made between these properties. There is some dispute about the smokehouse, because the one that was erected at that time, which was a brick, seems not to be there any more. I am not clear in reference to the garden house, but I think probably the garden house is claimed to be located as it was, although I am not certain as to that, but refer you to the evidence on the subject if you think it important, or if it becomes important. We come next to the well. Now, if that well has been found, it becomes a monument, and is hard to get away from. You will remember the evidence upon that subject. The well can no longer be seen from the surface of the ground, but that would not be material if you can actually locate it. It is still a monument, although it cannot be seen from the surface, but you must be certain as to its location. I do not remember that there is much dispute in the evidence as regards the location of that well. You heard the testimony given on the part of the plaintiff that he caused a trench to be dug under the additions to his building, which led back until it came to within six or seven feet of the rear end of the main building, and there, by digging under the foundation wall, he discovered what he claims to be and describes to you as a well. The witnesses say that they measured to the center of that well, and found that the center of it is at least twelve inches from the west wall of plaintiff's building. This is corroborated by several witnesses who were in there and examined it. I have no recollection that this testimony is disputed, and, if it be true, then you have the location of that well; then you do know that the pump in that well was the one to which it is said the fence came to the center of. Now, where was the pump located in that well? The well was thirty-two inches in diameter, I do not remember any evidence upon that question save the testimony of one witness, who seems to have heard the conversation between the parties, and to have been present when they were measuring it, and he swears, if my memory serves me right, that the pump stock was put in the center of the well. You can readily find, I think, where the well was. Then if you can find the location of the pump stock from the testimony in this case, you must go by the evidence. Then, it seems to me, that you will have that as a monument by which you can safely be guided in the determination of this question. It will then be for you to determine where that will bring you. Starting at the stable, which is a conceded monument, and then even passing by the other fences, if you find they are not sufficiently fixed as monuments, and bringing the fence up to the center of that well, and then out to Market street, where would that line be located with reference to the plaintiff's building? For if you find that the center of that

well was the line, and that the pump stock was in the center of the well, and the fence ran to the center of the pump stock, you will have the right to make the line in that way. However, on the part of the defendants in this case it is contended that this is not possible, and they have given in evidence facts, not directly in contradiction of it, but other facts from which they argue the unreasonableness of any such position as that the pump stock should have been in the center of that well. You have heard the testimony on the part of the defendants in re gard to this subject, what they claim in reference to it, and what they claim in reference to the other monuments,-the garden house and smokehouse,-and the measurements they made, and it is for you now to determine which is right. I regard as one of the turning points in this case what you shall find in reference to that well; because. when you find monuments upon the ground of such a character that there can be no dispute about them, no question in your mind in reference to them, you may dismiss all surveys, because courses and distances must give way to monuments fixed on the ground. That is true in all cases, but there is much stronger reason for them giving way in a case of this kind, where the line has been fixed unquestionably by the parties. But even where a line is not fixed by the parties, and monuments can be found that have been fixed by previous surveyors, those monuments in the original survey are ordinarily of more account than courses and distances or measurements. You only resort to measurements when you cannot determine the matter any other way. If you find no monuments on the ground by which you can establish a line, then it is perfectly right and proper for you to go to the measurements; but you cannot take measurements to contradict the true line as fixed by the parties. and as evidenced by the monuments on the ground.

"Now, for fear that, if I went further into the facts, I might say something, or repeat some evidence, to the prejudice of one or the other of the parties, and the facts, as

stated, having been so fully and ably argued, I will not comment further on the testimony, because I think you now understand the questions you are to determine. First. The question of possession. If you find under the instructions the court has given you that, under the facts in the case, the defendants had that kind of possession that would warrant the maintaining of this action, then you will determine where the line was located between the lot of plaintiff and the estate of Sebastian Haupt. I do hope, gentlemen of the jury, that you will arrive at some conclusion, because this case is an important one, as you will readily see, although it involves but a few inches of land. It has been tried once, and we hope there will be no mistrial now, but that you agree upon a

verdict one way or the other, as you shall find the facts to be. Your verdict must be rendered according to the evidence, and not according to sympathy. You should know neither party in this case. You are the sworn arbiters between them. Justice is often represented to be blind, and properly so. The hardship of the case has nothing to do with you as sworn jurors. You are to determine where the truth lies, and, haying determined that, you must render your verdict accordingly, no matter whom it hits."

"Points and Answers.

"The parties have submitted certain points which we will now proceed to answer. The following have been submitted on the part of the defendant:

"First. The plaintiff, having shown that at the time of bringing suit he was in possession of nearly or quite all of the land described in the praecipe and amended description of land in this suit, cannot recover, and the verdict should be for the defendants.' Per Curiam: Answer to First Point. We refuse to affirm this point, because it assumes certain propositions of fact which are for you to determine, and not for the court.

"Second. A plaintiff in an ejectment cannot recover in an ejectment land of which he was in possession himself at the time of bringing suit, and since, if the jury believe, from all the evidence in the case, that the plaintiff at the time of the bringing of this suit was in possession of the land sued for, and was enjoying the possession of the same at the time this suit was brought and since, in the same manner as he was at the time the former suit was brought by F. L. Haupt and W. D. Haupt against the plaintiff in this case and tried in this court, then the plaintiff cannot recover, and the verdict must be for the defendants.' Per Curiam: Answer to Second Point. We affirm this point. We have already instructed you fully on the questions involved in it.

""Third. If the jury believe from all the evidence in the case that the defendants were not in possession of the premises described in this case at the time of the service of the writ, then there can be no recovery and the verdict must be for the defendants.' Per Curiam: We affirm this point.

"The plaintiff has submitted the following points, which we will now answer:

"Counsel for the plaintiff respectfully request the court to charge the jury in this cause: First. That the return of the sheriff to the writ of haberi facias possessionem in the case of Fred L. Haupt and W. D. Haupt, Executors, etc., vs. Henry Haupt, to No. 407 of May term, 1884, together with the return of the sheriff to the writ of summons in this case, is prima facie evidence of the possession of the defendants of the land in dispute, and, without evidence of ouster,

is conclusive.' Per Curiam: We affirm this point.

"Second. That if the jury believe from all the evidence in the case that Henry Haupt and Sebastian Haupt agreed upon and erected a division line fence between their lots some time between 1840 and 1846, and acquiesced in such line until 1870, or for a period of twenty-one years, then such line is conclusive as a division line of their lots.' Per Curiam: We affirm this point.

66

"Third. That if the jury believe from all the evidence in the case that Henry Haupt and Sebastian Haupt dug a well in 1849, or prior thereto, the center of which well was placed in the division line between them, then the center of the well, and the old stable, to which, if such division line fence extended, under all the testimony in the cause, if they are found upon the ground to-day, are monuments to be taken in establishing such division line, and must control and govern, and the surveys made from the Bassler corner upon official distances, and the calls for boundary in the partition deed made between them in 1840 must give way to the monuments found upon the ground.' Per Curiam: We so instruct you. If we understand this point, it is substantially what we have already said to you, that the monuments found upon the ground must govern,. and that you are bound to go by them if they can be found.

66

'Fourth. That the verdict and judgment of the jury in the former case between these same parties is persuasive evidence for the defendants, but cannot control if, from all the other evidence in this cause, it is made clear to the jury that the plaintiff is entitled to recover.' Per Curiam: We affirm this point.

"Fifth. That if the jury believe from all the evidence in the cause that the plaintiff is entitled to recover any land west of his western wall of his building, though not the whole strip described in the praecipe on the western side of such wall, the jury should say how many inches in width on Market street, west of such wall, he is entitled to recover, and how many inches in width west of such wall at the southern end of his building he is entitled to recover, and by a line drawn to connect the two outside points describe the western boundary of the strip the plaintiff is entitled to recover.' Per Curiam: We affirm this point, if you should find for the plaintiff a part of the land described in this praecipe, but not all of it. In that case you must state in your verdict just where you do make the line, and you can fix that by stating that you find it so many inches west of the wall of Henry Haupt's building at Market street, and so many inches west of it at the southwest corner, and so on. You can also, if you choose, make a drawing or draft, which you can return with your verdict. If you find the whole of the land

in dispute for the plaintiff, then your verdict will be for the plaintiff generally. If you find no part of it for the plaintiff, then your verdict will be for the defendant generally."

S. P. Wolverton and C. M. Clement, for appellants. Lewis Dewart, George W. Ryon, and James Scarlet, for appellee.

PER CURIAM. In this action of ejectment a verdict was rendered in favor of the plaintiff for the premises described in the amended praecipe and writ; and, for certain alleged errors in the learned judge's instructions to the jury, we are asked to reverse the judgment entered on said verdict.

The first and second specifications allege error in portions of the charge recited therein respectively. An examination and consideration of these excerpts in connection with the evidence submitted to the jury has satisfied us that the instructions complained of are not only correct, but were necessary to assist the jury in making a proper application of the evidence. Neither of the specifications calls for further comment.

The defendants' first point was rightly refused, because it is predicated of assumed facts, neither admitted nor conclusively proved, but merely allegations of fact, which were for the determination of the jury, and not for the court.

In affirming plaintiff's first point the learned judge rightly instructed the jury that the sheriff's return to the writ of haberi facias possessionem, No. 407 of May term, 1884, together with the return of the sheriff to the writ of summons in this case, is prima facie evidence of the defendants' possession of the land in dispute, and, without evidence of ouster, is conclusive evidence thereof. The case appears to have been correctly tried, and there is nothing in the record on which to ground a reversal of the judgment. Judgment affirmed.

(157 Pa. St. 454)

JOHNSON v. WATSON. (Supreme Court of Pennsylvania. Oct. 2, 1893.)

WITNESS-HUSBAND AND WIFE-APPEAL-DiscreTION OF TRIAL COURT.

1. In replevin for household goods, defendant disclaimed title, and averred that it was owned by plaintiff's wife, who was living with defendant, her sister. Plaintiff's replication denied title in his wife, and reaverred title and possession in himself. Held, that plaintiff was not competent as a witness as to the ownership of the property, since the issue was between himself and his wife, and neither is competent to testify "against the other," under Act May 23, 1887, § 5, subd. c.

2. The refusal of the trial court, in the exercise of its discretion, to grant a new trial, asked for on the ground that plaintiff did not have an opportunity to present his case, owing to an unexpected ruling of the trial court, will not be disturbed on appeal.

Appeal from court of common pleas, Lancaster county.

Replevin by J. W. Johnson against Harriet P. Watson. From a judgment in defendant's favor, plaintiff appeals. Affirmed.

B. F. Eshleman and B. F. Davis, for appellant. George M. Kline, H. M. North, and G. C. Kennedy, for appellee.

DEAN, J. The defendant is sister of plain. tiff's wife. All had been occupying a house which belonged to defendant, in Lancaster. On 10th of February, 1888, by legal proceedings, defendant dispossessed plaintiff; but her sister, (his wife,) with three children, continued to live in the house with defendant. At the time plaintiff was dispossessed, his wife claimed all the personal property in the house, and it remained there until the 8th of March following. Then plaintiff issued a writ of replevin, averring all the personal property in the house-bookcases and contents, office furniture, beds, bedding, furniture, knives, forks, spoons, fruit jars, etc. -to be his, and that Harriet P. Watson, defendant, wrongfully took and unjustly detained the same. On this writ the sheriff delivered possession to plaintiff of the bookcases, books, office furniture, safe, and contents; but all the household furniture was claimed by Harriet P. Watson, defendant, and she gave to the sheriff a claim property bond therefor. On April 14, 1888, plaintiff filed his narr., in which he averred property in himself to the goods not delivered under the writ, and that they were wrongfully detained by her sister-in-law, the defendant. To this, defendant entered a plea of non cepit and property on 20th of April, 1888. On November 18th, 1890, the defendant, by leave of court, filed a special plea disclaiming title to the property, and averring it was owned by Susan M. Johnson, wife of plaintiff. To this plea, the next day, plaintiff filed replication, denying title in his wife, and reaverring title and right of possession in him. self, and of that he "put himself upon the country." On November 18th, the same day the special plea was filed, the wife, Susan M. Johnson, died. Afterwards, defendant withdrew the plea of "property." On 28th of November, 1892, the case was called for trial, and a jury sworn in the issue as it stood of record. The plaintiff offered himself as a witness to establish his claim to the property. The court, holding he was not a competent witness against his wife's interest, would not permit him to testify. Plaintiff offered no other evidence, and there was a verdict and judgment for the defendant, and then this appeal.

The appellant assigns five errors, but they are essentially the same,-the rejection of plaintiff as a witness. As the issue stood upon the record when the jury was sworn and on the trial, it was between plaintiff and his wife. Harriet P. Watson, the sister,

in whose house was the property, gave bond to relieve the sheriff from the duty of delivery, but this did not bar the real owner from asserting her right against the claimant. She came into court, and pleaded her ownership of record. Plaintiff did not demur, but, by a formal replication, joined issue with the wife, and by the conclusion to his replication demanded a jury trial, as between him, the husband, and her, the wife. The old rule which prevents husband and wife testifying "against each other" is not relaxed by either statute or decision. Rowley v. McHugh, 66 Pa. St. 269; Pleasanton v. Nutt, 115 Pa. St. 268, 8 Atl. Rep. 63; section 5, subd. c, Act May 23, 1887.

The matters complained of by appellant, tending to show, as he alleges, that by reason of an unexpected ruling he was left without opportunity to present his case, were all for the court below on the motion for new trial. The learned judge who presided at the trial did not consider the reasons sufficient to warrant the setting aside of the verdict. It was a matter for his sound discretion, with which we ought not to interfere.. The assignments of error are overruled, the judgment is affirmed, and appeal dismissed, at costs of appellant.

(157 Pa. St. 457)

In re CAKE'S ESTATE.

(Supreme Court of Pennsylvania. Oct. 2,

1893.)

EXECUTORS AND ADMINISTRATORS-DEALING WITH ESTATE-DECEDENT'S DEBTS-LIEN ON LAND.

1. The wife of an administrator, who obtains the assignment of a judgment against the estate on payment of a sum less than its face value, cannot recover from the estate a greater amount than she paid for the judgment, since the rule against a trustee's profiting at the expense of the beneficiaries of the trust applies likewise to the trustee's wife.

2. The rule prohibiting an executor or administrator from making a profit by buying up claims against the estate at less than their face value, and obtaining allowance in full out of the estate, applies to proceeds arising from the sale of decedent's real estate, though the administrator is not vested with the title thereto, since he is authorized by Act 1834 (P. L. 76) to sell it to pay debts of the deceased when the personal estate is insufficient.

3. Act Feb. 24, 1834, § 24, (P. L. 77,) limits to five years from decedent's death the time during which his simple contract debts shall be a lien on his real estate, and requires actions for the recovery thereof to be instituted within that time, unless they shall not fall due within the five years, in which case the lien is extended for five years from the maturity of the debt, if the claim is filed in the office of the prothonotary. Held, that a guaranty of deceased to pay a mortgage executed by a third person did not continue a lien on his land after the expiration of five years from his death, where no suit was brought, or a copy of the guaranty filed in the prothonotary's office, within that time.

4. The fact that the heirs of a mortgagor had knowledge of the existence of the mortgage, and of the issuance of writs of scire facias thereon, does not make the mortgage debt a lien on land not embraced in the mort

gage, where no action was brought thereon, or a copy of the bond or mortgage filed in the prothonotary's office, within five years from the mortgagor's death.

Appeal from orphans' court, Northumberland county; Edwin Albright, Judge.

On final distribution of the estate of Joseph W. Cake, deceased. The auditor sustained exceptions to the account of J. Adam Cake, administrator, and from a definitive decree of the orphans' court, confirming the auditor's report, the administrator appeals. Affirmed.

The opinion of the court below (Albright, P. J.) is as follows:

"Joseph W. Cake died on June 1, 1879, intestate, leaving no widow, but issue, four children, J. Adam and Joseph W. Cake, and Alice E. Lowry and Amy B. Adams. Letters of administration were issued to said J. Adam Cake on June 7, 1879. Upon June 30, 1890, said administrator, upon his petition for that purpose, obtained an order of the orphans' court of this county for the sale of certain real estate of which the said intestate died seised. Sale thereof was made, which sale was confirmed on September 9, 1890. The proceeds amounted to $30,462. An account embracing said proceeds, and no other effects or money, was filed on January 31, 1891. In the account the administrator, after taking credit for the expenses of sale and settlement, credited himself with the entire fund, as applied to several claims of his own. To such appropriation the other heirs excepted. An auditor was appointed. The matter considered by the auditor, and again by the court upon exceptions to his report, were said claims of J. Adam Cake and one made by S. P. Wolverton, Esq. The material facts-about which there was no serious dispute-are set forth with particularity in the exhaustive report of the learned auditor. The auditor rejected all of said demands upon the fund except $2,000, with interest, upon a judgment recovered by the Government National Bank, and held by said J. Adam, and which called for a much larger sum. The auditor distributed the entire fund remaining after deduction of the expenses of sale, accounting, and auditing, to the said four children of the intestate.

"Claim of S. P. Wolverton, Esq.: The intestate made his bond and mortgage, (the mortgage did not include the lands held by the administrator,) of date of July 12, 1877, to J. Adam Cake, for the payment of $8,000 on July 12, 1882, and which the latter assigned to Mr. Wolverton on April 20, 1882. On a sheriff's sale of the mortgaged lands, $5,385.49 was made, and is credited by claimant as of December 1, 1886. The unpaid part of the debt created by the bond, $6,977.17, with interest, is now demanded. rejection is the error alleged by the sixth exception.

Its

"The claims of J. Adam are these: (1) The sum of $10,535.65, (credited in the account,) which is based on and explained by

Its

the following acknowledgment and covenant of the intestate: 'Whereas, my son J. Adam Cake made a bond and mortgage to Jacob Huntzinger, of Pottsville, for $10,000, and borrowed the money for me; mortgage dated the 4th of October, A. D. 1874; the mortgage was given as security for the note of J. Adam Cake, indorsed by J. W. Cake and H. L. Cake, which is to be renewed from time to time for five years from October, 1874: Now, this is to certify that as the money was borrowed for me, and that I received it, and used in my business, I promise to pay it at the end of the five years above mentioned. Witness my hand and seal, and keep the said J. Adam Cake harmless. December 25, 1876. J. W. Cake. [Seal.]' That J. Adam Cake paid the debt above referred to, amounting to $7,116.93, (the last part thereof on April 20, 1882,) was found by the auditor, and there is now no dispute concerning the fact of payment. rejection is complained of by the first and second exceptions to the auditor's report. (2) The sum of $10,902.35 (credited in part in the account) upon a bond and mortgage made by J. W. Cake, the decedent, to J. Adam Cake, on July 10, 1877, for the payment of $14,000 on July 10, 1882. The mortgaged premises were sold by the sheriff, and the proceeds ($12,105.68) credited 'as of October 27, 1884. Credit was taken in the account for $5,000. The whole of $10,902.35 was claimed out of the fund before the auditor. Its disallowance is the subject of the third and fourth exceptions. (3) $13,055.93, for which credit was taken in the account, and which is alleged to be owing on a bond and mortgage made by J. W. Cake to J. Adam Cake on July 10, 1877, for the payment of $8,000 on July 10, 1882. The lands included in this mortgage were sold under this or a prior mortgage, and $1,792.90 credited as of September 3, 1883. The seventh exception, in general terms, alleges error in not allowing this demand. (4) $7,625.16, the amount claimed to be due on said judgment of the Government National Bank, (fifth exception.) The auditor found that the said bank brought suit against said administrator on June 8, 1883; that a verdict therein was recovered by plaintiff on May 22d, 1886, and judgment entered thereon on August 6, 1887, for $6,506.33; that on September 19, 1888, the judgment was assigned to Minnie Cake, wife of the administrator; that on September 26, 1888, a scire facias on said judgment was issued against the said heirs, (it was served personally on the two sons, and by publication upon the two daughters; the latter appeared by counsel;) that said assignee's name does not appear in the writ, the assignment not having been filed or noted on the docket at the time of issuing the writ; that the consideration for the assignment was $2,000, and that said sum was paid by J. Adam Cake as attorney for his wife, and that the money was her separate

estate; that said wife died, having made a will whereby her husband is made sole legatee and executor. He now claims the whole amount of said judgment.

"The auditor also found that J. Adam Cake-not his wife-acted in the negotiations with the bank and its attorney, which resulted in the agreement to accept $2,000 for the claim, and in the procurement of the assignment and the payment of the $2,000. This is the only conclusion he could reach upon the evidence. As remarked, on the lastmentioned claim the auditor allowed $2,000 and interest on that sum. To that action the heirs have not excepted. The excep tions in the case were filed jointly by J. Adam Cake and Mr. Wolverton, through their attorney. Certain findings as to facts on this point unfavorable to J. Adam Cake, and the disallowance of the whole amount of the judgment, $7,625.16, are averred, among other things, to be error.

"In discussing the legal aspect of this claim the auditor starts with a statement of the principle that if a trustee compounds debts, or buys them in for less than is due on them, he shall not take the benefit himself, but other creditors and legatees shall have advantage of it. Heager's Ex'rs' Appeal, 15 Serg. & R. 66, and Saeger v. Wilson, 4 Watts & S. 501. The auditor is of the opinion that the accountant's wife, if she were living and claiming, could not recover more than she paid, and that her legatee can take no more. He refers, among other cases, to Dundas' Appeal, 64 Pa. St. 325, where it was said, in the course of the opinion, that without doubt a sale by a trus tee to his own wife would be set aside on application of the cestui qui trust, on the ground of her relationship to the trustee. what she paid being refunded to her; that a sale to the wife would be evidence of unfairness quite as much as if the sale were made to the trustee himself, and falls within the spirit of the rule which forbids a purchase by him. The auditor's decision is correct. The rule against a trustee's profiting at the expense of the beneficiaries of the trust would amount to but little, if, by his agency, his wife could make and hold the profit. Next to making money himself, the husband's greatest interest is that his wife shall acquire property. In many cases (this, however, is not one of them) the husband is more inclined to make money for his wife than for himself. In this case the husband purchased the judgment in his wife's name, and the decision is made upon that state of facts; and it is decided that no more than what was paid, and interest, shall be recovered, not because bad faith entered into the transaction, but on the grounds of public policy. See Stewart's Appeal, 110 Pa. St. 410, 6 Atl. Rep. 321. It was held that where an administrator has sold bonds at auction for less than their price, and they had been bid in by her husband, she should