The fund is simply an unsettled partnership | her account, as administratrix, before the Auditaccount. This is not a "debt" within the Act. ing Judge, ASHMAN, J., a claim was presented, Knerr v. Hoffman, 15 Sm. 126. Alter v. Brooke, 9 Phila. 258. The plaintiff's remedy is by bill in equity. C. A. V. based on the following circumstances: Decedent had formerly lived in England, and was engaged in the machine business there, with Enoch Smith as his partner. Prior to his leaving England, he and his partner were sued by the claimants, Lister and Reixach, for alleged infringement of certain loom patents, in the Chancery Division of the High Court of Justice of March 24, 1888. THE COURT. The Act of England. The proceedings were by bill, as usual, 1876 in effect, though not in terms, assimilates praying for an injunction and account of profits beneficial associations to corporations so far as and damages. It seems that a decree pro conrelates to the individual liability of their mem-fesso was entered against the defendants on bers. It certainly intends that the funds in the November 26, 1881 (after the defendant was treasury shall be subject to the payment of the beyond the jurisdiction of the Court), awarding debts, but unfortunately it does not provide the an injunction according to the prayer of the bill, method by which such money shall be reached. an account of profits and "the costs of this It would be easy to infer that the analogy of ex- action to be taxed by the Taxing Master, any of ecution process against corporations should be the parties to be at liberty to apply for further followed, but this would be ineffective for relief, orders," etc. It further appeared, that the Taxas the association may have no property capable ing Master, on February 11, 1882, filed his cerof manual seizure, and certainly has no corporate tificate of taxation, or allocatur, as it is called in franchises. Whether this serious defect in the their practice, fixing the costs payable by the delaw is capable of remedy by the Courts, without fendants to the plaintiffs at £154, 75, 3d. The further legislative action, we need not consider only papers produced by the claimants to make at present, as the case stated agrees that there is out a prima facie case were an office-copy of the money enough in the treasurer's hands to pay decree pro confesso and a like office-copy of this judgment, and that agreement may fairly be the Taxing Master's allocatur, and these were not treated as equivalent to an account stated and pretended to be exemplified copies of the origiliquidated, which even between partners is sub-nal record, but were produced as exhibits in cerject to attachment. Judgment for plaintiff. C. C. B. tain depositions taken in England under a commission issued from the Orphans' Court. The witnesses examined under that commission were three in number: first, one of the claimants, who produced these office-copies, and testified that he believed the decedent was the same Charles Pearson mentioned in these papers, and that the costs of the English equity suit had never been paid to claimants. The other two witnesses were employés of the claimants, and their testimony April 19, 1888. was substantially the same, founded upon information and belief purely. Orphans' Court. Pearson's Estate. This claim was objected to because the claimForeign judgments-Proof of When sufficient ants had not produced any properly-authenticated -An office-copy of a decree pro confesso in an copy of the whole record, the widow and daughter English Court, and a like office-copy of the stating that other parts of the record would prove Taxing Master's allocatur, determining the that an attachment had been laid in England for amount of the judgment, not shown to have the whole amount of these costs; also that the debeen confirmed by the Court or filed as part of cedent had never been served with any notice of the record, are not sufficient to sustain the judg-motion for the decree pro confesso; also that the ment in Pennsylvania against the estate of a decedent had lived continuously in this country decedent-Office-copies of records must be properly certified. Sur exception to adjudication. since prior to the entry of that decree, and that his whereabouts were well known to the claimants during the whole of that time, and that they had never made any claims whatever against him during his lifetime for these costs. Charles Pearson died November 9, 1886, intestate, at Philadelphia, where he had resided continuously since 1881. The sole heirs-at-law The claim, with interest from date of the deof the decedent were his widow, the administra- cree pro confesso having been allowed by the trix, and his daughter. The widow having filed Auditing Judge, the widow and the daughter of H. T. Fenton, for exceptants. decedent filed exceptions to the adjudication on | record, appearing to be such on the face of the the grounds that there was no adequate proof of copy; for, as said by Baron GILBERT, "the the judgment produced, and that this judgment precedent and subsequent words and sentences was interlocutory only, and therefore not such a may vary the whole sense and import of the judgment as was necessary to prove a claim in thing produced, and give it another face." the Courts of Pennsylvania, and in any event (Gilbert on Ev. 25; Greenleaf on Ev. sec. could not carry interest. 511; Wharton on Ev. sec. 824; Hampton v. Speckenagle, 9 S. & R. 212; etc. etc.) Thus, it must appear that the Court had acquired jurisdiction over the defendant by personal service, or its equivalent, since otherwise the judgment can have no extra-territorial validity; and conceding the validity in this respect, it must appear further that the judgment has not been set aside, appealed from, or satisfied in fact or in law. No State judgment has effect in another State unless the copy has been exemplified strictly under the Act of Congress. Hanley v. Donoghue, 116 U. S. 4. Thompson v. Whitman, 18 Wall. 457; 97 U. S. 444. The judgments of Courts in foreign countries are also only prima facie evidence when properly authenticated. 2 Story on Const. (3 ed.) ?? 1304-1306. The Taxing Master's allocatur in England has no effect in England unless followed by a rule absolute for the payment of such costs. It can have no further effect here. Shaw v. Neale, 6 H. of L. 596. is It is contended, however, that where the decree for the performance or non-performance of a specific act, and the pecuniary liability arises only from the order for payment of costs, the production of that part of the record which relates to such payment is all that is required. A judgment without personal notice has no Without stopping to consider the soundness of extra-territorial effect. Bischoff v. Wethered, 9 Wallace, 812. If any special effect is to be given to a foreign Christmas v. Russell, 5 Wallace, 290. No interest was properly allowable. Schroeder v. Cleugh, 46 L. J. C. P. Div. 365. Carpenter v. Thornton, 3 B. & Ald. 52. Fry v. Malcolm, 4 Taunton, 705. Biddle v. Dowse, 9 D. & R. 404; 6 B. & C. 255. Richard C. Dale, contra. this proposition, we are of opinion that a judgment upon which a recovery can be sustained in Pennsylvania against the estate of a decedent is not proved by the exhibition of a copy of the allocatur or certificate of the Taxing Master in the Chancery Division of the High Court of Justice of England, not shown to have been confirmed by the Court or (except by a mere uncertified indorsement on the copy) even to have been filed as part of the record. A judgment in paper signed by the Master is not evidence of the record (Greenl. Ev. sec. 508); a fortiori a mere copy of such a paper is not. Even in England, in the Court in which the allocatur or certificate of the Taxing Master is filed, no execution can issue, as the case cited by counsel for the exceptants shows, until its approval by the Court. (Shaw v. Neale, 6 H. of Ld. Cas. 596.) We are of opinion also that papers styled "office-copies," not certified by any official or The copies produced were sufficiently authen- sworn to have been examined and compared by ticated. Greenleaf on Evidence, §§ 508, 511, 514. As the record of a judgment of a Court of other State imports jurisdiction, it must be denied. Veite. McFadden, 3 WEEKLY NOTES, 63. The right to maintain an action upon this judgment is established by Evans v. Tatem, 9 S. & R. 252. any witness, cannot be received as proof of a record. Such copies, it would seem, are recogan-nized by the Court in which the record is, though the officer by whom they are made does not appear to be held responsible for their correctness (Gresley's Eq. Ev. *152); but "at common law they would not be received unless proved to have been regularly examined with the roll, for though April 28, 1888. THE COURT. While portions the Court of Chancery may, for its own conveof a record may sometimes be received to estab-nience, have empowered its officers to make out lish some incidental circumstance arising in the trial of a cause (as the date of a decree, the issue and return of execution, etc. etc.), where the foundation of the action is the judgment or decree of a foreign Court, its existence can only be shown by the production of an exemplification or properly authenticated copy of the whole such copies as should be evidence, yet the par- C. K. Z. WEEKLY NOTES OF CASES. VOL. XXI.] FRIDAY, JUNE 29, 1888. Supreme Court. Jan. '88, 62. [No. 20. March 16, 1888. Phillips v. Swank. Contracts for conveyance of land-Executed and executory Construction of— Words of inheritance-Subsequent purchaser with notice-Statute of Frauds. Whether an informal instrument, transferring an interest in real estate shall be construed a conveyance, or an agreement only, depends not upon any particular words and phrases it may contain, but on the intention of the parties derived from the instrument itself, and, (Proof of signature made before THOMAS J. INGHAM, P. Judge, 14th December, 1882, according to Act of May 25, 1878, by testimony of Griffith Phillips, Joseph French, and Rachel Harris. Recorded January 2, 1883.) To be followed by proof that Henry Swank purchased with notice of the instrument recorded, and that the land of which Jonathan Phillips was in possession August 20, 1850, is the same land of which the heirs of Jonathan Phillips, defendants in this suit, now hold possession. Objected to by plaintiff's counsel, because: (1) The instrument of which record is made does not contain the signature of David Phillips. (2) That the writing doesn't purport to convey any title to the land in controversy to any one, and conveys no title to any land whatever. (3) There is no evidence that the original writing was ever delivered. (4) The writing not having been recorded prior to the recording of the agreement between David Phillips and Henry Swank is fraudulent and void as to Henry Swank. (5) That even if the signature to the original writing be the signature of David Phillips, and even in case it be proven that it had been duly delivered, the instrument containing no words of inheritance in-conveyed only a life estate to Jonathan Phillips, and is not evidence in this case on the part of his heirs, and further that it is irrelevant, immaterial, and not complete. Objected further-That a written instrument or deed cannot be added to by parol or impeached by parol testimony. when that is doubtful, from the circumstances attending its execution. If it be the intention of the parties that the instrument is a complete conveyance, and no words of heritance are used, it will pass a life estate only. If, on the other hand, the instrument shows upon its face that it was only a receipt for the purchasemoney of the land and an agreement to convey in consideration thereof, it is an executory contract only, and words of inheritance are not necessary to pass the fee, and a subsequent purchaser with notice of this instrument takes no title. A written contract for the conveyance of land must, under the Statute of Frauds, in some sense be self-sustaining, but this rule does not preclude parol proof of the identification of the land. THE COURT. This offer stands upon the same footing precisely as the offer of the agreement bethe offer of the record of it is concerned, but tween David Phillips and Henry Swank so far as there are some objections there that go to the competency of the instrument as evidence at all in favor of the heirs of Jonathan Phillips. It is alleged there are no words of inheritance in this writing. What is the purpose of this offer? Counsel for defendants. To show a sale of this land by a written instrument that comes within the province of the recording act. THE COURT. In this case we think the distinc The Error to the Common Pleas of Sullivan County. Ejectment, by Henry Swank against Alfred tion between an executory contract or a deed or an Phillips and Jonathan Phillips, to recover pos-tended that anything more should be done. informal conveyance is whether the parties insession of 248 acres of land in Sullivan County. At the trial, plaintiff showed title in one David Phillips, and an agreement signed by said David to convey to him, made on October 17, 1863. Defendants offered in evidence Deed Book No. 14, p. 134, which contained the following instru ment : contract or writing is simply this: "I do hereby agree that Jonathan Phillips shall have the land he is in possession of now for the labor he done for me over age, and this shall be his receipt for all of my rights and claims against the land." If the purchase-money had not been paid then it would lead to the inference that something more was intended to be done, but there seems to be nothing further for David Phillips to do. By that writing he says Jonathan shall have the land, and says that the consideration is all paid, and that this instrument shall be Jonathan's receipt for all his rights and claims against the said land. It seems 2 Blackstone, 227–312. 4 Kent, 450. Taylor v. Glaser, 2 S. & R. 502. Duncan v. Duncan, 1 Watts, 327. and there is no seal attached to it. At common to be a transaction complete in itself, nothing law these defects would have rendered it void as more to be done by David, nothing more to be a deed. done by Jonathan. No occasion for the interference of a Court of Equity, for here is a conveyance of land. Now comes in the rule that in a conveyance, formal or informal, which is intended to be a final disposition, the word heirs is necessary to carry a fee. It is impossible for me to see why this well-established rule of common law does not apply to this instrument, and I am compelled to reject the offer of this instrument. Exception. (First assignment of error.) The words "agree" and "shall have" show that it was intended as an agreement, and reference was made to the future. Ogden v. Brown, 9 Casey, 247. Stewart's Ad. v. Lang, 1 Wright, 201. If there is anything to show that the parties themselves regarded the paper as an executory agreement the Court should so construe it. Kenrick v. Smick, 7 W. & S. 45. Shirley v. Shirley, 59 Pa. St. 267. If the agreement was executory, the learned Court below clearly erred in rejecting the paper because it did not contain the word "heirs," for words of limitation are not necessary, or they will be supplied in such an agreement in order to pass the fee. Defraunce v. Brooks, 8 W. & S. 67. This writing was simply a receipt for purchasemoney and an agreement to convey, and, therefore, passed an equitable title. Ross v. Baker, 22 P. F. Smith, 186. The counsel for the defendants subsequently renewed their former offers, and proposed to follow with further proof that Jonathan Phillips entered into possession of the land in dispute under said agreement, and continued in his possession until his death; that he cleared land, built a house and barn, and made other valuable improvements upon the land. Also to be followed by proof of the declarations of David Phillips made against his interest that he had given his son Jonathan Phillips a writing that he would secure the land in dispute to Jonathan Phillips, his heirs or children. Also to be followed by proof that the land of which Jonathan Phillips was in possession, August 20, 1850, is the same land now in possession of his heirs, and that the rights and claims This Court has uniformly held that the cirof David Phillips to the said land before he signed cumstances attending a grant and acts subsethe agreement were a fee simple title thereto.quent to it may be shown by parol evidence to This for the purpose of showing that Jonathan arrive at the intention of the parties. Phillips had an equitable title to the land in dispute which descended to his heirs and childrenand to be followed by offering in evidence the original agreement with proof of the signature of David Phillips thereto, and to be followed by proof that this was intended by both of the parties as an executory contract. And to be followed by proof of the declarations of David Phillips after the death of Jonathan Phillips, to the effect that the heirs of Jonathan Phillips were not badly off because they owned that land. Counsel for plaintiff renewed their former objections, which the Court sustained. (Second assignment of error.) The Court directed the jury to find a verdict for the plaintiff, which was accordingly done, and judgment was entered thereon. Defendants then took this writ, assigning for error the ruling of the Court upon the offers of evidence as above noted. W. E. Crawford and Ellery P. Ingham (with whom was A. Logan Grim), for plaintiffs in error. Miner's Appeal, 11 P. F. Smith, 283. Thompson v. M'Clenachan, 17 S. & R. 112. E. M. Dunham (with whom were Thomas J. Ingham and Rush J. Thomson), for defendant in error. The first question in this case is as to the character of the instrument in writing. Does it import a present conveyance? or, collecting all its parts, does it contemplate a further assurance to pass the title? Gray v. Packer, 4 W. & S. 17. Applying the above principles to the writing. in question, we can meet with no difficulty whatever in arriving at the same conclusion the learned Court did that it is a fully-completed and executed contract. The rule of law is that in a present conveyance without the word heir but an estate for life Gray v. Packer, 4 W. & S. 17. Brown v. Mattocks, 103 Pa. St. 17. The writing is very informal, even as an agree-passes. ment, and has none of the orderly parts of a deed. It has no words of present assurance, but, on the contrary, covenants for a future grantagree that Jonathan Phillips shall have" 66 If the writing conveyed but a life estate to Jonathan Phillips, then the purchase by Swank after the death of Jonathan would certainly be innocent, and protected by the Recording Act, unless actual notice of the parol understanding or agreement was brought home to him. Shirley v. Shirley, 59 Pa. St. 274. Brinser v. Anderson, 20 Weekly Notes, 505. If the writing is not sufficient to take the case from the Statute of Frauds and Perjuries, then it is a mere parol contract, not accompanied with the delivery of possession under it, and, therefore, conveys but an estate at will. Christy v. Barnhart, 14 Pa. St. 260. This instrument is not self-sustaining, as required by the Statute of Frauds. There is no description whatever that can be applied to any land without first introducing parol evidence. Soles v. Hickman, 20 Pa. St. 183. Ferguson v. Staver, 33 Id. 413. Morris v. Stephens, 46 Id. 200. April 23, 1888. THE COURT. This ejectment was brought to recover the possession of two hundred and fifty acres of land, more or less, situate on the North Mountain, in Sullivan County. Both parties claim title under David Phillips, who sometime prior to the year 1847 became the owner in fee. The plaintiff gave in evidence the record of an agreement for the sale of the land in dispute, by David Phillips to Henry Swank, dated 17th October, 1863, and proved the payment of $1500 in full of the purchasemoney. It was further shown, that Swank went into and remained in the possession under his purchase, until 7th April, 1881, when the defendants were found to be in the occupancy of a vacant house on the tract, claiming title to, and possession of the whole tract. To maintain the issue on their part, the defendants, who were sons of Jonathan Phillips, offered in evidence the record of a writing, in the words and form following, to wit: "Augest the 20, 1850:-i do herby agree tht Jonathan Phillips shall have the land wich he is posetion of now for the labor he don for me over age and this shall be his wrecept for all my writes and claims aganst the land. "(Signed) DAVID PHILLIPS." This offer to be followed by proof that Henry Swank purchased with notice of Jonathan Phillips' title, and that the land of which Jonathan Phillips was in possession, at the date of this writing, is the same land of which the defendants in this suit are now possessed. This offer was refused upon the ground that the writing was, in legal effect, an executed conveyance of the land, and, as it contained no words of inheritance, it passed only a life estate to Jonathan Phillips, and was ineffective to vest any estate or right in the defendants at his decease. If the writing referred to is to be construed as a complete conveyance of the land, the Court was right in holding that an estate for life only would pass under it. (Gray v. Packer, 4 W. & S. 18.) In a will, the force of the word "heirs" may be controlled in the context; but in a deed, it is a term of art, and indispensable to carry a fee. (Hileman v. Bouslaugh, 13 Penn. 344.) So in an executory contract, the absence of words of inheritance will not prevent the passing of a fee simple in equity, where it appears to have been the intention of the contract to convey a fee. (McFarson's Appeal, 11 Penn. 511). Equity will supply words of inheritance, and imply a fee where the consideration paid or other circumstances evince that no less than a fee was intended. (Defraunce v. Brooks, 8 W. & S. 68; Ogden v. Brown, 33 Penn. 250.) The primary question in this case, therefore, is, whether the writing embraced in the defendants' offer, is to be construed as a conveyance or an agreement to convey. It is a well recognized rule of construction, that whether an informal instrument, transferring an interest in real estate, shall be construed a conveyance, or an agreement only, depends, not upon any particular words and phrases it may contain, but on the intention of the parties, derived from the instrument itself; and when that is doubtful, from the circumstances attending its execution. (Kerick v. Smick, 7 W. & S. 41; Bortz v. Bortz, 48 Penn. 382.) The intention is so imperative, that even the strongest words of conveyance in the present tense, will not pass the legal estate, if other parts of the instrument show that this was not the intention of the parties. (Williams v. Bentley, 27 Penn. 301.) On the one hand, technical words of present conveyance are not necessary to constitute an executed contract; if the intention is plain, it is sufficient; and on the other hand, even though technical words of present grant are used, yet, if by reason of something further remaining to be done, or from the tenor of the whole instrument, the design of the parties is manifested that the contract is executory merely, it will be so construed. In determining this intention, ex visceribus, the first rule, however, is to inquire whether the language imports a present conveyance, or whether, collecting all its parts, it contemplates a further assurance to pass the title. (Bortz v. Bortz, supra.) Apply this rule in the construction of the writing offered in the case, it is plain that there are no technical or other words of present conveyance; by its terms David Phillips "agrees" that Jonathan "shall have" the land, which is designated as "the land he is in possession of now," without any formal or further description whatever; he is to have the land for the labor he |