to the sale on the Speer judgment, or received to own any interest in the land in controversy, any of the proceeds therefrom, for the purpose was a competent witness. The Act of 15th April, of rebutting the allegation of acts on the part of 1869, is an enabling and not a restraining stathese persons, on which an estoppel was based. tute, and it makes no witness incompetent who Objected to. Objection overruled and evidence would have been competent prior to its passage. admitted. Exception. (Sixth assignment of Act of April 15, 1869, P. L. 30; Purd. Dig. 727, P. L. 20.

error.)

The defendants requested the Court to charge, inter alia, as follows: (8) If the jury believe and find from the evidence that the fund arising from the sale of the land in dispute was distributed by decree of Court, after due proceedings of law, to the creditors of James McClafferty, deceased, and was paid out without objection from the defendants in the execution; that part of it was appropriated to the payment of fees of the attorney for said estate and the heirs of the said James McClafferty; that objection was made to the application for a stay of the writ for the sale of said land by the sheriff, on other grounds than that of a want of waiver; that the deed was placed on record the day before the sale, to wit: the deed for the Speer tract to James and Edward McClafferty, most of which was embraced in the levy, and that the defendants in the writ removed from said land without writ of possession or other process commanding them to surrender possession, and peaceable possession taken by the purchaser, and acquiesced in by the defendants in the writ for a long time prior thereto, they and those claiming under them are estopped from alleging want of waiver of inquisition if there be no waiver, and the sale being made on the vend. ex. passed title to the defendants here, the purchasers at the sheriff's sale. Refused. (Seventh assignment of error.)

The plaintiffs requested the Court to charge, inter alia, as follows: (5) There is no sufficient evidence of the waiver of inquisition by writing filed or otherwise, and the sheriff's sale passed no title. Answer. Affirmed.

January 3, 1888. THE COURT. We can not understand upon what principle William Denny was rejected as a witness. He was not a party to the suit and not liable for costs. He made no claim of title to any of the land for which this action was brought. He had no interest in the result of the case as he could not use the verdict and judgment in any litigation he might have for other land, whether with these or other parties. He was clearly competent as the law was prior to the Act of 1869, and, of course, he could not be disqualified by that Act. An interest in the question involved in the present case is not a disqualifying interest, and we have no doubt of his competency. The first four assignments of error are therefore sustained.

The fifth assignment is not sustained. It is practically conceded that Edward McClafferty would be competent if he were living; and the (8) To constitute an estoppel the jury must fact of his death certainly does not render incomfind that the plaintiffs connived at or consented petent his testimony taken on a former trial. to a sale of the land; surrendered possession The sixth assignment is not sustained. The thereof to the purchaser voluntarily; consented testimony offered was simply to rebut the supto the appropriation of the proceeds to the judg-posed effect of Mr. Thompson's acts, done apment of their ancestor, and mere non-action on parently as counsel for the widow and heirs. As their part or the distribution of the money by the law will not work an estoppel. Affirmed. (Eleventh and twelfth assignments of error.)

Verdict for plaintiffs for all the lands described in the writ and judgment thereon. Whereupon the defendants took this writ, assigning for error, inter alia, the rejection of their offers of evidence and the admission of the plaintiff's offer of evidence as above, and the answers of the Court to the above points.

W. D. Brandon and Lev. Mc Quistion, for plaintiffs in error.

William Denny, neither owning nor claiming

those acts were competent evidence in favor of the defendants, it was, of course, competent to explain them or reply to them by way of contradiction.

The seventh assignment is sustained. The eighth point of the defendants should not have been refused absolutely. The facts stated in the point were such as tended to establish an estoppel, and if believed by the jury might suffice to warrant them in inferring an estoppel, if there were no other facts in the case which avoided their effect. The point should not have been framed with the conclusion of an absolute estoppel from

the facts stated, and, therefore, need not have] from defendants. Defendants contended that it been, and, perhaps, should not have been affirmed should be accompanied by a defeasance in writing without qualification. At the same time it should made at the same time, but not complying with not have been refused peremptorily. In point of the terms of the Act of June 8, 1881 (P. L. 84). fact the Court left the facts to the jury upon this (First and second assignments of error.) The whole subject correctly, in substance, as we think, Court charged the jury that there was no eviand there is an inconsistency between that sub-dence to impeach the deed. (Third assignment mission and the absolute refusal of the point.

66

J. D. B., Jr.

February 2, 1888.

Williams's Appeal.

Guardian and ward-Commissions-Agreement not to charge commissions-Compensation for services performed.

the plaintiff, and the offers overruled by the [ be accomplished-not by recording alone, for that Court. The evidence of the defendants having is but one of the prescriptions, but by directing been thus rejected, nothing remained but to in- how, and how only, a deed absolute shall be restruct the jury to find for the plaintiff, which formed. The question thus becomes one of eviwas accordingly done. Assuming the defendants' dence. It is proposed to impeach a deed; it is statement to be correct, as we have done, and not what it purports to be—a conveyance in fee, nothing need be said concerning the equities of but only a mortgage. Now the question is, How the case, for they are all with them, and pre-shall this be proved? The statute answers this viously to the Act above mentioned, the plain- by saying you can do this in no other way than tiff's recovery must have been limited to a con- by the exhibition of a written defeasance, signed, ditional verdict for the balance of the money sealed, acknowledged, delivered, and recorded. due him. Nevertheless, under that Act, we In similar cases the Courts have always insisted cannot see how the judgment can be impeached. that evidence to impeach a deed shall be clear There is now but one method left by which a and indubitable; and as the Legislature has seen deed absolute can be reduced to a mortgage, and proper to require for that purpose a still higher that method in this case has not been pursued. type of evidence, we cannot take it upon ourThe defeasance must not only be in writing, and selves to destroy the enactment for the purpose of the same date as that of the deed, but it must only of saving a case supposed to be a hard one. also be signed, sealed, acknowledged, and de- The judgment is affirmed. livered by the grantee in the deed to the Opinion by GORDON, C. J. grantor;" furthermore, it must be recorded in PAXSON, J., absent. the office for the recording of deeds and mortgages in the county where the land is situated within sixty days from the execution thereof. If July '87, 17. we are to give effect to this Act, an Act in no wise ambiguous, it is certain the defeasance offered on part of the defence was properly rejected, for it was neither sealed, acknowledged, nor recorded. But the learned counsel for the defendants contend that the Act of 1881 is essentially a recording Act, and that, following the decisions made under the statute of the 28th of May, 1715, we should so construe it as not to affect the immediate parties to the transaction, but should confine its operation to purchasers and mortgagees. But should we follow these decisions to this extent, we must go still further, and hold that those having notice are not within the protection of the statute. For, as we said in Britton's Appeal (45 Pa. 172), per Mr. Justice STRONG, the recording Acts have been regarded throughout their whole history as designed only to furnish protection against those frauds which, without them, would easily be perpetrated by secret conveyances. In other words, they are statutes for the prevention of frauds; hence, they furnish no protection to one who purchases land knowing that another has acquired a prior right in that same land. Applying a doctrine of this kind to the Act of 1881, and it is effective neither as to parties nor privies nor to others having notice." In other words, we would thus repeal the Act in its very spirit, and continue to give effect to that which the Legislature intended to abolish utterly-the oral defeasance. We cannot agree thus to defeat the intention of the Act; that intention is not at all obscure, and is not

like that found in the Act of 1715. It is true, the design is to prevent frauds, but it also definitely prescribes the process by which this is to

A duly appointed guardian delivered the fund of his wards to their father, who was not eligible as guardian, and, in consideration of the latter's promise to keep him clear of all responsibility for the trust funds, agreed not to claim commissions:

Held, that the guardian by this agreement did not preclude himself from claiming compensation for other services performed on behalf of the estate of the wards during a period of about twenty years.

Appeal by Joseph T. Williams, guardian of the minor children of Charles Williams, from a decree of the Orphans' Court of Montgomery County.

The facts of the case are fully stated in the opinion of the Supreme Court, infra.

The Auditor (Jacob V. Gotwalts, Esq.) awarded the guardian, Joseph T. Williams, the sum of $1050, not as commissions but as compensation for services rendered. Exceptions were filed to his report which the Court, BOYER, P. J., sustained on the ground that Williams, by his agreement not to claim commissions, was precluded from claiming any compensation, and a decree was entered accordingly. Williams thereupon took this appeal, assigning for error this decree.

J. P. Hale Jenkins, for appellant.

The agreement of April 1, 1864, was against public policy and void.

Bowers v. Bowers, 2 Casey, 74.

White's Estate, 2 Montg. Co. Rep. 172.

The guardian was entitled to some compensa- | to the trust funds belonging to the said children; tion even though he did not receive the money.

Bell's Estate, 2 Parsons, 200.

Henry C. Boyer (Edward Haugh with him), for appellees.

The cases of Bowers v. Bowers and White's Estate, cited by appellant, are radically different from the case at bar.

If, as it is alleged, this was an illegal transaction, the contract being against public policy, Joseph is estopped at this time from demanding commissions, inasmuch as the estate has been distributed and the contract executed.

Parties implicated in an executed illegal trans-
action have no remedy against each other.
Wharton on Contracts, sec. 353.
Lestapies v. Ingraham, 5 Barr, 81.
Fox v. Cash, 1 Jones, 207.
Gisafv. Neval, 31 Smith, 354.

and the said Joseph has also agreed that his executors or administrators shall not charge any commissions, except in the event of the decease of the said Charles, and the actual performance of the trust devolves on him or his representatives, then to be allowed to charge commissions on the funds which may at the time be in their trust; it is further agreed and distinctly understood that said representatives shall not charge under any plea or circumstances more than two per cent. commissions. Witness our hands and seals this 1st day of 4th month, 1864.

The Auditor finds that in accordance with this agreement the moneys of his wards were immediately turned over by the appellant to Charles Williams, who invested them and took entire charge of them until his children severally came of full age. He also finds that the appellant performed his duty as guardian in all other February 27, 1888. THE COURT. This case respects, representing his wards in the Orphans' involves but a single question. The appellant Court, examining the security offered for loans, was duly appointed guardian of the minor chil- and executing such papers as required his signadren of Charles Williams by the Orphans' Court ture. From these facts he concludes and recomof Montgomery County on the 15th June, mends to the Orphans' Court that the appellant 1863. His wards were legatees under the will should be held to the terms of his agreement of of their grandfather, Joseph Williams, and 1st April, 1864, and allowed no commissions. entitled as such to sums amounting in the aggre- upon the moneys belonging to his wards, but that gate to over $70,000. Their father, Charles for other services he was entitled to a reasonable Williams, was one of the executors of the will compensation which he fixes at $1050. This of Joseph. As father of the legatees and execu- seems to be in harmony with the agreement of tor of the will under the provisions of which the 1st April, 1864, and with the justice of the case. legacies were to be paid, he was under the law There were many duties devolving on the and the rules of the Orphans' Court ineligible to guardian that he could not discharge except in appointment as guardian. He accordingly person. These the agreement did not touch. It secured the appointment of his nephew, Joseph simply provided that the management of the fund T. Williams, the appellant. But it was his pur- and the commissions to be earned thereby should pose not to surrender the custody and manage- be turned over to Charles Williams. Every ment of the fund or allow the guardian to other duty which his appointment cast upon him discharge the duties which his appointment he was to perform in person, and there is nothing devolved on him beyond what was absolutely in the agreement nor in the circumstances to necessary. He accordingly obtained from the appellant in April following his appointment the contract upon which the wards now deny to their guardian a single farthing's compensation, and on the construction of which this case depends. The contract is as follows:

prevent his charging a reasonable compensation for his services. It is conceded that he discharged his trust with fidelity, and that for twenty-three years he has in many ways rendered important services to his wards. When he asks for compensation his wards reply in effect This is to certify and declare that Charles "because you agreed to surrender part of your Williams has assumed and will assume the col- compensation for our benefit you shall have nothlection and receipt of all moneys that have ing." But it does not follow, as we have already accrued, or which may accrue, to his children | said, that an agreement not to charge for services under and by virtue of the last will and testament that Charles Williams undertook to perform in of their grandfather, Joseph Williams, deceased, his stead, affords the slightest reason for refusing and the investment of the same; also the collection of the interest thereon; and that Joseph Williams, guardian of his said children, has deposited in his hands the securities in which the moneys of his said wards have been invested; and Charles is to keep him, the said guardian, clear of all liability or responsibility in relation

to the guardian compensation for services that he had to render by virtue of his appointment, and that Charles could not have relieved him from even if he had undertaken to do so. It is very clear that the appellant was entitled to a reasonable compensation, and the Auditor finds that $1050 is reasonable.

It is not alleged that this sum is not a fair the board pavement in front of one dwelling compensation if a compensation is to be allowed, ended, the sidewalk in front of the adjoining but the exceptants insist that under the agree-dwelling being unpaved and about twelve inches ment of 1st April, 1864, the appellant is pre- below the level of the paved sidewalk. cluded from asking any compensation whatever. The decree of the Orphans' Court is now reversed in so far as it denies the appellant the compensation recommended by the Auditor, and record remitted for final decree in conformity with this opinion.

Opinion by WILLIAMS, J.
TRUNKEY and GREEN, JJ., absent.

Jan. '88, 41.

W. M. S., Jr.

February 15, 1888. Borough of Shenandoah v. Erdman. Negligence of municipality—Dangerous condition of sidewalk-Contributory negligence a question for the jury under facts of this case -Refusal to enter compulsory nonsuit not assignable for error.

At a point upon a street of the defendant borough there was an inequality in the sidewalk, viz: a descent of about one foot from a pavement to the unpaved footway in front of the adjoining premises. The attention of the borough authorities had been repeatedly called to its dangerous condition, and plaintiff was not aware of it. Plaintiff had left his team standing in the street, while delivering goods after dark upon a December afternoon. The horses started to run, and plaintiff, running to stop them, fell at this depression and broke his leg:

Held, under these facts the question of contributory negligence on plaintiff's part was properly left to the

jury.

It was in evidence that the borough authorities had been notified a number of times of the dangerous condition of this sidewalk, and had neglected to put it in proper condition. It also appeared that plaintiff was not aware of its dangerous condition.

Defendant contended that the plaintiff's act in running along the sidewalk after dark constituted negligence per se. The Court refused to direct a nonsuit (first assignment of error), and also to instruct the jury to find for defendant. (Second assignment of error.) The Court left the question of contributory negligence to the jury, saying: "Of course, the jury understands that it does not necessarily follow that, because it is night, a man cannot either run along the street or run along the sidewalk; but, when he does run along the sidewalk the question is whether he is not obliged to exercise greater care so as to avoid danger; and if he did not exercise such care, then he would be held to have contributed to his own in

jury; he himself would have been partially at fault for the injury he sustained. If he was partially at fault for his own injury, then he could not recover, because if he had been careful and prudent the injury would not have happened.

"So far as the fact of allowing his horses to stand on the street without being tied, even though he may have been negligent so far as that is concerned, we do not see that that has any bearing upon any question arising in this case. He is not charged here on account of any negligence arising from the leaving of his horses untied. The question is, whether he was negligent when

Error to the Common Pleas of Schuylkill he went after his horses. His previous negligence County.

S. G. M. Hollopeter (J. H. Pomeroy with him), for plaintiff in error.

would not affect the question here as to his right Case, by William T. Erdman against the to recover, if you find, under the evidence in this Borough of Shenandoah, to recover damages for case, that he was not guilty of contributory negpersonal injuries occasioned by the alleged negli-ligence at the time when this accident happened." gence of defendant. Verdict for plaintiff for $1500, and judgment On the trial, before GREEN, J., the following thereon. Defendant took this writ, assigning facts appeared: On December 8, 1884, after error as above set out. dark, William T. Erdman, a huckster, stopped his team of two horses and a wagon on Coal Street, a public street in the borough of Sherandoah, and without fastening his horses he entered the store of a Mrs. Nichter to deliver produce; while he was in the store his horses started to run off. He immediately ran out of the store, down three steps to the pavement, and ran down the street on the sidewalk in pursuit of the horses; after running some twenty yards he fell and broke his leg. It appeared that the side of the street on which Erdman was running was not continuously paved in that square, and the accident occurred at a point on the sidewalk where

It is essential to liability that the plaintiff should have been using reasonable or ordinary care to avoid the accident, or in other words, he must be free from any such fault or neglect on his part as will in actions for negligence defeat recovery.

Dillon on Muncipal Corporations, vol. ii. sec. 789.

It is true that this Court has frequently held that when the measure of duty is ordinary and reasonable care, and that when the standard of the degree of care shifts with circumstances, the