaware; and as a public landing place at the end of the same street, may hereafter prove very advantageous and beneficial to the public. Be it therefore further enacted by the authority aforesaid, That the said county commissioners, or a majority of them, with the consent and approbation of any three justices of the peace of the county aforesaid, shall for ever hereafter have the same power and authority for the improving and letting the same landing place at the end of Callowhill street aforesaid, for the uses and purposes aforesaid, as to them are hereby given and granted with respect to the landing place nearly opposite to the said barracks, hereby intended to be purchased."

At the time of the passage of this act, the "township of the Northern Liberties" comprehended within its geographical limits, the territory lying between the rivers Delaware and Schuylkill, north of the city of Philadelphia, extending northward to the present northern boundary of the townships, and included the pre-sent incorporated district of the Northern Liberties, the incorporated district of Spring Garden, the incorporated district of Kensington, and the unincorporated townships of the Northern Liberties and Penn.

Under the authority of the acts of 1828 and 1833, the commissioners of the district of Spring Garden, and the supervisors of the public roads and highways in the unincorporated townships of the Northern Liberties and Penn, presented their petition to this court at December Term, 1833, setting forth some of the provisions of the acts of 1768 and 1828, and praying that a citation might be issued to the commissioners of the incorporated district of the Northern Liberties, and to the commissioners and inhabitants of the Kensington district of the Northern Liberties, requiring them to appear and show cause why the court should not make such order in the premises as justice and equity should require, &c.

On the 16th December, 1833, an answer was filed on the part