difference in the values of the respective properties agreed upon as the basis of the exchange. The mode of adjusting that difference was by conveying, on the 1st of October ensuing, the date of agreement, subject to that exact sum. Whether the excess over the sum named be much or little the Court has no right to impose the payment thereof on a party who never agreed to assume it. The principles of equity applicable to the facts of this case are elementary, and hence citations of authority are unnecessary. Decree reversed and bill dismissed, with costs to be paid by the appellee. Opinion by STERRETT, J. TRUNKEY and CLARK, JJ., absent. Averments of information and belief and expectation of ability to prove are sufficient. Brown v. Walton, 3 WEEKLY NOTES, 76. Osmer v. Souder, 3 WEEKLY NOTES, 155. THE COURT. Rule discharged. C. P No. 2. H. C. O. C. E. I. Remick v. Crabtree. Husband and wife-Where a husband offers to provide proper physicians for his wife, but she chooses her own: Held, that the husband, having notified the physician, is relieved of responsibility. Motion for rule for new trial. The facts elicited at the trial were, that the defendant in this suit had offered to supply his wife with physicians of his own choosing, but that she had employed the plaintiff of her own choice; it was also in evidence that the dehe would not be responsible for the cost of the fendant (husband) had notified the plaintiff that medical attendance thus rendered to his wife. The plaintiff's claim was for services after this notice. Plaintiff presented a point for charge, as follows: "That if the jury believe that the treatment rendered by the plaintiff to the defendant's wife, was necessary and proper under the circumstances, and beneficial to the health and condition of said wife, then she could, as the agent of defendant, enter into a valid contract for such services to bind the defendant." The affidavit of defence set forth that at the time of making the note M. E. Parker was a member of the defendant firm; that prior to the maturity of the note said Parker withdrew from the firm and that the deponent is informed, verily believes, and expects to be able to prove, The Judge refused to affirm the point, and paid the said plaintiffs the note in full. That the charged the jury that while the wife would be said Parker is largely indebted to the defendants presumed, in the absence of evidence to the conon the partnership account and that with a view trary, to be authorized to employ a physician of of requiring the defendants to pay to the said her own choice, yet the power to decide was in Parker the amount of the note and to prevent the husband, and where he had exercised it, and them from proving the liability of Parker upon given notice to the plaintiff that he would not be the note and from proving an offset against Par-responsible, he could not be held liable for any ker, the deponent is informed, verily believes, and expects to be able to prove, suit upon the said note has been brought, although the deponent is informed, verily believes, and expects to be able to prove that there is nothing due upon the said note to the plaintiffs. Christopher Fallon and Francis H. Garrett, for the rule. J. Willis Martin, contra. A claim for set-off in an affidavit of defence is good. Lawrance v. Smedley, 6 WEEKLY NOTES, 42. services rendered after such notice. Charles Davis, for the motion, cited- December 9, 1887. THE COURT. Rule refused. E. B. C. P. No. 4. January 14, 1888. but the garnishee must answer for money received Excelsior Brick Co. v. Gibson, Def't, and subsequently as long as the writ is pending. Haines, Garnishee. Mullin v. Maguire, I WEEKLY NOTES, 577. Rent accruing in the future can be attached. Attachment sur judgment—Plea to-PracticeA garnishee cannot, by voluntarily filing a plea, deprive the plaintiff of the right to payment out of money of the defendant, which may come January 21, 1888. THE COURT. We adhere into the hands of the garnishee after the ser- to the ruling in Mullen v. Maguire (1 WEEKLY vice of the writ of attachment execution, and NOTES, 577), that a garnishee cannot, by volunbefore it is dissolved or otherwise determined. tarily filing a plea, deprive the plaintiff of the Sur rule to strike off rule to plead. right to payment out of money of the defendant, The plaintiff having, on June 5, 1882, ob- which may come into the hands of the garnishee, tained a judgment against the defendant, Gibson, after the service of the writ of attachment-exeissued a writ of attachment execution against Wil-cution and before it is dissolved or otherwise determined. That an attachment binds such liam H. Haines on January 25, 1887, to which the garnishee, on January 28, 1887, pleaded moneys was decided in Sheetz v. Hobensack nulla bona. On May 26, 1887, interrogatories were filed, to which the garnishee answered that "at the time the attachment in this case was served upon deponent (which was the 26th day of January, 1887), no money on account of said advances was due, and none was due on the 28th day of January, 1887, when deponent filed and served, as garnishee in this case, through his attorneys, his plea of nulla bona. And deponent respectfully suggests to the Court that he is not required to answer these interrogatories as to any matters which have transpired since his said plea was filed." On January 4, 1888, the plaintiff entered a rule upon the garnishee to plead to the attachment, whereupon the garnishee obtained the present rule. Benjamin H. Lowry and Hampton L. Carson, for the rule. The writ of attachment contained a clause of scire facias, and therefore it was the duty of the garnishee to plead at once; having done so, he cannot be ruled to plead a second time. The filing of the plea did not prevent the serving of interrogatories, but "the garnishee need only answer with regard to indebtedness at the time of the plea filed." Mullin v. Maguire, I WEEKLY NOTES, 331. Interrogatories are allowed by analogy to proceedings in foreign attachment, and can only be served after the service of the scire facias, i. e., when the case is ripe for pleading, by which the running of the attachment is stopped. Crammond v. Trustees U. S. Bank, 4 S. & R. 146. Brown v. Brown, 3 Phila. Rep. 359. Benners v. Buckingham, 5 Id. 68. Raiguel v. McConnell, 1 Casey, 364. William Henry Lex, for plaintiff. The writ of attachment binds all of defendant's effects coming into the garnishee's hands after its service; the plea of nulla bona does not confine the plaintiff's recovery to moneys in the garnishee's hands at the time the plea was filed, (20 Pa. 412); Mahon v. Kunkle (50 Id. 216); and Hays v. The Lycoming Fire Ins. Co. (99 filed in such cases, a formal plea is not indispenId. 621). While a plea of nulla bona is usually sable. In Sheetz v. Hobensack there was none, and in Hays v. The Ins. Co. there was a special plea which raised a question of law. The proceeding, after all, is an inquiry in which everybefore the trial, may be discovered and subjected thing which comes into the garnishee's hands dict for the plaintiff for a sum certain, but it is to execution. The verdict is not a general vera finding that the garnishee has money or other property of the defendant in his hands or possession, and the execution goes against that money or property in the first instance (Lorenz's Adm'r v. King, 38 Pa. 93; Jones v. Tracy, 75 Id. 417). In this case one of the garnishees filed a plea of nulla bona in three days after the attachment was served on him and before the return day. This was commendable promptness, but it did not preclude the plaintiff from its right to file interrogatories and additional interrogatories (as done in this case) or of its right to a plea at this was done in Mullen v. Maguire, and has been time. When a writ of attachment-execution is served litigation in which he has no interest, he may upon a garnishee, who desires to put an end to 10th rule of Court, or file a plea and order the rule the plaintiff to file interrogatories under the case down for trial. He has encouragement to do so by the several Acts of Assembly allowing him a reasonable counsel fee whether he has money of the defendant in his hands or not. But he cannot, by filing a plea, defeat the right of the plaintiff to execution against any moneys of the defendant, which may come into the garnishee's hands after the attachment and before the inquiry is brought to an end. Rule discharged. E. P. B. WEEKLY NOTES OF CASES. VOL. XXI. THURSDAY, FEB. 23, 1888. [No. 2. Supreme Court. Jan. '87, 290, 291. Putnam v. Tyler. Scates v. Tyler. |Court left to the jury the question whether the defendants had been induced to purchase by the representation of said predecessor in title, or by the advice of their counsel, instructing them that if they found the former to be the case, the doctrine of equitable estoppel could be invoked by the defendants, but not otherwise. The jury having found for the plaintiff, on writ of error: Held, that the instruction was proper. A party in ignorance of the fact that he has a title to certain land, who permitted in silence improvements to be placed by others on said land under claim of title, is not by reason of this circumstance estopped from May 6, 1887. subsequently setting up his title thereto. It is only essential to the validity of a tax sale that the land be so designated in the assessment as to lead the owner to a knowledge of the fact that it is his land which is assessed. Where the land is unseated an assessment by the proper number of the tract in the name of the original warrantee is sufficient, notwithstanding a misstatement in the number of acres. Surveys of various tracts were made under warrants issued in 1785, but it did not appear that the lands were appropriated in pursuance of such surveys. In 1794 other surveys were made upon the same ground upon later warrants, under and by virtue of which possession was subsequently taken: Held, that a tax sale of a tract surveyed under said later warrants, for taxes assessed upon the tract by its proper number in the name of the warrantee of 1794, was sufficient to constitute an outstanding title of which defendants in an ejectment suit might take advantage, notwithstanding the fact that in the assessment there was a mistake in describing the number of acres contained in the tract. A tax sale took place in 1828 of unseated lands. A treasurer's deed was made to the purchaser, who, in 1836, conveyed to other parties, both of these deeds being recorded. An ejectment suit having been brought in 1881 for a part of the tract, the defendants set up the outstanding tax title, although it did not appear that any claim had ever been made thereunder : Held, that in the absence of any proof of an express abandonment of the tax title, the same could not be regarded as abandoned and derelict, and that therefore the same constituted a good defence. In an action of ejectment, where the question is whether the premises in dispute are or are not included within the lines of a certain tract, the question of location should always be left to the jury under the testimony of surveyors adduced in the case, notwithstanding the fact that prior to the litigation there has never been any dispute as to the fact that the premises in dispute were included in said tract. Where the owner of land is obliged for any reason to come into a Court of Equity, in order to obtain possession thereof from a party who bonâ fide and believing that he has had a title had made improvements thereto, the said plaintiff can only obtain relief upon paying for such of these improvements as are permanently beneficial to the estate and enhance its value. Where, however, said owner asserts his rights in ejectment in a Court of Law, there is no principle obliging him to pay for such improvements, except by way of set-off against or in mitigation of damages for the detention of the land. Writs of error to the Common Pleas of Clearfield County. Ejectment, by Phoebe Tyler against John E. Putnam, for a lot of ground in Huston Township. Ejectment, by the same plaintiff, against Charles W. Scates, for an adjacent lot of ground. The two cases, as they involved precisely the same question, were tried together. On the trial, before DEAN, P. J., of the Twentyfourth Judicial District, the plaintiff showed that the lots in question were included within the limits of a tract of 1000 acres, warranted and surveyed as No. 4897, in 1794, in the name of Wilhelm Willink. She then deduced title through various parties to one Martin Nichols as to 750 acres of the tract, embracing the land in dispute, the remainder thereof having become vested in one Jonathan Nichols. She further showed a conveyance from Martin Nichols and wife to David Tyler, in 1853, of 100 acres on the northwest corner of the tract, and 36 acres on the south line thereof, both being part of the 750 acres vested in the grantor as above. The plaintiff further showed a conveyance to her by David Tyler, in 1881, of the 36-acre tract, which was claimed to embrace the lots in controversy. plaintiff then rested. The The defendants then proved that, in 1785, various surveys had been made under the old warrants from the Commonwealth over the same territory covered by the Willink survey, and that all of the said survey was included within the limits of said surveys of 1785, except about 126 acres at the northwest corner and 144 acres at the southwest In an ejectment suit the defendants contended that they had been induced to purchase the title to the premises under which they claimed by representations, on the part of the predecessor in title of the plaintiff, to the effect that he was not the owner thereof. There was also evidence that they had been induced to purIt was also shown that in 1826 and 1827 at chase such title by the advice of their counsel. The a time when the title to said premises was vested corner. in Martin Nichols and Jonathan Nichols as aforesaid, and before any division line was run between them, that the whole tract had been assessed for taxes in the unseated list as containing 100 acres, being designated as Tract No. 4897, in the name of Wilhelm Willink. It was further shown that these taxes being unpaid the land was sold in 1828 by the county treasurer to one Hewitt, who in turn on July 26, 1836, conveyed the tract to Jones, Warner, and Andrews. Both of these deeds were duly recorded August 11, 1836. Both Putnam and Scates subsequently made important improvements upon this land, of which Tyler was aware. Tyler testified that his belief was, at the time of the above transaction, that the above 36 acres were included in his mortgage and had passed under the sheriff's sale to Dill. That he did not discover that this was not the case until 1879 or 1880, when he made a conveyance to the plaintiff. The defendants also introduced the evidence of certain surveyors, named Read and Mitchell, to show that the lots in question were not included within the limits of the 36-acre tract. The fact appeared to be conceded that previously, in pur vey, these lots had always been considered to fall within the lines of said 36-acre tract. Defendants further showed that in 1869 Tyler executed a mortgage of the 100-acre lot owned by him, which mortgage was supposed by him to include the 36-acre lot, although this was actu-suance of a survey known as the Hutchinson surally not the case. This mortgage was foreclosed and the mortgaged premises sold by the sheriff in 1872 to A. H. Dill. The defendants, Putnam and Scates, acquired title to and took possession of the premises in question about 1874. Defendant, Putnam, purchased the property for both of them from the devisees of one Cox, who was one of the intermediate owners in the line of title to Tyler. The evidence of Putnam as to the circumstances attending his purchase was as follows: "Before I took possession, David Tyler came to me and asked me if I knew that there was a piece of land, and pointed out to me where it was lying between what was known as the Holt tract and the railroad, that is not patented, and I told him No: I didn't know it. He also said, there is another piece lying back of the Tyler farm,' if I remember right on the north side of the tract 4897 that is not patented.' I says to Squire Tyler, I supposed that this piece between the Holt tract and railroad belonged to the Tyler farm; and also says to Tyler, that you cut the timber off of it. Yes,' Tyler says, 'that's all right, that's all right.' "I don't remember certain whether I made the proposition to go to Harrisburg to get it patented or whether he did. The arrangement was made between us that I was to bear the expenses of he and myself, and whatever costs there were connected with it, of going to Harrisburg and getting it patented. We went-I think it was in June 1874-and found that it had been patented. When the officials in the land office told us it was patented, Tyler said, 'Gad, that's funny,' and on our way back to the train coming home, I said to Tyler, What shall I do now?' meaning to find the title to this piece of land; Tyler says, I don't know.' I think I said to him, I will go and see Mr. Wallace, and have him look it up.' There was no other conversation between us that I remember of, until I think it was in 1879 or 1880; I cannot fix the time. I saw Mr. Wallace (his counsel), and under his advice purchased the Cox title." . The defendants requested the Court to charge, inter alia, as follows: (1) If the land on which the dwelling-houses of Scates and Putnam are built, is part of the 100 acres of unseated land of tract No. 4897 which was sold to Ebenezer Hewitt by Alexander Irvin, treasurer, in 1828, then under the evidence in this case the plaintiff has no title and for that reason cannot recover. Refused. (First assignment of errror.) (2) Even if plaintiff's title were otherwise good, still David Tyler gave Putman to understand that he (Tyler) did not own this ground, and Putman, then acting in good faith for himself and Scates, purchased title to it from those whom they supposed to be the owners, and then had expensive dwelling-houses put up on these lots, and the said Tyler all the while saw the buildings go up, and encouraged by his presence and conduct the making of said improvements, and during that time gave no notice that he objected to their erection, or that the land belonged to him—then under such circumstances neither David Tyler nor his daughter, the present plaintiff, would be entitled to recover the improvements and ground on which they stand, and your verdict should be for defendants in such case. Answer. "This point is affirmed, if as we have already instructed you, Putnam relying on and acting on a belief induced by the conduct of Tyler, purchased an outstanding title and made his improvements; but if, however, he acted in the belief that he was purchasing a title superior to and better than the Tyler title, and his subsequent conduct was on the faith of that title so purchased, he was not misled by Tyler." (Second assignment of error.) (3) Especially is this the law when the lot without the improvements is worth very little, perhaps not as much as five dollars, while the improvements put upon each lot amount to hundreds or thousands of dollars. Refused. (Third assignment of error.) The Court charged, inter alia, as follows:"The two lots are parts of a piece containing 36 acres more or less." (Fourth assignment of error.)" And afterwards, on the 9th of September, 1881, David Tyler, by deed duly executed and delivered, conveyed the 36 acres embracing this land in dispute in these two lots to this plaintiff." (Fifth assignment of error.) "Unquestionably, on the undisputed evidence in the case, this plaintiff (Phoebe Tyler) has a legal title to the thirty-six acres, and is entitled to the possession of it, unless there be that in the evidence which in equity will estop her from asserting her claim against these defendants, Putnam and Scates." (Sixth assignment of error.) "Now, except in so far as expressing the belief that the land was not patented, according to Mr. Putnam's own statement, there was no representation by Tyler that he had not at one time owned the land. There was no expression, no declaration of his, that the title was in any other person. Putnam seems to have acted, in his purchase of the alleged Cox title afterwards, on the advice of his counsel, so it is alleged by the plaintiff." (Seventh assignment of error.) "That he (Tyler) did not know he was the owner of the land, may be taken from the statements of both parties as an undisputed fact. He did not expressly say to Putnam that he was not the owner, and so far as the evidence shows he did not say that he was the owner. His conduct throughout was that of a man who had no claim on the land. The undisputed evidence shows that he was innocent in so acting. There is nothing to show that he was guilty of intentional concealment in so acting, and it shows that he was innocent of any intention to wrong Putnam; he was ignorant of his own rights, as he states, until 1879 or 1880." (Eighth assignment of error.) . . . . "What does the weight of the evidence show you was the motive in Putnam's conduct which led him to purchase the outstanding title? Was it the conduct of Tyler which led him to believe that he did not own the land? Or, after the return from Harrisburg, was it the consultation with his counsel that led him to believe that the Cox title was a valid title, that it was superior to the Tyler title, and that if he purchased it he would prevail against the Tyler title and against all other titles?" (Ninth assignment of error.) "On the other hand, if anything said or done by Tyler resulted in no injury to Putnam, if he acted with the belief that he was buying a better title than Tyler had, one that he could set up against the Tyler title, or any other title, in purchasing the Cox title, and took possession intending to assert his right to the possession under that title, then Putnam was not misled by anything Tyler said, and the plaintiff would not be estopped." (Tenth assignment of error.). Verdict for the plaintiff and judgment thereon. The defendants thereupon took these writs assigning for error the refusal of defendants' points, and the portions of the charges to the Court cited above. The eleventh assignment of error was that the charge as a whole was erroneous and calculated to mislead the jury to the prejudice of the defendants. J. B. McEnally (D. W. McCurdy with him), for plaintiffs in error. The sale for taxes of tract No. 4897, showed an outstanding title to the land embraced in the two writs of ejectment, sufficient to prevent the plaintiff below from recovering. Williston v. Colkett, 9 Barr, 38. Brown v. Hays, 16 Smith, 229. Reading v. Finney, 23 Id. 467. Where a man encourages another to settle' and labor upon it, he will not afterwards be perupon and improve land and expend his money mitted to take it from him, although he has an older and better title for it. McKelvey v. Truby, 4 W. & S. 323. A Court of Equity will not decree a reconveyance of premises, accepted and held in good faith, without allowing to the grantees compensation for the amount expended by them in improvements. Skiles's Appeal, 16 WEEKLY NOTES, 246. John H. Orvis (J. F. Snyder, Frank Fielding, and W. D. Bigler with him), for defendant in error. An assessment of a certain number of acres of land, without any other description will not support a sale of the land as unseated for taxes. City of Phila. v. Miller, 49 Pa. St. 440. For a defendant to protect himself in possession, by showing an outstanding title, that title must be a valid and subsisting one, not one abandoned or barred by the Statute of Limitations. Hunter v. Cochran, 3 Pa. St. 105. Sheik v. McElroy, 20 Id. 25. Wray v. Miller, 20 Id, 111. Riland v. Eckert, 23 Id. 215. McBarron v. Gilbert, 42 Id. 268. January 3, 1888. THE COURT. The first question presented in this case is, as to the effect of the outstanding tax title in Jones, Warner, and Andrews. Why was not that title a valid defence against the plaintiff's recovery? The lands in controversy are admittedly embraced within the lines of the Wilhelm Willink survey, which in the years 1826 and 1827 was |