Duff v. Wilson
(Allegheny County District Court: No. 98, October and November Term 1872; Clarion County No. 53, October and November Term, 1870)

October 5, 1871, Argued, October 16, 1871, Decided

November 19, 1872, Argued, January 6, 1873, Decided

Originally heard in the District Court of Allegheny County.

This was an action of assumpsit, brought to April Term 1864, by Samuel Duff against Samuel Wilson.  The declaration averred that the plaintiff had leased certain property to one Smathers, that the defendant became bound for the covenants in the lease, and that the tenant had failed to pay the rent.

On the trial, February 15th 1870, the plaintiff gave in evidence articles of agreement, dated September 10th 1859, between himself and Philip Smathers, by which he agreed to lease to Smathers for five years the undivided half of certain tracts of land in Clarion county, being the same which had been sold by Smathers to the plaintiff on the 5th of September 1857, with privileges specified in the agreement: -- the consideration being the delivery by Smethers to the plaintiff of five pairs of flat-boats, two in each year from 1860 to 1864 inclusive, with other stipulations unimportant to the understanding of the case.

Attached to the agreement was the undertaking of the defendant as follows: --

"September 10th 1859.
"I hereby become bound to Samuel Duff for the faithful performance of the covenants and agreements contained in the foregoing agreement on the part of Philip Smathers in case he fails to perform the same.
Samuel Wilson."

Judgment reversed, and venire facias de novo awarded.

Originally heard in the Court of Common Pleas of Warren County.

This was an action of assumpsit, brought January 24th 1871, by Andy Daum to the use of C. L. Douglass, against the borough of Warren.

The claim of the plaintiff was for the bounty of $300, offered by the borough of Warren for veterans enlisting in the United States service in the war of the rebellion, and credited to that borough.

The cause was tried December 12th 1871.

The plaintiff gave in evidence a resolution of the borough council, passed February 11th 1864, to levy a tax sufficient to pay "a bounty not exceeding $300" to each person who should enlist to the credit of the borough of Warren."

It appears by the muster-roll that when Daum was mustered into service on the 29th February 1864, at Martinsburg, Va., he declared his residence to be "Warren, Warren county, Pennsylvania."  There is no evidence that he, at the time of his re-enlistment, said or did anything indicating an intention to enlist to help fill the quota of the defendant, or to be credited thereto.  The evidence is that he first gave notice of any such claim a short time before the commencement of this suit, which was in January, 1871.  It is true, the second section of the Act of May 1st 1866, Pamph. L. 114, provides that "the place of residence named in the re-enlistment and muster-in rolls, shall, in the absence of other evidence, be considered the place of credit."  This act, passed more than two years after his re-enlistment, throws no light upon his actual intention at the time of said re-enlistment.  If the transaction, at the time, lacked the ingredients essentially necessary to create the contract relation, this subsequent Act of
Assembly could not create one which would be obligatory upon the parties.

The verdict was for the plaintiff for $440.15.  Judgment reversed.

Certified copy of muster and descriptive roll of re-enlistments from the Adjutant General's Office at Harrisburg, viz.:

"Muster-in, bounty, advance-pay, and descriptive roll of a detachment of United States veteran volunteers, re-enlisted by Captain Nathaniel Payne, company "K," for the 12th Regiment of Pennsylvania cavalry volunteers, stationed at Martinsburg, Va., re-enlisted pursuant to general order 191, &c.

"Name, Andy Daum, rank, private, born Clarion county, Pennsylvania, age 21 years, occupation farmer, enlisted February 29th 1864, at Martinsburg, Va., by Captain George W. Henrie for three years, * * * mustered into service February 29th 1864, at Martinsburg, Va. * * *

"Date of first muster March 1st 1862. Residence, Warren, Warren county, Pennsylvania, Nineteenth district of Pennsylvania.

"Re-mustered as veteran volunteers under general orders 191, &c."

D. Titus testified: "I was major of the 12th cavalry during the rebellion, and commanded the regiment.  In February 1864, I wrote to Judge Annett, burgess of Warren, asking whether the borough was paying bounties; the judge informed me the borough was paying $300 bounty; there was a strife for volunteers for various localities; I wanted the Warren borough men to be credited to the borough; I encouraged our men to enlist; bounties were to be paid in bonds; the fact that the borough was paying bounties was communicated to all the men; my son also worked with the soldiers for same purpose; I don't recollect talking with Daum particularly; he once lived in Warren; he was in company K; the soldiers in that company were mostly from Warren county."

For the defendant, the clerk of the borough council in 1864, testified that he had the whole charge of the enlistment matters of the councils; the evidence of enlistment and re-enlistment was furnished him; he never had any evidence of Daum's enlistment for the benefit of the borough; the quota was filled without him; he was never credited to the borough to the knowledge of witness; no personal application was ever made by Daum; witness had receipts from the provost marshal for all credits for the borough; no credit for a man named Daum.

Originally heard in the Court of Common Pleas of Allegheny County.

This was an action on the case, brought May 26th 1869, by James Watterson against The Allegheny Valley Railroad Company.

The plaintiff, by his declaration, averred that the defendants, in consideration of his granting and conveying to them a right of way for a double railroad track over his land, for the nominal consideration of one dollar, promised him that they would locate on his land a railroad station and depot for freight and passengers, and thereby promote the business at the place, the plaintiff being a forwarder and warehouseman there; that the defendants also promised him that they would remove the blacksmith shop, warehouse and buildings of the plaintiff, and erect the same at other convenient places on his land, and build a stone wall on his land along the line of the railroad, for the safety and preservation of his land and premises.  Plaintiff further averred that, relying on these promises, "he did, for the consideration aforesaid," make to the defendants a grant of the right of way, "expressing in the deed the nominal consideration of one dollar, which was never in fact paid;..."

Judgment reversed, and a venire facias de novo awarded.

Mary A. Watterson, wife of plaintiff, testified:  "Recollect Col. Philips and Mr. McCullough coming to our house about the right of way.  Recollect signing the deed for the depot lot.  They were there three times, I think.  Their first errand was the right of way.  The second time they came they proposed to buy the acre of ground for a freight and passenger depot, and what an advantage it would be to our property -- that it would double it.  Col. Phillips and Mr. McCuilough came the day we signed the deed.  They sent for me to come and sign the paper.  I was not willing to do it unless Col. Phillips would give it 'in writing' all that he intended and promised to do.  Mr. Phillips said the property would be worth double.  I said I could not see it.  I said, how would it be if our living was taken away from us?  We were then getting our living by store and freight.

[The report contains more of her testimony and that of others, but not enough personal detail to warrant including it here.]

Originally heard in the Court of Common Pleas of Forest County.

This was an action of ejectment, brought May 17th 1866, by Samuel Duff against L. C. Wynkoop, James W. Guthrie, Milton Wynkoop and W. S. Wynkoop, for six hundred acres of land, known as the "Nelson Strong" tract.  John Heath was afterwards admitted as a co-defendant.  The case was tried September 27th 1870.

The plaintiff gave in evidence a judgment, Thomas Mellon, for the use of Samuel Duff, against James W. Guthrie and Jacob McFadden, entered in the Court of Common Pleas of Forest county, to December Term 1861; debt, $3953.42.  Scire facias to same term returned "nihil;" alias scire facias to February Term 1862 returned "nihil."  Judgment May 26th 1862, liquidated at $5248.16.  Fi. fa. to September Term 1862; levy on two tracts of real estate -- one of four hundred acres, in Millstone township, in the name of Nelson Strong.  Vend. ex. to December Term 1862; "stayed."  Alias vend. ex. to February Term 1863; "stayed."  Pluries vend. ex. to May Term 1863; sold to Samuel Duff for $375.  Deed, William Fox, sheriff, to Samuel Duff, for four hundred acres, being the Strong tract, dated May 26th 1863, and acknowledged in open court on the same day.

The Mellon judgment had been originally entered in Clarion county and certified to Jefferson county; Forest county was separated from Jefferson for judicial purposes in September 1857, and the judgment was entered in Forest county by a transcript from Jefferson county.  After the above-stated proceedings under it, the Court of Common Pleas of Forest county struck off both the judgment on the scire facias and the original entry in that county on the Jefferson county transcript.

The plaintiff gave evidence of sale for taxes of tract of six hundred and fifty acres, in Millstone township, in the name of Nelson Strong, to Elizabeth Wynkoop.  Deed to her from the treasurer of Forest county, dated October 27th 1862; acknowledged December 23d 1862; assignment, August 13th 1864, endorsed on treasurer's deed, Elizabeth Wynkoop to Samuel Duff; acknowledged the same day.  He also gave in evidence affidavits of J. W. Guthrie to open the Mellon judgment, to show that he claimed a portion of the proceeds of the sheriff's sale.

Judgment reversed, and a venire facias de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County in Equity.

The proceedings in this case were commenced February 12th 1872, by bill filed by Barney Vensel, assignee of Susan Vensel, widow of Jacob Vensel, deceased, against Lewis Colner.

Under various proceedings in the Orphans' Court, the defendant had become the owner of real estate of which Jacob Vensel had died seised: his widow assigned to the plaintiff all her rights as widow in the rents and profits of the land; this bill was brought against the defendant for an account.

On the 8th of February 1853, the court appointed D. B. Hamm, sheriff, trustee to sell the property.

The record does not show any other action with reference to the rule upon heirs, except as is found in the recitals of subsequent proceedings.

An order of sale was issued to Hamm on the 23d of February 1853.

It recited the return of the inquest; that the court "having confirmed the same and none of the representatives having appeared to take" the real estate at the valuation, "the court granted a rule on all the heirs and legal representatives of the said Jacob Vensel, deceased, requiring them to appear at the then next Orphans Court, &c., to accept and refuse the same at the valuation, and to show cause, if any they have, why the said real estate should not be sold.  At which time due proof being made of the service of said rule according to the Act of Assembly, as appears by the return of the sheriff, and none of the heirs appearing to take the said (land), &c., at said valuation, it was considered by the court that they had relinquished their respective rights to take the same, and therefore at the instance of Jane Fink, one of the heirs," &c., the court ordered Hamm to sell.

The sheriff returned to the order of sale: "April 30th 1853, cried the within property and sold the same to John Vensel for $700.

The sale was confirmed May 7th 1853, and on the same day a deed was executed and delivered by the trustee to John Vensel the purchaser.  It recited at large the petition for an inquest; the return of the inquest appraising the land at $1000, the confirmation of the inquisition; the rule upon the heirs and its service; also that none of the heirs appearing to accept or refuse, "it was considered by the court that they had relinquished their respective rights to take the same;" it recited also the order of sale to the
trustee.  No reference was made in the deed to any interest of the widow, nor did the record show that her interest was in any way secured, or that she had notice of the proceedings after the inquisition.

The claim of the plaintiff was for one-third of the rents and profits of all kinds, including the receipts from the oil and coal leases, during the life of the widow of Jacob Vensel.

The defendant's defence, amongst other things was, that under the proceedings in partition, &c., in the Orphans' Court, the widow's dower was fixed by law, and that she was concluded by the inquisition and appraisement and approval of the proceedings by the court and these proceedings could not be inquired into collaterally.

The master reported as his opinion, that the widow was entitled to notice of the rule on heirs in order to divest her interest under the intestate laws, and that although not entitled to take the land at the appraisement, she was a party in interest and should have been named in the petition, decree and notices. He therefore held that the Orphans' Court had no jurisdiction over her interest and the proceedings in partition did not affect that interest.  He stated an account finding that there was due from the defendant to the plaintiff the sum of $9000.69.

The defendant filed exceptions to the master's report.  After argument the court overruled the master's finding and dismissed the bill.  The plaintiff appealed to the Supreme Court and assigned for error, the decree dismissing the bill.

Decree of the Orphans' Court affirmed, with costs to be paid by the appellant, and the appeal dismissed.