: STEWART v. DOUGHERTY. 233 fore it ought to be sold. The Act of 18th of April, 1853, authorizes the Court to order a sale of the land if it shall appear to be for the advantage of those interested therein. Certainly the legislature may regulate and control devises and descents, and limit the effect and operation of last wills by general laws that are not chargeable with the vice of retroaction. But did they intend that a tenant for life, who is in the enjoyment of his estate should have a right to insist on the sale of the interests of the remainderman, merely for his direct or indirect benefit? We see no reason to suppose so, especially in such a case as this. If the devise to Daniel is insufficient for his support, the proper consequence is he must obtain it elsewhere, it may be through the poor laws, but they are not administered in the Orphans' Court. Decree of dismissal affirmed, with costs. In the Supreme Court of Pennsylvania. STEWART v. DOUGHERTY. (Vol. III., p. 84, 1855.) 1. A misrepresentation by a vendor, previous to public sale of real estate, as to the value of woodland upon it, made to a person who has not seen the land, is an available defence in an action against such person for not making good his bid on the property. 2. Defences which are inconsistent with each other may be submitted to the jury, with instructions that if either is sustained plaintiff cannot recover. ERROR to Common Pleas of Dauphin County. The plaintiffs in error and plaintiffs below were the executors of John Stewart. The action was assumpsit to recover the difference between the amount bid by the defendant, Dougherty, on a tract of land knocked down to him at auction by the executors, and the amount which the land afterwards brought on a resale. The defendant gave some evidence to show that he was employed to bid up the property, and that he knew nothing about its value, except from the representations of the plaintiffs, which were false. The following errors were assigned among others after verdict for defendant: The Court erred in these parts of their charge to the jury, following, to wit: "The defendant rests his defence on two grounds. 1. That he was employed by plaintiffs to bid on the land. 2. That plaintiffs misrepresented the quantity of timber land," &c. "If the defendant was employed by the plaintiffs or either of them, as their agent to bid on the property, the purchase would, in law, be made for the principals, and they could not oblige the defendant to pay either the amount or any loss sustained on the resale." "This branch of the case mainly rests on the evidence of Mrs. Clark and Dennis Dougherty." "The deposition of the former has been read several times in your hearing, and from it you are asked to infer that both Mr. Stewart and Mr. Dougherty, understood, that the latter was not a real bidder." "You must judge from all this, and some other parts, to which we will call your attention, whether the defendant understood that he was really bidding, or whether there had been a previous understanding between him and James Stewart, that he (Dougherty) was to bid, for the mere purpose of raising the price of the property, and was not to be bound by his offer." "You are the sole judges of this part of the case." The case was argued by McCormick & Kunkle for defendant in error. The opinion of the Court was delivered by LOWRIE, J.-The defendant purchased land at a public sale and he refused to complete it, and this is an action for the loss on a resale. The defence is twofold. 1. That the defendant was not a real bidder at the sale, but only a puffer at the plaintiff's request. 2. That he was misled by exaggerated representations of the plaintiff regarding the quantity of timber on the land, and the verdict sustains the defence as matter of fact; and it seems very clear to us that there was evidence enough to entitle the defendant to have the question submitted to the jury. All the evidence offered and admitted tended to prove the de fences relied on, or some part of them, and we see no error in the admission of any of it. Taking up the charge of the Court in patches, we might possibly suppose that we discover errors, but no work can stand such criticism. Taking it altogether and as a whole, we can find no fault in it. True enough, the defences were incompatible, but the plaintiff can hardly be allowed to make this objection. If defendant was a mere puffer, he was not misled by the representations, and vice versa. We cannot exclude either of these defences until the plaintiff admits one of them, or we are otherwise shown which is falsely pleaded. Judgment affirmed, and record remitted. Cook v. Grant, 16 S. & R. 198; Fisher v. Worrall, 5 W. & S. 478; Pennock v. Tilford, 5 Harris 456. In the Supreme Court of Pennsylvania. MEIXELL'S APPEAL. (Vol. III., p. 84, 1855.) Where a minor of very tender age is intrusted to the care of his mother by his legal guardian, it is fair to presume that she was entitled to compensation for his maintenance, and the Court will not reverse the allowance by an auditor of a credit for a payment made to her, for want of clear proof of her claim after the lapse of many years. APPEAL from Orphans' Court of Lancaster County. In the guardianship account of the appellee, he claimed credit for the payment of the whole amount received by him, being about $200, to the step-father and mother of the ward, with whom he lived, being of very tender age. The mother and stepfather, who were in poor circumstances, received the sum and executed a release to the guardian. On the back of the release was an account claiming $200 for the board and maintenance of the child. There was very little evidence of the claim of the mother-nothing but the fact that the child lived with her. The case was argued by Rea Frazer, for appellant, and by Franklin & Swar for the appellee. The opinion of the Court was delivered by LOWRIE, J.-Henry Meixell was near sixteen years of age when he instituted this proceeding, claiming an account from David Brandt, who had, as his guardian, received about $180 for him, as his share of his deceased father's estate, when he, Henry, was under three years old. He was in his second year when he became an orphan. The defence of the guardian is that he paid the money to his ward's mother and step-father for his maintenance, when he was in his seventh year. The auditor of the Court below has found this fact in favor of the guardian, and the Court, on a careful examination, has confirmed the auditor's report; and the document which proves the payment, when taken in connection with its accompanying account, shows very plainly the correctness of the decision. Even if a stranger to an instrument could be allowed to rely upon it as an estoppel, he could not apply the principle here so as to exclude the account alluded to, showing the claim of Henry's mother and step-father for his maintenance; for it is not at all inconsistent with the contents of the instrument, but fully explains why the receipt, release and indemnity which it contains were given. It shows very plainly that the guardian thought that the mother and step-father were entitled to the whole of the money for five years' maintenance of Henry, and that therefore he paid it to them. The auditor and the Court were right in not requiring much evidence to prove that they had earned the money. The deficiencies of the formal proof are abundantly supplied by the ordinary and natural presumptions that accompany such a transaction, especially when it appears that the mother had the custody of the child. Decree affirmed at the cost of the appellant, and the record remanded to the Court below. Contra, Cummings v. Cummings, 8 Watts 366. ་ In the District Court of Allegheny County. BURRELL ET AL. v. LITTLE. (Vol. III., p. 85, 1855.) 1. Deed to A. B. and his children, their heirs and assigns, makes the children in esse tenants in common with their father in fee, and does not create an estate tail. 2. Children not in esse at the date of such deed, cannot claim under it. 3. Ejectment brought within the time allowed by the statute of limitations, and non-suit taken will not prevent the running of the statute. In the District Court of Allegheny County. This was an action of ejectment in which the plaintiffs claimed title to three undivided sevenths of a tract of sixty-two acres lying in Ohio township. The deed under which plaintiffs claimed title, was executed by Thomas Hoey on the 7th day of April, 1828, and contained the following clauses: After reciting divers good causes and a consideration of two thousand dollars, the grantor "sells, conveys and releases" to John Hoey and his children the tract of land in controversy, "to have and to hold the same to John Hoey and his children and their assignees forever," and in a subsequent clause, "to have and to hold, &c., unto the said John Hoey and his children, their heirs and assigns forever." The defendant claimed under a deed from John Hoey, executed according to the provisions of the statute barring entails. If the estate was an entailed estate as defendant contended, the plaintiffs had no title, it having been duly divested by the deed of John Hoey. The plaintiffs contended that the children of John Hoey had an interest in fee vested in them by the deed of Thomas Hoey, as tenants in common with John; that Ann Hoey, although born after the execution of the deed, had an interest vested in her at the time of her birth, she being one of the children of John Hoey, and that Sophia Green, whose title would otherwise be barred by the Statute of Limitations, had by bringing an action for the recovery of the land in 1842, before the bar of the statute was consummated, prevented the running of the statute, and that the circumstance of her having voluntarily entered a non pros. in that action, would not prejudice her claim. |