Central Bank v. Earley

Mr. Justice Clark delivered the opinion of the Court, This action of partition wa.s brought in the Common Pleas of Elk county, by C. R. Earley, against W. B. Brickell and P. Y. Hite to recover, in severalty, one third of certain lands situate in said county, the title to which at the institution of the suit was held by the parties in common. The Central Bank of Pittsburgh having afterwards acquired an interest in the property by purchase, was admitted to defend, and the plea of non tenent insimul was entered. The verdict of the jury was for the plaintiff, the meaning and.effect of which is that the parties hold together and in common, as set forth in the declaration, and that the plaintiff is entitled accordingly. The verdict was taken, however, subject to the opinion of the Court on the question of law reserved, whether the plaintiff is entitled to have the undivided one third part of the lands set apart to him in severalty, or one undivided ninth part only. The facts out of which this question of law is supposed to arise are not stated, and the proper determination of it depends, we think, wholly upon the facts. The contention of the defendant in error is that the original purchase of these [481] lands by Earley was as a trustee for Bricked,.Hite, Baldwin and himself; that Baldwin’s interest was subsequently purchased for the joint benefit of the others; that the unpaid purchase money secured by the mortgage was, as between themselves, in fact, a joint indebtedness of the four purchasers, and afterwards of the remaining three; and that the $25,608.21 paid by Earley on 20th July, 1874, was his own money. Upon this assumption of the facts it is argued that Bricked, Hite and Earley were, inter sese, primary debtors for their own third of the purchase money only, and sureties for the other two thirds respectively; that the payment made by Early of ins own money would, in equity, be applied to his own proper debt, rather than to the debt for which he was held as surety; and, as the record of the release and of the proceedings, under which the marshal’s sale was effected, gave full notice, the release would operate as a discharge of the undivided third interest in the land, which at the time he himself owned even as against the purchaser at that sale. On the other hand, it is contended by the plaintiffs in error, that Earley’s original purchase was on his own account, and in his own interest; that the mortgage was given for his indebtedness ; that the conveyances to Brickell and Hite are absolute in form, contain no condition or provision imposing any share of this burden upon them ; that the release in question was therefore just such a discharge as in the law Earley was bound to provide, for the benefit of his grantees; and as there was no specific application of the money at the time to any particular third interest in the property, Earley has no equity which would now enable him to apply the mpney specifically in his own relief. The only bill of exceptions in this ease is to the ruling of the Court on the reserved question, and that it is plain does not bring up the testimony taken at the trial. We cannot draw conclusions of fact from the evidence, for the reason that the evidence is not before us. Every reservation of a question must, for this reason, place distinctly upon the record not only what the point is, which is reserved, but the state of facts out of which it arises; this is essentially necessary to enable the parties to except to it, and to have it reviewed: Ferguson v. Wright, 11 P. F. S., 258; without this a judgment non obstante veredicto cannot be entered. The facts must be admitted of record by the parties, or found by the jury : Clark v. Wilder, 25 Pa. St., 314; Ferguson v. Wright, supra. When they are stated by the Court as part of the record, and no exceptions taken, it will be presumed that the parties have so agreed, and that the statement is true: Insurance Co. v. Insurance Co., 71 Pa. St., 31. [482] The rule is well stated in Miller v. Hershey, 9 P. F. S., 64, as follows: “A question of law cannot arise in a judicial sense without foots. The facts out of which the question springs must be seen in the record proper, or in the super-added statute record furnished by a bill of exceptions. This is quite as true in the case of reserved questions of law as in other cases, and has been stated in Irwin v. Wickersham, and Wilson v. Steamboat Tuscarora, 1 Casey, 316 and 317, and in Winchester v. Bennet, 4 P. F. S., 510. There are but three modes in which facts arising upon the evidence can find their way into the record — by the finding of a jury, which is a special verdict — by the agreement of the parties, called a case stated — and by the certificate of the Court, contained in a bill of exceptions. It is the last mode which is directed by the statute in the case of reserved points. In the case at bar the question as to the measure of the plaintiff’s recovery is presented, as it were, upon the facts proved or upon the whole case, and this it has been repeatedly said is not good: Roberts v. Hopkins, 11 S. & R., 202; Clark v. Wilder, supra; Irwin v. Wickersham, Id., 316; Wilson v. Tuscarora, Id., 317. The Court gave the jury binding instructions to find for the plaintiff, which, as we have said, under the pleadings was equivalent to a finding that one third should be set apart' to the plaintiff in severalty; to this there was no exception, and as there is nothing before us to show that judgment rendered by the Court on the point reserved was wrong, the presumption is ¡that it was right: Leach v. Ansbacher, 28 Leg. Int., 277; Miller v. Hershey, 59 Pa. St., 64. The judgment is affirmed.