
    [Philadelphia,
    January 4, 1836.]
    REIGART v. EHLER.
    IN ERROR.
    One bequeathed a certain sum. of money to his grandaughter A.-, as her absolute property, and declared that it was not to be for the benefit of her husband or father, &c., and he appointed his son B. executor of his will. In 1829, B., by indenture, conveyed to C. (the father of A.) a certain house and lot, habendum, to C., his heirs and assigns, in trust, nevertheless, for the sole use, benefit and behoof of A. and her heirs. It was alleged that tills conveyance was made in satisfaction of the legacy; but A. was not a party to it. In 1830, by indenture between B. of the first part, and A. and J. S. her husband of the second part, and O. of tlie third part, reciting the previous "conveyance, and that it was made without the privity or consent of J. S. or A. his wife, B., in consideration of the said legacy, conveyed the said premises to O. in trust for the use of J. S. and A. his wife, &c. In assumpsit for the use and occupation of the premises, brought by C. against a tenant thereof, it was held, that the deed of 1829, with its recitals, was admissible in evidence against the plaintiff, and that the deed of 1829 being invalidated and annulled by that of 1830, the plaintiff was not entitled to recover,
    . This was a writ of error to the District Court for the' City and County of Philadelphia.
    In that court, Philip Reigart, trustee of Elizabeth L. Stevenson, brought an action of assumpsit against John Ehler, for the use and occupation of a house in the city of Lancaster. At the trial, the action was marked to the use of the said Elizabeth L. Stevenson. A verdict ánd judgment having been rendered for the defendant in the court below, the case came before this court, upon exceptions taken to evidence, and to the charge of the court.
    The material facts were as follows :
    Elizabeth Stevenson, formerly Elizabeth Reigart, was dhe wife of Josias Stevenson, junior, and one of the grand-daughters of Dr. Albert Dufresne, of the City of Lancaster, deceased. By his last will, dated the 8th of December, 1820, and proved the 13th of August, 1823, Dr. Dufresne bequeathed to his two grand-daughters, Elizabeth Reigart and Maria Reigart, a legacy of nine thousand dollars each, as their absolute property — and not either to their respective husbands, or to their fathers, or their step brothers nr step sisters. In case they died without having children, and if either of them died without leaving any child or children, the whole was to. go to the survivor; but if both died without leaving any child or children, then to the testator’s son. He then directed the money to be placed out at interest and equally divided on their attaining twenty-one, or at the time of their marriage, in case of marriage after attaining the said age. Another clause of the will provided, that if either of them died under twenty-one, unmarried, and without having any child or children, the whole should go to the survivor as her absolute property: but if both died under twenty;one, unmarried and without ha vingany child or children, then he bequeathed the whole to his son. After bequeathing to them in the same manner one half of the proceeds of his effects in Europe, he devised the residue of his personal, and his real estate, charged with the two legacies above mentioned, to his son, Samuel Dufresne, and appointed him and two others executors. On the 22d of July, 1829, an indenture was executed between Samuel Dufresne of the one part, and Philip Reigart of the other part, by which Samuel Dufresne, in consideration of nine thousand dollars in hand, paid by Elizabeth L. Stevenson, and of four dollars paid by P. Reigart, conveyed the premises for the rent of which this suit was brought, and other real estate in Lancaster, to Philip Reigart, his heirs and assigns, “tohave and to hold to the said Philip Reigart, his heirs and assigns, in trust, nevertheless, for the sole use, benefit and behoof of the said Elizabeth L. Stevenson, and her heirs.” This deed was acknowledged by Samuel Dufresne, and recorded the same day. It was further stated on the trial by the plaintiff, who produced this deed, that it was in payment and satisfaction, fro tanto, of the legacy of nine thousand'dollars, and was considered so far a compliance with the will. The plaintiff then called a witness who testified, that the defendant lived on the property first described in the deed : that the witness lived near him in one of the other buildings mentioned in the deed, from 1825 or 1826, until the first of January, 1832. That the defendant resided on the property from the first of April, 1830, and was still in it. ' He was to pay two hundred and eighty dollars per annum, in quarterly payments. On his cross examination, he stated that the defendant paid all bis rent to George B. Porter, Esq., to the first of April, 1832. That the witness paid rent to George B. Porter, up to the same date. lie did not know of any written lease, nor did he know of whom defendant rented. Being re-examined, he testified he paid his rent to Mrs. Stevenson. She and Mr. Stoever called on him and he paid the rent to them. He got an indemnity from Mr. Stoever. Josiah Stevenson was dea-d, he heard of his death in February, 1832. He did not know of defendant paying all his rent to Mr. Porter. He only knew that in March, 1832, he paid seventy dollars in full to April, 1832. He saw him pay it, and saw Porter give him a receipt.
    The defendant then offered in evidence, an indenture dated the 28th of September, 1830, between Samuel Dufresne of the first part, Josias Stevenson, Jr. and Elizabeth I,, of the second part, and George B. Porter of the third part. To this the plaintiff’ objected, contending that the deed was not evidence, nor was the recital of certain facts therein stated admissible. But the court admitted it; and exception was taken.
    This deed recited the bequest to the grand daughters, with the limitation over to the survivor, and the death of Maria in her minq.rity and without issue, whereby the whole became vested in Elizabeth L. Stevenson, and became payable to Josias Stevenson, Jr. pnd the arrival of Elizabeth at twenty-one. That since the said Elizabeth attained twenty-one, a release had been executed by Josias and Elizabeth for the legacies, which was forwarded to Samuel Dufresne, with intent to be delivered to the said Samuel and others, executors, on payment of the legacies, or when a proper arrangement for the same should be made; that Samuel Dufresne and Philip Reigart, on the representations of Philip Reigart, that he was fully authorized by Josias Stevenson and wife, undertook to appropriate and apply certain real estate (the premises referred to in this case,) owned by Samuel Dufresne, at the price of nine thousand dollars, in part payment of the legacies, which it was no,w ascertained was without the knowledge, consent, or approbation of J. S. and wife or either P.f them; and that Dufresne executed and Reigart took upon himself to accept the deed of the twenty-second of July, 1829 — which defed o.f conveyance was null and void by reason of the same having been executed, and the arrangement preparatory thereto made, without the consent, knowledge, or approbation of the said Josias Stevenson and wife, or either of them. It then conveyed the premises in consideration of nine thousand dollars theretofore paid and allowed to him by Josias Stevenson and wife in the settlement and payment of the legacies, and one dollar paid to Samuel Dufresne, to George B. Porter, his heirs and assigns, in trust for the only use, benefit and behoof of the said Josias Stevenson, Jr. and Elizabeth L. his wife, during their joint lives, add at and after the death of either of them» then in trust to and for the use, benefit and behoof of the survivor of the said Josias and Elizabeth L. his wife, and the heirs and assigns of such survivor forever — that is to say, in case the said Josias Stevenson, Jr., should survive his wife, then in trust and for the only proper use, benefit, and behoof of the said Josias Stevenson, Jr., bis heirs and assigns forever; and in case the sajd Elizabeth L. should survive her husband, the said Josias Stevenson, Jr., then in trust to and for the only proper use, benefit and behoof of the said Elizabeth L., her heirs and assigns forever; and upon this further trust and confidence, that at the desire and request and with the consent and approbation of the said Josias Stevenson, Jr. and wife, at any time or times thereafter during their joint lives, the said trustee and his successor should and might sell, and dispose of the premises, or any part thereof, to the best advantage, and with like consent and approbation invest the proceeds in real estate or stocks, to be conveyed and settled in the same manner. The deed was acknowledged the same day, and recorded on the tenth of February, 1831.
    The Judge in charging the jury, said,
    “ It seems, and so the plaintiff’s counsel opened his case, and so the truth warranted him in doing, that one of the executors of Albert Dufresne’s will (though two of them bad undertaken the office of executor,) made the deed of 22d July, 1829, conveying with other real estate, the premises, for the use and occupation of which this suit was brought, in payment and satisfaction of 9000 dollars,, of the 18,000 dollars bequeathed to Elizabeth L. Stevenson, who survived her sister Maria.
    Whether Mrs. Stevenson would, by consenting to this deed, have been concluded by it, it is unnecessary for us to consider. It must certainly, however, appear, before effect can be given to it, that Samuel Dufresne; the grantor, had authority to make it, and that Philip Reigart, the grantee, had authority to receive it as trustee of his daughter, Mrs. Stevenson. It is clear that the will did not of itself authorize Samuel Dufresne to execute such a deed. And it is equally clear, that Philip Reigart had no authority to bind his daughter to such an arrangement without her consent. No express authority to the father is suggested; and the doctrine that an acceptance is to be presumed where the deed is for the benefit of the party, is wholly inapplicable. As soon as Mrs. Stevenson heard of the transaction, she put her hand to the writing, dated 28th September, 1830, disclaiming the deed of 22d July, 1829, denying the authority of her father, and declaring it a nullity. In point of law, then, I am decidedly of opinion, that for all the purposes of this suit, the deed of 22d July, 1829|, was void and of no effect.
    The instrument of. 28th September, 1830, related to matters beside that which I have mentioned. How far it might, under certain circumstances, have been questioned as to any of those matters, it is not necessary now to decide, but as her declaration on this point, it is sufficient.
    If this were the whole of the case, and it is nearly s.o, I should say the plaintiff could not recover. The authority to bring this suit resting only on that deed, must be pronounced insufficient, when the deed itself is ascertained to be void.
    Another point, however, is made-by the plaintiff’s counsel. Pie contends, that if Mr. Reigart, under the belief that he had the right to let the premises to Mr. Ehler, actually did so,’Mr. Ehler cannot dispute the right to recover the rent. Now, there is no direct proof whatever, on this subject, and Mr. Ehler denies that he ever paid him any rent, or held under him, or recognised him as landlord. So far, then, the position fails. But the plaintiff’s counsel again contehds, that as Mr. Ehler took the house on the 1st of8April, 1830, and the instrument denying Mr. Reigart’s authority was not made till September 28th, 1830, it must be presumed that Mr. Ehler had taken from Mr. Reigart, and he must pay rent, at least up to the 28th September, 1830.
    The la,w, in thq absence of all other proof than what we have had, will raise no such presumption; apd even if it were as argued, Mr. Rqigavt wá§ acting fop Mrs. Stevenson, who, it is agreed on all hands, is the real party in interest. Now, she was at’ liberty to deny her father’s authority, past, present and future, in the matter, and having, done so, and made her own arrangements as to the rents, the father could not maintain this suit on behalf of the daugh-r ter, nor could she use her father’s name in it, in opposition to her own renunciation and disclaimer.”-
    In this court the plontiff assigned for error,
    1. The admission of the deed of 28th September, 1830.
    2. The admission of the recital, as evidence of the facts stated in the deed.
    3. The charge of the coui’t throughout.
    4. The charge of the court in the following particulars, viz.:
    1. Charging that the deed of 22d July,' 1829, was void. '
    2. Charging that the deed of 28th September, 1830, was good. ' -
    3. Charging that there was no presumption from any evidence, that Ehler had assented to his tenancy under the plaintiff. -
    4. Charging and considering as testimony, part of the opening of the plaintiff’s counsel, and notthe whole of it.
    5. In taking all the facts from the jury, and charging them positively to find for the defendant.
    
      
      Mr. Phillips for the plaintiff in error,
    argued in support of these exceptions. He cited 6 Binn. 45, 427. — 2 Binn. 468.
    
      Mr. C. Ingersoll (with whom was Mr. Perkins) for the plaintiff in error, was stopped by the court.
   The opinion of the court wás delivered by

Sergeant, J.

The first question arising on the bill of exceptions to the evidence is, whether the deed oí" the 28th September, 1830, and its recitals, were admissible in evidence. It was offered by the defendant, to show that Mrs. Stevenson, for whose use the conveyance of the 22d July, 1829, w:as taken by her father, had; oh being apprised of its existence, dissented from it, declared it to be null and void, and in conjunction with her husband, settled the pro¿ perty in a different manner. Had Mrs, St'evenson been a third person, wholly unconnected with this suit, the deed of 1830 wohl'd have been evidence for this purpose. It was her solemn, deliberate act, under her hand and seal,, and acknowledged before a magis-. trate, and was the highest evidence, short of a record, of her dissent from the former deed, on which this suit was founded. But in addition to this, Mrs. Stevenson wa$ a party to the present suit.. It was marked to her use on the day'of the trial, and she was entitled to the whole beneficial interest in the rent claimed, even supposing that the deed of 22d July, 1829, conveyed to her no mofe thin án equitable interest. That deed was to her father, his heirs and assigns, to have and to hold to him, his heirs and assigns', ih trust for the sole use, benefit, and behoof of Mrs: .Stevenson, and her heirs. In an ordinary case, such a deed would (’hot jcrteáte á trust in her, but a use executed by the statute, (1 Prest. Estates, 191,) and would, therefore, on its face, have passed to her the whole legal estate in the premises. So that she would be the party legally as well as beneficially interested in this suit; and any act or declaration or recital of hers would be evidence against her. The only ground on which it can be contended that no more than a trust passed to her, is that it is conveyed for her “ sole use, benefit, and behoof,” which means for her separate estate; and in that case, a trust being necessary to support her separate interest, such construction might be given to it. On the construction of similar words, some nice distinctions have been made by the English Courts, (Clancy on Married Women, 267,) and the decisions in Pennsylvania are collected and examined in the opinion of this court delivered by Mr. Justice Kennedy, in the case of Evans v. Knorr, (4 Rawle, 66.) It is not necessary, nor do I mean to express any opinion on this point, because, if Mrs. Stevenson had the equitable interest in the demand in this suit, her declarations and recitals respecting her interest in the matter in controversy, would be evidence for the defendant; and the recitals in question, being contained in an indenture, are to be considered as the words of all who are parties to it. I am theréfore of opinion, there was no error in admitting in evidence the ■ deed of 28th September, 1830, and its recitals.

The next question is, whether the court were right in chargirig the jury that the deed of 22d July, 1829, v/as void, and the déé'd of 28th September, 1830, was good. I do not perceive on what ground it can be pretended, that Mrs. Stevenson can again set up the first deed, and recover upon it, after her solemn declaration in the last deed, that the former was executed without the knowledge, consent, or approbation of herself, and husband, that it was null and void, and after having conveyed the same property to'another trustee, and settled it to other uses and purposes, and when that settlement has been carried into execution by the trustee’s demanding and recovering the rents from the tenants under it, for the benefit of her and her husband. She had the undoubted right and power, if the first deed was made without her knowledge and consent, to annul it at the first opportunity; and on availing herself of this power, and exercising it by a deliberate act, the deed was absolutely null and void ab initio. It was not merely voidable so as to be good for the intervening time: it had no validity from the beginning, the assent of the ostensible parties to it being wanting. The property never passed by it for any purpose whatever; and the settlement of the estate by the deed of 28th September, 1830, was made on the ground, that Mrs. Stevenson remained free and untrammelled, and at liberly to settle the estate as she pleased. Having done so, it is clear, that the deed of 29th July, 1829, never had any legal existence, and that the deed of 1830, was valid and binding. If so, Mr. Porter, the trustee under the deed of 1830, was alone empowered to receive the rents; and though the evidence is not very clear, there is reason to believe, that he, or Mrs. Stevenson, did receive them.

Another exception to the charge is, that the court below stated that there was no presumption from any evidence, that Ehler, the .defendant, had assented to the tenancy under the plaintiff The only facts that could be supposed to justify such a presumption, are the evidence of a witness for the plaintiff, that the defendant had occupied one of the houses from the 1st of April 1830: and that the witness had occupied another of the houses and paid the rent to Mrs. Stevenson. But there was no evidence under whom Ehler rented or held the premises. Pie paid some, if not all his rent, to Mr. Porter, the trustee under the deed of 1830: and the jury must have been altogether at a loss to determine under whom he held. In order to estop a person from denying the title of one claiming rent as his landlord, the allegation that he held under him as tenant ought to be clearly and positively established. It ought not to rest on conjecture. If Ehler really rented from the-plaintiff, or acknowledged his title, the fact is susceptible of proof, and the plaintiff was bound to adduce such proof before he could avail himself of the rule of law that the tenant shall not deny his landlord’s title. No such proof was given, nor any evidence from which the jury could be justified in presuming it. The other errors assigned are without foundation.

Judgment affirmed.  