R. F. Downey and James E. Sayers, for appellant. J. B. Donley, T. S. Crago, and D. S. Walton, for appellee.

MESTREZAT, J. This was an action of ejectment brought April 1, 1898, by David Shroyer and George B. Shroyer against William D. Smith for (quoting from præcipe) "a tract of land situate in Cumberland township, Greene county, Pennsylvania, adjoining lands of J. H. Rea on the south and west, lands of Thomas Hawkins on the west and north, lands of W. C. Huston on the north and east, and land formerly owned by Barnhart; containing seventy-three acres, more or less." Before the trial of the case, in November, 1901, David Shroyer died, and his name was stricken from the record as a party plaintiff. Both parties to the record, as thus amended, claimed title to the premises in dispute through David Shroyer, the father of the plaintiff and the grandfather of the defendant, to whom the land was conveyed by Johnson Waycoff by deed dated September 20, 1884, and duly recorded in the recorder's office of Greene county. The plaintiff's title is founded upon a deed from his father to him dated November 4, 1897, and duly recorded, by which the land in controversy was conveyed "to the said George B. Shroyer for life, and at his death to his wife, Elizabeth Shroyer, if she survive him and remains his widow, to her for life, and at her death, or upon her remarriage, then the reversion and remainder to the use of Edward C. Shroyer and John Shroyer, children of the said George B. Shroyer and Elizabeth Shroyer, in equal shares in fee, to them, their heirs and assigns, forever." The plaintiff put in evidence the record of the deed, and relied upon it as his right to recover in this action. The defendant, Wildiam D. Smith, claimed the premises by virture of an alleged parol contract entered into between himself and David Shroyer just before or about the time he was of age, in 1884, by the terms of which Shroyer was to purchase a farm and devise it to Smith, in consideration of which the latter was to give up his trade of blacksmith, remove to the farm with his grandparents, and care for them, and work and manage the farm, until their death, or they were done with the farm. It is alleged by the defendant that, in pursuance of said contract, Shroyer purchased the farm in dispute, known as the "Harper Farm," in 1884, and executed a will, dated March 16, 1887, by which he devised said farm to Smith; that the latter removed to the farm with his grandparents, and took possession of it, and has fully and faithfully complied with all the stipulations of the contract to be performed by him. It is claimed by the defendant, and his evidence tended to show, that at the age of 13 months he became a member of his grandfather's family, and that, when he was between 10 and 11 years of age, his parents

(about removing West) permitted him to remain with his grandparents in consideration of the latter agreeing to give him $4,000 and certain personal property when he became of age. It further appears from the testimony that Smith continued to reside on the Harper farm with his grandparents until the death of his grandmother, in 1897, and that he still remains in possession of the farm. Prior to the removal of the parties to the farm, at the suggestion of his grandfather, Smith learned the blacksmith trade. The right of the plaintiff to recover was also resisted by defendant on the ground that David Shroyer, at the time he executed and delivered the deed to his son, the plaintiff, did not have sufficient mental capacity to execute the deed, and that it was procured through the undue influence of his son. Mr. Shroyer's wife died September 2, 1897. He left his grandson's home September 6th, and has since resided with the plaintiff. The two questions thus raised by the defense, to wit, the mental incapacity of David Shroyer at the time he executed the deed to his son, as well as the undue influence exercised upon him by the latter at that time, and the existence and sufficiency of the contract between David Shroyer and his grandson, and the fulfillment of its terms by the latter, were submitted to the jury by the learned trial judge in a clear and adequate charge. The verdict was in favor of the defendant, and, a new trial having been refused, judgment was entered on the finding of the jury. The plaintiff appealed.

The assignments of error suggest two propositions for consideration: (1) Was the evidence, if believed by the jury, sufficient to establish the alleged agreement between David Shroyer and his grandson, and, if so, was the contract within the statute of frauds? (2) Was the defendant a competent witness, under the act of June 11, 1891 (P. L. 287), to testify to matters occurring in the lifetime of David Shroyer?

The principal and only witnesses on the part of the defendant who were present at the time the agreement was made were the defendant and Mrs. Coil, his mother. The latter testified at some length, giving the arrangement under which the defendant, as an infant, was taken to his grandfather's home, and detailing various conversations between her father and her son, leading up to and terminating in the contract which is set up here as a defense to this action. She testified that under the agreement the defendant "was to live with them [his grandparents], and farm and work for them, and, when they were gone, they would give him the farm"; that he was to get the farm by will; that he was then living with his grandfather, in Carmichaels, and the latter requested him to leave his trade, and go with his grandparents to the Harper farm, which he did. The date of the contract, as fixed by the witness, was in 1884, at or about the time the defendant

arrived at the age of 21 years. She also testified that her father told her in the presence of her son that, in compliance with the contract, he had made a will, and devised the farm to the defendant, and that he would get it when he (her father) was gone. The defendant, in his deposition, taken under a rule before the death of his grandfather, substantially corroborates his mother as to the terms of the contract between him and his grandfather. He says that at the time the agreement was made, and he entered upon the performance of it, he had acquired the blacksmith trade; that the inducement to leave his trade was the farm which he was to get by will. He further says that his grandfather told him "he had willed the farm to me, and I would get it. He would see that I got it." The witness speaks of the several efforts made by his grandfather to purchase a farm before he bought the Harper farm, to which he removed with his grandparents in pursuance of the agreement. Smith also testifies that he performed his part of the contract faithfully; that his grandfather resided with him until after the death of his grandmother, in 1897, when he left without cause, and went to the home of the plaintiff, where he lived until his death. In addition to this testimony, other witnesses were called who testified to frequent conversations with David Shroyer in which he admitted the contract between him and his grandson, and his intention to carry out its terms. If the testimony is believed, the jury was fully warranted in finding that the contract between David Shroyer and the defendant was established in all its terms. The parties were brought face to face, and the evidence disclosed a complete contract made by them. It also authorized the finding that the defendant had performed his part of the agreement. It is true that David Shroyer left the home of his grandson and resided with the plaintiff during the last four years of his life, but there was no sufficient reason, in the judgment of the jury, for his action in doing so. It clearly appears, if the witnesses are credible, that David Shroyer had frequently admitted making the contract with his grandson, and that in pursuance thereof he had made a will devising the Harper farm to the defendant. This testimony is supplemented by a paper in evidence, purporting to be the last will of "David Shroyer, of Cumberland township, Greene county, Pa.," dated March 16, 1887, in which he devises "to William D. Smith the farm that I live on, and is known as the 'Harper Farm,' adjoining lands of T. H. Hawkins, Wilson Huston, and others; also all my personal property that is thereon at my decease." The paper was in proper form as a testamentary disposition of property.

It is contended by the learned counsel for the appellant that the will is not a sufficient writing to take the contract out of the statute of frauds; that it "says nothing about

the possession of any prior contract relating to the same; it does not define the quantity of land; it is entirely deficient without parol testimony to take it out of the statute of frauds"; and that the description is not sufficient to locate the land. It is not necessary that the will should set forth the possession of the premises by the devisees, or that there was a contract. These facts must appear, but may be shown by parol proof. Testimony was introduced to establish the contract, and to show that the devisee took such possession of the land as the agreement required in 1884, and has since continued such possession of it till the present time. This was followed by testimony, believed by the jury, that the will was made pursuant to and in conformity with the terms of the contract. The will therefore became a writ ing embracing the terms of the agreement, and satisfied the statute of frauds. Brinker v. Brinker, 7 Pa. 53; Smith v. Tuit, 127 Pa. 341, 17 Atl. 995, 14 Am. St. Rep. 851.

We do not agree with appellant's counsel that the will is not sufficiently definite as to the quantity of the land, or as to description of the locality of the premises. It will be observed that it was similar to, and about as definite as, the description in the præcipe in this case. The will recites the fact that David Shroyer is "of Cumberland township, Greene county, Pa.," and devises "the farm that I live on, and is known as the 'Harper Farm,' adjoining lands of T. H. Hawkins, Wilson Huston, and others." So far as the will discloses the fact, this is the only real estate Shroyer possessed.

It follows from what has been said that the court below committed no error in submitting to the jury the evidence introduced to establish the contract, and in sustaining the verdict on that branch of the case.

The

The defendant was offered as a witness in his own behalf. His competency being objected to, the court below ruled as follows: "I will rule he is competent to testify to any facts occurring in the lifetime of David Shroyer in presence of George Shroyer." From this ruling it is evident that the learned trial judge thought the defendant was made competent by the act of June 11, 1891. Both parties claim title under David Shroyer, who was dead at the time of the trial. plaintiff claimed by deed, and the right of David Shroyer to make that deed was the matter in controversy. Shroyer was dead, and the defendant, whose interest is adverse to Shroyer's right to grant the premises, was offered as a witness in the case. His interest was adverse to the right of Shroyer to convey, and he was therefore incompetent to testify, under clause "e" of section 5 of the act of May 23, 1887 (Purd. Dig. 817). Baldwin v. Stier, 191 Pa. 432, 43 Atl. 326; Myers v. Litts, 195 Pa. 595, 46 Atl. 131. His incompetency to testify, under the facts disclosed by the record, was not removed by the act of 1891. The defendant, under this

act, could testify to any relevant matter occurring before the death of David Shroyer, only if such matter occurred between himself and another person, or in the presence or hearing of another person, who had been called and testified to such matter against the defendant. Under such circumstances, the act very properly permits the surviving party to testify. The inequality of the parties created by the death of one of them seals the lips of the other; but when that inequality has been removed by a living and competent witness, who testifies against the surviving party to any relevant matter occurring in the lifetime of the deceased, between the witness and the deceased or in the presence of the witness, the competency of the other and remaining party to the transaction is restored by the act of 1891, to the extent of permitting him to protect himself against the testimony of his adversary's witness. Here, however, when the defendant testified, his incompetency had not been removed by the testimony of any witness called by the plaintiff to testify to any matter occurring between the defendant and the witness, or in the presence of the latter, and which had occurred before the death of David Shroyer. The defendant was therefore clearly excluded as a witness by the act of 1887, and was not made competent to testify under the act of 1891. Nor was the error in admitting him to testify cured by the admission of the defendant's deposition, which was clearly competent. It is conceded by the appellee's counsel that Smith's "testimony itself was very material to the defendant's case." We therefore cannot assume that its admission was "harmless error," or that it did not injuriously affect the plaintiff's case.

If the defendant's title to the premises is sustained, the question of undue influence exercised by the plaintiff upon David Shroyer, and the condition of the latter's mind when he executed and delivered the deed to his son, become immaterial. These matters were properly disposed of by the learned trial judge.

The tenth assignment of error is the only one having any merit, and, for the reasons stated, it is sustained, and the judgment is reversed, with a venire facias de novo.

intended to establish a general system for the relief of the poor throughout the state, and repealed Local Acts March 21, 1865 (P. L. 501), April 11, 1866 (P. L. 608), and April 10, 1873 (P. L. 763), giving the commissioners of Clarion county authority to act as directors of the poor of such county, and providing for the erection by them of necessary buildings for the reception and employment of the poor.

3. Act June 4, 1879 (P. L. 78), being an act to establish a general system for the relief of the poor, does not exempt from repeal the local acts relating to the care of the poor in Clarion county by section 21, providing that the act shall not repeal any local act under which poorhouses have been erected, where at the time of its passage no poorhouse had been erected under such local act, nor had any lands been purchas ed, or poorhouses commenced to be built.

Appeal from court of common pleas, Clarion county.

Petition by the commonwealth, on the relation of W. J. McEntire and others, for a writ of mandamus to J. A. Summerville and others, county commissioners. From an order refusing the writ, relators appeal. Reversed.

Argued before MCCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Harry M. Rimer, Harry E. Rugh, and Don C. Corbett, for appellants. George F. Whitmer, for appellees.

BROWN, J. The appellants were the petitioners below for a writ of mandamus to compel the appellees, commissioners of the county of Clarion, to purchase real estate and erect buildings for the accommodation of the poor of that county, and to furnish them relief and give them employment, in accordance with the provisions of the act of June 4, 1879 (P. L. 78). The writ was denied for the reason that local acts relating to the erection of a poorhouse in the county had not, in the judgment of the court below, been repealed at the time proceedings were instituted under the act of 1879, which was on June 20, 1898. On that day a petition, as required by the act, was presented to the court of quarter sessions of the county, in pursuance of which an election was ordered, resulting in a vote in favor of purchasing real estate, and erecting buildings thereon, that the design and purpose of the act might be carried out. The commissioners, however, refused to act; alleging that the act of 1879 was not in force in their county, in which view, as just stated, they were sustained by the court below.

The local acts held by the court below to have been in force were: Act of March 21, 1865 (P. L. 501); act of April 11, 1866 (P. L. 608); and act of April 10, 1873 (P. L. 763). By the first, the commissioners of Clarion county were authorized to "exercise and perform all the duties of directors of the poor of the said county," and to select and purchase such real estate as they might deem proper and necessary for the support and employment of the poor of the county, and take conveyance of the same, in the name

and for the use of the said county; and they were directed to proceed to build such buildings as might become necessary for the reception and employment of such persons as might be a public charge on the townships of the said county, and to increase and enlarge said buildings and accommodations as the same might become necessary. To enable them to do these things, they were authorized to increase the county taxes. The act of April 11, 1866, which was a supplement to that of 1865, provided for the appointment, first, and then the election, of three suitable persons, to be directors of the poor of the county, who were "created and constituted a body politic and corporate, by the name, style, and title of the directors of the poor of Clarion county," and upon whom were imposed all of the duties that the act of 1865 had directed the county commissioners to perform. The act of 1873 was for the erection of a poorhouse in the township of Piney, in the county of Clarion, with a provision that it might be lawful for any township or borough in the said county to accept its liabilities and privileges. Nothing, so far as is disclosed by the record, was ever done under this last act; and the admission of the appellees is "that at the date of the passage of the act of June 4, 1879, there had not been erected poorhouse or home for the relief of the destitute, nor were there at that time any controlled or managed, nor had lands been purchased or poorhouse commenced to be built, within the said county of Clarion or said poor district."

The act of June 4, 1879, is entitled "An act to create poor districts, and to authorize purchase of lands and erection of buildings to furnish relief and give employment to the destitute, poor and paupers in this commonwealth." Its first section is "that for the purpose of furnishing relief to the poor, destitute and paupers, giving them employment, and carrying out the provisions of this act, each county of this commonwealth is hereby created a district, to be known as * County Poor District.'" It places the management of the poorhouse in the hands of the county commissioners, instead of the directors of the poor of Clarion county. The commissioners cannot purchase real estate and erect buildings until authorized to do so by a popular vote, but by the acts of 1865 and 1866 no such popular approval was required. The conveyance and title for the real estate to be acquired for the use of the county poor district are to be made and taken in the name and for the use of the poor district. By the local acts, the money for the purchase of the land and the erection of the buildings, and the expenses of maintaining them, was to be provided for by a county tax, while under the act of 1879 there is to be a taxation for poor purposes; and, to enable the commissioners to carry out the provisions of the act, they are authorized to issue bonds to be payable by the poor district. "The

act of June 4, 1879," as was said in Jenks Township Poor District v. Sheffield Township Poor District, 135 Pa. 400, 19 Atl. 1004, "was intended to establish a general system for the relief and employment of the destitute poor throughout the state. The general plan or purpose of the act is that each county shall be or become a single poor district." Contrasting the provisions of the acts of 1865 and 1866 with those of 1879, it is most manifest that the legislative intent was that those of the latter were intended as a substitute for the former; and in such case, although the later act contains no express words to that effect, it must, on principle, as well as in reason and common sense, operate to repeal the former. Johnston's Estate, 33 Pa. 511; Best v. Baumgardner, 122 Pa. 17, 15 Atl. 691, 1 L. R. A. 356. "The rule of construction on this subject has been stated in Johnston's Estate, 33 Pa. 511, where it is held that (following Harcourt v. Fox, 1 Show. 506) an affirmative statute introductive of a new law on the same subject does imply a negative of the former law, if they are repugnant; or, as stated in Dillon on Municipal Corporations (section 87), for which he cites cases in our own and many other states: 'It is a principle of very extensive operation that statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities, but they do so when this appears to have been the purpose of the legislature. If both the general and the special acts can stand, they will be construed accordingly. If one must give way, it will depend upon the supposed intention of the lawmaker, to be collected from the entire course of legislation.'" McCleary v. Allegheny Co., 163 Pa. 578, 30 Atl. 120.

That the legislature intended the act of 1879 to be not only a substitute for prior local acts upon the same subject-matter, but that it should operate as a repeal of them, is most manifest from the twenty-first section, which is: "This act shall not be construed to repeal any local act or acts under which poorhouses or homes for relief of the destitute have been erected or are now managed or controlled, nor repeal any general law under which lands have been purchased or poorhouses have been commenced to be built." So clearly did the legislative mind think it had expressed itself in the first 20 sections as intending to repeal all local acts, and that its intention would be so understood, that it inserted the last and saving clause, where, if the appellants cannot find their exemption from the act, there is none for them. When the legislature declared what local acts alone should be saved from repeal by this substitutionary act, those not within the exception were without it. What was not saved by the act fell under it, and the legislative intent cannot be understood otherwise. On June 4, 1879, no poorhouse and home for the relief of the destitute had

been erected or was managed or controlled under any local act in Clarion county, nor had lands been purchased or poorhouses commenced to be built; and the county is not within the saving clause of the act. "Expressio unius est exclusio alterius." "The exception of a particular thing from general words proves that, in the opinion of the lawgiver, the thing excepted would be within the general clause, had the exception not been made." Marshall, C. J., in Brown v. Maryland, 15 Wheat. 419, 438, 6 L. Ed. 678.

Whether the acts of May 8, 1876 (P. L. 149), March 24, 1877 (P. L. 40), and May 18, 1878 (P. L. 63), repealed the local acts of 1865, 1866, and 1873, we need not decide, in view of what we have said as to the effect of the act of 1879. Its constitutionality does not seem to be questioned by the appellees; and, though referred to in a passing way by counsel for the appellants, we need not consider it here.

The order of the court below, dismissing the petition of the appellants, is reversed, and the record remitted, with direction that a writ of peremptory mandamus issue, as prayed for in the petition; the costs below and on this appeal to be paid by the appellees.

2. Where a deputy surveyor entered into the book which he was directed to keep under the act of 1785 a warrant, as well as a plot of the survey made by him under the warrant, but made no return of the survey, and another deputy surveyor returned the survey more than 50 years thereafter, after having examined it on the ground, and found it to be correct, the title remained good in the original warrantee or his successors, where the rights of no third parties have intervened.

3. As prior to Act March 14, 1846, no law required that patents or deeds from the commonwealth should be acknowledged before any officer, to entitle them to record, a deed by the commonwealth for land owned by it, executed in the name of the commonwealth, and under its great seal, before that date, could be recorded without acknowledgment.

Appeal from court of common pleas, Cambria county; Barker, Judge.

Action by John Reilly against the Mountain Coal Company, in ejectment. Judgment for defendant, and plaintiff appeals. Reversed.

The court refused to admit in evidence a deed in the name of the commonwealth, under its great seal, to Dorothea Brien, recorded in 1844, in Cambria county, but not acknowledged.

Plaintiff presented these points:

"(1) As against the alleged title of the defendant, which had its inception by warrant dated March 19, 1889, on which patent was issued on August 18, 1899, the sale to Brien & Coleman of March 11, 1808; the power of attorney from Dorothea Brien to Abraham Morrison, dated August 8, 1845, and recorded June 26, 1847; the deed of Dorothea Brien, by her attorney in fact, Abraham Morrison, to Henry McKenzie, dated December 31, 1849. and recorded May 24, 1889, with the recital therein of conveyance by 'secretary of commonwealth of Pennsylvania, by deed dated January 4, 1843, to Dorothea Brien, in fee'; the last will and testament of Henry McKenzie, dated February 23, 1850; the petition of the executor of the last will and testament of Henry McKenzie, deceased, to sell the land claimed by the plaintiff in this action, with the order of the court, under date of September 13, 1853; the sale of the land as confirmed by the court on December 5, 1853; the deed from Sylvester McKenzie, executor, to Bernard McColgan, dated December 22, 1853. and recorded November 20, 1854, with the recitals therein; the deed of Bernard McColgan to John Reilly, dated March 21, 1871, and recorded April 22, 1889, for the land claimed in this case by the plaintiff, with a recital therein as follows: 'Being the same tract of land, inter alia, which the secretary of the commonwealth of Pennsylvania, by deed dated January 4, 1843, and recorded in recorder's office of Cambria county, in Record Book, vol. 7, page 357, etc., conveyed to Dorothea Brien, and Abraham Morrison, attorney in fact of Dorothea Brien, by deed dated December 3, 1849, conveyed to Henry McKenzie, and Sylvester McKenzie, executor of the last will and testament of Henry McKenzie, by deed dated December 22, 1853, and recorded in recorder's office of Cambria county, in Record Book, vol. 13, page 201, sold and conveyed, by virtue of an order of the orphans' court of Cambria county, to Bernard McColgan, party hereto'; the deed of F. H. Barker, treasurer of Cambria county, to S. W. Davis, dated June 8, 1896, recorded July 9, 1898: 'All that certain tract of land held in the name of John Reilly, in Summerhill township, Cambria county, containing four hundred and thirty-nine acres'; deed of assignment of S. W. Davis and Sarah J. Davis, his wife, to John Reilly, dated July 8, 1898, and recorded July 9, 1898; assessment of the land claimed by the plaintiff to John Reilly from the year 1880 continuously to this date,-the jury may find a good title vested in John Reilly; and if the jury find in addition thereto, from the evidence, that the location contended for by the plaintiff under the warrant and survey of John Nicholson is the true location of the land claimed by the plaintiff, the jury may find a verdict in favor of the plaintiff." Not answered.