ecution of the leases by him which was in contemplation at the time. If the lessees did not deal with him as a party in interest, they are not estopped by his or their mistake from showing the truth. On the other hand, if they treated him as interested in the surface to such an extent as to render his consent to the lease necessary, and joined him as a co-lessor for that reason, they would fall under the rule which he invokes, and would not be allowed to deny his title. The question about the division of the rent would then be for the co-lessors to settle between themselves, and it would not interest the lessees until after notice from one or both of the joint claimants demanding a specific part of the rent which had been jointly reserved.

But if we assume that the lease was intended to be joint notwithstanding the fact that no interest in the farm is shown in the son, and that the father intendeu to share the royalties with him, although the title was in himself alone, we come to the next question, viz.: What and against whom is the remedy of the son upon the facts before us? The royalties reserved are payable to the co-lessors jointly. All the royalties accrued up to the time this suit was brought had been paid to the father or his assigns, with the knowledge of the son, and without protest or notice of his individual clain from him. One tenant in common cannot make a valid lease of the common property without the consent of his co-tenants. He can dispose only of his own undivided share. If, however, the co-tenants join in a lease reserving a common rent payable to the lessors jointly, either of them may receive and give a valid receipt for the entire rent until notice by one or more of the co-tenants that his share must be paid to himself. Wood, Landl. & Ten. 125. So, upon such a lease, the tenants in common may join in one action or in one distress for rent. Jones v. Gundrim, 3 Watts & S. 531. This was the rule of the common law. Littleton gives it thus: "If two tenants in common make a lease of their tenement to one for a term of years, reserving rent, and the rent be in arrears, the tenants in common shall have an action of debt against the lessee, and not diverse actions, for that the action is in personalty." Co. Litt. Per. § 316. In Powis v. Smith, 5 Barn. & Ald. 851, the rule is stated in these words: "It is clear that, if there be a joint lease by two tenants in common, the two may join in an action for rent; but, if there be a separate reservation to each, then there must be separate actions." When there has been a joint reservation of rent, and rent has been paid without objection to one of the persons jointly entitled to receive it, the demand for rent is satisfied. Its division among those entitled, as between themselves, to share in it, must be settled by some appropriate action to secure

an account from the party actually receiving it. This, in the case of two persons jointly entitled to receive the rent, may be account render, and under some circumstances assumpsit. Gillis v. M'Kinney, 6 Watts & S. 78. Since the demand made by this action, the questions just considered will have no place. The plaintiff is in the position of demanding one-half of the rent or royalty reserved, and requiring its payment to him. The receipt of his co-lessor will therefore bind him no longer; but, if he is legally entitled to share in the rent, he must be separately dealt with in its payment. This question cannot be settled on this record.

It is suggested that the assignment by the father of his interest in the royalties amounted to a severance, upon which the rent was apportioned, as matter of law, so that the plaintiff had a right to recover one-half of the rent notwithstanding the payment of it to the co-lessor or his assigns. But we do not see that there is room for the doctrine of apportionment in this case. "Apportionment" is defined as "a division or partition of a rent or common, or a making of it into parts." This may be by the act of the law or the act of the parties. parties. If freehold and leasehold premises are demised at an entire rent, upon the death of the lessor the rent must be apportioned as matter of law, since the freehold goes to his heirs, and the leasehold to his personal representatives. If the lessor of premises demised at an entire rent sells a portion of the demised premises to another, an apportionment is made necessary by the act of the lessor. But, under the evidence in this case, there was no division of the rent into parts as a result of the transfer by the father of all his right and interest in the royalties reserved to another. This transfer did not affect the son. It did not part the rent. The assignee became a tenant in common in the rent with the son, just exactly as the father had been before the assignment was made. There was no severance of the demised premises. The relation of the lessee to the lessor was not changed. There was therefore no reason in law, and none arising from the act of the parties, for an apportionment of the rent in this case. If the father had sold a part of the reversion to a stranger, his right to an apportionment of rent would have attached the instant the sale was made to him. Linton v. Hart, 25 Pa. St. 193. And the landlord who thus sells part of the demised premises to another will not be liable for the trespasses of his vendee, nor forfeit his right to his share of the rent because of an ouster of the tenant by his vendee from such part of the demised premises as passed to the vendee. Reed v. Ward, 22 Pa. St. 144. This is because, after the apportionment, the respective rights of vendor and vendee are separate and distinct. In the case before us the reversion was not

divided; the leasehold was not divided; the right of neither of the co-lessors was divided. There was therefore no party in a position to claim an apportionment of the rent, and the allotment of any specific portion thereof to himself, and for that reason the doctrine of apportionment has no place in this controversy. The lease, in the best view of it for the plaintiff, is a joint lease by the tenants in common for an entire rent. Either of the co-lessors could assign his interest in the lease without affecting in the slightest degree the rights or remedies of the other. The judgment is affirmed.

BRADEN v. FIRST NAT. BANK OF

CLARION.

(Supreme Court of Pennsylvania. Jan. 3, 1898.)

FRAUDULENT CONVEYANCES-JUDGMENT BY CONFESSION-PREFERENCES-CONTINGENT LIABIL

ITIES-EXECUTION SALE-VALIDITY.

1. A judgment confessed by an insolvent to secure a bona fide creditor, though it be intended to, and has the effect of, giving him a preference over other creditors, is not fraudulent in law.

2. A judgment confessed by an insolvent is not fraudulent in law because the amount inserted is sufficient to cover the debtor's contingent liability on indorsements as well as his actual indebtedness.

3. A portion of the creditors of a lumber manufacturer agreed between them to buy at a sheriff's sale so much of the debtor's logs and other property as was practicable, manufacture the logs into boards, sell for the best price they could get, and divide the net proceeds. Held, that the agreement was not fraudulent so as to invalidate the sale.

Appeal from court of common pleas, Clarion county.

Bill of discovery by A. P. Braden against W. W. O'Neil, Jr., and others, in which a verdict was directed by the court against defendants the First National Bank of Clarion and Rachel R. Pollard, which verdict was afterwards set aside as to defendant Pollard. From a judgment on the verdict against defendant bank, it appeals. Reversed.

C. Heydrick, W. A. Hindman, W. H. Hockman, Harry R. Wilson, and C. Z. Gordon, for appellant. Geo. F. Whitmer, B. J. Reid, F. J. Maffett, and G. A. Jenks, for appellee.

WILLIAMS, J. The verdict in this case was directed by the court as against the appellant bank and Rachel R. Pollard. Upon a motion for a new trial this verdict was set aside as to Rachel Pollard, and a new trial granted, but the motion was refused so far as appellant was concerned, and judgment entered on the verdict. Our question is not whether the defendants stood on substantially the same ground, but whether the reasons for directing judgment on the verdict are tenable. The facts are these: W. W. O'Neil was engaged in the manufacture and sale of lumber in Clarion county, and was in possession of a consider

able amount of property. On the 18th day of April, 1893, his affairs were not in a prosperous condition, and he was very sick in the city of Pittsburg. His principal creditors, and those whom he desired particularly to secure, were his mother-in-law, Mrs. Pollard, and the First National Bank of Clarion. He was indebted to the bank in the sum of $7,245.75 upon notes made by him, and discounted for his credit, and in the sum of $6,754.77 upon notes indorsed by him, and largely, if not wholly, discounted for him, and at his request. To secure the bank, he executed a judgment note in its favor for the sum of $12,500, and sent it to the bank. The bank entered judgment upon it in Clarion county, and at once issued a writ of fieri facias upon it, and levied upon the goods of O'Neil. The learned judge of the court below held this to be a legal fraud, and the judgment in this action was entered against the bank upon the theory that the money raised by the sheriff's sale upon this judgment was subject to attachment by other creditors of O'Neil, as his money in the hands of the bank. This is made to appear by the answers to the points submitted by the defendant. Its second point asked an instruction that "a judgment confessed by an insolvent man to secure a bona fide creditor, whether contingent or otherwise, even though it be intended to and has the effect of giving him a preference over other creditors, is not fraudulent in law or in fact." This was answered, "Refused." We think the answer should have been substantially: "Such a confession of judgment is not a fraud in law. Whether it is a fraud in fact or not must depend on the attending circumstances." The answer made by the learned judge must have rested on one of two reasons: Either he regarded the preference resulting from the confession of the judgment a fraud upon other creditors, or that the making of the note large enough to cover, as the debtor supposed and intended, his indorsements as well as his own notes, was a fraud in law, and rendered the note void for all purposes. Something like the first of these positions was held in Ashmead v. Hean, 13 Pa. St. 583. An insolvent debtor made a conveyance of real estate to a bona fide creditor, and for full value. The conveyance was held void because both parties knew that its effect must be to give the vendee the preference, and so to delay other creditors, and this was the purpose of the vendee in insisting on the conveyance. But this case was promptly overruled in Uhler v. Maulfair, 23 Pa. St. 481, where the proposition was distinctly stated that, "so long as a debtor is the owner of real estate, he may prefer one creditor to another, either by judgment or by conveyance for a fair price." And why not? If the debtor does not convey or incumber his real estate, the law will. The most vigilant creditor will secure the first lien, although it is clear that others may be hindered and delayed, or wholly defeated, in consequence. If, instead of obtaining his judgment through an action at law, the creditor is able to secure a confession of

judgment by his debtor, the result is precisely the same. In either case his purpose is to secure himself first, if that is possible, regardless of the effect that may follow as to others who are behind him. Since Uhler v. Maulfair, supra, this has been the settled law of this state. Wilson v. Berg, 88 Pa. St. 167; Banking Co. v. Fuller, 110 Pa. St. 156, 1 Atl. 731; Werner v. Zierfuss, 162 Pa. St. 360, 29 Atl. 737.

The other question remains: Was the note rendered invalid by the circumstance that it was made large enough to cover, or nearly so, the contingent liabilities of O'Neil to the bank, growing out of his indorsements? It is not alleged that the giving of the note was the result of a conference between the parties. It was the act of O'Neil, done in view of his financial condition at the time. There is no reason for imputing to him, therefore, a fraudulent motive in making the note, or for imputing such motive to the officers of the bank in accepting and using it. The question is, did the fact that the amount inserted in the note was intended to be large enough to cover both his actual and his contingent liabilities to the bank render it void in toto? In questions of distribution of assigned estates it often becomes necessary to inquire when the right of action in a claimant vested, or when his debt became an absolute indebtedness of the assignor or insolvent; but that question does not arise here. The question comes down to this: Can a debtor secure his friend against a contingent liability? We answer this question in the affirmative. This has been held as to bail. Davis v. Charles, 8 Pa. St. 82. I am not aware that the question has arisen upon just the circumstances presented in this case, but the general proposition that an indorser is contingently liable to the holder of the note, and that he may secure the holder by the delivery of collaterals, or by a confession of judgment, is recognized in many cases. The holder is not entitled to collect his debt from the indorser, who is primarily liable to him, and then collect it over again from the maker. The payment by either extinguishes the debt. If the maker pays, the indorser's liability to the bank is correspondingly reduced, and the judgment so far satisfied.

The court below also held that an agreement between a portion of the creditors of O'Neil by which it was agreed to buy at the sheriff's sale so much of the logs and other property of O'Neil as was practicable, manufacture the logs into boards, sell for the best price they could get, and divide the net proceeds of such sales, was fraudulent. This combination only embraced a portion of the creditors. It did not look to preventing competition at the sale, or to depressing the price. It was an attempt to make the goods, if bought by any member of the combination, bring the most money possible, to apply upon their debts, by adding to the value of the logs the profit of their manufacture into boards. This was not necessarily fraudulent. Young v. Snyder, 3 Grant, Cas. 151. There must be actual fraud, such as a

combination to purchase at an undervaluation, or to discourage bidding by others, to justify setting aside the sale, or treating it as a nullity. Dick v. Cooper, 24 Pa. St. 217. The cases cited in support of the judgment of the court below are not in point. Oyster v. Short, 177 Pa. St. 601, 35 Atl. 711, was the case of an assigned estate, and the question raised was one of distribution between claimants on the fund in the hands of the assignee. Brough's Estate, 71 Pa. St. 460, also arose on the distribution of an insolvent estate. The question in both cases was at what time the right of certain claimants to share in the fund matured. These cases throw no light upon the questions raised here.

On a consideration of the several assignments of error we sustain the second, third, and fourth. We incline also to sustain the first, as we see no evidence in the case that should justify the jury in finding fraud in fact; and, as the circumstances did not amount to fraud in law, there was, therefore, really nothing to submit to the jury upon this question. The judgment is reversed, and a venire de novo awarded.

Jan. 3,

OLINGER v. SHULTZ et al. (Supreme Court of Pennsylvania. 1898.) RESULTING TRUSTS-SUFFICIENCY OF EVIDENCELIMITATIONS.

1. In ejectment against a wife, it appeared that in 1885 the land was deeded to her husband, and afterwards was sold under execution against him to plaintiffs, who had notice of her equities. The deed to the husband was executed by the grantor with a blank for the name of the grantee, and the grantor's agent by mistake inserted the name of defendant's husband. She did not learn that the deed was not in her name until 1890. The husband gave his note for part of the price, leased the land in his own name, and recovered a verdict against a coal company for damages to the surface. The testimony that the whole price was paid by and for the wife was clear. Held sufficient to establish a resulting trust in favor of the wife.

2. Where the wife demanded a deed from the husband as soon as she knew the property stood in his name, and he promised to give it, a delay for over two years was not enough to bring the statute of limitations into operation.

Appeal from court of common pleas, Somerset county.

Ejectment by J. M. Olinger against Peter Shultz and Susan Mognet, to recover land conveyed in 1885 to the husband of defendant Mognet, and sold under execution against him to plaintiff. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Koontz & Ogle and Coffroth & Ruppel, for appellant. Kooser & Kooser and Wm. J. Baer, for appellees.

GREEN, J. In this case the action is ejectment, brought by a purchaser at a sheriff's sale, with full notice of the defendant's title. He was not an innocent purchaser for value, of the title of Joseph G. Mognet, as it appeared

on the record, and without notice of any trust or adverse title, and cannot set up any title as such. He was not even a judgment creditor of Mognet. He occupies, therefore, the position of one who purchases with full notice of a title by means of a resulting trust, in opposition to an apparent legal title. He neither purchased the land nor loaned money on the faith of the apparent title. There is but little, if any, dispute about the facts. The deed for the land in controversy was filled up and executed by the grantor with a blank left for the name of the grantee. When the name was inserted Mrs. Mognet was not present, and knew nothing of what transpired. With an amount of ignorance and stupidity on the part of the person who made the purchase which seems incredible when regarded in the light of a past occurrence, no direction was given as to whose name was to be inserted as the grantee, and the deed was not examined. It was left with the agent of the seller, who left it at the office of the recorder of deeds, where the person who made the purchase afterwards found it, but says he never looked at it. The name of the husband was inserted instead of that of the wife, and thus has arisen the present controversy. It is the case of an alleged resulting trust in favor of a wife against her husband, in whose name the legal title was taken. The basis of the trust is the claim that the land, a farm of 142 acres, was purchased by the father of Mrs. Mognet for her; that he paid the whole of the down money, which was $2,000, at the time the deed was delivered; and that all the subsequent payments were made with money of the wife and proceeds derived from the land. There is really but one question in the case, to wit, was the evidence sufficient to establish such a resulting trust? The rule of law in this class of cases, as established by numerous decisions of this court, is without any doubt or question. The evidence in support of the trust must be clear, precise, convincing, and satisfactory. It is not enough that it satisfies the jury. It must also satisfy the mind and conscience of the court, sitting as a chancellor reviewing the testimony; and if it fails in this respect the evidence must be withdrawn from the jury. Reno v. Moss, 120 Pa. St. 49, 13 Atl. 716; Hess v. Calender, 120 Pa. St. 138, 13 Atl. 720; Hoover v. Hoover, 129 Pa. St. 201, 19 Atl. 854; Silliman v. Haas, 151 Pa. St. 53, 25 Atl. 72; In re Lau's Estate, 176 Pa. St. 100, 34 Atl. 969; Fowler v. Webster, 180 Pa. St. 610, 37 Atl. 102; Gilchrist v. Brown, 165 Pa. St. 275, 30 Atl. 839; Way v. Hooton, 156 Pa. St. 8, 26 Atl. 784; and many other cases. It is manifest, therefore, that it is necessary only to examine the testimony with care, in order to determine whether it is within the requirements of our decisions.

Peter Shultz being a mere tenant, the real defendant is Susan Mognet, the wife of Joseph G. Mognet, both of whom are still living. As before remarked, there is scarcely any controversy as to the facts. The defendant's contention is that her father, Samuel P. Miller, 38 A.-65

bought the farm in dispute for her, and directed his son Joseph S. Miller to make the purchase. There is no pretense, nor any proof, that the land was bought by the husband, Joseph G. Mognet. The son, Joseph S. Miller, testified that he bought the land for his sister, the defendant, at the instance of his father. He was asked: "Q. State what you came to Somerset for,--what you were directed to come for by your father. A. Well, to buy this farm -to buy a farm from Judge Baer, agent for George F. Baer-for Susan Mognet, his daugh-. ter. I bought the farm. A deed was made for that farm by George Baer. Q. Where did you get the deed? A. In the recorder's office. Q. Did you ever see the deed before it was recorded? A. I might have seen it, but I never looked at it. * After it was recorded,

when did you next see the deed? A. I don't know how long after he had that deed at the recorder's office. I took it along home, and put it in my own safe. * * * Q. How long did you keep this deed in your safe after you had put it there? A. That is more than I can tell you. It was there a couple of years,-two, or three, or four. Q. Was Susan Mognet present when you bought this farm? A. No. Q. Was Susan Mognet present when you handed the deed to be taken to the recorder? A. No, sir. Q. Did she see the deed during the period it was in your safe? A. I know she did not. Q. When did you know that the deed was made in the name of J. G. Mognet? A. That is more than I can tell you. I never looked at the deed, -how it was made. Q. Tell us what you know of the payment of the purchase money of that farm. A. I paid the first payment,-the down money, $2,000, and the first payment $700. I paid so much money, and the balance had to be made off the farm for the first payment. Q. Where did you get the $2,000 hand money? A. From my father. Q. For whom did you pay it? A. For Susan Mognet. Q. How much cash did you pay on the first payment? A. It was $535. Q. How was the balance of the first payment made? A. That was made off the farm,-rent. Q. Who paid the rent? A. Sam. Ringler. He had leased the farm before I bought it. He had leased it at the time I bought it. Q. How much was that? A. Something like $100 and something. Q. Have you any memorandum of it? A. Not of that. The balance was fixed up by the rent, and that way the $750 was made up. I got the $535 from my father, and paid it for Susan Mognet. Q. Did your father pay any more in his lifetime? A. That was the end while he was living. After his death he left a will. I was one of the executors. Q. Now, will you state what moneys you paid, if any, on this farm as executor of your father? A. I paid the balance to Mrs. Mognet. Q. Can you state what sums you paid her, and when? A. Yes, sir; the first distribution I paid $1,269.41. That was January 14, 1891. Q. Did you not make two payments after the first payment before your father's death? A. I only made one payment. In 1885 I paid the down money and in

1886 I paid the $750. Q. What year did your father die? A. In 1888. Q. Proceed. A. The last distribution I paid her $829.67 March 17, 1893. Q. You paid her by these checks? A. That check and this receipt." After stating that he paid his sister all the money that was coming to her from her father's estate, except what his brother, who was a co-executor, paid her, he was asked, on cross-examination: "Q. How much money were you to pay for the farm? A. $6,450. Q. $2,000 was the hand money? A. Yes, sir. Q. And the balance in payments? A. Yes, sir. Q. How much a year? A. $700 the first year, and the balance I don't know how many payments; and more, they were annual payments without interest." After stating that the deferred payments were secured by judgment note given by Joseph D. Mognet, and that the first payment of $535 was made to Judge Baer by himself and the tenant, and the payment of $1,269.41 was made partly in money and part of it in land he conveyed to her, he said that her whole interest in her father's estate was $5,126.12, and was asked: "Q. She got in all $5,100, and she paid of that $816 on the property she lives on now. Then she gave you a note for $408, and that note she paid afterwards? A. Yes, sir; after she had paid the farm." Samuel S. Miller, the coexecutor, testified that he had paid her $407.06 out of the estate. Susan Mognet testified that she was not present when the deed was delivered, and had no knowledge that it was in her husband's name until in 1890; that she furnished all the money that was paid for the farm, part of which was paid by her father during his life, and more was paid out of her share of her father's estate; that $500, being the proceeds of a sale of her personal property on the farm, was paid on the farm; that rent received from the tenant was all applied in that way. This rent was shown by the testimony of her husband to be for eight years,-the first year $225, and the other years $212.50 each year. Mrs. Mognet testified that money was realized each year they occupied the farm, from sales of grain, butter, and other products, all of which went to pay on the farm. All these moneys were paid to her husband, who testified that he deposited them in bank, and made the deferred payments with them, in discharge of the judgment note he had given, until all were paid. A number of checks and receipts were given in confirmation of his testimony. Joseph G. Mognet was asked: "Q. Have you any knowledge of the payment of the hand money? A. Not more than Mr. Miller paid. The payment of some of the notes, which I paid from the money Mrs. Mognet had received from her father's estate, and money she received from the sale of the implements. They were on the farm when we went there, and there was hay on the farm when we moved there. Everything required by farming was there. I bought nothing. Q. What became of the money? A. That money I applied to the notes, the back payment of the farm. Q. What became of the rents? A. Them I treated the

same way, on the notes of George F. Baer for the farm. Q. Can you tell how much money you received from your wife to pay on this farm? A. Rents and money from the sale, and money as she received it from her father's estate, from the executors,-I applied on the payment of the notes for the farm on the same day, but when a sufficient amount was collected together. Q. How did you come to pay it? A. She gave it to me to pay it. Q. How did you pay it? A. By checks to H. L. Baer, attorney for George F. Baer. Q. What did you do with the deposits? A. I put them in the Citizens' Bank of Meyersdale, and checked them out in my own name." Then follows a long statement of details of payments by the witness, accompanied by checks or receipts, which it is not necessary to repeat. It is enough to say that the whole of the purchase money was paid and the judgment taken on account was discharged in full. The last payment was made in April, 1893, with the money his wife received from Samuel S. Miller,-with that and some rent he says he paid the last $500. He was asked: $500. He was asked: "Q. In a general way, from what sources were. the several sums you have stated you paid derived? A. From the proceeds of the farm and from money Mrs. Mognet received from the estate. Q. Did you pay any portion of the hand money yourself? A. No, sir; I didn't make the transaction, nor pay any of the money. I had no part in it." He then explained how his name came to be inserted instead of his wife's. "Q. Do you know how the judgment for the unpaid purchase money came to be against you? A. I can explain that. When the deed was delivered, or when Judge Baer was at Joseph S. Miller's house, on the day of the delivery of the deed, I happened to be there. While Miller was doing something at his safe, Judge Baer just opened the deed, and said- The name was blank, the deed had already been acknowledged, and Judge Baer held the deed up to me, and said, 'What is your full name?' I saw the blank space, and he just wrote it in while Miller had his back turned, working at the safe, and was searching for the papers. Q. Did Mr. Miller see it, or not? A. No, sir."

It is manifest from this that Judge Baer supposed that the husband's name was the proper name to be inserted, and presumably he had not been informed to the contrary. So far as he was concerned, it was a clear mistake. So far as the husband was concerned, it may have been a fraud on his wife, or he may have supposed it made no difference. In either case, and on either of these suppositions, it is clear the wife could not thus be deprived of her equitable estate in the land, and would be entitled to her proper remedy to enforce her claim. The testimony delivered was sufficient to account for the whole of the purchase money. The testimony was direct and positive. It was clear, convincing, and satisfactory. There was no contradictory evidence as to the essential and controlling facts in support of the trust. The testimony satisfied the jury, who found the