would be a most unreasonable and unfair | Lancaster County, Equity Docket, No. construction of the policy. If it does 6, page 284. mean thirty days from the notice then the plaintiff had thirty days from the middle of October, at least, to pay his assessment, and as he did pay it within thirty days of that time, he was not in default, and the action of the company in declaring the policy suspended was a nullity, the policy continued in force, and the plaintiff is entitled to recover his loss from the company so far as it was covered by the policy. Under the authorities cited, this latter interpretation is the one which must prevail, as it is the only reasonable one, and the one which the parties evidently had in mind when the policy was issued. The rule for a new trial is discharged, and the rule for judgment n. o. v. is discharged. John M. Groff, for plaintiff. Bernard J. Myers, for defendant. February 21, 1919. Opinion by HASSER, J. From the bill, answer and testimony, we find the following facts: 1. The plaintiff is the owner of a tract of land in East Donegal Township containing about 171⁄2 acres. 2. On November 14, 1918, he entered into an agreement, under seal, with Henry S. Rich, whereby he agreed to convey the said land on April 2, 1919, to him, in consideration of the said Henry S. Rich conveying to him, the said M. R. Hoffman, two other tracts of land in the same township then owned by Elmer E. Grove and wife and Amos M. Shenk and wife. 3. In the agreement it was stated that Common Pleas Equity. the agreement was not to be binding or Hoffman v. Rich, et al. Agreement to convey lands-Mutuality of - Construction of words "laying out "-Seal. The plaintiff entered into an agreement to convey to the defendant a certain tract of land in exchange for two other tracts of land belonging to third parties, stipulating that the agreement was not to be binding upon the defendant until he obtained title and possession of the latter two tracts, but possession was to be given forthwith of as much of the former tract as might be required in the laying of a proposed road. Held, that the defendant's contractor should be restrained from excavating for the road on the first tract and the injunction continued until the defendant acquired title to the two latter properties. Unless a contract binds both parties it binds neither and as the above agreement did not bind the defendant until he acquired title to the two properties it was not in force as to the plaintiff until then. Possession forthwith meant forthwith on the agreement becoming binding. The words "laying out" in the agreement meant not merely to plot or survey the proposed road, but to open and grade it. A seal to an agreement imports a consideration. Bill for injunction. Motion to dissolve preliminary injunction. C. P. of obligatory upon Henry S. Rich until he should have obtained from said Elmer E. Grove and wife and Amos M. Shenk and wife full and complete title and possession of the property so purchased from them respectively. 4. Henry S. Rich was acting as agent for the Pennsylvania Railroad Company. at the time the agreement was made, and this was known by M. R. Hoffman, the. plaintiff. 5. The title to the property of Elmer E. Grove, being one of those which Henry S. Rich was to convey to M. R. Hoffman, the plaintiff, has been acquired by Henry S. Rich and placed in the name of the Pennsylvania Railroad Company, for whom he, the said Henry S. Rich, was acting as agent. Title to the property of Amos M. Shenk, which is the other one which he agreed to convey to the plaintiff is ready to be conveyed ment which is a lien on it. The deed as soon as the plaintiff releases a judgis executed, and is now in the possession of Henry S. Rich in escrow. Request has been made of the plaintiff to release the judgment, but he refused to do so until advised by his attorney that he should release it. No reason was or has since been given for this refusal. 66 6. According to the agreement the deeds were to be delivered on April 2, 1919, but it was also stated in it that possession of so much of said tract of 17.419 acres of the Hoffman farm as may be required in the laying out of the aforesaid proposed road shall be given forthwith. 7. William H. Goll, trading as John Goll & Company, has gone upon the premises which the plaintiff has agreed to convey to Henry S. Rich for the Pennsylvania Railroad Company, and with the permission of Henry S. Rich, and is engaged in constructing and opening a public road, in the doing of which he is excavating the land at some places and filling it in at others. 8. At the time of the execution of the agreement Henry S. Rich told the plaintiff that it was their purpose and intention to go upon the premises as soon as the weather opened, for the purpose of opening and constructing the road. CONCLUSIONS OF LAW. It is stipulated in the agreement that Henry S. Rich is to have possession of so much of the land in question as may be required in the laying out of a proposed road, and that such possession should be given forthwith. Forthwith means immediately or directly, and it shows that the parties to the agreement intended that possession of the land was to be given to Henry S. Rich for the purpose of laying out a road upon and over it before the time fixed for the delivery of the deed. That such was the intention of the parties is not seriously disputed by the plaintiff, but he contends that "laying out" means only to plot and survey the road and does not mean to open and grade it. This we think is giving a too narrow meaning to these words and is not the one usually given to them nor that which the parties intended they should have. In Bouvier's Law Dictionary, 3rd Edition, it is said, on the authority of numerous cases therein cited, that the term "lay out" has come to be used technically in highway laws as embracing all the series of events necessary to the complete establishment of the highway. In re Twenty-Eighth Street, 102 Pa., 140. In That the parties in this case intended the words "laying out" to mean opening and constructing a road is clearly shown by the fact that they agreed that possession of so much of the land as was necessary for this purpose should be given forthwith. surveying the road and marking its lines. possession of the land was not necessary. Permission to go upon the land for that single purpose was all that was required. But in order to open or construct the road, it was necessary for the party doing it to occupy and have possession of it, and it follows that possession was given for that purpose. For the purpose of Plaintiff's attorney contends that Chestnut Street, 8 C. C. R. 55, is in conflict with the cases above cited. An examination of the case shows that this contention is not correct. It decides that a proceeding to widen is different from a proceeding to lay out a street or assess damages for laying it out, and is authorized and controlled by a different Act of Assembly. It is true Judge Arnold does say by way of illustration that laying out a street is one act and opening it another, but it is not a point decided. It is further contended that neither Henry S. Rich, nor anyone claiming under him, has acquired any rights under this agreement because there was no consideration, as Henry S. Rich has not ac quired title to the properties he has agreed to convey to the plaintiff, it being expressly stated in the agreement that it was not to be binding upon him until he had acquired such title. There is no merit in this contention. It is well settled that a seal to an agreement, as is the case here, imports a consideration: 13 Cyc. 314. Want of consideration is not a valid defense to an action upon a sealed instrument: Clymer . Groff, 220 Pa. 580. A seal imports a consideration and creates a legal obligation: Cosgrove v. Cummings, 195 Pa. 497. Such an instrument can not be attacked for want of consideration: Ander son v. Best, 176 Pa. 498; Weber . Roland, 39 Sup. 611. As it is stipulated in the agreement that it is not to bind Henry S. Rich until he acquires title to the Groff and Shenk properties which he has agreed to convey to the plaintiff, neither does it bind the plaintiff until that time. This is a well settled rule of law. Mutuality of engagement is an essential element of every enforceable agreement: 13 Cyc. 331. Unless a contract binds both of the parties it binds neither. One cannot avoid liability on a contract and claim the benefits of it: Hill v. Roderick, 4 W. & S. 221; Coffin v. Landis, 46 Pa. 426; Iron City Laundry Co. v. Leyton, 55 Sup. 93; Ames v. Pierson, 4. D. R. 392. It was clearly not the intention of the parties that possession of the land should be given forthwith upon the execution of the agreement, but forthwith upon its becoming binding on both of the parties. Until then neither Henry S. Rich nor the Pennsylvania Railroad, for whom the plaintiff knew he was acting, nor its contractors, could go upon the land and open the road. As soon, however, as the agreement becomes binding upon both parties to it, which, according to its terms, will be when Henry S. Rich acquires title to the Groff and Shenk properties, then they can go upon the land and open the road. We must, therefore, refuse to dissolve the preliminary injunction at this time, but will do so when satisfactory proof is submitted to us that Henry S. Rich has acquired title to the Groff and Cotemporaneous parol agreement-Sale. In an action to recover the price on a written contract of sale which stipulated that it covered all agreements between the parties, and that no agent or representative of the plaintiff had made any statements or agreements modifying or adding to its terms, an affidavit of defense is insufficient which attempts to set up a cotemporaneous parol agreement varying its terms which induced the defendant to sign, and avers other matters outside of the contract. Appeal No. 41, Oct. T., 1918, by defendant from order of C. P. of Lancaster Co., making absolute rule for judgment for want of a sufficient affidavit of defense, against W. S. Hastings, Sr. Assumpsit for price of Acetylene Generator sold and delivered to defendant by plaintiff under written contract. Judgment for plaintiff for $233.22 for want of sufficient affidavit of defense and defendant appeals. For opinion of Court below, Hassler, J., see 35 LAW REVIEW, page 129. Error assigned was order of court. B. F. Davis, for appellant. There was an implied warranty. McCormick Harvester Mach. Co. v. Nicholas on 17 Super. 188. Seits 7. Brenner Refng. Co., 141 U. S. 510. Am. . Eng. Ency. of Law Vol., 15 p. 1235. Dartley v. Green, 15 Pa. 118. The removal of parts of the machine by the appellee was a failure to furnish and deliver the machine. If the plumber took away piping he had brought the defendant could not complain. If the piping was in the contract it would entitle the defendant to a reduction if alleged with sufficient certainty which it was not. Worth Bros. v. Henry Martin Brick Mach. Co., 24 LAW REVIEW 286. February 28, 1919. PER CURIAM. The judgment in this case is affirmed for the reasons given bp the Court below in its opinion making absolute the rule for judgment for want of a sufficient affidavit a defense. Weaver v. Welsh, Appellant. A conveyance by an intended husband the day before marriage without the knowledge of his intended wife, passes the legal title to the land and deprives the wife of any interest which the courts can protect, at least in the lifetime of the husband. Appeal No. 61, October T., 1918, by defendant from judgment of C. P. of Lancaster County, entered on the pleadings in favor of the plaintiff Taylor Weaver and against the defendant Daisy Welsh. Ejectment for property on Manor St., Columbia borough, Pa., which property was conveyed by Samuel T. Welsh to Elsie J. Welsh, his daughter by a former marriage, the day before his marriage Subto Daisy Welsh, the defendant. sequently Elsie J. Welsh conveyed the property to Taylor Weaver, who brought ejectment. The Court below, LANDIS, P. J., entered judgment on the pleadings for the plaintiff (See 35 LAW REVIEW, 84) and the defendant appealed, assigning for error this action of the court. B. F. Davis and W. L. Calkins, for appellant. The conveyance by the intended husband was a fraud on the marital rights of the defendant. Collins v. Collins, 98 Md. 473. There should be no distinction between the rights of a husband and the rights of a wife as to ante-nuptial conveyances. Coyle & Keller, for appellee. The deed from the appellant's husband conveyed a legal title. Potter . Fidelity Trust Co., 199 Pa. 366. Pringle v. Pringle, 59 Pa. 281. Samuel Welsh could have conveyed the title after his marriage, and his wife could not have held possession against the grantee who would have taken subject to her inchoate dower right. All the protection possible for the wife would be as to her dower right. This has not yet accrued. Feb. 28, 1919. PER CURIAM. The conclusion reached by the court below, in entering judgment for the plaintiff is fully sustained by the authorities cited. We adopt the opinion filed as our authority for affirming the judgment. LANCASTER LAWREVIEW Yardley v. Cuthberton, 108 Pa., 395 Cauffman v. Long, 82 Pa., 72. Zimmerman v. Zimmerman, 23 Pa., VOL. XXXVI] FRIDAY, JUNE 6, 1919. [No. 32 375. Supreme Court. It was subsequently set aside for fraud. It follows that the decree of the Orphans' Court was void. Ewarts' Estate, 244 Pa., 579. The issue should not have been granted Union Trust Co., Appellant v. Northern Trust without proper evidence or citation on and Savings Co., et al. Issue d. v. n. - Certification of record from one court to another-PracticeNew trial-Amendment-Jurisdiction of O. C. The Court of Common Pleas having, on precept from the Orphans' Court, found an alleged will to be invalid on an issue devisavit vel non, this finding was certified with the record to the Orphans' Court which entered a decree vacating the probate. Subsequently the Common Pleas Court granted a new trial of the issue and the former action was reversed and the will sustained, although the will had not been remitted to it by the Orphans' Court, and no further return or certificate was made to the Orphans' Court. Held, that the Orphans' Court had no jurisdiction to order a return from Common Pleas Court and change its former decree, and enter a decree sustaining the will. The Orphans' Court being a tribunal of equal rank and grade with the Common Pleas Court had no power to command the latter to certify its second verdict. The power of the Orphans' Court to certify questions to Common Pleas rests on statutory provision under forms prescribed. Appeal No. 95, Jan. Term, 1918, by the Union Trust Co. of Lancaster, Pa., Trustee (appointed by the Court) under the will of Oscar Hohein, deceased from the decree of the Orphans' Court of Lancaster Co. made Jan. 14, 1904, revoking and setting aside the will of the said decedent and in not making a decree or amendment sustaining the validity of the said will. Affirmed. Errors assigned were refusal of Court below, SMITH, P. J., to decree the validity of the will and amend the record. (For opinion of Court below see 35 LAW REVIEW 145). B. F. Davis, for appellants. which to base it. Harrison's Appeal, 100 Pa., 458. F. Lyman Windolph and M. G. Schaeffer, for appellee. The alleged will itself is the basis of the whole proceeding and if it is lost there can be no further proceedings. Lappe's Estate, 215 Pa., 424. The validity of a will can not be settled as against heirs not brought into the proceedings. Miller's Estate, 159 Pa., 562. The rights of a mortgage creditor have intervened, and prevent amendment of record. Crutcher v. Com., 6 Whar., 340. Smith's Appeal, 108 Pa., 508. Riley v. Ins. Co., 12 Super., 561. Catlin v. Robinson, 2 Watts, 373. Hassler's Appeal, 5 Wales, 170. George's Appeal, 12 Pa., 260. Nunick's Estate, 179 Pa., 591. Crew Levick Co. v. McCafferty, 124 Pa., 200. Ullery v. Clark, 18 Pa., 148. Zimmerman v. Briggans, 5 Wales, 186. Vanderpool v. Vanderpool, 162 Pa., |